Central Administrative Tribunal - Ernakulam
Cheriyakoya Poovakechetta vs Union Territory Of Lakshadweep on 6 March, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
CIRCUIT SITTING AT KAVARATHI
Original Application No.181/00078/2015
Monday, this the 6th day of March, 2017
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
Cheriyakoya Poovakechetta, S/o.Attakoya,
Poovakechetta House, Amini Island,
Union Territory of Lakshadweep. . . . Applicant
(By Advocate M/s.Sheriff Associates)
Versus
1. Union Territory of Lakshadweep,
represented by its Administrator,
Administration of Union Territory of Lakshadweep,
Secretariat, Kavarathi - 682 555.
2. The Superintendent of Police,
Union Territory of Lakshadweep, Kavarathi - 682 555.
3. The Sub Inspector of Police,
Amini Police Station, Amini Island,
Union Territory of Lakshadweep - 682 557. . . . Respondents
(By Advocate Mr.S Manu)
This application having been heard on 21 st February 2017, the
Tribunal on 6th March, 2017 delivered the following :
ORDER
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER This Original Application has been filed by the applicant seeking a direction to be issued to the respondents to give him appointment as Fireman/Driver Operator based on inclusion of his name in Annexure A-2 select list.
2. Here is the gist of the case stated by the applicant :
By Annexure A-1 notification dated 1.1.2013 applications were invited from eligible and qualified local candidates of Lakshadweep for recruitment to the post of Fireman/Driver Operator. The applicant applied for the post. He was shown as Sl.No.25 in Annexure A-2 select list. But he was denied appointment on the ground that he was involved in criminal cases. Two of the cases wherein the applicant was arrayed as accused were settled with the parties therein based on which the Hon'ble High Court of Kerala quashed those proceedings as per Annexure A-3 and Annexure A-4 judgments. Other cases wherein the applicant was arrayed as one of the accused were also registered in connection with the political activities. Unless and until the accused is found guilty by the competent court, he is presumed to be innocent. Since two cases were already quashed by the Hon'ble High Court, the respondents should not have denied appointment to the applicant merely for the reason that he was arrayed as accused in criminal cases.
3. The claim for appointment made by the applicant is strictly resisted by the respondents contending as follows :
The applicant had suppressed material facts that there were five criminal cases pending against him in the application submitted by him pursuant to the Employment Notification issued for that purpose. 323 applications were received for filling up 50 posts. After scrutinizing the applications check list were published as per Notice dated 12.8.2013. On scrutiny, 80 candidates were found eligible for consideration as per Recruitment Rules. Those 80 candidates were called for physical measurement, endurance test etc. Out of them 70 candidates appeared for recruitment. Out of them 15 candidates were disqualified and 55 candidates were declared as qualified in physical measurement. 33 candidates out of the 55 considered above were qualified for physical endurance and driving test. Thus the department published conditional select list for more transparency. Selection of those 33 candidates were subject to medical examination and police verification. Instruction No.6/Column No.6 of Annexure A-1 Notification makes it clear that if a candidate is found ineligible at any stage his candidature will be cancelled without any prior notice. In this Original Application the applicant has stated that he was implicated as accused in four cases. In fact the applicant was involved in five criminal cases. Out of which he was acquitted in one case, two cases were quashed by the Hon'ble High Court only on the ground of out of court settlement. The applicant has deliberately suppressed the fact that he was involved in five criminal cases and gave a false information regarding his character and antecedent in the prescribed application form. The applicant has stated about his involvement in the criminal cases only in the Original Application and not in Annexure R-1 (a), the application form for selection. Hence the respondents prayed for dismissal of the Original Application.
4. Heard the learned counsel appearing for both sides.
5. The short point that arises for consideration is whether the denial of appointment of the applicant is illegal and whether it is liable to be interfered with by this Tribunal.
6. Annexure A-1 is the notification dated 1.1.2013 where the respondents invited applications from eligible and qualified local candidates of the Lakshadweep for recruitment to the post of Fireman/Driver Operator. Number of vacancy was 50. It is not disputed that applicant appeared in the selection process. Annexure A-2 is the select list dated 4.3.2015 published by the respondents wherein 33 candidates were shown to have been selected. Out of which the applicant figures at Sl.No.25. Admittedly there were only 33 candidates selected out of which the applicant was Sl.No.25. Therefore the required candidates could not be obtained to fill up the vacancies.
7. The whole thrust of the argument advanced by the learned counsel for the applicant is that it was only out of ignorance that the applicant did not furnish the required particulars in Column No.16 to Annexure R-1 (a). Annexure R-1 (a) is the application submitted by the applicant. Column No.16 reads :
'16(i). Have you ever been arrested or prosecuted or convicted, imprisoned bound down, interned, externed or other wise dealt with under any law in force in India or outside?
(ii) Are you involved in any criminal case or any criminal case pending against you?
Yes ____ No _____ : If yes, state particulars.'
8. Since the information sought is very specific and definite the applicant cannot plead ignorance and contend that it was out of ignorance he did not fill up the information. It is pointed out by the learned counsel for the respondents that till it was found out by the respondents that he was involved in five criminal cases and that he had suppressed material facts, the applicant did not submit any representation to the authorities concerned that there was mistake in statement contained in Annexure R-1 (a). Not only that, to bolster up his case long after Annexure A-2 list was published, he got Annexure A-3 and Annexure A-4 orders dated 30.7.2015 quashing two criminal cases which were pending against him. The question is not whether he was acquitted or proceedings were quashed subsequently but the crucial point is whether at the time of submitting his application there were criminal cases pending against him. It was his bounden duty to disclose the pendency of criminal cases in Annexure R-1 (a), the application form. The very fact that he gave the answer 'No' itself will affect his credibility and that alone is sufficient to deny him appointment or to cancel his appointment even if he had been appointed without noticing the same. He has made a declaration that 'all the statements made in the said application (Annexure R-1 [a]) are true, complete and correct to the best of my knowledge and belief'. It was further declared, 'in the event of any information being found false or incorrect or ineligibility being detected before or after the appointment, my candidature/appointment is liable to be cancelled.' Therefore the contention now advanced by the applicant that it was only out of ignorance he did not fill up and so he should be given appointment cannot be countenanced at all.
9. Learned counsel for the applicant has vehemently argued that simply because the applicant was arrayed as accused that should not be a reason to deny him appointment since the petitioner should be presumed to be innocent till he is convicted. It is also contended that the employer has to take notice of the special circumstance of the case, if any, while cancelling or denying appointment. Para 30 of the Supreme Court judgment in Avtar Singh Vs. Union of India & Others (CDJ 2016 SC 607) has been relied upon by the learned counsel for the applicant. Certain stipulations/conditions were seen summarized in para 30 of the judgment. The first conclusion itself is that 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 the required information. Here Annexure R-1 (a) will clearly show that he had suppressed the material fact as to the pendency of five criminal cases as on that date.
10. Condition No.2 in the judgment supra says that the employer has to take notice of special circumstances of the case, if any, while giving such information. The contention vehemently advanced by the learned counsel for the applicant is that the circumstance prevailing in Lakshadweep islands that if one person is arrayed as an accused in one case having political colour he will be arrayed as an accused in such cases and that there would be ever so many persons arrayed as an accused who may be totally innocent and therefore those circumstances also should be weighed by the respondents while taking a decision not to give appointment, it is argued.
Here, the criminal cases registered against the applicant are not trivial in nature. It includes offences under Section 332 of IPC and also offences under Section 3 (I) of PDPP Act. There are other serious offences also. Whatever that be, the important question is regarding the suppression of material facts. When the application requires true and complete disclosure of the facts and on the basis of Annexure R-1 (a) it can be seen that there was suppression of facts with respect to the five criminal cases which were pending as on the date of Annexure R-1 (a) that would assume significance entitling the employer to deny appointment. If without noticing the same the candidate had been appointed then also the employer would be at liberty to terminate the services of such a candidate. The condition/stipulation contained in sub-para 7 of para 30 and paras 7 and 8 of the decision of the Supreme Court cited supra deal with the same. Para 7 says that 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.
11. It is not a case wherein the applicant was unaware of the pendency of the criminal cases. Admittedly, he was aware of the fact that there were five criminal cases pending against him. It is stated that he was acquitted in one of those cases. Even if he was acquitted he ought to have disclosed that fact also in the Column No.16 of Annexure R-1 (a). Sub para 10 of para 30 says that for determining suppression or false information attestation/verification form has to be specific, not vague. Here the information which was required to be furnished was definite and certain and there is no ambiguity at all. But inspite of that the applicant made a false information. In other words, it is a case where he had suppressed truth and suggested falsehood. The applicant is guilty of suppressio veri and suggestio falsi since there is no case for the applicant that he was unaware of the pendency of the criminal cases as on the date of Annexure R-1 (a). Therefore the decision in Avtar Singh cited by the learned counsel for the applicant does not help him at all. Learned counsel for the applicant has also relied upon a two Judges Bench decision of the Supreme Court in Commissioner of Police & Others Vs. Sandeep Kumar decided on 17.3.2011. In the light of the three Judges Bench decision cited supra this decision cannot come to the rescue of the applicant.
12. Learned counsel for the respondents has also placed before us the Government Orders issued pertaining to the same. The decision of the Supreme Court in A.P.Public Service Commission Vs. Koneti Venkateswarulu & Others (2005) 7 SCC 177 has also been placed before us where it was held that 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. As stated therein at no point of time the applicant informed the respondents that there was a bonafide mistake committed by him in filling up the application form or there was inadvertence on his part in doing so. It is only when the respondents discovered that there was suppressio veri and suggestio falsi on the part of the applicant, the applicant herein came forward with an excuse that it was due to ignorance or inadvertence. Therefore it was held by the Supreme Court in that case also that there has been suppressio veri and suggestio falsi which is incontrovertible.
13. Another decision rendered by the Hon'ble Supreme Court in Daya Shankar Yadav Vs. Union of India & Others (2010) 14 SCC 103 has also been relied upon by the learned counsel for the respondents. Therein it was held :
'23. The fact that a criminal case was registered against the appellant is not disputed. The fact that no criminal case was pending against him, when he gave the verification declaration in the year 2004, or the fact that he was not convicted or fined or bound down in any case, loses relevance, when he clearly suppressed the material fact that he was prosecuted and thereby made a false statement. Though the English version of the questions could have used a little more clarity, we cannot agree with the contention that he was misled into answering the question wrongly, as the Hindi version of the questions which were answered by the appellant did not suffer from any vagueness or ambiguity.
24. We are satisfied that the appellant had knowingly made a false statement that he was not prosecuted in any criminal case. Therefore, the employer (CRPF) was justified in dispensing with his services for not being truthful in giving material information regarding his antecedents which were relevant for employment in a uniformed service, and that itself justified his discharge from service. Consequently, we dismiss this appeal as having no merit.'
14. In an identical matter this Tribunal in O.A.No.320/2014 (Jeason K.L Vs. Union of India) by order dated 18.9.2015 held as follows :
'10. As stated earlier furnishing of false information, that too a very relevant information, would affect the trustworthiness of the candidate. The question is not whether he had been acquitted or discharged by the criminal court; he is expected to furnish the correct information pertaining to the criminal case which was against him.... A person who is to be selected should be blemishless. He cannot supress material facts. He cannot make an untrue statement as well.'
15. Here infact as stated earlier, Column 16 is so clear, definite and admits of no ambiguity which required the applicant to furnish information regarding the pendency of criminal cases. The applicant did not disclose the same. That itself is sufficient to hold that no credibility can be given to the applicant. It is also submitted by the learned counsel for the respondents that infact the appointment is to the post of Fireman/Driver Operator. Learned counsel submits that in the islands usually whenever there is shortage of Policeman the Firemen are also deputed for doing the duties of Police Officer. Though the selection is not to the post of Policemen, the post of Fireman also belongs to a uniformed force and so more credibility is required from such officials. But the applicant has proved to be otherwise, it is argued.
16. It is not necessary to dwell much into the other aspects. As has been stated earlier, the applicant was involved in five criminal cases as on the date of Annexure R-1 (a). Even if he had been acquitted in one case prior to the submission of Annexure R-1 (a), he was expected to disclose the factum of that case also in Annexure R-1 (a). Since there was deliberate suppression of the material facts as to the pendency of the criminal cases, the decision taken by the respondents not to give appointment to the applicant is found to be perfectly legal and justifiable. There is no irrationality, perversity or illegality in the order so passed by the respondents. Hence we find no reason to interfere with the same. The Original Application is hence dismissed. No costs.
(Dated this the 6th day March of 2017)
(P.GOPINATH) (N.K.BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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