Central Administrative Tribunal - Jabalpur
Pankaj Kumar vs M/O Defence on 9 July, 2019
1 OA No.200/00578/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00578/2015
Jabalpur, this Tuesday, the 9th day of July, 2019
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Pankaj Kumar S/o Kedar Prasad Patel aged about 34 years R/o Q
No.1869, Pancha matha Mandir Ke Bungalow, Ganga Maiya VFJ
Madhai Jabalpur M.P. PIN 482009 Occupation unemployed.
-Applicant
(By Advocate -Shri Vijay Tripathi)
Versus
1. Union of India, Through its Secretary, Department of Defence
Production South Block New Delhi PIN 110001
2. The Chairman & DGOF Ordnance Factory 10-A Shahid
Khudiram Bose Marg, Auckland Road, Kolkata W.B. PIN Code
700001
3. General Manager, Ordnance Factory Khamaria, Jabalpur M.P.
PIN 482005 - Respondents
(By Advocate -Shri S.P. Singh)
(Date of reserving the order:18.02.2019)
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed by the applicant challenging the order dated 08.06.2015 Page 1 of 14 2 OA No.200/00578/2015 (Annexure A-11), whereby the candidature of the applicant was cancelled on the ground that the applicant was involved in various criminal cases though he was acquitted by the Court.
2. The applicant in the present Original Application has sought for the following reliefs:-
"6.1 It is therefore humbly prayed that this Hon'ble Court may kindly be pleased to issued writ certiorari by quashing the order No.2613/E.A./L.B. (691) dtd. 08.06.2015 issued by respondent No.3 in the interest of justice.
6.2 It is therefore humbly prayed to this Hon'ble Court to issued writ of mandamus by directing them to appoint the applicant and grant seniority from date other employee of same selection process is granted.
6.3 Any other suitable relief, which this Hon'ble Court deems fit and proper, in favour of petitioner may also be given in the interest of justice."
3. Briefly the case of the applicant is that the respondent-No.3 has invited application for filling up 100 post of Labour (Semi Skilled). The applicant being an eligible candidate, submitted his candidature. The applicant has received admit card on 19.09.2014. The Page 2 of 14 3 OA No.200/00578/2015 applicant appeared in the examination and declared successful in the examination (Annexure A-5). The applicant called for interview and was asked to submit all original documents. The applicant appeared for interview on 08.10.2014 (Annexure A/7) before the committee. The applicant informed about his past criminal case and also produced the documents which content the information that the applicant is acquitted from all the cases. On police verification the respondent No.3 verified the information submitted by the applicant. The respondent issued show cause to the applicant, for explanation and reasons within 15 days about the criminal cases vide Annexure A/8. The applicant explained all the circumstances and also submitted his replies dated 20.04.2015 (Annexure A/9 & A/10) that no criminal case is pending against him. Without considering the reasons of the applicant, the respondent-department has canceled the candidature of the applicant for the post of Labour (Semi Skilled) vide order dated 08.06.2015 (Annexure A/11).
Page 3 of 14 4 OA No.200/00578/2015
4. The respondents have filed their reply. In the reply of the respondents submitted that the written examination was conducted on 21.09.2014 for the post of Labour (Semi-skilled). The applicant participated in the said selection process and he was provisionally selected in the written examination. The applicant has submitted is PVR form, wherein he has disclosed against the Point No.12 about registration of criminal case against the applicant. It is further submitted by the applicant in the said form that the applicant was arrested by the Police and the Police prosecuted the case against the applicant. PVR form was sent to District Magistrate Jabalpur for verification. District Magistrate Jabalpur forwarded PVR vide letter dated 15.01.2015 informing that four criminal cases were registered against the applicant. It is submitted that in all the cases the charge sheet was filed by the concerned police station but he was acquitted on the basis of compromise in Crime No.97/2006 vide order dated 13.02.2006. In other three cases he was tried by the Page 4 of 14 5 OA No.200/00578/2015 competent court of law. The applicant was acquitted in other three cases because the prosecution failed to produce the witnesses before the competent Court. Hence the applicant was not found suitable to engage in the establishment as the applicant having such a criminal back ground. The reports of District Magistrate Jabalpur Superintendent of Police Jabalpur and Special Branch of DIG of Police (Security) M.P. Bhopal are annexed as Annexure R/1, R/2 and R/3. The applicant cannot claim the appointment as a matter for right even on acquittal from all the criminal cases. Non issuance of appointment letter to the applicant by the respondents is totally based on the nature and work of the establishment and sensitiveness of the department and to avoid any incident in future.
5. We have heard the learned counsel for the parties and also perused the annexures annexed with the pleadings.
6. The applicant has also relied upon the judgment passed by the Hon'ble High Court of Madhya Pradesh, Page 5 of 14 6 OA No.200/00578/2015 Principal Seat at Jabalpur in Writ Petition No.6260/2009 (S) titled as Rakesh Kumar Patel vs. Union of India and others. The relevant portion Para 4 is as under:-
"4. In the case of Commissioner of Police (supra) the candidate had failed to disclose his true antecedents in the application form for appointment regarding his prosecution in a criminal case as a result of which his candidature was cancelled. The criminal case against the candidate was admittedly compromised and he was acquitted of the charges. Aggrieved, the candidate filed a petition before the Tribunal which was dismissed. He then filed a writ petition before the Delhi High Court. The Delhi High Court allowed the writ petition and quashed the order of cancellation of selection of the candidate. In an appeal filed by the Commissioner of Police, the Supreme Court upheld the order of the Delhi High Court and rejected the submission regarding justification of the cancellation of candidature that the candidate should have disclosed the fact of his involvement in the criminal case even if he had been acquitted. The Supreme Court observed that the candidate had been acquitted in the criminal case and he, being a youth, cannot be expected to behave as older people. It also observed that, at young age, people often commit indiscretions and such indiscretion should be condoned instead of branding young people as criminals for the rest of their lives. The Supreme Court even condoned the act of a candidate of not mentioning in the application form about his involvement in a criminal case under Section 325/34 at the Indian Penal Code by holding that he might have done so out of fear of getting disqualified automatically."Page 6 of 14 7 OA No.200/00578/2015
7. The Hon'ble Apex Court in the case titled as Avtar Singh vs. Union of India and others (2016) 8 SCC 471 has settled issues regarding information given by the parties before entering the Government service. The principles have been laid down in Para 38 of the judgment which is as under:-
"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 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 Page 7 of 14 8 OA No.200/00578/2015 such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
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.Page 8 of 14 9 OA No.200/00578/2015
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 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."Page 9 of 14 10 OA No.200/00578/2015
8. The relevant portion in the judgment of Avatar Singh (supra) reads as under:-
"The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and Page 10 of 14 11 OA No.200/00578/2015 decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service."
9. In the instant case, it is an admitted fact that the applicant being an eligible candidate submitted his candidature and appeared in the examination and declared successful. The applicant was call for interview and was asked to submit all original documents. It is also clear from the pleadings that there is no concealment in verification form regarding the criminal cases for which the applicant was acquitted by the competent court of law. As per Annexure A/11, the applicant has been acquitted from the charges leveled against him under Section 294, 427, 506-B, 34 IPC on the basis of compromise on 13.02.2006. Secondly, the applicant was also acquitted by the Court on 23.02.2005 under Section 324, 294, 506-B, 190, 307, 34 of IPC along with Section 25 of Arms Act. The applicant was acquitted from charges under Section 294, 427, 452, 506-B of IPC on 05.05.2006 by competent Page 11 of 14 12 OA No.200/00578/2015 court of law. The applicant was further acquitted under Section 376, 506-B of IPC on 06.09.2008 as the charges were not proved. The law is well settled that till the person is not convicted by the competent court of law, the accused is presumed to be innocent and burden of proof lies only on prosecution. From the Annexure A/11 itself it is clear that the applicant has been acquitted from the competent court of law under the various offences alleged against the applicant. In crime No.97/06 the applicant has been acquitted on the basis of compromise. Needless to say that if a person is acquitted on the basis of compromise it amounts to acquittal in all intends and purposes in view of specific provision under Section 320(8) Code of Criminal Procedure. The offences for which the applicant was charged is for the year 2004, 2006, 2007, admittedly at the time of incidence the applicant was young man moreover, the applicant was acquitted from all the charges by the competent court of law. So, as per judgment of the Hon'ble Apex Court in the matter of Rakesh Kumar Patel Page 12 of 14 13 OA No.200/00578/2015 (supra), it is observed by the Hon'ble Apex Court that at young age, people often commit indiscretions and such indiscretion should be condoned instead of branding young people as criminals for the rest of their lives. Moreover, as per law settled by the Hon'ble Apex Court in the matter of Avtar Singh (supra), even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. In the instant case, the applicant has been acquitted from the alleged charges against him by the competent court of law. From the impugned order Annexure A/11, we find only reason that the applicant was acquitted on the basis of compromise in Crime No.97/06 and in other three cases the applicant was acquitted by the competent court of law. However, the main reason is that no such finding in any case that his involvement and prosecution in said crimes are false and malicious. Such type of reasons given by the authority is total vague and the respondents Page 13 of 14 14 OA No.200/00578/2015 are failed to comply with the law settled by the Hon'ble Apex Court in the matter of Avtar Singh (supra). The respondents have failed to assess the suitability of the applicant for Labour (Semi Skilled) on the basis of all the charges so alleged against the applicant specially when the applicant has been acquitted by the competent court of law.
10. Resultantly, the Original Application is allowed. Impugned order dated 08.06.2015 (Annexure A-11) is quashed and set aside. In view of our findings, the respondents are directed to reconsider the case of the applicant in respect of the employment for the post of Labour (Semi Skilled), if otherwise found suitable, within a period of 90 days from the date of receipt of certified copy of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
kc
Page 14 of 14