Central Administrative Tribunal - Delhi
Shri Naveen Kumar Mandiwal vs The Commissioner Of Police on 3 August, 2011
Central Administrative Tribunal Principal Bench OA No. 728/2011 New Delhi this the 3rd day of August, 2011 Honble Shri G.George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Naveen Kumar Mandiwal, S/o Shri Bhanwar Lal Mandiwal, age 23 years, R/o Village Khatiwas, PO-Roopgarh Vaya-Kochhor, Tehsil-Danta Ram Garh, Distt.Sikar, Rajasthan, Pin-332406 -Applicant (By Advocate: Shri Sachin Chauhan) -V E R S U S- 1. The Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi 2. The Principal, Jhroda Kalan, New Delhi 3. The Addl. Dy. Commissioner of Police, Central District, New Delhi -Respondents (By Advocate: Shri Amit Anand) O R D E R
Dr. Veena Chhotray:
The applicant, who had joined as a Constable on temporary basis subject to certain stipulations and was undergoing basic training at the Police Training School, is aggrieved at the termination of his services. The termination has been ordered after a show cause notice under Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965 on the ground of non-disclosure of his having been involved in a criminal case-in which he ultimately was acquitted-in various procedural stages before appointment.
By way of relief, the OA seeks quashing the impugned SCN dated 13.8.2010 (A-1) and the order of termination dated 2.10.2010 (A-2). Further, directions for reinstatement with all consequential benefits, including seniority, promotion, pay and allowances, have been sought. No interim relief in this case has been granted.
The learned counsels, Shri Sachin Chauhan for the applicant and Shri Amit Anand for the respondents, would argue the matter before us.
2. The brief facts, as revealed from the submissions before us, including the original records produced by the respondents, are summed up as below:
2.1 The applicant had been selected provisionally to the post of Constable (Exe.) in Delhi Police during the recruitment held in the year 2009. He was allowed to join the department on 2.1.2010 subject to verification of the character and antecedents, medical fitness and final checking of documents.
2.2 An FIR No. 54/2007 dated 13.4.2007 u/s 143/341/323 IPC, PS Dataram Garh, Distt. Sikkar (Rajasthan), was registered against the applicant. Subsequently, on a compromise being effected between the parties, the applicant had been acquitted by the Trial Court on 20.07.2009.
2.3 The applicant filled his Application Form for the post of Constable on 23.3.2009. Against column 15 pertaining to criminal proceeding details in response to sub column (a) (b) regarding registration of any FIR or criminal cases and their pendency, a reply in the negative had been furnished. Subsequently, while filling up the Attestation Form on 2.10.2009 in column 11 pertaining to the applicant having been ever involved in any criminal prosecution or having been arrested (11 ) and filing of any FIR (11 ) and any pending prosecution in a court (11 ) descriptive statement negating all of them had been furnished. On 1.1.2010, an undertaking was furnished once again, inter alia, declaring about the applicant never having in any criminal case or having been prosecuted.
2.4 However, in course of the character and antecedents verification by the respondents, a report dated 25.6.2010 was received from the Additional District Magistrate, Sikkar (Rajasthan) mentioning about the antecedent of the previous criminal involvement of the applicant as per the aforesaid FIR. By that time, the applicant had been provisionally appointed and had joined the department. His basic training in the Police Training School, New Delhi, had also commenced from 2.1.2010 onwards.
2.5 Alleging that the concealment of facts regarding involvement in a criminal case at the initial stage reflected malafide intention, the respondents issued a notice dated 13.8.2010 to the applicant to show cause as to why his services should not be terminated under Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965.
The plea taken by the applicant in his reply was that his name had been mentioned in the above said FIR due to some misunderstanding. Further, it was stated that on coming to know of it, the applicant had requested the concerned SHO to remove his name from the FIR. However, as the same was not done, the applicant had contacted the complainant party and compromise the matter. Subsequently, the Trial Court had acquitted him vide judgment dated 20.7.2009. It was the case of the applicant that he was not at fault in the matter.
2.6 On consideration of the reply submitted by the applicant and other relevant facts, the respondents passed the order dated 7.10.2010 terminating the services of the applicant under Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965 The aforesaid show cause notice and termination order are the subject of challenge in the instant OA.
3.1 Pleading innocence the applicant has made vehement protestation against there being any deceitful intention on his part in non-furnishing information about the FIR and the criminal case to the department in his forms for appointment. On the other hand, it is the case of the applicant that as no notice or summon had been issued in that case, nor had he ever been arrested, he was not aware of it. In Ground 5(1), a plea of under the bonafide impression of merely being named in the FIR not amounting to involvement in the criminal case has been taken. Further, it is averred that at the time of filling the Attestation Form and the Undertaking he had already been acquitted, his understanding in the matter was that the information noted to be furnished only in a criminal case in which conviction had taken place. Thus, non-furnishing of the information in all these forms is averred to be an inadvertent and a bonafide mistake on the part of a young aspirant seeking employment in Delhi Police after qualifying the selection process on merits. To buttress this argument, it is also averred that as the Trial Court had acquitted him, he had really nothing to gain by concealing such information and thus, there could be no motive on his part for intentional avoidance of disclosing these facts.
3.2 A legal ground of the impugned order not being termination simplictor but stigmatic in nature and thus not sustainable in law, has also been taken (Ground 5(1) (3) and 5(1) (5). Building upon this argument, further the rejoinder makes the following submission:-
The Respondents in the present case either should have proceeded against the applicant either in the regular Departmental Enquiry or in accordance with the terms and conditions of the employment or under the CCS Temp. Service Rules 1965 but the Respondents has not complied with either of the Rules and Procedures thus vitiating the Show Cause Notice as well as the order of termination.
The rejoinder further submits that in the present case a show cause notice given was not in accordance with Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965. As the applicant had not been given pay and allowances in lieu of notice and yet the services had been terminated. The same is averred to be ex facie contrary to the provisions of the said Rules.
The learned counsel, Shri Sachin Chauhan, would particularly emphasize the basic unsustainability of the present termination. He would also rely on the decision of a Coordinate Bench of the Tribunal in OA No. 2137/2009 (Constable Sandeep Vs. GNCTD & Ors.) decided by an order dated 31.1.2011.
3.3 A number of judicial rulings have been relied upon in support of the claims in the OA. The learned counsel, Shri Sachin Chauhan, would, besides the OA No. 2137/2009, refer to the OA No. 1415/2010 (Ajay, Ex. Constable Vs. GNCTD) decided on 1.2.2011. His maximum emphasis would be on the recent decision of the Apex Court in the Civil Appeal No. 1430/2007, Commissioner of Police & Ors. Vs. Sandeep Kumar, decided vide judgment dated 7.3.2011. Besides, the OA has also placed reliance on the following decisions:-
The Single Bench decision of the Punjab and Haryana High Court in Subhash Vs. The State of Haryana and another, 1990(4) SLR 525 The Division Bench decision of the Punjab and Haryana High Court in Dinesh Kumar Vs. State of Haryana & Ors., 2006(4) SCT 428 The Division Bench decision of the High Court of Delhi in Govt. of NCT of Delhi & Anr. Vs. Robin Singh, W.P.(C) No. 2068/2010 decided on 25.08.2010.
Additionally, a number of Original Applications decided by the Tribunal have also been adverted to in the OA.
4.1 Opposing the claims in the OA, the respondents have found the pleas of the applicant unacceptable. The termination order mentions that in course of the oral hearing, the applicant had admitted about his being aware of the criminal case registered against him. By listing the chronology of events in which the FIR had been registered in the year 2007, the Application Form and the Attestation Form got filled in March 2009 and October 2009, the pleas taken in the reply to the show cause notice are stated to be no tenable. Further, it is stated that the relevant columns in the Application Form and the Attestation Form were very specific; besides, there was a clear warning at the top of the Application Form and the Attestation Form about furnishing of a false information or suppression of any factual information leading to disqualification for the job. Therefore, as per the respondents, the applicant had deliberately concealed the fact of the criminal involvement. The counter reply has reiterated this stand and also termed the various pleas taken in defence as mere afterthoughts. It is further stated that a perusal of Para 10 of the Trial Courts judgment revealed that the applicant had admitted his guilt in the Honble court of law.
4.2 Rebutting the rival contention of the impugned termination order not being sustainable in law, it would be submitted that the order which had been passed after due observance of the principles of natural justice, was in accordance with law. The learned counsel, Shri Amit Anand, would also advert to the decision of the Apex Court in the Civil Appeal No. 9913/2010, Daya Shanker Yadav Vs. Union of India & Ors.
5.1.1 We have carefully considered the respective submissions and the material on record. The facts of the case are not disputed; what is at variance is their perceptions by both the sides. Such cases have formed the subject of judicial consideration on several occasions by different Benches of the Tribunal, by the High Courts as well as by the Apex Court. What we note is a clear and perceptible shift in the law on the subject. For this purpose, it would be apt to refer to the decision of the Apex Court in the Civil Appeal No. 1323/1996, the Delhi Administration Vs. Sushil Kumar, (1996) 11 SCC 605. Whiling dealing with the case of cancellation of candidature of a provisional selected candidate for the post of Constable in Delhi Police on the ground of non-disclosure, in a case of subsequent acquittal in the criminal offence, the Honble Apex Court had propounded the following law:-
6.4 In Delhi Administration Vs. Sushil Kumars case (supra) while dealing with the case of a cancellation of candidature of a provisionally selected candidate for the post of Constable in Delhi Police on the ground of non-disclosure, in a case of subsequent acquittal in the criminal offence, the Honble Apex Court had propounded the following law:-
Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Rejecting the stand of the Tribunal, the following had also been observed:-
The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though, he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant in the conduct or character of a candidate to be appointed to a service and not actual result thereof. If the actual result happened to be a particular way, the law will take care of the consequences. The consideration relevant to the case of the antecedents of the candidate. Appointing authority, therefore has rightly focused this aspect and found him not desirable to appoint to the service.
5.1.2 The sea change in this case is perceived in the recent decision of the Honble Apex Court in Commissioner of Police & Ors. Vs. Sandeep Kumars case (supra) replied upon by the applicants counsel. Again dealing with a case of cancellation of candidature for the post of Head Constable in Delhi Police (Ministerial) for non-disclosure of a criminal case, the Honble Apex court had taken a liberal view and upheld the view taken by the Delhi High Court reversing the decision of the Tribunal. In this case, the respondents and some of his family members had been involved in a criminal case under Section 325-34 IPC, to be subsequently compromised and leading to acquittal by the Trial Court. The Honble Apex Court had considered the matter in the broader perspective and referred to the character Jean Valjean in Victor Hugos 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. A reference has also been made to the case of Welsh students who had been agitating in support of Welsh language and Lord Dennings judgment [vide: Morris Vs. Crown Office, (1970) 2 Q.B.114].
Agreeing with the Delhi High Courts view about the cancellation of candidature in this case being illegal, the Honble Apex Court had observed as follows:-
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. The following had also been observed:-
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. It is noted that the emphasis has now shifted on the seriousness of the offences for which a person has been alleged to be involved and introduction of the extenuating factors of lightness of the offences and the tendency of the young and inexperienced to commit minor indiscretions when they are tender and inexperienced in years.
5.1.3 The earlier judgments of the Punjab and Haryana High Court adverted to on behalf of the applicant fall in the line, demonstrated by the Honble Apex Court in its most recent judgment referred to above. In the case of Subhash Vs. State of Haryana & Anr. (supra) dealing with a similar issue of non-disclosure of a criminal case leading to acquittal, the Honble Single Bench had found the pleas of the respondents opposing the claims of the applicant as highly hyper technical. Further, the view taken was that the non-disclosure of information relating to his acquittal in the criminal case could not be a ground for withholding the appointment of the petitioner.
Similarly, the Division Bench of the Punjab and Haryana High Court in the case of Dinesh Kumar Vs. State of Haryana (supra) had not found the objections raised by the respondents as acceptable.
5.1.4 Considering the recent trend, we find it necessary to refer to another OA No. 1415/2010 (Ajay, Ex. Constable in Delhi Police Vs. GNCTD), again relied upon on behalf of the applicant. In this case also taking a favourable view, the learned Coordinate Bench had observed as follows:-
To this, we have to examine the circumstance of full disclosure of this case at the time of application itself forgetting the relevancy of the dates since his selection was based on analysis of competitive merits, the fact that he was acquitted and the offence was so minor and petty and the circumstances thereof are too late to be mentioned of, would have ensured the selection in the first place. Therefore, the impugned orders are vitiated by non-application of mind as to the cause and effect of the actions alleged against the applicant. 5.1.5 In view of the significant change in law on the subject, as upheld by the most recent decision of the Apex Court in Sandeep case (supra), we do not find it necessary to deal with the other cases relied upon by the parties with the singular exception of the Apex Courts judgment in Daya Shanker Yadav Vs. Union of India & Ors. (supra) relied upon by the respondents, would be appropriate.
The learned counsel, Shri Amit Anand, has, particularly, drawn our attention to Paras 8, 9 and 10 of this order, which according to him, express the ratio decidendi of the order. This was a case relating to termination of services of a provisionally selected Constable in the Central Reserve Police Force on the ground of non-disclosure of criminal involvement. Upholding the judgment of the Delhi High Court, the appeal had been disallowed. Para 8 had dealt with the relevant rule of the CRPF Rules. Para 9 had considered the various scenarios regarding response from the prospective employee to the queries in the verification form. In Para 9(c), it was mentioned that where the declarant had answered the question in the negative and on verification, it was found that the answers were false, the employer may refuse to employee the declarant or discharge him (if already employeed), even if the declarant had been clear of the charges. This was because of suppression of material information itself becoming a reason for not employing the declarant. In para 10, it had been reiterated that an employee on probation could be discharged from the service or a prospective employee could be refused employment. Para 10 (ii) dealing with the issue of suppression of material facts has stated as under:-
on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for an criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post. This view of the Honble Apex Court has been relied upon by the respondents learned counsel, Shri Amit Anand, to justify the impugned decision of termination in the present case.
5.1.6 However, considering the well established principle of law that subsequent decision of the Court would be a binding precedent, we have no choice but to be guided by the decision in Sandeeps case (supra) delivered in March, 2011.
5.1.7. At this very point, it would also be relevant to state that the relevant Sections under which the applicant had been charged i.e. Section 143 (member of unlawful assembly), 341(wrongful restraint) and 323 (voluntarily causing hurt) do not fall in the category of grave and heinous offences like murder, dacoity, rape etc. specifically referred to by the Honble Apex Court in its judgment in Sandeep Kumars case (supra).
5.2.1 Another important aspect is the legal ground raised about the unsustainability of the present termination under Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965. This aspect had come in for consideration by a coordinate Bench of the Tribunal in Constable Sandeep Vs. Delhi Police (OA No. 2137/2009) in its recent judgment delivered on 31.1.2011. While dealing with different relevant aspects, the learned Coordinate Bench had made the following observations:-
11. The terms and conditions of employment relating to declaration of involvement in criminal case etc. at the time of making Application Form and submission of Attestation Form and declaration clearly provide that furnishing of false information and concealing material information in this regard would render the appointment liable to be cancelled. The respondents could have invoked these powers, if they so desired.
12. Since the show-cause notice as well as the termination order are prima facie stigmatic as well as punitive in nature, it was not open to the respondents to take recourse to the provisions of the Civil Service (Temporary Service) Rules, 1965, as a short cut to terminate the services of the applicant without holding inquiry as per the applicable rules.
13. It is seen in the present case that no notice has been given to the applicant in terms of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965. Nor he has been given pay and allowances in lieu of notice. Yet the services of the applicant have been terminated with immediate effect under the said Rule. Such an action is ex facie contrary to the provisions of the said rules and as such not sustainable in law. The impugned termination order is, therefore, quashed and set aside being devoid of provisions of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965 and the respondents are directed to reinstate the applicant forthwith with all consequential benefits. In view of this, we need not go into other submissions made by the applicant. The respondents shall, however, be at liberty to proceed against the applicant, if they so desire, after following due process as per the applicable rules. While doing so, it will be desirable for the respondents to keep in mind the submissions of the applicant in this Application with a view to curtail any avoidable litigation in the matter for it shall be open to raise all these submissions afresh in appropriate proceedings as and when occasion arise to do so. The respondents should, therefore, keep all such submissions in mind while taking any further action in this matter.
Accordingly, without going into other submissions made by the applicant, the OA had been allowed and directions issued to reinstate the applicant with all consequential benefits, though a liberty had been granted to the respondents to proceed against the applicant, if they so desire, after following due process as per the applicable rules.
6. To conclude, having heard the facts of the case and the respective submissions closely and carefully, we are of the view that the termination of the services of the applicant under Rule 5(1) of the of Central Civil Service (Temporary Service) Rules, 1965 after issuance of the impugned show cause notice, is not in consonance with law. While arriving at this finding, we have considered and respectfully agreed with the view taken on this point of law by our learned Coordinate Bench in OA No. 23137/2009. We have, however, deviated slightly in our final findings in the matter of taking different course than the one adopted by the learned Coordinate Bench concerning the aspect on the ground of the liberty to the respondents to proceed against the applicant, if they so desire, after following the due process as per the applicable rules. This is taking into consideration the judgment of the Honble Apex Court in the Civil Appeal No. 1430/2007 (Sandeep Kumar). As this judgment was delivered in March, 2011, the learned Coordinate Bench did not have occasion to consider it. We are unable to follow the decision in Daya Shanker Yadavs case (supra) for the reason of the Sandeep Kumars decision being later in point of time. Bowing before the view taken by the Honble Apex Court in Sandeep Kumars case (supra) and considering the nature of the offence for which the FIR had been registered. In this case, we find it an appropriate case for judicial intervention. The termination of the services of the applicant on the ground of non-disclosure of the criminal case on these charges in which he had subsequently got acquitted, is not to be in consonance with the aforesaid law.
7. Resultantly, the OA is allowed and the respondents directed to reinstate the applicant in service. As he had already joined on 2.1.2010, the seniority of the applicant would be kept undisturbed; though applying the principle of no work no pay, we are not inclined to grant wages for the intervening period. We would also like to clarify that this period would be counted for purposes of increments as well as promotion. Our directions are to be implemented by the respondents forthwith and latest within one month from the date of receipt of a copy of this order. No order as to costs.
(Dr. Veena Chhotray) (G.George Paracken) Member (A) Member (J) /lg/