Central Administrative Tribunal - Mumbai
Sunita Arjun Dhadve vs Bhabha Atomic Research Centre on 1 October, 2024
1 OA No.690/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.690/2021
Date this Tuesday the 01st day of October, 2024.
CORAM: Shri Santosh Mehra, Member (A)
Smt. Sunita Arjun Dhadve.
Age 45 years, Residing at :
w/o Arjun Dhadve
BARC colony, D4 Namdeo Chowk,
Ansuhakti Nagar, Mumbai -400 094
Contact No.992035763
Email :[email protected] ... Applicant
(By Advocate Shri V.A. Nagrani)
VERSUS
1. Union of India, Through - Secretary
Department of Atomic Energy,
Government of India, Anushakti Bhavan,
C.S.M. Marg, Apollo Bunder,
Near Gateway of India, Mumbai-400 001
Email : [email protected]
2. The controller,
Bhabha Atomic Research Center
Trombay Mumbai, Mumbai-400 085
3. The Director
Bhabha Atomic Research Center
Trombay Mumbai,Mumbai - 400 085
2 OA No.690/2021
4. Deputy Establishment Officer
Personnel Division,
Recruitment Section II,
Trombay, Mumbai-400 085. ... Respondents
(By Advocate Smt. N V Masurkar )
(By Advocate Mr. D.A.Dube )
ORDER
Per: Santosh Mehra, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"8.a. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the order dated 17.09.2019 28.11.2019, 04.11.2020 and 14.12.2020 with all consequential benefits.
8.b. This Hon'ble Tribunal may be pleased to direct the Respondents to extend the benefit as per the guidelines issued by the Hon'ble Apex Court in the case of Union India Vs Avtar Singh referred above.
8.c. This Hon'ble Tribunal may further be pleased to direct the Respondents to consider the candidature of the Applicant for the post of Work Assistant / A on compassionate ground with all consequential benefits.
8.d. Costs of the application be provided for".3 OA No.690/2021
2. The grievance of the applicant is that, by the impugned orders, the respondents have illegally and arbitrarily cancelled the candidature of the applicant for grant of Compassionate Appointment on the ground that the applicant suppressed the fact of pending criminal case in her attestation form.
3. Facts in brief can be stated thus:
3.1 The applicant states that her husband Late Arjun Dhadve was working as Tech/C in the office of respondents.
The husband of the applicant was the sole breadwinner for the family consisting of mother, father, wife i.e. the present applicant and one son.
3.2 The applicant further states that while working with the respondents, Shri. Arjun Dhadve died in harness on 23.10.2017. He left behind the applicant and three others as his dependents. Because of sudden death of late Arjun Dhadve, the applicant was left in destitute condition without any source of income.
3.3 The Applicant further states that she immediately 4 OA No.690/2021 made an application whereby requesting the Respondent to consider the case of the Applicant for grant of compassionate appointment. On the basis of the said application, the Respondents considered the case and found her eligible to be considered for appointment on compassionate ground to the post of Work Assistant. The Respondents vide letter dated 15.02.2019 directed the Applicant to report for Document Verification as her case was proposed for consideration for grant of compassionate appointment.
3.4 The Applicant was asked to submit the Attestation Form. Accordingly, the Applicant submitted the Attestation form. In Column 13 of the Attestation Form, with regard to the question of any pending case against the Applicant in any Court of Law, the Applicant mentioned in Negative and submitted the same. The Applicant further states that before issuing Appointment Order, the Respondents had verified the character and antecedent of the Applicant. On verification, it was found that a criminal case was registered against the Applicant in Trombay Police Station, Mumbai vide C.R. No. 5 OA No.690/2021 271/2014 under Section 143, 147, 149, 323, 504 & 427 of IPC. On the said Police report, the Applicant was issued Show-Cause Notice dated 08.08.2019; as to why the candidature of the Applicant should not be cancelled. On this, the Applicant submitted her reply informing that she had already been acquitted from all the charges vide Judgment and Order dated 11.07.2019. However, the Respondents vide order dated 17.09.2019 decided to cancel the candidature of the Applicant for the post of Work Assistant / A in the Research Centre on the grounds that at the time of filling of the form, the Applicant was aware of the case that was registered against her by the Police but she failed to mention the same in the Attestation Form (Sr. No. 12 (b) & (i) and SSQ Form Sr. No. 15 (b-d) & Sr. No. 16 which amounts to suppression of information.
3.5 The Applicant further states that being aggrieved by the said order, the Applicant submitted representation dated 26.09.2019. On the said representation, the Respondents passed an order 28.11.2019 reiterating the cancellation of the 6 OA No.690/2021 candidature of the Applicant. The Applicant further states that she also submitted her grievance through email dated 30.04.2020. On the said email, the applicant received a reply dated 04.11.2020, reiterating the same fact that her candidature for the post of Work Assistant/A stands cancelled.
3.6 The Applicants submit that entitlement of compassionate appointment to the family of deceased employee is not disputed by the Respondents and they do not dispute the penurious condition of the family and also the fact that the family of the deceased employee is in need of compassionate appointment. Therefore, The Applicant is not required to establish before this Hon'ble Tribunal that the financial condition of the family is such that the family deserves to be granted the compassionate appointment. The applicant further states that rejecting the candidature on a minor technical ground would seriously cause grave injustice to the Applicant. The Applicants further submit that the object behind grant of compassionate appointment is that the 7 OA No.690/2021 dependent of the deceased is able to survive, and the loss caused by the sudden death of the employee is compensated. This objective would more appropriately be fulfilled by grant of appointment to the Applicant rather than rejecting the candidature on a minor technical ground.
3.7 The sequence of events is as follows:
A criminal case vide No.271/20214 was registered in Trombay Policy Station against the Applicant and a few others under Section 143, 147, 149, 323, 504 and 427 of IPC on 07th December, 2014.
As per the assertion of Learned Counsel for the applicant, she was not aware of the criminal case registered against her. However, she was brought to the Police Station and left after a few hours. Subsequently, the Police had completed the investigation and filed Charge-sheet in this criminal case on 12th June, 2015 vide CC No.6001027/PW/2015. The Learned Counsel for the applicant contends that case came up for hearings as many as eight occasions between 2016 and 2019 but no formal 8 OA No.690/2021 communication was served upon on her for attending the Court. Learned Counsel for the applicant, in support of this contention, cited the reply of Trombay Police dated 16th March 2020 to their RTI application which states that Kurla CMM Court (the Jurisdiction Court) in the above-mentioned case No.1027 had not sent any service of notice/summons/warrants (Annexure 9). The contention of the learned counsel is that when applicant had filled-up the Special Security Questionnaire on 07th May, 2019 and the Attestation Form on 18th May, 2019, she was not at all aware of the criminal case pending against her. He further contends that in view of her absence of knowledge of the above, she had not mentioned the facts of the Criminal case in the above-
mentioned forms. The applicant came to know only on 11th July, 2019 (i.e two months after filling-up the above forms) of the criminal case pending against her for which she immediately approached the Metropolitan Magistrate court and she was acquitted vide Trial No. 6001027/P.W./2015 dated 11th July, 2019 (Annexure A-8).9 OA No.690/2021
4. Learned counsel for the applicant has further relied upon the judgment of the Hon'ble Supreme Court in the case of Pawan Kumar Versus Union of India and Another, 2022 SCC online SC 532 decided on 02nd May, 2022. The relevant portion of the said order is reproduced for ready reference:
".....12. There were divergent views of this Court and that came to be later settled by a three Judge Bench of this Court in Avtar Singh v. Union of India. While summarizing the conclusion, this Court has laid down broad guidelines which has to be taken note of by the appointing/competent authority in dealing with the matters where there is a suppression of material information or disclosure of false information and after reconciling the earlier judgments succinctly summarized the conclusions as under;
"34. 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.
35. 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 10 OA No.690/2021 exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
36. 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 authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
37. The "McCarthyism" 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.
13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily, discharge/terminate the employee from service"11 OA No.690/2021
5. The learned counsel for the applicant has further relied upon the judgment of Hon'ble Apex Court in the case of State of West Bengal and Others Versus Mitul Kumar Jana, 2023 SCC Online SC 1070 decided on 22 August, 2023. The relevant portion of the said order cited by the learned counsel reads as under:
"......12. In view of the discussion made herein above, the opinion given by the Deputy Inspector General of Police, Intelligence Branch, and the stand taken by the Department before the Tribunal and the High Court regarding suppression of material information by the respondent cannot be countenanced. The Tribunal and the High Court have rightly recorded the finding that it is not a case of suppression of material information and we affirm such finding. Simultaneously, the criminal case registered against the respondent were for petty offences. The allegations in the said case were neither of heinous/serious offences, nor related to an offence involving moral turpitude. In the said case, the respondent was honourably acquitted because the prosecution had miserably failed to prove the charges. Hence, in our view, prima-facie there appears no impediment to issue the order of appointment in favour of the respondent.12 OA No.690/2021
13. It is relevant to state here that on the issues relating to suppression of information and/or submitting false information and as to the question of having been arrested or regarding pendency of a criminal case and effect of conviction/acquittal in such criminal cases, there were conflicting opinions of Division Bench judgments of this Court. On making a reference, the said controversy has been decided in the case of "Avtar Singh v. Union of India, (2016) 8 SCC 471". The Court after considering various judgments has taken a holistic approach and summarised certain yardsticks in Paragraph 38, which are reproduced as thus:
"38. 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:
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 13 OA No.690/2021 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 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.
38.10 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 14 OA No.690/2021 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.
38.11 Before a person is held guilty of "suppressio veri" or suggestio falsi", knowledge of the fact must be attributable to him."
xxx xxx xxx
15. In view of the discussion made herein above, we confirm the findings of the Tribunal and the High Court on the issue of suppression of material information. As the respondent was not involved in heinous/serious offence or any offence involving moral turpitude, and the fact that in the said criminal case he has been honourably acquitted, therefore, modifying the order of the High Court, we direct the appellant to consider the case of the respondent and issue order of appointment to the post of constable in West Bengal Police Force within a period of four weeks from the date of passing of this order".
6. Learned counsel for the respondents, in her reply has strongly challenged the averments of the applicant in the 15 OA No.690/2021 OA. They contend that the relief sought for by the applicant in the above-mentioned O.A. in a nutshell, relates to cancellation of grant of compassionate appointment to the Applicant on account of suppression of information relating to a criminal case which was filed against her vide Criminal Case No. 271/2014 for offences punishable under Sections 143, 147, 149, 323, 504 and 509 of the IPC. The case has since ended up in acquittal as can be seen from the copy of the Judgment annexed as Annexure A-8, Page 21 of the OA. The issue relates to the Attestation and SSQ form filled up by the Petitioner whilst seeking compassionate appointment wherein the Petitioner had failed to divulge the required information as to whether there was any criminal case pending against her or whether she had ever been prosecuted or a complaint filed against her, whereas the fact of the matter is that there was a case pending when she filled up the Attestation and SSQ forms on 27/05/2019 and that the court had acquitted her only on 11.07.2019. The Applicant, has not just supressed the above information but has clearly furnished false information 16 OA No.690/2021 and or suppressed factual information which led to a disqualification. It is on this ground that the Competent Authority has cancelled the candidature of the applicant especially in the light of the fact that she was to be employed in a sensitive organization like Bhabha Atomic Research Centre (BARC).
6.1 Learned counsel for the respondent has very emphatically and repeatedly drawn our attention to the fact that the applicant has concealed all information pertaining to the registration of a criminal case against her, that she was arrested and that she was charged. She has drawn our attention to annexure R3 on page number 104 which is a letter from the office of SPECIAL branch DCP, Mumbai, which mentions that there was a criminal case registered against the applicant at Bombay police station vide Crime Number 271/2014 under Section 143, 147, 149, 323, 504, 427 IPC and the same was not disclosed to the respondent. She has further drawn our attention to the Form under caption WARNING in the Application form which clearly states as follows:. 17 OA No.690/2021 6.2 In the beginning of said Attestation Form under caption WARNING it is clearly mentioned that:
Point No.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 Point No.2: If detained, arrested, prosecuted, bound down, fined convicted, debarred acquitted etc subsequent to the completion and submission of this form, the details should be communicated immediately to the authorities to whom the attestation form has been sent earlier, failing which it will be deemed to be a suppression of factual information.
Point No. 3: If, the fact that false information has been furnished or that there has been suppression of any factual information in the Attestation Form comes to notice at any time during the service of a person, his service would be liable to be terminated." and Para 2 of SSQ and Note to Sr. No. 12 of the Attestation form again highlighted to see "Warning" at the top of attestation form and SSQ to emphasize the seriousness 18 OA No.690/2021 on the effect of suppression of any factual information and giving false factual information.
The learned counsel asserted that that despite the clear WARNINGS, given in the application form, the applicant has knowingly and intentionally suppressed furnishing correct information and therefore she is not at all eligible for appointment in a sensitive organisation like BARC.
6.3 Learned counsel for the respondents has relied upon the judgment of the Hon'ble Supreme Court in the case of Satish Chandra Yadav Vs. Union of India and Others, (2023)7 Supreme Court Cases 536 wherein it has been held that "Discretionary decisions of administrative authorities can be reviewed only on limited grounds such as bad faith of decision-makers, exercise of discretion for improper purpose, application of irrelevant considerations and "unreasonableness" Further held, discretionary decisions like other administrative decisions must be made within limits of jurisdiction conferred by statutory rules though due deference would be given to decisions of decision- maker while 19 OA No.690/2021 reviewing exercise of that discretion and determining scope of jurisdiction.
Dismissing the appeals, the Supreme Court Held that:
(3) The suppression of material information and making a false statement in the verification form relating to arrest, prosecution, conviction, etc. has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.
(4) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided.
(5) The Court should inquire: whether the authority concerned whose action is being challenged acted mala fide, or there was any element of bias in decision of authority, and whether the enquiry procedure adopted was fair and reasonable.
6.4 The Learned Counsel for respondents also asserted that even in the case of Avtar Singh vs Union Of India & Ors on 21 July, 2016 (2016) 8 SCC 47, it has been held that for determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically 20 OA No.690/2021 mentioned has to be disclosed and such specific information asked for in sr. no. 12(b and i) of Attestation form and Sr.15(i)
(a) to (d) of SSQ form is not disclosed by the applicant in the present case.
Final Order :
7. I have heard the Learned Counsel for the applicant and Learned Counsel for the respondents.
8. I have given my thoughtful consideration to the submission of both the parties.
9. There is no denying the fact that the applicant had failed to disclose information regarding the criminal case registered against her, that she was arrested and that she was finally acquitted in the criminal case. However, there are certain aspects which need careful consideration in this matter;
I. Knowledge: The learned counsel for the applicant has pointed out that the applicant was brought to the police station on the morning of 7 December 2014. However, she was asked to go back the same day and subsequently she did not 21 OA No.690/2021 receive any intimation from the police, regarding the registration of a case against her and her arrest.
10. A brief recap of the chronological sequence of events will be helpful here. The criminal case vide Crime number 271/ 2014 u/ s 143, 147, 149, 323, 504& 427 IPC was registered against the applicant on 07th December, 2014. No document or entries are submitted here on record regarding the arrest , like the Arrest Panchanama, Arrest Card, extract of Station House Diary, Prisoner Search Register, Sentry Relief Book etc. Since she was admittedly not sent to judicial custody, there is no Remand Report on record. The CCD ( Annexure R- 5) dated 10 th June 2019 is the nest document furnished to the Tribunal. The CCD submitted by the learned counsel for the respondents shows that all the accused were absent on that day and the next date of hearing was given as 11 July 2019. It is seen that the applicant had already filled up the SSQ and the Attestation Forms etc on 07th May 2019 and 18th May, 2019 respectively. The case came up for hearing on 11th July, 2019 when she was acquitted. Other than the copy 22 OA No.690/2021 of the FIR , the CCD dated 10th June, 2019 and the judgment dated 11th July 2019, there is no document on record, pertaining to the criminal case. Hence, it is highly plausible that the applicant was not at all aware of the case registered against her. She was summoned to the police station on the date of the registration of case and left after a few hours, the same day. Since, she was not even remanded to the judicial custody, the benefit of doubt can be given to her that she was not aware of her formal arrest in this case. Given the chronological sequence of events as indicated above, there is every possibility that the applicant was indeed not aware that there was a criminal case pending against her, at the time of filling-up the above-mentioned forms.
11. In this regard, the Hon'ble Supreme Court had very clearly stated as indicated (supra)... Before a person is held guilty of "suppressio veri" or suggestio falsi", knowledge of the fact must be attributable to him." .
II Nature of Post: The Supreme Court judgments in above-mentioned cases (supra), clearly indicate that the employer has discretion to terminate or otherwise condone 23 OA No.690/2021 the omission, for which he should prudently give due consideration to nature of post and duties to be rendered. For higher officials/higher posts, standard will be very high and even slightest suppression by itself may render a person unfit for the post. However, same standard cannot be applied to each and every post. In the present case, the applicant is being appointed on compassionate grounds for a very low level post of Work Assistant/A. It is nowhere mentioned that this post is sensitive or involve any decision making. Further more, the above-mentioned judgments have made it very clear that the employer has to see as to whether the information suppressed is a material fact and would have rendered an incumbent unfit for appointment.
III Material Information: In this case, the applicant has been acquitted in the Criminal Case, which in the very first place was of the trivial nature. It did not involve any moral turpitude. Hence this suppression if at all was of no consequence or bearing on the suitability of the applicant for the post. The operative portions of several judgments which 24 OA No.690/2021 have been cited above by the learned counsel for the applicant clearly indicate that the probability is heavily in favour of the of the applicant. They are reiterated as follows:
A) In the case of Pawan Kumar Versus Union of India (supra) the Hon'ble Apex Court has held that Suppression of "material" information presupposes that what is suppressed that "matters"; not every technical or trivial matter.
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.
What yardstick is to be applied has to depend upon the nature of post. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/ services.
Mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. What being noticed by this Court is that 25 OA No.690/2021 mere suppression of material/false information in a given case does not mean that the employer can arbitrarily, discharge/terminate the employee from service"
B) The Hon'ble Apex Court in the case of State of West Bengal and Others Versus Mitul Kumar Jana (supra), the Hon'ble Apex Court has held that 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.
As the respondent was not involved in heinous/serious offence or any offence involving moral
turpitude, and the fact that in the said criminal case he has been honourably acquitted, therefore, modifying the order of the High Court, we direct the appellant to consider the case of the respondent and issue order of appointment to the post of constable in West Bengal Police Force within a period of four weeks from the date of passing of this order".
12. From the above series of judgments cited above, it is very clear that the rejection of the compassionate appointment of the applicant on a minor technical ground is 26 OA No.690/2021 not correct.
13. In view of the above facts and circumstances, the Original Application is allowed and the impugned orders dated 17.09.2019, 28.11.2019, 04.11.2020 and 14.12.2020 are hereby quashed and set aside. The respondents are directed to consider the candidature of the applicant for the post of Work Assistant/A on compassionate ground with all consequential benefits. Pending MAs, if any, stand closed. No order as to costs.
(Santosh Mehra) Member (A) dm/gc.