Central Administrative Tribunal - Delhi
Naresh Chand Jatav vs Comm. Of Police on 19 September, 2023
1 OA No. 302/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.302/2016
Order reserved on: 01.06.2023
Order pronounced on: 19.09.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Naresh Chand Jatav, Age 27 years (Fresh appointment),
S/o Late Sh. Phool Singh,
R/o Village & Post Officer-Kathumar,
Tehsil-Kathumar,
District Alwar,
Rajasthan.
....Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD through
The Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110013.
2. The Commissioner of Police,
Police Headquarters, I.P.Estate,
M.S.O. Building, New Delhi.
3. The Addl. Dy. Commissioner of Police,
Recruitment Cell,
New Police Line,
Delhi.
4. The Dy. Commissioner of Police,
South District through
The Commissioner of Police,
Police Headquarters, I.P.Estate,
M.S.O. Building, New Delhi.
2 OA No. 302/2016
5. The Lt. Governor of Delhi,
Raj Niwas, Delhi
6, Raj Niwas Marg,
Delhi-110054.
... Respondents
(By Advocate: Mr. Surya Nath Pandey)
ORDER
By Hon'ble Manish Garg, Member (J) Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following relief(s):
"(i) To quash and set aside the order dated 14.08.2015 whereby the candidature of applicant to the post of Constable (Exe.) is put under notice, order dated 15.10.2015 whereby the candidature of the applicant to the post of Constable (Exe.) has been cancelled, order dated 13.11.2015 whereby the approval for the appointment on compassionate ground in respect of applicant has been withdrawn and to further direct the respondent to appoint the applicant to the post of Constable (Executive) with all consequential benefit including seniority and promotion and pay & allowance.
Or/and
(ii) Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. Brief facts of the case, as projected by the applicant, are as follows:
2.1 The name of the applicant was approved by the Police Establishment Board for appointment to the post of Constable (Exe.) in Delhi Police on compassionate grounds.
2.2 Thereafter, he was given appointment as Constable (Exe.) in the year 2011 on compassionate grounds after the 3 OA No. 302/2016 death of his father who died after rendering more than 20 years of service to the department, to redeem the financial hardship faced by the bereaved family.
2.3 The applicant was implicated in case FIR No.320/2011 under Section 13 of Rajasthan Public Gambling Ordinance, PS, Lathumar, Rajasthan wherein the learned court ordered the applicant to pay a fine of Rs.400/- and released him vide order dated 26.09.2012.
2.4 The applicant was served with a Show Cause Notice (SCN) dated 14.08.2015, which reads as follows:
"On receipt of your character & antecedents from SP/Alwar, it was revealed that you were involved in criminal case FIR No.320/2011 dated 31.10.2011, u/s 13 Rajasthan Public Gambling Ordinance, PS/Kathumsar (Rajasthan) in which the Hon'ble Court ordered to fine a sum of Rs.400/- and released you vide order dated 26.09.2012.
On Scrutiny of Attestation Form filled up by you, it was revealed that you did not disclose the facts of your involvement in the above said criminal case in the relevant column of attestation form and concealed the same deliberately despite clear warning given at the top of the form that furnishing of any false information or concealing any facts will be treated as disqualification. Thus, you have concealed the facts of your involvement in the above said criminal case in the relevant column of attestation form and tried to seek appointment in Delhi Police by adopting deceitful means through malafide intention."
2.5 The applicant replied to the said SCN on 01.09.2015. However, vide impugned order dated 15.10.2015 his candidature was cancelled by a non-speaking and mechanical order, causing great prejudice to him. 4 OA No. 302/2016 2.6 Thereafter, vide order dated 13.11.2015 the respondents have withdrawn the name of the applicant which was approved for appointment on compassionate grounds in Delhi Police, which has caused prejudice to him. Hence the OA.
3. Pursuant to the notices issued by the Tribunal, the respondents entered appearance and filed their counter-reply, thereby vehemently opposing the claim of the applicant. It is submitted that the name of the applicant was approved by Hon‟ble Lieutenant Governor of Delhi for the post of Constable (Exe.) Male in Delhi Police, subject to satisfactory verification of character and antecedents, medical fitness and final verification of his documents etc. 3.1 On receipt of character and antecedents of the applicant from SP, Alwar, Rajasthan, it was revealed that a criminal case vide FIR no.320/2011 dated 31.10.2011 under Section 13 of Rajasthan Public Gambling Ordinance Act, PS Kathumar was registered against him, which culminated into a fine of Rs.400/- upon him and he was released vide order dated 26.09.2012.
3.2 On scrutiny of attestation form filled up by the applicant for verification of his character and antecedents, it was revealed that he had concealed the facts of his involvement in the aforesaid criminal case and deliberately concealed the same despite clear warning to that effect in the attestation 5 OA No. 302/2016 form that furnishing of any false information or concealing any facts will be treated as disqualification. 3.3 Accordingly, as per the instructions on the subject, the applicant was issued a SCN, asking him to explain as to why his candidature for the post of Constable (Exe.) Male in Delhi Police should not be cancelled. In response to the SCN, the applicant submitted his reply on 01.09.2015 stating therein that he was not aware about the fact that once the fine imposed by the learned court has been deposited by the offender, it would not have any effect on his future in any manner. It was further pleaded that this belief was also strengthened on perusal of report of SP, Alwar, dated 12.03.2013 in which there was no mention of any criminal record against him as per the record of the concerned Police Station.
3.4 After considering his plea in detail, the respondents have not found the same justifiable keeping in view the reasons given by her in column no.11(b) of the attestation form where he has clearly mentioned that "mere khilaf kabhi FIR nahi hui" and thus he has concealed the fact of his involvement in the above said criminal case deliberately despite clear warning at the top of the form that furnishing of any false information or concealing any facts will be treated as disqualification. He has thus tried to seek appointment in 6 OA No. 302/2016 Delhi Police by adopting deceitful means through malafide intention, hence, his candidature to the post in question was cancelled vide Memo dated 15.10.2015 and his name was withdrawn from the list of approved cases for appointment in Delhi Police on compassionate grounds.
3.5 In view of the submissions made hereinabove, the respondents have submitted that the OA is liable to be dismissed being devoid of merit.
4. We have heard learned counsel for the respective parties and gone through the pleadings on record.
5. Analysis:
5.1 To examine the case of the applicant, for the sake of brevity, the impugned order dated 13.11.2015 is reproduced below:
"It is intimated that your approved case for appointment as Const. (Exe.) in Delhi Police on compassionate ground is hereby withdrawn, as you concealed the facts and failed to disclose your involvement in criminal case."
5.2 Even though we find that the initial orders dated 14.08.2015 and 15.10.2015 same reasons have been assigned, however, there is no reason assigned in the impugned order dated 13.11.2015. It is not in dispute that there was a non-disclosure on the part of the applicant for his criminal involvement at any stage either in attestation form or 7 OA No. 302/2016 otherwise regarding involvement in a criminal offence under the Rajasthan Gambling Act. We also observe that the present case is a case for grant of compassionate ground appointment and not under direct recruitment process. In strict sense clause 9 of Standing Order No.398/2010 is applicable to recruitment process, which reads as under:
"9. If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service."
5.3 However, we find that in case of compassionate appointment also, the aforesaid rule can be invoked and taken into consideration. We also find that it is a matter of record that vide order dated 15.01.2016 the Criminal Court extended the benefit of Section 12 of the Probation of Offenders Act. The relevant part of the order reads as under:
"प्रार्थना पत्र पर सुना तर्ा पत्रावली का अध्ययन ककया गया I न्यायालय द्वारा प्रार्ी की स्वेच्छया जुमथ स्वीकारोक्ति के आधार पर उसे किनाां क 26.09.2012 को धारा 13आरपीजीओ के अपराध में िोषी घोकषत ककया गया र्ा I प्रार्ी द्वारा स्वयां को किल्ली पुकलस में अनुकांपा पर कनयुक्ति कमलना बताया है तर्ा उि िोषकसक्ति से उसको कमलने वाली अनुकांपा नौकरी में बाधा होना बताया है I ऐसे में उपरोि तथ्ोां ,पररक्तथर्कतयोां को िे खते हुए प्रार्ी को किनाां क 26.09.2012 को धारा 13 आरपीजीओ में िोषकसि ककये जाने की अवथर्ा में उसे धारा 12 पररवीक्षा अकधकनयम का लाभ इस आिे श से प्रिान ककये जाने के कनिे श किये जाते हैं कक उि िोषकसक्ति का कोई कवपरीत प्रभाव अकभयुि की ककसी योग्यता ,अहथ ता पर अर्वा भकवष्य में लगने वाली सरकारी नौकरी पर नहीां पड़े गाI "
5.4 Though this order has been passed subsequent to the impugned office order dated 13.11.2015 rejecting the candidature of the applicant but before filing of present OA, 8 OA No. 302/2016 i.e., 21.01.2016. The Hon‟ble Apex Court in the recent judgment culled out the principles in the matter of disciplinary proceedings in the case of Ex Const/Dvr Mukesh Kumar Raigar vs. Union of India, SLP (C) No.1049/2022 decided on 16.01.2023, the relevant part of the order reads as under:
"8. It may be noted that even after the guiding principles laid down in the case of Avtar Singh by the three-judge Bench, divergent views were expressed by the various benches of this Court. Therefore, this Court in case of Satish Chandra Yadav Vs. Union of India & Others. 2, after taking into consideration the inconsistent views taken in the cases of Union of India & Ors. Vs Methu Meda3; Union of India vs. Dilip Kumar Mallick4; Pawan Kumar vs. Union of India & Anr. 5; Rajasthan Rajya Vidyut Prasaran Nigam Limited & Anr. vs. Anil Kanwariya6; Mohammed Imran Vs. State of Maharashtra & Others7; etc., further laid down following principles:
"89. xxx xxx xxx "90. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows:
a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security.
[See Raj Kumar (supra)]
b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.
c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing 9 OA No. 302/2016 on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.
d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided.
e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.
f) Is there any element of bias in the decision of the Authority?
g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?"
5.5 The aforesaid ratio laid down by the Hon‟ble Apex Court clearly stipulates Clause (d) which reads as under:
"d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided."
5.6 The said guiding principles arises out of the law laid down in the case of Avtar Singh vs. Union of India, (2016) 8 SCC 471 and Satish Chandra Yadav Vs. Union of India & Other, (2022) SCC Online SC 1300. The issue raised in the instant OA is no more res integra and stands concluded by a recent decision of this Tribunal in Subodh Gautam vs. Govt. of NCT of Delhi and others, OA No.1825/2022 decided on 19.05.2023. However, for the sake of clarity, relevant part thereof reads as under:
"7.1 In view of the aforesaid discussions, it is clear that applicant was involved in a criminal case which he has concealed from the respondents. The offer of appointment 10 OA No. 302/2016 issued to him was subject to the terms and conditions attached with it and it also specifically contained a stipulation that pendency of any criminal case or conviction etc. would be taken as adverse against him and he will not be entitled to be appointed to the post of Grade-IV (DASS)/Junior Assistant. Once he has concealed the relevant information as to his involvement in the criminal case, registration of FIR and released on bail, we are of the considered view that the respondents have rightly denied appointment to the applicant in view of the aforesaid clause in the offer letter. Furthermore, mere selection does not confer any right upon a candidate to be appointed. In any case, the selection was subject to the satisfactory report regarding character and antecedents on the part of the applicant. We, therefore, do not find any fault in the impugned order dated 07.04.2022 whereby the candidature of the applicant has been cancelled in view of his involvement in criminal case and registration of FIR etc. 7.2 OA, therefore, fails and is accordingly dismissed."
5.7 It is not in dispute that Standing Order No.398/2010 deals with policy for deciding cases of candidates provisionally selected in Delhi Police, involved in criminal cases (facing trial or acquitted). Clause 6 thereof relevant for our purpose is reproduced below:
"6) Such candidates against whom chargesheet in any criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later acquitted or acquitted by extending benefit of doubt or the witnesses have turned hostile due to fear of reprisal by the accused person(s), he/she will generally not be considered suitable for government service. However, all such cases will be judged by the Screening Committee of PHQ to assess their suitability for the government job. The details of criminal cases which involve moral turpitude may kindly be perused at Annexure „A‟."
5.8 Probation of Offenders Act is akin to Rajasthan Public Gambling Act. However, in the present case it is not in dispute that benefit of Probation of Offenders Act has been extended to the applicant. We also find strength from a 11 OA No. 302/2016 decision rendered by the Hon‟ble Apex Court in Sunil Kumar Rai vs. Union of India, Special Leave to Appeal (C) No.23192/2012 decided on 22.11.2016, in which same issue has been dealt with.
5.9 As we have already noticed that the present matter pertains to appointment on compassionate grounds in Delhi Police, which was approved by Hon‟ble Lt. Governor of Delhi for the post of Constable (Exe.), it was incumbent upon the respondent authority to refer the case of the applicant for taking a call before rejecting his candidature on concealment of facts to Hon‟ble Lt. Governor. Taking a clue from Clause 9 of the Standing Order, even though it cannot be strictly applied to the compassionate appointment for extending the benefit of Offenders of Probation Act, in the light of order dated 15.01.2016 passed by the Criminal Court, extending the same benefit under Section 12 of the said Act that it will not have any adverse effect on future employment, thereafter it is imperative that a holistic view ought to be taken by Hon‟ble Lt. Governor of Delhi, as the case pertains to appointment on compassionate grounds, by exercising the discretion which solely lies with the Hon‟ble Lt. Governor.
6. Conclusion:
6.1 In view of the above, the impugned orders dated 14.08.2015, 15.10.2015 and 13.11.2015 are set aside. We 12 OA No. 302/2016 remand the mater back to Hon‟ble Lt. Governor for taking appropriate call qua the candidature of the applicant, keeping in view the fact that the criminal court had already extended the benefit under Section 12, and also in the light of law laid down by Hon‟ble Apex Court and this Tribunal for extending the benefit.
6.2 It is made clear that in the event the Hon‟ble Lt.
Governor finds favour to extend the benefit to the applicant, appropriate order for offering appointment and joining shall be issued within a period of 30 days from the date of passing of such order. It is made clear that applicant shall be entitled to all consequential benefits from the date of joining only strictly in accordance with Rules. OA stands disposed of in the aforesaid terms.
7. No order as to costs.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟