Central Administrative Tribunal - Delhi
Surendra Kumar vs Lt. Governor Of Delhi on 17 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.196/2007 This the 17th day of February, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Surendra Kumar, Ex. Constable of Delhi Police, R/O Vill. Talheta, PS Bhojpur, Modinagar, Govindpuri, Distt. Ghaziabad, UP. Applicant ( By Shri Anil Singal, Advocate ) Versus 1. Lt. Governor of Delhi, Raj Bhawan, Delhi. 2. Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 3. DCP (North District), DCP Office, Civil Lines, Delhi. 4. DCP (2nd Bn, DAP), Kingsway Camp, New Police Lines, Delhi. Respondents ( By Shri Ajesh Luthra, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Surendra Kumar, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a writ in the nature of certiorari so as to quash and set aside orders dated 20.5.1999, 10.9.1999, 7.11.2000, 19.12.2006 and the show cause notice dated 18.3.1999, annexed as Annexures A-1 to A-4, and in consequence of setting aside of the orders aforesaid, to reinstate him into service with all consequential benefits including seniority and arrears of pay, etc.
2. Brief facts on which the reliefs as indicated above are sought to rest reveal that the applicant was appointed as Constable in Delhi Police on 12.11.1998 and was put on probation for a period of two years. He was issued show cause notice dated 18.3.1999 calling upon him to explain as to why his services should not be terminated under rule 5(1) of the CCS (Temporary Service) Rules, 1965 (hereinafter to be referred as the Rules of 1965), on the ground that he had concealed the fact of his involvement in case FIR No.151/92, PS Bhojpur, Ghaziabad (UP). The applicant responded to the show cause aforesaid stating that he was falsely implicated in the criminal case. It is the case of the applicant that on 24.10.1992, at the time of the occurrence, he was a minor under 18 years of age, and his name was mentioned in the FIR just to defame and involve maximum number of his family members in the FIR. However, a compromise had taken place between all concerned with the FIR, and the compromise was placed before the local police. The applicant thus never received any communication/notice from the court/police in this regard, due to which the non-mentioning of the criminal case took place. It is further his case that it was only on receipt of the show cause notice that he derived knowledge of the case. He thus approached the criminal court and only within the matter of two dates, i.e., 27.3.1999 and 30.3.1999 the judgment was delivered and the charge against him dropped. The 3rd respondent, however, vide order dated 20.5.1999 rejected his representation and confirmed the show cause notice. Constrained, the applicant made representation to the 2nd respondent against the order aforesaid. The same was also rejected on 10.9.1999. He made yet another representation against the orders dated 20.5.1999 and 10.9.1999 to the first respondent praying for re-consideration of the case and to quash and set aside the orders terminating his services. He explained the background of the case and raised number of questions on facts and law for consideration. The first respondent, however, vide order dated 7.11.2000 rejected his representation. He then submitted a mercy appeal for reinstatement on compassionate grounds, which was considered and vide order dated 29.8.2005 the fourth respondent called him to attend his office. The applicant accordingly attended the office of the fourth respondent along with all requisite information and documents. Nothing was, however, heard from the office of the fourth respondent for a long time. Thus, constrained, the applicant filed OA No.1918/2006 before this Tribunal, which was dismissed as withdrawn vide order dated 8.9.2006 with the observation that dismissal of the OA would not preclude the applicant to file a fresh application upon subsequent cause of action. The applicant submitted yet another representation to the third respondent for re-consideration of the case and to reinstate him. The third respondent, however, vide order dated 19.12.2006 rejected the representation. It is in wake of the circumstances as referred to above, that the orders referred to hereinbefore have been challenged.
3. In support of the Application, Shri Anil Singal, learned counsel representing the applicant, has raised two-fold contentions. It is first urged by him that the order of termination of services of the applicant is in violation of principles of natural justice and also Article 311 of the Constitution, as he was not given any opportunity to defend himself as required, and under the garb of rule 5 of the Rules of 1965, as a short cut, his services were terminated, and that non-mentioning of the pending case as concealment was aspersion cast upon the applicant and unless the same was to be proved in departmental enquiry, he could not be shown the exit door. It is then urged by the learned counsel that once, the applicant did not himself know with regard to his involvement in the criminal case having never been arrested or receiving any summons either from the police or court, there was no occasion for him to have mentioned the factum of his involvement in the criminal case in his application and attestation forms.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their reply contested the cause of the applicant, pleading inter alia that the appointment of the applicant was purely temporary and was liable to be terminated at any time as per provisions of rule 5 of the Rules of 1965. It is pleaded that his character and antecedents were got verified from authorities concerned, which revealed that he was involved in case FIR No.151/92 u/s 147/148/149/323/504/506/427 IPC and 3(i)/10/4/5/SC/ST Act, PS Bhojpur, Ghaziabad (UP), which was pending trial in court, and that the applicant did not disclose these facts in the relevant columns of his application and attestation form filled in by him on 4.6.1998 and 17.9.1998 respectively. At the time of joining the department on 12.11.1998, the applicant is said to have given the following undertaking:
I Surendra Kumar Roll No. 321945 hereby solemnly affirm that I have not concealed any facts in the application form as well as in the Attestation form. I hereby further declare that I was neither involved nor arrested/prosecuted/convicted, bound over, interned, externed nor dealt with under any law in force in any criminal case and that no Cr. case or court proceeding is pending against me at present.
I do hereby also state that my selection to the post of Constable (Exe.) in Delhi Police is purely provisional and temporary subject to the verification of character and antecedents and the documents submitted by me in support with my application form. In case, if any documents/certificate, declaration is found false or adverse character and antecedents report is received, my aforesaid selection shall be liable to be cancelled and my services shall be liable to be terminated. Further, in the event of above, I shall not claim anything for the post of Constable (Exe.) in Delhi Police. Against the relevant column 11 of the attestation form, which, as translated into English, the applicant mentioned as follows:
No, not proceeded against.
No case is pending It is pleaded that the applicant deliberately and knowingly concealed the fact of his involvement in the above case, which was pending trial at that time and joined the department by deceitful means, and as such the show cause notice for termination of services was issued to him. In reply to the show cause notice, the applicant pleaded that he was not aware of the provision on the subject, and also that he had been acquitted from the offence by the court. It is further pleaded that the reply submitted by the applicant was thoroughly examined and found unsatisfactory, and that he was also heard in the orderly room but he could not say anything more than to his written reply, and further that he was involved and arrested in the case aforesaid by the time he submitted the application form for recruitment as temporary Constable in Delhi Police, and it was obligatory on his part to inform the department about his arrest in conformity with the clause mentioned in the application form prescribed for recruitment in Delhi Police, as well as in the attestation form. His acquittal in the criminal case is said to be because of lack of evidence as both the PWs turned hostile, and he was acquitted by giving benefit of doubt. Insofar as, various representations of the applicant and outcome thereof is concerned, the same is not much in dispute. Shri Luthra, learned counsel representing the respondents, contends that in the matter of concealment of facts for obtaining public employment, resort to departmental proceedings is not necessary, and that the applicant at no stage had pleaded ignorance of the case; he, for the first time before this Tribunal has raised the plea that he was never summoned either by the police or the court, and had no knowledge himself of the case as such. The learned counsel further contends that this plea raised for the first time may not be taken into consideration by this Tribunal, particularly when from the judgment of the criminal court itself, it is clearly made out that he ought to have been arrested at the time of pronouncement of the judgment, as it is mentioned in the judgment that he was released on bail. He then contends that there was no question of the applicant not having been arrested having been involved in the offences referred to above, some of which were not compoundable.
5. We have heard the learned counsel for parties and with their assistance examined the records of the case. In the facts and circumstances of the case, we do not find any merit in either of the contention of learned counsel representing the applicant, as noted above. It may be recalled that appointment of the applicant was purely temporary and liable to be terminated any time as per provisions of rule 5 of the Rules of 1965. Further, his appointment and continuance thereof was subject to verification of character and antecedents. Not only that there was specific columns which had to be filled by respective candidates pertaining to their involvement in any criminal case, the applicant was also required to give an undertaking, which he did on 12.11.1998, reproduced above. It is not in dispute that the applicant had not made mention of registration of the FIR against him, nor of his arrest or pendency of the case against him and others. In the circumstances as mentioned above, the respondents, it appears, rightly only issued the show cause to the applicant and after obtaining his reply, which was found to be unsatisfactory, terminated his services. For the proposition as advanced by the learned counsel, referred to above, however, reliance has been placed upon a judgment of this Tribunal in OA No.970/2007 decided on 26.10.2007 in the matter of Rajesh Kumar v Union of India & Others. Facts of the case aforesaid reveal that in the advertisement inviting applications for recruitment to the post of Constable, it had been stipulated that the candidates should have their names registered with employment exchange at least a month before the date of notification for the said recruitment. Applicant therein applied and on being selected, joined the office of respondents on 14.6.2004. On 12.4.2005, however, he was issued a show cause notice to the effect that on verification of his employment exchange registration card number 525/2001 dated 6.11.2001, the same was found to be actually registered in the name of one Smt. Krishna Devi, and that the applicant had tempered with the card. The show cause notice was issued under rule 5(1) of the Rules of 1965. The applicant, in response to the show cause stated that his name was registered in employment exchange at Rewari at serial number 2525/2001 dated 6.11.2001 instead of 525/2001. After considering his reply, the respondents terminated his services under the Rules ibid. It is this order which was challenged before this Tribunal. In support of the Application it was urged that services of the applicant could not be terminated without affording an opportunity to defend himself in regular departmental enquiry. Inasmuch as, the allegation against the applicant was of tempering with the employment card, which would be stigmatic, we held that his services could not be terminated without holding a proper enquiry. However, the facts of the present case are entirely different. Termination of services of the applicant is on the ground that he had not disclosed pendency of the criminal case. His appointment was subject to verification of character and antecedents, and once the applicant was found to be involved in a criminal case, his services could be terminated by issuing a show cause notice only.
6. Insofar as, the second contention of the learned counsel, as noted above, is concerned, it is not in dispute that for the first time the applicant has mentioned that he would not know himself about pendency of any case as he was never arrested, nor summoned by the police or by the court. He was only harping that he had been acquitted in the criminal case. Shri Anil Singal, learned counsel representing the applicant, is unable to state that the plea as raised now for the first time in present Application was ever raised before the concerned authorities at any stage. It appears to us that once, the applicant had not given any facts nor mentioned that he himself would not know of his involvement in the criminal case, surely the concerned authorities could not apply their mind to the same. The impugned orders cannot be faulted as no plea as raised now for the first time, was ever raised before the concerned authorities. It will be too late at this stage to examine the veracity of the facts that the applicant was never arrested, nor summoned by the policy or court at any stage, particularly when prima facie it appears that the plea raised by the applicant may not be correct. The applicant faced trial under Sections 147/148/149/323/504/506/427 IPC, as also Sections 3(i)/10/4/5 SC/ST Act. The offences are cognizable. Section 147 IPC is rioting, imprisonment for which is two years. Section 148 is rioting armed with deadly weapons, imprisonment for which is 3 years. Section 504 is insult intended to provoke breach of peace, imprisonment for which is two years, and Section 506 is criminal intimidation, imprisonment for which is two years, but if the threat be to cause death or grievous hurt, etc., then the imprisonment is for seven years. Narration of facts in the FIR does disclose criminal intimidation with threat to cause death or grievous hurt. The order passed by the criminal court, annexed with the Application as Annexure A-5, would clearly reveal that the accused were on bail. They could not be on bail unless they may have been arrested. The case remained pending in the court for about seven years. It is not possible to believe that the applicant was not arrested, nor summoned by the police or by the court in that regard. Present appears to be an old matter, and it needs to be given a quietus.
7. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/