Central Administrative Tribunal - Delhi
Shri Kishan Pal Singh S/O Shri Bhola ... vs Govt. Of Nct Of Delhi Through Chief ... on 14 March, 2007
Equivalent citations: 2007(3)SLJ54(CAT)
ORDER Shanker Raju, Member (J)
1. By virtue of this OA, Constable in Delhi Police has challenged an order passed by the respondents on 7.7.2004 whereby his services had been terminated under Rule 5 of CCS (Temporary Service) Rules, 1965. Also assailed is an order dated 27.1.2005 whereby his request for reinstatement has been turned down on the ground that he has concealed the fact of involvement in the criminal case intentionally, which amounts to misleading the Department.
2. A brief factual matrix of the case transpires that the applicant had applied for the post of Constable (Executive) and Constable (Dog Handler) in pursuance of an Advertisement issued by the Delhi Police in 2002. He was called for the written test and on qualifying it, he had appeared for interview on 23.8.2002. On 24.9.2002 with all credentials when the applicant appeared before the respondents, he was intimated thereafter on 14.1.2003 that he has been provisionally selected for the post of Constable (Executive) and was asked to fill up the attestation form where in column 11, he has mentioned about a pendency of criminal case FIR No. 165/97 under Section 498-A, 323 IPC and 3/4 of Dowry Act registered at PS Shikarpur, Distt. Bullandshahar (UP) and acquittal thereof by the Court of ACJM-I on 22.12.1999. Applicant was allowed to join on 20.1.2003. On the same date, an undertaking was filled up by the applicant. On joining, the applicant was sent to the training recruitment course where after a period of eight months, a communication dated 22.8.2003 directed the applicant to furnish a copy of FIR and the judgment of the trial court, acquitting him from the case to process the case further. On supplying the aforesaid, an order passed on 7.7.2004 terminated the service of the applicant and on appeal when the aforesaid has been confirmed gives rise to the present OA.
3. Before we proceed to deal with the rival contentions of the parties, the position of law has to be made transparent, which is crystallized from the various decisions of the High Court as well as the decisions rendered by this Tribunal
4. Before we proceed with the position of rules, Delhi Police Act, 1978 under Section 12 provides for appointment of subordinate ranks, which is subject to general or special order in writing as the Administrator may make himself. Under Section 147 of the Act ibid, Administrator, i.e., Lt. Governor of Delhi is empowered on subordinate delegation to frame rules as to recruitment and other conditions of service of the members under clause B of Section 5 of the Act. Accordingly, Delhi Police (Punishment & Recruitment) Rules, 1980 have been framed and promulgated where recruitment to the cadre of Constable is covered under Rule 9 of the Rules, which authorizes Commissioner of Police to frame standing orders prescribing detailed procedure for the recruitment.
5. Rule 6 of the Recruitment Rules ibid does not lay down as an ineligibility the involvement and acquittal of a police officer in a criminal case before joining the Delhi Police. Under Rule 25 of the Rules ibid before appointment on the basis of attestation form testifying a candidate bearing good moral character and nothing adverse against him, candidate has to be provisionally enrolled pending verification of his character. The above rules clearly indicate that when involvement of a candidate in a criminal case prior to his enrolment and even pendency of a criminal case at the time of recruitment not being an ineligibility under the statutory rules framed under Rule 6 ibid. The only qualification for acquiring substantive appointment in Delhi Police is that on verification of character and antecedents a good moral character is reflected.
6. Government of India, Ministry of DoP&T vide Office Memorandum laid down guidelines for appointment on suitability of the candidates in government service, which requires that a person should not have been convicted of an offence involving moral turpitude, as reflected in the decision of the Tribunal in Girish Bhardwaj v. Union of India and Ors. 1989 (4) (CAT) AISLJ 945.
7. With the above background of the statutory rules, law on the subject on cancellation or termination of a government servant on alleged suppression of material information or on involvement in the criminal case for the sake of proper adjudication is summarized as below.
8. The Apex Court in State of Madhya Pradesh v. Ramashanker Raghuvanshi and Anr. on the issue of non-appointment of a government servant because of participation in RSS and Jan Sangh activities, relying upon McCarthyism even ruled that 'Is Government service such a heaven that only angles should seek entry into it?'
9. The Apex Court in Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar on the question of appointment and denial thereof on account of antecedent records, observed as under:
(1) Leave granted.
(2) We have heard learned Counsel on both sides.
(3) This appeal by special leave arises from the order of the central Administrative tribunal, New Delhi made on 6/9/1995 in OA No. 1756 of 19 The admitted position is that the respondent appeared for recruitment a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. " Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18/12/1990 culminating in cancellation of his provisional selection, he filed OA in the central Administrative tribunal. The tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 Indian Penal Code, under Section 324 read with Section 34 Indian Penal Code and under Section 324 Indian Penal Code, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the tribunal is correct in law? It is seen 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. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.
(4) The appeal is accordingly allowed. The order of the tribunal stands set aside. No costs.
10. In Commissioner of Police, Delhi and Anr. v. Virender Pal Singh CA-5510/1997 decided on 11.8.1997, which is a case where the particular column pertaining to the particulars of criminal charge having deliberately left blank, a show cause notice was mandated to be given before cancellation of the candidature.
11. In Commissioner of Police and Anr. v. Dhaval Singh in a case of Delhi Police in which though the application form was left blank, a subsequent intimation as to the involvement in a criminal case, distinguishing Sushil Kumar's case (supra), following observation has been made:
5. That there was an omission on the part of the respondent to give information against the relevant column in the Application Form about the pendency of the criminal case, is not in dispute. The respondent, however, voluntarily conveyed it, on 15-11-1995, to the appellant that he had inadvertently failed to mention in the appropriate column regarding the pendency of the criminal case against him and that his letter may be treated as "information". Despite receipt of this communication, the candidature of the respondent was cancelled. A perusal of the order of the Deputy Commissioner of Police cancelling the candidature on 20-11-1995 shows that the information conveyed by the respondent on 15-11-1995 was not taken note of. It was obligatory on the part of the appellant to have considered that application and apply its mind to the stand of the respondent that he had made an inadvertent mistake before passing the order. That, however, was not done. It is not as if information was given by the respondent regarding the inadvertent mistake committed by him after he had been acquitted by the trial Court it was much before that. It is also obvious that the information was conveyed voluntarily. In vain, have we searched through the order of the Deputy Commissioner of Police and the other record for any observation relating to the information conveyed by the respondent on 15-11-1995 and whether that application could not be treated as curing the defect which had occurred in the Form. We are not told as to how that communication was disposed of either. Did the competent authority ever have a look at it, before passing the order of cancellation of candidature? The cancellation of the candidature under the circumstances was without any proper application of mind and without taking into consideration all relevant material. The tribunal, therefore, rightly set it aside. We uphold the order of the Tribunal, though for slightly different reasons, as mentioned above.
6. Learned Counsel for the appellants has drawn our attention to a judgment rendered by a Bench of this Court on 4-10-1996 in C.A. No. 13231 of 1996. On the first blush, that judgment seems to support the case of the appellants but there is a material difference between the two cases. Whereas in the instant case, the respondent had conveyed to the appellant that an inadvertent mistake had been committed in not giving the information against the relevant column in the Form much before the cancellation of his candidature, in Sushil Kumar's case, no such correction was made at any stage by the respondent. That judgment is, therefore, clearly distinguishable on facts
12. The Apex Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav 2003 SCC (L&S) 306 with regard to suppression of material information relating to character and antecedents, ruled as follows:
11) It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as against column Nos. 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of B.A., B.Ed, and M.Ed, degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. if he could understand column Nos. 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand the contents of column Nos. 12 and 13. Even otherwise, if he could not correctly understand certain English words, in the ordinary course he could have certainly taken help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of respondent was Hindi, he could not understand the contents of column Nos. 12 and 13. It is not the case that column Nos. 12 and 13 are left blank. The respondent could not have said "no" as against column Nos. 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling column Nos. 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filing and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
(12) The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot-claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The high Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column Nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned Counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.
13. In Secy., Deptt. of Home Secy., A.P. and Ors. v. B. Chinnam Naidu 2005 SCC (L&S) 323 on the ground of suppression of information, following observations had been made:
9. A bare perusal of the extracted portions shows that the candidate is required to indicate as to whether he has ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offences whether such conviction is sustained or set aside by the appellate court, if appealed against. The candidate is not required to indicate as to whether he had been arrested in any case or as to whether any case was pending. Conviction by a court or detention under any State/Central preventive detention laws is different from arrest in any case or pendency of a case. By answering that the respondent had not been convicted or detained under preventive detention laws it cannot be said that he had suppressed any material fact or had furnished any false information or suppressed any information in the attestation form to incur disqualification. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned Counsel for the appellants submitted that such a requirement has to be read into an attestation form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.
10. In Kendriya Vidyalaya Sangalhan case the position was the reverse. There the candidate took the stand that as there was no conviction, his negative answers to columns 12 and 13 were not wrong. This Court did not accept the stand that requirement was conviction and not prosecution in view of the information required under columns 12 and 13 as quoted above. The requirement was "prosecution" and not "conviction". The logic has application here. The requirement in the present case is "conviction" and not "prosecution".
11. The question whether he was a desirable person to be appointed in government service was not the subject-matter of adjudication and the Tribunal was not justified in recording any finding in that regard. Whether a person is fit to be appointed or not is a matter within the special domain of the Government. For denying somebody appointment after he is selected, though he has no right to be appointed, has to be governed by some statutory provisions. That was not the issue which was to be adjudicated in the present case. The only issue related to suppression of facts or misdeclaration.
12. In view of the aforesaid, we find no merit in this appeal which is accordingly dismissed with no order as to costs.
14. Further, in A.P. Public Service Commission v. Koneti Venkateswarulu and Ors. 2005 SCC (L&S) 924 on refusal of appointment and cancellation on suppression of material information, following are the observations made by the Apex Court:
5. The learned Counsel for the appellant drew our attention to the photocopy of the application dated 24.7.1999 from which it is clearly seen that as against Column No. 11 the First Respondent has given no information whatsoever, leaving the column blank by drawing lines. He had put his signature and made declaration in the application which is earlier reproduced. The First Respondent also filled up Annexure III and made a declaration therein as reproduced earlier. Learned Counsel for the appellant commission relied on the judgment of this Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav and contended that when information with regard to the antecedents of a candidate is called for, it is intended to verify and cross-check the information so that the suitability of the candidate for employment could be judged. If the candidate indulges in suppresso veri and suggestio falsi, he proves himself unfit to be employed, all the more so, if he is to be employed in public employment. If the information as to the full particulars of employment was available with the commission, the commission could have checked the antecedents of the First Respondent with his employer and ascertained the suitability of the First Respondent for employment. In any event, it had been made clear to the candidates, both in the advertisement calling for applications as well as in the body of the application itself that furnishing of false information or its suppression was liable to result in cancellation of the candidature. The First Respondent, therefore, did not deserve any consideration and the High Court erred in interfering with the order of the Tribunal.
6. The learned Counsel for the First Respondent, however, rejoins that there was no malafide intention in not giving the full particulars. He reiterated the contentions urged before the Tribunal and submitted that Column 11 refers to paragraph 3(d) of the advertisement, which was concerned only with age concession. Since age concession was being made available to ST candidates under paragraph 3(a), there was no need for him to fill up the requirements of Column 11 of the application. He also urged that Annexure III was intended only for candidates claiming fee exemption; since the First Respondent was not claiming fee concession, the annexure need not have been filled by him. The fact that it was filled by him wrongly could, therefore, not lead to any adverse consequences. He, therefore, submits that it was pure inadvertence on the part of the First Respondent and not malafides, which lead to the non-disclosure of his employment status. In the submission of the learned Counsel, this could not be a reason for the cancellation of the First Respondent's candidature.
7. We are unable to accept the contention of the learned Counsel for the First Respondent. As to the purpose for which the information is called, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide Column 11. Similarly, Annexure III contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the First Respondent to leave the particulars in Column 11 blank and make the declaration of non-employment in Annexure III to the application. The application was filled on 24.7.1999, the examination was held on 24.10.1999, and the interview call was given on 31.1.2000. At no point of time did the First Respondent inform the appellant commission that there was a bonafide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the appellant commission discovered by itself that there was suppresso veri and suggestio falsi on the part of the First Respondent in the application that the respondent came forward with an excuse that it was due to inadvertence. That there has been suppresso veri and suggestio falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan (supra) and contending that a person who indulges in such suppresso veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment. We completely endorse this view.
15. As regards the Tribunal, in the case of Zile Singh v. Commissioner of Police and Anr. (OA-365/98) decided on 9.2.1999 where termination from service on suppression of information in the attestation form when despite existence of a case 'No' is written, relying upon Sushil Kumar's case (supra), OA was dismissed.
16. High Court of Judicature at Punjab in Joginder Singh v. State of Punjab and Ors. 1991 (1) AISLJ 183 as to production of duplicate certificate and concept of natural justice, ruled that natural justice would depend on the facts and circumstances of the case.
17. The Delhi High Court in Virender Pal Singh v. Union of India 2002 (3) ATJ 561 in a case where in the application form when material information was not disclosed, the following observations were made:
9. A person who is to be appointed as Constable, in our opinion, should disclose all material facts. It was for the appointing authority to consider as to whether the details provided by the candidate are true or false. Concealment of material facts for the purpose of obtaining appointment itself may be a ground for cancellation of the appointment. In the Application Form itself the petitioner was required to give a declaration to the effect that endorsement therein is true to the best of his knowledge and belief and in the event of any information found wrong, he can be dismissed from service. He thus knew that any wrong information or concealment of fact may entail his dismissal from service. It is, therefore, not a case where the court is called upon to pose a question as to whether despite conviction in a trickling matter, a person should be denied appointment or not. In Shishpal (supra) the decision was rendered in the peculiar facts of the case. It was stated in that case that the concerned employee was provisionally selected subject to police verification. The police found his involvement in two cases which facts he did not disclose in his application. The Tribunal found that he had served for long 5 years and there had been no adverse report against the conduct of the applicant. The Tribunal came to the conclusion that the applicant was not such a character that he is in the habit of committing crimes. In Satyender Singh Maan (supra) the fact of the matter was that the concerned employee was changed (charged?) for merely shouting slogans. In any event, we have reservation about the correctness of the case. In Pawan Kumar case (supra) the question which arose for consideration before the Apex Court was as to whether a conviction under Section 294 IPC involve moral turpitude. The Criminal Court, having regard to the fact that the applicant pleaded guilty, imposed a fine of Rs. 20/-. It was observed by the Supreme Court as under:
Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opinion to have involved moral turpitude, without satisfying the test laid down in the policy decision of the government. We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294 IPC on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.
18. In Sandeep Kumar v. Commissioner of Police and Ors. WP(C) No. 12565/2004 decided on 31.7.2006, which is a case where though the application form does not disclose the fact of criminal case but when it is disclosed in the attestation form, the following observations have been made:
11. In our view, the petitioner on the first opportunity, that came his way at the time of filling up of the attestation form, made the candid disclosure. It cannot be assumed against the petitioner that he himself would have thought that the respondents would, in any case, come to know about the case on verification and that is why he made the disclosure in the attestation form. There is nothing on record to warrant such an inference. While it is correct that Article 14 cannot be enforced as a negative covenant, however, the decisions taken by the respondents in the numerous cases cited by the petitioner where they have condoned the non-disclosure on account of either the bonafides or extenuating circumstances the same even though not binding, is indicative of the approach followed by the respondents.
12. We may also briefly refer to the Division Bench decision of this Court. In 'Kirpal Singh v. U.O.I.' (supra), the Department cancelled the candidature of Kirpal Singh holding that he had failed to disclose the registration of a case under Section 325/323, which occurred on 29.12.1990 after his character and antecedents had been verified on 18.9.1990. The Court held that there was no obligation to inform the factum of his arrest and criminal prosecution since O.M. dated 25.2.1995 applied only to a Government servant. Petitioner was not a Government servant at the time of his arrest. The Court took into account that he had been implicated in a false criminal charge only to defeat his selection and appointment. The Division Bench in this case observed:
Even if it was assumed that he was required to furnish this requisite information at the time of joining, still his case would deserve reconsideration in the light of his acquittal in the criminal case, which lends support to his allegation that his uncle had involved him in a criminal charge to deprive him or oust him from job.
13. The Court also held that the punishment imposed on him was rather disproportionate and deserved to be reviewed particularly in the face of his acquittal in the criminal case. While there are distinguishing features of the present case inasmuch as there was no legal requirement for disclosure since technically, Kirpal Singh was not a Government servant on the date of appointment. Nevertheless, the principle or ratio of the decision is that extenuating circumstances such as an acquittal, which followed and the quantum of punishment being disproportionate, called for any reconsideration.
14. In Dhaval Singh's case, the applicant similarly had failed to disclose the information regarding pendency of the criminal case while applying. However, he voluntarily conveyed it on 15.11.1995 regarding his inadvertent omission. The respondents had failed to take note of this information and had cancelled the candidature. The Supreme Court held that it was obligatory on the part of the appellant to have considered the application and apply its mind to the stand of the respondent that he had made an inadvertent mistake before passing the order. Dhaval Singh had given the information even before his acquittal. In the present case also, as noted and discussed earlier, we are of the view that the petitioner had furnished the information voluntarily on the first available opportunity.
15. On the basis of analysis of facts, documents and evidence on record, we find the following:
The non-disclosure of the case in which petitioner had been acquitted in the application form, was an inadvertent error and not willful concealment. As a result of the compromise, the petitioner already stood acquitted and he need not have nurtured any qualms about the same;
It was a solitary incident emanating from a sudden quarrel between landlord and tenant, it did not involve any moral turpitude or serious offence. It was not indicative of any propensity to crime. The matter had been compromised and the petitioner stood acquitted;
Petitioner on the first available opportunity, made a bona fide disclosure about the incident while filling in the Attestation Form. This was prior to his selection and without receipt of any show cause notice from the respondents;
There was nothing on record to warrant the Tribunal's inference that the disclosure was made since the petitioner knew that in verification, the factum of incident would get known. The respondents admittedly did not have any knowledge of the same when the petitioner disclosed it in the Attestation Form. After filling up of the form, the next available opportunity was the Attestation Form, when the petitioner disclosed the incident. The findings of the Tribunal in this regard are clearly not sustainable;
The Department and Tribunal failed to appreciate the plausible explanation for non-disclosure in the application form being an inadvertent error. The respondent and Tribunal failed to recognize that in view of the acquittal following the compromise, the petitioner would have had no reasons to withhold the said information especially since the incident did not involve any moral turpitude or grave offence and was not demonstrative of any propensity to crime;
The respondents failed to take into account the plausible explanation and extenuating circumstances of the disclosure by the petitioner prior to the selection in accordance with the approach and practice followed by them in several cases wherein explanation had been accepted and non-disclosure condoned or visited with minor penalties. The respondents have departed from their practice and approach, while dealing with the petitioner's case for no justifiable reasons;
16. Considering the aforesaid findings and applying the ratio and principles emerging from 'Kirpal Singh v. U.O.I.' (supra) and the judgment of the Supreme Court in 'Commissioner of Police, Delhi and Anr. v. Dhaval Singh (supra), we are of the view that the impugned judgment of the Tribunal dated 13.1.2004 as also the impugned order dated 29.5.2003 are not sustainable and are hereby quashed. Petitioner being a Schedule Caste candidate, we are informed, is given entitled to age relaxation and as such, he is not excluded from consideration.
17. We direct the respondents to process the case of the petitioner for appointment within a month from today. The petitioner would not be entitled to any past benefit or seniority as his appointment would come into effect from the date to be notified by the respondents.
Petition stands allowed in the above terms.
19. The High Court of Delhi in Commissioner of Police and Ors. v. Regional Secretary, Board of Secondary Education, Regional Office, Meerut, U.P. and Ors. 2005 III AD (Delhi) 92, which is a case of termination under Rule 5 of CCS (Temporary Service) Rules, 1965 where forgery has been done in educational certificate, it is ruled that a reasonable opportunity, being a punitive order, as a condition precedent was mandated.
20. In Constable Nirbhai Singh v. Union of India and Ors. (WP(C) No. 6592/2003) decided on 11.12.2006 where non-disclosure of future events in the application form being considered as a concealment where 'No' has been referred in the column pertaining to the criminal case, following observations had been made:
9. Further reliance is placed on Chief Engineer MSEB v. Suresh R. Bhokare , where the court held that? fraud needed to be pleaded and proved? to urge that it is necessary to plead, prove and establish that there was deliberate suppression/concealment before an employee is terminated/dismissed. He submits that from the above judicial pronouncements, the inference that can be safely drawn is that it is necessary to plead, prove and establish that there was a deliberate suppression/concealment before an employee is terminated/dismissed on the said ground. The Supreme Court in each of the cases, has considered the defence of the employee.
10. The element of an intentional perversion of truth for the purpose of inducing another, in reliance upon it, to part with some valuable thing belonging to him or surrender a 'legal right' is essential to constitute suppression and concealment amounting to fraud. According to Halsbury's Law of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date, false in substance or in fact. In Derry v. Peek 1886-90 All ER 1 what constitutes fraud was described thus:
Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it is true or false?. Accordingly, the Amicus Curiae urged that the above requirements are not met in the petitioner's case.
11. We find merit in the submissions of the learned Amicus Curiae. We are of the view that while dealing with contractual relationship between a governmental authority and its employee engrafting the presumption of legal fiction as applicable in statutory law to the contractual relationship would not be prudent. There is also inherent distinction between the non-disclosure or concealment of a past event where the deeming provision could apply as the facts are within the knowledge of the person, and in respect of a future event, where the application of the deeming provision would entail attributing to the person concerned, his remembering the provision, which may or may not be true. As noted above, even in cases relating to the disclosure or non-disclosure of past event, the approach of the Supreme Court has been that the defence of the employee ought to be considered. The same would apply with greater force to a provision dealing with a future event. Therefore, in our view, simply by invoking the deeming provision especially in respect of a future event, the authority cannot terminate the employment without considering the employee's defence.
12. In view of the foregoing discussion, we are of the view that even if there is incorrect disclosure in the application/attestation forms as to a past event, it is obligatory to consider the defence of the employee before coming to the conclusion of suppression. This should apply with greater force for non-compliance with disclosure of Future Events. Secondly, the meaning given to the word?deemed? depends upon the context in which it is used. The ordinary meaning includes?generally regarded? or?prima facie regarded? and does not in every case mean?treated as?. Thirdly, the statutory principles of deemed legal fiction should not be engrafted in the context of contractual relationship.
13. We may also note the submissions of Mr.Keshav Kaushik, counsel for the petitioner that the petitioner had been recruited against a permanent vacancy and, therefore, his services cannot be terminated under the CCS (Temporary Service) Rules. The above plea is without merit as rightly pointed by Mr. Tandon, counsel for the respondent. The application form itself carries the notation 'Application form for the post of Temporary Constable in Delhi Police'.
Further, Rule 5(e)(i) of the Delhi Police (Appointment and Recruitment) Rules, 1980 provides as follows:
All direct appointments of employees shall be made initially on purely temporary basis. All employees appointed to the Delhi Police shall be on probation for a period of two years:
Provided that the competent authority may extend the period of probation but in no case hall the period of probation extend beyond three years in all.? This shows that the services of the petitioner were temporary.
14. Coming to the factual aspect, Mr. Tandon on behalf of the respondent submitted that the petitioner had been in custody for two months and it is certain that it was not such an event which could have slipped from his mind.
Information regarding the involvement in the case should have been disclosed as soon as possible. He submits that it was only when the show cause notice was issued to the petitioner that realization dawned upon him regarding the disclosure. Mr. Tandon urged that in view of the warning in the application form which was binding on the petitioner, he was required to disclose his involvement and failure to do so, rightfully resulted in the presumption of suppression and concealment. Accordingly, his termination was valid. 15. Having heard learned Counsel for the parties and noted the legal position in the paras above, we find that there is no analogous provision relating to disclosures, as in the application form, in the Central Civil Services (Temporary Services) Rules, 1965. We find that in this case, the question which arises for determination is whether it can be attributed to the petitioner that he remembered the disclosure clause on the basis of the deemed presumption. It goes without saying that the petitioner could not have forgotten the period of his incarceration. The question is whether he remembered that the application form, that he had filled nearly a year back, contained a clause requiring him to make such a disclosure. Even if such a presumption was to be raised, it would be a rebuttable presumption where he has to be permitted to lead evidence in defence and the same being objectively considered rather than arriving at a finding of deemed suppression or fraudulent concealment.
16. In the instant case, there is no real consideration of the defence of the petitioner that he was not aware of the instruction in the form which required him to inform the authorities as and when he was prosecuted or arrested in future, after having filled up the form. In our view, in a mass recruitment drive as this, it is quite plausible that a person filling up the form may not even retain a copy or remember the covenant contained therein so as to inform the authorities at a later date on the happening of the eventuality. The authorities in the instant case have acted on the presumption raised as per the clause without considering the defence of the petitioner. It has not been shown that the petitioner having the knowledge of the requirement to inform the authorities and of its consequences, deliberately hid the factum of his subsequent arrest in order to secure the employment. The relevant portion of the order dated 12.1.1999 is reproduced for facility of reference:
It was obligatory on his (petitioner's) part to inform this department soon after his arrest in the said case in conformity with the clause mentioned in the application form prescribed for recruitment in Delhi Police as well as in the attestation form, which he filled during the course of his recruitment in Delhi Police. But he did not disclose the facts of his arrest in the said criminal case, which amounts to concealment of fact. His plea that he was unaware of the procedure is devoid of any weight being the plea to be an after thought. Besides this, ignorance of rules is no excuse. He intentionally concealed the facts. His next plea that he has been acquitted in the said criminal case is also not tenable since his acquittal is not honourable due to non-supporting the case by main PWs. Here it is also worth mentioning that this plea of the Rectt. Constable Nirbhai Singh, No. 2408/N does not require any consideration, as the issue is that he concealed the fact of his arrest in the said criminal case.? From the foregoing it would be seen that the respondent authority, on the basis of the clause in the Application Form has rejected the plea of the petitioner of not being aware of the same, as an after thought and treated the same as deliberate and intentional concealment. The authority in holding?ignorance of rules is no excuse? has treated it as a deeming provision akin to raising a statutory presumption.
17. The Tribunal proceeded on similar lines when it, inter alia, holds in the impugned order:
This clearly shows that it had been conveyed and it was to the knowledge of the applicant that even after submission of the form, if he had been arrested and prosecuted, then this fact should be communicated immediately. Otherwise, it shall be deemed that there is suppression of actual information. It is on the strength of this fact that the necessary action on that count had been contemplated and later on culminated into the final order terminating the services of the applicant.
Non-communication of the information of arrest was treated as suppression of actual information. The Tribunal proceeded on the basis that the provision having been conveyed was to the petitioner's knowledge and gave effect to the deeming provision.
18. We are conscious of the chequered history of the case and that it is the second round of litigation. We are, however, of the view that the authorities have misdirected themselves in adopting the approach of non-consideration of the defence and of raising a deemed presumption akin to a statutory one in holding that there was concealment of the factum of arrest.
19. We accordingly set aside the order of the Tribunal dated 17.12.2002 as also order dated 12.1.1999 of the respondent authority and remand the case to respondent authority to consider the defence of the petitioner after granting him an opportunity of showing that he was not aware of the requirement of disclosing his involvement in a criminal case in future. The willful suppression and concealment is required to be established otherwise, without the aid of the deeming provision. The petitioner would appear before the concerned respondent authority on 27.12.2006. The respondent authority would decide the remanded matter within three months.
We wish to record our appreciation for the valuable assistance rendered by the Amicus Curiae Mr.Darpan Wadhwa.
The petition stands allowed in the above terms.
21. Similarly, the High Court of Delhi in Virender Singh v. Commissioner of Police and Anr. WP(C) No. 19116/2004 decided on 19.9.2005 while dealing with the issue of cancellation of candidature where the person has written 'No' in the application form but given particulars in the attestation form, relying upon Sushil Kumar's case (supra), following are the observations made by the High Court:
8. So far the contention with regard to discrimination is concerned, we have examined all the three cases which are cited in the petition before us. On going through the same, we find that all those cases relate to Constables who have been appointed to the Delhi Police where the Constables have already joined and were working on the date when the fact of concealment had come to the notice of the respondents. Since they had already joined and were working as Constable in Delhi Police, therefore, facts of the said cases are clearly distinguishable from the facts of the present case whereas the petitioner was only provisionally selected. It is however made clear that even in those cases also, where a person has been appointed as Constable and is working, no blanket immunity could be claimed. That is more so as each one of them was a signatory to the application form and, therefore, bound by the warning attached to the application form. The warning which was attached to the application form permitted the respondents to take action against the petitioner at any stage. But here is a case where the petitioner was yet to be given formal letter of appointment and he was yet to join the said post. He was only provisionally selected and, therefore, action taken at that stage cannot be said to be discriminatory with that of the actions taken after person has joined and is working in the said post. Therefore, the said contention also appears to be misplaced and has no legs to stand and is rejected. A similar plea that the petitioner did not understand the implication of column No. 11 due to his rural background was negatived by the Supreme Court in its decision in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav .
9. The petitioner has admittedly suppressed and concealed material facts in the application form, which also contained a warning as aforesaid. Suppression of material facts empowers the respondents to take action. It cannot be said that the said action is illegal or arbitrary in any manner. The learned Tribunal has referred to various decisions of the Supreme Court, namely, State of Bihar v. Rameshwar Prasad Singh and Anr. reported in 2000 SCC (L&S) 845 and also a Division Bench decision of this Court in Virender Pal Singh v. Union of India reported in 2002 (3) ATJ 561 and also other decision of the Supreme Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav . The said decisions have amplified the law with regard to suppression and concealment of material facts and also the equality provisions as contained in Article 14 of the Constitution of India. This Court in the case of Virender Pal Singh (supra) has held in the following manner:
9. A person who is to be appointed as Constable, in our opinion, should disclose all material facts. It was for the appointing authority to consider as to whether the details provided by the candidate are true or false. Concealment of material facts for the purpose of obtaining appointment itself may be a ground for cancellation of the appointment. In the Application Form itself the petitioner was required to give a declaration to the effect that endorsement therein is true to the best of his knowledge and belief and in the event of any information found wrong, he can be dismissed from service. He thus knew that any wrong information or concealment of fact may entail his dismissal from service. It is, therefore, not a case where the court is called upon to pose a question as to whether despite conviction in a trickling matter, a person should be denied appointment or not? In Shishpal (supra) the decision was rendered in the peculiar facts of the case. It was stated in that case that the concerned employee was provisionally selected subject to police verification. The police found his involvement in two cases which facts he did not disclose in his application. The Tribunal found that he had served for long 5 years and there had been no adverse report against the conduct of the applicant.
22. Lastly, in Rameshwar Prasad Meena v. Commissioner of Police and Anr. CWP-7548/2003 decided on 11.10.2006 whereby in the application form and attestation form, an information pertaining to criminal case has been withheld, following observations have been made:
10. We have carefully considered the submissions made, perused the record and also heard learned Counsel for the respondent in opposition. The petitioner, who had been granted bail in the case may not understand the legal implications namely bail follows arrest. He may nurture a belief since he may not have been locked up or kept in police station or judicial custody. It does not mean that he had not been arrested and may claim benefit for not disclosing his technical arrest and then release on bail. However, petitioner was thereafter prosecuted before the Magistrate. Evidence was led, witnesses were examined and cross-examined. It cannot, therefore, be said that petitioner was oblivious of, or not aware of the case. Rather, it would be seen that when the attestation form was filled up the case was in the final stage as the decision came on 10th October, 2000. It is contended on behalf of the petitioner that he could not understand the complicated nature of Question No. 13 and other questions in the form, being a matriculate. At the same time, it is sought to be urged that petitioner was advised that the dispute was of a civil nature and hence need not be declared. Further, that soon after he gave the information, he was advised by some other persons that police authorities ought to be informed. This version does not inspire any confidence. It is significant to notice that while the attestation form was submitted on 29th June, 2000, petitioner did nothing although he was soon thereafter advised that authorities ought to be informed. This wisdom of informing the authorities dawned upon the petitioner only after the acquittal on 10th October, 2000, where after he informed. Further by that time the authorities had already received the verification report to this effect.
11. The present case is distinguishable on facts from Sandeep Kumar's case (supra), where the acquittal was prior to filling up of the form and it was an inadvertent omission to mention the same. As regards Commissioner of Police and Anr. v. Dhaval Singh (supra), petitioner cannot draw any benefit from the same. In the cited case, respondent had inadvertently not disclosed the pendency of the criminal case when the form was filled on 21/27 August, 1995. However, before any order of appointment could be issued in his favour and much before the acquittal, he realizing the mistake, informed the petitioner on 15th November, 1995 of this omission. Respondent was subsequently acquitted. The court, in these circumstances, held it to be a case of inadvertent omission and not of any concealment.
12. There is merit in the contention of the respondent. One aspect is the nature of involvement in the case, the seriousness of the offence, which has a bearing on the propensity to crime. The second aspect is with regard to the credibility of the individual and his character and antecedents in this regard. When a candidate, despite a clear warning in bold letters in the beginning of the attestation form, does not disclose facts or particulars of his involvement in a case, and has no reasonable explanation for the omission, then the respondents are justified in taking action on the same as it impinges upon the credibility and reliability of the candidate. We, therefore, find the respondent's action in canceling the candidature to be justified. There is no error or infirmity in the action of the respondents or the order of the Tribunal, calling for interference in the exercise of writ jurisdiction.
Writ petition is, accordingly, dismissed.'
23. The Apex Court in State of Haryana and Anr. v. Jagdish Chander ruled that termination on account of suppression of material information is not only stigmatic but also a punitive order and without opportunity to show cause, it has been declared illegal and set aside.
24. The aforesaid crystallizes the position of law relevant to the issue raised in the present OA.
25. Before we proceed to discuss the rival contentions on perusal of the records, what is crystallized is that the applicant while residing at Bullandshahar with his family members, his brother Bhola Singh was married to one Raj Kumari on 20.11.1995, who lodged an FIR regarding dowry, harassment and beating of the accused before the court. The prosecution witnesses did not support the allegations and as a result thereof, a decision of the Judicial Magistrate dated 22.12.1990 ruling that the allegations of demand of dowry and beating to the complainant having not been proved, acquitted the applicant from the criminal trial and as no appeal has been filed against the order, the aforesaid has attained finality.
26. Applicant in pursuance of recruitment to the post of Constable, applied for the post and filled up the application form in April 2002 and in the relevant column of the application form as to the disclosure of the criminal case against him, applicant has not divulged the information. Accordingly, he was called for the written examination, physical and interview and on being provisionally selected for the post of Constable (Executive), his consent was sought vide letter dated 14.1.2003. Thereafter on consent to join as Constable (Executive), the applicant was called for medical examination where he had filled up the attestation form. In the attestation form, applicant had disclosed in column No. 12 as to the particulars of any criminal case initiated against him, the fact of registration of FIR and acquittal in the criminal trial. Thereupon, subject to the verification, applicant was intimated on 22.8.2003 that the particulars disclosed by him about the criminal case in which he has been acquitted, he has been asked to deliver the copy of the FIR and decision of the trial court for further processing his case. Applicant had complied with the aforesaid and ultimately filled up an undertaking on 20.1.2003 whereby disclosure of antecedents had been sought regarding particulars of the criminal case where it has been stated by the applicant that neither he has been proceeded against in any criminal case nor was any such case proceeded against and he was never arrested. Applicant joined the post on 21.1.2003 and was sent for training. The verification report received from the concerned police authorities divulged involvement of the applicant in a criminal case and of his acquittal from the aforesaid. The Deputy Commissioner of Police vide memo dated 25.5.2004 on the ground that the applicant has suppressed the material information in application form and given a false undertaking, though mentioned the fact of involvement in the attestation form, attempted to get undue benefit by adoption of deceitful means. In the said memo, it has been requested to terminate the services of the applicant under Rule 5 (1) of CCS (Temporary Service) Rules, 1965.
27. An order passed on 7.7.2004 terminated the applicant from service and when a representation was preferred against it, merely on the basis of the concealment of criminal case in the application form and undertaking, the same having been rejected, constitutes the factual matrix.
28. Shri S.K. Gupta, learned Counsel appearing for applicant impugns the respondents' order on the ground that as termination of the applicant has been founded on an alleged act of forgery against the applicant of suppression of material information, the same is bad in law in view of the decision of High Court of Delhi in the case of Regional Secretary, Board of Secondary Education, Regional Office, Meerut, U.P (supra).
29. Learned Counsel would contend that the High Court of Delhi in Sandeep Kumar's case (supra) by relying upon the decision of Apex Court in Dhaval Singh's case (supra), clearly ruled that the non-disclosure is an error and the offence when not proved, which does not relate to the official discharge of duties, non-issue of show cause notice, the act of the applicant to disclose the offence in attestation form would not amount to concealment of material information or adoption of deceitful means, which would not entail dispensation of service.
30. Learned Counsel contended that despite information in attestation form, the respondents' response to call for the FIR and the order of the trial court with a view to process the case is a clear indication that non-appointment of the applicant was not found on any fraud.
31. It is also stated that if the person is acquitted from the criminal trial, the stigma relating to involvement and registration of FIR is obliterated and even it is not mentioned as to the involvement in the appropriate column of the form, it would not amount to any suppression of material information.
32. Learned Counsel further stated that Rule 5 of the CCS (Temporary Service) Rules, 1965 would not be resorted on a specific act of misconduct where an opportunity to show cause is mandated, failing which there has been a deprivation of reasonable opportunity in violation of principles of natural justice.
33. On the other hand, Shri Ajesh Luthra, learned Counsel appearing for the respondents vehemently opposed the contentions and stated that in the application form filled up in April 2002, applicant has deliberately concealed the fact of his erstwhile involvement in the criminal case.
34. Learned Counsel would contend that in the undertaking filled up by the applicant on 21.1.2003, a specific statement in writing of the applicant as to non-involvement in a criminal case in the past and his non-arrest, is not an inadvertent mistake but a deliberate act on his part. In the above fact, it is stated that by a positive act, the disclosure in the attestation form is washed off in undertaking.
35. As regards calling of the particulars from the applicant pertaining to the criminal case and further processing his case, it is stated that this should not be viewed as his further process of appointment but further processing for appropriate action against him for his deliberate act of suppressing the material information.
36. Relying upon the decision in Mohd. Sartaj and Anr. v. State of U.P. and Ors. , it is stated that if there is an admitted conclusion there would be futility in issue a direction.
37. Learned Counsel further stated that once the applicant has no right to the post, no show cause notice or opportunity is required, as having failed to rebut the contents in application form and undertaking, the applicant has no case.
38. Further relying upon the decision in Susheel Kumar's case (supra), it is stated that even after the acquittal, being an employee in a disciplined force, like Delhi Police, the character of a person is of paramount importance, which has been left to the prerogative of the employer. While referring to the decision in Virender Singh's case (supra) of the High Court of Delhi, it is stated that the applicant was only provisionally selected and even if appointed, he cannot claim any blanket immunity. As the applicant was bound by the warning in the application form, it holds a licence to the respondents to take action against the applicant at any stage.
39. Learned Counsel further relying upon the decision in Rameshwar Prasad Meena's case (supra) contended that decision in Sandeep Kumar's case (supra) was distinguished where, while filling up the application form, there was an inadvertent omission to mention the particulars of the criminal case, would not have any applicability in the present case.
40. By referring to the representation preferred by the applicant, it is stated that the applicant not to have disclosed the fact of criminal case due to misunderstanding and the fact that this had not been the deliberate mistake, is not correct, as he himself given in writing, which amounted to concealment of fact.
41. By referring to the rejoinder, Shri Luthra, learned Counsel stated that the applicant has admitted that he had given false undertaking and also concealed the fact in application form, which does not require any proof.
42. As regards the inter-departmental communication, learned Counsel would contend that the same has not been marked to the applicant and no final decision to process the case of the applicant has been taken.
43. At last, it is stated that applicant's case is squarely covered by the decision of the High Court of Delhi in Virender Singh's case (supra), and the decision of the Apex Court in Rameshwar Prasad Meena's case (supra). Accordingly, he prays for dismissal of the OA.
44. We have carefully considered the rival contentions of the parties and perused the departmental records produced by the respondents.
45. Conduct of a police officer before his appointment to the Delhi Police and post-appointment cannot be equated in the matter of initiation of action for an alleged conduct amounting to concealment and play of fraud in securing the appointment. In the matter of cancellation of candidature, the decision in Virender Pal Singh's case (supra) when not treated as a precedent absolves the Department to accord a reasonable opportunity to show cause to the concerned, who has been found guilty of suppressing material information but this prerogative is available till a candidate selected for the post is not appointed to the post.
46. In case of appointment, though the same is subjected to the verification of character and antecedents and the attestation form incorporates a warning as to termination of the candidature in the event the information is found false or any truth is suppressed. Though before the service of a person is dispensed with being a probationer or a temporary government servant if it is effected on account of the unsatisfactory performance, the same would not precede an opportunity to show cause under Article 311 of the Constitution of India.
47. However, as crystallized from the decision of the Apex Court in Dipti Prakash Banerjee v. Setyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. 1999 SCC (L&S) 596 and also in State of Punjab v. Balbir Singh 2005 SCC (L&S) 776 if the termination is simplicitor and the misconduct being a motive and does not lay down foundation of the order read with other annexures appended with the order does not cast any stigma upon the probationer or a temporary government servant, the order terminating the services cannot be interfered with in law. However, the suppression of material information before we go into the facts and circumstances of the present case, it is an admitted instance of the respondents, which is reflected not only from their order passed on representation but also the counter reply filed by them that the services of the applicant have been dispensed with on termination because he has not disclosed rather concealed the fact of his erstwhile involvement in criminal case where he has been acquitted, both in the application form and undertaking despite warning in the application form. The aforesaid has been construed to have misled the Department and was treated as a false undertaking.
48. The word 'concealment' as per the Webster Oxford English Dictionary has been defined as something kept serious or prevented from being known. There is an iota of intention to conceal or to hide in concealment. Accordingly, a fraud has been defined as a wrongful or criminal deception with an intention to have personal gain. A fraud is also deceitful or dishonest intention of the person. If one, by his act or omission, makes other to believe, which could have been believed if the true facts had come forward and the resultant advantage goes to the person holding a representation, would certainly amount to fraud.
49. In Chief Engineer, MSEB and Anr. v. Suresh Raghunath Bhokare while deliberating on the issue of fraud, the Apex Court ruled that though misrepresentation by itself would amount to fraud and appointment based on some misrepresentation gets vitiated, yet it has been further ruled that only on presumption, a fraud cannot be established.
50. The High Court of Delhi in Constable Nirbhai Singh's case (supra) clearly ruled that a fraud has to be proved only when knowingly, without believing in the truth and carelessly the material is withheld or disclosed. A past event and on its non-disclosure, it is incumbent to consider the defence of the incumbent and deeming the suppression of fraudulent concealment is a deprivation of reasonable opportunity.
51. In the above view of the matter, in a case of suppression of material information, a general proposition cannot be laid down rather facts and circumstances of each case on its individuality are to be considered.
52. As a background fact, it is not disputed that the applicant was falsely implicated in a criminal case when he was not a Constable in Delhi Police. The criminal case relates to a family dispute whereby the wife of applicant's brother alleged cruelty and demand of dowry. When such allegations have been examined by the criminal court of competent jurisdiction, an acquittal on merit whereby the claimant has not alleged any incriminating allegations against the applicant, gives him a clean chit. Applicant though not disclosed the aforesaid fact of his being involved in the criminal case and acquittal, later on in the application form, which has been filled at the inception of the recruitment process, yet before the selection process is completed in the attestation form where a warning to terminate in case of suppression, he has rightly recorded the fact of his involvement and acquittal in the criminal case. The aforesaid verification when had gone to the police station on 25.3.2004, the report indicated 'no conviction existing against the applicant' and his conduct was found to be above board. Accordingly, as per the statutory rules under Rule 6 of the Delhi Police Rules ibid when involvement before enrollment in a Delhi Police in a criminal case in which one is acquitted is no more an impediment for appointment in Delhi Police and verification of antecedents under Rule 25 ibid requires a certification of good moral character, terminating the services on the basis of conduct cannot be countenanced in law.
53. In Ramashanker Raghuvanshi's case (supra), the Apex Court right in the year 1983 ruled that mere association with a political sect is not an impediment for appointment as what is required under the guidelines is that one should not be convicted on offence. The decision of Apex Court in Susheel Kumar's case (supra) has not taken into consideration either Rule 6 or Rule 25 of Delhi Police (Promotion & Appointment) Rules, 1980. Moreover the facts in Susheel Kumar's case (supra) pertained to a case where the candidature of Constable was not found apt before appointed to the Delhi Police, which is clearly distinguishable from the present case, in which the applicant after being appointed was terminated under Rule 5 (1) of the Rules ibid. The decision as per the doctrine of precedent when does not take into consideration the statutory rules and there is no discussion to this effect, is a decision per incuriam and not a binding precedent, as per the decision of the Apex Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. . Though the order of termination is an innocuous simplicitor one, yet nothing precludes this Court in the matter of termination of service of a probationer under CCS (Temporary Service) Rules to lift the veil and to examine the circumstances preceding post-termination. Though the applicant has admitted not to have disclosed the fact of his involvement in the criminal case in which he has been acquitted, yet an acquittal in a criminal trial obliterates any stigma attached on account of involvement in a criminal offence. If the decision of the trial court acquitting the accused is on merit and has not been appealed against, it attains finality. As a result thereof, what is obliterated is the factum of FIR, proceedings in the trial court, etc.
54. However, we cannot impede the right of the appointing authority to examine the character of a person before he is appointed to a civil post. Though duty attached with a civil post acknowledges fitness as a condition precedent, it envisages appointment of an efficient and hard working person with clear background. In such view of the matter, merely on the ipsi dixit of the appointing authority on a general application of formula evolved that whosoever has been involved in the criminal case prior to appointment is not a fit person to be appointed, despite his acquittal from the criminal case, which is not only a closed mind approach but also unreasonable and arbitrary in the circumstances. There may be petty offences or family disputes as well as domestic violence, etc., where a person has been named as an accused merely because he happened to be the member of the family. In these cases where no moral turpitude is involved, the criminality of a person is not disclosed and also no corrupt motive is attributed. It cannot be assumed that such a person is not a fit person to be appointed to the civil post. Maybe in a disciplined force, like Delhi Police, the duties attached to the post of Constable requires more public dealing and responsibility, yet it is in no manner superior to the duties attached to a civil post. Accordingly, though the right is available with the appointing authority as a prerogative but the exercise on discretion is certainly amenable to judicial review as even on administrative side while performing as a public functionary, it is incumbent upon the authorities in a decision making process to reasonably balance the equation and weigh the prons and cons and then a final decision is to be arrived at, which should not be arbitrary, unfair, partial but should be judicious one and not on the ipsi dixit of the authorities.
55. In the instant case, as Dowry Prohibition Act and promulgation of Section 498A of the IPC has been rather misused than used, various judicial pronouncements have set out as a methodology to arrive at a compromise in a writ petition when the offences are not compoundable. There is every likelihood in a particular case of every family members of the bride or groom not only involved but entangled in criminal litigation to teach them a lesson out of vengeances.
56. In the present case, initially the complaint of harassment and demand of dowry was made by the wife of applicant's brother but nothing incriminating has been stated against the applicant by the trial court. As a result thereof, trial court clearly ruled that the prosecution has miserably failed to prove the charge and acquitted the applicant from criminal charges. Though under the Criminal Procedure Code, there is no concept of honourable acquittal and an acquittal holds good for all purposes but it may be important for the point of view of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 when on acquittal on certain exceptions, departmental inquiry on misconduct is not barred,
57. In the instant case, what weighed in the mind of the concerned authority to dispense with the services of the applicant is only non-disclosure of the offence but a suitability to be appointed to the Delhi Police in the context of his character on examination of the decision of the trial court, had never been considered and deliberated upon. As a result thereof, the appointing authority while terminating the services of the applicant has not discharged its obligation as to consider continuance of the applicant, despite non-disclosure in application form and undertaking but on pre-appointment alleged misconduct of the applicant of suppressing the material information, dispensed with his services.
58. A stigma cast on a government servant while terminating his services may not be derived from the order but if the attendant circumstances indicate such, the order is bad in law.
59. In the instant case, the brief history suggests that the applicant has disclosed before being appointed to Delhi Police in his attestation form on 20.12.2002 the fact of his arrest in the criminal case, involvement and acquittal thereof on 14.12.2002. The authorities have, while the applicant was under training, taken cognizance of the disclosure vide letter dated 22.5.2003 when the applicant has already been appointed to the post. The authorities sought from him the particulars of the FIR and the order of acquittal, which when submitted led to a memo issued to him by the Deputy Commissioner of Police, 2nd BN to the Deputy Commissioner of Police, 1st BN on 25.5.2004. As no privilege has been claimed by the respondents, the aforesaid memo in the interest of justice is necessary to be reproduced here, which reads as under:
Candidate (now Const.) Krishan Pal, No. 424/DAP (Roll No. 410344) had been provisionally selected as Const. (Exe.) in Delhi Police during the recruitment held in the year 2002 and allowed to join the Deptt. on 21.1.2003 (AN), subject to pending verification of his character and antecedents. His character and antecedents have been received from the authority concerned on 8.3.2004, which revealed that he was involved in a Crl. Case FIR No. 165/97 Under Section 498A/323/506 IPC and Dowry Act, PS Shikarpur (UP). Lateron, the above-said Crl. Case was decided by the Hon'ble Court vide its order dated 22.12.99 and he was acquitted of the charge as the witnesses turned hostile.
On scrutiny of Application Form submitted by candidate (now Const.) Krishan Pal, No. 424/DAP in the month of April, 2002, it has been found that he did not disclose the facts of his involvement in the relevant columns and concealed the facts deliberately. Thus, he succeeded in joining the Deptt. as Constable (Exe.) on 21.1.2003 (AN) by submitting a false undertaking (copy enclosed) stating therein that 'MERE KHILAF KISI BHI NYAYALYA MAI AAPADHIK MUKADMA VAI DIWANI MUKADAMA NA HI TO ES SAMAY CHAL RAHA HAI AUR NO KHI PAHILE MERE KHILAF KOI MUMADMA THA AUR NO HI KABHI GIRAFTAR HUA.' His character and antecedents report was received from the authority concerned on 8.3.2004. On perusal of the same it has been found that Const. Krishan Pal, No. 424/DAP while filling up the Attestation Form on 12.12.2002, he mentioned his involvement in the above-said Crl. Case. Thus, he tried to get undue benefit by adopting deceitful means, which is not tenable because of the reasons(s) that concealment of facts at initial stage and succeeded in joining the Deptt. as Const. (Exe.) by submitting false Undertaking, clearly reflects malafide intention of the Constable.
Since, Const. Krishan Pal, No. 424/DAP has concealed the facts reg. his involvement in the above-said Crl. Case in the relevant columns of the Application Form at initial stage and succeeded in joining the Deptt. as Constable (Exe.) by submitting a false undertaking, by adopting deceitful means and transferred from 9th Bn. DAP to Ist. Bn. DAP vide PHQ's transfer order No. 2366-2430/P.Br./PHQ, dated 27.1.2004 and relieved on 4.2.2004, it is requested that services of Const. Krishan Pal, No. 424/DAP may be terminated as per Rule 5 (i) of the CCS Temporary Services Rules - 1965 by issuing a Show Cause Notice as decided by PHQ vide Circular No. 3747-3900/SIP (PHQ), dated 24.2.98 (copy enclosed). While terminating the services of the above Const. Krishan Pal, No. 424/DAP, PHQ may also be informed accordingly.
The character & antecedents report of the Constable (in original), copy of FIR No. 165/97 Under Section 498A/323/506 IPC & Dowry Act, PS Shikarpur (UP) and copy of its judgment dated 22.12.99, are sent herewith for necessary action. The service record (Ch. Roll & Fauji Missal) of Const. Krishan Pal, No. 424/DAP may be obtained from DCP/9th Bn. DAP, Delhi.
60. If one has regard to the above, though the trial court has never acquitted the applicant on hostility of witness, yet what weighed in the minds of the authorities is an undue benefit cherished by the applicant on adoption of deceitful means on concealment of fact at initial stage of recruitment, i.e., filling up the attestation form and also false undertaking, which, according to the respondents, would entail termination from service on a show cause notice issued. However, the fact of his voluntary disclosure of particulars of the criminal case and further process undertook by the respondents has not at all been considered or mentioned in the memo. It is also pertinent to mention that though the memo suggested an opportunity to the applicant, yet his services have been dispensed with on termination without issue of show cause notice. The aforesaid facts, which are part and parcel and integral part of the process of termination of services of the applicant, clearly cast stigma upon the applicant of an alleged misconduct, which is the foundation of termination on adoption of deceitful means and on concealment of facts. The defence of the applicant taken later on in the representation, which he could have taken in the pre-decisional hearing, has not been considered, which has not only prejudiced him but has also deprived him of a reasonable opportunity to show cause.
61. No doubt, termination simplicitor on unsatisfactory performance of a temporary government servant or probationer may not be successfully questioned in law but it is not a case that during the period from 31.1.2003 till the date of termination when the applicant was serving with the respondents, there has not been any unsatisfactory performance to indicate his incorrigibility. As we do not find any such justification tendered by the respondents, accordingly, we rule-out the unsatisfactory performance of the applicant as the ground of his termination.
62. In the light of above, we ascertain that the termination of the applicant, which is founded on misconduct though internal inquiries have revealed non-disclosure of criminal case in the relevant application form and the memo issued inter-departmentally, non-disclosure of criminal case is not the motive but the sole ground to dispense with the services of the applicant, which cannot be countenanced without following due process of law. The orders passed by the respondents terminating the services of the applicant are not only punitive but also stigmatic as well.
63. The next issue is whether there has been any intention of the applicant to hide or to conceal his past conduct of involvement in the criminal case. An intention would be inferred if the applicant has not only in the application form but also in all other forms suppressed the material information. Though before the selection stage the applicant while filling up the attestation form disclosed such an information, which is prior to his appointment, the alleged act of concealment is condoned when such an intention was duly acknowledged by the respondents in the attestation form, yet the valid defence raised by the applicant as to inadvertence in filling up the undertaking has not at all been considered. Moreover, once the fact of a criminal case and acquittal has been disclosed, mere non-disclosure in the undertaking would not be construed as wilful concealment and undue benefit to gain entry in government service, as despite disclosure in attestation form, subject to the verification by police authorities, which has been found to be above board, the respondents having appointed the applicant, though do not concede their right to take action against the applicant of terminating his services but this right has to be exercised in judicious manner following due process of law.
64. The above discussion now leads us to the decision in the case of Regional Secretary, Board of Secondary Education, Regional Office, Meerut, U.P. (supra) wherein termination when resorted to on the grounds of alleged commission of forgery with regard to educational qualification was found to be punitive in nature.
65. Sandeep Kumar's case (supra) decided by the High Court was a case where the disclosure was made voluntary before the issuance of the show cause notice when the criminal case has ended in an acquittal. The decision in Dhaval Singh's case (supra), which has distinguished the decision in Susheel Kumar's case (supra), clearly ruled that when an information is volunteered before the selection was over and before appointment, the grounds should have been considered by the appointing authority. Here in the present case, despite asking for the FIR and acquittal order, no examination has been done and the defence has not been sought from the applicant and despite a proposal to issue of show cause notice, the same having been dispensed with without any reasons, is not a reasonable action on part of the respondents.
66. The decision of the High Court in Virender Pal Singh's case (supra) is anterior in time to the decisions in Sandeep Kumar (supra) and Constable Nirbhai Singh (supra). The decision of Apex Court in Susheel Kumar's case (supra) formed the basis, which has not taken into consideration the statutory rules and distinguished the decision in Dhaval Singh's case (supra). The aforesaid decision would not come to the rescue as a justification to the respondents.
67. Virender Pal Singh's case (supra) is case of cancellation of candidature where in the attestation form the material was disclosed, what has been sent for verification is not the application form but the attestation form as transpired from the record. However, as there is no finding in the present case as to the unsuitability and undesirability of the applicant, the ratio would have any application. The case is also distinguishable because in the aforesaid case, the person was yet to be appointed but here in the present case the applicant having been appointed, the due process of law has to be followed. In Rameshwar Prasad Meena's case (supra), which is again a case of cancellation of candidature, there has been a non-disclosure in all the forms finding that to be not inadvertent mistake, claim was turned down. However, recently the High Court of Delhi in Vinay Kumar v. The Commissioner of Police 2006 (1) ATJ 31 while dealing with the involvement in a criminal case where person's candidature was cancelled, laid stress on filling up the attestation form with the following observations:
8. In the light of the aforesaid submission of the counsel for the petitioner and the respondent, we have carefully perused the records and also the ratio of the aforesaid decisions of the Supreme Court. Filling up of the Attestation Form is an important and responsible act which has to be duly, correctly and faithfully done by an employee seeking for public service and appointment. Paragraph done by an employee seeking for public service and appointment. Paragraph 13 (a) of the said Form contained a clause whereunder the petitioner was required to disclose as to whether he was ever arrested/prosecuted. As against the aforesaid, the petitioner had mentioned an emphatic 'no'. It is required to be mentioned at this stage that the said Attestation Form to the effect that furnishing of false information or suppression of any factual information in the Attestation Form would be disqualification and is likely to render a candidate unfit for employment under the Government. It was also stated therein that if a fact, that false information had been furnished or that there had been suppression of any factual information in the Attestation Form comes to the notice of the respondent at any time during the service of a person, in that event the service would be liable to be terminated. Although the petitioner did not mention about his involvement in the criminal case in the Attestation Form as against column 13(a) of the Attestation Form despite the warning, yet he submitted that an application after about 12 days to the respondent bringing to their notice that he was in fact involved in such a criminal case. In view of the same it cannot be a plea that omission to mention about his involvement in the criminal case in the Attestation Form is a mistake and an inadvertent omission. The Attestation Form did not contain true and correct facts and information regarding his involvement in the criminal case. Therefore, the petitioner had furnished false information and also suppressed factual information in the Attestation Form which was submitted on 3.1.2002. On 4.1.2002, the said Attestation Form with the particulars filled up by the petitioner was sent for verification. It is also clear from the records that on coming to know that the information submitted by the petitioner in the Attestation Form had been sent for verification, he sent the information regarding his involvement in the criminal case 16.1.2002. Considering the entire facts and circumstances, the Committee constituted by the respondent came to the conclusion that as the petitioner suppressed material facts and factual information and furnished false information initially and also because of his antecedents, he is not a desirable person to the (be?) retained in the police service. The said conclusions have found favour with the learned Central Administrative Tribunal also.
68. In a decision of the High Court of Bombay in Shri Dattaraya Kaluram Dedge v. The Union of India and Ors. 2005 (2) ATJ 1 in the matter of suppression of facts, termination of service without affording any opportunity has held to be an infirmity in law.
69. The Apex Court in Jagdish Prasad v. Sachiv, Zila Ganna Committee, Muzaffarnagar and Anr. on non-disclosure of material before appointment, termination has been held to be illegal and violative of principles of natural justice, causing stigma.
70. In decision of three Judge Bench in T.S. Vasudavan Nair v. Director of Vikram Sarabhai Space Centre and Ors. 1988 (Suppl.) SCC 795 had not found non-disclosure of conviction as a disqualification for appointment, though in the special facts and circumstances of the case.
71. Lastly, in Ram Pal and Ors. etc. etc. v. Commissioner of Police, New Delhi and Ors. 2005 (1) ATJ 201 while interpreting Rules 6 and 25 of Delhi Police (Appointment & Recruitment) Rules, 1980 on the question of acquittal of benefit of doubt and cancellation of candidature, ruled as under:
32. Great stress was laid on behalf of the respondents that the applicants had not earned an honourable acquittal. In the Code of Criminal Procedure, expression `honourable acquittal' is an alien to the said procedure. We know from the decision of the Division Bench of the Madras High Court in the case of Union of India and Ors. v. Jayaram Damodhar Timiri wherein the Court held that there is no conception of the expression of `honourable acquittal' in Criminal Procedure Code. The Court held:
(3) ..In the first place, we are unable to understand the legal significance of an expression like 'Honourably acquitted'. Certainly, the Code of Criminal Procedure does not support this conception. The onus of establishing the guilt of accused is on the prosecution, and, if it failed to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
33. Same findings had been arrived at by the Punjab and Haryana High Court in the case of Jagmohan Lal v. State of Punjab and Ors. . It was held that:
...The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are `discharged' or `acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the court the accused is acquitted.
34. The decision of the Bombay High Court in the case of Dattatraya Vasudeo Kukkarni v. Director of Agriculture, Maharashtra and Ors. 1984 (2) SLR 222 is also to the same effect.
35. From the aforesaid, it is clear that the concept of honourable acquittal is of no avail nor the administrative authorities can question the same once a person has been acquitted.
36. Once a person is acquitted, he is exonerated of the charge that has been framed against him. Acquittal for all practical purposes put to an end to the charge framed.
37. Stress in that event was laid on the fact that the acquittal was on benefit of doubt. They relied on the Supreme Court's decision in the case of Vidya Charan Shukla v. Purshottam Lal Kaushi . While concerned with the acquittal and the disqualification under the Representation of People Act, 1951, the Supreme Court had occasion to deal with the matter. It was held that 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.
38. Be that as it may, benefit of doubt is an expression that has rooted deep into the jurisprudence in India in matters where the charge is not proved beyond all reasonable doubts. It is in the jurisprudence applicable in India as operate from the Anglo- Saxones System. It is the prosecution which is required to prove the charge beyond all reasonable doubts. When it is not established, the Courts while acquitting using the expression benefit of doubt, it cannot be taken that the Court has recorded a finding of guilt and when a person is acquitted giving him benefit of doubt, it cannot be used adversely against the said person pertaining to the said acquittal.
39. As referred to above, strong reliance is being placed on the decision of the Supreme Court in the case of SUSHIL KUMAR (supra) and also the decision of the Kerala High Court in the case of K. Sadanandan v. The State of Kerala . Indeed, the decisions are binding which permit the authorities even after acquittal to make sure that the character and antecedents of the said person are such that he is not a fit person to be taken into service. The ratio deci dendi of the decision, therefore, would be that the authorities can look into the facts about the conduct and character of a person to be appointed in service. The authority can focus on this aspect and will come to a conclusion that it is not desirable to appoint him in service.
40. But such a discretion necessarily has to be exercised in reasonable manner. Arbitrariness and reasonableness must be stated to be sworn enemies. Merely stating that because a person was involved in a criminal case and, therefore, even after acquittal he should not be taken in service, would be indeed incorrect. We have one after the other files to see the reason that has prevailed with the respondents in rejecting the claim of the applicant. As referred to above and re-mentioned at the risk of the repetition, the respondents are not forthcoming with any other material to prompt this Tribunal to conclude that the applicants were not fit to be taken into service because of their character and antecedents. There has to be some such antecedents to come to such a conclusion. The same are not shown. The reasons given are not sustainable.
72. In the above view of the matter, in the instant case, what we find from the order passed on representation that the contention put forth by the applicant and his explanation tendered in defence as to inadvertence in not disclosing the fact in application form and in undertaking whereas the disclosure in attestation form demolishes any intention to conceal or to be accorded undue benefit, has not at all been mentioned, deliberated upon or considered by the authorities. It appears that this defence has left unattended to by the respondents. In view of Constable Nirbhai Singh's case (supra), such an action cannot be countenanced in law.
73. Moreover, once a representation is preferred against the order of termination, which in the present case does not precede a reasonable opportunity to show cause as a public functionary while exercising discretion, a reasonable order was to be expected. Mere recording reasons without any reference to the contentions raised is necessarily an order with closed mind order on a mechanical application of mind, which cannot be a reasoned order in its strict sense as per the law.
74. If there are sets of cases decided by the High Court, all are precedents on us but the latest having ratio deci dendi applicable in the present facts and circumstances has to be followed is the doctrine of precedent. We follow the decisions in Constable Nirbhai Singh's case (supra) and Sandeep Kumar's case (supra).
75. In the result, for the forgoing reasons, present OA is partly allowed. Impugned orders are set aside. Consequences to follow. Respondents shall accord to the applicant a reasonable opportunity and on adoption of due process of law, they shall consider the defence. In such an event, law shall take its own course. No costs.