JUDGMENT

Dr. B. S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment and order dated 28.5.2004 in Special Appeal No. 16 of 2003 passed by the High Court of Uttaranchal. The order affirmed the judgment and order of the learned Single Judge dismissing the Writ Petition No. 278 (S/B) of 2002 vide impugned judgment and order dated 1.8.2003 by which and wherein, the order of termination of service of the appellant by the respondent authorities had been upheld.

2. Facts and circumstances giving rise to this appeal are that:

A. An advertisement was published in September 2001 inviting applications from candidates eligible for the 250 posts of Constables in the State of Uttaranchal. The appellant applied in response to the same vide application dated 7.9.2001. He appeared for the physical test and qualified on 28.9.2001. Subsequently, upon passing the written test, the appellant faced an interview in September, 2001 and, ultimately his name was mentioned in the list of selected candidates published on 30.9.2001. The appellant was called for medical examination on 4/5.10.2001, by which he was found fit. Thus, he was sent for training of six months on 18.10.2001.

B. While joining the training, the appellant was asked to submit an affidavit giving certain information particularly, whether he had ever been involved in any criminal case. The appellant submitted an affidavit stating that he had never been involved in a criminal case. The appellant completed his training satisfactorily and it was at this time in January 2002, that the respondent authorities in pursuance of the process of character verification came to know that the appellant was in fact involved in a criminal case. The final report in that case had been submitted by the prosecution and accepted by the learned Magistrate.

C. On the basis of the same, the appellant was discharged abruptly on 8.4.2002 on the ground that since he was a temporary government servant, he could be removed from service without holding any inquiry.

D. The appellant challenged the said order by filing a writ petition and since he was not favoured by the learned single Judge, he challenged the same before the Division Bench but to no avail.

Hence, this appeal.

3. Ms. Nanita Sharma, learned counsel appearing on behalf of the appellant, has submitted that the appellant was not aware of any FIR/criminal complaint against him, nor had he been interrogated by the police at any stage. Thus, as it was not in his knowledge he had not suppressed any information regarding the registration of a criminal case against him. Even otherwise, he had not concealed any material fact while giving information in regard to clause 4 and clause 7 of Proforma of Affidavit, which have to be read together. The appellant was simply supposed to furnish the said information in ‘Nil’ with respect to whether he had been punished/convicted/discharged in any criminal case.

As in the instant case, only a final report had been submitted in case of the appellant under Section 173 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’). So, the question of suppression of material fact could not arise as the appellant had neither been punished, nor convicted, nor discharged. The matter did not reach the stage of trial, hence, the appeal deserves to be allowed.

4. On the contrary, Shri Pankaj Kumar Singh, learned counsel appearing on behalf of the respondent State, has submitted that the appellant suppressed the material fact of registration of a criminal case against him. Thus, the appointment had been obtained by misrepresentation and had become void/voidable. Thus, the courts below have correctly held the termination as valid. In view thereof, this Court should not grant any indulgence to the appellant and, the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

6. Facts involved herein remain undisputed.