Central Administrative Tribunal - Delhi
Shisan Kumar vs Government Of Nct on 29 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1503/2010 New Delhi this the 29th day of July, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Mr. Shailendra Pandey, Member (A) Shisan Kumar S/o Shri Arujun Singh Village & Post Kurlan, Tehsil Asandh, District Karnal, Haryana-132046. ..Applicant By Advocate: Ms. Lipika Sharma. Versus 1. Government of NCT Chief Secretary, Secretariat Delhi. 2. The Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 3. Deputy Commissioner of Police, 4th Bn. DAP, New Police Lines, Kingsway Camp, Delhi. ..Respondents By Advocate: Shri R.N. Singh with Ms. Sangita Rai. ORDER (ORAL)
By Honble Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to issue letter of appointment to him from the back date as given to other candidates who had passed the test along with him.
2. It is stated by the applicant that he had applied for the post of Constable (Executive) Male in Delhi Police during the recruitment period 2009. He was provisionally selected against Roll No. 446499 subject to medical fitness, verification of character and antecedents and final checking of documents etc. He had appeared in the written examination on 19.8.2009 and appeared for the medical test also held on 20.11.2009. However, all other persons were allowed to join but since no joining letter was given to the applicant, he approached the department whereupon he came to know that he has not been found fit for appointment because of a criminal case that was disposed of way back in 2007. Being aggrieved, he wrote letters to the Commissioner of Police stating that after acquittal, he had served in the military service also and he had no criminal record which is certified by the military. In spite of all these explanations, applicant was served with a show cause notice dated 19.3.2010 calling upon him to explain why his candidature should not be cancelled for concealing the material facts. In response thereto, applicant stated that at the time of filling up the attestation form there was no criminal case or FIR pending against him, therefore, it cannot be stated that he had concealed any facts. In spite of it, till date applicant has not been given the joining. In these circumstances, applicant had no other option but to file the present OA.
3. Counsel for the applicant placed reliance on judgment of Honble Supreme Court in the case of State of Haryana & Others Vs. Dinesh Kumar reported in JT 2008 (1) SC 390 to state that a person should be given the benefit of mistaken impression.
4. Respondents have opposed this OA. They have explained that during the year 2009, an advertisement to fill up 6141 vacancies for the post of Constables (Executive) Male in Delhi Police was given in the leading newspapers out of total posts, 3101 posts were for UR, 1658 posts for OBC, 921 posts for SC and 461 posts for ST category. 10% reservation was also given to ex-servicemen candidates as per the rules. In response to the advertisement, applicant had applied for the post under ex-serviceman quota in General Category. After undergoing the selection he was provisionally selected against Roll No. 446499. However, the selection was subject to verification of character and antecedents, medical fitness and final checking of documents etc. He was declared medically fit but on verification of his character and antecedents, it revealed that he was involved in cross criminal case FIR No.299 dated 6.6.2004 (Criminal Case No.348/2006) under Section 323/325/34 IPC, Police Station Asandh, District Karnal (Haryana). Though later on, the above said criminal case was decided vide order dated 24.3.2007 and the applicant was acquitted, but this fact was not revealed by the applicant in his application form and the attestation form filled on 17.3.2009 and 24.10.2009 respectively. On the contrary, in the attestation form he had specifically mentioned as follows:-
Mere Uper Koi Abiyog Nahi Chala Hai & Mere Uper Koi FIR Nahi Darj Hui Hai despite clear warning given at the top of these Forms that furnishing any false information or suppression of any factual information would be a disqualification for the job
5. In view of above, show cause notice dated 19.3.2010 was served on the applicant proposing cancellation of his candidature for the post of Constable (Executive) Male on account of concealing the facts of his involvement in cross criminal case. Applicant gave his reply but he was found not suitable for the post of Constable (Executive) Male in Delhi Police as such his candidature for the post of Constable was rightly cancelled vide Memo dated 20.5.2010 (page 52). The OA may, therefore, be dismissed.
6. Counsel for the respondents placed reliance on the judgment given by Honble Supreme Court in DAD Vs. Sushil Kumar, KENDRIYA VIDYALAYA SANGATHAN and OTHERS VS. RAM RATAN YADAV reported in 2003 (3) SCC 437 and the order dated 4.6.2010 given in OA No. 1640/2009 and dated 13.4.2010 given in OA No. 1710/2008 by this Tribunal.
7. We have heard both the counsel and perused the pleadings as well as the original record.
8. Perusal of the application form submitted by the applicant shows that at the top of the application form itself there is a warning, which reads as under:-
Furnishing of false information or suppression of any factual information in the application form would be a disqualification for the job
9. In Clause 15 there were 5 specific questions raised in the application form, out of which 2 may be relevant for this OA. They read as under:-
(a) Whether any FIR or criminal case has ever been registered against you?
Applicant had tick marked the column No against this question.
Whether any FIR or criminal case is pending against you in any court of law, or with police at the time of submitting the application present?
) Have you ever been arrested or detained in any criminal case (s)?
Have you ever been tried and convicted or acquitted by a Court of Law in any criminal case (s)?
Against this question also he had tick marked as No.
Have you ever been tried and convicted by the court by filing any bond for good behaviour, etc. At the bottom of this application, there was a declaration in Clause 18, which reads as under:-
18. DECLARATION: I hereby declare and confirm that all the entries in this application are correct. I undertake that, in case any information furnished by me is found to be false or incomplete or any material information concealed by me, my candidature may be cancelled and all my claims for the recruitment will stand forfeited The applicant had put his signature on this application form after the declaration, meaning thereby that he was fully aware about the consequence of giving the false information or concealing the facts. In fact he had given in writing that in case any information furnished by him is found to be false or any material information is found to have been concealed, his candidature may be cancelled.
10. Not only this, after this the applicant had filled up the attestation form on 24.10.2009 wherein once again the warning is given at the very top. It is relevant to note the answers given by the applicant to question No.11 which read as under:-
This clearly shows that applicant had specifically written in his attestation form that no case has been filed against him nor any FIR has been registered against him. This is definitely contrary to the report which the department received on verification of his character and antecedents, which revealed that cross criminal case FIR No.299 dated 6.6.2004 (Criminal Case No.348/2006) under Section 323/325/34 IPC, Police Station Asandh, District Karnal (Haryana) was registered against him though ultimately the applicant was acquitted by the court. The fact remains that the applicant did conceal the material fact that he was involved in a criminal case.
11. In such circumstances the consistent view taken by the Honble Supreme court is as under:-
(i) In Delhi Administration through its Chief Secretary and Others Vs. Sushil Kumar reported in JT 1996 (10) SC 34 it was held as under:-
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 focused this aspect and found it not desirable to appoint him to the service.
(ii) In Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437 Honble Supreme Court has held as under:-
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. 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. 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.
It being not in dispute that a criminal case 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.
(iii) In R. Radhakrishnan Vs. Director General of Police and others reported in 2008 (1) SCC 660 Honble Supreme Court had again the occasion to consider such a case. It is relevant to note that in this case the OA was allowed by the Tribunal by observing that since appellant had been acquitted in the criminal case, there did not exist any reason as to why he should be denied appointment to the post of Fireman. This view was not approved of by the Honble Supreme Court. The question posed to the appellant therein and answers given were as follows:-
** **
15. Have you ever been concerned in any criminal case as accused ? No
16. Have you ever been arrested or convicted and sentenced to undergo imprisonment or pay a fine in any criminal or other offence ? If so, give details with C.C. No. and Court. No ** *** ***
18. Are there any civil or criminal cases pending against you ? If so, details No"
After considering the rival contentions, Honble Supreme Court has held as follows:-
10. Indisputably, Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to dis-close a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed The appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise.
(iv) The same view was reiterated in U.O.I. and Others Vs. Bipad Bhanjan Gayen reported in 2008 (11) SCC 314 wherein it was held as under:-
Recruitment process Character and antecedents verification Wrong information furnished by candidate in attestation form regarding his involvement in criminal cases Held, a valid ground for termination during probation period, particularly when appointment was made subject to verification of particulars given in the attestation form Such termination is not stigmatic or penal Question of natural justice does not arise Further held, candidates subsequent discharge in criminal cases was of no consequence for the reason that ground for termination was furnishing of wrong information and not involvement in criminal cases The fact that respondent was employed in a police force, requiring high degree of integrity, also taken into consideration.
Termination of the respondent in that case was upheld by the Honble Supreme Court.
(v) The same view has been reiterated by the Honble Supreme Court in the latest judgment in the case of Kamal Nayan Mishra Vs. State of Madhya Pradesh and Others reported in 2010 (2) SCC 169 wherein it was specifically held that a probationer who gives wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment can be terminated without giving any opportunity to show cause against proposed termination.
12. Perusal of above judgment would show that a consistent view has been taken by the Honble Supreme Court that if a person suppresses the material fact with regard to his involvement in a criminal case and is terminated by the department, it calls for no interference. The present case is fully covered by the above judgments.
13. We would be failing in our duties if we do not deal with the judgments relied upon by the counsel for the applicant. Learned counsel for the applicant has placed reliance on the judgment of Honble Supreme Court in State of Haryana Vs. Dinesh Kumar reported in 2008 (3) SCC 222. However, perusal of the said judgment shows the question which was considered by the Supreme Court was entirely different. Honble Supreme Court was dealing with the concept of arrest and custody in a criminal case as raised in the facts of the said case. The respondent therein had appeared before the Magistrate and had been released without being taken into formal custody. The question raised was whether it could amount to arrest for the purpose of the query in Column 13A. One bench of the High Court had taken the view that since the accused had neither surrendered nor had been taken into custody, it could not be said that he had actually been arrested. On the other hand, another bench of the same High Court dismissed similar writ petitions filed by Lalit Kumar and Bhupinder, without examining the question as to whether they had actually been arrested or not. The said bench decided the writ petitions against the writ petitioners upon holding that they had withheld important information regarding their prosecutions in a criminal case though ultimately they were acquitted. The issue considered by the Honble Supreme Court was thus the concept of arrest and custody in connection with a criminal case, therefore, it is distinguishable. This case would not advance the case of the applicant because whether he was arrested or not is not even the issue here. The issue in present case is since applicant had concealed the material fact regarding his involvement in criminal case whether cancellation of his candidature calls for any interference. We have already demonstrated above that applicant had not only given wrong statement but had suppressed the fact regarding his involvement in the criminal case, therefore, if respondents formed an opinion that applicant is not suitable for the job, it calls for no interference. The OA is accordingly dismissed. No order as to costs.
(MR. SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER) MEMBER (J) VICE CHAIRMAN (A) Rakesh