Delhi District Court
Sh. Mahesh Kumar (Driver Badge No. ... vs ) M/S. Delhi Transport Corporation on 12 April, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII, ROOM NO. 514 :
DWARKA COURTS: NEW DELHI
LIR 3415/17
In the matter of:
Sh. Mahesh Kumar (Driver Badge No. 25360)
S/o Sh. Baney Singh, Aged 47 years,
R/o House No. 352E/6, Village Munirka,
P.O. JNU, New Delhi110067
Mobile No. 9953056621
..............Workman
Versus
1) M/s. Delhi Transport Corporation
DTC Headquarter, I.P. Depot, I.P. Estate,
New Delhi110002
(through its ChairmancumManaging Director)
............. Management
DATE OF INSTITUTION : 05.12.2017
DATE ON WHICH AWARD RESERVED : 11.04.2018
DATE ON WHICH AWARD PASSED : 12.04.2018
A W A R D :
1. Vide Order No.F.24(201)/17/Ref./CD/Lab./10491053
dated 29.11.2017, issued by Government of NCT of Delhi, a
reference was sent to this Court with the following terms:
"Whether the termination of Sh. Mahesh Kumar
S/o Sh. Baney Singh Age 47 years from services by
the management vide order No. VVD/A1(T)/Misc
LIR No.3415/17 Page 1 of 21
230/2012/5935 dtd. 03.12.2012 is illegal and/or
unjustified and if so, to what relief is he entitled
and what directions are necessary in this
respect?"
2. Claimant's case is that he was appointed Driver by
management vide appointment letter dated 13.01.2011 after
successful written and medical examination conducted by Delhi
Subordinate Services Selection Board and was posted in
Millennium Depot no. 4. A false FIR No. 679/2003 under section
279/338 IPC was registered against him in PS R K Puram, New
Delhi in which he was acquitted vide judgment dated 15.07.2011. In
character verification form dated 13.01.2012, he was to mention in
column no. 12 about any criminal trial faced by him or pending and
if convicted, he was required to mention the case number and
details of punishment. He was issued a memo dated 03.05.2012 by
the management on the ground that he had withheld correct
information from it. The memo was replied vide letter dated
10.05.2012 mentioning that when the character verification form
was filled up, no criminal case was pending against him. Copy of
judgment dated 15.07.2011 was furnished to the concerned police
official but it failed to update its record. He had further mentioned
in reply that due to lack of legal knowledge, he could not
understand the contents of character verification form correctly.
Despite it, the management issued him a charge sheet dated
LIR No.3415/17 Page 2 of 21
20.07.2012 which was replied but the same was not taken in proper
perspective and a domestic inquiry was conducted which
was not more than an eye wash and against the principles of natural
justice. He was not told by the inquiry officer about the implication
of charges. Rather, the inquiry officer had told him that the charge
was minor one and if he admitted the same, only minor punishment
shall be imposed. Hence, upon his advice, he admitted the charge,
who, had not explained him the procedure of the inquiry. He was
not given assistance of any coworkman. The inquiry was
completed only in one day. He was held guilty and hence, the
management had issued him a show cause notice dated 21.11.2012
proposing the imposition of punishment of termination from the
services. The show cause notice was issued under office order
dated 26.10.2012 which was not applicable to him because he was
appointed quite earlier vide letter dated 08.03.2011 and the CVR
form was also filled up on 13.01.2012. The show cause notice was
replied vide letter dated 29.11.2012 stating that he had been
acquitted by the criminal court. He had requested the management
to consider his case favorably because it had been held by Apex
Court in several judgments that where the employee has not given
the information of his involvement in minor offence and/or
ultimately he had been acquitted, the employer should consider his
case sympathetically and retain him in service. Moreover, the
LIR No.3415/17 Page 3 of 21
circular dated 05.08.1955, under the heading of Executive
instructions on procedure regarding disciplinary action and appeal,
had been issued by the management, in which, it is mentioned that
conviction of an employee in criminal cases does not automatically
involve removal from service and each case should be considered
on its merit by the competent authority. The management had
issued other office orders dated 08.04.1968 and 28.08.2012 which
provided that the criminal cases in which the employee had been
acquitted or fined for petty offences prior to his appointment,
punishment of warning, reprimand or censure can be imposed on
the employees. The management did not consider these circulars
and his reply dated 29.11.2012 and terminated his services vide
order dated 03.12.2012 under clause 9(a)(i) of DRTA against which
he had filed an appeal on 13.12.2012 to the Appellate Authority i.e.
Regional Manager (South), Vasant Vihar Depot, New Delhi. A
noting was given by the Appellate Authority that the punishment
imposed upon the workman was very harsh but his file was not put
up before the CMD of the management and rather, it was assigned
to Deputy Chief General Manager (Operation) who was not his
Appellate Authority. The proper Appellate Authority was Regional
Manager (South) as he used to work under the administrative
control of Regional Manager (South). The appeal lied with CMD,
only when his Appellate Authority had rejected the appeal. The
LIR No.3415/17 Page 4 of 21
appeal was dismissed by Deputy Chief General Manager
(operations) on 01.07.2016 and then he filed a case before
Conciliation Officer which remained unresolved. He is unemployed
since termination of service.
3. Written statement is to the effect that the claimant has
concealed the factum of his involvement in criminal case. He did
not disclose that fact at the time of appointment and hence,
appointment letter dated 04.03.2011 was wrongly issued to him
because he was acquitted under section 279/338 IPC only on
15.07.2011. He did not disclose in column no. 12 of CVR form that
a criminal case of negligent driving and causing hurt was ever
registered against him. As per terms and conditions of his
employment, his service can be terminated at any time. Despite it,
the management had issued him charge sheet dated 20.04.2012
which was received by him against signatures on 24.07.2012. He
had replied the charge sheet by annexing copy of judgment of
criminal court dated 15.07.2011. The reply was not satisfactory and
hence, domestic inquiry was conducted and he was given
opportunity to defend the allegations but he admitted the charge and
hence, he was held guilty. After receipt of inquiry report, the
management had issued him a show cause notice dated 21.11.2012
as per circular dated 28.10.2012. Reply to the show cause notice
LIR No.3415/17 Page 5 of 21
was not satisfactory and hence his service was terminated vide letter
dated 03.12.2012. His antecedents were sent to the police for
verification which intimated the management that he was involved
in FIR No. 679/2003 under section 279/338 IPC registered in PS
RK Puram, Delhi.
4. Following issues were framed on 19.01.2018:
1. Whether the enquiry conducted by the management is not fair
and proper? OPW.
2. In terms of reference.
3. Relief.
5. In order to get declared enquiry proceeding invalid, the
claimant tendered his affidavit in evidence as Ex. WW1/A
mentioning all the facts stated in statement of claim. He relied upon
following documents:
1. Ex.WW1/1 is copy of letter dated 03.05.2012 issued by
management to claimant.
2. Ex.WW1/2 copy of reply dated 10.05.2012 of letter dated
03.05.2012.
3. Ex.WW1/3 is copy of charge sheet dated 20.07.2012.
4. Ex.WW1/4 is copy of reply to charge sheet.
5. Ex.WW1/5 is copy of show cause notice dated 21.11.2012.
6. Ex.WW1/6 is copy of reply to show cause notice dated
21.11.2012.
LIR No.3415/17 Page 6 of 21
7. Ex.WW1/7 is copy of letter dated 26.11.2012 issued by
management to claimant.
8. Ex.WW1/8 is copy of reply dated 26.11.2012 to show cause
notice dated 21.11.2012.
9. Ex.WW1/9 is copy of termination letter dated 03.12.2012.
10. Ex.WW1/10 are copies of note prepared by R M South dated
01.03.13.
11. Ex.WW1/11 is copy of order dated 01.07.16 passed by
deputy CGM of management.
6. On enquiry issue, the management examined enquiry
officer Mr. Jagdish Prasad as MW1 who deposed that he had
conducted the inquiry on 12.09.2012. The claimant had participated
in the inquiry. At the very outset, the charge sheet was read over
and explained in vernacular language and thereafter he was asked
whether he was admitting the charges. He admitted the charge
saying that he had filled up the CVR Form by not mentioning the
correct details in column no. 12 thereof. He further deposed that
claimant was given opportunity to take help of a coworker but he
refused. He concluded the inquiry by holding him guilty. Copy of
inquiry proceedings was given to him against signatures. He relied
up on the following documents.
I. Ex.MW1/1 is the copy of letter dated 16.01.2012.
II. Ex.MW1/2 is the copy of letter dated 29.03.2012.
III. Ex.MW1/3 is the copy of letter dated 03.05.2012.
LIR No.3415/17 Page 7 of 21
IV. Ex.MW1/4 is the copy of letter dated 17.08.2012.
V. Ex.MW1/5 is the legible and certified copy of inquiry report.
He has also relied upon the documents which were
confronted to the claimant in cross examination in the form of
Ex.WW1/M1 to Ex.WW1/M7.
Issue No.1:
7. This issue has already been decided in favour of
management and against claimant by this court vide order dated
03.04.2018 holding that the Enquiry Officer had not violated any
principle of natural justice and his report is not suffering from any
perversity.
Issue No. 2:
8. Ld. ARW argued that appointment letter dated
04.03.2011 was issued to claimant pursuant to which he joined on
08.03.2011. He had filled up CVR form on 13.11.2012. He
admitted that criminal case arising out on FIR No. 679/03 U/s
279/338 IPC was still pending when he had joined management.
But he was acquitted by Ld. Metropolitan Magistrate on
15.07.2011. He filled up CVR form on 13.01.2012 and that is why,
he did not mention in the CVR form that any case was pending
against him. He was ignorant and that is why, he mentioned that no
LIR No.3415/17 Page 8 of 21
criminal case was ever registered against him. He submitted that
claimant has already been acquitted by criminal court and hence,
the management should have taken that fact into account before
terminating his service because termination is disproportionate to
the proved misconduct.
Ld. ARM argued that claimant had furnished false
information in CVR form. He did not mention that case U/s
279/338 IPC was still pending against him when he had joined in on
08.03.2011. Had he mentioned those facts, the management would
not have appointed him because case for rash and negligent driving
was still pending against him.
9. The claimant was offered the post of Driver on
13.11.2011 vide appointment letter Ex.WW1/M3 mentioning that
his service would be governed by conditions as embodied in the
DRTA (Conditions of Appointment & Service) Regulations, 1952.
He had furnished verification form Ex.WW1/M5 which contains
clause No. 12 in which he was required to mention whether any
criminal case was registered or pending against him in the court or
not. He had mentioned the words "No, No, No". It means that no
criminal case, as per claimant, was ever registered against him. It is
the case of both the parties that claimant had joined on 08.03.2011
and on the same day, his probation period of two years had started.
LIR No.3415/17 Page 9 of 21
It is the admitted case of claimant that a criminal case arising out of
the FIR No. 679/2003 under Section 279/338 IPC PS R.K. Puram
was pending against him when he joined management.
10. The management had conducted domestic enquiry
against the claimant for concealing the material information. He
had made statement dated 12.09.2012 before the Enquiry Officer
that he was admitting the charge and that he had made mistake due
to ignorance and that the case be disposed off.
Statement of the claimant before Enquiry Officer
shows that he had admitted that he had not mentioned in
verification that a criminal case was pending when he joined
management. The reason stated by him is his ignorance.
Verification form is in Hindi and it has been signed by him in
English. He might be 10th class pass as that is the minimum
requirement for a driver. A person who is 10th class pass, can very
well understand Hindi. He had taken plea before the Enquiry
Officer that he was ignorant and that is why he could not
understand column No. 12 of verification form. But in this Court,
he took the plea that he had been acquitted on 15.07.2011 and that
is why, he did not mention that fact in CVR form submitted on
13.01.2012.
Column No. 12 of CVR form Ex.WW1/M5 is meant
LIR No.3415/17 Page 10 of 21
for disclosing the pendency of criminal cases in which the claimant
mentioned three words "no, no, no". He admitted in cross
examination that the CVR form was bearing his signature at point
A. So, it is well established that he had furnished false information
in CVR form.
11. In Commissioner of Police and Others Vs. Sandeep
Kumar (2011) 4 SCC 644, the workman was required to mention in
application for employment whether he had ever been arrested,
prosecuted, kept under detention or bound down / fined, convicted
by a court of law for any offence. Against that column, he had
written "No". That statement was completely false because he and
some of his family members were involved in a criminal case under
Section 325/34 IPC in which he was acquitted on 18.01.1998. The
Hon'ble Supreme Court held as under:
"12. 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."
12. Nonfurnishing of material particulars to the management by the employee regarding pendency of criminal case against him and his consequential acquittal came up for LIR No.3415/17 Page 11 of 21 consideration before the Hon'ble Apex Court in Daya Shankar Yadav Vs. Union of India and Ors, Civil Appeal No. 9913/2010 decided on 24.11.10 and the Apex Court upheld termination of service in following words : "6. This Court has considered the consequences of making a false statement or suppressing material information in verification forms in several decisions. In Delhi Administration, v. Sushil Kumar 1996 (11) SCC 605, this Court stressed that 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.
6.1 In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav 2003 (3) SCC 437, this Court held that the purpose of requiring an employee to furnish information regarding prosecution/conviction etc. in the verification form was to assess his character and antecedents for the purpose of employment and continuation in service; that suppression of material information and making a false statement in reply to queries relating to prosecution and conviction had a clear bearing on the character, conduct and antecedents of the employee; and that where it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry. This Court also made it clear that neither the gravity of the criminal offence nor the ultimate acquittal therein was relevant when considering whether a probationer who suppresses a material fact (of his being involved in a criminal case, in the personal information furnished to the employer), is fit LIR No.3415/17 Page 12 of 21 to be continued as a probationer.
6.2 In R. Radhakrishnan vs. Director General of Police 2008 (1) SCC 660, this Court considered the case of a candidate for appointment as a Fireman, furnishing wrong information about his involvement in a criminal case, though he was acquitted. This Court held that the standards expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. As the application for appointment and the verification roll were both in Hindi as also in English, this Court concluded that the candidate knew and understood the implications of his statement or omission to disclose a vital information, and by not disclosing about his involvement in a criminal case, the candidate is preventing the authority from verifying his character as also suitability of the appointment. This Court therefore refused to exercise its equitable jurisdiction in favour of such a candidate who had suppressed material facts.
6.3. In Union of India vs. Bipad Bhanjan Gayen 2008 (11) SCC 314, this Court dealt with the validity of the termination of service of respondent therein who had been selected for training as a constable in a Railway Protection Force. This Court observed thus :
"9. It is the admitted case that the respondent was still under probation at the time his services had been terminated. It is also apparent from the record that the respondent had been given appointment on probation subject to verification of the facts given in the attestation form. To our mind, therefore, if an enquiry revealed that the facts given were wrong, the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this LIR No.3415/17 Page 13 of 21 stage would not arise.
10. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer per 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."
9. 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 therefore 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 not affect the declarant's fitness for employment, or where the declarant had been honorably 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 LIR No.3415/17 Page 14 of 21 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 nondisclosure 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.
13. The Hon'ble Apex Court reviewed all the laws of the land in respect of suppression and false information of involvement in a criminal case, in verification form / CVR and held in Avtar Singh Vs. Union of India (UOI) and Ors., SLP (C) Nos.20525/2011 decided on 21.07.2016 as under : "30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a LIR No.3415/17 Page 15 of 21 candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government orders / instructions /rules, applicable to the employee, at the time of taking the decision.
4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application / verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may 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.
LIR No.3415/17 Page 16 of 21(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous / serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or LIR No.3415/17 Page 17 of 21 terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. (9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
As discussed in para No.30(4) (a) in the above judgment, the Apex Court held that in a trivial case in which LIR No.3415/17 Page 18 of 21 conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered any incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. In the case in hand, the claimant had not given information to the employer that a case under Section 279/338 IPC was pending against him when he had joined it. He has been acquitted in that case vide judgment dated 15.07.2011. So, claimant's case is on better footing than the case discussed by the Apex Court in para No. 30(4).
14. Judgment dated 15.07.2011 of Ld. Metropolitan Magistrate Sh. Prashant Sharma is on the file. Perusal of which shows that the prosecution had examined only one witness namely Sh. Rajesh Pandit to prove rash and negligent driving. That witness had deposed that it was claimant who was driving the car on the date and time in question. But he did not depose that he was driving the car in a rash and negligent manner. The Magistrate opined that his evidence was no relevant to the prosecution. So, claimant's acquittal by magistrate can be said to the Hon'ble acquittal.
The Apex Court, in the above judgment, held that the yardstick to be applied by the employer and the Court has to depend LIR No.3415/17 Page 19 of 21 upon the nature of the post. The higher post would involve more rigorous criteria for all services. For lower posts which are not sensitive, the nature of duties, impact of suppression on suitability has to be considered by concerned authorities. In the case in hand, the claimant was appointed as driver, which, by no stretch of imagination, can be said to be a higher post. He was appointed on lower rung and the criminal case was not likely to affect his duty. So, the management should not have terminated his services. This issue is decided in favour of the claimant and against the management.
Issue No.3:
15. Ld. ARW argued that claimant is jobless since termination of service. He be granted reinstatement with 100% back wages.
Ld. ARM replied that claimant used to work as a driver and there is no dearth of opportunities for drivers in Delhi.
The claimant did not pin point any transport company, agency, business house or establishment etc. visited by him for re employment. Had he tried seriously, he would have definitely got job of equal status and salary because drivers are much in demand in Delhi and NCR due to rapid increase of vehicles. So, his deposition that he was jobless is general and vague.
LIR No.3415/17 Page 20 of 21Taking into account all these facts, the management is directed to reinstate workman with all consequential benefits alongwith 25% back wages from the date of termination till his reinstatement within a month from the date of publication of this award, failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Parties to bear their own costs. Award is passed accordingly.
16. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the P.A. & announced (UMED SINGH GREWAL) in the open Court on 12.04.2018. PILOT COURT / POLCXVII DWARKA COURT, NEW DELHI.
LIR No.3415/17 Page 21 of 21