Central Administrative Tribunal - Lucknow
Rajendra Kumar vs Northern Railway on 2 January, 2025
CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00474/2022
Order reserved on: 27.11.2024
Order pronounced on:02.01.2025
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Rajendra Kumar, son of Late Prem Kumar Pandey, resident of Krishna
Nagar, Near Pani Ki Tanki , Kaushalpuri Colony, Phase-2, Faizabad,
U.P., aged 31 years.
.....Applicant
By Advocate: Shri Rajeev Mishra
VERSUS
1. Union of India through General Manager, Northern Railways, Baroda
House, New Delhi.
2. Divisional Railway Manager, Northern Railways, Lucknow.
3. Assistant Personnel Officer Mech., Northern Railway, Lucknow.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr .Pankaj Kumar, Member-Administrative In this case relating to appointment, the applicant has sought the following reliefs:
"i. This Hon'ble Tribunal may graciously be pleased to set aside the impugned order dated 11.08.2022 passed by the opposite party No. 2 Divisional Railway Manager, Northern Railway, Lucknow as contained in Annexure No. 1 to this original application.
ii. Direct the opposite parties to allow the applicant to work on the post of Assistant Station Master and pay him salary and other benefits in accordance with law without giving effect of impugned order. iii. Direct the opposite parties to consider the date of joining of his service w.e.f. 24.08.2022.Page 1 of 11
CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
iv. Any other relief, which his Hon'ble Court may deem fit and proper in the facts and circumstances of present case.
v. Award cost of the original application in favour of the applicant."
2. The facts of the case are that the applicant applied for appointment to a post on compassionate ground after his father died on 25.10.2020. He was appointed to the post of Assistant Station Master (ASM, hereafter) vide order dated 21.12.2021. His appointment was cancelled vide order dated 11.08.2022. Aggrieved, the applicant has preferred this OA.
3.1 The applicant states that he had submitted the character certificate issued by the Additional District Magistrate, Ayodhya for his appointment. At the time of issuance of the certificate, the applicant had no criminal history. Thereafter, the respondents sent the papers for background verification to the District Magistrate, Ayodhya whereupon it was reported by the District Magistrate that one FIR bearing crime case no. 723/22 under sections 3 and 4 of the Dowry Prohibition Act, 1961 (DP Act, hereafter) was registered against the applicant. It is contended that on the basis of this report, the respondents have cancelled the applicant's appointment in a routine manner though the offence mentioned against the applicant is petty and trivial in nature and is in the nature of personal dispute. No show cause notice was given to the applicant before cancelling his appointment.
3.2 It is stated that the applicant has not concealed any material fact. The applicant submitted on 04.01.2022 his background verification form signed on 27.12.2021 containing the character certificate dated 24.12.2021 while the FIR was lodged later on 30.01.2022. It is stated that the applicant's marriage was fixed with a girl, but the applicant's family refused to go ahead with the marriage in May, 2021 following a dispute concerning the girl's date of birth. It is contended that the girl Page 2 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors. lodged the FIR with ulterior motive several months after the marriage was cancelled. It is stated that the applicant had initially approached Hon'ble High Court in Writ A No. 6186 of 2022 which came to be dismissed on 20.09.2022 as not pressed with the liberty to approach this Tribunal.
3.3 In the written submission, the applicant has cited Daya Shankar Yadav vs Union of India & Ors (2010) 14 SCC 103 and Avtar Singh vs Union of India 2016 (8) SCC et al in support. 4.1 The respondents state that after the death of applicant's father, appointment on compassionate ground was given to the applicant as he was found fit. The applicant was sent for training. A railway employee has to fill an attestation form before coming into service in which there is a provision to provide appointment only if he is not found guilty of any criminal act/case, bail/fine etc. and only after getting the character verification in this regard. Due to the time taken in this process, the candidate is sent for training and after character verification, the appointment process is carried out. It is further stated that after filling up the form, if the candidate goes to jail or is found guilty/debarred etc., then it is the responsibility of the candidate to intimate the said developments and if the same is not intimated, it would come under the category of concealment.
4.2 In the applicant's case, after the receipt of character report dated 22.07.2022 issued by ADM, Ayodhya intimating registration of Case Crime No. 37/2022 under sections 3 and 4 of DP Act against him, the appointment was cancelled as the post of ASM is a sensitive post. 4.3 The respondents state that the appointment has been cancelled in terms of the Railway Board's letter dated 06.11.2018 and office Page 3 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors. memorandum (OM, hereafter) dated 29.06.2016 issued by the Department of Personnel & Training (DoPT, hereafter).
5. We have heard both the parties.
6. The subject matter of verification of character and antecedents of a person appointed to a post has been traversed extensively by Hon'ble Supreme Court in Avtar Singh (supra) in which Daya Shankar (supra) has also been discussed apart from a number of other cases. The concluding observations of the Apex Court in Avtar Singh (supra) were as follows:
"26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
27. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
29. The 'Mc Carthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
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 Page 4 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
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.Page 5 of 11
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(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
(emphasis supplied) 7.1 Having noted the conclusions arrived at by Hon'ble Supreme Court in Avtar Singh (supra), the first question to be answered is whether the respondents have acted as per Government orders or instructions or rules applicable in case of the applicant. We begin with the impugned order dated 11.08.2022 which reads as follows:
"Sub: For cancellation of provisional appointment given as Probationary Station Master to Sh. Rajendra Kumar. Sh. Rajendra Kumar was considered for appointment as Probationary Station Master on compassionate ground. At the time of appointment he had submitted character certificate which was sent to concern DM for verification. As per verification report which has received from DM's office Ayodhya, Sh. Rajendra Kumar had submitted wrong and false information in column no. 12 (kha) to 12 (cha). FIR has been registered against him under section 3/4 DP Act and the cases are pending in the Hon'ble Court as mentioned in DM's letter report that his character and antecedents are not up to the work.
Hence, as per instruction of Railway Board letter no. E (D&A) /2017 GS4-1 dated 06.11.18, the provisional appointment as Probationary Station Master to Sh. Rajendra Kumar has been cancelled by competent authority.
His provisional appointment as Probationary Station Master stands CANCELLED."
(emphasis supplied) It is evident from the above that the applicant's appointment was cancelled following receipt of the DM's report informing that a criminal case had been registered against the applicant under sections 3 & 4 of DP Act in terms of Railway Board's letter dated 06.11.2018. 7.2 A perusal of Railway Board's letter dated 06.11.2018 reveals that it circulates DoPT's OM dated 29.06.2016 to various units 'for compliance mutatis mutandis on the Indian Railways'. The DoPT's OM dated 29.06.2016, which has a significant bearing on the case at hand, is quoted below in extenso:
"Subject: Attestation form for verification of character and antecedents prior to appointment in Government service - regarding.
A large number of officials are appointed to civil services and posts under the Government of India through transparent selection process Page 6 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
conducted by various recruiting agencies like UPSC, SSC etc. As per the existing policy, the appointing authorities undertake an exercise of verification of the character and antecedents of the successful candidates before issuing the formal appointment order.
2. It is observed that the process of verification of character & antecedents often takes two to six months time, which results in undue delay in issue of appointment orders and consequential filling up of the post.
3. Government of India is committed to good governance which is citizen-centric. The overall vision of Government of India is minimum Government and maximum governance. To achieve this vision, it has been decided to have reform in the policy of prior character verification through partial modification of OM No. 18011/9(s)/78-Estt (B) dated 2nd July, 1982. The other guiding principles, criteria and procedures will remain unchanged. It has been decided that now the verification of character & antecedents will be carried out, but the issue of appointment letters need not be withheld pending such verification. The appointing authorities will issue provisional appointment letters after obtaining the attestation form and self-declaration from the candidate. The candidate along with the details of attestation form will also submit the self-declaration certifying that all facts and details given in the form are correct. Accordingly, the attestation form has been revised and enclosed as Annexure.
4. In the provisional appointment letter, it will be clearly mentioned that in case character & antecedents of the candidate is found not verified or any false information is given by the candidate in his/her self-declaration, the provisional appointment letter will be cancelled forthwith and other criminal/legal action will also be taken, as a consequence.
5. The exercise of verification of character & antecedents should be carried out in six months time. Once the verification report is received and there are no objections on the facts given by the candidate, the provisional appointment letter will be confirmed.
6. If the verification report is not received within six months then following course of action will be taken:
(a) The appointing authority will refer the matter to Director General of Police of the concerned State asking to provide the verification report in three months.
(b) If the report is still not received, then the Union Home Ministry will be requested to get the verification report obtained from the concerned authorities so that the decision of confirmation on the provisional appointment letter is taken.
7. Since the candidate will submit the self-declaration form, in case any of the information is found incorrect, or in case, the verification confirms that the facts given by the candidate were not correct, then the appointing authority shall cancel the appointment letter forthwith. The candidate shall be rendered unfit for any Government employment and appointing authority shall undertake other criminal/civil/legal action, as per provisions of Indian Penal Code (IPC) etc. as deemed fit.
8. In cases, where appointing authority is of the view that the candidate will be appointed to sensitive post or in which detailed prior verification is considered particularly necessary in the interest of security, the appointment will be made only after such verification. However, for such Page 7 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
cases, exemption shall be considered by DOP&T after a reference is submitted by administrative Ministries giving full justification."
(emphasis supplied) The above OM provides for issue of provisional letter of appointment pending verification of character and antecedents which is required to be cancelled forthwith if the character and antecedents are not verified or the information given by the candidate is found to be false. Another aspect which needs to be highlighted is that in cases of appointment covered by DoPT's OM dated 29.06.2016, there is no requirement of issuing a show cause notice as the appointment itself is provisional and is made to expedite filling up of the post in the interest of good governance pending verification of the character and antecedents of the candidate.
7.3 It is observed that the impugned order dated 11.08.2022 has been issued in terms of Railway Board's letter dated 06.11.2018 by which the provisions of DoPT's OM dated 29.06.2016 have been applied mutatis mutandis to the Indian Railways. Vide the impugned order dated 11.08.2022, the applicant's provisional appointment was cancelled on the basis of verification report received from the district administration of Ayodhya disclosing registration of FIR against the applicant under sections 3 and 4 of DP Act. It is not in dispute that FIR has been registered against the applicant under sections 3 and 4 of the DP Act. It is also not in dispute that through the FIR was registered on 30.01.2022, i.e., after submission of the attestation form by the applicant, the applicant did not inform the respondents of this development. Notwithstanding the non-receipt of information about the FIR from the applicant, the respondents came to know about the FIR through the report dated 22.07.2022 issued by ADM, Ayodhya. It is evident, therefore, that the character and antecedents of the applicant could not have been regarded as clear by the respondents after receipt of the report dated 22.07.2022 from ADM, Ayodhya. In view of this position, we find Page 8 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors. that the impugned order has been issued in conformity with the provisions at paragraph 4 of DoPT's OM dated 29.06.2016 allowing for cancellation of the provisional appointment forthwith in case the character and antecedents of the candidate are not found verified or any false information is given by the candidate.
8.1 The second question to be considered, which has been raised by the applicant, is whether the FIR against the applicant registered under sections 3 and 4 of the DP Act concerns a personal dispute having no bearing on the applicant's official responsibilities. 8.2 It is noted that the Indian Railways has the following provision in the Railway Services (Conduct) Rules, 1966:
"13-A. Dowry.-- No Railway servant shall ---
(i) give or take or abet the giving or taking of dowry; or
(ii) demand directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry.
Explanations:- For the purpose of this rule 'dowry' has the same meaning as in the Dowry Prohibition Act, 1961..."
(emphasis supplied) It is evident that the code of conduct for railway servants prohibits giving or taking or demanding dowry as defined in the DP Act. It follows that any complaint against a railway employee pertaining to giving, taking or demanding dowry under the DP Act cannot be regarded as only a personal dispute between two parties having no connection with the official obligations of that employee. An allegation of giving or taking or demanding dowry or abetting such activity, if established against an employee holding a post in railways in a substantive capacity through the due process, would be in contravention of the conduct rules and invite appropriate penalty under the Railway Servants (Discipline and Appeal) Rules, 1968. For a candidate appointed provisionally to a post in railways, a complaint of giving, taking or demanding dowry or abetting such activity would be a relevant consideration in verification of his or Page 9 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors. her character and antecedents to determine whether the provisional appointment of such candidate should be cancelled, in our opinion. 9.1 The third question is whether the offences under sections 3 and 4 of the DP Act are of a trivial nature and what is the role of the applicant in the alleged offences. Section 3 of the DP Act pertains to penalty for giving or taking dowry and section 4 to penalty for demanding dowry. The DP Act was enacted in 1961 and amended in 1984 and again in 1986. The Statement of Object and Reasons, while introducing the Bill in the Parliament, began thus: "The object of this bill is to prohibit the evil practice of giving and taking of dowry". When the DP Act was amended in 1984, the Statement of Object Reasons noted: "The evil of dowry system has been a matter of serious concern to everyone in view of its ever-increasing and disturbing proportions...". Again, at the time of further amendment in 1986, it was noted inter alia in the Statement of Object and Reasons:
"...Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women's voluntary organizations and other to the effect that the amendments made are still inadequate and the Act needs to be further amended..." In view of this position, it cannot be said that offences under sections 3 and 4 of the DP Act, which pertain to a socially evil practice, are of trivial nature.
9.2 Finally, we come to the role of the applicant in the alleged offences as described in the FIR in which the applicant is accused no. 1, his mother the accused no. 2, and his sister the accused no. 3. The complainant girl has stated that the ceremony of seeing the girl was held twice and the applicant's family was agreeable to the proposal for marriage. However, the marriage had to be postponed because of the demise of applicant's father. Subsequently, the ring ceremony was performed on 25.02.2021. The date of marriage was fixed as 25.04.2021 by the applicant, his mother and his sister. As the date of marriage Page 10 of 11 CAT, Lucknow Bench OA No. 332/00474 of 202 2 Rajendra Kumar Vs. U.O.I. & Ors.
approached and preparations were made by the complainant's family, the demand for dowry intensified and a motor car was demanded. A week before the marriage, the applicant's family postponed the marriage citing Covid pandemic and later they refused to have the marriage altogether even though motor car was demanded and jewellery etc was taken by them. We note from this FIR that it has the ingredients attracting sections 3 and 4 of the DP Act and the applicant, having been the groom to be, had a central role to play in the alleged offences.
10.1 In view of the facts and circumstances above, the applicant is not entitled to any relief. This OA is dismissed, accordingly.
10.2 Pending MAs, if any, are also disposed of.
10.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya Ben Digitally signed by
Vidya Ben Waghela
Waghela Date: 2025.01.02
16:17:43 +05'30'
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