Central Administrative Tribunal - Delhi
Vinod Kumar vs Government Of Nct Of Delhi on 27 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA-3384/2010 NEW DELHI THIS THE 27TH July, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Vinod Kumar S/o Sri Naresh Kumar Village Jarthal (Rawat Rana) Post Raliawas District Rewari, Haryana 122106. Applicant (By Advocate:Shri Shyam Babu) Versus
1. Government of NCT of DelhI, Through its Chief Secretary, Players Building, I.P. Estate, New Delhi.
2. Commissioner of Police, Delhi, Police Headquarter, I.P. Estate, New Delhi.
3. Dy.Commissioner of Police, Recruitment, NPL, Delhi. .. Respondents.
(By Advocate:B.N.P.Pathak) Order Shri G.George Paracken The applicant is aggrieved by the Annexure A order dated 17.8.2010 by which his candidature for the post of Constable(Exe.) has been cancelled.
2. The brief facts of the case: During the year 2009, an advertisement to fill up 6302 post of Constable (Exe.) in Delhi Police was published in leading Newspapers. In response to the aforesaid advertisement, the applicant applied under general category. Having successfully completed the physical endurance, measurement test and written test, he was provisionally selected subject to verification of character and antecedents, medical fitness and the final checking of the documents. However, on receipt of his character and antecedents report from DCP/Special Branch, it was revealed that he was involved in the criminal case FIR No.115 dated 16.07.2007 u/s 341/294/506/34 IPC, PS Kasola, Distt. Rewari(Haryana) in which he was convicted but released after due admonition under section 03 of the Probation of Offenders Act, vide order dated 26.09.2009, considering the facts that he was a student and he was less then 21 years of age. It was also seen that he did not disclose those facts in his Application Form and the Attestation Form filled by him on 11.11.2009 and 07.5.2010 respectively. Accordingly, he was served with the Annexure C show cause notice dated 22.07.2010 as to why his candidature should not be cancelled for the aforementioned reasons. In his Annexure D reply dated 02.8.2010, he stated that the aforesaid FIR was against one Rinku and an anonymous person and his name was not mentioned therein but later on, the father of the girl disclosed his name before police due to enmity and he was wrongly named in the charge sheet by the local police. However, since the case was getting delayed and more than 2 years had elapsed because the Prosecution was not taking any further steps in the finalization of the case, he agreed to confess his guilt and the Special Lok Adalat vide its Annexure B judgment dated 26.9.2009 released him on probation of good conduct after due admonition under section 4 of the Probation of Offenders Act,1985 (Act of 1985 for short). The relevant part of the said judgment is as under:-
Heard on quantum of sentence, the accused are found guilty of having committed an offence punishable with imprisonment for not more than two years or with fine or with both under the Indian Penal Code as referred above. The accused are not previous convict. Keeping in view of the nature of offence and the character of the offender as they are students, they are still studying in School, they have bright future, they are less than 21 years of age, instead of sentencing them to any punishment or release them on probation of good conduct under section 4. I release them after due admonition under section 3 of the Probation of Offenders Act, 1958. File be consigned to the record room.
3. According to the Applicant, the Respondents, without appreciating the provisions contained in Section 12 of the aforesaid Act which clearly states that a person found guilty of an offence and dealt with under Section 3 and 4 of the Act shall not suffer any disqualification attached to a conviction of an offence under such law, cancelled his candidature vide the impugned Annexure A letter dated 17.8.2010. The relevant part of the said letter is as under:-
Accordingly, your case was examined and you were issued a show cause notice vide this office memo No.XII/382/2010/34972/Rectt.Cell(R-IV)/NPL, dated 22.07.2010 as to why your candidature for the post of Constable (Exe.) in Delhi Police should not be cancelled for the reasons mentioned therein. In response to Show Cause Notice you have submitted your reply on 02.08.2010 stating the plea(s) that the above said FIR was lodged against one Rinku & one anonymous person and your name was not mentioned in the above-said FIR. Later on, the father of girl disclosed your name before police due to enmity and you were wrongly named in the charge sheet by the local police. Further, the case was delayed approximately 2 years & 2 months and prosecution had not taken any steps about identification either by the complainant or his daughter. Due to delay in the matter you were agreed to confess you guilt and the Special Lok Adalat had acquitted you after due admonition under section 03 of Probation of Offenders Act. The plea(s) put forth by you in the reply have been considered and found not convincing because of the reasons that you were charge sheeted in the above-said criminal case and the Honble court convicted you in the case and released after due admonition under section 03 of the Probation of Offenders Act vide order dated 26.09.2009. It must be stated that you filled up Application Form for the post of Constable (Exe.) on 11.11.2009 and Column No.15(a to e) of the said form requires criminal proceedings details but you put tick mark against No and also left the column No.16 of the said Form blank which clearly requires to give full particulars of the case, under section, police station and present status of the case at the time of filling up the Application Form. Further, you filled up Attestation Form for verification of character & antecedents on 05.05.2010 and in Column No.11( ) of the said Attestation Form you had clearly mentioned that Kabhi FIR dharj nahi hui and concealed the facts of your involvement in the above-said criminal case despite warning clearly given on the Application & Attestation Forms that furnishing of any false information or concealing any fact will be treated as disqualification. It is only on 06.06.2010 you had submitted an application about your acquittal in the above-said criminal case with the request to allow to join as Constable. Hence, your contentions have not been found tenable because of the reasons that you have concealed the facts of your involvement in the above-said criminal case deliberately in the relevant columns of the Application Form & Attestation Form and tried to seek appointment in Delhi Police by adopting deceitful means which clearly reflects your malafide intention. As such, you are found not suitable for appointment to the post of Constable (Exe.) Male in Delhi Police and your candidature for the post of Constable (Exe.) Male is hereby cancelled with immediate effect.
4. According to Shri Shyam Babu, the learned counsel for the applicant, the aforesaid order of the Respondents canceling the candidature of the Applicant for the post of Constable (Exe.) cannot be sustained in view of the provisions contained in Section 12 of the Act, 1985 according to which a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 of the said Act shall not suffer disqualification, if any, attaching to a conviction of an offence. In this regard he has relied upon the observations and directions made by a coordinate Bench of this Tribunal after examining the provisions contained section 3, 4 and 12 of the Probation of Offenders Act, 1958 in its Order in OA-164/2010 Dharam Veer Singh Vs. Govt. NCT of Delhi & Ors. The relevant part of which reads as under:-
3. Sections 3, 4 and 12 of the Probation of Offenders Act, 1958 have been extracted below:
3. Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under Section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.
Explanation - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
4. Power of court to release certain offenders on probation of good conduct -
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interest of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being the learned Single Judge than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
12. Removal of disqualification attaching to conviction Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under Section 4 is subsequently sentenced for the original offence.
4. The learned counsel for the Applicant would contend that the Deputy Commissioner of Police, Recruitment has passed the impugned order by totally ignoring the observations of this Tribunal in the judgement dated 21.04.2009 in as much as the contents of the two FIRs had been taken into account again for holding the Applicant to be unsuitable for the post of Constable in Delhi Police. It was argued that the Deputy Commissioner of Police, Recruitment had himself observed that:
You had applied for the post of Constable (Exe) Male in Delhi Police during the recruitment held in the year 2006 and selected provisionally against Roll No. 421005, subject to verification of your character & antecedents, medical fitness and final checking of documents etc. On receipt of your character and antecedents report from DM/Alwar (Raj.), it was found that you were involved in 02 criminal cases FIR No. 131/99 U/S 454/380 IPC & FIR No. 145/04 U/S 143/323/341/451/379 IPC registered at Police Station Mundawar (Raj.). Later on, the above-said criminal cases were decided by the Honble Courts. In case FIR No. 131/99 U/S 454/380 IPC you were acquitted on 17.03.2001 by given benefit of doubt U/S 3 Probation of Offenders Act and in criminal case FIR No. 145/04 U/S 147/323/451 IPC, you were acquitted of charge U/s 451/323/341 IPC as both the parties had compromised the matter and acquitted u/s 147 IPC by giving benefit u/s 12 of Probation of Offenders Act vide order dated 01.12.2006 by the Honble Court. (emphasis added) It was argued that the competent authority could not have found the Applicant unsuitable for Delhi Police after itself noting that there would be no adverse impact on the Applicant. He would contend that in view of this the findings of the Deputy Commissioner of Police were not maintainable, as these were totally arbitrary. The learned counsel would further contend that the Tribunal had observed in the judgement dated 21.04.2009 that the Applicant should not be subjected to harsh treatment in view of the fact that he had himself disclosed the details of the criminal cases at the time of filling the attestation form.
5. The learned counsel for the Respondents would only contend that the candidature of the Applicant has rightly been cancelled because he had concealed the fact of his involvement in the criminal cases in spite of the fact that it had been clearly mentioned in the application form that such concealment could be a ground for disqualification. This is the only argument raised by the learned counsel for the Respondents.
6. It is not possible to agree with the arguments of the Respondents in view of the fact that the candidature of the Applicant has not been cancelled by the impugned order dated 17.06.2009 on the ground of concealment of the fact of involvement in two criminal cases. The candidature has been cancelled on the ground that the criminal cases would reveal that the Applicant is a person who is in the habit of picking up a quarrel and resorting to violence. The Respondents failed to appreciate that by virtue of Section 12 of the Probation of Offenders Act, 1958 no adverse consequences of the criminal cases would follow. The Applicant would not suffer any disqualification by virtue of the above cited provision of law.
7. In the light of the above discussion we are of the considered opinion that the order dated 17.06.2009 of the Deputy Commissioner of Police, Recruitment and the order dated 31.08.2009 are not maintainable. The impugned orders are, therefore, quashed and set aside. Since the Applicant has cleared all the tests required for the post of Constable in Delhi Police and considering his case as if there was no criminal case against him, the candidature of the Applicant can not be cancelled. The Respondents are directed to appoint the Applicant to the post of Head Constable in Delhi Police along with others of the batch for which he had competed, without, however, giving him the benefit of back wages. He would be entitled to count his seniority from the date the person immediately below him in the merit list of the Constables for the selection of the year 2006, which would count for the purpose of increment. These directions would be complied with within eight weeks of the receipt of a certified copy of this order. No costs.
5. He also has relied upon the judgment of the Apex Court in Commissioner of Police & Ors. Vs. Sandeep Kumar in Civil Appeal No.1430 of 2007 which a similar case of concealment in the Application & Attestation Forms. The Respondent (Shri Sandeep Kumar) in that case had earlier approached this Tribunal but the OA filed by him was dismissed. However, High Court allowed the writ petition filed by him against the order of this Tribunal. The respondent (Delhi Police) in the said writ petition challenged the judgment of the High Court the Apex Court. The relevant part of the judgment of the Apex Court is as under:-
When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
The modern approach should be to reform a person instead of branding him as a criminal all his life.
We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe.
Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."
[ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ] In our opinion, we should display the same wisdom as displayed by Lord Denning.
As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
For the reasons above given, this Appeal has no force and it is dismissed. No costs.
6. According to the Learned counsel for the Respondents, Shri B.N.P.Pathak the question is not with regard to the applicants convictions in the criminal case or his release after due admonition under section 04 of the Act of 1985 but it is with regard to the concealment of his involvement in the said criminal case in the relevant columns of the Application form & Attestation Form despite the clear warning that furnishing of any false information or concealing any fact will be treated as disqualification. As such, he was not found suitable for appointment to the post of Constable (Exe.) and his candidature was cancelled. In this regard, he relied upon the judgment of the Apex Court in Civil Appeal No.9913 of 2010 Daya Shankar Yadav Vs. Union of India & Ors. which was decided on 24.11.2010 wherein appellant was selected and appointed as Constable in Central Reserve Police Force on 12.6.2003. One of the conditions for selections was that the candidate will be rendered unfit for employment under the government, if he furnished any false information or suppress factual information in the Verification Roll. In the said case, the applicant did not disclose the fact that criminal case No.67/1997 was registered against him. It came to the knowledge of the respondents only when the verification of his character and antecedents was made. Consequently, his appointment was cancelled. In the above circumstances, the Apex Court held as under :-
15. The fact that a criminal case was registered against the appellant is not disputed.
The fact that no criminal case was pending against him, when he gave the verification declaration in the year 2004, or the fact that he was not convicted or fined or bound down in any case, loses relevance, when he clearly suppressed the material fact that he was prosecuted and thereby made a false statement. Though the English version of the questions could have used a little more clarity, we cannot agree with the contention that he was misled into answering the question wrongly, as the Hindi version of the 1.
16. We are satisfied that the appellant had knowingly made a false statement that he was not prosecuted in any criminal case. Therefore, the employer (CRPF) was justified in dispensing with his services for not being truthful in giving material information regarding his antecedents which were relevant for employment in a uniformed service, and that itself justified his discharge from service. Consequently, we dismiss this appeal as having no merit.
7. He has also relied upon the judgment of the High Court of Delhi WP(C )No.161/2011 Arun Kumar Yadav Vs. Govt. of NCT of Delhi & Ors. decided on 17.1.2011 based on the judgment in the case of Daya Shankar Yadav Vs. UOI and Ors.(supra) wherein it was held as under:-
8. We note that in Daya Shankar Yadavs case the Supreme Court held that suppressing relevant information i.e. concealing facts and giving false information fall in separate categories. On facts it may be noted that in Daya Shankar Yadavs case, he had been acquitted but was prosecuted for an offence punishable under Section 323/504/506 IPC PS Bahariya and had given information in the negative. The Supreme Court held that while seeking public employment anyone who withholds relevant information and suppresses the truth by giving incorrect information would not be entitled to public employment.
9. We note that this is the view taken by the Tribunal in the decision which has impugned.
10. In view of the law laid down by the Supreme Court in Daya Shankar Yadavs case the writ petition is dismissed in limine.
11. No costs.
8. We have heard the learned counsel for the applicant as well as the learned counsel for the respondents. We have also perused the entire documents and the judgments relied upon by the learned counsel for the parties. In our considered view, the judgments of Apex Court in Sandeep Kumars case (supra) and Daya Shankar Yadavs case (supra) are quite different and distinguishable. In the former case, the Apex Court was considering case of a candidate for the post of police constable involved in criminal case being FIR 362 under Section 325/34 IPC which was compromised and the accused was acquitted. He suppressed those facts in the Application Form initially he filled up for that post. Later, when he qualified in all tests for selection, he filled up the attestation form wherein, for the first time, he disclosed that he was involved in the said criminal case in which he was acquitted. However, for the reason that he concealed the facts of his involvement in the criminal case in the Application Form, his candidature was cancelled after issuing him a show cause notice and considering his reply. The OA filed by him against the aforesaid cancellation was dismissed by this Tribunal. However, the Honble High Court of Delhi allowed the Writ Petition filed against the Order of this Tribunal. The Commissioner of Police approached Apex Court against the High Courts judgment. Considering the fact that the Respondent was less than 20 years and young people commit such indiscretions, the Apex Court held that the approach in such cases should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. The Apex Court further observed that a criminal case under Section 325/34 IPC was not a very serious offence like murder, dacoity or rape and hence a more lenient view should be taken in the matter. Hence the appeal was dismissed. However, in the case of Daya Shankar Yadav (supra) the appellant has already been selected and got appointment as a Constable in CRPF in the year 2003 as he concealed the fact that he was involved in a criminal case. In the declaration made by him in the verification form in the year 2004 also in his Application form he did not disclose it. Later on the Respondent-CRPF have found out about his involvement in the criminal case when his character and antecedents were verified. The Apex Court held that he suppressed the material fact that he was prosecuted and thereby made a false statement. The Apex Court also did not find his explanations that in the year 1997 no criminal case was pending against him and he was not convicted or fined or bound down in any case, satisfactory.
9. Dharam Veer Singhs case (supra) decided by a coordinate Bench of this Tribunal has more similarity with this case. In both cases, the Applicants were involved in criminal cases. Both of them have concealed the said fact in the Application form and the Attestation Form. In both cases, only on receipt of their character and antecedents report from the authorities concerned, the Respondents came to know about their involvement in criminal cases and the concealment of that information. In both cases, they were convicted and released under the Act of 1985. The candidature of both the Applicants has also been cancelled. In the case of Dharam Veer Singh, the contention of the Respondents was that his candidature was cancelled not because of the fact that he has concealed the facts about his involvement in the criminal case but because of his habit of picking up quarrel and resorting to violence. In other words, the respondents have ignored his concealment of facts. However, this Tribunal held that by virtue of Section 12 of the Act of 1985, no adverse consequences of the criminal case would follow. In the present case, the concealment of the fact of the Applicants involvement in the criminal case is the reason for cancellation of his candidature. The provisions contained in Section 12 of the Act of 1985 is mandatory in nature. It clearly says that any person found guilty of offence and dealt with under the provisions of Section 3 or Section 4 of the said Act shall not suffer any disqualification attaching to a conviction of offence under such law except in cases where a person who, after his release is subsequently sentenced for the original criminal offence. It is not the case of the Respondents that the Applicant has been subsequently sentenced for the offence committed by him earlier.
10. We, therefore, allow this OA and quash and set aside the Annexure A order dated 17.8.2010. Consequently, we direct the Respondents to appoint the Applicant to the post of Constable (Exe.) in Delhi Police along with others of the batch for which he had competed, without, however, giving him the benefit of back wages. He would be entitled to count his seniority from the date the person immediately below him in the merit list of the constables for the selection of the year 2009 which would count for the purpose of increment. These directions shall be complied with, within eight weeks of the receipt of a certified copy of this order. No costs.
(Dr.Ramesh Chandra Panda) (G.George Paracken)
Member(A) Member(J)
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