Central Administrative Tribunal - Delhi
Jitender Kumar vs Government Of Nct Of Delhi on 9 April, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.377/2012 Order Reserved on: 27.02.2013 Order pronounced on 09.04.2013 Honble Shri Sudhir Kumar, Member (A) Honble Shri V. Ajay Kumar, Member (J) Jitender Kumar Grade-IV (DASS)/LDC s/o Sh. Bhagwan Sahai r/o 55-A, Friends Enclave S.P.Road Nangloi, New Delhi 86. Applicant (By Advocate: Shri Ajit Singh) Versus Government of NCT of Delhi Through its Chief Secretary Delhi Secretariat I.P.Estate New Delhi 110 002. Director of Education Directorate of Education Govt. of NCT of Delhi Old Secretariat Delhi 110 054. Respondents (By Advocate: Shri Vijay Pandita) O R D E R By V. Ajay Kumar, Member (J):
Pursuant to the selection conducted by the Delhi Subordinate Services Selection Board (DSSSB), the name of the applicant was nominated or recommended for appointment as Grade-IV (DASS)/LDC in the Directorate of Education, Govt. of NCT of Delhi. Consequent to the offer and acceptance for appointment, the applicant was appointed as Grade-IV (DASS)/LDC vide appointment Order dated 07.10.2010/16.11.2010, wherein he was informed that he will be on probation for a period of two years. Accordingly he joined on 16.11.2010.
2. As a pre-recruitment requirement, the applicant has submitted an attestation form on 01.08.2010 (Annexure `E). The relevant Column No.13 seeking certain information from the applicant, pertaining to his criminal record, and the answers/information furnished by the applicant is as under:
13(a) Have you ever been arrested? Yes
(b) Have you ever been prosecuted? Yes
(c) Have you ever been kept under detention? No
(d) Have you ever been fined by a court of law? No
(e) Have you ever been bound down? No
(f) Have you ever been convicted by a court of law for any offence? No
(g) Have you ever been debarred from any examination or restricted by any university or any other educational authority/institution? No
(h) Have you ever been debared/disqualified by any public service Commission/Staff Selection Commission for any of its examination/selection? No
(i) Is any case pending against you in any University of any other educational authority/institution at the time of filling up this Attestation Form? No
(j) Whether discharged/expelled/withdrawn from any Training Institution under the Govt. or otherwise? No
(k) If the answer to any of the above mentioned questions is `Yes give full particulars of the case/arrested/ detention/ fine/conviction/sentence/ punishment, etc. and/others. Nature of the case pending in the Court/University/ Educational Authority etc., at the time of filling up this form. FIR No.1420/05, u/s 323/341/34 IPC (PS Sultan Puri) FIR No.19/09, u/s 279 IPC PS Haus Khas (Final decision Admonished by the Court) Note:- See the `warning at the top of this Attestation Form (First Page), specific answers to each of the question should be given by striking out `Yes or `No as the case may be.
3. The applicant was served with a notice of termination of service by the respondents vide Annexure `J dated 03.05.2011 stating that his services shall stand terminated with effect from the date of expiry of a period of one month from the date of service of the said notice. The OA No.1872/2011 preferred by the applicant questioning the said notice of termination was dismissed as infructuous since in the meanwhile, the respondents passed the impugned termination order dated 30.05.2011 (Annexure `A), w.e.f. 02.06.2011.
4. The applicant submits that though the impugned termination order appears to be passed under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, as a termination simplicitor, but the same was in fact an order of termination passed in lieu of punishment. He further submits that the same is violative of Article 311(2) of the Constitution of India.
5. The respondents filed detailed counter submitting that the applicant was under probation and in terms of the powers conferred on the respondents, before completion of the probation, they can terminate the services of the applicant without assigning any reasons and since the impugned termination order does not contain any reasons it is a termination simplicitor and cannot be interfered with, in view of the settled legal position.
6. The respondents further submit that the applicant in his attestation form (Annexure `E), which was furnished by him, concealed certain facts and submitted false information in respect of Column No.13 pertains to his criminal record. In reply to the question that Have you ever been convicted by a Court of law for any offence?, he replied as `NO. Thereafter, on verification of the aforesaid information, it was found that, a case in FIR No.19/09 under Section 279 IPC, PS Hauskhas was registered against the applicant and in the said case, he was convicted for the said offence and he was admonished with a warning to be more careful in future and with the direction to deposit Rs.500/- as cost of proceedings under the Probation of Offenders Act, 1958 (vide Annexures R12 and R13). When a competent criminal court vide its Judgement dated 05.07.2010 (Annexure R13) convicted the applicant for the offence under Section 279 IPC, the answer given by the applicant as `NO to the question, Have you ever been convicted?, is a clear concealment of facts with an intention to mislead the respondents. Even the other case vide FIR No.1420/2005 under Sections 323/341/34 IPC PS Sultanpuri stands compounded by an award of special Lok Adalat on 14.01.2012 and accordingly both the accused, including the applicant, were acquitted from the case. In view of the said concealment of facts the respondents came to the conclusion that the applicant is not suitable for appointment to the post in question, and accordingly, in exercise of the powers conferred on them under Rule 5 of the CCS (Temporary Service) Rules, 1965 the services of the applicant were terminated vide order dated 30.05.2011.
7. Heard Shri Ajit Singh, learned counsel for the applicant and Shri Vijay Pandita, learned counsel for the respondents and have also perused the pleadings on record, including the original record.
8. The learned counsel for the applicant submits that the order of termination is not motivated by unsuitability or unsatisfactory work but the foundation for the same is suppression of fact by the applicant and, hence, the same is punitive in nature, and liable to be set aside for being violative of Article 311 (2) of the Constitution of India. He further submits that this Tribunal, as per the settled legal position of law, is required to lift the veil of the wording termination simplicitor, in view of the facts of the case.
9. The learned counsel for the applicant places reliance on the following Judgements:
State of Madhya Pradesh and Others v. Hazarilal, (2008) 3 SCC 273.
G.B.Pant Agricultural and Technology University vs. Kesho Ram, (1994) 4 SCC 437.
Chandra Prakash Shahi v. State of U.P. and Others, (2000) 5 SCC 152.
10. The learned counsel further submits that in any event if the respondents still feel that the applicant concealed any fact, the same may be condoned, considering the young age and future of the applicant. He placed reliance on the case of the Honble Apex Court in Commissioner of Police and Others v. Sandeep Kumar, (2011) 4 SCC 644.
11. Per contra, Shri Vijay Pandita, the learned counsel for the respondents while reiterating the counter averments places reliance on the following judgements:
Kendriya Vidhyalaya Sanghatan and Others v. Ram Ratan Yadav, JT 2002 (2) SC 256.
Union of India & Others v. Sukhen Chandra Dass, (2008) 17 SCC 125.
Daya Sankar Yadav v. Union of India & Others, 2010(12) SCALE 477.
Delhi Administration v. Sushil Kumar, (1996) 11 SCC 605.
11-A. Whether the alleged concealment and suppression of facts by the applicant while furnishing the Attestation Form (Annexure `E) constituted the foundation of the decision taken by the 2nd Respondent to terminate the services of the applicant under Rule 5(1) of the CCS (Temporary Service) Rules, 1965 and such alleged concealment can be condoned in view of Apex Court judgement in Sandeep Kumars case (supra) is the pivotal question which arises for consideration in this OA.
12. The law relating to termination simplicitor is no more res integra . The Honble Apex Court in a recent Judgement in State Bank of India & Others v. Palak Modi and Another, 2012 (11) SCALE 542, after considering the entire case law on the subject, including some of the aforementioned decisions, observed as follows:
20. The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.
13. Since the decision in Palak Modis case (supra) is the latest one and in fact reiterated the various principles laid down in the decisions cited by either side, in our view, no separate consideration of the same is necessary. Applying these principles to the facts of the present case, it will be noticed that the applicant who was convicted of the offence under Section 279 of the IPC, with a warning, answered in reply to the question in the attestation form that Have you ever been convicted by a Court of law for any offence? as `NO.
14. In Secretary, Department of Home, A.P. & Others vs. B. Chinnam Naidu, (2005) 2 SCC 746, after reiterating that suppression of material information or giving false information in attestation form would result in the candidate being discontinued from service, cautioned that the Court will have to examine in each case, whether a candidate has suppressed material information or has given false information in the attestation form; and where the candidate is required to state as to whether he has been convicted by a criminal court, if the candidate answered in the negative, the fact that a criminal case was pending as on that date, would not amount to misrepresentation, it was held:
9. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an attestation form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.
10. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437, the position was the reverse. There the candidate took the stand that as there was no conviction, his negative answers to whom 12 and 13 were not wrong. This Court did not accept the stand that requirement was conviction and not prosecution in view of the information required under Columns 12 and 13 as quoted above. The requirement was `prosecution and not `conviction. The logic has application here. The requirement in the present case is `conviction and not `prosecution.
15. In State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222, the Honble Apex Court considered the case of an employee who had answered NO to a query whether he was arrested. It was found that subsequent to registration of FIR, he had voluntarily appeared before the magistrate, without being taken into formal custody and was granted bail and was ultimately acquitted. It was held that in such circumstances, it was not altogether unreasonable to expect a layman to construe that he had never been arrested, even though the legal position may be otherwise. It was held that in such circumstances, even if what transpired may technically amount to arrest, the benefit of a mistaken impression rather than the consequences of a deliberate and willful misrepresentation and concealment of facts, should be extended to the employee.
16. As observed in Dinesh Kumars case (supra), in the normal parlance the word `conviction is understood as an imprisonment in Jail. Since, admittedly, though the applicant was convicted for the offence under Section 279 of IPC but as he was released under the provisions of the Probation of Offenders Act, 1958 by admonishing him with a warning to be more careful in future and as he was not sent to Jail, in any event, the applicant being a layman could have understood that he was not convicted at all. Even otherwise also, as seen from the judgement of the criminal court in FIR No.19/2009, the applicant was dealt with under Section 3 of the Probation of Offenders Act, 1958. As per Section 12 of the said Act, if a person found guilty of an offence and dealt with under Section 3 or 4 of the Act, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Therefore, technically, his answer cannot be found fault with.
17. It is to be seen that in Commissioner of Police and Others v. Sandeep Kumar, (2011) 4 SCC 644, the candidature for the post of Head Constable was cancelled on the ground that the candidate had concealed his involvement in a criminal case under Sections 325/34 IPC. The Honble Apex Court held that young people often commit indiscretions and authorities should have to condone such indiscretions.
18. In view of the aforesaid decisions, each case has to be examined with reference to the facts of the same. The applicant though convicted but not sentenced to undergo any imprisonment. Hence his understanding of the word `conviction in giving an answer of `NO, was not altogether unreasonable to expect a layman to construe that he had never been convicted. Hence, the benefit of mistaken impression rather than the consequence of deliberate and willful misrepresentation and concealment of facts, can be extended to the applicant. Even otherwise also, the indiscretions of the applicant are condonable, in view of Sandeep Kumars case (supra). The applicant was acquitted, in any way, in the other case in FIR No.1420/2005, PS Sultanpuri.
19. In these circumstances and for the aforesaid reasons, the OA is allowed and the impugned order dated 31.05.2011 is quashed and set aside and the respondents are directed to reinstate the applicant into service forthwith with all consequential benefits and to consider the case of the applicant afresh for suitability to the post and for declaration of his probation, in terms of the observations made in the OA. However, the applicant is not entitled for any arrears. No order as to costs.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) /nsnrvak/