Central Administrative Tribunal - Delhi
Rajiv Kumar vs Govt. Of Nct Of Delhi Through on 8 April, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.573/2010 New Delhi, this the 8th day of April 2011 Honble Shri M.L. Chauhan, Member (J) Honble Dr. A.K. Mishra, Member (A) Rajiv Kumar (PIS No.28060242) Ex. Constl (Ex.) in Delhi Police s/o Shri Jai Prakash r/o VPO Sunhera Distt. Baghpat, UP ..Applicant (By Advocate: Shri Anil Singal) Versus Govt. of NCT of Delhi through 1. Commissioner of Police Police Head Quarters IP Estate, New Delhi 2. Principal Police Training College Jharoda Kalan, New Delhi ..Respondents (By Advocate: Shri Amit Anand) O R D E R
Shri M.L. Chauhan:
The applicant has filed this OA thereby praying for the following reliefs:
a) To call for the records for the case and quash and set aside the impugned order as mentioned in Para 1 of the O.A.
b) To direct the respondents to reinstate the applicant into service with all consequential benefits including seniority and arrears of pay particularly when the applicant is not able to get job despite his best efforts.
c) To award costs in favour of the applicant and pass any order or orders which this Honble Tribunal may deem fit & equitable in the facts & circumstances of the case.
2. Briefly stated, facts of the case are that the applicant was selected for the post of Constable (Executive) in Delhi Police during the recruitment held in the year 2005. He joined the Department on 20.3.2006. While he was undergoing the training at PTS/W.Bad, a complaint was received in the office of DCP/4th Bn. DAP against one Ashok Kumar r/o VPO Sunehra, Distt. Bagpat (UP) in which it has been alleged that he had applied for the post of Constable in Delhi Police during the recruitment held in the year 2006 and was called for interview on 25.8.2006. However, he had submitted forged sports certificate of National Kabaddi for the purpose of recruitment. It has also been alleged in the complaint that one Rajiv Kumar (applicant herein) s/o Shri Jai Prakash, Belt No.598/PTC, who is the real brother of said Ashok Kumar, has also submitted the said forged sports certificate for recruitment and now he is under training. On this complaint, the facts were got verified by DCP/4th Bn. DAP for the candidate Ashok Kumar Roll No.424172, who was called for interview on 25.8.2006 for the post of Constable (Executive) Male in Delhi Police in 2006. The said candidate admitted before the Inspector/Document Checking Team that the said sports certificate is forged. As such, the criminal case FIR No.397/06 under Sections 420/468/471 IPC was registered against him at PS Mukherjee Nagar, Delhi. The sports certificate submitted by the applicant was also got verified and the authority concerned had informed to the office of DCP/4th Bn. DAP, Delhi that the sports certificate submitted by the applicant was fake and hence a show cause notice for termination of service under Rule 5 (1) of CCS (Temporary Service) Rules, 1965 (for shot Rules 1965) was issued to the applicant. Since the applicant had produced the forged certificate and was selected as a Constable in Delhi Police by adopting the deceitful means and mala fide intention, services of the applicant were terminated vide order dated 23.1.2007 and a criminal case No.135 under Sections 468/471/420 IPC was registered against him. However, pursuant to the judgment rendered by this Tribunal vide order dated 7.8.2008 and direction received from the PHQ he was reinstated in service vide the office order dated 21.11.2008. The applicant received the show cause notice on 24.12.2008 and submitted his reply on 6.1.2009. In the reply, the applicant has stated that he was selected in Delhi Police during the recruitment held in the year 2005 and as he was the member of Civil Service of Union, he could not be removed from service without following due process of law, i.e., giving proper opportunity, as required by holding a regular disciplinary inquiry in which he could produce his documentary as well as oral evidence by producing defence witnesses. The reply of the applicant was considered by the respondents and after perusing the document available on the file and after hearing the applicant personally on 5.2.2009, the services of the applicant were terminated by the respondents vide the impugned order dated 13.2.2009 (Annexure A-2) in exercise of Rule 5 (1) of the Rules 1965 and the intervening period from 23.1.2007 to 20.11.2008 was decided as not spent on duty on the principle of no work no pay. The period from 21.11.2008 to 26.11.2008, i.e., the date of joining was also decided as leave of the kind due. It is this order, which is under challenge before this Tribunal.
3. Notice of this application was given to the respondents, who have filed their reply. Facts, as stated above, have not been disputed by the respondents. The respondents have categorically stated that the applicant had produced a forged sports certificate at the time of his recruitment as Constable in Delhi Police. This fact was got verified by DCP/4th Bn., DAP, Delhi, which has categorically stated that the certificate so produced was fake. Thus, the criminal case FIR No.135 under Sections 468/471/420 IPC, PS Mukherjee Nagar was registered against him.
4. According to the respondents, furnishing of such certificate at the time of recruitment for the post of Constable (Executive) Male in Delhi Police and his subsequent involvement in a criminal case has rendered him unbecoming of a suitable police official. Thus, according to the respondents, taking into consideration all the facts and circumstances of the case, the disciplinary authority has rightly terminated the services of the applicant vide the impugned order dated 13.2.2009 (Annexure A-2). The respondents have also annexed with their reply a copy of the letter dated 16.12.2006 (Annexure RA-1) whereby verification of sports certificate was conducted.
5. We have heard the learned counsel for the parties and gone through the material placed on record.
6. Learned counsel for the applicant has made three folds submission. First submission was that show cause notice was not in form Nos. I and II, as such, the same is bad in law and the second submission made by the learned counsel for the applicant was that vide the show cause notice at Annexure A-1, the applicant was directed to file the reply within a period of 15 days, whereas it was incumbent upon the respondents to give 30 days to file the reply. The third submission made by the learned counsel for the applicant was that the appellate authority while passing the order pursuant to the directions of this Tribunal in the earlier OA was not given liberty to proceed with the matter as such the respondents are precluded to take action against the applicant.
7. We have given due consideration to the submissions made by the learned counsel for the applicant. We are of the view that the submissions so made by the learned counsel deserve out right rejection for more than one reasons. The fact remains that the applicant was issued a show cause notice dated 19.12.2008 (Annexure A-1), which was received by the applicant on 24.12.2008. The applicant submitted his reply to the said show cause notice containing 9 pages on 6.1.2009. However, the applicant has not made any grievance regarding granting of 15 days time to file his response to the show cause notice instead of 30 days and also issuance of the show cause notice in the form Nos. I and II. Thus, raising such contention by the learned counsel for the applicant in the OA for the first time, which has not been raised before the appropriate authorities, cannot be entertained. Even otherwise also, the applicant has not shown as to how he has been prejudiced on this account. Thus, for the reasons stated above, the contentions raised by the learned counsel for the applicant regarding granting of 15 days time to file reply to the show cause notice as also the show cause notice was not in form Nos. I and II, are without any basis.
8. Now we will deal with the third contention of learned counsel for the applicant that while disposing of the appeal, the appellate authority has not granted any liberty to proceed with the matter, as such the respondents should not have issued a fresh show cause notice dated 29.12.2008 (Annexure A-1). The applicant has placed on record a copy of appellate authoritys order dated 21.11.2008 (Annexure A-4), which is in the following terms:
In pursuance of the judgment dated 7.8.2008 passed by the Honble Central Administrative Tribunal in O.A.No.1782/2008 Shri Rajiv Kumar Vs GNCT & others and direction received from PHQ vide memo. No.28048/SIP(II)/PHQ dt. 29.10.08, Rect. Const. Rajiv Kumar No.598/PTC whose services were terminated under Sub rule (I) of Rule 5 of Central Civil Services ((temporary Service) Rule-1965 vide this office order No.769-819/SIP/PTC dated 23.1.07 is hereby re-instated in service with immediate effect.
The intervening period from the date of termination of service to the date of issue of this order will be decided later on.
9. As can seen from the aforesaid order, the appellate authority, pursuant to the direction given by this Tribunal, has decided the appeal of the applicant and has reinstated the applicant in service with immediate effect, probably on the ground that the service of the applicant was terminated without issuing a show cause notice. As can be seen from the last paragraph of this order, the appellate authority has specifically recorded that The intervening period from the date of termination of service to the date of issue of this order will be decided later on. This finding recorded by the appellate authority in the last paragraph of the order cannot be lost sight of and clearly indicates that the appellate authority has not closed the matter and right was reserved to initiate further action against the applicant. In case the intention of the appellate authority was to close the matter, then the appellate authority was required to pass the order as to how the intervening period from the date of termination till the reinstatement of the applicant has to be regulated. Having not done so, we are of the view that the respondents were not precluded to proceed with the matter afresh, which, in fact, they rightly did by issuing a show cause notice dated 19.12.2008 whereby the opportunity was accorded to the applicant to explain his conduct regarding forged certificate and as to whether the report, which was received by the department regarding forgery of certificate, was correct or not.
10. Now we may advert to the main issue as well as the defence taken by the applicant in the reply to the show cause notice as to whether his services could have been terminated while resorting to Rule 5 (1) of the Rules 1965 instead of holding regular inquiry relevant under the disciplinary rule. As can be seen from the show cause notice at Annexure A-1, the opportunity was given to the applicant to explain regarding the forged certificate submitted by him on the basis of which he procured an employment as Constable (Executive) in Delhi Police and also regarding the report, which was got verified and the authority concerned has informed that the sports certificate submitted by the applicant is fake one.
11. We have gone through the detailed reply submitted by the applicant to the show cause notice, which has been placed on record as Annexure A-5. The applicant has not uttered even a single word that the fake and forged certificate, submitted by him on the basis of which he procured an employment, was not a forged one and is genuine.
12. Further, the applicant has not uttered even a single word regarding the report, which was received by the department regarding the fake sports certificate submitted by the applicant. The only grievance made by the applicant in the reply to the show cause notice was that his services cannot be terminated by resorting to Rule 5 (1) of the Rules 1965 but his services can be terminated only after holding a regular inquiry. The respondents have also placed on record a letter whereby the forged certificate submitted by the applicant was got verified, which is reproduced in extenso and thus reads:
Amateur Kabaddi Federation of India xx xx xx F.6(2)/Gen./2006 Shri S.K.Ahuja ACP/R.Cell Office of the Deputy Commissioner of Police 4th BN, DAP Delhi-9 Sub: Verification of Sports Certificate Sir Please refer to your letter no.XII-C(328)/186333/R.Cell (R-II)/4th BN.DAP dated 07.12.2006, once again it is inform you to certificate submitted by Rajiv Kumar S/o Shri Jai Prakash Singh is fake and this fact has already been intimated to your office vide our letter No.F.6(2) Gen/2005 dated 13.10.2006.
It is further to inform you that the other information as desire by you is related with our U.P. State Kabaddi Association Office and the undersign is going to refer the case to the Secretary, U.P. State Kabaddi Association, F-823, Rajajipuram, Lucknow -226007. If you want to have further correspondence with the Secretary of the State Association at the above mentioned addresses, I am enclosing a photostat copy of entry form submitted by the association in the 51st Senior National Kabaddi Championship held at Mumbai from 26.12.2003 to 30.12.2003.
13. Thus, on the face of such explanation given by the applicant whereby he has not disputed the factum of submitting a forged certificate and also not disputing the report submitted by the concerned authority regarding the fake certificate of the applicant, it cannot be said, in the facts and circumstances of the case, that the respondents should have resorted to the regular departmental proceedings when under the law a person, who has obtained appointment by way of fraud, is not entitled to the protection under Article 311 of the Constitution of India.
14. Now, the next question, which requires our consideration, is whether in the facts and circumstances of the case the service of the applicant could have been terminated only after holding a regular inquiry and not resorting to Rule 5 (1) of the Rules 1965.
15. Learned counsel for the applicant has placed reliance on the decision of this Tribunal in Rajesh Kumar v. Union of India & others (OA-970/2007) decided on 24.10.2007 whereby this Tribunal has observed that the service of the applicant therein was terminated under proviso to Rule 5 (1) of the Rules 1965. The order has been passed not in Form II, prescribed under the abovesaid Rules, but in a detailed manner. The order is stigmatic. Reliance has also been placed on the decision of this Tribunal in Ex. Ct. (Exe.) Prem Kumar v. Government of NCT of Delhi & others (OA-1508/2007) decided on 1.5.2008 whereby this Tribunal has held that court can lift the veil to determine the real fact of termination, even the probationer is entitled to protection under Article 311 (2) of the Constitution. Decision of the Honble High Court of Delhi in Govt. of NCT of Delhi v. Prem Kumar (CM No.75/2009 in WP (C) No.29/2009) decided on 7.1.2009 has also been relied upon by the applicant wherein it has been held that the services of the respondent therein was terminated under the provisions of Rule 5 of the Rules 1965, as he has given a wrong declaration in the attestation form and also the judgment of the Honble Supreme Court in the case of Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School & others, (1993) 4 SCC 10 regarding the fact that even if the question is not raised before the administrative authorities or the Tribunal, the said can be raised based on admitted and uncontroverted facts, which does not require investigation into a question of fact.
16. Apart from the aforementioned decisions, learned counsel for the applicant has also placed reliance on the decision of this Tribunal in Ganesh Prasad v. Govt. of NCT of Delhi (OA-2534/2005) decided on 13.12.2006 as also the decision of the Honble High Court of Delhi in Commissioner of Police & others v. Regional Secretary, Board of Secondary Education, Regional Office, Meerut, U.P. & others, 2005 III AD (DELHI) 92.
17. We have given due consideration to the submissions made by the learned counsel for the applicant and we are of the view that the applicant cannot take assistance from these judgments, which were rendered in the facts and circumstances of those cases. As already stated above, the applicant was issued a show cause notice as to why his services should not be terminated on the ground that he has submitted a forged certificate on the basis of which he got employment and later on the said certificate was got verified from the concerned authority. As already stated above, the applicant in reply to the show cause notice has not uttered a single word regarding the genuineness of the so-called forged certificate or regarding the adverse report submitted by the competent authority whereby it has been specifically mentioned that the certificate submitted by the applicant was forged one. Thus, according to us, in the facts and circumstances of the case, the principle of natural justice has not been violated and according to us the termination of the service of the applicant in terms of the proviso to Rule 5 (1) of the Rules 1965 is not required to be interfered with by us.
18. At this stage, we may also refer to the judgment cited by the learned counsel for the respondents in Kamal Nayan Mishra v. State of M.P. & others, (2010) 2 SCC 169, wherein the Honble Apex Court has held that probationers services can be dispensed with during the period of probation, or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for appointment and further held that probationer does not have any substantive right to hold the post and is not entitled to protection under Article 311 of the Constitution.
19. As already stated above, in this case the opportunity in the nature of the show cause notice was given to the applicant. To the similar effect is the judgment of the Honble Apex Court in the case of Kendriya Vidyalaya Sangathan & others v. Ram Ratan Yadav, 2003 SCC (L&)S 306 wherein it has been held that suppression of material information relating to character antecedents in the attestation form, which was required to be duly filled in and submitted by the appointee, amounts to suppression of the material facts at the time of making of the appointment and the service of the person can be terminated without holding any inquiry.
20. We have given due consideration to the submissions made by the learned counsel for the parties and also the reliance placed on the judgments cited by the learned counsel for the parties. We are of the view that the matter is squarely covered by the three-Judge Bench decision of the Honble Apex Court in Union of India v. Dattatray & others, 2008 (3) AISLJ 23 whereby the respondents before the Apex Court have secured job by submitting the false caste certificate. It was in this context the Apex Court held that the persons, who have secured a job by false caste certificates, their services can be terminated and such a person cannot be allowed to retrain the benefit to the wrong committed by him and his services are liable to be terminated. At this stage, it will be useful to quote the paragraphs 6 and 7 of the said judgment, which thus read:
6. In this context, we may also refer to the decisions in Bank of India v. Avinash D. Mandivikar [JT 2005 (8) SC 326 ; 2005 (7) SCC 690] and Additional General Manager Human Resources, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde [JT 2007 (6) SC 630 ; 2007 (5) SCC 336], wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus:
"The High Court has granted relief to the / respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra v. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate, his services can be protected and an order of reinstatement can be passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category."
This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.
7. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Schedule Tribe, it wrongly extended him the benefit of continuing in employment.
21. The case referred to above was a case where the first respondent, who claimed that he belonged to a Scheduled Tribe Halba, was appointed as an Assistant Professor of Psychiatry in G.B. Pant Hospital, New Delhi, in a post reserved for Schedule Tribe. One of the conditions subject to which he was offered appointment was that if any declaration given or information furnished by him was proved to be false, he will be liable for removal from service and other action which the Government may deem appropriate. His claim that he belonged to a Schedule Tribe was referred for verification and on verification it was found that respondent No.1 did not belong to Halba community. The show cause notice was issued as to why his services should not be terminated for falsely claiming to belong to Halba Tribe. The said decision of the appellant was challenged before the High Court, which upheld the decision of the Scrutiny Committee, as he did not belong to Halba community, by holding that respondent No.1 shall not be entitled for the benefit as a member of Scheduled Tribe category from the date of decision. However, it was held that the services of respondent No.1 shall not be disturbed on the ground that he did not belong to Scheduled Tribe category. It was under these circumstances the matter went to the Apex Court where the order of the High Court was set aside by holding that the High Court did not properly appreciate the case and having given the false certificate termination of service cannot be questioned.
22. It may be stated herein that the decision rendered by three-Judge Bench of the Apex Court referred to above is based upon the earlier decision of the Apex Court, relevant portion of which has been reproduced above.
23. To the similar effect is the judgment of the Apex Court decided by three-Judge in the case of Vice-Chairman, Kendriya Vidyalaya Sangathan & another v. Girdharilal Yadav, 2004 (2) SC SLJ 138. That was a case where the respondent was a permanent resident of Haryana and at the relevant time, Ahirs/Yadavs of Haryana were not treated as O.B.C. It further stands admitted that the respondent obtained a certificate showing that he was a resident of Rajasthan, which he was not. The Apex Court further observed that it is not disputed that a detailed enquiry was conducted by the District Magistrate, Kota, wherein the respondent had been given an opportunity of hearing and further that the respondent has also not disputed that he had been given an opportunity to show cause as to why his appointment should not be cancelled not only by the appointing authority but also by the appellate authority. The Apex Court further held that in terms of Section 58 of the Indian Evidence Act, facts admitted need not be proved. It is also well settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a strait-jacket formula. The Apex Court has also observed that the respondent herein has been found guilty of an act of fraud. Thus, in the opinion of the Apex Court no further opportunity of hearing is necessary to be afforded to him. The ratio as laid down by the Apex Court in the said case is squarely attracted in the facts and circumstances of the present case. As already stated above, the show cause notice was given to the applicant regarding procurement of service on the basis of forged certificate, which was also got verified from the appropriate authority. The applicant has not uttered even a single word that the certificate so submitted by him on the basis of which he was given appointment is genuine or not forged one. Further, the applicant has not disputed the fact that the report so obtained by the respondents from the appropriate authority whereby it has been mentioned that the certificate submitted by the applicant is fake. Thus, in view of these admitted facts, it was not necessary to conduct further inquiry in the light of law laid down by the Apex Court in Girdharilal Yadavs case (supra). At this stage, it will be useful to quote paragraph 12 of the said judgment, which thus reads:
12. Furthermore, the respondent herein has been found guilty of an act of fraud. In our opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram Chandra Singh v. Savitri Devi this Court has noticed: (SCC p. 327, paras 15-19) "15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe an act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek it was held:
In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit."
24. Ultimately, the Apex Court set aside the judgments of the Central Administrative Tribunal as well as the High Court whereby it was held that the provision of Article 311 of the Constitution of India was not applicable to the employees of K.V.S. It was further held that respondent herein was found guilty of an act of fraud and it was not obligatory on the part of K.V.S. to initiate the inquiry against him and also that no further opportunity of hearing to the respondent explaining the circumstances against him was necessary.
25. For the foregoing reasons, we are of the view that the present OA is bereft of merit, which is accordingly dismissed with no order as to costs.
( A.K. Mishra ) ( M.L. Chauhan ) Member (A) Member (J) /sunil/