Central Administrative Tribunal - Allahabad
Nitin Shukla vs Cgst on 25 October, 2024
O.A./79/2023
(Reserved on 23.10.2024)
Central Administrative Tribunal, Allahabad
Original Application No.79 of 2023
th
Pronounced on this the 25 Day of October, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Nitin Shukla a/a 28 years S/o Late Yogendra Nath Shukla R/o 83, Moti
Nagar, Unnao
...........Applicant
By Advocate: Shri Ankush Tandon
Versus
1. Union of India, through Ministry of Personnel, Public Grievances
and Pensions (Department of Personnel & Training) New Delhi.
2. Joint Commissioner (P&V) CGST & CEX Commissionerate,
117/7, Sarvodaya Nagar, Kanpur-208005.
...Respondents
By Advocate: Shri Vinod Kumar Pandey
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"i) Quash the impugned order dated 21.12.2022 passed by respondent no.2 (Joint Commissioner (P&V) CGST & CEX Commissionerate) whereby the services of the applicant stood terminated w.e.f. the date of expiry of a period of one month, from the date on which the notice is served on the applicant and the order dated 20.01.2023 issued by respondent no.2 (Joint Commissioner (P&V) CGST & CEX Commissionerate) whereby the services of the applicant were terminated w.e.f. 22.01.2023."
Digitally MADHU signed by KUMARI MADHU KUMARI Page 1 of 10 O.A./79/2023
2. The brief facts of this case are the applicant joined the department on 23.04.2021 on compassionate ground as Tax Assistant in the office of CGST & Central Excise Commissionerate, Kanpur in pursuance of the offer of provisional appointment letter issued by the Joint Commissioner (Cadre Control) in the office of Chief Commissioner, CGST and Central Excise, Zone Lucknow. During the verification proceedings, the applicant was served with a declaration/attestation form requiring him to furnish requisite details which was submitted by the applicant on 29.07.2021. In the aforesaid declaration/attestation form, the applicant at Sl.No.2 which pertains to arrest/prosecution/detain/bound down/fine by the court of law/conviction by court of law/barred from examination by any university, has furnished his reply as "NO" in respect of all the points mentioned therein. On 27.08.2021, a report was submitted to the department by the Sub-Inspector, Thana Kotwali Sadar, Unnao that in Crime No.871/16 a case was registered against the applicant u/s 13 of the Public Gambling Act 1867 wherein a chargesheet dated 29.10.2016 was filed by the police before the Hon'ble C.J.M. Court Unnao which vide its order dated 09.12.2017 fined the applicant. On 24.08.2022, the applicant was served with a notice to submit his explanation. THe applicant submitted his reply to the above notice in October, 2022. The applicant was served with the notice of termination of service dated 21.12.2022 in form 1 issued under Rule 5(1) of the Central Civil Services (Temporary Service) Rule 1965. The applicant submitted his reply to the above notice of termination on 03.01.2023. On 20.01.2023, respondent no.2 served the order terminating the services of the applicant w.e.f. 22.01.2023.
3. We have heard learned counsel appearing for the parties.
4. Submission of the learned counsel for the applicant is that the orders dated 21.12.2022 and 20.01.2023 passed by respondent no.2 are illegal, arbitrary and in violation of principles of natural justice. Before passing the said orders, the applicant was not given Digitally any opportunity of personal hearing. He states that respondent MADHU signed by KUMARI MADHU KUMARI Page 2 of 10 O.A./79/2023 no.2 while passing the orders under challenge did not even care to mention about the notice dated 04.08.2022 and its reply by the applicant in the month of October 2022. It is further mentioned that the applicant was fined Rs.100 in a case u/s 13 of the Public Gambling Act 1867 which is trivial in nature and would not render the applicant unfit for the post in question. The authority while passing the orders in there discretion could have ignored such suppression of fact or false information by condoning the lapse. He argues that the applicant was appointed on compassionate ground by respondent no.2 on the death of his father who dies in harness and the applicant's termination from service would put to suffering his entire family as well as adversely affecting his career.
5. Submission of learned counsel for the respondents is that the notice dated 21.12.2022 and order dated 20.01.2023 were issued to the applicant under the provisions of sub-rule (1) Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 read with Department of Personnel & Training OM No. 18011/2(s)2016-Estt. dated 29.06.2016 for giving false information in column 12 of the Declaration/Attestation form submitted after joining. Thus, the aforesaid orders are legal. The applicant was given reasonable opportunity in the case vide this office letter dated 24.08.2022. He argues that in reply to the said notice, the applicant has admitted the criminal case against him stating that the CJM court, Unnao had finalised the case vide order dated 28.12.2017 but he reiterated that he had not suppressed any facts from the department and if in future any legal proceedings occurs against him, he will be solely responsible and he will not take any action against the department. However, no explanation was given by him for giving false information in the declaration/attestation form. He states that Shri Nitin Shukla was convicted & punished by the Hon'ble CJM Court, Unnao in a Criminal case against him under Section 13 of The Public Gambling Act, 1867. Shri Nitin Shukla had clearly given false information and wrong declaration to the department in Column Digitally MADHU signed by 12 of the Declaration/Attestation form with malafide intention and KUMARI MADHU KUMARI Page 3 of 10 O.A./79/2023 thus, has violated the provisions of DOPT'S OM NO.18011/2(s)2016-Estt. dated 29.06.2016 supra which are reproduced as under:-
"Para-7:Since the candidate will submit the self declaration, in case any of the information is found incorrect, or in case, the verification confirms that 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".
The said provisions are clearly applicable irrespective of the nature of the offence committed by the candidate as contested in the para. Shri Nitin Shukla was terminated on the ground of giving false information to the department in the declaration form on his joining and not on the grounds of criminal case against him. Both are different issues. The said provisions of DOPT's OM dated 29.06.2016 supra do not categorize the gravity of the offence committed by the candidate instead it speaks about the cancellation of appointment if any information given in the declaration is found incorrect. Hence, the provisions of aforesaid OM dated 29.06.2016 are clearly applicable in the matter irrespective of the nature of the case/offence committed by the candidate as there is no exclusion clause in this regard in the provisions.
6. In his rejoinder, learned counsel for the applicant states that the applicant was merely fined an amount of Rs.100 for a trivial matter which does not come under the category of crime in legal terms. He has further submitted that the applicants' services have been terminated under CCS (Temporary Service) Rules, 1965 which is illegal since the applicant cannot be deemed to be a temporary employee as he was a permanent employee on probation under the respondents. In support of his arguments learned counsel for the applicant has relied on the judgement of the Hon'ble Apex Court in the case of Pawan Kumar vs. Union of Digitally India and Ors. Civil Appeal No. 3571 of 2022 (arising out of MADHU signed by KUMARI MADHU KUMARI Page 4 of 10 O.A./79/2023 Special Leave Petition (Civil) No. 6009 of 2016) decided on 02.05.2022 and the judgement of the Hon'ble High Court of Allahabad in Writ- A No.-16875 of 2004 (Vikas Mishra Vs. State of U.P. and Others) dated 31.10.2018.
7. We have considered the rival submissions of learned counsel appearing for the parties, and gone through the entire documents on record.
8. The relied upon paragraph of the judgement of the Hon'ble Apex Court in the case of Pawan Kumar vs. Union of India and Ors. Civil Appeal No. 3571 of 2022 (arising out of Special Leave Petition (Civil) No. 6009 of 2016) decided on 02.05.2022 is as under:
11. This cannot be disputed that the candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equally true that the person who has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand. It goes without saying that the yardstick/standard which has to be applied with regard to adjudging suitability of the incumbent always depends upon the nature of post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects but no hard and fast rule of thumb can be laid down in this regard.
12. Earlier, there has been a conflict of opinion in the various decisions of Division Benches of this Court and at the stage when the Division Bench of the High Court dismissed the writ petition under the impugned order dated 17th November, 2015, 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 and others.1 . 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 Digitally suitability and it is open to employer to adjudge antecedents MADHU signed by of the incumbent, but ultimate action should be based KUMARI MADHU KUMARI Page 5 of 10 O.A./79/2023 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 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. 38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise 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 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 recourses appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction Digitally had been recorded, such as shouting slogans at young MADHU signed by KUMARI MADHU KUMARI Page 6 of 10 O.A./79/2023 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.
38.5. 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.
38.6. 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. 38.7. 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.
38.8. 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. 38.9. 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.
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 considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or Digitally MADHU signed by KUMARI MADHU KUMARI Page 7 of 10 O.A./79/2023 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."
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.
9. In the judgement of the Hon'ble High Court of Allahabad in Writ-
A No.-16875 of 2004 (Vikas Mishra Vs. State of U.P. and Others) dated 31.10.2018, the question of whether a person appointed on compassionate grounds is a temporary or permanent employee is discussed which is as follows:
"13. Above questions were answered by Full Bench, as under:
"26. We, accordingly, answer the questions which have been referred to the Full Bench in the following terms:
(1) Re Question (1): Where a person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful.
(2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance.
(3) Re Question (3): The appointment of a person on a compassionate basis on probation is permissible in Digitally law."
MADHU signed by KUMARI MADHU KUMARI Page 8 of 10 O.A./79/2023
14. Reply to Question (2) clearly shows that Full Bench held that appointment on compassionate basis is a regular appointment and is not to be treated as "temporary appointment". In para 18 of judgment Full Bench clearly observed that there is a distinction between appointment on probation and temporary appointment. The relevant observations read as under:
"An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment."
10. As has been held by the Hon'ble Apex Court in the case of Pawan Kumar vs. Union of India and Ors (supra), 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 and the nature of post and duty, effect of suppression over suitability also should considered. Since, the applicant has been merely charged a fine of Rs. 100/- in a case registered against him u/s 13 of the Public Gambling Act 1867, during 2016 and the applicant has contended in his reply to the notice dated 24.08.2022 that it does not amount to any criminal offence as a reason for not disclosing the fact in the attestation form, the same should not be made a ground for dismissal of the applicant until there is a detrimental effect of such a suppression on the proper discharge of duties of the employee or on his Digitally suitability. There is also no negative antecedent against the MADHU signed by KUMARI MADHU KUMARI Page 9 of 10 O.A./79/2023 applicant except the aforesaid omission during his probation. The termination of service of the applicant on this ground would only have an arbitrary effect on the career prospects and financial status of the applicant who was appointed on compassionate grounds. It ill behoves the respondents to not show a sympathetic and rational attitude balancing the gravity of the omission/suppression of the applicant with the penalty for the same in accordance with the principles of natural justice. Besides, in this case also the applicant was appointed on compassionate grounds and was on probation. Thus, in terms of the discussion quoted above in the judgement of the Hon'ble High Court of Allahabad in Writ- A No.-16875 of 2004, the service of the applicant could not have been terminated invoking the Central Civil Services (Temporary Service) Rules, 1965 as the applicant was also a permanent employee on probation.
11. In light of the above facts, discussions, and case laws, we are of the considered view that the balance of convenience lies in favour of the applicant's claims. Thus, the O.A. is allowed. The impugned orders dated 21.12.2022 and 20.01.2023 are hereby quashed and the respondents are directed to reinstate the applicant on service with all the consequential benefits as would be admissible to the applicant had the orders dated 21.12.2022 and 20.01.2023 never been passed.
12. All associated M.A.s also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
Digitally
MADHU signed by
KUMARI MADHU
KUMARI
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