Central Administrative Tribunal - Jodhpur
Manish Kumar vs M/O Railway on 25 March, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No.290/00076/2018
Pronounced on : 25.03.2022
Reserved on : 09.03.2022
...
CORAM: HON'BLE Ms. ARCHANA NIGAM, MEMBER (A)
...
Manish Kumar S/o Late Shri Ishwar, aged about 28 years, by caste
Valmiki, Resident of Ward No.11, Near Kali Mata Temple, Bhatta
Colony, Hanumangarh (Raj.) (Father of Applicant was working as a
Sweeper under North Western Railway at Bikaner).
...APPLICANT
BY ADVOCATE : Mr. S.P. Singh, present through VC.
VERSUS
1. Union of India through the General Manager, North West
Railway, Headquarter, Jaipur.
2. The Divisional Railway Manager, North Western Railway,
Modern Market, Karni Colony, Kuchipura, Bikaner (Raj.).
3. The Senior Divisional Personnel Officer, North Western
Railway, Modern Market, Karni Colony, Kuchipura, Bikaner
(Raj.).
...RESPONDENTS
BY ADVOCATE: Mr. Vinay Chhipa, present through VC.
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ORDER
Per Hon'ble Ms. Archana Nigam, Member (A):-
1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, wherein the applicant is seeking the following reliefs:
"8(A). That respondents may kindly be directed to consider the case of the applicant for appointment on compassionate grounds and if found suitable, may be granted appointment on the suitable post. (B) Any other appropriate order or relief which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of this may also kindly be passed in favour of the humble applicant."
2. The brief facts of the case as narrated by the applicant are that the father of the applicant, who was appointed at Bikaner Office of North Western Railway, expired on 19.11.2015 while in service. The applicant being eldest son applied for compassionate appointment.
The respondents No.3 rejected the application of the applicant vide order dated 18.04.2017 (Annexure-A/1) on the ground that the applicant has furnished wrong information in its application form that there is no case pending against the applicant but as a matter of fact there is no such clause in which it is asked that whether any criminal case is pending against the applicant and therefore there is no occasion to furnish such information.
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On such arbitrary rejection of the application, the applicant preferred representation on 10.07.2017 and further on 03.08.2017 but no heed has been paid for the same. Hence, the present Original Application.
3. In the reply, the respondents have averred that the applicant has failed to point out or show any illegality or ambiguity in the letter dated 18.04.2017 (Annexure-A/1) issued by the respondent No.3 and the same has been passed strictly in consonance with law. It has been further stated in the reply that after the death of deceased employee Shri Ishwar, the applicant has never submitted any application for appointment on compassionate grounds. In fact the correct facts are that Smt. Kanta Devi (wife of deceased employee and mother of the applicant) has submitted an application dated 24.08.2016 stating that due to old age and ill health, she wants to get appointment on compassionate ground of her son Manish Kumar i.e. applicant on the basis of education qualification of 8th pass.
Accordingly, case of the applicant for consideration of appointment as Trainee (in 1S pay band) on compassionate ground was processed. Applicant was asked to submit Attestation Form and thereafter filled and submitted Attestation Form on 23.12.2016 and also filed an affidavit.
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It has been averred in the reply that the present applicant has intentionally suppressed and concealed the material facts with regard to pendency of criminal proceedings again him. The Item No.11 (i) of the Attestation Form relates to query with regard to that "Is any case pending against you in any Court of Law at the time of filling up this Attestation Form?" Applicant intentionally did not disclose the true facts with regard to pendency of criminal proceedings again at the time of filling of Attestation Form and he answered the same as "No" and also submitted false affidavit alongwith the Attestation Form.
The applicant's case was sent to the concerned office of Collector-cum-District Magistrate, Hanumangarh for verification with regard to applicant's character and pendency of initiation of any criminal proceedings against the applicant. The Collector-cum- District Magistrate, Hanumangarh vide letter dated 28.02.2017 informed to the respondent No.2 that as per Police Record Case No.96/17.02.2016 under Section 374 IPC and 74 JJ Act registered against the applicant, in which challan filed against the applicant on 06.07.2016 and same is pending for adjudication before the Court.
It is further averred in the reply that as per the instructions laid down in the Railway Board's letter No.E (D&A) 2013 GS4-1 dated 20.02.2013, if a candidate furnished false information or suppressed any factual information in the Attestation Form, then 5 the same amounts to disqualification for Service under the Government and it may not be feasible to give appointment in Railway service to a candidate who furnishes false information or suppresses any factual information in the Attestation Form. As the applicant has been found guilty for suppressing and concealing material facts from the Railway Administration, therefore, applicant has been rightly informed vide letter dated 18.04.2017 (Annexure- A/1) that he is ineligible to be appointment on compassionate ground in the Railway service as he has suppressed and concealed the material facts from the Railway Administration.
4. In rejoinder the applicant while reiterating the facts mentioned in the OA submits that the Hon'ble Apex Court has passed clear directions that if the matter is not related to Moral Turpitude and considering the age of the candidate, the matter may be considered for appointment even if there is concealment in attestation form. In this regard he relied upon the judgment of Ram Kumar vs. State & Ors. (JT 2011 (9) 200)n (7); Devedra Kumar Yadav vs. Govt of NCT Delhi and Another decided on 30.03.2012; Gurey Lal vs. State of UP (2008) 10 SCC 450 and Avtar Singh vs. Union of India & Ors. Special Leave Petition (C) No.20525/2011 vide order dated 21.07.2016.
The applicant reiterates in the rejoinder that in a case trivial in nature in which conviction had been recorded, such as shouting 6 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.
5. In Additional Affidavit, the respondents while reiterating the averments made in the counter affidavit states that the applicant was declared unfit to be given appointment on compassionate grounds vide order dated 18.04.2017, whereas trial Court has passed order on 19.04.2017. Applicant has taken shelter of certain judgments, passed by the Hon'ble Supreme Court as well as by this Hon'ble Tribunal in support of his case, however, looking to the facts of the present case, said judgments are not applicable in the present case. In support of their averment regarding suppression and concealment of facts, the respondents relied upon the case of Hon'ble Supreme Court in Civil Appeal Nos.5743-5744 of 2021 titled as Rajasthan Rajya Vidyut Prasar Nigam Limited and Anr. Vs. Anil Kanwariya, decided on 17.09.2021; SB Civil Writ Petition No.9051/2018 titled as Anil Kumar vs. UOI & Ors, decided on 21.01.2022 of the Hon'ble High Court of Rajasthan.
It is further averred in the additional affidavit that as held in Avtar Singh's case (Supra), even if acquittal has been made, employer may consider nature of offence, whether acquittal is 7 honourable or after giving benefit of doubt on technical reasons and can also decline to appointment a person who is unfit or of dubious character and further held in Para 24 that " No doubt about it that once verification form requires certain information to be furnished declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may be itself lead to termination of his services or cancellation of candidature in a appropriate case."
6. Heard learned counsels for both sides and also perused the material available on record.
7. Learned counsel for the applicant submits that the matter if not related to moral turpitude, and considering the age of the candidate, the matter may be considered for appointment even if there is concealment in attestation form. He relied upon the judgment of Hon'ble Supreme Court passed in the case of Ram Kumar vs. State of UP & Ors (JT 2011 (9) 200], wherein at para 12 it has been held that "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, decoity or rape, and hence a more lenient view should be taken in the matter." 8
He further states that in Devendra Kumar Yadav vs. Govt of NCT Delhi and Another decided on 30.03.2012 it has been held by the Hon'ble Court that "mere involvement in a criminal case or registration of FIR is not a proof of involvement n a criminal offence unless the trial Court, which is the only competent forum to record a finding as to the guild of an accused in a criminal offence, delivers the very holding one guilty of the offences".
He further states that in Kunj Bihari case, the Hon'ble High Court passed direction at para 9 that " while considering the effect of pendency of case under Section 323/34 IPC has held that these are not the offences involving moral turpitude, therefore, mere pendency of the criminal case under these section cannot be construed as a valid ground for denial of appointment. The Court has observed that such denial is arbitrary and contrary to Rules."
He further states that in Gurey Lal Vs. State of Up (2008) 10 SCC 45), the Hon'ble Supreme Court reiterated that an accused is presumed to be innocent until proven guilty. It was observed that an acquittal in the criminal trial only bolsters the presumption of innocence which is available to every person accused of committing criminal offence. He also relied upon the judgment of Devendra Kumar Yadav's case wherein the Hon'ble Court observed " In so far as the benefit of doubt and hostility of witnesses are concerned, these are the aspects, which will not be material or relevant to 9 record a finding by the administrative authorities as to involvement of the person in criminal activity or his being guilty of committing the crime. What is allowed to the administrative authorities is to adjudge the suitability of a person but not in the manner that whatever recorded on judicial side by the Court of criminal jurisdiction should be overreached and overridden by taking a definite view or reading between the lines in the judgment to arrive at finding of guilt. It is trite in law that if the acquittal by a trial court is not challenged by the prosecution in higher forum by making an appeal against the acquittal, the decision of the trial court acquitting the accused stands final and cannot be questioned or interpreted otherwise by administrative authority, which is coram non judice in the circumstances."
He heavily relied upon the para 30 (4) of the judgment of Hon'ble Apex Court in the case of Avtar Singh vs. Union of India & Ors. Special Leave Petition (C) No.20525/2011 decided on 21.07.2016, which reads as under:-
"30 (4) In case there is suppression of false information of involvement in a criminal case where conviction or acquittal had already been recorded before filing of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case 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."10
Learned counsel for the applicant submits that in view of the aforesaid directions of the Hon'ble Supreme Court and High Courts, the impugned order dated 18.04.2017 deserves to be quashed and set aside as the case of the applicant is not connected with moral turpitude and concealment of fact. He further submits that the Hon'ble Tribunal in similar matter i.e. OA No.324/2016 (Mool Chand vs. Union of India & Ors) vide order dated 23.02.2017 has passed the following orders:-
"14. Therefore, looking to the facts and circumstances of the case as well as the conclusions given by the Hon'ble Larger Bench of the Hon'ble Supreme Court in the case of Avtar Singh (supra), I find merit in the present OA. Therefore, the impugned order dated 01.06.2016 (Annexure- A/1) is quashed and set aside. The respondents are directed to consider the case of the applicant in furtherance of the approval given by them vide order dated 09.11.2015 (Annexure-A/5) and if the applicant is found otherwise fit, he may be granted appointment on compassionate grounds."
Learned counsel for the applicant submits that in the present case also, similar directions may be passed.
8. Learned counsel for the respondents submits that at the time of submitting attestation-form along with affidavit, trial in the criminal case was pending against the applicant before the competent Court and same was very well within the knowledge of the applicant but despite this fact, the applicant has intentionally concealed and suppressed this fact from the Railway Administration. Therefore, the applicant has rightly been denied appointment on compassionate grounds in the Railway service as he has furnished 11 false information and concealed and suppressed factual information in the attestation from, which disentitles the applicant to get appointment in the service of Railway Department.
He further submits that the facts of the case in OA No.290/00324/2015 titled as Mool Chand versus UOI & Ors, decided on 23.02.2017 are entirely different from the facts of the present case because in Mool Chand's case the applicant was involved in a family feud and therefore, criminal case was registered against the applicant along with his family member and said criminal case was dropped and applicant was acquitted much before he was called for the appointment. However, in the present case when the applicant's case for appointment on compassionate ground was pending for consideration, criminal case was pending for adjudication before the compete Court and even when the applicant was asked to submit attestation from, criminal trial was pending against him but despite all these facts, the applicant did not disclose true facts in the attestation form.
He submits that recently the Hon'ble Supreme Court in Civil Appeal Nos 5743/5744 of 2021 titled as Rajasthan Rajya Vidyut Prasara Nigam Limited and Anr. Vs. Anil Kanwariya, decided on 17.09.2021 has held in para No.12 as under:-
"The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been 12 subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."
He further submits that recently in one another case in SB Civil Writ petition no.9051/2018 titled as Anil Kumar vs. UOI & Ors. Decided on 21.01.2022, the Hon'ble Rajasthan High Court at Jodhpur in view of the ratio as laid down in Avtar Singh's case (supra) has held that now it has been settled in a catena of judgments that in all the cases where there had been non- disclosure of a criminal antecedent by the candidate in the application form, it would be the sole discretion of the employer to decided on the same keeping in mind the nature of the offence and the impact of the same on service of the candidate as he is needed to provide in future. As held in Avtar Singh's case (supra) even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or after giving benefit of doubt on technical reasons and can also decline to appoint a person who is unfit or of dubious character.
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He submits that the respondents while taking into consideration the facts and circumstances of the case and also the conduct of the applicant and the instructions contained in letters dated 20.02.2013 and 19.03.2013, declared the applicant unfit for appointment on compassionate grounds in the Railway Department vide order dated 18.04.2017 (Annexure-A/1). There is no illegality in the act of the respondents and therefore, no interference of this Tribunal is required.
9. Considered the rival contentions of learned counsels for both sides and perused the material available on record.
10. It is seen that the applicant's father late Shri Ishwar (deceased Railway Employee died on 19.11.2015. Application for Compassionate Appointment filed by the applicant's mother Smt. Kanta Devi firstly on 24.08.2016 and thereafter again on 28.11.2016. A Criminal Case No.96 dated 17.02.2016 for the offence under Section 374 I.P.C. & Section 74 J.J. Act registered against applicant Manish Kumar on 17.02.2016. On 23.12.2016, the applicant submitted his Attestation Form along with affidavit, wherein in the column of Details which were sought regarding criminal antecedents viz. arrest/bail/conviction/pendency of criminal trial etc. in the Attestation-Form were in very simple language. Despite Warning Column (Point No. 1 to 3) in the Attestation-Form, 14 applicant while furnishing details and giving answers to Point No.11, answered all sub-clauses of Point No. 11 in "NO". Even while submitting declaration along with Attestation-Form, applicant categorically stated that he furnished all details truly regarding criminal antecedents and if it is found that any false information furnished by him or he has concealed & suppressed any metrical facts then his candidature would be cancelled. On 28.02.2017, Police Verification Report dated 28.02.2017 it was specifically mentioned that Criminal Case is pending for adjudication before the Competent Court against the applicant. On 18.04.2017, the respondents taking into consideration the pendency of criminal case and police verification report dated 28.02.2017, rejected the candidature of the applicant for appointment on compassionate ground. The impugned order dated 18.04.2017 (Annexure-A/1) by which applicant's case for appointment on compassionate ground had been rejected, has not been challenged by the applicant. It is the contention of the respondents that without there being any challenge to basic order, no relief can be extended to the applicant. In support of his contention, he also relied upon the judgment of Hon'ble Supreme Court in the case of Bharat Amratlal Kothari versus Doshukhan Samadkhan Sindhi & Ors., reported in AIR 2010 SC 475.
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11. Applicant was aged about 27 years, when Criminal case was registered against the applicant in the year 2017 i.e. on 17.02.2016. In the criminal case challan (charge-sheet) was filed on 06.07.2016 and at the time of filing challan against the applicant, he remained present before the Court. Therefore, applicant was very well aware about the pendency of criminal case against him. It is the contention of the learned counsel for the respondents that despite having knowledge about the pendency of criminal case, applicant did not disclose the fact of pendency of criminal case in the Attestation-Form, which was submitted in the Month of December, 2016 and he has intentionally concealed and suppressed about pendency of criminal case from Railway administration.
12. Admittedly the criminal trial/case against the applicant was pending before the competent Court at the time of submitting application for appointment on compassionate ground, filling of Attestation Form and even at the time of passing impugned order dated 18.04.2017 by which the applicant's case for appointment on compassionate ground was turned down.
13. It is seen that the Hon'ble Supreme Court in the case of Avtar Singh versus U.O.I. & Ors., Special Leave Petition (C) No.- 20525/2011, decided on 21.07.2016 has categorically held in Para-24 of judgment as under:-
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"24. No doubt it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services."
14. In present case in hand, criminal trial was pending against the applicant (Manish Kumar) on the date of submission of Attestation- Form in the month of December, 2016 and even criminal trial was pending at the time of rejecting candidature of the applicant vide impugned order dated 18.04.2017 (Annexure-A/1).
15. Further, the Hon'ble Supreme Court in the case of Avtar Singh versus U.O.I. & Ors., Special Leave Petition (C) No.- 20525/2011, decided on 21.07.2016 has summarized conclusion in Para-30 of judgment in total 11 points. The Hon'ble Supreme Court in Point (1) of Para-30 held that "Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after 17 entering into service must be true and there should be no suppression or false mention of required information".
16. The ratio decided by the Hon'ble Supreme Court in the case of Avtar Singh versus U.O.I. & Ors., Special Leave Petition (C) No.- 20525/2011 has been subsequently followed by the Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited & Anr. versus Anil Knawariya, Civil Appeal Nos.-5743-5744/2021, decided on 17.09.2021. The Hon'ble Supreme Court in Para-12 of judgment has categorically held that "in case where employee has concealed the criminal antecedents at the time of submission of attestation-form then in such case the choice/option whether to continue or not to continue such an employee always must be given to the employer. It was further held that such an employee cannot claim the appointment and/or continue to be in service as a matter of right"
17. It is also seen that the ratio decided by the Hon'ble Supreme Court in the case of Avtar Singh versus U.O.I. & Ors., Special Leave Petition (C) No.-20525/2011 has been subsequently followed by the Hon'ble Rajasthan High Court in the case of Anil Kumar versus U.O.I., S.B. Civil Writ Petition No.-9051/2018, decided on 21.01.2022. The Hon'ble High Court has relied Para-24 of judgment passed in Avtar Singh's case and held in the last para of judgment 18 that "in case where there had been non-disclosure of a criminal antecedent by the candidate in the application form, it would be sole discretion of employer to decide on the same that whether such candidate is fit or unfit for the service".
18. In the present case the applicant presses hard that his case falls under Point (4) (a) of Para-30 of judgment passed in case of Avtar Singh versus U.O.I. & Ors., Special Leave Petition (C) No.- 20525/2011, decided on 21.07.2016 and prayed for re- consideration of his case in the light of ratio decided by the Hon'ble Supreme Court. In my opinion, the ratio decided in Point (4) (a) of Para-30 is not applicable in case of the applicant as same would be applicable only in that case where "in a criminal case conviction or acquittal had already been recorded before filling the application/verification form and such fact later comes to knowledge of employer".
19. However, in present case, criminal trial was pending against the applicant (Manish Kumar) on the date of submission of Attestation Form in the month of December, 2016 and even criminal trial was pending at the time of rejecting candidature of the applicant vide impugned order dated 18.04.2017 (Annexure-A/1). Therefore, Point (4) (a) of Para 30 is not applicable in the applicant's case.
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20. It is also seen that the applicant has further relied upon order passed by this Hon'ble Tribunal in O.A. No.324/2016 titled as Mool Chand versus U.O.I., decided on 23.02.2017. In that case criminal proceedings against the applicant (Mood Chand) and his family members were dropped on 11.07.2005, whereas, proceedings for appointment on compassionate ground was initiated in the year 2015 and when proceedings for appointment on compassionate ground was initiated at that time no criminal trial was pending. In the present case in hand, criminal trial was pending against the applicant (Manish Kumar) on the date of submission of attestation form in the month of December, 2016 and even criminal trial was pending at the time of rejecting candidature of the applicant vide impugned order dated 18.04.2017 (Annexure-A/1). Therefore, ratio decided by this Hon'ble Tribunal in above mentioned case is not applicable in applicant's case.
21. In view of the discussions made hereinabove, it is clear that there is no ground/reason to interfere with the action of the respondents. Accordingly, the OA lacks merit and is dismissed with no order as to costs.
(ARCHANA NIGAM) MEMBER (A) rss