Central Administrative Tribunal - Delhi
Arun Kumar Yadav vs Gnct Of Delhi Through on 12 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2338/2008 New Delhi this the 12th day of August, 2010 Honble Mr. L.K. Joshi, Vice Chairman (A) Honble Mrs. Meera Chhibber, Member (J) Arun Kumar Yadav Recruit Constable (Ex.) Male S/o Shri Dharam Vir R/o Village Mundia Khera Post Dongra Ahir, District Mohinder Garh, Haryana, Group C, Aged 23 years. .Applicant By Advocate: Shri Saurabh Ahuja. Versus 1. GNCT of Delhi through Through its Chief Secretary, Delhi Secretariat, Players Building, I.P. Estate, Near ItO, New Delhi-110 002. 2. Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 3. Deputy Commissioner of Police, 4th Bn. DAP, New Police Lines, Kingsway Camp, Delhi. ..Respondents By Advocate: Shri H.K. Gangwani. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 12.6.2008 (page 12) whereby applicants candidature has been cancelled for the post of Constable (Executive) Male in Delhi Police on the ground that he had concealed the material fact of his involvement in a criminal case. He has sought a direction to the respondents to appoint him as Constable (Executive) Male in Delhi Police along with his batch mates with all consequential benefits.
2. It is stated by the applicant that he had applied for the post of Constable (Executive) Male on 27.5.2007 against Roll No. 903442. After undergoing all the tests, he was provisionally selected subject to verification of his character and antecedents, yet he was not issued any appointment letter. On the contrary show cause notice dated 19.5.2008 was issued calling upon the applicant to explain why his candidature should not be cancelled as he had concealed the fact of his involvement in the criminal case vide FIR No.98/2004 under section 323/325/34 IPC dated 2.6.2004 PS Kanina (Haryana) because he had tried to seek appointment in Delhi Police by false means. Applicant gave his reply that it was an inadvertent error/mistake on his part and he bona fidely believed that there was no need to mention about the criminal case in application form and attestation form as the said criminal case had been decided way back in 2005 and he was already acquitted on merits vide judgment dated 17.1.2005. He also stated that non-disclosure was neither intentional nor deliberate because he was already acquitted in the criminal case. Moreover, in the show cause notice it was stated that he was acquitted on the basis of compromise which is wrong, therefore, show cause notice dated 19.5.2008 is liable to be quashed and set aside on this ground alone.
3. Counsel for the applicant submitted that under Rule 6 of Delhi Police (Appointment & Recruitment) Rules, 1980, involvement in a criminal case is not a disqualification or ineligibility for appointment in Delhi Police, therefore, applicants candidature could not have been cancelled. He also stated that it was a mere mistake and he would not have gained anything by concealing the said fact as he was already acquitted in the said criminal case, therefore, applicant has a right to be appointed as a Constable in Delhi Police. He placed reliance on the judgment given by the Punjab and Haryana High Court in the case of Subhash Vs. The State of Haryana and Another reported in 1990 (4) SLR 525 and State of Haryana Vs. Dinesh Kumar reported in 2008 (3) SCC 222.
4. Respondents on the other hand have opposed this OA. They have stated that during the year 2007 they had advertised 2536 vacancies for the post of Constable (Execuitve) Male in Delhi Police. Applicant had applied for the said post against application form No. 650236 under the category of OBC. He was provisionally selected after undergoing all the tests subject to verification of character and antecedents, final checking of documents and medical fitness etc. He was got medically examined and was declared medically fit. However, on verification of his character and antecedents, it revealed that he was involved in a criminal case FIR No. 98 dated 2.6.2004 under Section 323/325/34 IPC, PS Kanina (Haryana) (ultimately he was acquitted in the criminal case vide order dated 17.1.2005), but in application and attestation form filled on 27.5.2007 and 30.10.2007 respectively, the facts of his involvement in a criminal case were not disclosed. He had thus concealed the facts deliberately despite clear warning given at the top of the form that furnishing of any false information will be treated as disqualification. He tried to get appointment in Delhi Police by adopting deceitful means with mala fide intention. In view of above, he was given a show cause notice. After considering his reply, he was not found fit for retention in Delhi Police as he had concealed the fact of his involvement in the criminal case. Accordingly, his candidature was cancelled vide memo dated 12.6.2008.
5. Counsel for the respondents relied on the judgment of Honble Supreme Court in the case of Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437. He also relied on the judgment in the case of Shri Rameshwar Prasad Meena Vs. Commissioner of Police and Others decided by the Honble High Court of Delhi in W.P. No. 7548/2003 and judgment of the Tribunal dated 4.6.2010 in O.A. No.1640 of 2009 and dated 13.4.2010 in O.A. No.1710/2008.
6. We have heard counsel for both the parties and perused the records as well as the judgments cited by both the parties.
7. Counsel for the applicant had relied on Rule 6 of Delhi Police (Appointment & Recruitment) Rules, 1980 to state that involvement in criminal case is not a disqualification. Rule 6 talks of ineligibility in general and has to be read with Rule 25 thereof which read as under:-
6. Ineligibility- (a) No person who is not a citizen of India shall except with the consent of the Central Government to be obtained in writing in advance, be appointed, enrolled or employed in Delhi Police.
(ii) No person, who has more than one wife living or who having a spouse living marries in any case in which such marriages is void by reason of its taking place during the life time of such spouse, shall be eligible for appointment, enrolment or employment in Delhi Police.
(iii) Every candidate shall make a declaration in form No. B about his marital status before he is enlisted.
(iv) No person shall be appointed to any post in Delhi Police unless he has been certified on as physically fit for police service by form D & F by a medical authority to be appointed for the purpose by the Commissioner of Police.
25. Verification of character and antecedents (i) Every candidate shall, before appointment, produce an attestation form, duly certified by two gazetted officer, testifying that the candidate bears a good moral character and they are not aware of anything adverse against him. The candidate may be provisionally enrolled pending verification of his character and antecedents which shall be done by making a reference to the concerned police station. Standing instructions in this regard laying down the procedure for getting such verifications shall be issued by the Commissioner of Police.
(2) An entry about the result of verification of character and antecedents shall be made in the service book/character Roll of the police officer concerned. The papers of such verification shall be filed with his Miscellaneous Personal File.
8. Perusal of Rule 25 shows that if a candidate is selected he may be enrolled provisionally pending verification of his character and antecedents which shall be done by referring the case to the concerned police station meaning thereby verification of character & antecedent is prerequisite before issuing appointment. Enrolment is done provisionally as it is liable to be cancelled if the report is adverse, which in the opinion of authority is not likely to make him a good policeman. As per applicants own case he was selected provisionally subject to the verification of his character and antecedents. Admittedly, the report revealed applicant was involved in a criminal case. Though he was acquitted but the fact remains he had concealed this fact. Therefore, contention of the counsel for the applicant is rejected.
9. It is relevant to note that, at the top of the application form itself, a warning is given which reads as under:-
Furnishing of false information or suppression of any factual information in the application form would be a disqualification for the job
10. Applicant had filled up the form having noted this warning. If in spite of warning, applicant concealed the fact of his involvement in a criminal case it would render him disqualified. Yet, applicant was served with a show cause notice calling upon him to explain why his candidature should not be cancelled on the ground that he had concealed the fact of his involvement in criminal case FIR No.98 dated 2.6.2004. Applicant has not disputed the fact that he was involved in a criminal case. He has stated he was not acquitted due to any compromise but was acquitted on merits of the case. It was only an inadvertent error that he did not mention about it. He had nothing to gain by concealing because he was already acquitted.
11. This contention can also not be accepted because ultimately applicants candidature was cancelled not on the ground that he was acquitted due to compromise but on the ground that he had concealed the facts deliberately in both the forms with mala fide intention and tried to seek appointment in Delhi Police by adopting deceitful means which reflects his mala fide intention. As such, he was not found suitable for the post of Const.(Exe.) Male in Delhi Police. The result of the criminal case is thus not relevant.
12. The object of requiring information is to ascertain and verify the character and antecedents of the applicant on the date of filling up the application form in order to judge the suitability of a candidate. In taking this view we are supported by the judgment of Honble Supreme Court in the case of Delhi Administration Vs. Sushil Kumar reported in 1996 (11) SCC 605 wherein it was held as follows:-
Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State.
The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though, he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of a candidate to be appointed to a service and not actual result thereof. If the actual result happened to be a particular way, the law will take care of the consequences. The consideration relevant to the case of the antecedents of the candidate. Appointing authority, therefore has rightly focused this aspect and found him not desirable to appoint to the service.
13. It would be advantageous to refer to the judgment in the case of Rameshwar Prasad Meena wherein Honble High Court of Delhi observed as follows:-
12. There is merit in the contention of the respondent. One aspect is the nature of involvement in the case, the seriousness of the offence, which has a bearing on the propensity to crime. The second aspect is with regard to the credibility of the individual and his character and antecedents in this regard. When a candidate, despite a clear warning in bold letters in the beginning of the attestation form, does not disclose facts or particulars of his involvement in a case, and has no reasonable explanation for the omission, then the respondents are justified in taking action on the same as it impinges upon the credibility and reliability of the candidate. We, therefore, find the respondents action in cancelling the candidature to be justified. There is no error or infirmity in the action of the respondents or the order of the Tribunal, calling for interference in the exercise of writ jurisdiction.
14. The contention as raised by the petitioner before us has also been dealt with by the Honble Supreme Court in R. Radhakrishnan Vs. Director General of Police and others reported in 2008 (1) SCC 660 wherein Honble Supreme Court had the occasion to consider such a case. In this case the OA was allowed by the Tribunal by observing that since appellant had been acquitted in the criminal case, there did not exist any reason as to why he should be denied appointment to the post of Fireman. This view was not approved of by the Honble Supreme Court. It was noted that the question posed to the appellant therein and answers given by him were as follows:-
** **
15. Have you ever been concerned in any criminal case as accused ? No
16. Have you ever been arrested or convicted and sentenced to undergo imprisonment or pay a fine in any criminal or other offence ? If so, give details with C.C. No. and Court. No ** *** ***
18. Are there any civil or criminal cases pending against you ? If so, details No"
After considering the rival contentions, Honble Supreme Court held as follows:-
10. Indisputably, Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to dis-close a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed The appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise.
15. The same view was reiterated in U.O.I. and Others Vs. Bipad Bhanjan Gayen reported in 2008 (11) SCC 314 wherein it was held as under:-
Recruitment process Character and antecedents verification Wrong information furnished by candidate in attestation form regarding his involvement in criminal cases Held, a valid ground for termination during probation period, particularly when appointment was made subject to verification of particulars given in the attestation form Such termination is not stigmatic or penal Question of natural justice does not arise Further held, candidates subsequent discharge in criminal cases was of no consequence for the reason that ground for termination was furnishing of wrong information and not involvement in criminal cases The fact that respondent was employed in a police force, requiring high degree of integrity, also taken into consideration.
Termination of the respondent in that case was upheld by the Honble Supreme Court.
16. The same view has been reiterated by the Honble Supreme Court in the latest judgment in the case of Kamal Nayan Mishra Vs. State of Madhya Pradesh and Others reported in 2010 (2) SCC 169 wherein it was specifically held that a probationer who gives wrong information in regard to the material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against proposed termination.
17. In Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437, High Court had allowed the Writ Petition by observing as follows:-
Non-mention of pending criminal case in column 12 (1) of the attestation form can be for the reasons stated by the petitioner; more so when the medium of instruction in this State is primarily Hindi. That apart, the criminal case in which the petitioner was involved, has been withdrawn by the State Government. That means, the case was not serious and involvement of agitators in its was found for justification, otherwise the case against them would not have been withdrawn. That apart, it did not involve moral turpitude disqualifying the petitioner from seeking the employment.
This view was also not approved by the Honble Supreme Court. It was observed as follows:
12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service. A candidate having suppressed material information and/or giving false information cannot-claim right to continue in service.
The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The High Court went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The high Court was clearly in error in upsetting the order of the Tribunal.
It was noted that it is not in dispute that a criminal case was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against column nos. 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of B.A., B.Ed, and M.Ed, degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand column nos. 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of respondent was Hindi, he could not understand the contents of column nos. 12 and 13.
18. Perusal of above judgments would show that a consistent view has been taken by the Honble Supreme Court that if a person suppresses the material fact with regard to his involvement in a criminal case and his candidature is cancelled/terminated by the department, it calls for no interference. The present case is fully covered by the above judgments.
19. We would be failing in our duties if we do not deal with the judgments relied upon by the counsel for the applicant. Learned counsel for the applicant has placed reliance on the judgment of Honble Supreme Court in State of Haryana Vs. Dinesh Kumar reported in 2008 (3) SCC 222. However, perusal of the said judgment shows that the question considered by the Honble Supreme Court was entirely different. Honble Supreme Court was dealing with the concept of arrest and custody in a criminal case as raised in the facts of the said case. The respondent therein had appeared before the Magistrate and had been released without being taken into formal custody. The question raised was whether it could amount to arrest for the purpose of the query in Column 13A. One bench of the High Court had taken the view that since the accused had neither surrendered nor had been taken into custody, it could not be said that he had actually been arrested. On the other hand, another bench of the same High Court dismissed similar writ petitions filed by Lalit Kumar and Bhupinder, without examining the question as to whether they had actually been arrested or not by holding that they had withheld important information regarding their prosecutions in a criminal case though ultimately they were acquitted. The issue considered by the Honble Supreme Court was thus the concept of arrest and custody in connection with a criminal case, therefore, it is distinguishable. This case would not advance the case of the applicant because whether he was arrested or not is not even the issue in the present case. The issue in present case is whether candidature of applicant could be cancelled for concealing the material fact regarding his involvement in a criminal case. We have already demonstrated above that applicant had not only given wrong statement but had suppressed the fact regarding his involvement in the criminal case, therefore, if respondents formed an opinion that applicant is not suitable for Delhi Police and cancelled his candidature, it calls for no interference. The OA is accordingly dismissed. No order as to costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI) MEMBER (J) VICE CHAIRMAN (A) Rakesh