Central Administrative Tribunal - Allahabad
Satish Kumar vs Railway Recruitment Board on 29 May, 2023
O.A. No. 793/2016
(Reserved on 25.5.2023)
Central Administrative Tribunal, Allahabad Bench, Allahabad
****
Original Application No. 793/2016
This the 29th day of May, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Satish Kumar son of Krishna Prasad, resident of village Chaderu
Chaukatha, Post Jigna, District-Mirzapur
......Applicant
By Advocate: Sri P.K.Vishwakarma
Versus
1. Union of India through the Secretary, Ministry of Railway, New
Delhi.
2. The Railway Board, New Delhi through its Chairman.
3. The Railway Recruitment Cell, North Central Railway,
Allahabad through its Chairman.
...Respondents
By Advocate: Sri A.K. Rai
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
i) To quash the provisional panel for EMP Notice No. 1/23 in respect of applicant bearing roll No. 2420971495 passed by respondent No. 3.
ii) To issue order, Rule or direction to the respondents to treat the applicant handicapped /viklang and select him for the aforesaid post in accordance with law.
iii) To issue any other order, rule or direction to which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.Page 1 of 10 O.A. No. 793/2016
iv) To award cost of this litigation in favour of the applicant against the respondents.
2. The brief facts emerges from the O.A. are that in pursuance of the advertisement No. 1/2013, applicant applied under Viklang/ Handicapped quota and declared successful in the written examination under handicapped category. In pursuance of the letter dated 3.2.2015, applicant appeared for document verification of persons with disability test at RRC Allahabad on 2.3.2015 but RRC, North Central Railway, Allahabad issued provisional panel for EMP notice 1/2013 of applicant on internet showing the status of the applicant cancelled and remark not PWD, meaning thereby not person with disability. Applicant challenged the same in the present O.A.
3. Per contra, learned counsel for the respondents filed Counter Affidavit, in which it is stated that in pursuance of the employment notice No. 1/2013 dated 27.7.2013, applicant had appeared in the examination. In the application form, applicant given declaration that "I hereby declare that all the statement made in this application are true, complete and correct to the best of my knowledge and belief. In the event of any information being found false or incorrect or myself being not eligible in terms of eligibility criteria during the selection/ any part of the recruitment, my candidature/ appointment is liable to be cancelled/terminated without any notice at any stage even after empanelment." Applicant has applied under PH candidate under VH category but during document verification, it was fund that he has submitted PWD certificate under OH category of RRC, hence he was not considered by the competent authority for appointment on Group D post against En No. 1/2013 and his candidature was shown as cancelled on official website of RRC.
4. Heard the learned counsel for the parties.
5. Submission of the learned counsel for the applicant is that at the of submitting the application form, he has applied Page 2 of 10 O.A. No. 793/2016 under handicapped quota of V.H. and he was handicapped by neck but after regular treatment of neck, his neck became well but on account of that his left upper arm became handicapped as such he remained handicapped. Therefore, he should have been treated as handicapped.
6. Learned counsel for the respondents submitted that applicant has applied as PH candidate under VH category but in duration of document verification, it was fund that he has submitted PWD certificate under OH category of RRC, meaning thereby not person with disability. Hence his candidature was cancelled.
7. We have considered the rival submissions of the parties and have gone through the entire record.
8. From perusal of record, it is evident that applicant has applied under Physically Handicapped quota but during document verification, he has submitted PWE certificate. In the application, he has marked V.H. as yes, meaning thereby vocally handicapped but in the O.A., applicant has stated that he was suffering from neck problem and after treatment, his neck became cured and his left upper arm has become handicapped, is not acceptable because applicant has not produced any handicapped certificate in this effect. Applicant has given wrong information in the application form. It is settled law that when a candidate suppress material information and /or gives false information, he cannot claim any right for appointment or continue in service.
9. In the case of Rajasthan Rajya Vidyut Prasaran Nigam Ltd and another Vs. Anil Kanwariya (Civil Appeal Nos.) 5743-5744 of 2021 decided on 17.9.2021, Hon'ble Supreme Court observed as under:-
"8.1 In the case of Secretary, Department of Home Secretary Vs. B. Chinnam Naidu , 2005 (2) SLJ 233 this Court has observed that the object of requiring information in the attestation form and the declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to Page 3 of 10 O.A. No. 793/2016 enter into or continue in service. It is further observed that when a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.
8.2 In the case of Devendra Kumar Vs. State of Uttrakhand (2013) 9 SCC, 363 while joining the training, the employee was asked to submit an affidavit giving certain information, particularly, whether he had ever been involved in any criminal case. The employee submitted an affidavit stating that he had never been involved in any criminal case. The employee completed his training satisfactorily and it was at this time that the employer in pursuance of the process of character verification came to know that the employee was in fact involved in a criminal case. It was found that the final report in that case had been submitted by the prosecution and accepted by the Judicial Magistrate concerned. On the basis of the same, the employee was discharged abruptly on the ground that since he was a temporary government servant, he could be removed from service without holding an enquiry. The said order was challenged by the employee by filing a writ petition before a Single Judge of the High Court which was dismissed. The Division Bench upheld that order, which was the subject matter of appeal before this Court. Dismissing the appeal, this Court observed and held that the question is not whether the employee is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged. It is further observed by this Court in the said decision that where an applicant/employee gets an order by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal". It is further observed and held that dishonesty should not be permitted to bear the fruit and benefit those persons who have defrauded or misrepresented themselves and in such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. The relevant observations in the said decision are in paras 12, 13, 18 & 25, which are as under:Page 4 of 10 O.A. No. 793/2016
12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." [Vide S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1:
AIR 1994 SC 853.] In Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502: (1956) 1 ALL ER 341 (CA)] the Court observed without equivocation that: (QB p. 712) "...
No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, observed as under:
(M. Bhaskaran case, SCC p. 104, para 6) If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer.
25. More so, if the initial action is not in consonance with law, the subsequent conduct of party cannot sanctify the same. Sublato fundamento cadit opus - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his Page 5 of 10 O.A. No. 793/2016 own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum caprere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. [Vide Union of India v.
Major General Madan Lal Yadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC (Cri) 1056.] Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur).
8.3 In the case of Jainendra Singh Vs. State of U.P. 2012(3) SLJ 289, this Court summarised the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of facts by candidates/appointees as under:
(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
(v) The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.Page 6 of 10 O.A. No. 793/2016
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
8.4 In the case of Daya Shankar Yadav Vs. UOI 2011(2) SLJ 156, this Court had an occasion to consider the purpose of seeking the information with respect to antecedents. It is observed and held that the purpose of seeking the information with respect to antecedents is to ascertain the character and antecedents of the candidate so as to assess his suitability for the post. It is further observed that when an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can lead to any of the following consequences:
"(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would Page 7 of 10 O.A. No. 793/2016 not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non-disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above."
Thereafter, it is observed and held that an employee can be discharged from service or a prospective employee may be refused employment on the ground of ........suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).
8.5 In the case of State of M.P. Vs. Abhijit Singh Pawar (2018) 18 SCC 733, when the employee participated in the selection process, he tendered an affidavit disclosing the pending criminal case against him. The affidavit was filed on 22.12.2012. According to the disclosure, a case registered in the year 2006 was pending on the date when the affidavit was tendered. However, within four days of filing such an affidavit, a compromise was entered into between the original complainant and the employee and an application for compounding the offence was filed under Section 320 Cr.P.C. The employee came to be discharged in view of the deed of compromise. That thereafter the employee was selected in the examination and was called for medical examination. However, around the same time, his character verification was also undertaken and after due consideration of the character verification report, his candidature was rejected. The employee filed a writ Page 8 of 10 O.A. No. 793/2016 petition before the High Court challenging rejection of his candidature. The learned single Judge of the High Court of Madhya Pradesh allowed the said writ petition. The judgment and order passed by the learned single Judge directing the State to appoint the employee came to be confirmed by the Division Bench which led to appeal before this Court. After considering catena of decisions on the point including the decision of this Court in the case of Avtar Singh (supra), this Court upheld the order of the State rejecting the candidature of the employee by observing that as held in Avtar Singh, even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate. After reproducing and/or re-considering para 38.5 of the decision in the case of Avtar Singh (supra), in paragraph 13, this Court observed and held as under:
13. In Avtar Singh (supra), though this Court was principally concerned with the question as to non-
disclosure or wrong disclosure of information, it was observed in para 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.
In the said decision, this Court also considered the conduct on the part of the employee in getting discharge on the basis of the compromise which was obtained within a period of four days of filing the affidavit/disclosure. In paragraph 14, it is observed and held as under:
14. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) of CrPC, the law declared by this Court in Mehar Singh (2013) 7 SCC 685, specially in paras 34 and 35 completely concludes the issue.
Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable Page 9 of 10 O.A. No. 793/2016 acquittal or was merely on the ground of benefit of doubt or as a result of composition.
9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the impugned order passed by the Division Bench dismissing the appeal and confirming the order passed by the learned single Judge quashing and setting aside the order of termination terminating the services of the employee on the ground of non-disclosure/suppression of material fact and filing a false declaration and directing the appellants to reinstate the respondent- employee is unsustainable.
10. Apart from the fact that at the time when the respondent applied in the month of October/November, 2013 though he was already convicted by the competent court and was given the benefit under Section 3 of the Act 1958 only, he did not disclose his conviction, but even at the time when he filed a declaration on 14.04.2015 he filed a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law and relying upon such a declaration the appellants gave him appointment. Only on police verification/receipt of the antecedent's report from the Superintendent of Police, Sawai Madhopur, the appellants came to know about the conviction of the respondent. Therefore, appellants were absolutely justified in terminating the services of the respondent."
10. Since the applicant has given false information in his application form, hence we are of the view that O.A. lacks merit and deserves to be dismissed.
11. Accordingly, O.A. is dismissed.
12. There shall be no order as to costs.
13. All associated M.As are disposed of accordingly.
(Mohan Pyare) ( Justice OM Prakash VII)
Member (A) Member (J)
HLS/-
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