- Background check/verification/screening of the applicant for the government job has to be made by the employer after taking the consent of the applicant.
- When a government employee is in police custody for 48 hours, then he shall be suspended. The suspension shall not extend for more than three months.
- When a government employee is convicted for dowry death, he shall be dismissed.The period of time of police custody does not matter in such case.
- Mere registration of FIR will not affect the appointment of the government job. This specific fact shall be disclosed to the employer.
Government jobs are usually preferred over private jobs in India. With government jobs come different benefits, perks and respect. The person who wants to get the job in government service can apply through an entrance exam and clear it to get the job. If a family member is a government servant, then after his death, his heir can also apply for the job only if he is qualified for the job.This is known as compassionate job. Background checks in government job is a very important aspect. To get a government job and enter into service, there are certain rules and required qualifications, one of which is that the individual applying for such job should not have any criminal matter pending against him or in which matter he had been convicted. If he gets acquittal in such case, then he can apply for the job. Having a criminal case registered can have a very negative effect on the application made by the person. It is very difficult for the person with criminal background to get a government job.
In the background verification process, the officers may also request the District Magistrate or police to get records of any of the applicant. For the verification process and the screening process too, consent from the applicant is required because privacy of an individual is the fundamental right of every citizen of India.
Criminal case in the past:
In the case of State of West Bengal and Ors v. NazrulIslam, the Supreme Court quashed the appointment of constable SK Nazrul Islam. In this case, the recruiters appointed the constable and while doing the background verification and enquiry, the recruiters of the applicant came to know that there is a case pending against the applicant and he had pleaded guilty and was out on bail.
As soon as the recruiters came to know about the past criminal case, they terminated his appointment.The applicant filed an appeal in administrative tribunal, who dismissed his plea. When the case was filed in High Court, the bench of High Court directed that in spite of the case against the applicant, he should be appointed as constable.
The State appealed in the Supreme Court where the order passed by the High Court was quashed and the Apex Court held that “a person facing criminal cases cannot be considered suitable for appointment in government service unless acquitted of the charges. Surely, the authorities entrusted with the responsibility of appointing constables were under the duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges, he cannot possibly be held to be suitable for appointment to the post of constable.”
Suspension from service if there are pending charges:
There are some rules and regulations laid down by the government in case of the recruitment of employees and if any rule is not followed by the employee, then actions can be taken. As per the rules and laws, if a government employee is in police custody for 48 hours, then he shall be suspended from the service and if the employee is convicted for dowry death, then he shall be dismissed no matter for how much time he was in police custody.
If any such fact is kept from the superior and such facts are not known to the superior, then a separate disciplinary action shall be taken against the employee. Mere registration of FIR will not result in suspension or dismissal of the employee from the service. Proceedings should take place in court and the employee should be convicted for the offence. After the framing of charges, if the employee does not inform the superior, then it shall affect the employee badly.
In case of Ajay Kumar Choudhary v. Union of India, it was held that the framing of charges and the formal information of the charges is very important. This is the very first step which should be taken and if such step is not taken, then it shall cause many problems, like the right of speedy trial shall be affected and the suspension of the employee can extend. In this case, the Supreme Court held that the suspension shall not extend for more than three months, if he is not informed of the charges framed against him formally.
Facts which are required to be disclosed:
It is preferrable to disclose the important facts to the employer before the appointment itself. In some cases, some facts are not that important but in some other circumstances, it is important to be shared with the employer. If there is only an FIR registered against the applicant, then it will not affect the appointment of the job but it is important to inform the recruiter about this fact. Disclosure of the fact also depends upon the nature of the job. Disclosing the facts would also result in gaining the trust of employer. If a chargesheet had been filed or a case is pending and the applicant is out on bail or the applicant was convicted before or even if the applicant was acquitted in some case in the past, all this information is very important to be disclosed before the appointment of the job.
Non-Disclosure of the criminal charges:
A person can only be selected for the government job if he does not have any criminal case pending against him or if there was such case in his past but he got acquittal from the court. The acquittal should not be like a settlement made between the parties or turning the witness’s hostile. The acquittal should be genuine.
In case of Avtar Singh v. Union of Indiaand Others,the petitioner had a criminal case against him. An FIR was filed against him under relevant sections of the IPC and that’s why his appointment in the CRPF was cancelled and his service was terminated. The Supreme Court gave some guidelines and stated that if any applicant discloses wrong or misleading information, then action can be taken by the employer against the applicant.
- Any information regarding the past criminal charges or the conviction or acquittal is necessary to be expressed to the employer and not in a wrongful or misleading way.
- If the employee has declared all pending charges, then also the employer is not bound to make the appointment and recruit the person.
- If there are multiple criminal charges against the applicant and he is deliberately supressing the fact and not disclosing it in front of the employer, then after the employer comes to know about the criminal charges, he can cancel the applicant’s appointment and terminate his service. He can also suspend the employee.
In the case of State of Jharkhand v. Jitendra Kumar Srivastava and Others, the respondent worked with animal husbandry and was entitled to 10% of pension which was refused to him by the department because of the inquiry/criminal proceedings going on against him. The High Court passed the order in favour of the respondent and ordered the department to release the pension of the respondent. The Apex Court also held that retirement benefits (pension) cannot be withheld during the pendency of the proceedings.
In a very recent case Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, the employee of Rajasthan Rajya Vidyut Prasaran Nigam Limited gave a declaration that there is no criminal case pending against him and that he had never been convicted before in any criminal proceedings. It turned out later on when the employer came to know about the fact that he was convicted in a case, the employer immediately terminated his services.
The employee of the company then filed an appeal in the High Court and the bench of High Court, while considering the case of Avtarsingh v. Union of India, allowed the writ petition filed by the employee and then set aside and quashed the order of termination given by the employer. The bench of High Court ordered the employer for the reinstatement of the employee with all the benefits.
The appeal was filed by the Rajasthan Rajya Vidyut Prasaran Nigam Limited in the Supreme Court where the employee raised the contention regarding Section 12 of the Act 1958 which says that a person who is convicted shall not suffer disqualification on that basis.
The bench of Supreme Court observed that the benefit of Section 12 of the Act 1958 shall not be useful in this case as the question in this case is about filing of the false declaration that there is no criminal case pending against him nor was he ever convicted in any case before. The court also observed that as in case of acquittal of a person, if he supresses the facts and does not disclose it to the employer, then he shall not be entitled to be appointed and his services shall be terminated.
The Bench of Justices MR Shah and AS Bopanna also held that the question is not about the conviction or acquittal or any offence committed by the employee of moral turpitude but it’s about the trustworthiness of such employee in the initial stage of the employment. The decision of the selection of the individual shall be in the hands of the employer. Therefore, when the employer feels that such person, who gave false declaration just to get the appointment and did not disclose the facts about himself cannot be relied upon, then the employer can terminate his service and cancel his appointment. This is totally up to the employer’s discretion and the employer shall not be forced to continue with such employee.
The Supreme Court observed that an employee who made a false declaration and/or suppressed the material fact of his involvement in a criminal case shall not be entitled to an appointment or to continue in service as a matter of right.
A person who is involved in any kind of criminal case or who is convicted in a criminal case finds very difficult to get a government job. When such person does not disclose the facts of such criminal proceedings or conviction or even acquittal and gets the appointment, and when the employer comes to know about such facts, then he has the right to take the action against such employee and cancel his appointment and terminate his services. He can also suspend or dismiss him; it totally depends on the employer. The employer cannot be forced to work with the employee or keep him despite the facts about the criminal proceedings or conviction or acquittal.
It is the duty of the employer to do the screening or verification or inquiry of the candidate before the appointment of the job and it is the duty of the candidate to disclose the facts about the criminal case against him or any conviction or acquittal before the employer and not give wrongful or misleading facts.
Hope you find the article informative.
1) What are your views on the benefits provided by Section 12 of the Act 1958 and the rule of no government job for the person with pending criminal proceedings?
2) What is the main reason to frame such rule of not giving appointment to a person with a criminal background?