Central Administrative Tribunal - Kolkata
Vijay Poddar vs Eastern Railway on 3 April, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A.No. 350/2052/2022 Date of order: 03.04.2024
Present :Hon'ble Mr. Anindo Majumdar, Administrative Member
Hon'ble Mr Rajnish Kumar Rai, Judicial Member
Vijay Poddar, son of Kanhaiya
Lal Poddar, aged about 25 years,
working as Helper(presently terminated)
in the Central Record Section,
Eastern Railway and residing at
Pandit Hata, Ward No.10, Near
Santoshi Mandir, Chakradharpur,
West Singbhum, State : Jharkhand,
Pin-833101.
.......Applicant
- VERSUS-
1. Union of India, service through the
General Manager, Eastern Railway,
17, N.S. Road, Fairlie Place,
Kolkata - 700001;
2. Principal Chief Personnel Officer,
Eastern Railway,
17, N.S. Road, Fairlie Place,
Kolkata - 700001;
3. Chief Manager, Eastern Railway,
Jamalpur, District-Munger,
Bihar - 811214;
4. Chief Workshop Manager,
Eastern Railway,
Jamalpur, District-Munger,
Bihar - 811214;
5. Works Manager,
Eastern Railway,
Jamalpur, District-Munger,
Bihar - 811214;
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6. Assistant Personnel Officer,
Eastern Railway,
Jamalpur, District-Munger,
Bihar - 811214;
7. Deputy Chief Mechanical Engineer
(Crane), Eastern Railway,
Jamalpur, District-Munger,
Bihar - 811214;
...........Respondents
For the Applicant : Mr. B. Chatterjee, counsel
For the Respondents : Mr. S. Paul, counsel
ORDER
Rajnish Kumar Rai, Judicial Member In the instant O.A., the applicant is claiming the following reliefs:-
"a) An order quashing and/or setting aside the Termination Order dated 15.07.2022 bearing L.No.F/Dy.CPO(W)/E-3(C)/Misc/Vijay Poddar;
b) An order quashing and/or setting aside the Show cause Notice dated 06.11.2021 issued by the respondent authorities to the applicant;
c) An order directing the official respondents to reinstate the applicant in his initial post after quashing the Termination Order dated 15.07.2022 and grant all consequential promotional and monetary benefits to the applicant along with interest;
d) An order directing the respondents to produce/cause production of all relevant records in connection with the instant case;
e) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
2. Fact of the case is that the applicant was selected for the erstwhile Group 'D' post in Level-1 under Scouts and Guides Quota for the year 2019-2020 in the office of Eastern Railway, Jamalpur Workshop, Jamalpur. Subsequently, on 25.06.2021 he was provisionally employed as Khalasi by the respondents. After some time, the applicant received show cause notices regarding concealment of information pertaining to criminal case pending against him. After consideration of the reply of 3 the applicant the respondents have passed the impugned order of termination from service dated 15.07.2022 on the ground of concealment and nondisclosure of facts regarding pendency of criminal case under Section 143/323/379/504 of I.P.C. pending at Chakradharpur Police Station, Chaibasa.
3. The respondents in their counter reply have submitted that on receipt of adverse Police Verification Report from the S.P/Chaibasa dated 07.07.2021, the competent authority issued show cause notice dated 06.11.2021 to the applicant and after consideration of reply to the show cause notice, the termination order was passed against the applicant in accordance with the rules on the ground of concealment of facts regarding pendency of criminal case, therefore, the termination order dated 15.07.2022 is justified.
4. Heard Learned Counsel for the parties and perused the record.
5. Contention of the applicant is that at the time of filling up of the attestation form there was no case pending against him and he was implicated in the aforesaid case which was trivial in nature. In the said case, charge sheet was submitted on 16.11.2021 and cognizance was taken by the Magistrate on 24.11.2021. In Srl.No.12(I) of the Attestation Form which was filled up by the applicant on 12.04.2021, some questionnaire were mentioned regarding pendency of criminal case, for example, "Have you ever been arrested?"; "Have you ever been prosecuted?"; Have you ever been kept under detention?" etc. In the next Srl.No.12(II) of the Attestation Form it is mentioned that "If the answer of any of the above mentioned questions is 'yes', give full particulars of the case/arrest/detention/fine/conviction/sentence/punishment, etc. and/or the nature of the case pending in the Court/University/Educational Authority etc. at the time of filling up this form."
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6. From a bare reading of the aforesaid questionnaire as well as Para 12(I) and (II) of the said Attestation Form, it appears that nowhere in the said form it is warranted regarding pendency of criminal case. Learned Counsel for the applicant submitted that in a Police Report dated 17.04.2021(Annexure A/4), it was certified by the concerned Police Station that there was no criminal case pending against the applicant. Learned Counsel for the applicant relied upon the judgment of Hon'ble Supreme Court in Avtar Singh Vs. Union of India and Others (2016)8 SCC 471 wherein an identical matter has been dealt with and in Para 38 of the said judgment it was observed as under:-
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1 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.
38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4 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:- -
38.4.1 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.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3 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
38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6 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.
38.7 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.
38.8 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.
38.9 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.
38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness.
However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. 38.11 Before a person is held guilty of "suppressio veri" or suggestio falsi", knowledge of the fact must be attributable to him."
7. From the aforesaid facts of the case it transpires that the termination order of the applicant who was provisionally appointed as Helper Group 'D' on 28.06.2021, was passed on the ground of pendency of a criminal case against him under Section 143/323/379/504 of IPC. From the impugned termination order dated 15.07.2022 it is apparent that later on the applicant was acquitted from the charges by the judgment of Learned S.D.G.M. (Porahat), Chaibasa, Civil Courts , West Singbhum dated 09.05.2022. The respondents have passed the order of termination against the applicant without following the departmental proceeding as per Para 2 of the RBE No.110/1993 wherein it is mentioned that "whenever it is found that a Government Servant who was not qualified or eligible in terms of the 6 recruitment of service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service." Since the applicant was provisionally appointed and not confirmed/completed his probation period, therefore, the respondents have justified the order of termination only after giving a show cause notice.
8. Only question that emerges for consideration is regarding declaration made in the Attestation Form. The applicant has been terminated due to non-disclosure of the pending criminal case against him. From a perusal of Para 12(I) of the Attestation Form i.e. the questionnaire, nowhere it was asked "whether any criminal case is pending or not." However, questions like "Have you ever been arrested"; "Have you ever been prosecuted" and "Have you ever been kept under detention" etc. were framed. Therefore, there is no wrong in the information provided in the Attestation Form and the applicant is squarely covered by the judgment of Hon'ble Apex Court in Avtar Singh (supra) where in Para 38.4.1 it is stated that :-
"38.4.1 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."
In the present case, the applicant was exonerated/acquitted from the criminal case which was trivial/petty offence in nature which does not disclose the applicant unfit for the post in question. Therefore, the discretion exercised by the employer is not in accordance with the settled legal position. Further, in Para 38.4.3 of the judgment in Avtar Singh it is stated that :-
"38.4.3 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 7 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."
9. From perusal of the aforesaid judgment of Avtar Singh(supra) and facts of the case it appears that the information sought in the Attestation Form are not specific and vague in nature. In the instant case, the investigation is related to a case where the applicant was first chargesheeted on 16.11.2021 i.e. after filling up of the Attestation Form on 12.04.2021 and also after issuance of the appointment order dated 25.06.2021 in favour of the applicant. Therefore, the same cannot be taken into consideration while terminating the services of the applicant.
10. In view of the facts and circumstances of the case and also in the light of the aforesaid legal position, the impugned order dated 15.07.2022 is hereby quashed. The matter is remanded back to the Respondent No.4 i.e. the Chief Workshop Manager, Eastern Railway, Jamalpur to consider the case of the applicant afresh in the light of the judgment of Hon'ble Supreme Court in the case of Avtar Singh(supra) within a period of three months from the date of receipt of a copy of this order. Accordingly this O.A. is partly allowed. No order as to costs.
(Rajnish Kumar Rai) (Anindo Majumdar) Judicial Member Administrative Member Sb