Central Administrative Tribunal - Allahabad
Sanjay Kumar Nishad vs National Sugar Institute on 13 May, 2023
RESERVED ON 9.5.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 13TH of MAY 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 330/00709 of 2021
Sanjay Kumar Nishad, S/o Shri Maiku Lal, R/o Makka Purwa, Kheora
Katri, Kanpur Nagar.
. . . Applicants
By Adv: Shri A.K Dave
VERSUS
1. Union of India through Secretary, Ministry of Consumer Affairs,
Food & Public Distribution, Department of Food & Public
Distribution, Government of India, Krishi Bhawan, New Delhi.
2. Director, National Sugar Institute, Department of Food Ministry of
Food & Civil Supplies, Government of India, Kalyanpur, Kanpur.
3. Senior Administrative Officer, National Sugar Institute, Ministry of
Consumer Affairs, Food & Public Distribution, Department of Food
& Public Distribution Government of India, Kalyanpur, Kanpur.
. . .Respondents
By Adv: Shri Raj Pal Singh
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicants under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-
i) To quash and set aside the impugned order dated 13.4.2021 (Annexure No. A-1) passed by respondent No. 3.2
ii) To direct the respondent to issue appointment letter to the applicant and to permit him to join on the post of Fitter 'C' pay scale 19900-63200 in which he is duly selected vide order dated 28.12.2020.
iii) To direct the respondents to pay all the consequential benefits.
iv) To pass any other and further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
v) To award cost of the application".
2. The facts in brief giving rise to the present O.A. are that in pursuant to the advertisement No. 2 of 2018 published in the employment news dated 22/28.09.2018, applicant applied for the post of Fitter 'C'. Applicant appeared in written examination and was successful. Thereafter admit card was issued to the applicant for appearing in Skill Proficiency Test.
On 25.7.2019, office order of selected candidates was issued by the respondents in which the name of the applicant finds place at Sl. No.2. Thereafter vide letter dated 6.8.2019, the respondent No. 3 informed the applicant that he has been selected on the post of Fitter 'C' Level-2 Cell-1 pay scale of Rs. 19900-63200/-. In pursuance of letter dated 6.8.2019, the applicant submitted all the documents/duly completed proforma. Shri Dhru Srivastava, whose name find place at Sl. No. 1 of the select list was appointed and joined the post in question. Respondents did not issue appointment letter to the applicant due to non-completion of police verification. All of a sudden respondent No. 3 canceled the selection process of Fitter 'C' by stating in his letter that due to unavoidable reasons they have canceled the result of the selection with immediate effect vide order dated 17.3.2020. Thereafter respondent No.2 terminated the services of Shri Dhru Srivastava vide order dated 17.3.2020. Being aggrieved by the aforesaid cancellation of selection process as well as termination of his services by respondent No. 2, Sri Dhru Srivastava filed an OA No. 330/245 of 2020 in which he challenged the validity of the order dated 17.03.2020 and also prayed his reinstatement in service. Applicant and Nitendra Singh Yadav also filed an OA No. 330/253 of 2020 challenging the order dated 17.3.2020, which was disposed of by order dated 22.09.2020. In compliance with the direction of the Tribunal passed in OA No. 330/00245/2020, respondent No. 3 sent a letter dated 28.12.2020 along with proforma to the applicant and directing him to submit the same before 15.1.2021. The applicant submitted the proforma 3 before respondent No. 3 on 05.01.2021 after completing it in all respect. Respondents issued appointment letter in favour of the selected candidates, whose name at Sl. No. 3 in the select list and thereafter he joined in the department. When the applicant came to know the aforesaid fact, he enquired in the department then respondent No. 3 served a copy of the order dated 13.4.2021 whereby declined the applicant's joining on the ground that due to pendency of the court case, his case for appointment could not be considered. Hence, this OA challenging the order dated 13.4.2021.
3. We have heard learned counsel for the parties and perused the records.
4. During the course of the argument, learned counsel for the applicant while challenging the impugned order reiterated the pleas taken in the O.A. and submitted that due to acquittal in all the pending criminal cases, the applicant is entitled to be appointed. It is also pertinent to mention here that respondents themselves admitted in the impugned order that:-
"vkidks lwfpr djus dk funsZ"k gqvk gS fd vkius vius lk{;kadu QkeZ ds dze la0 15B ij vafdr fd;k gS fd ikfjokfjd >xMs dh otg ls ekeyk U;k;ky;; esa fopkjk/khu gS tks fd iwoZ es izLrqr lk{;kadu QkeZ fnukad 29&08&2019 rFkk orZeku ea izLrqr lk{;kadu QkeZ fnukad 04-01-2021 esa Lo;a vafdr fd;k gS mijksDrkuqlkj ;g Li'V gS fd vkids lUnzHkZ esa eqdnek U;k;ky; esa fopkjk/khu gS vr% tc rd eqdnek U;k;ky; esa fopkjk/khu gS vkidks ljdkjh lsok esa fu;ekuqlkj join ugh djk;k tk ldrkA"
Learned counsel for the applicant further submitted that applicant was falsely implicated in two cases:-
(i) Complaint Case No. 77826 of 2017 under section 323, 504, 427 IPC registered at Police Station Nawabganj, District Kanpur Nagar.4
(ii) NCR No. 138 of 2017 under section 323, 504, 506 IPC registered at Police Station Nawabganj, District Kanpur Nagar.
5. Learned counsel for the applicant has filed rejoinder affidavit in which he has annexed a copy of the Final Report (Annexure RA-1) in which the name of the applicant has been deleted. He has also annexed a copy of the order of Chief Judicial Magistrate Kanpur Nagar passed in NCR No. 138/2017 whereby the applicant has been bailed out with the surety of Rs. 20 thousand (Annexure RA-2) and Annexure RA-3 relates to the order passed in Suit No. 6145A/2017 whereby the aforesaid suit was dismissed for non-prosecution. Since in all cases pending against the applicant, he has been acquitted, hence he is entitled to his appointment as the respondents themselves admitted in the impugned order that as long as the case is pending in the court; he cannot be made to join the government service as per rules. To buttress his arguments, learned counsel for the applicants placed reliance following judgments:-
"(i) Avtar Singh Vs. Union of India and others reported in (2016) 8 Supreme Court Cases 471;
(ii) Mooni Vs. State of UP and others in Writ A No. 9300 of 2020 passed on 2.12.2020
(iii) Vinit Kumar Giri Vs. State of UP and others in Writ A No. 49042 of 2017 passed on 1.8.2022;
6. Learned counsel for the respondents contended that applicant had applied for the post of Fitter 'C' and he successfully passed the written examination and trade test. The applicant had disclosed in police verification report that Complaint Case No. 77826 of 2017 under section 323, 504, 427 IPC registered at Police Station Nawabganj, District Kanpur Nagar and NCR No. 138 of 2017 under section 323, 504, 506 IPC registered at Police Station Nawabganj, District Kanpur Nagar were pending against him. Hence, respondents have rightly postponed the appointment of the applicant due to pendency of aforesaid criminal case. Learned counsel for the respondents vehemently contended that applicant has not 5 honourably acquitted in the pending criminal cases, hence he is not liable to be appointed in service.
7. We have considered the rival submissions and have gone through the entire record.
8. Before proceeding to discuss the submissions raised across the bar and analyzing the same in the light of the facts and circumstances of the case, we find it expedient to quote the relevant paras of the case laws relied upon by the learned counsel for the applicant:-
Relevant paragraphs of Mooni (supra) case are as under:-
"The petitioner is principally aggrieved by the order of 21 November 2020 in terms of which the Superintendent of Police Amroha has proceeded to reject his claim for being accorded appointment on the ground of pendency of two criminal cases.
The petitioner admittedly was declared successful in the recruitment exercise which was undertaken by the Board for appointment as a Constable in the Civil Police. The petitioner had also undisputedly made a candid and truthful disclosure in respect of his arraignment in case crime No. 68 of 2016 and 147 of 2017. The Writ Petition as originally framed had impugned a decision of the Board by which it had held that it would be the S.P. Amroha who would have to take a decision with respect to the suitability of the petitioner for being accorded appointment. During the pendency of this petition, the S.P. Amroha was directed to take a decision accordingly. It is in that backdrop that the impugned order of 20 November 2020 has come to be passed.
The Court is constrained to note that although the S.P. does take note of the decision of the Supreme Court rendered in Avtar Singh Vs. Union of India and Others (2016) 8 SCC 471, a reading of the impugned order evidences an abject failure to apply mind to the principles ultimately enunciated and on the basis of which alone the claim of the petitioner was liable to be adjudged. In Avtar Singh the Supreme Court after noticing the previous decisions rendered on the subject of a fair disclosure and a right of appointment elucidated the guiding principles in the following terms :-6
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1. 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.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. 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 recourses appropriate to the case may be adopted:
38.4.1. 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.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. 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.7
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
From the principles as spelt out in Avtar Singh and more particularly paragraphs 38.5 and 38.6 thereof, it is manifest that an obligation stood cast upon the S.P. to consider the suitability of the petitioner being inducted in service notwithstanding his arraignment in the criminal cases especially in 8 light of the full and fair disclosure that was made by him in that behalf. Rather than discharging that function, the S.P. has merely proceeded to postpone the taking of an appropriate decision till the conclusion of those two criminal cases. The decision so taken flies foul not just of the command of this Court but also in light of what was held in Avtar Singh. Surprisingly, although the Court had commanded the S.P. to consider the case of the petitioner specifically in light of the decision of the Supreme Court and which he has noticed himself in the order impugned, he has paid mere lip service to that direction and has clearly failed to comply with that direction. As noted above, the impugned order ex facie manifests a deliberate non application of mind. In any case the action of the S.P. to postpone the taking of a decision awaiting conclusion of the two criminal cases cannot possibly be countenanced. The learned standing counsel has fairly conceded to what has been recorded above and submits that the impugned order would not sustain.
The Court while tempted to enter an adverse remark against the S.P. in light of what has been noted above, refrains from doing so in the hope and trust that he shall upon remit, decide the matter fairly and in light of the original directions issued by the Court.
The Court further clarifies that it has not taken a view on the merits of the suitability or otherwise of the petitioner's claim to appointment. That is a decision which must necessarily be taken by the S.P. himself bearing in mind the nature of allegations levelled against the petitioner in the two pending criminal cases and their impact on his suitability to be offered employment in the police force. That decision is left for the independent evaluation of the S.P. concerned.
Accordingly the writ petition is allowed. The impugned order dated 20 November 2020 is hereby quashed and set aside. The matter shall stand remitted to the Superintendent of Police Amroha who shall now take a decision afresh and strictly in accordance with the observations entered above. The exercise of consideration shall be concluded expeditiously and in any case within a period of two weeks from today".
Relevant paragraphs of Vinit Kumar Giri (supra) case are as under:-
"(1) Heard the learned counsel for the parties and perused the record.9
(2) This petition has been filed by the petitioner for quashing of the order dated 04.09.2017 passed by the Respondent no.3, District Magistrate, Ballia, and for a direction to be issued to the Respondent no.3 to issue Appointment letter to the petitioner for the post of Lekhpal.
(3) It is the case of the petitioner that he has participated in the selection for the post of Lekhpal in pursuance to Advertisement dated 03.07.2015. At the time of verification of antecedents two FIRs had been lodged against him. In one of them the Investigating Officer had filed Final Report but in the other a criminal case was pending in the Trial Court. When he did not get the Appointment letter he approached this Court by filing a Writ-A No.29192 of 2017 [Vinit Kumar Giri Vs. State of U.P. and others] which was disposed of by this Court's order dated 10.07.2017 directing the District Magistrate, Ballia to take a decision with regard to the suitability of the petitioner and pass appropriate orders. The District Magistrate/ Collector, Ballia has passed the impugned order wherein he has stated that the petitioner was accused in two FIRs and in one of them in Case Crime No.210 of 2008, under Sections 147, 323, 504, 452 IPC a Charge-sheet has been submitted on 01.11.2008 and the Trial was pending before the Competent Court. The District Magistrate, Ballia found that one Criminal Trial was pending therefore, he did not find the petitioner suitable for appointment as Revenue Lekhpal and rejected his case. (4) It has been submitted by the learned counsel for the petitioner that the petitioner has been subsequently acquitted by the learned Chief Judicial Magistrate, Ballia, in Criminal Case No.1903 of 2008 in Case Crime No.210 of 2008 by his order dated 06.03.2021 and no Appeal has been filed by the State respondents against such order acquitting him, as per his information.
(5) This petition is finally disposed of with a direction to the Respondent no.3-District Magistrate, Ballia to reconsider the case of the petitioner for appointment as Revenue Lekhpal in pursuance of selection held in 2015 taking into account the acquittal order dated 06.03.2021. The District Magistrate, Ballia, shall consider the case of the petitioner keeping in mind the Larger Bench decision of the Supreme Court in the case of Avtar Singh Vs. Union of India and others reported in (2016) 8 SCC 471. The petitioner shall file a Representation annexing a copy of the acquittal order and also a copy of the judgment rendered in Avtar Singh's case within a period of two weeks from today. If such Representation is filed, the District Magistrate, Ballia, shall take appropriate decision by passing a reasoned and speaking order within a further period of eight weeks.
(6) The order impugned in respect of the petitioner shall abide by the final decision taken by the District Magistrate, Ballia on the representation of the petitioner".
9. Relying on the aforesaid judgments, we are of the view that the case of Vinit Kumar Giri (supra) helps the plea taken by the applicant in the OA as in the aforesaid case two FIRs had been lodged against the 10 petitioner and learned Chief Judicial Magistrate, Ballia had acquitted the petitioner in all the criminal cases pending against him. In the instant case, the applicant is selected for the post of Fitter 'C' and two criminal cases pending against the applicant are petty and did not involve any moral turpitude and he has also now been acquitted of the said criminal cases by the Competent Court. It is relevant to mention here that respondents in their impugned order dated 13.04.2021 admitted that as long as the case is pending in the court; applicant cannot be given appointment in a government service as per rules. Now the applicant is exonerated/acquitted from all the criminal cases pending against him, hence, in view of the above discussions, we are of the considered view that there is no impediment to providing him appointment to the post of Fitter 'C'.
10. Accordingly, OA is allowed and the impugned order dated 13.04.2021 is quashed and set aside and the respondents are directed to consider the candidature of applicant providing him appointment in lieu of advertisement No. 2 of 2018 published in the newspaper on 22/28.09.2018 for the post of Fitter 'C' in which applicant had been selected at Sl. No.2 in the select list within a period of 2 months in view of laws laid down by Hon'ble Allahabad High Court in the judgments cited above and also in view of acquittal in the criminal case pending against the applicant. No order as to costs. All associated MAs stand disposed of.
(Dr. Sanjiv Kumar) (Justice Om Prakash -VII)
MEMBER (A) Member (J)
Manish/-