Central Administrative Tribunal - Bangalore
Adaveesh vs Deptt Of Posts on 13 June, 2024
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OA.No.170/00199/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00199/2023
ORDER RESERVED ON: 06.06.2024
ORDER PRONOUNCED ON: 13.06.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Sri Adaveesh,
Aged: 38 years,
S/o Late Basavantappa R. Chittargi,
Ex. GDS MC/DP Aihole B.O,
Ex. GDS ABPM,
Kakanur B.O
A/W Kulageri Cross S.O - 587 155,
R/at Aihole village - 587 124,
Hungund Taluk,
Bagalkote District ... Applicant
(By Advocate Shri P. Kamalesan)
Vs.
1. Union of India,
Rep by Secretary,
Department of Posts,
Dak Bhavan,
New Delhi - 110 001.
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OA.No.170/00199/2023/CAT/BANGALORE
2. Chief Post Master General,
Karnataka Circle,
Bengaluru - 560 001.
3. Post Master General,
N.K. Region,
Dharwad - 580 001.
4. Superintendent of Post Offices,
Bagalkote Postal Dn,
Bagalkote - 587 101.
5. Inspector of Posts,
Badami Sub Dn,
Badami - 587 201. ...Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 01.06.2023 under Section - 19 of the Administrative Tribunals Act, 1985 for quashment of the order dated 20.03.2023 (Annexure - A5) by which the services of the applicant have been terminated.
2. It is an admitted fact of the case that the father of the applicant had expired on 06.10.2003. At that time, his application for 3 OA.No.170/00199/2023/CAT/BANGALORE compassionate appointment was rejected. Thereafter, as per instructions issued from the Postal Directorate dated 05.03.2020, the review of cases rejected previously, was conducted. Thereafter, the applicant gets the compassionate appointment and joined upon the post of GDS ABPM w.e.f. 05.11.2021. After joining, the police verification was called in which the information dated 07.07.2022 was received that a criminal Complaint No. 58/2020 under Sections 287, 337 and 338 of IPC was registered against the applicant on 14.05.2020 at Aminagad Police Station and after filing the challan, the case is pending as Criminal Case No. 500/2020 before the JMFC Court, Hungund. Thereafter, a show cause notice (Annexure - A3) was issued to the applicant on 21.12.2022. The applicant submitted the reply (Annexure - A4) dated 12.01.2023. After taking into consideration the aforesaid reply, the respondents passed the order (Annexure - A5) by which the applicant was terminated from the post of GDS ABPM, Kakanur.
3. As per applicant, he was appointed on compassionate ground. A false case was registered against him in which the order of acquittal has been passed by the competent Court. The respondents committed a mistake by terminating the services of the applicant upon the ground of aforesaid criminal case. The case was related to a motor 4 OA.No.170/00199/2023/CAT/BANGALORE vehicle accident. There was no any "moral- turpitude" involved in the case. Therefore, the termination order is illegal, arbitrary and unsustainable in the law and the order should be set aside. The reliefs claimed in para 8 of the OA are as under:
i) "Quash the O/O Inspector of Posts, badami sub Dn, Badami-587201, letter No. IP/BDM/B11/ABC/Dlgs/2023 dated:
20-3-2023 vide Annexure-A5 issued by respondent No.5.
ii) Consequently direct the respondents to reinstate the applicant as GDS ABPM at Kakanur BO, with all consequential benefits.
iii) Grant any other relief as deemed fit into the facts and circumstances of the case, in the interest of justice and equity."
4. The respondents opposed the OA by filing written reply on 03.10.2023. It is submitted that the applicant himself submitted the attestation form in which he suppressed the information regarding the criminal case registered against him. The acquittal order was passed later on. At the time of filling the attestation form, the case was pending. Therefore, upon the ground of suppression of material facts, the services of applicant have been terminated. The respondents also filed the photocopy of attestation form (Annexure - R1) and the copy of the information received from the Police (Annexure - R2). Therefore respondents did not commit any mistake 5 OA.No.170/00199/2023/CAT/BANGALORE by terminating the services of applicant vide Annexure - A5 dated 20.03.2023.
5. It appears from the record that as per information given by the Police, the Complaint No. 58/2020 under Section 287, 337 and 338 was registered against the applicant on 14.05.2020. After investigation, the challan / final report was submitted before the JMFC, Hungund who registered the Criminal Case No. 500/2020. The applicant joined the post of GDS ABPM on 05.11.2021. At that time, the case was pending. An attestation form (Annexure - R1) was filled by the applicant on 16.10.2021. At that time also, the case was pending. It is true that the information regarding the pendency of criminal case was not mentioned by the applicant in Column No. 12 of the attestation form. The Criminal Case No. 500/2020 has been decided on 01.03.2023 by the Additional Civil Judge and JMFC. The applicant was charged for the offence under Sections 279, 337 and 338 of IPC and has been acquitted in the aforesaid case. It appears from paras 10 to 12 of the aforesaid judgment passed by JMFC (Annexure - A6) that the material witnesses PW1 and PW2 did not support the prosecution case and the Court came to the conclusion that the case was filed upon the basis of statements of aforesaid two witnesses but they did not support the case before the Court. 6
OA.No.170/00199/2023/CAT/BANGALORE Therefore, the Court acquitted the applicant for the offence under Sections 279, 337 and 338 of IPC.
6. In the case of Pramod Singh Kirar Vs. State of M.P. & Ors., (2023) 1 SCC 423 = 2023 [1] ESC 123 (SC) (02.02.2022) the selection was for the post of Constable. The applicant himself declared in the attestation form that he was tried for the offence under Section 498A of IPC earlier. Therefore, the Court found that the aforesaid case was decided on 30.10.2006 and the applicant was acquitted upon the basis of compromise which was executed out of the Court. In the aforesaid circumstances, the Hon'ble Supreme Court said that appellant could not have been denied the appointment solely on the ground that he was tried for the offence under Section 498A of IPC and that two for the offence alleged to have happened in the year, 2001 for which he was even acquitted in the year, 2006 may be on settlement between husband and wife.
7. In the case of Imtiyaz Ahmad Malla Vs. State of Jammu and Kashmir, AIR 2023 SC 1308, the selection was also related to the post of Constable. The applicant concealed the information that a FIR No. 52/2007 under Section 379 of Ranbir Penal Code (RPC) and Section 6 of Forest Act was registered against the applicant. On the 7 OA.No.170/00199/2023/CAT/BANGALORE basis of contradictory evidence, the trial Court gives the benefit of doubt and the accused applicant was acquitted. In the aforesaid case, the Court considered the word "honourable acquittal" by the help of previous cases decided by the Hon'ble Supreme Court. The Court referred the Pradeep Kumar's case and said that in the aforesaid case it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The Court also referred to the Para-13 of the Pradeep Kumar's case in which it is mentioned that it is well settled that acquittal in a criminal case does not automatically entitle the applicant for appointment to the post. Still, it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post? After taking into consideration, the various case law the Court held in Para-14 that:-
"In all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasized. The High Court in the impugned judgment has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with 8 OA.No.170/00199/2023/CAT/BANGALORE the same in exercise of our jurisdiction under Article 136 of the Constitution of India."
8. In the case of Avtar Singh Vs. Union of India and Others, AIR 2016 Supreme Court 3598 (decided on 21.07.2016), the three Judges Bench of Supreme Court considered the suppression of information or submitting false information in the verification form about criminal prosecution / arrest / pendency of criminal cases and the discretion of the employer to condone lapse or to terminate. The Court said in Para 22 as under:-
"22. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted / acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials / higher posts, standard has to be very high and even slightest false unsuitable for the post. However, same standard cannot be 9 OA.No.170/00199/2023/CAT/BANGALORE applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified is not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence; whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service."
9. In the aforesaid case of Avtar Singh (Supra), the Supreme Court considered the various decisions and reconciles them and thereafter summarise the conclusion as under:-
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the 10 OA.No.170/00199/2023/CAT/BANGALORE employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. (5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the 11 OA.No.170/00199/2023/CAT/BANGALORE right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(9) In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. (10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on 12 OA.No.170/00199/2023/CAT/BANGALORE basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
10. In the case of Pawan Kumar Vs. Union of India 2022 (3) All India Service Law Journal 26 (2.5.2022), the advertisement was published for the post of Railway Police Special Force (RPSF) on 27.02.2011 and the examination was held on 23rd June, 2013 and 12th June, 2014. The applicant was selected. During training, he was discharged from service on 24th April, 2015 upon the basis that a criminal case was registered against him on 04th April, 2011 under Sections 148/149/323/506 and 356 of IPC. It is found that when the applicant submitted the application for employment at that time no any case was registered against him but at the time of submission the attestation form the case was already been registered but the applicant concealed the aforesaid information. In the aforesaid situation, the Court took the note of entire circumstances and it was found that the complainant himself submitted an affidavit on 19.04.2011 that no such alleged incident on 04th April, 2011 had taken place and the bag was found beneath the driver seat itself and under misconception, a complaint was lodged by him. The prosecution witness has not supported the case of the prosecution; 13
OA.No.170/00199/2023/CAT/BANGALORE therefore, the applicant was acquitted by the trial Court by Judgment dated 12th August, 2011. In Para-11, the Hon'ble Supreme Court observes as under:-
"11. This cannot be disputed that the candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification / attestation form before and after induction into service. It is also equally true that the person who has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand. It goes without saying that the yardstick /standard which has to be applied with regard to adjudging suitability of the incumbent always depends upon the nature of post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects but no hard and fast rule of thumb can be laid down in this regard."
11. The Court also took a note that mere suppression of the fact is not sufficient, the appropriate authority should apply his mind regarding the suitability of the applicant in reference to the post applied. In Para-13, the Court observes as under:- 14
OA.No.170/00199/2023/CAT/BANGALORE "13. What emerges from the exposition as laid down by this Court is that by mere suppression of material /false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee /recruit is not to be discharged / terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material / false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge / terminate the employee from service."
12. Again in Para-18, the Court found that the denial is not proper and the discharge order issued by the Competent Authority is not sustainable. The Court said in Para-18 is as under:-
"18. The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of the Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh (Supra), in our considered view the order of discharge passed by the competent authority dated 24th April, 15 OA.No.170/00199/2023/CAT/BANGALORE 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside."
13. In the case of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. v. Anil Kanwariya (2021) 10 SCC 136 the Supreme Court considered the case from another angle i.e. from the employer's point of view and observed in para 14:-
"14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the 16 OA.No.170/00199/2023/CAT/BANGALORE employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."
14. Therefore, it appears that in case of any information suppressed by the applicant in that case also the employer having right to condone the aforesaid lapse and to consider the nature of case and the job offered to the applicant. If it is found that the aforesaid case is not adversely affected the integrity of the applicant and the applicant is not unsuitable for the aforesaid job then the employer can condone the aforesaid lapse. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse.
15. If we examine the present case in the light of aforesaid established law, then it can be said that the applicant was appointed on a very lower post named GDS ABPM. A criminal case was registered against him but the case was related to under Sections 279, 337 and 338 of IPC. If a person drives a vehicle in a rash and negligent manner and causes injury or grievous injury to another 17 OA.No.170/00199/2023/CAT/BANGALORE person or public then the case under Sections 279, 337 and 338 of IPC may be registered. Prima facie, it appears that there was no any case against the applicant for showing his "moral- turpitude". The case related to the "motor- accident" cannot affect the character of the applicant and it cannot be said that the aforesaid person will not be a fit person to perform the duties of the post of GDS ABPM. There was no any hurdle in the case of applicant's appointment upon the basis of criminal case registered under Sections 279, 337 and 338 of IPC. In view of this Tribunal, the respondents did not consider the case of the applicant in appropriate manner and in the light of the established law by the Hon'ble Apex Court in the case of Avatar Singh (supra) and the other cases mentioned hereinabove.
16. Therefore, in view of this Tribunal, the applicant was competent / fit or suitable person to perform the duties in spite the case registered against him under the Sections related to motor accident cases. Therefore, the impugned order (Annexure - A5) is hereby quashed and set aside. The respondents are directed to re- instate the applicant in service on the same post. But it is made clear that the applicant will not be entitled for the arrears of salary for the period during which he did not serve the Department. At the same 18 OA.No.170/00199/2023/CAT/BANGALORE time, he will be entitled for all notional benefits including pay, seniority and other consequential benefits.
17. The respondents are directed to pass appropriate orders within a period of 3 months from the date of this order. Therefore, OA stands allowed.
(DR SANJIV KUMAR) (JUSTICE B.K. SHRIVASTAVA)
MEMBER (A) MEMBER (J)
/ms/