Central Administrative Tribunal - Delhi
Amit Kumar vs Govt. Of Nct Of Delhi Through on 26 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 553/2008 New Delhi this the 26th day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Amit Kumar, (PIS No.28061160) Ex. Const. (Ex.) in Delhi Police, S/o Shri Samar Pal Singh, R/o RZ-6/C, New Gopal Nagar, Najaf Grah, Near Railway Factory, New Delhi-43. Applicant. (By Advocate Shri Anil Singal ) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Principal Police Training College, Jharoda Kalan, New Delhi. Respondents. (By Advocate Shri Ajesh Luthra) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
In response to a Notification issued by the Delhi Police inviting applications for the post of Constable (Executive), the applicant had responded. Candidates were expected to fill up a prescribed application form and sign it. The date, on which the application was submitted by the applicant, is stated to be 04.07.2005. The procedure required that a candidate if he became successful in the preliminary in the selection was to sign attestation forms. The applicant had signed it on 02.01.2006. After undergoing the selection process, he had been offered appointment and had joined service on 29.03.2006. It was required that a further declaration also had to be submitted. This had been done by him on the above said date. His roll No. was 826681.
2. By an order-dated 29.08.2006, however, the applicant was informed that in exercise of the provisions of Rule 5 (1) of the CCS (Temporary Service) Rules, 1965, his services are forthwith being terminated. One months salary and allowances representing notice pay had been offered to him, along with.
3. Applicant had challenged the above order by way of OA 318/2007. A single Member of the Tribunal had allowed the OA. Impugned order was set aside, holding that although the order of termination is `an innocuous simplicitor one, nothing precluded the Tribunal from lifting the veil and to examine the circumstances `preceding post termination. It had been directed that the respondents were to accord to the applicant a reasonable opportunity by issuance of show cause notice and adopting due process of law, and consider the defence. Evidently, in view of the directions as above, the applicant had been reinstated on 14.11.2007 without prejudice to further proceedings.
4. A show cause notice as Annexure A-8 is seen to have been issued on 28.11.2007. This had been duly responded to by Annexure A-9. Principal Police Training College, the competent authority thereafter had issued Annexure A-2 order on 09.01.2008, advising the applicant that his service shall stand terminated with immediate effect. Notice pay had been ordered. This order is under challenge.
5. The submission of Mr. Anil Singal appearing on behalf of the applicant is that the order is illegal. According to him, facts placed before the authority had not been properly noticed, and the order is also not in compliance with the order of the Tribunal dated 18.09.2007 rendered inter partes, which had attained finality.
6. Mr. Ajesh Luthra appearing on behalf of the respondents submitted that the power under Rule 5 (1) of the CCS (Temporary Service) Rules had been properly exercised and reasonable opportunity had been offered to the applicant to come up with his stand. A final decision had been arrived at, after entering satisfaction about the incriminating circumstances that were found existing as against the applicant. He submits that it was a case where in spite of a warning, applicant had submitted wrong information repeatedly about the matters, which would have affected his candidature, and the suppression was vital, and was sufficient to show that he was not a fit person to be accommodated in a uniformed service.
7. Mr. Anil Singal heavily relied on the order passed by this Tribunal in OA 318/2007 to highlight that by virtue of the order, the applicant had obtained a special status, and being an appointee to a service would have been entitled to the benefit of an inquiry, as envisaged by the Discipline and Appeal Rules, since the Tribunal had in clear terms indicated that a reasonable opportunity required to be given to the applicant by show cause notice etc. and they were expected to adopt due process of law. The allegations against the applicant being that he had not supplied the details of FIR dated 07.10.2001 (88 of 2001 filed before Station House Officer, Garhi Pukhta) and when the Tribunal in Annexure A-6 had held that the acquittal had obliterated the stigma, and as a result thereof, the factum of FIR also is obliterated, there was no substratum for the respondents to further pursue the matter or the applicant could have been penalized. Due process referred to in the order indicates that an inquiry was required to be held. By short-circuiting and confining the process to show cause notice, prejudice is caused to the applicant in the matter of his defence. The order is, therefore, bad.
8. On the merits of the case, the applicant submits that the full facts had been omitted to be noted deliberately, although supplied, and it could not have been possible for the respondents to take a stand that he had exhibited a deceitful intention, as alleged in the impugned order.
9. At the outset, we will have to hold that the first two contentions relied on by the learned counsel perhaps have little merit. Of course, the Tribunal had set aside the order, but liberty had been given to the respondents to proceed in the mater as legally permissible. That by itself, would not have enlarged the right of the applicant, to be treated as a person who had protection of the Discipline and Appeal Rules. The direction could be understood only as one whereby the applicant had to be given a reasonable opportunity for enabling him to come up with appropriate explanation he had in his sleeves.
10. An ultimate acquittal automatically may not result in a legal position that no FIR was ever in existence. See Delhi Administration Vs. Sushil Kumar (1996 (11) SCC 605). When such informations were to be furnished before hand, the factum of acquittal would have been rather irrelevant and really beside the point.
11. We may, therefore, confine and examination about sustainability of the plea taken by Mr. Anil Singal that the show cause notice has more or less come only as a formality, and the respondents had avoided to look into the matter objectively to come to a finding whether there was an element of deliberate suppression, which alone would have been the crucial circumstance for affecting the candidature and consequentially selection. For this purpose, we will have to go to the relevant details, as highlighted by the counsel on both sides.
12. In fact, we are of the view that the large volume of precedents that had been relied on by the respondents may not have relevance, when we examine as to whether there was a conduct on the part of the applicant, which required action to be taken for deleting his name. The submission of Mr. Singal is that his client was unaware of the FIR at any time and consequently he could not have been accused of any suppression. Mr. Luthra had invited our attention to the decision of the Supreme Court in R. Radhakrishnan Vs. Director General of Police and Ors. (2008 (1) SCC 660). It was a case where a candidate had furnished wrong information about his involvement in a criminal case. The Tribunal found that even after coming to notice that a false declaration would have resulted in a rejection of his appointment, he had supplied false information to a question as to whether he had been ever concerned in a criminal case as an accused at the time of verification. The facts of the case show that petitioner there had been arrested by the police on 15.04.2000 and was released on bail. At the time of application on 05.01.2000, there was no case against him; he had been provisionally selected. But at the time of submitting verification, he had not disclosed that there was an arrest on 15.4.2000. The Supreme Court held that there was suppression of a material fact and, therefore, there was no question of exercising an equitable jurisdiction.
13. Mr. Luthra had also invited our attention to a judgment in WP (C) 7548 of 2003 of the Delhi High Court, where it had been held that when a candidate, despite a clear warning does not disclose particulars of his involvement in criminal cases, it will be justifiable for the Administration to take action, since the same impinges upon the credibility and reliability of the candidate. Adverting to judgment of the Delhi High court in WP (C) 19116 of 2004, it is submitted that such a conduct would make the candidate unsuitable and undesirable and make him ineligible to join the Department as Constable. According to the Standing Counsel, this decision also answered a subsidiary contention raised by the counsel for the applicant that there was subtle difference between eligibility and suitability, and the respondents had erred in considering the applicant as unsuitable for the post, which was unwarranted. But, however, the decision explained that eligibility and suitability, were, in fact, circumstances, which complemented one and another.
14. Citing Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav (JT 2002 (2) SC 256), Mr.Luthra had pointed out that a subsequent withdrawal of a criminal case registered would not have been of any material assistance to a person who had given a false declaration in the attestation form. This was because it had a clear bearing on the character and antecedents of a person. A candidate having suppressed material information could not have claimed right to continue in service, the Court had held. Citing A.P. Public Service Commission Vs. Koneti Venkateswarulu and Ors. (2005 SCC (L&S) 924), counsel had pointed out that a false declaration could not have been subsequently explained as inadvertently made, and it was not for the candidate to decide which information was relevant and required to be furnished and which one need not be furnished. He submits that Sushil Kuamrs case (referred to earlier) was similar in lines, and the acquittal would not have justified the applicant to plead that omission to furnish information required to be condoned since he had been found fit in the selection. Although it was not a case of suppression, the Court had observed that involvement in a criminal case would have really and materially affected his selection. Counsel had also referred to the order of this Tribunal in OA No. 29/2007, which had upheld the above principle.
15. But, however, the position of the applicant is slightly different, we have to note. It is submitted that to his knowledge there was no information that he had been implicated in any criminal proceedings at any point of time, either at the stage of filing of the application or at the time of verification. As could be gatherable from the judgment in CWP 7548/2003 (cited supra), the principle was not in absolute terms in an instance of non-supply of antecedents of a candidate. Nor was it necessary that appointment automatically require deletion. In Paragraph 12 of the judgment, it has been held that the person concerned could have had no reasonable explanation for the omission that had been highlighted against him, and it is actionable precisely at this point of time. The effect appears to be that if the applicant could substantiate his stand that he was unaware of the criminal case, at the time of submission of application and attestation, the resulting intones may require totally different parameters to be employed. That appears to be a precise case of the applicant. He submits that in spite of his effort to supply the details by way of his explanation, to the show cause notice the factual aspects have not been adverted to. This is an invalidating circumstance as far as the impugned order is concerned, it is pointed out.
16. It could be generally stated that although the powers as envisaged under Rule 5 are absolute in terms and the standard form appended to the Rule does not postulate a detailed recording of the reasons, it necessarily has to be taken notice of, that because of judicial intervention, now there is necessity that a formal show cause notice, requires to be issued, especially in cases where the action could be considered as punitive. In fact, we find that as early as in 1956 by an OM dated 22.06.1956, the Home Ministry had advised all departments that as a matter of fact no reasons should be given while issuing orders in exercise of power under Rule 5 (1) of the Rules. But as mentioned earlier, when transparency should be the hallmark of Governmental action, it should have been advisable always to put in writing the reason, which had compelled the concerned Authority to take action as authorized by the statute. This would insulate them from a criticism that that there was arbitrariness involved or it was a colourable exercise of power.
17. Coming to the facts of this case, we have already observed that in spite of the observations as arising out from OA 318/2007, it was not incumbent on the respondent in the second round to hold an inquiry. We have to see whether the minimum requirement of consideration of his case for proposing to put him to the disadvantageous circumstances, had been given.
18. When by the show cause notice, the selectee had been informed that what led to the decision of the termination was his conduct of repeated suppression of vital information concerning his candidature, correspondingly a duty is deemed to be cast on the respondents to establish in satisfactory terms that despite the explanations the case was considered dispassionately. On the facts of the case it was incumbent on the respondents to show that the only conclusion possible from the study materials would have been that the applicant had misled the respondents repeatedly and consciously. This alone might be the question as presently relevant.
19. Date of application is 04.07.2005. Date of attestation is 02.01.2006. It is conceded that on both the dates no hint was given by the applicant that at any point of time any criminal proceedings had been initiated against him. Now, we may look into the defence, namely, that he was unaware of the pendency of the proceedings. If that would have been possible to be presented acceptably, we feel that it would have operated as a mitigating circumstance. In this background, we may, therefore, examine as to what had transpired and what conclusion would have been possible to be made.
20. Annexure A-1 show cause notice, alleges as following:
It is alleged that Rect. Constable Amit Kumar No. 1516/PTC ( Now 2489/PTC) ( PIS No. 28061160) was selected provisionally to the post of Constable (Exe.) in Delhi Police during the recruitment held in the year 2005 and allowed to join the department on 29.03.2006 (AN) subject to verification of his character and antecedents. As per his character and antecedents report received from the authority concerned, he was found involved in a criminal case FIR No. 88/2001 U/S 471/148/324/504/506 IPC PS Garhi Pukhta (UP) and acquitted by the Honble Court vide judgment dated 21.02.2006, on the compromise basis.
Annexure A-2 termination order, highlights the above conduct, although the explanation submitted by him had been noticed that the main plea put in by the applicant was that he was not aware of any criminal case pending against him at local police. Nor any court ever had summoned him. A circumstance has been highlighted in the impugned order, attributing knowledge to the applicant about pending proceedings, as he is stated to have admitted that a compromise had taken place on 07.10.2001 between the complainant and himself. This, according to the disciplinary authority, was sufficient enough to hold that his plea was only a pretence, and, in fact, there was concealment of facts and the above could not have been tolerated.
21. We may examine the sequence of events as presented on behalf of the applicant. According to him, he was unaware of any FIR that had been filed by Mr. Sehdev, implicating him and members of his family. This was because there was no inquiry made by the police, and no case was registered against him. No notices had come from the court and as on the date of filling up the application, he had no information whatsoever about the FIR, which had been lodged in the police station of Garhi Pukhta. This again was the position on the date of attestation, namely, 02.01.2006. In all bona fides, he had submitted that there was no FIR lodged in which he was implicated and he was never involved in a criminal case or a civil case. But it is explained that after 02.01.2006 for verification, police had come to his village and had made inquiries. It was at that point of time alone that a factual situation had come to be noticed that a complaint lodged on 25.09.2001, although had been withdrawn by the complainant, and a final report in respect of the complaint had been lodged by the Investigating Officer, on 26.09.2001, it still on the date had been languishing in the files of the police station without follow up action. It was forwarded to the Magistrate thereafter, and the case had finally closed thereafter, it has now come to be disclosed. A copy of the final report Annexure A-4 produced by him shows the brief reasons recorded by the officer concerned for closure of the case as following:
Sir, it is submitted that on 25.9.2001 on the basis of Tehrir of complainant FIR No. 88/01 was registered and handed over for investigation to me. During investigation after recording the statement of complainant, witnesses and spot inspection, in absence of evidence this final report is submitted with the request that this final report be accepted. After the verification steps came as above, evidently the matter had been appropriately presented before the Court of the ACJM, Kairna. The copy of the order dated 21.02.2006 shows that on the date, the complainant and the two other persons, who had lodged the complaint, had given statements before the Magistrate and they had also submitted that they have no objection in the final report being accepted. They did not want any action against the accused. The Magistrate had also recorded that after investigation, the IO had found no case made out, and taking notice of the circumstances, the final report was being accepted. The applicant had been conferred with the appointment, before the report come, perhaps, and in view of the report, the applicants services were terminated, by respondents exercising powers under Rule 5 (1).
22. Of course, the applicant had stated that on 07.10.2001, the issue had been compromised as between the members of his family and complainant Sahdev. This circumstance is relied in the impugned order as a reason to assume that the complainant was aware of the criminal complaint. But there is nothing to indicate that the compromise was about the criminal complaint lodged as such. No information had gone from the police station addressing the applicant about the registration of the FIR, nor was he interrogated at any point of time. In fact, if we notice the report, it could be seen that after inquiry, the Investigating Officer had reported that there is no substance in the complaint and his closure report was made on the following day (26.9.2001). Compromise admitted by the applicant was long after the report is seen filed. On the date of making the application, therefore, it would have been presumable that the applicant might have been unaware of filing of an FIR since he cannot be invested with knowledge unless there is a definite circumstance to indicate that, in fact, he had been put to notice. The situation continued even on the date of verification.
23. Therefore, it cannot be stated that here was a case of deliberate suppression at two stages, namely, on the dates of filing of application and the date of verification.
24. Reliance was placed, however, on the declaration submitted by the applicant in the attestation form signed on 29.03.2006, when he joined the force. It is to be noticed that on that day the applicant might have been aware of the closure report as also the proceedings that were finalized before the Magistrate. But, however, the question whether he was obliged to give such details on the above said date, when he was about to join duty, and was showing a blamable conduct by discretely keeping silence.
25. Mr. Luthra had made available to us the original files pertaining to the applicant. At page 71, we find the recorded undertaking of the applicant, which is noted, in the following lines:
I Amit Kumar S/o Samarpal Singh R/o RZ 6/C, New Gopal Nagar, Najabgarh-43 Roll No. 826681 do hereby solemnly affirm that I have not concealed any facts in the Application Form as well as in the Attestation Form. I further declare that I have neither been involved in any criminal case nor been arrested/prosecuted/convicted/bound over/interned/ extended as well as not dealt with under any law in force in any criminal case. No criminal case or court proceeding is pending against me at present.
I do hereby also state that my selection to the post of Constable (Exe.) Male in Delhi Police is purely provisional and temporary, subject to the verification of may character & antecedents and the documents submitted by me in support with my Application Form. In case of any document/certificate/declaration submitted by me is found to be false or adverse character & antecedents report is received, my aforesaid selection shall be liable to be cancelled and my services shall be liable to be terminated. Further, in the event of any eventuality mentioned above, I shall have no claim for the post of Constable (Exe.) Male in Delhi Police. From the words of the undertaking, it is difficult to assume that as the proceedings have been dropped by the Magistrate, nevertheless the applicant was to supply any details, at that point of time. Even if for technical reason, it could be presumed that such a conduct was expected of him, taking notice of the situation which the applicant was placed, the Tribunal should come to the rescue of a young person, as the conduct could not have been considered as adverse reflection about his integrity.
26. We have to see that the applicant is a youngster. Going by the records, on the date of the FIR, he was hardly 19 years of age. He was undergoing B.Sc course in a college. As Mr. Singal pointed out, it also cannot be ruled out that when there was a quarrel between two families, one of them had rushed to the police station with a complaint and might have given the names of all male members of the rivals. But later on, they had retracted from the statement and there was nothing serious even to be enquired in respect of such complaints. No follow up steps also were there. Such a complaint, even if taking it to its logical end, we feel, should not have been sufficient enough to affect the career of a person. Taking into account the totality of the situation, we set aside the impugned orders. The applicant is to be readmitted to duty forthwith. We also direct that no back wages will be paid to the applicant but his service for all purposes will be treated as continuous and uninterrupted from the initial joining date. No costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD