Central Administrative Tribunal - Delhi
Sunny Kumar vs M/O Defence on 10 April, 2023
1
OA No.1165 of 2020
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1165/2020
Reserved on: 15.03.2023
Pronounced on: 10.04.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Sh. Sunny Kumar (Aged about 24 years)
S/o Sh. Chand Ram, [Gp'C'7015566163]
R/o H.No.303, VPO Dhansa,
New Delhi - 110 073.
...Applicant
(By Advocate: Sh. B.S. Jarial)
Versus
1. Govt. of India through Secretary,
Ministry of Defence, South Block,
New Delhi- 01.
2. The Management Chairman,
Board of Administration & General Manager,
119, Maharshi, Karve Road,
Mumbai-400 020.
3. The AGM(Personnel)
O/o Management Chairman,
Board of Administration & General Manager,
119, Maharshi, Karve Road,
Mumbai-400 020.
...Respondents
(By Advocate: Sh. Satish Kumar)
ORDER
By Hon'ble Mr. Anand Mathur, Member (A):
Learned counsel for the applicant stated as under:-
1.1 The applicant, after getting his character and antecedents verified and on completion of successful training, had been appointed as Constable by Uttar 2 OA No.1165 of 2020 Pradesh Police on a temporary basis, vide order dated 11.07.2018.
1.2 The applicant was entangled into a false and fabricated case FIR No.78/2016 u/s 147, 148, 149, 323, 341, 506 IPC registered in PS Charkhi Dadri involving bailable offences being trivial in nature. In the said criminal case, the applicant along with other accused was acquitted by the Judicial Magistrate 1st Class, Charkhi Dadri vide judgment dated 09.03.2017 observing that „prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt and resultantly, accused are hereby acquitted of the charges leveled under Sections 147, 148, 149, 323, 341, 506 IPC‟.
1.3 Prior to the applicant's appointment as Constable in UP Police, the respondents issued an advertisement dated 29.12.2015 through Staff Selection Commission inviting applications for filling up various vacancies of Multi-Tasking (Non-Technical) in different States and Union Territories. The applicant applied and was declared successful in the written examination.
1.4 The applicant was issued an offer of appointment for the post of MTS, a civilian post, in Canteen Store 3 OA No.1165 of 2020 Department (CSD) requiring him to fill certain forms before joining the offered post.
1.5 As per the terms & conditions of appointment, the applicant was to first resign from his previous post.
Accordingly, he resigned from UP Police on 18.06.1989 after depositing Rs.1,14,379/- towards training charges.
1.6 The local police, after verifying character and antecedents of the applicant, reported that the applicant was involved in a criminal case FIR No.78/2016 u/s 147, 148, 149, 323, 341, 506 IPC registered in PS Charkhi Dadri and had already been acquitted vide judgment dated 09.03.2017. Despite acquittal of the applicant and without going into the detailed merit of the case as well as the law on the subject, the respondents cancelled his offer of appointment for the post of MTS in Canteen Stores Department (CSD) vide order dated 04.05.2020. The applicant was not even issued any show cause notice before cancellation of the offer of appointment in question.
4OA No.1165 of 2020 1.7 Aggrieved, the applicant filed the instant OA under Section 19 of the Administrative Tribunal Act, 1985 seeking the following relief:-
"(i) To set aside the impugned order dated 04.05.2020;
(ii) Direct the respondents to give Offer of Appointment with all consequential benefits;
(iii) Direct the respondents to give seniority as per the select list at the time of initial appointment in MTS;
and
(iv) To further pass such other order(s) as it may deem fit under the circumstances of the case."
2. Per contra, the respondents have filed counter affidavit opposing the claim of the applicant. They have stated that the applicant suppressed the material fact from the respondents about lodging of FIR dated 22.03.2016 against him, which was mandatory to be disclosed irrespective of the fact whether he was acquitted therein or not. It was adequate reason to cancel his offer of appointment to the post of MTS in Canteen Stores Department in light of the decision of the Hon'ble Supreme court in Avtar Singh vs. Union of India [2016 (8) SCC 471]. Therefore, offer of appointment of the applicant has rightly been cancelled on account of concealment of facts and the same does not warrant issuance of a show cause notice. 5 OA No.1165 of 2020
3. We have heard Mr. B.S. Jarial, learned counsel for the applicant and Mr. Satish Kumar, learned counsel for the respondents and perused the citations relied upon by the learned counsel for both the parties as also the written synopsis filed on their behalf.
4. Learned counsel for the applicant has also relied upon the decision in Avtar Singh (supra) and stated in para 4.7 of the OA, which reads as under:-
"4.7...Whereas in the case of Avtar Singh vs. Union of India, SLP No.20525/2011, reported in 2016 (8)SC 471, the Lordships while considering the question of law referred the matter to a Larger Bench on a divergent view by a different Division Bench, have considered the entire law on the subject and have recorded their finding in paras 27,28,29 & 30 and have held that suppression of material information, though cannot be condoned, but cannot be equated where an appointment has been sought by submitting forged/fraudulent means. It was further held that yardstick to be appointed has to depend upon nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspect. They have finally laid down the parameters in par 30, which reads as under:-
"30. 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:
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.
While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of 6 OA No.1165 of 2020 special circumstances of the case, if any, while giving such information. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
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 : -
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. (Emphasis supplied) Where conviction has been recorded in a case, which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
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."
4.1 Learned counsel for the applicant argued that the respondents had not rejected applicant's case on the ground of either severity of the criminal offence registered against him or the method of his acquittal under that offence. They have simply rejected the offer of appointment on suppression of facts ignoring the guidelines laid down by the Hon'ble Apex Court in considering the question of 7 OA No.1165 of 2020 law referred the matter to a Larger Bench on a divergent view by Division Bench Avtar Singh's case (supra). 4.2 Learned counsel for the applicant relied upon the decision in Commissioner of Police vs. Sandeep Kumar [2011 (4) SCC 644], which has been dealt with in Avtar Singh's case (supra), relevant portion whereof reads as under:-
"18. In Commissioner of Police & Ors. v. Sandeep Kumar (2011) 4 SCC 644, this Court considered a case where Sandeep Kumar‟s candidature for the post of Constable was cancelled on the ground that he had concealed his involvement in the criminal case under section 325/34 IPC when he was about 20 years. In para 9, this Court took note of the character "Jean Valjean" in Victor Hugo‟s novel „Les Miserables‟ in which for committing a minor offence of stealing a loaf of bread for his hungry family, Jean Valjean was branded as a thief for whole life. This Court also referred to the decision in Morris v. Crown Office (1970) 2 QB 114. Relevant portion is extracted hereunder:
"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives."
4.3 It is noticed that the Hon'ble High Court of Delhi in a recent decision in Mahendra Solanki vs. The 8 OA No.1165 of 2020 Commissioner of Police & Anr. [WP(C) No.2219/2023 decided on 10.03.2023] dealt with an identical issue regarding suppression of material fact while seeking appointment. For the sake of clarity and better appreciation, relevant portion of the aforesaid decision is reproduced herein below:-
"15. It is also imperative to point out that in Pawan Kumar v. Union of India (supra), the appeal was directed against the judgment and order passed by the Division Bench of the High Court of Delhi upholding the order of discharge taking recourse to Clause 9(F) of the employment notice read with Rule 67.2 of Railway Protection Force Rules, 1987. In the aforesaid case, the FIR under Section 148/149/323/506/356/ IPC was registered against the appellant on 04.04.2011, the charge-sheet was filed on 13.04.2011 and the appellant was acquitted on 12.08.2011. The aforesaid facts were not disclosed by the appellant when he filled the attestation form on 27.05.2014 with reference to the columns relating to his prosecution and was discharged from the service on 24.04.2015. The case was admittedly not pending when the process of selection was initiated vide employment notice dated 27.02.2011. The appellant therein also incorrectly disclosed the information with reference to the columns relating to arrest/prosecution and the attestation form also contained a warning that 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 government.
After considering the legal position laid down in Avtar Singh (supra) which was given by a three-Judge Bench, the Hon‟ble Supreme Court in Pawan Kumar (supra) held in para 13 as under:-
"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/ terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for 9 OA No.1165 of 2020 the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."
It was further held that the Authority therein had not considered the scope and ambit of Rule 52 of the Railway Protection Post Rules, 1987 that after verification of the character/antecedents of the incumbent it will be an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the Force and without appreciation in a mechanical manner confirmed the order of discharge. It was also held that as observed in Avtar Singh‟s case (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the Authorities which must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of offence. The appellant was accordingly directed to be reinstated to the service on the post of Constable on which he was selected.
16. It may also be pointed out that while referring to various cases decided by the Hon‟ble Supreme Court, a reference was also made in Avtar Singh (supra) to a three Judge Bench decision of the Hon‟ble Supreme Court in TS Vasudavan Nair v. Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, which related to non-disclosure of conviction in a case registered under the Defence of India Rules for having shouted slogans on one occasion. The three Judge Bench in the aforesaid case held that non- disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC.
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18. We are of the considered view that keeping in perspective the guidelines as laid down in Avtar Singh (supra), the competent authority in the present case was also bound to consider the suitability of the petitioner having regard to the trivial nature of offence and the fact that the charges were neither grave nor involved moral turpitude, prior to terminating his services. The same is necessary to ensure that inquiry done by the Authority concerned in „fair and reasonable‟ as 10 OA No.1165 of 2020 contemplated even in Satish Chandra‟s case (supra). In the absence of said exercise being undertaken, the fact of suppression or concealment of involvement even in trivial cases would lead to automatic cancelling of candidature or termination of services, in violation of guidelines envisaged in para 38.4.1 as laid down in Avtar Singh‟s case (supra), referred to above.
xx xx xx
20. For the foregoing reasons, the order passed by the Tribunal is set aside along with order passed by the respondents terminating the services of the petitioner. Respondents are accordingly directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. Considering the facts and circumstances, no order as to costs."
5. If one has regard to the above, it is noticed that when the incident happened, the applicant was 19 years of age. At such age young people often commit indiscretions and such indiscretions are often condoned as they are not expected to behave in as mature a manner as older people. Hence, we are of the considered opinion that non- disclosure by the applicant about his involvement in a criminal offence, which appears to be trivial in nature, should not come in his way for seeking appointment as has been held by the Hon'ble Supreme Court and Hon'ble High Courts in a catena of decisions, few of which have been referred to above.
5.1 In view of the above discussion, we dispose of the instant OA quashing the order dated 04.05.2020 by virtue of which offer of appointment issued to the applicant has 11 OA No.1165 of 2020 been rejected. The respondents are hereby directed to examine the case of the applicant in light of the law laid down by the Hon'ble Apex Court in Avtar Singh's case (supra). In case the applicant is otherwise found to be suitable/eligible and fit for being employed, he would be offered appointment and extended other consequential benefits notionally in terms of his merit position. 5.2 The exercise, as ordained above, shall be completed by the respondents, within a period of eight weeks from the date of receipt of a certified copy of this order.
6. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /na/