Central Administrative Tribunal - Delhi
Dariya Singh vs Union Of India on 1 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH NEW DELHI.
O.A. No.1013/2012
New Delhi this the 01st day of March, 2013
Honble Mr. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dariya Singh
Ex-Recruit Constable (Exe.),
No.21949/PTC, PIS No.28109854
R/o Village Brijlal Pura,
Post Jodha Ka Bass,
District Juhnjhunun,
Rajasthan. Applicant
By Advocate: Shri Nitin Kumar Gupta.
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block,
New Delhi .
2. Lt. Governor of Delhi ,
Raj Niwas, Delhi .
3. Commissioner of Police
Police Headquarter,
I.P. Estate, New Delhi.
4. Principal, Police Training College
Jharoda Kalan, New Delhi.
5. Vice Principal,
Police Training College ,
Jharoda Kalan, New Delhi. Respondents
By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat.
O R D E R (ORAL)
By Honble Mr. G. George Paracken, Member (J) :
This is second round of litigation by the Applicant. He has earlier approached this Tribunal vide OA No. 3193/2011 seeking a direction to the respondents to reappoint him to the post of Constable (Executive) Male Delhi Police Recruitment, 2009 with effect from 17.8.2011, i.e., the date of his termination.
2. The brief facts of the case are that the Applicant was appointed as a Constable on 5.7.2010. He was served with a show cause notice dated 12.1.2011 alleging that at the time of filling the application form he did not mention details of the criminal proceedings in column No.15 (a) to (e) and rather mentioned No against each column whereas, according to the police verification report received in Recruitment Cell, Delhi Police from SP/Jhunjhunu (Rajasthan), it was revealed that he was involved in FIR No. 31/2000 under Section 447/435 IPC, PS Chirawa, District Jhunjhunu, Rajasthan. He had thus suppressed his criminal involvement in the application as well as in the attestation form and submitted a false undertaking at the time of seeking appointment. Therefore, he was asked to show cause show cause as to why his services should not be terminated under Rule 5 (1) of Central Civil Services (Temporary Service) Rules, 1965 (Temporary Service Rules 1965 for short).
3. The Applicant replied to the aforesaid show cause notice stating that the fact regarding registration of aforesaid FIR came to his notice only on receipt of show cause notice and not before. After receiving the show cause notice when he contacted the Police Station Chirawa, he came to know that the said FIR was filed on 18.2.2000 on which date he was minor and as such offence under Section 435/447 IPC cannot be attributed to him. Moreover, he has stated that untraced report has already been filed in the said FIR on 7.1.2001 and the same was accepted by the Honble Court. It has also stated that during the investigation of the said case, he has never been called by the police to join the investigation or by the court of law to attend the court proceedings. He was thus unaware about the registration of said false case against him in the Police Station Chirawa. After receiving his reply, the respondents, vide order dated 21.7.2011, withdrew the show cause notice dated 12.1.2011 on administrative grounds. However, immediately thereafter, vide order dated 17.8.2011, he was terminated from service. He had earlier challenged the aforesaid order of termination vide OA No.3193/2011 (supra) before this Tribunal and it was disposed of vide order dated 27.01.2012. By the said order, this Tribunal remitted the case back to the Respondents after quashing the impugned order. The relevant part of the said order is as under:-
7. We have heard both the counsel and perused the pleadings also.
8. Since all the judgments referred to above are of Delhi Police only, these judgments would be available with the respondents. Still it would be relevant to quote the relevant portions which need to be looked into by the respondents before deciding the representation of the applicant. In Government of NCT of Delhi and Another Vs. Amit Kumar (W.P. No. 8929/2009) decided on 12.7.2010, it was held by the Honble High Court of Delhi as follows:-
12. It is thus apparent that the respondent was neither arrested in the aforesaid case nor he was summoned to face the trial. Thus, submissions made by the respondent to the effect that he had not suppressed any material fact while submitting attestation form/undertaking at the time of his appointment as Constable in Delhi Police were rightly accepted by the Tribunal.
13. Even otherwise, merely because a complaint has been filed against an incumbent by arraying him as an accused even though he is neither arrested nor summoned/tried by the concerned Court, and the case comes to an end either by way of withdrawal of the case or on the basis of a final report filed by the police after investigation, to presume that the incumbent was involved in that case would be a misnomer of justice and there is nothing on record to show that he was aware of the pendency of the FIR at the time when he filed his attestation form/undertaking. In this regard, it would be of relevance to take note of the observation made by the Honble Supreme Court in the case of Vidya Charan Shukla Vs. Purshottam Lal Kaushik, AIR 1981 SC 547, wherein the Honble Supreme Court has discussed the effect of acquittal of an accused in a criminal case. The relevant observations are reproduced hereunder:-
Before examining the facts and ratio of Mani Lal's case [1971]1SCR798 it will be worthwhile to notice here a general principle of criminal law bearing on this issue. This principle as re iterated by this Court in Dilip Kumar Sharma's case (at p. 289) 1976 CriLJ184 is as follows:
An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction (for the offence) was quashed by the High Court (in appeal)... 'it killed the conviction not then, but performed the formal obsequies of the order which had died at birth.
14. In the facts of this case, when it is apparent that the respondent was neither arrested nor summoned/tried for his involvement in FIR No.88/2001, and the case was closed by accepting the final report submitted by the police by the concerned Magistrate, wipes out even registration of the FIR itself for all purposes. This tantamounts to annulment of the FIR with retroactive force, i.e., as if it was never registered. In such a case to say that the respondent was involved in that case and suppressed this fact without anything on record to show that he ever came to know about the pendency of that matter or that was with a view to hide his involvement in a case which stood closed, would be travesty of justice. We, therefore, find no reason to interfere with the order passed by the Tribunal. The writ petition is accordingly dismissed.
Similarly in Government of NCT of Delhi and Others Vs. Jitender Kumar (W.P. NO. 8385/2002) decided on 20.12.2007 Honble High Court of Delhi had observed as follows:-
11. We may remark here that where the case is pending at the time of filling up of the form, position would be different and in case a candidate conceals such an information or provides wrong information, the candidature or even the appointment can be cancelled {See Sanjay Kumar Bajpai v. Union of India, 1997 II AD SC 704}. Similarly, where the prosecution, though resulted in acquittal, was for an offence which otherwise involves moral turpitude, it may be necessary to mention particulars of such a case as that may be a relevant consideration to adjudge the conduct or character of a candidate to be appointed to a service even when such a prosecution resulted in acquittal, inasmuch as, it would provide information about the antecedents of the candidate {See Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar, JT 1996 (10) SC 34}. However, where the offence with which the candidate was charged was petty offence not involving moral turpitude and it has resulted in acquittal as well and going by the petty nature of the offence if such a factor is not material enough to deny appointment to a candidate, non-disclosure thereof shall not be a ground to terminate his services.
It would also be relevant to refer to the latest judgment of Honble Supreme Court in the case of Commissioner of Police and Others Vs. Sandeep Kumar reported in 2011 (4) SCC 644 wherein it has been held as under:-
We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
9. Following the above judgment, even Honble High Court of Delhi in the case of Rajesh Kumar Vs. Commissioner of Police and Another in Writ Petition No.8223/2011 decided on 22.11.2011 has held as follows:-
We are of the opinion that the Tribunal has erred in appreciating the dicta of the Apex Court in Sandeep Kumar (supra) and in not following the same. The Apex Court by the said judgment had affirmed the judgment of the Division Bench of this Court reported as Sandeep Kumar Vs. Commissioner of Police (2006) 90 DRJ 707. The Division Bench held that though there could be no denying that there should be a complete and honest disclosure of all questions but the same would not prevent the authorities and the Courts from condoning the non disclosure or false disclosure, whether it be on account of bona fides or extenuating circumstances. It was further held that the pleas of inadvertent and / or bona fide mistakes in non disclosure or wrongful disclosure and of the concealment being not willful also have to be considered. It was yet further held that in view of acquittal following compromise in the criminal case, the applicant could not be said to be having any reason for withholding the information especially if the incident did not involve any moral turpitude or grave offence and / or was not demonstrative of any propensity to crime. The Supreme Court besides affirming the aforesaid propositions further added that the age at the time of the incident also has to be considered. It was observed that indiscretions committed in youth can be condoned and owing to such indiscretion or minor offences, a young man cannot be branded as a criminal for all his life. It was yet further held that wisdom as in Morris Vs. Crown Office (1970) 2 QB 114 ought to be displayed in such matters. The test of seriousness of the offence committed and which was concealed was also evolved.
7. The hard reality cannot also be lost sight of. A disclosure of the FIR, even if leading to acquittal, invariably leads to rejection of the application. The applicants thus cannot be blamed for shying away from making such disclosure and / or from indulging in concealment for fear of rejection at the threshold only without even having any opportunity to explain. We may in this regard also notice that the Policy For Deciding Cases of Candidates Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing Trial or Acquitted) has been framed vide Standing Order No.398/2010 dated 23.11.2010. The said Policy also provides that even where the disclosure has not been made in the application form and the facts are discovered on verification, the case is required to be referred to the Screening Committee to assess suitability for appointment. The concept of minor offences and / or offences not involving moral turpitude has also been evolved. The same indicates that the respondents have themselves accepted the judgment of the Apex Court in Sandeep Kumar (supra). The Tribunal has thus erred in ignoring the dicta in Sandeep Kumar and in blindly following the earlier judgments in Daya Shankar Yadav and Ram Ratan Yadav (supra) when the judgment in Sandeep Kumar was an advancement in law.
8. We may even otherwise observe that the principle of precedents also require the Tribunal to test the case of the petitioner in terms of the judgment in Sandeep Kumar which was later in point of time and had evolved exceptions out of the law earlier laid down in Daya Shankar Yadav and Ram Ratan Yadav. It was not for the Tribunal to ignore the latest dicta and to decide the lis following the earlier judgments holding that the same had not been noticed in the latest dicta. The Supreme Court in Director of Settlements, A.P. Vs. M.R. Apparao (2002) 4 SCC 638 held that the decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or were not brought to notice of the Court; that when the Supreme Court decides a principles it would be the duty of the High Courts or the Subordinate Courts to follow the decision of the Supreme Court.
10. In view of above judgments, Division Bench of this Tribunal has also remitted the matter back after quashing the impugned order to decide the case in the light of judgment of Rajesh Kumar.
11. From above, it is clear that the issue is being looked at from a different angle now, therefore, the authorities need to look into all the aspects before deciding the representation finally, therefore, at this stage, if any comment is made by us, that would amount to prejudging the issue because respondents have stated that the representation is still pending with the competent authority, i.e., the Commissioner of Police, therefore, the case needs to be remanded back to the respondents with directions to decide the representation of the applicant.
12. There is yet another reason why the impugned order needs to be relooked by the appellate authority viz. Commissioner of Police. In the show cause notice given to the applicant, he was asked to explain why his services should not be terminated for having concealed the fact of involvement in a criminal case which was explained by the applicant but no order was passed on the said show cause notice. On the contrary, show cause notice was withdrawn. The applicant was terminated under Rule 5 (1) of CCS (Temporary Service) Rules, without giving any reason. Now, in the counter affidavit, respondents have taken another ground for justifying the termination of applicant on the ground that the applicant had cheated the Board of Secondary Education, Rajasthan deliberately and prepared bogus and fake documents in order to get employment though he was overaged.
13. If that is the reason of termination, applicant should have been given a show cause notice so that he could have explained the facts. No such show cause notice seems to have been given to the applicant with this allegation as there is no such mention in the counter affidavit.
14. In view of above, this OA is disposed of at the admission stage itself with a direction to the Commissioner of Police to consider all the points as referred to above and decide the appeal of the applicant within 2 weeks from the date of receipt of a copy of this order under intimation to the applicant. No order as to costs.
4. Pursuant to the aforesaid directions, Respondents have passed the impugned order dated 21.02.2012 and the same is reproduced as under:-
OFFICE OF THE COMMISSIONER OF POLICE: DELHI Subject:- Representation submitted by Ex-Ct. Dariya Singh, No.21949/PTC PIS No.23109854 against the termination of his services by Vice-Principle/PTC vide order dated 17.08.2011.
*************** Reference your office Memo No.818/SIP-PTC dated 09.02.2012, on the subject cited above.
Services of Rect. Constable Dariya Singh, No.21949/PTC were terminated by Vice-Principal/PTC vide order dated 17.08.2011 on the allegations that he deliberately did not disclose the facts regarding his involvement in case FIR No.31/2000 u/s 447/335 IPC PS Chirawa, Distt. Jhunjhunu (Rajasthan) and also submitted a false undertaking at the time of obtaining offer of appointment letter that he was not involved in any criminal case and succeeded in joining the department by adopting deceitful means despite clear instructions given at the top of application as well as aattestation form. Further, he also deliberately prepared bogus educational documents in order to get employment in Delhi Police though he was overage.
The above facts came to notice only after one Harnath Singh, Retd. Education Officer, Rajasthan sent a written complaint, the same were got enquired into which revealed that the Ex-Constable had passed matric twice once in 1999 and again in 2003 by showing date of birth as 08.07.1981 and 01.01.1986 respectively in order to appear in the selection process by deliberately lowering his age despite the fact that he was overage for recruitment as Constable (Exe.) in Delhi Police.
Subsequently, his services were terminated by Vice-Principal/PTC under rule 5(i) of CCS (Temporary Services) Rules, 1965. Against termination of his services, Ex. Ct. Dariya Singh submitted a representation on 2__.08.2011 and also simultaneously filed OA No. 3193/2011 in Honble CAT. His representation was kept pending till the decision of the OA by the Ld. Tribunal.
Ld. Tribunal vide order dated 27.01.2012 disposed off the OA with the direction that CP, Delhi shall consider all the points as referred to above (judgment) and decide the representation of the applicant within two weeks. As directed by Honble CAT, the representation of Ex.Ct. Dariya Singh has been examined and no merit has been found. Hence, the same has been rejected and the representationist may be informed accordingly.
Sd/-
(ISHWAR SINGH) Dy. Commissioner of Police Establishment, Delhi.
P/PTC, Jharoda Kalan, New Delhi Encl: As above.
No. XIII/11(2)/2011/1151/Rectt. Ce.. (AC-VIII)/PHQ Dated 21/2/12.
5. The Applicant has challenged the aforesaid impugned order in this Original Application. According to him the order dated 17.08.2011 passed under Rule 5 (1) of the Temporary Service Rules, 1965, terminating his service was issued in violation of the principles of natural justice, i.e., without affording him an opportunity to defend himself and also without giving any reasons particularly when he was already served with the show cause notice dated 12.01.2011 issued by the Respondent No.4, i.e., Principal of the Police Training College and the reply was also submitted. He has also argued that when show cause notice was withdrawn after receipt of his reply, at least the respondents ought to have taken into consideration his submissions in the reply to the said show cause notice wherein he has explained the circumstances in which the knowledge regarding registration of the FIR against him was not available with him and that was the reason the details about it was not mentioned in the application/attestation forms. He has also stated that the Respondents failed to take into consideration the final report in FIR No.31/2000 in which the Applicant was alleged to be named, as untraced and the court has accepted the same.
6. The learned counsel for the Applicant has also submitted that as the respondents have failed to take into consideration of the pleas/grounds taken by him in the earlier OA No. 3193/2011 (supra) filed by him and the order of this Tribunal dated 27.01.2012 passed therein.
7. The Respondents have filed their reply stating that the Applicant being a Temporary Government servant and probationer could be terminated from service in accordance with the Temporary Service Rules, 1965. They have also stated that the show cause notice dated 21.07.2011 issued to him was withdrawn and his services were terminated in accordance with sub-rule (1) of Rule 5 of Temporary Service Rules, 1965. Thus, there was no need for giving any reasons for termination of his service in accordance with sub-rule (4) of Rule 5 of Temporary Service Rules, 1965 which reads as under:-
When action is taken under Rule 5 to terminate the service of a temporary employee, the order of termination, which should be passed by the appointing authority, should not mention the reasons for such termination.
8. We have heard the learned counsel for the Applicant, Shri Nitiin Kumar Gupta and the learned counsel for the Respondents, Shri N.K. Singh for Mrs. Avnish Ahlawat. As already stated above, this is second round of litigation by the Applicant. Initially, the Applicant was served with the notice dated 12.01.2011 to show cause as to why his services should not be terminated under Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 for the following reasons:-
At the time of filling of Application Form for the above mentioned post he did not mention detail of the criminal proceeding in column No.15 (a) to (e) and mentioned No against the each column. In the beginning of the application form for the post of Const. (Exe.) Male in Delhi Police 2009 in the column of warning, it has been clearly mentioned that furnishing of false information or suppression of any factual information in the application form would be disqualification for the job. Also, at the time of filling up of attestation form, he did not disclose any details of the criminal involvement in column 11(b). The police verification report received in Recruitment Cell, Delhi Police from SP/Jhunjhunu (Rajasthan), revealed that a case FIR No. 31/2000 dated u/s 447/435 IPC, PS Chirawa, District Jhunjhunu (Rajasthan) was registered against him. Thus, he had suppressed his criminal involvement in application as well as in attestation forms. Besides, he had also submitted a false undertaking at the time of obtaining the offer of appointment letter and succeeded in joining the department by adopting deceitful means. The concealment of facts regarding involvement in a criminal case at initial stage clearly reflects his malafide.
The Applicant submitted the Annexure A-4 reply to the said show cause notice. He fully explained reasons as to why he did not mention the details of criminal proceedings against him in column No.15(a) to (e) of the Application Form. The Respondents after receipt of the said reply decided not to proceed with the proceedings. Rather, the Respondents on their own withdrew the said show cause notice vide order dated 21.07.2011. In our considered view, since there were allegations against the Applicant who has already been enrolled as a Constable in Delhi Police and he has been served with a show cause notice containing those allegations and he replied to them, the proceedings should have been brought to a logical conclusion declaring that the allegation made in the show cause notice was unfounded or the same was proved and the Applicant was found guilty. By simply withdrawing the show cause notice after receipt of the reply without taking any action on it, itself is a perverse action on the part of the respondents as the stigma on the Applicant contained in the show cause notice has been neither confirmed nor removed. However, in an arbitrary manner, the Respondents have, later on, invoked the provisions contained in Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and finally terminated him from service w.e.f. 17.08.2011.
9. This Tribunal, after detailed examination of the case, did not find the action of the Respondents terminating his service was proper. This Tribunal in its order dated 27.01.2012 referred to a number of judgments of the Apex Court, High Court of Delhi and the orders of the Co-ordinate Benches of this Tribunal itself in similar circumstances wherein it was held that termination of the services of the Constables in question were unwarranted. Therefore, the Tribunal remitted the case back to the Respondents after quashing the impugned order and to decide the case afresh. This Tribunal specifically directed the Respondents that they should take into consideration the earlier orders of the Honble High Court of Delhi in Government of NCT of Delhi and Another Vs. Amit Kumar (W.P. No. 8929/2009) decided on 12.7.2010 (supra), Government of NCT of Delhi and Others Vs. Jitender Kumar (W.P. No. 8385/2002) decided on 20.12.2007 (supra), Rajesh Kumar Vs. Commissioner of Police and Another in Writ Petition No.8223/2011 decided on 22.11.2011 (supra) and of the Apex Court in the case of Commissioner of Police and Others Vs. Sandeep Kumar 2011 (4) SCC 644 (supra). But in total violation of the aforesaid direction, the Respondents did not consider any of the case laws but simply rejected the Applicants case vide the impugned order dated 21.02.2012 stating that they did not find any merit in it. It is seen that The Respondents have just not bothered to look into those judgments at all. In fact, what the then Deputy Commissioner of Police (Establishment) stated in the impugned order is that the representation of Ex. Ct. Dariya Singh has been examined and no merit has been found. Hence, the same has been rejected and the representationist may be informed accordingly.
10. We are, therefore, constrained to consider the case of the Applicant once again. FIR 31/2000 filed against the Applicant was under Section 447 and 435 of IPC. Section 447 of IPC deals with the offence of criminal trespass which is a bailable offence and the maximum punishment is imprisonment for 3 months or fine of Rs.500/- or both. Section 435 of IPC deals with Mischief by fierce or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produe) ten rupess Whoever commits mischief by fierce or explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards [or (where the property is agricultural produced0 ten rupees or upwards]. It is a bailable offence and the maximum punishment is imprisonment for 7 years and fine. According to the affidavit filed by the Applicant in the OA, he is 26 years old as on March, 2012. Obviously, in the year 2000, he could have been only 13 years old and he was a minor. In fact the criminal court did not proceed with the case at all. As the police filed an untraced report, it was accepted by the criminal court. In the earlier round of litigation by the Applicant, the coordinate Bench of this Tribunal held that the Applicants case was similar to the facts in W.P. 8929/2009 Government of NCT of Delhi and Another Vs. Amit Kumar (supra), Commissioner of Police Vs. Sandeep Kumar 2011 (4) SCC 644 (supra), CWP 8223/2011 Rajesh Kumar Vs. Commissioner of Police and Another etc. The said Bench has, therefore, directed to have a look in the matter in view of the aforesaid judgments. The Respondents in an arbitrary manner, without assigning reasons, rejected the case as the one having no merit.
11. In our considered view, the entire approach of the respondents-department in this case, particularly that of the Deputy Commissioner of Police Shri Ishwar Singh is not only negative but also irresponsible. When a direction is given by the court, it has to be complied with in its true letter and spirit and not in any other manner. We have seen that the respondents have issued the impugned order in total disregard of the Tribunals directions. Therefore, we have no hesitation to hold that the said order is quite arbitrary and perverse. We also hold that the Applicants case is squarely covered by the case of Rajesh Kumar (supra).
12. In view of the above position, we quash and set aside the impugned orders dated 17.08.2011 of the Respondents terminating the service of the Applicant w.e.f. 17.08.2011 and their subsequent order dated 21.02.2012 arbitrarily rejecting his case again even after remitting it back to them. Consequently, the Respondents shall reinstate the Applicant forthwith with, with retrospective effect from the date of his termination from service, i.e., 17.08.2011 with all consequential benefits. In the above facts and circumstances of the case and in the interest of justice, the Applicant shall also be entitled for a cost of Rs.5000/-. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order.
13. However, as observed by this Tribunal in its earlier order dated 27.01.2012, since the Respondents have taken another ground that the Applicant had cheated the Board of Secondary Education, Rajasthan deliberately and prepared bogus and fake documents in order to get employment though he was overaged justifying his termination from service, they are at liberty to take action against him following principles of natural justice.
14. OA stands disposed of with the above directions. There shall be order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh