Central Administrative Tribunal - Jodhpur
Unknown vs Union Of India Through General Manager on 23 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH, JODHPUR Original Application No.290/00324/2016 Jodhpur, this the 23rd day of February, 2017 Reserved on 08.02.2017 CORAM Honble Ms. Praveen Mahajan, Administrative Member Mool Chand S/o Shri Mangla Ram, by caste Bheel, aged 29 years, R/o 70, Naiyon Ka Baas, Village Nandari Post Saran Nagar, Jodhpur, Rajasthan. ..Applicant Mr. Suresh Charan, counsel for applicant. Versus 1. Union of India through General Manager, NW Railways, Malviya Nagar, Jawahar Circle, Jaipur. 2. The Divisional Rail Manager, North West Railway, Jodhpur. 3. The Senior Divisional Personal Officer, North West Railway, Jodhpur. ........Respondents Mr. Girish Shankhla, counsel for respondents. ORDER
The present Original Application has been filed under Section 19 of the Administrative Tribunal by the applicant for seeking following reliefs:-
(i) The letter dated 01.06.2016 whereby the appointment was denied on compassionate grounds without any justification may kindly be quashed and set aside, and
(ii) The respondents may kindly be directed to appoint the petitioner on the post of Technician-III Mechanic/Diesel in pay band 5200-20200 from the date of his submission of the attestation form on 21.11.2015 with all consequential benefits awarded to the applicant, in furtherance of the approval given by the respondents dated 09.11.2015 (Annexure-A/5) on compassionate grounds, and
(iii) Cost may be awarded in favour of the applicant with interest, and
(iv) Any other order or direction, which this Honble Tribunal deems fit in the facts and circumstances may also be passed in favour of the applicant.
2. The brief facts of the case are that the father of the applicant Shri Mangla Ram was working with the respondents as MCM at Carriage and Wagon Depot, Jodhpur. He suffered from advanced ca larynx with metastasis to the regional lymph nodes with permanent tracheotomy. The Medical Board declared him incapacitated for further service in any category in Railway due to his illness. He was recommended for invalidation by letter dated 21.04.2015 (Annexure-A/4). There is a provision in law for appointment of the wards of such incapacitated persons on medical grounds. In pursuance of that, the applicant, Moolchand, submitted his application for appointment on compassionate grounds (Annexure-A/3) to the respondents. The respondents in turn issued the letter of approval for appointment on compassionate grounds through its letter dated 09.11.2015 (Annexure-A/5). The respondents vide letter dated 10.10.2015 informed the applicant to appear in written examination to be held on 29.10.2015 at 09.30 am and he was also directed to bring the certificates relating to age, educational qualifications and other related documents in original, as well as certified copies thereof. It was also informed that the viva will be held on the same day. The applicant submitted attestation form Annexure-A/2 with other required documents to the respondents. The applicant was also issued a character certificate by the D.C.P. Jodhpur on 28.05.2012, wherein it was stated that no criminal case was there against the applicant (Annexure-A/7). But when the respondents did not take any decision about the appointment/posting of the applicant on the post of Technician Grad-III Mechanical/ Diesel pay Band 5200-20200 grade pay 1900/- then the applicant submitted several representations and also met the concerned authorities in person. The respondents vide letter dated 01.06.2016 (Annexure-A/1) rejected the claim of the applicant on the ground that the applicant, while submitting his attestation form, has suppressed/concealed the fact that a criminal Case No.32/2003 dated 03.03.2003 under Section 341, 323/34 IPC had been lodged against him. The applicant submits that the alleged criminal case was lodged due to some family dispute and the same was dropped way back in 11.07.2005. Due to lapse of long period, the matter relating to alleged criminal case slipped from his memory and that he did not intentionally conceal this fact while submitting the attestation form.
2. In their reply, the respondents have submitted that the present Original Application has been filed concealing vital facts. The applicant has been denied appointment on the ground that he has suppressed the information of a criminal case registered against him in Case No.32/2003 dated 03.03.2003 under Sections 342, 323/34 of the IPC at Police State Dangiyawas. Though he was acquitted vide judgment dated 11.07.2005 by the competent Judicial Magistrate, but the character/ antecedents verification is a very important criteria to test the suitability of a selected candidate before his appointment. The respondent authority had clearly mentioned at the top of the attestation form that :
1. 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 candidate unfit for employment under the Government.
3. If the facts that false information has been furnished or that there has been suppression of any factual information in the Attestion Form comes to notice at any time during the service of a person, his services would be liable to be terminated. Thus, mentioning of NAHI in column No.11 of the Attestation form was a clear case of suppression of vital facts, hence the applicant was not considered for appointment as per the Railway Boards letter No.E(D&A) 2013 GS 4-1 dated 20.02.2013.
3. It has been further averred that mere issuance of approval for appointment, does not create any right of appointment in favour of the applicant. The conditions as mentioned in the offer of appointment dated 09.11.2015 (Annexure-A/5) are very clear and are required to be fulfilled by each candidates. The present applicant, cannot escape or be given special consideration from such service conditions. Para No.3 of the said letter provides that in case Character/ Antecedents and Attestation Form is found incorrect, then the services of the candidate are liable to be terminated.
4. Heard learned counsels for both the parties.
5. Learned counsel for the applicant, Shri Suresh Charan, argued that the criminal Case No.32/2003 dated 03.03.2003 under Sections 342, 323/34 of the IPC at Police State Dangiyawas, was lodged due to some family dispute. The matter was dropped without any further proceedings against the applicant and other family members on 11.07.2005. He further argued that the Character Certificate was issued by the Assistant Commissioner, Police Commissionerate, Jodhpur on 28.05.2012, who have issued the Character Certificate, on the basis of the verification done by the Dangiyawas Police Station, District Jodhpur wherein, they themselves have found no criminal case on record, against the applicant. He further argued, that mere fact of not mentioning about the lodging of the case in his attestation form, wherein no punishment was awarded to him by the learned Trial Court, should not entail such harsh consequences. Further, the case was not connected with any moral turpitude, nor was it a heinous crime which should be made a ground to deprive the applicant belonging to Scheduled Tribe Community, of a job, which he desperately needs.
6. Learned counsel for the applicant further contended, that after having adjudged his suitability and approving his case on compassionate grounds, it is not fair for the respondents, to deny him the appointment on the technical ground of so called character and antecedents verification, particularly when the applicant was totally exonerated from the charges, by the competent criminal court, almost a decade back. Assailing the action of the respondents, the learned counsel for the applicant strenuously urged that grievous wrong meted out to the applicant by way of rejection order be set right. He also alleged that the impugned order reflected a mechanical exercise of power, and, non- application of mind. To support his arguments, the learned counsel for the applicant placed reliance on the following judgments:
1. Commissioner of Police & Ors. Vs. Sandeep Kumar [(2011) 4 SCC 644]
2. Commissioner of Police & Ors. V. Pradeep Kumar (W.P. (C) No.4176/2012 decided by the Delhi High Court on 17th July, 2012.
3. Avtar Singh vs. Union Of India & Ors. (Special Leave Petition (C) No.20525/2011, decided on 21st July, 2016.
6. Learned counsel for the respondents reiterating the written arguments, again submitted that the applicant, in the Attestation Form (Annexure-A/2),furnished false information despite the clear warning mentioning at the very beginning of the Form and also Note placed at the end of para 11 of the Attestation Form. This criteria reflects the suitability and characteristic traits of the applicant before final appointment. The candidature of the applicant was rightly rejected as per Railway Boards letter dated 20.02.2013 and as per the views laid down by the Honble Supreme Court in the case of Jainendra Singh v. State of UP, reported in 2012 (8) SCC 748 and in the case of Devendra Kumar v. State of Uttranchal & Ors., reported in 2013 (9) SCC 363, wherein it has been held that suppression of material information is not less than concealment of fact and amounts to moral turpitude before the employer. The character certificate issued by the Police Commissionerate, Jodhpur on 28.05.2012 is not relevant since the applicant himself was privy to the actual fact of a criminal case having been framed against him. It is ridiculous to suggest that the fact of a criminal case, registered against an individual, can be forgotten by him. Therefore, the action and order passed by the answering respondent is just, proper and reasonable being in accordance to the provisions of law and rules. Hence, the applicant is not entitled to get any relief from this Tribunal.
7. I have considered the arguments advanced by both the counsels and minutely examined the legal precedents on which the learned counsel for the parties have placed reliance.
8. The learned counsel for the applicant has placed reliance on the decision of the Honble Apex Court in the case of Commissioner of Police & Ors. Vs. Sandeep Kumar (supra), dated 17.03.2011, wherein it was held that:
We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter.
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. Then 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 forEngland 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."
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.
9. In the case of Commissioner of Police & Ors. Vs. Pradeep Kumar (supra), the Honble Delhi High Court, relying upon the above judgment of Honble Supreme Court passed in the case of Commissioner of Police & Ors. Vs. Sandeep Kumar (supra) held the same view.
10. Contrarily, the respondents have relied upon the case of Devendra Kumar V. State of Uttranchal & Ors. (supra), wherein the Honble Apex Court has held as under:
22. In the instant case, the High Court has placed reliance on the Govt. Order dated April 28, 1958 relating to verification of the character of a Government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority.
The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.
23. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Subla Fundamento cedit opus- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650).
Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur).
24. The courts below have recorded a finding of fact that the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case.
In view of the above, the appeal is devoid of any merit and is accordingly dismissed.
11. Similarly, in Jainendra Singh Vs. State of U.P. [(2012) 8 SCC 748] in Delhi Administration's case (supra), the Apex Court, while considering the importance of verification of character and antecedents for appointment to the post of Constable has viewed seriously the issue of deliberate suppression of facts by the candidates/appointees for disciplined forces. Highlighting the importance of verification of character and antecedents as important criteria to test suitability of an individual for the post under the State, the Apex Court, in Para 29 of the verdict, has summarized following cardinal principles on the issue:
29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two-Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 The purpose of calling for information regarding involvement in any criminal case or [18] detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
Taking into account the fact that different views are taken by coordinate Benches of the Apex Court, the matter has been referred to larger Bench of Apex Court for an authoritative pronouncement on the subject, as is evident from Para 31 of the verdict, which is reproduced as infra:
31. Though there are very many decisions in support of the various points culled out in the above paragraphs, inasmuch as we have noted certain other decisions taking different view of coordinate Benches, we feel it appropriate to refer the abovementioned issues to a larger Bench of this Court for an authoritative pronouncement so that there will be no conflict of views and which will enable the courts to apply the law uniformly while dealing with such issues.
12. Thereafter, such cases were referred before the Larger Bench of the Honble Supreme Court for resolving the conflict of opinion in the various decisions of Division Benches of the Honble Supreme Court. The Larger Bench of the Honble Supreme Court in the case of Avtar Singh v. Union of India & ors. [SLP (C) No.20525/2011 decided on 21.07.2016 has held 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 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.
(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.
(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.
We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits.
13. I have carefully considered the judgments cited by the learned counsels of the respective parties alongwith the facts and circumstances of the case. In the instant case, the applicant had been involved in a family feud and therefore a Criminal Case No.32/2003 was registered against him along with his other family members. The said criminal case was dropped way back in 11.07.2005 and the applicant was acquitted much before he was called for the appointment. I find force in the argument of learned counsel for the applicant that at the time of lodging of criminal case, the applicant was very young and the matter was settled long back on 11.07.2005 without any further proceedings against him and his other family members. In my view, the instant case is fully covered from the conclusion arrived at by the Honble Larger Bench of the Honble Supreme Court in the case of Avtar Singh (Supra) in para 30 (4) (a) of the judgment dated 21.07.2016, which is reproduced as under:-
30. (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.
14. Therefore, looking to the facts and circumstances of the case as well as the conclusions given by the Honble Larger Bench of the Honble Supreme Court in the case of Avtar Singh (supra), I find merit in the present OA. Therefore, the impugned order dated 01.06.2016 (Annexure-A/1) is quashed and set aside. The respondents are directed to consider the case of the applicant in furtherance of the approval given by them vide order dated 09.11.2015 (Annexure-A/5), and if the applicant is found otherwise fit, he may be granted appointment on compassionate grounds.
15. The OA is allowed as stated above with no order as to costs.
[PRAVEEN MAHAJAN] ADMINISTRATIVE MEMBER rss 1