Central Administrative Tribunal - Delhi
Surender vs Delhi Transport Corporation, Govt. Of ... on 25 September, 2023
1
OA No. 4267/2015
Item No.45/C-2
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4267/2015
Reserved on : 12.09.2023
Pronounced on : 25.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Surender Kumar
Ex.Driver, Millenium Depot-3
Delhi Transport Corporation, GNCTD
S/o Shri Ram Kumar
Aged about 38 years
R/o V&P : Mokhra Khas
Rohtak, Haryana.
.. Applicant
(By Advocate : Dr. N. Gautam)
Versus
1. The Chief General Manager (Personnel)
Delhi Transport Corporation
DTC Hqrs., I.P. Estate
New Delhi-110002.
2. The Appellate Authority cum
Regional Manager (South)
Vasant Vihar Depot
New Delhi-110057
Through CMD-DTC
DTC Hqrs., I.P. Estate, New Delhi.
3. The Depot Manager
Millenium Depot-3
New Delhi-110002.
...Respondents
(By Advocate: Mr. Ayushya Kumar)
2
OA No. 4267/2015
Item No.45/C-2
ORDER
Dr. Anand S. Khati, Member (A) The present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the speaking order 27.08.2015 passed by the respondent No.2 rejecting his appeal, forwarded by the respondent No.3 vide letter dated 31.08.2015.
2. This is the 2nd round of litigation. Earlier the applicant approached this Tribunal by filing O.A. No.1922/2015, which was disposed of vide order dated 27.05.2015 with the following directions:-
"3. OA is allowed with the directions that the appellate authority shall consider the appeal of the applicant and pass a speaking and reasoned order within six weeks from the date of communication of this order under intimation to the applicant with a copy of the order."
3. The brief facts as narrated by the learned counsel for the applicant are that the applicant was provisionally selected by the Delhi Subordinate Services Selection Board (DSSSB) to the post of Driver after completion of pre-requisite formalities, i.e. written examination, driving skill test and medical etc. The respondent - Delhi Transport Corporation (DTC) appointed him to the post of Driver against the regular vacancy after completion of necessary formalities and posted him in Millenium Depot-3 by allotting Badge No.25947 and Token No. 67950. He was directed to submit certain 3 OA No. 4267/2015 Item No.45/C-2 information through various forms including Form 17, wherein in Column 21, it was asked whether on substantiation of any criminal charge by the court of law, any fine, detention or some sentence was imposed and also to submit the particulars of the case, if subjudice in the court of law. The applicant mentioned „No case is pending against him in the Court‟ in that column. Besides that, he was also asked to submit the information in Character Verification Form and in Column 12 thereof, he was asked to submit reply to three queries,
(i) as to whether some criminal case was initiated by any court or detained or granted bail or imposed fine upon him, (ii) as to whether some criminal case is subjudice against him in any court of law at the time of filling this form; and (iii) in case the answer is affirmative, the particulars of the case, detention/bail/fine or punishment are to be furnished in detail. The applicant answered „No‟ against each query. When the said form was sent to the Police for verification, the respondent - DTC vide letter dated 04.11.2011 received certain information from the office of the S.P. Police Rohtak, Haryana, indicating involvement of the applicant in FIR No.144/2008 u/s 148, 149, 323, 365 IPC and FIR No.145/2008 u/s 61/1/14 Excise Act and acquittal in both the cases, as under:
Stay Period & Applicant Name Remarks
Report Till dated 25.02.2013 Sh. Surender Kumar,
Applicant involved in case FIR S/o Sh. Ram Kawar No.144/08 U/s. 148, 149, 323, 365 IPC, PS, Meham Acquitted by the Ld. Court on 10.10.2008 4 OA No. 4267/2015 Item No.45/C-2 145/08 U/S. 61/1/14 Excise Act, PS. Meham Acquitted from the case by the Ld. Court vide judgment & Order dated 10.09.2011 After receipt of the above information, the respondent No.3 issued a charge sheet dated 12.10.2012, i.e. after a gap of almost one year, to the applicant alleging that he did not disclose the factual position in Column 21 of Form 17 and in Column 12 of the CVR Form; and concealed his involvement in FIR No.144/2008 u/s 148, 149, 323, 365 IPC and FIR No.145/2008 u/s 61/1/14 Punjab Excise Act, with a direction to file a detailed reply within 10 days. The applicant tendered his reply on 22.10.2012 denying the charges. 3.1 On the basis of the above charge sheet, an enquiry was initiated against the applicant and the Inquiry Officer in his report dated Nil, without taking into consideration the report of the SP, Rohtak, Haryana Police dated 04.11.2011 indicating that both the cases ended with an acquittal note, held the charges as „proved‟. Based on the said report, the respondent No.3 issued a Show Cause Notice dated 13.03.2013 proposing termination of services of the applicant on the ground of concealment of his involvement in the said FIRs. In reply thereto, the applicant submitted his reply dated 01.04.2013 strongly denying the allegations and also stating that both the cases were ended with an acquittal note vide 5 OA No. 4267/2015 Item No.45/C-2 judgments/orders dated 10.10.2008 and 10.09.2011. However, without considering his reply as well as information received vide letter dated 04.11.2013 clarifying the status of the FIRs, the respondent No.3 confirmed the punishment of „termination of services‟ vide order dated 03.04.2013 against the applicant. Being aggrieved, the applicant filed an appeal dated 05.04.2013 before the Appellate Authority, i.e. Respondent No.2.
3.2 Finding no result of his appeal dated 05.04.2013 despite several reminders, the applicant filed an application dated 16.03.2015 under the RTI Act, 2005. As per the information received in response thereto, vide Note dated 17.01.2014 the Appellate Authority noted as under:
"In this case the employee has been acquitted in both the cases and one case was decided before his appointment and another within six months of his appointment. The performance report of the employee (placed at cr./42-45), is satisfactory, so as the Corporation is facing acute shortage of driver, the legal opinion in the matter from the Standing Council may be obtained."
Thereupon, the Legal Department of the DTC vide their Note dated 21.01.2014 opined for contacting the Standing Counsel, DTC personally and obtain her opinion to avoid any complication in future.
3.3 Further, in 2nd Note dated 03.03.2014, the Appellate Authority observed that since the applicant has been acquitted in both the cases and the case in which he was involved is a petty offence and 6 OA No. 4267/2015 Item No.45/C-2 recommended the case to CGM (Per.) for taking a decision on his appeal as the Corporation is facing acute shortage of driver. The Personnel Department submitted a note dated 05.01.2015 highlighting the entire position as well as the legal opinion of the Standing Counsel, however, the Dy. CGM, Personnel Department vide Note dated 13.01.2015 while seeking orders of the CGM (Personnel-cum-Legal), noted as under:
"There were two criminal cases pending against the employee. One criminal case was decided prior to appointment in DTC and another one was decided after appointment. He concealed these facts on account of which he was terminated from the services. In view of these facts, request of the employee cannot be dealt as per PLD‟s Circular dated 08.07.2014."
3.4 After accepting the proposal by the CGM (Personnel) and the Appellate Authority, the same was forwarded to the respondent No.3, who in turn vide Office Memo dated 28.01.2015 intimated the applicant that his appeal could not be dealt as per Circular of Personnel Deptt. No.PLD-III/Dr/Misc/2014/2909 dated 08.07.2014. Challenging the same, the applicant filed O.A. No. 1922/2015, which was allowed vide order dated 27.05.2015. In compliance with the directions issued vide the ibid order, the Appellate Authority rejected his appeal vide order dated 27.08.2015, forwarded to the applicant vide order dated 31.08.2015.
4. The learned counsel for the applicant drew our attention to the Trial Court‟s orders dated 10.08.2008 and 10.09.2011, whereby the 7 OA No. 4267/2015 Item No.45/C-2 applicant was acquitted of the charges against him. The relevant portions of the orders are extracted below:
FIR No. 144 dated 19.06.2008-U/s. 365, 323, 148 & 149 IPC "15. ...... There is nothing in the case file, which can connect the accursed present in the court with the offences alleged. Hence, the accused present in the court are hereby acquitted of the charges leveled against them. They are set at liberty. Their bail bond and surety bond stands discharged. File be consigned to the records after due compliance."
FIR No. 145 dated 19.06.2008 - U/s 61 of Excise Act "13. In view of the totality of the discussions, narrated above, the prosecution in my view failed to prove beyond every reasonable doubt that the accused possessed the liquor in violation of the provision of Section 61 of the Excise Act. Hence, giving benefits of doubt accused persons stands acquitted of the charge. Their bail bond and surety bond stands discharged. Case property, if any, be destroyed as per rules. File be consigned to the records after due compliance." He averred that despite the fact that the applicant was acquitted in both the cases by the Trial Court as reproduced above, however, ignoring the above decisions of the learned Trial Court as well as the information received vide letter dated 04.11.2013 from SP Police, Rohtak, Haryana; the Appellate Authority rejected his appeal vide order dated 27.08.2015, which is not in consonance with the rules/instructions and the directions issued by this Tribunal. In support of his contention, he placed reliance on the judgments passed by the Hon‟ble Apex Court in Ram Kumar vs. State of U.P. & Ors., Civil Appeal No.7106 of 2011 in SLP No. 12091 of 2010, AIR SCW (2011) 4807 and Commissioner of Police vs. Sandeep Kumar, (2011) 4 SCC 644.
8OA No. 4267/2015 Item No.45/C-2
5. In rebuttal, a counter affidavit has been filed by the respondents. The factual matrix of the applicant‟s case has not been disputed by the respondents, but the learned counsel for the respondents submitted that the services of the applicant were terminated w.e.f. 04.04.2013 vide Memo dated 03.04.2013 under Clause 9(a) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952. It is also stated that the PLD has issued instructions to all DMs/unit officers on 08.07.2014 bearing Memo No.PLD-III/2909(PAGE-49)/Cr. that "the criminal cases where the employee was acquitted or fined for petty offences prior to his appointment in DTC may not be treated suppression of material information or concealment of fact. This will, however, be applicable only in those cases as rape, murder, dacoity and dowry death." However, these instructions are applicable with prospective date. He further submitted that the grounds taken by the applicant are an afterthought and untenable in the eyes of law and he is not entitled to any relief. 5.1 Further, the applicant was selected for appointment as Driver provisionally, subject to fulfilment of the prescribed conditions as per the Recruitment Rules and in case of any discrepancy/shortcoming in the licence or any other eligibility conditions, the respondents have right to cancel the selection/appointment. Also that the employment in DTC is of very sensitive nature and the character, integrity and antecedents of a 9 OA No. 4267/2015 Item No.45/C-2 candidate assume importance inasmuch as the applicant being Driver has to perform public duty. It is settled law that provisional selection/appointment subject to conditions, does not entitle him for reinstatement as a matter of right.
5.3 On the basis of the Inquiry Report, the applicant was issued a Show Cause Notice dated 13.03.2013 proposing termination of his services on the ground of concealment of his involvement in the said FIRs. In reply thereto, the applicant submitted his reply dated 01.04.2013 denying the allegations on the basis of his acquittal in both the cases. Dissatisfied, the services of the applicant were terminated vide letter dated 03.04.2015. The appeal preferred by him was considered by the Appellate Authority and rejected vide order dated 27.08.2015. Hence, there is no merit in the O.A. and the same is liable to be dismissed. In support of their contention, the respondents have relied upon the Hon‟ble Apex Court judgments in Avtar Singh vs. Union of India and Others, (2016) 8 SCC 471 and in State of Rajasthan and Others vs. Chetan Jeff, AIR 2022 SC 2274.
6. We have heard Dr. N. Gautam, learned counsel for the applicant and Mr. Ayushya Kumar, learned counsel for the respondents and have perused the pleadings and judgments placed on record.
10OA No. 4267/2015 Item No.45/C-2
7. The contention of the applicant is that his candidature has been cancelled mechanically, without considering his suitability to the post of Driver, on the ground of alleged criminal cases in which he has been acquitted by the court of law. In support of his contention, he has relied upon the decision in Ram Kumar (supra) and Sandeep Kumar (supra), whereby the respondent(s) therein were taken back or allowed to continue in service.
8. It is not in dispute that as per the letter dated 04.11.2011 received from the office of the S.P. Police Rohtak, Haryana, the applicant was involved in FIR No.144/2008 u/s 148, 149, 323, 365 IPC and FIR No.145/2008 u/s 61/1/14 Punjab Excise Act. However, in the Character Verification Form to such queries, the applicant answered „No‟ against each query, whereas FIR No.145/2008 was pending even on the date when he filled the attestation form. Hence, the information given by the applicant as against column No. 12 as "No" is plainly concealment of fact or suppression of material information and, thus, a false statement was made by him. The requirement of filling column No. 12 of the CVR Form was for the purpose of verification of character and antecedents of the applicant as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the applicant in relation to his continuance in service.
11OA No. 4267/2015 Item No.45/C-2
9. We have also considered the issue from the point of view of the respondent-DTC since the question is not about whether an employee was involved in a dispute of trivial or petty nature and whether he has been subsequently acquitted or not, the question is about the credibility/trustworthiness of such an employee, who at the initial stage of the employment made false declaration or suppressed the material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Therefore, in such a situation, if the employer feels that he cannot be continued in service as he cannot be relied upon in future, the respondents cannot be forced to continue such an employee. Further, the applicant cannot claim to continue in service as a matter of right, as already observed in catena of judgments.
10. We have also examined the law position as held by the Hon‟ble Apex Court in Avtar Singh (supra), which reads as under:
"38.1 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.
38.2. 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.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. 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 12 OA No. 4267/2015 Item No.45/C-2 application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:
38.4.1. 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.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3 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. ....."
11. Similar view was taken in a recent judgment dated 11.05.2022 in Chetan Jeff (supra), wherein the Hon‟ble Apex Court has observed as under:
"6.1 At the outset, it is required to be noted that the post on which the writ petitioner is seeking the appointment is the post of constable. It cannot be disputed that the duty of the constable is to maintain law and order. Therefore, it is expected that he should be honest, trustworthy and that his integrity is above board and that he is reliable. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary any act in deceit and subterfuge cannot be tolerated. In the present case the original writ petitioner has not confirmed to the above expectations/ requirements. He suppressed the material facts of his criminal antecedents. He did not disclose in the application form that against him a criminal case/FIR is pending. On the contrary, in the application form, he made a false statement that he is not facing any criminal case. Therefore, due to the aforesaid suppression, his candidature came to be rejected by the appropriate authority. Despite the above, the learned Single Judge allowed the writ petitioner and directed the State to consider the case of the original writ petitioner for appointment as a constable mainly on the ground that the offences were trivial in nature and the suppression of such offences should have been ignored. The same has been confirmed by the Division Bench.13 OA No. 4267/2015
Item No.45/C-2 6.2 The question is not whether the offences were trivial in nature or not. The question is one of suppression of material fact by the original writ petitioner in respect of his criminal antecedents and making a false statement in the application form. If in the beginning itself, he has suppressed the material fact in respect to his criminal antecedents and in fact made an incorrect statement, how can he be appointed as a constable. How can he be trusted thereafter in future? How it is expected that thereafter he will perform his duty honestly and with integrity?"
12. In view of the foregoing reasons and the settled position of law we agree with the contention of the respondents that the issue is about the credibility/trustworthiness of the applicant, who at the initial stage of the employment made false declaration regarding the fact of involvement in a criminal case and the character and antecedents of an employee for such service is important being sensitive in nature as the Driver has to perform public duty, therefore, the applicant ought to have disclosed the pendency of the criminal case against him. Further that, 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 and, therefore, the claim of the applicant is not tenable.
13. The O.A. being devoid of any merit, is accordingly dismissed. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (R.N. Singh)
Member (A) Member (J)
/jyoti/