Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 25 September, 2012
1 OA NO.624/2011 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION NO.:-624/2011 Date of Decision: 25.09.2012 CORAM:-HON'BLE SHRI JUSTICE A.K. Basheer, MEMBER (J) HON'BLE SHRI R.C. JOSHI, MEMBER (A) Shri Loknath Chandu Harikantra, R/at Near Kodibeer Temple Road, Behind Tahasildar office, Karwar, Uttar Kannada, Karwar 581 301. ... Applicant (By Advocate Shri Vicky Nagrani, proxy counsel for Advocate Shri S.V. Marne) Versus 1. Union of India, Through the Secretary, Ministry of Defence, South Block, New Delhi 110 001. 2. The Flag Officer, Commanding In Chief, H.Q., Western Naval Command, S.B. Singh Road, Mumbai 400 001. 3. The Admiral Superintendent, Naval Dock Yard, Mumbai 400 023. ... Respondents (By Advocate Ms. Vandana Patil, proxy counsel for Advocate Shri N.K. Rajpurohit along with Shri V.B. Joshi) O R D E R (Oral) Per: Shri R.C. Joshi, Member (A)
The Applicant in this Original Application is aggrieved by the termination of his service and has impugned order dated 02.06.2010 passed by Respondent No.3 and order dated 28.04.2011 passed by Respondent No.2.
2 OA NO.624/20112. Briefly, the Applicant had filled up an application form at Annexure A-7 for appointment to the post of Lascar. He was appointed vide order dated 01.11.2008. However, the Applicant's services were terminated vide order dated 02.06.2010. An Appeal filed by the Applicant vide dated 29.07.2010 was rejected by the Appellate Authority vide order dated 28.04.2011. Hence this Original Application.
3. The Applicant in the present Original Application seeks the following reliefs:
"a. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the termination order dated 02.06.2010 and order of Appellate Authority dated 28.04.2011 with all consequential benefits.
b. This Hon'ble Tribunal may further be pleased to direct the Respondents to reinstate the Applicant in service with effect from 02.06.2010 with all consequential benefits.
c. Costs of the applications be provided for. d. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed".
4. We have gone through the pleadings, perused the documents enclosed in the case papers and have extensively heard the rival sides.
5. The case papers reveal that the Applicant had studied upto 9th standard in Kannada medium school. He was criminally prosecuted in three separate cases. In 3 OA NO.624/2011 the first case, the Applicant was prosecuted in 2000 Juvenile Case No.2/2000 alleging theft of two speakers of the school. At the time of prosecution, the Applicant was 13 years old. He was tried and acquitted by the Juvenile Court on 22.03.2001 (Annexure A-3). In the second case, the Applicant was involved in a brawl in the year 2005 and a criminal prosecution was filed against the Applicant alongwith 23 other students for offences under Section 143, 147, 323, 355 and 324 IPC. In this case also, the Applicant was acquitted vide order dated 26.09.2006 (Annexure A-4). Another prosecution was lodged against the Applicant in 2007 wherein the Applicant was involved in a brawl on the beach and was charged with offences under Section 341, 326, 323, 504 and 506 r/w 34 of IPC. In this case also, the Applicant was acquitted vide order dated 18.08.2008.
6. Thereafter, the Applicant, in pursuance of an advertisement issued by the Naval Dockyard for filling up the post of Lascar (OD), had applied for the said post and was selected and vide letter dated 02.09.2008 he was directed to report for completion of pre- recruitment formalities. The Applicant was asked to fill up an attestation form in the prescribed format. Accordingly, the Applicant filled up an attestation form vide dated 26.09.2008 (which has been shown as on 26.09.2009) in the attestation form at Annexure A-7. On 4 OA NO.624/2011 the said attestation form, the Applicant had responded to the column 11(a to i) in the negative. The response given by the Applicant in this column is reproduced herein below:-
11 (I)(a) Have you ever been arrested? Yes/No
(b) Have you ever been prosecuted? Yes/No
(c) Have you ever been kept under Yes/No detention?
(d) Have you ever been bound down? Yes/No
(e) Have you ever been fined by a Yes/No court of Law for any offence?
(f) Have you ever been convicted by Yes/No a Court of Law or any offence?
(g) Have you ever been debarred from Yes/No any examination, rusticated by any University or any other educational authority/Institution?
(h) Have you ever been debarred / Yes/No disqualified by any Public Service Commission from appearing at its examination/selection?
(i) Is any case pending against you Yes/No in any Court of Law at the time of filling up this Attestation Form?
"I certify that the foregoing Information is correct and completed to the best of my knowledge and belief. I am not aware of any circumstances which might impair my fitness for employment under Government.
Sd/ (Signature of Candidate) Date : 26.09.2009 Place: KARWAN"
7. From the above it could be seen that there were 9 questions with option of answering in Yes/No against each question. It would also be seen from the 5 OA NO.624/2011 attestation form at Annexure A-7 that right in the beginning a warning had been displayed stating clearly that furnishing false information or suppression of any factual information in the attestation form would be a disqualification. The said warning reflected in the attestation form at Annexure A-7 is reproduced herein below for convenience:
"ATTESTATION FORM (Revised Attestation form in accordance with Government of India, Ministry of Defence office Memorandum No. 7(1)/64/13348/D(Appts) dated 18 Aug 72) WARNING
1. The furnishing of false information or suppression of any factual information in the attestation form would be a disqualification, and is likely to render the candidate unfit for employment under the Government.
2. If detained, convicted, debarred, etc. subsequent to the completion and submission of this from the details should be communicated immediately to the union Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be failing which it will be demand to be suppression of factual information.
3. If the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form to notice at any time during the service of a person, his services would be liable to be terminated. NOTE:
BEFORE COMPLETING ATTESTATION FORMS READ "INSTUCTIONS TO CANDIDATE" FOR COMPLETION OF THE ATTESTATION FORMS ON PAGE 6.
------------------------------------------------------"
8. Therefore, it would be very clear from the above that although the Applicant had been criminally prosecuted in the years 2000, 2005 and 2007, the 6 OA NO.624/2011 information furnished by the Applicant at Column 11(1) (a to i) specially with regard to the criminal prosecution reveals that the Applicant had suppressed information of his criminal prosecution and had given false information in the attestation form with reference to the question at 11(I)(b). The learned counsel on behalf of the Applicant in the pleadings as well as during the oral arguments across the bar had pleaded that the Applicant was educated upto 9th standard and that too in Kannada medium school and hence was not 'very conversant' with English language. It was also pleaded that the attestation form was not filled in the handwriting of the Applicant and, therefore, it cannot be assumed that the Applicant had intentionally suppressed any information from the Respondents.
9. A perusal of the case papers, however, reveals that in Annexure A-10 dated 11.05.2010, the Applicant, in reply to show cause notice dated 13.04.2010 issued by office of Respondent No.3, has taken a plea that he was not involved in any criminal case or in any other illegal matter. It has also been pointed out in the said letter that as the Applicant was acquitted from the cases, he did not mention it in the attestation form. Further, in Appeal filed by the Applicant at Annexure A-11 dated 29.07.2010, the Applicant has taken a plea that at the time of his appointment, there was 7 OA NO.624/2011 no case pending/contemplated against him. It has also been stated that he had mentioned that he had no intention to suppress any fact from the Government as he had already been acquitted from all the charges by the Juvenile Court and the Court of Chief Judicial Magistrate, Karwar.
10. It is an admitted fact that the Applicant had suppressed the information with regard to his criminal prosecution from the Respondents. It is also seen that the Applicant had himself signed the Attestation Form (Annexure A-7) in English. Further a warning was displayed in the attestation form at Annexure A-7 right in beginning which makes it clear that if false information has been furnished or that there has been suppression of any factual information in the attestation form, which comes to the notice during the service of his person, his service would be liable to be terminated. It is also seen that in the attestation form at the end, the Applicant has certified that the information given by him is correct and completed to the best of his knowledge and belief. We also find that the Applicant's service was terminated for suppression of information vide dated 02.06.2010 for having answered the points in negative at para 11(b) 1(a) and
(b) of the attestation form (Annexure A-7).
11. The Applicant had, thereafter, preferred an appeal vide dated 29.07.2010. The Applicant was given 8 OA NO.624/2011 personal hearing and the Appellate Authority vide order dated 28.04.2011 has rejected the appeal of the Applicant.
12. Learned counsel on behalf of the Applicant has relied upon the following judgments:1. Dattaraya Kaluram Dedge Vs. The Union of India, through the Secretary, Ministry of Defence and the Commandant, National Defence Academy, in Writ Petition No.1611/1999 dated 10.01.2005 decided by the Hon'ble High Court of Bombay.
2. D. Mahadevan Vs. The Director General of Police, Writ Petition No.976/2008 decided on 14.03.2008 by the Hon'ble High Court of Madras.
3. Rajesh Kumar V/s. Union of India and others, Writ Petition (C) No.7223/2004 dated February 20, 2007 by the Hon'ble Delhi High Court.
13. We have carefully perused the judgments relied upon by the Applicants. However, Hon'ble Supreme court in Delhi Administration Vs. Sushil Kumar in (1996) 11 SCC 605 has held in para 3 that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the state.
14. In Kendriya Vidyalaya Sangathan Vs. Ram Ratan Yadav (2003) 3 SCC 437, Hon'ble Supreme Court has held thus:
the purpose of requiring an employee to furnish information regarding prosecution / 9 OA NO.624/2011 conviction, etc, in the verification form was to assess his character and antecedents for the purpose of employment and continuation in service; that suppression of material information and making a false statement in reply to queries relating to prosecution and conviction had a clear bearing on the character, conduct and antecedents of the employee; and that where it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry. This Court also made it clear that neither the gravity of the criminal offence nor the ultimate acquittal therein was relevant when considering whether a probationer who suppresses a material fact (of his being involved in a criminal case, in the personal information furnished to the employer), is fit to be continued as a probationer.
15. In R. Radhakrishnan Vs. Director General of Police (2008) 1 SCC (L&S) 283, Hon'ble Supreme Court considered the case of a candidate for appointment as a fireman, furnishing wrong information about his involvement in a criminal case, though he was acquitted. Hon'ble Supreme Court held that the standards expected of a person who intended to serve in such a service are different from the one of a person who intended to serve in other services. As the application for appointment and the verification roll were both in Hindi as also in English, it was concluded that the candidate knew and understood the implications of his statement or omission to disclose a vital information, and by not disclosing about his 10 OA NO.624/2011 involvement in a criminal case, the candidate is preventing the authority from verifying his character as also suitability of the appointment. Hon'ble Supreme Court therefore refused to exercise its equitable jurisdiction in favour of such a candidate who had suppressed material facts.
16. In the case of Daya Shankar Yadav Vs. Union of India and Others (2011) 2 SCC (L&S) 439, the Hon'ble Supreme Court has held thus:
When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences:-
(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant 11 OA NO.624/2011 had been cleared of the charges or is acquitted. This is because when there is suppression or non-disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the involvement of the declarant, the employer can have recourse (a) or (b)above.
(Para 15) Thus, an employee on probation can be discharged from service or a prospective employee may be refused employment:(i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college, etc,; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post. (Para 16) If the object of the query is to ascertain the antecedents and character of the candidate to consider his fitness and suitability for employment, and if the consequence of a wrong answer can be rejection of his application for appointment, or termination from service if already appointed, the least that is expected of the employer is 12 OA NO.624/2011 to ensure that the query was clear, specific and unambiguous. Obviously, the employer cannot dismiss/discharge/terminate an employee, for misunderstanding a vague and complex question, and giving a wrong answer. CRPF and other uniformed services are directed to use clear and simple questions and avoid any variations between the English and Hindi versions.
17. The Hon'ble Supreme Court in the case of Daya Shankar Yadav Vs. Union of India and Others (Supra) has further held:
B. Termination of service-Grounds for termination Suppressing material information in verification form Held, verification of character and antecedents of candidate are important criteria to test his suitability for the post Where a candidate is found to have suppressed material information his services can be terminated However, further held, where non-furnishing of material information is due to absence of clarifying the question or due to candidate not being aware of said information, it cannot be said that he had suppressed material information or made false statements On facts held, appellant had knowingly made a false statement that he was not prosecuted in criminal case Even assuming that there was ambiguity in English version of questions, a reading of Hindi version of questions shows a clear indication of information that was required to be furnished by declarant Appellant had read questions in Hindi and answered them in Hindi Hence, appellant not entitled to any benefit of doubt Central Reserve Police Force Rules, 1955 R.14(b) Central Civil Services (Temporary Service) Rules, 1965 R.5(1) Tort Law Deceit.
18. The Applicant in the present case had applied for appointment as a Lascar (OD) in the Naval Dockyard and filled up the 'Attestation Form' (Annexure A-7) furnishing the requisite detailed for verification. The 13 OA NO.624/2011 verification of character and antecedents is one of the important criteria to test the suitability or otherwise of the candidate. It is beyond doubt that the Applicant had suppressed vital information with regard to the criminal case filed against him and had provided false information. He also choose to ignore the warning given in the beginning of the attestation form.
19. It is also seen from the Government of India, D.P.T.O.M. dated 19.05.1993 which provides the following:
where it is found that a Government servant, who had furnished false information, or produced a false certificate in order to secure appointment, he should not be retained in service. If he is probationer or a temporary Government servant, he should be discharged or his service should be terminated.
20. From the case papers it is undisputed that three criminal cases had been registered against the Applicant in the present case in which he was acquitted. However, it is not the case that there was no criminal case against the Applicant when he filled up his Attestation Form in the year 2008 or the fact that he was acquitted in all these cases filed against him. The relevant fact involved in the present case is that the Applicant had suppressed this information in response to the question asked in the Attestation Form at 11(1) (b) and said 'No' in his response and hence made a false statement. We are, therefore, convinced that the Applicant was rightly imposed with the penalty 14 OA NO.624/2011 of removal from service which is not a disqualification for future employment under the Government.
21. In view of the above, the Original Application is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member(J) ma.