Central Administrative Tribunal - Jabalpur
Ravichandran Natarajan Shetty vs M/O Defence on 13 September, 2019
1 OA No.200/00500/2017
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00500/2017
Jabalpur, this Friday, the 13th day of September, 2019
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Ravichandran Natarajan Shetty
Age:28 years S/o Natarajan Shetty
Occupation unemployed
R/o Plot No.33 Chaitaneshwar Nagar,
Kharbi Road Wathoda Layout
Nagpur (M.P.) PIN 440034
Mo-7249730099 -Applicant
(By Advocate -Shri Vijay Tripathi)
Versus
1. Union of India,
Through its Secretary,
Ministry of Defence
Government of India,
South Block
New Delhi 110001
2. Senior General Manager,
Ordnance Factory Khamaria
Jabalpur 482005
3. Asstt. Works Manager/Administration-II
O.F.K. Jabalpur 482005 - Respondents
(By Advocate -Shri S.P. Singh)
(Date of reserving the order:14.01.2019)
Page 1 of 23
2 OA No.200/00500/2017
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed by the applicant challenging the order dated 27.06.2017 (Annexure A/21), whereby the candidature of the applicant was cancelled on the ground that the applicant in the attestation form had not revealed that he was involved in two criminal cases though he was acquitted by the Court.
2. The applicant in the present Original Application has sought for the following reliefs:-
"8.1 To set aside the impugned order dt. 27.06.2017 Annexure A-21 and be further pleased to direct the respondents to continue with the process of selection and appointment f the applicant as per the select list dt. 21.12.15 (A-9);
8.2 This Hon'ble court be further pleased to pass such other order (s) as it may deem fit under the circumstances of the case."
3. Briefly the case of the applicant is that the respondents have issued an advertisement dated 01.08.2014 (Annexure A-6) inviting applications for filling up 18 posts of Fireman out of which 4 were Page 2 of 23 3 OA No.200/00500/2017 reserved for Scheduled Caste (SC). The applicant belongs to SC vide his certificate dated 14.08.2013 (Annexure A/7). The applicant being an eligible candidate, submitted his candidature. The applicant has appeared in the written examination held on 01.11.2015 and thereafter appeared in Skill Test on 10.12.2015. The applicant qualified in both the tests and his name appears at Serial No.161 (Annexure A/8), published in December 2015. A final merit/select list dated 21.12.2015 (Annexure A/9) was prepared in which the applicant's name appeared in Serial No.17. A letter dated 24.12.2015 was issued to the applicant by the respondent No.3 for his medical examination on 12.01.2016. After final selection of the applicant, he was required to fill attestation form in January 2016. The applicant cleared the medical examination also. Thereafter the applicant was asked to fill in attestation form wherein in Serial No.12 (i) (a) to (j) of Attestation/PVR Form he has ticked as 'No' in the said column. The applicant was prosecuted in two criminal cases and was acquitted vide Page 3 of 23 4 OA No.200/00500/2017 order dated 06.10.2012 (Annexure A/13) and 15.06.2016 (Annexure A/14). It is submitted by the applicant that he was facing great mental tension and family ill health, misery and poverty therefore while filing up the attestation/PVR form the applicant committed some mistakes. Firstly the applicant had been prosecuted in the aforesaid two criminal cases which should have been answered in reply to query number b. Secondly, the applicant was facing the trial in the second criminal case which resulted in the acquittal dated 15.06.2016 i.e. after filling up the attestation form but even this was not disclosed by the applicant. The respondents issued a show cause notice dated 01.08.2016 (Annexure A/15) to the applicant. The applicant replied on 10.08.2016 (Annexure A/16) but the respondent-department passed the impugned order dated 28.09.2016 (Annexure A-1) whereby his candidature for appointment to the post of Fireman was cancelled. Hence this Original Application. Page 4 of 23 5 OA No.200/00500/2017
4. The respondents have filed their reply. In the reply of the respondents submitted that the written examination was conducted on 01.11.2015 for the post of Fireman and the result was published on 04.11.2015. The applicant participated in the said selection process and he was selected in the written examination. The applicant was called for document verification and medical examination on 11.01.2016 and 12.01.2016. The applicant has submitted his PVR form on 21.01.2016 (Annexure A/12). In the said form at Para 12 (i) there were 10 questions to be answered in 'Yes' or 'No' in relation to any criminal case registered or pending against the candidate. Further as per Para 12(ii) of the Attestation form if the answer to any of the question is 'Yes' then full particulars of the case/arrest/detention/fine/conviction/sentence/punishment etc. or the nature of the case pending at the time of filling of form is to be provided. The applicant had answered all the questions mentioned in Para 12(i) of Attestation Form as 'No'. The said attestation form had been sent to District Page 5 of 23 6 OA No.200/00500/2017 Magistrate, Nagpur for verification of character and antecedents. The verification report in respect of applicant was received vide District Magistrate Nagpur letter dated 28.06.2016 (Annexure R/1). In para 02 of the report of District Magistrate Nagpur it was mentioned that two criminal cases were registered against the applicant. The details of the case registered against the applicant as intimated by the office of District Magistrate Nagpur on 21.06.2016 (Annexure R/2) are as under:-
(i) Case No.3185/2007 for the offence under Section 160, 323, 504 of IPC was registered in Police Station Pachpavli in which the applicant was acquitted by Hon'ble Court on 06.10.2012.
(ii) Case No.460/2008 for the offence under Section 143, 147, 148, 149, 294, 323, 324, 506 (b) & 509 of IPC was registered in Police Station Pachpavli in which applicant was acquitted by Hon'ble Court on 15.06.2016.
5. The applicant had filled up the PVR form on 21.01.2016 at that time the case was pending before Page 6 of 23 7 OA No.200/00500/2017 Hon'ble Court. It is submitted by the respondents that in the attestation form the applicant suppressed the information of the above mentioned cases registered against him whereas it is clearly mentioned in the bilingual warning on the top of Page 1 of the attestation form that the furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidates unfit for employment under the Government. Therefore a show cause notice was issued to the applicant vide OFK letter dated 01.08.2016 (Annexure A/15). The applicant submitted reply to show cause notice vide his application dated 10.08.2016 (Annexure A/16) stating that the information to be disclosed in the column 12 of the attestation form was not in his personal knowledge but it was in his father's knowledge. The said statement of applicant did not appear to be true. Since OFK is one of the most sensitive organization and the person appointed must be clean in the interest of factory and country, the Page 7 of 23 8 OA No.200/00500/2017 candidature of applicant for the post of Fireman was cancelled vide OFK letter dated 28.09.2016 (Annexure A/1) due to suppression of information of criminal cases registered against him.
6. It is further submitted by the respondents that this is the second litigation filed by the applicant before this Tribunal. The applicant had earlier preferred O.A. No.200/1061/2016 before this Tribunal seeking appointment to him in the post of Fireman as per select list dated 21.12.2015. The said O.A. was disposed of by this Tribunal on 17.03.2017 with a direction to respondents to reconsider the case of the applicant afresh holistically and humanistically by applying the principles of proportionality in the light of discussion made in the order. The respondents in compliance of the said order has examined the case of the applicant in the light of law laid down in the case of Avtar Singh vs. Union of India and others i.e. Special Leave Petition (C) No.20525/2011 and passed a reasoned and speaking order on 27.06.2017 by Page 8 of 23 9 OA No.200/00500/2017 which the claim of the applicant has been rejected. Although the applicant was acquitted from the two criminal cases registered against him on 16.10.2012 and 15.06.2016 but at the time of filling of attestation form on 21.01.2016 one case was still pending against him. The conduct of applicant appears that he deliberately suppressed the information about the criminal cases in attestation form. The suppression of information of such serious criminal cases raises doubt on integrity of the applicant. Thus the appointment of applicant in this organization is not in public interest and the claim of the application was rejected vide OFK letter dated 27.06.2016. The respondents have placed reliance on the judgment dated 13.06.2017 passed by this Tribunal in O.A. No.200/223/2016 Shri Avinash Kumar Sharma vs. Union of India and Others, that respondents (UOI) has filed a Writ Petition No.18097/2016 against the order of this Tribunal in which Hon'ble High Court had partly allowed the said petition and remanded the matter back to the Page 9 of 23 10 OA No.200/00500/2017 department with a direction to consider the entire matter in the backdrop of the law laid down in the case of Avatar Singh, if required grant of an opportunity of hearing and thereafter take a decision by passing a speaking order in the matter within a period of 30 days on receipt of the certified copy of judgment. In this case respondents (DGQA) considered the case as directed by the Hon'ble High Court and the claim of applicant Shri Sharma was rejected. A copy of letter dated 19.01.2017 passed by MoD, DDP, Dte GQA is filed as Annexure R-3. It is submitted that question does not arise that age of applicant is 19 years and 21 years at the time of criminal cases registered against him but when the applicant filled up the attestation form on 21.01.2016 when he was 29 years old and he passed 12th class then why he suppressed the information about the criminal cases in the Attestation form. Therefore, the applicant is not entitled for any relief.
7. The applicant has submitted his rejoinder to the reply filed by the respondents and has reiterated its earlier stand Page 10 of 23 11 OA No.200/00500/2017 taken in the Original Application. It is submitted by the applicant that he has never been arrested and never been detained in any criminal case. When he was a student he faced a false case against him in which he has never arrested and as all the offences alleged against him were bailable and have placed reliance on judgment of Hon'ble Apex Court in the matter of Avatar Singh vs. Union of India and Others. It is further submitted by the applicant that he sought information of names, posts and address of the employees working in Ordinance Factory Khamaria, who are involved in crime of Section 302, 376 and many more during 01.01.2012 to 30.06.2017. The reply to his application was given on 28.08.2017, informing that Shri Naresh Nekram Katre (Fireman) was facing case under Section 376 IPC and Shri Uttam Singh Yadav was facing a prosecution under Section 376 and 498-A IPC and he is doing service as Fireman peacefully without any objection. He further submitted that there are number of persons working in the Ordinance Factory Khamaria in the post of Page 11 of 23 12 OA No.200/00500/2017 Fireman against whom, offences are either registered, pending or they have been compounded or the cases have otherwise finished but the respondents are not providing the relevant information many employees who were working in the factory. The offences are also very trivial.
8. The respondents have filed additional reply to the rejoinder filed by the applicant wherein it has reiterated its earlier stand taken in the reply of the O.A. It is submitted by the respondents that the case registered against Shri Nekram Katre and Shri Uttam Singh Yadav were after their joining of service in OFK and the action has already been taken as per CCS (CCA) Rules 1965 against them by the respondents. In the case of Dhaneshwar Kumar Marvi Durwan disclosed the information in attestation form about the criminal cases for the offence punishable under Section 327, 506 of IPC not 302 of IPC. Shri Marvi was appointed to the post of Durwan only after receipt of duly verified Character and Antecedent Report from Civil Authority in which it is clearly mentioned that Shri Maravi has been Page 12 of 23 13 OA No.200/00500/2017 acquitted from the above charges therefore it is clearly revealed that case of applicant and case of Shri Maravi is different because applicant has suppressed the material information in the attestation form and Shri Maravi has disclosed the criminal case in the Attestation Form.
9. We have heard the learned counsel for the parties and also perused the annexures annexed with the pleadings.
10. From the pleadings it is clear that applicant had applied for the post of Fireman and was called for written examination. The applicant qualified the same and a final merit/select list was prepared in which his name had appeared at Serial No.17. The applicant thereafter cleared his medical examination and was asked to fill up the attestation form wherein he suppressed the information of pending two criminal cases in serial No.12 (i) and (ii). As a result of which the candidature of the applicant was cancelled vide order dated 28.09.2016 (Annexure A/1). Aggrieved by the said order dated 28.09.2016 the applicant approached before this Tribunal in O.A. No.200/ Page 13 of 23 14 OA No.200/00500/2017 1061/2016 (Annexure A/19) which was allowed by this Tribunal vide order dated 17.03.2017. Relevant paragraph 7 is reproduced as under:-
"7. This matter is no longer res-integra and has already been decided in the case of Surendra Kumar Yadav vs. Union of India & Ors. (O.A. No.200/00420/2014) decided on March 17, 2017. In the said case, this Tribunal while allowing the OA had ordered as follows:-
"15. There are other cases where the Court uphold the decisions of the authorities of termination/dismissal of an employee who concealed the material information with regard to the involvement in criminal case. But all those cases are pertain to uniformed services, where the court came down heavily against those employees who secured employment in force by concealing of facts. But equally the court came to rescue of those candidates who suppressed material information either out of fear of petty offence due to non-specified accusation where the employees has been acquitted/convicted but at that time he was young boy.
16. Recently in the case of Avtar Singh v. Union of India & Ors., i.e. Special Leave Petition (C) No.20525/2011, the Lordships while considering the question of law referred to a larger Bench on a diversion view by a different Division Bench, have considered the entire law on the subject and have recorded their finding in Para 27, 28, 29 and 30 and have held that suppression of material information, Page 14 of 23 15 OA No.200/00500/2017 though cannot be condoned, but cannot be equated where an appointment has been sought by submitted forged/fraudulent means. It was further held that yardstick to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. They have finally laid down the parameters in Para 30, which reads as under:-
"30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government Page 15 of 23 16 OA No.200/00500/2017 orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.Page 16 of 23 17 OA No.200/00500/2017
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.Page 17 of 23 18 OA No.200/00500/2017
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
17. In the light of the aforementioned discussion, which is binding upon us, when we evaluate the impugned orders, we are led to only one conclusion that the same have been passed only on the count that the applicant has suppressed information. The respondents have not considered the judgment passed by the learned CJM, Indore, in a criminal case wherein the present applicant was released by imposing fine and that whether that offence involves moral turpitude or not. The respondent have also not concluded where his continuance in service will bring bad name to service or not and whether for an offence for which the applicant was fined when he was young, will make him ineligible for government employment throughout his life, being a criminal, for a petty offence. To our mind, the applicant cannot be put in the slot of a person Page 18 of 23 19 OA No.200/00500/2017 having 'criminal antecedents' or depravity of character. He should not be deprived of appointment as suppression did not relate to involvement in a serious case. The authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit for government employment. While doing so employee has to act prudently on due consideration of nature of post and duties to be rendered by the applicant. In case the respondents come to a conclusion that conviction in criminal case would not affect the fitness for employment, the applicant may be allow to continue in service."
18. Thus, the impugned orders cannot allow to be sustained. Accordingly, the same are hereby set aside. Matter is remitted back to the respondents to reconsider the case of the applicant afresh holistically and humanistically by applying the principles of proportionality in the light of the discussion made hereinabove. Let the above exercise be carried out within a period of 30 days from the date of receipt of certified copy of this order."
The present case is squarely covered by the ratio of order passed in the case of Surendra Kumar Yadav (supra) and is, also allowed in the same terms. No costs."
11. In the instant case as per guidelines given by the Hon'ble Apex Court in Avtar Singh (supra) in Para 30(4)(a) has clearly mentioned that in a case trivial in nature in which conviction had been recorded, such as Page 19 of 23 20 OA No.200/00500/2017 shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
12. Now, in the impugned order dated 27.06.2017 (Annexure A-21), respondent No.2 has not mentioned any other reason for cancellation of applicant's appointment again. The first 9 paragarphs of the said order simply given history of past action in the matter and in the last paragraphs 9 and 10 it is mentioned that since Ordnance Factory Khamaria is one of the most sensitive organization under Ministry of Defence, in which very important items are made for the use of Indian Armed Forces and Para Military Forces, thus in the interest of factory/society/ country it is necessary to appoint person whose integrity is beyond doubt and his appointment in this Organization is not in public interest hence rejected the claim of the applicant. It is apparent that the respondent No.2 has not Page 20 of 23 21 OA No.200/00500/2017 rejected the case of the applicant on the ground that of either severity of the criminal offences registered against the applicant or the method of his acquittal under that offence. In fact no other factor was considered by respondent No.2 in the order dated 27.06.2017 ibid, except for suppression of information in regard to criminal offence in his attestation form, which was also the point of consideration in the earlier order of the respondents and the same was set aside vide order dated 17.03.2017 of this Tribunal.
13. In the present case the applicant was accused of offences under Sections 143, 147, 148, 149, 294, 323, 324, 506 (b) & 509 of IPC and he has been acquitted from all the charges leveled against him. Moreover, said offences are bailable offence and are trivial in nature. However, the respondent No.2 has not considered the case of the applicant on the basis of severity of offences registered against him and his appointment has simply been rejected on the ground of suppression of factual information in the Page 21 of 23 22 OA No.200/00500/2017 attestation form, which was the ground in earlier rejection of his candidature. Thus, after the decision of this Tribunal vide order dated 17.03.2017 in O.A. No.200/1061/2016, wherein the entire issue of cancellation of appointment on the ground of suppression of information in attestation form was considered and the order of the respondents dated 28.09.2016 was set aside, the impugned order dated 27.06.2017 of the respondents passed on similar ground cannot be sustained. From the said impugned order Annexure A/21, we do not find any reasons that how the unsuitability of the applicant has been judged by the respondent-department as the Hon'ble Apex Court has held that the employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post.
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14. In view of the above, this Original Application is allowed and the impugned order dated 27.06.2017 (Annexure A/21) is quashed and set aside. The respondents are directed to re-consider the case of the applicant for appointment to the post of Fireman, ignoring the mistake of suppression of information regarding the criminal cases filed against him in the attestation form, within a period of 60 days from the date of communication of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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