Central Administrative Tribunal - Allahabad
Ketan Sharma vs General Manager N C Rly on 13 July, 2023
RESERVED ON 06.07.2023.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 13th of JULY 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 330/00905/2021
Ketan Sharma aged about 25 years, son of Sri Jitendra Sharma R/o 222,
Masiha Ganj, Sipri Bazar, Jhansi.
. . . Applicant
By Adv: Shri S.M Ali
VERSUS
1. Union of India through General Manager, Head Quarter North Central
Railway, Allahabad.
2. Chief Personnel Officer, Head Quarter North Central Railway,
Allahabad.
3. Divisional Railway Manager (P), North Central Railway, Jhansi.
4. Assistant Divisional Personnel Officer, North Central Railway, Jhansi.
5. Assistant Divisional Engineer, North Central Railway, Lalitpur.
. . .Respondents
By Adv: Shri S.C. Mishra
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present Original Application has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 seeking following reliefs:-
"(i) To quash the impugned order dated 24.09.2021 (Annexure A-1) with direction to appoint the applicant subject to decision of criminal case.
(ii) To appoint the applicant on the post of Track Maintainer-IV and allow for duty with all consequential benefits like pay, allowances, seniority as admissible to other penal candidates.
(iii) To pass any other suitable order or direction as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case.2
(iv) To issue any other suitable order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the present case.
(iv) award cost and compensation in favour of applicant.
2. The brief facts of the case are that in pursuance of notification No. 2 of 2018 for filling up post of Track Maintainer - IV PB Rs. 5200-20200 + GP 1800, applicant submitted his application and appeared in the written examination and was declared successful in the written examination and further passed physical examination test. Thereafter respondent No. 3 issued offer of appointment to the applicant by letter dated 23.10.2020 subject to document verification. Applicant was found fit in document verification and sent for joining under A.D.E.N Lalitpur. At the time of filling up of the application form, applicant has given detail of criminal case, thus, Assistant Personnel Officer, Jhansi required clarification by letter dated 7.12.2020 from the applicant in regard to the pendency of criminal case No. 57/2018 (under section 147, 341, 323, 504, 506, 427 IPC). Applicant submitted his clarification on 12.01.2021. He has also submitted that chargesheet filed against the aforesaid criminal case has been stayed by Hon'ble High Court, Allahabad. Assistant Personnel Officer, Jhansi issued letter dated 29.01.2021 regarding submission of further attestation form from the applicant in regard to his criminal case on notary affidavit. The applicant filed notary affidavit mentioning therein the details of criminal case as already submitted to the respondents at the time of submission of form. Senior Superintendent of Police submitted his report dated 26.04.2021 to the District Magistrate wherein it has been mentioned that pky pyu Bhd gS but one case crime No. 57/2018 is pending, hence character verification cannot be issued. The Divisional Personnel Officer Jhansi has obtained legal opinion of Chief Law Assistant and Competent Authority regarding appointment of the applicant and all authority have said that applicant may be appointed subject to decision of pending criminal case as mentioned in the letter dated 30.06.2021 but Assistant Divisional Personnel Officer, Jhansi passed the impugned order dated 24.09.2021 and rejected the candidature of the applicant for appointment.
3. We have heard Shri S.M. Ali, learned counsel for the applicant and Shri S.C. Mishra learned counsel for the respondents and perused the record.
34. Submission of learned counsel appearing for the applicant is that applicant was appointed as Track Maintainer IV on Group 'D' post. Appointment letter was issued, thereafter verification was made by the respondents and by the impugned order applicant was informed that appointment could not be made for the reason that there is criminal case pending against the applicant. It was further argued that applicant has not suppressed this fact and has mentioned details of the criminal case pending against the applicant in the application form, which has been admitted in the counter affidavit itself. Non-mentioning of sub section or any difference in the sections of the criminal case will not be sufficient to deprive the applicant from employment. To substantiate his argument, learned counsel for the applicant has relied upon the law laid down by the Larger Bench of the Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of India and others reported in 2016 0 Supreme (SC) 578, and judgment of Hon'ble Supreme Court in the case of Commr. Of Police and others Vs. Sandeep Kumar reported in 2011 (2) Supreme 446 and judgment of Hon'ble High Court, Allahabad in the case of Mooni Vs. State of UP and others in Writ A No. 9300 of 2020 as well as Railway Board circular dated 21.02.2018 and further argued that since applicant has not suppressed the pendency of the criminal case, offences leveled against the applicant are of simple nature, respondents ought to have appointed the applicant subject to the outcome of the criminal case. It is also argued that mere submission of chargesheet will also not be sufficient to deprive the applicant from the employment. It is also submitted that as per Railway Board circular dated 21.02.2018, which is regarding verification of character and antecedents of Group D employee before employment, mere submission of certificate issued by the Gazzette officer or Magistrate was sufficient regarding character verification. Respondents exceeding in its jurisdiction proceeded to verify the character of the applicant. Thus, argued that OA be allowed and respondents be directed to give appointment to the applicant.
5. Learned counsel appearing for the respondents referring to the counter vehemently argued that applicant has suppressed some sections of the criminal case in his application form. When verification was made it was found that a criminal case was pending against the applicant and due to this reason, appointment was not made. Learned counsel for the respondents 4 further argued that it is discretion of the respondents whether they deemed fit to be appointed the applicant pending criminal case or not. Applicant cannot claim as a matter of right for his appointment. Thus, referring to the entire facts disclosed in the counter affidavit, learned counsel for the respondents prayed that OA may be dismissed.
6. We have gone through the rival submissions of the learned counsel for the parties and perused the entire pleadings.
7. Before proceeding to discuss the submissions raised across the bar and analyzing the same in the light of the facts and circumstances of the case, we find it expedient to quote the relevant paras of the case laws relied upon by the learned counsel for the applicant:-
Relevant paragraphs of Avtar Singh (supra) case are as under:-
"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 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
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him".
Relevant paragraphs of Sandeep Kumar (supra) case are as under:-
"It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter".
Relevant paragraphs of Mooni (supra) case are as under:-
"The petitioner is principally aggrieved by the order of 21 November 2020 in terms of which the Superintendent of Police Amroha has proceeded to reject his claim for being accorded appointment on the ground of pendency of two criminal cases.
The petitioner admittedly was declared successful in the recruitment exercise which was undertaken by the Board for appointment as a Constable in the Civil Police. The petitioner had also undisputedly made a candid and truthful disclosure in respect of his arraignment in case crime No. 68 of 2016 and 147 of 2017. The Writ Petition as originally framed had impugned a decision of the Board by which it had held that it would be the S.P. Amroha who would have to take a decision with respect to the suitability of the petitioner for being accorded appointment. During the pendency of this 6 petition, the S.P. Amroha was directed to take a decision accordingly. It is in that backdrop that the impugned order of 20 November 2020 has come to be passed.
The Court is constrained to note that although the S.P. does take note of the decision of the Supreme Court rendered in Avtar Singh Vs. Union of India and Others (2016) 8 SCC 471, a reading of the impugned order evidences an abject failure to apply mind to the principles ultimately enunciated and on the basis of which alone the claim of the petitioner was liable to be adjudged. In Avtar Singh the Supreme Court after noticing the previous decisions rendered on the subject of a fair disclosure and a right of appointment elucidated the guiding principles in the following terms :-
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 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.
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.7
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."
From the principles as spelt out in Avtar Singh and more particularly paragraphs 38.5 and 38.6 thereof, it is manifest that an obligation stood cast upon the S.P. to consider the suitability of the petitioner being inducted in service notwithstanding his arraignment in the criminal cases especially in light of the full and fair disclosure that was made by him in that behalf. Rather than discharging that function, the S.P. has merely proceeded to postpone the taking of an appropriate decision till the conclusion of those two criminal cases. The decision so taken flies foul not just of the command of this Court but also in light of what was held in Avtar Singh. Surprisingly, although the Court had commanded the S.P. to consider the case of the petitioner specifically in light of the decision of the Supreme Court and which he has noticed himself in the order impugned, he has paid mere lip service to that direction and has clearly failed to comply with that direction. As noted above, the impugned order ex facie manifests a deliberate non application of mind. In any case the action of the S.P. to postpone the taking of a decision awaiting conclusion of the two criminal cases cannot possibly be countenanced. The learned standing counsel has fairly conceded to what has been recorded above and submits that the impugned order would not sustain.
The Court while tempted to enter an adverse remark against the S.P. in light of what has been noted above, refrains from doing so in the hope and trust that he shall upon remit, decide the matter fairly and in light of the original directions issued by the Court.
The Court further clarifies that it has not taken a view on the merits of the suitability or otherwise of the petitioner's claim to appointment. That is a decision which must necessarily be taken by the S.P. himself bearing in mind the nature of allegations levelled against the petitioner in the two pending criminal cases and their impact on his suitability to be offered employment in the police force. That decision is left for the independent evaluation of the S.P. concerned.
Accordingly the writ petition is allowed. The impugned order dated 20 November 2020 is hereby quashed and set aside. The matter shall stand remitted to the Superintendent of Police Amroha who shall now take a decision afresh and strictly in accordance with the observations entered above. The exercise of consideration shall be concluded expeditiously and in any case within a period of two weeks from today".
8. From the perusal of the record, it is evident that the applicant did not conceal the criminal case registered against him. It is also true that the mere pendency of the criminal case is not sufficient to deny him appointment to the post of Track Maintainer-IV, therefore, there is no impediment in allowing the applicant to appoint on the post of Track Maintainer-IV. It is also relevant to mention here that in the case of Mooni (supra), the Hon'ble High Court was of the opinion that mere pendency of criminal case if the petitioner has been permitted to continue in service then he cannot be denied for promotion. In the instant case, the applicant has declared successful for the post of Track Maintainer-IV for which he has appeared in the competitive examination. Hence, the aforesaid cases (referred to above) fully support 8 the case of the applicant, thus, applicant is liable to be granted reliefs sought in the OA.
9. Accordingly, OA is allowed and impugned order 24.09.2021 is set aside and respondents are directed to consider the appointment of the applicant for the post of Track Maintainer-IV subject to decision of criminal case in view of the laws laid down by Hon'ble Supreme Court/Hon'ble High Court in the judgments cited above. This exercise shall be completed within two months from the date of receipt of certified copy of the order. No order as to costs. All associated MAs stand disposed of.
(Mohan Pyare) (Justice Om Prakash -VII)
MEMBER (A) Member (J)
Manish/-