Central Administrative Tribunal - Delhi
Yashvant Singh vs Delhi Police on 25 January, 2023
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Item No. 06 O.A. No. 2248/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2248/2022
This the 25th day of January, 2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Yashvant Singh
No.48574/DPA
Ex. Const. (Ex.) in Delhi Police,
Aged about 39 years
S/o Sh. Shish Pal Singh
R/o House No. 212,
VPO : Salarpur Kalan,
Near NTPC Dadri,
Distt : Gautam Budha Nagar,
UP-201008
...Applicant
(By Advocate(s): Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
PHQ, Jai Singh Road,
New Delhi - 110001
2. Deputy Director/ DPA
Wazirabad, Delhi
Through Commissioner of Police,
PHQ, Jai Singh Road,
New Delhi - 110001.
...Respondents
(By Advocate(s): Mr. Amit Yadav)
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Item No. 06 O.A. No. 2248/2022
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J) With the consent of learned counsel for the parties, the matter is taken up for hearing.
2. This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"A) To call for the records for the case and quash and set aside the Show Cause Notice dt.20.5.2022 and Order dt.5.8.2022 and direct the respondents to reinstate the applicant into service with all consequential benefits including seniority and arrears of pay particularly when the applicant is not able to get job despite his best efforts.
(b) To award costs in favor of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
3. Brief facts of the case are as under:-
The applicant is an Ex-serviceman, who retired from Army Service on 31.03.2019, has applied for the post of Constable (Exe.) both in Delhi Police and Uttar Pradesh Police (UP Police).
He joined as Constable (Exe.) in UP Police on 15.9.2021. He was also selected and offered appointment to the said post provisionally in Delhi Police vide letter dated 24.2.2022 with a direction to report for basic training course for the said post commencing w.e.f. 7.3.2022. Therefore, he resigned from UP Police and his resignation was accepted vide Order dt.23.2.2022 3 Item No. 06 O.A. No. 2248/2022 with the condition to deposit the Training and other expenses, which he has duly deposited. He was put on probation for a period of 02 years. However, he was issued a Show Cause Notice dt.20.5.2022 for dismissal under the grab of termination of his services under Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 on the ground that the applicant concealed the fact of his involvement in the criminal case in the Application Form, Attestation Form and also in the Undertaking given on 7.3.2022 about the FIR No.59/2016 dt.20.3.2016 U/S 147/323/427 IPC, registered at PS Jarcha, UP against him.
However, the applicant had no knowledge about the alleged aforesaid criminal case till 7.3.2022. Upon coming to know about the case FIR No.59/2016 dt.20.3.2016 U/S 147/323/427 IPC, registered at PS Jarcha, UP, he approached the learned Trial Court and requested to expedite the matter. The learned Trial Court framed the charges on 06.06.2022 and finally, acquitted the applicant vide Judgment dt.10.6.2022 (Annexure A-4). He submitted his reply contending therein that he did not know about the said case FIR registered against him, which came to his knowledge only when he got a call from the Police Station in the month of March, 2022, i.e., after completion of all the formalities of documentation in Delhi Police. The applicant further stated in the said reply that he served the Army till 31.3.2019 and he was not aware about the registration of FIR No.59/16, since he was 4 Item No. 06 O.A. No. 2248/2022 never arrested nor received any notice/summons from the police and the learned court in this regard. This case was result of family dispute in which the name of the applicant was also falsely mentioned. The respondent No.3 illegally and arbitrarily vide order dt.5.8.2022 rejected the reply/representation of the applicant and confirmed the said Show Cause Notice. The mere reading of the same shows that the respondents had not applied their mind to the facts and legal points raised in the said representation and mechanically, rejected the reply by giving totally untenable reasoning, with a non-speaking and cryptic order. The relevant paragraph of the said order is reproduced as under for ready reference:-
"Your reply to show cause notice submitted by you has been considered in detail and found not satisfactory as concealment of facts in the form(s) clearly reflects your malafide intention. Therefore, I, Subodh Kumar Goswami, Dy. Director, Delhi Police Academy/Wazirabad, Delhi hereby terminated you services for thepost of Constable (Exe.) in Delhi Police with immediate effect in view of Rule 05 of CCS (Temporary Service) Rules-1965 & point No.02(A)(i) of S.O. No. HRD/12/2022 and direct that you shall be entitled to claim a sum equivalent to the amount of pay and allowances for a period of one month calculated at the same rate at which you were drawing immediately before the date of which this order is served."
4. Learned counsel for the applicant relies upon the decision rendered by a co-ordinate Bench of this Tribunal in OA No. 2875/2022 dated 18.10.2022, titled Daksh Kakran Vs. Delhi Police and another, which has been passed taking into 5 Item No. 06 O.A. No. 2248/2022 account the judgment of the Hon'ble Apex Court passed in Avtar Singh Vs. Union of India, reported in (2016) 8 SCC 471, specifically to para 38.11 of the Hon'ble Supreme Court in Avtar Singh (supra). He further submits that the present case is identical in nature and pertains to the same department as that of Daksh Kakran (supra). The relevant paragraphs of the Daksh Kakran (supra) read as follows:-
"3. In the light of the aforesaid background, we are of the firm view that by no stretch of imagination can it even be alleged that the applicant is guilty of any wilful concealment of factual information or that he could be alleged to have committed any deceitful action. None of the documents or material on record even remotely hint at the allegation, which have been levelled against the applicant. Further, a close reading of the impugned order shows that while in as many as in eight paragraphs the entire background, facts and history has been narrated, the conclusion that he is guilty of concealment and deceit has been drawn in one short paragraph. There is no discussion as to what facts and circumstances and material has been relied upon while arriving at such a conclusion.
15. Accordingly, the present Original Application is allowed and the impugned order dated 26.09.2022 bearing no. 5818-890/SIP/PC/DPA/W.Bad is quashed. The applicant shall be reinstated in service as a Constable and deputed for training forthwith. As a consequences of this order, the applicant shall be entitled to all the consequential benefits including arrears of pay & allowances with effect from the date his services were terminated. The purport of this order is that the applicant shall be deemed to have been in continuous and un-interrupted service. The said directions shall be given effect to within ten days from the receipt of a copy of this order. No order as to costs."6 Item No. 06 O.A. No. 2248/2022
5. Per contra, learned counsel for the respondents relies upon the paragraphs 7, 8 and 9 of the counter affidavit. The same are reproduced as under for ready reference:-
"7. That from the facts mentioned above, it was clearly established that applicant of OA had concealed the facts reg. registration of criminal case FIR No. 59/2016, dated 20/03/2016 U/s 147/323//427 IPC, Police Station Jarcha (UP) against him in the relevant columns Attestation Form intentionally and seek appointment to the post of Constable (Exe.) in Delhi Police by adopting deceitful means and also submitted false undertaking (Annexure R/3) in this regard.
8. That in view of the above, applicant of OA was called upon to Show Cause vide No. 1938/SIP(PC)/DPAW.Bad, dated 20/05/2022 (Annexure A/1 of OA) as to why his services for the post of Const. (Exe.) Male in Delhi Police should not be terminated under the provision of Rule 05 of CCS (Temporary Service) Rules, 1965 as the applicant of OA had concealed the facts reg. registration of criminal case FIR No. 59/2016, dated 20/03/2016 U/s 147/323/1427 IPC, Police Station Jarcha (UP) in the relevant columns of Forms and seek appointment by adopting deceitful means.
9. That the applicant of OA submitted his reply to Show Cause Notice stating therein that in month of March-2016 when he was serving in Army, a quarrel took place in his family and his name was falsely mentioned in the Police Station by the opposite party and later on the matter was compromised in between both the parties. He was not aware about the incident and due to lack of knowledge he could not mention the facts of the criminal case in the forms. He only came to notice when local police informed him that a case is registered against him and at that time all the formalities of documentation in Delhi Police were completed. After that he pursued the case in the court and he was later on acquitted by the Hon'ble Court of Civil Judge (CD)/Gautam Budh Nagar (UP) on 10/06/2022 (Annexure A/4 of OA) and requested that the mistake may be condoned."7 Item No. 06 O.A. No. 2248/2022
6. We have heard the learned counsel for the parties and perused the pleadings available on record.
7. It is not a disputed fact that the applicant retired as an Ex- serviceman on 31.03.20219. Thereafter, he was selected in UP Police on 15.09.2021 and subsequently, he joined there. Thereafter, upon his selection in Delhi Police, he resigned from the service of UP Police on 23.02.2022. Further, it is seen that the applicant was on probation in Delhi Police and a show cause notice regarding non-disclosure of information in the Application Form, Attestation Form and Undertaking qua FIR No.59/2016 dated 20.03.2016 U/S 147/323/427 IPC, registered at PS Jarcha, UP, which has been duly replied by the applicant. It is also notable in decision rendered by the Hon'ble Apex Court in Arnesh Kumar vs. State Of Bihar & Anr., reported in (2014) 8 SCC 273. it is mandated upon the investigating agencies to issue notice under Section 41-A of Cr.PC during the course of investigation. It is not disputed that no such notice has been issued by the investigating agency of the said case FIR.
8. It is also noticeable fact that the learned Court of Civil Judge (Sr. Div.), Gautambudh Nagar, Uttar Pradesh, framed the charges on 06.06.2022 and finally, acquitted the applicant vide Judgment dt.10.6.2022. The relevant paragraphs of the same read as follows:-
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"With regard to the documentary evidence. the accused can not be blamed offence, till the supported by any conditional evidence by any eye-witness.
Although the learned counsel of the prosecution accepted the formal verification of the documents. In this regard there is a well established principle of Law that the prosecution is to prove his case by prosecution evidences. Hence after making acceptance the formal verification of the prosecution documents, no gain shall be received by the accused.
Hence on the above investigation I came to a conclusion that the prosecution failed to prove the charges against the accused U/S 147, 323, 427 I.P.I. beyond doubt. Hence the accused Sheeshpal, Devender, Monu, Ravi and Sonu alias Yashvant are hereby liable to be acquitted u/s 147, 323, 427 of I.P.C."
As can be seen from the aforesaid order passed by the learned Trial Court that it is a clear cut case of acquittal. Neither the case is of discharge nor the case of acquittal on the basis of giving benefit of doubt.
9. It is also highlighted that in a recent decision rendered by the Hon'ble Supreme Court in Civil Appeal NOS. 8934-8935 of 2022, titled Pramod Kumar Kirar Vs. State of MP decided on 02.12.2022, it has been held as under:-
"7. Now so far as the reliance placed upon the decision of this Court in the case of Anil Kanwariya (supra) relied upon by the learned counsel appearing on behalf of the respondent - State is concerned on facts the said decision shall not be applicable. It was a case where the candidate as such suppressed the antecedents and by suppressing the material facts obtained appointment by fraud/misrepresentation and suppression of material fact. In that case the employee was convicted for the offences under Section 343 and 323 of IPC. Therefore, at the time of appointment he was found to be convicted. Therefore, 9 Item No. 06 O.A. No. 2248/2022 his termination came to be upheld by this Court. In the present case such is not the situation. Neither there was any suppression of material fact on the part of the appellant nor he was convicted for any offence under the IPC. The alleged incident was of the year 2001 which resulted into acquittal in the year 2006 and he applied for the post of Constable in the year 2013/2014.
8. In view of the above and for the reasons stated above, the Division Bench of the High Court has materially erred in denying the appointment to the appellant on the post of Constable and has materially erred in quashing and setting aside the judgment and order passed by the learned Single Judge.
However, at the same time, on the principle of no work no pay, the appellant shall be entitled to all the benefits from the date of actual appointment."
10. We also find that the present case pertains to the same department and is identical in nature to Daksh Kakran (supra) case, as has been submitted by learned counsel for the applicant.
11. Accordingly, the present Original Application is allowed and the Show Cause Notice dated 13.05.2022 (Annexure A-1) and impugned order dated 05.08.2022 bearing no. 4365- 4465/SIP/PC/DPA/W.Bad (Annexure A-2) are quashed. The applicant shall be reinstated in service as a Constable (Exe.) and be deputed for training forthwith. As a consequence of this order, the applicant shall be entitled to all the consequential benefits notionally with effect from the date his services were terminated. The purport of this order is that the applicant shall be deemed to have been in continuous and un-interrupted service. The said 10 Item No. 06 O.A. No. 2248/2022 directions shall be given effect to within ten days from the receipt of a copy of this Order.
12. With the aforesaid directions, the Original Application is allowed.
13. No order as to costs.
(Manish Garg) (Anand Mathur)
Member (J) Member (A)
/sm/