Central Administrative Tribunal - Ernakulam
Sarath K.N. S/O Late Mohanan vs Flag Officer Commanding In Chief on 6 June, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION Nos.180/00320 of 2017
Tuesday this the 6th day of June, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Sarath K.N. S/o Late Mohanan, aged 29 years
Civilian Motor Driver (CMD OG-I)
INS Zamorin, Ezhimala, Payyannur,
residing at Kaikkat Natemmal (H),
Puthuppanam, Vatakara, Kozhikode-673105.
. . . Applicant
(By Advocate Mrs, Sumathi Danapani (Senior Advocate)
with Advocate Mr. Millu Dandapani)
Versus
1 Flag Officer Commanding in Chief
Headquarters, Southern Naval Command,
Kochi-682004.
2 The Commanding Officer, INS Zamorin,
Ezhimala, Payyannur-670310.
3 Union of India, represented by its Secretary
Ministry of Defence, South Block,
New Delhi-110 011.
... Respondents
(By Advocate Mr. T.C. Krishna, Sr.PCGC)
The above application having been finally heard on 02.06.2017, the
Tribunal on 06.06.2017 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member Annexure A5 order dated 29.3.2017 by which the respondents terminated the service of the applicant is under challenge. When application for the post of Civilian Motor Driver (OG) under the Southern Naval Command was published the applicant submitted application. After undergoing the selection process he was selected and was offered a temporary post of Driver by Annexure A1 dated 4.4.2016. The appointment was subject to verification of character and antecedents by Civil police authorities. It was stated that if the applicant was found unfit for government servant he will be terminated forthwith. Pursuant to that order he joined at Commander Transport Workshop at Naval Base, Kochi on 11.4.2016. Later pursuant to a transfer request he was given transfer to Ezhimala vide Annexure A2 dated 21.12.2016. Since then the applicant has been working at Ezhimala. When the applicant was on leave he could come to know of the issuance of Annexure A5 order. By Annexure A6 dated 4.4.2017 a request was made to serve Annexure A5 on the applicant and to get a dated acknowledgment. It was thereafter he moved this Tribunal to quash Annexure A5. The applicant contends that in the attestation form he had furnished the required particulars. There was no suppression of any material facts. After submitting the application he was not detained, convicted or debarred. A crime was registered by Vadakara Police under Minor Minerals (Development and Regulations) Act (MMDR Act for short)implicating the applicant for having committed offence under Section 4(1)(9) read with Section 21(1) of that Act. The applicant was only the Driver of the vehicle. The owner of the lorry was wiling to pay the fine imposed by the Police in order to get the vehicle released. In order to get release of the vehicle the owner of the vehicle compounded the offence for Rs. 15,000 as stated in Annexure A5 itself. Only on account of that the police has reported that the applicant is unsuitable for central government service. It is illegal and thus liable to be quashed.
2. The application is resisted by the respondents contending as follows.
The appointment of the applicant was subject to verification of character and antecedents by local civil authorities and other competent authorities. The respondents received a verification of character and antecedents report from the District Collector in response to the query made by the respondents' office. The verification report shows that the applicant was one of the accused in CC 578/2009 which was pending before JFCM, Vadakara for offences punishable under Sections 143, 147, 148 341, 323 and 324 read with Section 149 IPC. He was also an accused in CC 140/2012 of Sessions Court, Kozhikode registered for offences punishable under Sections 143, 147, 148, 341, 323 and 324 read with 149 IPC. He was also an accused in another case CC 1968/2013 of JFCM Vadakara in which he was acquitted. The applicant was involved in Crime No. 519 of 2009 which was registered under Section 4(1)(9) read with Section 21(1) of MMDR Act. In view of the involvement of the applicant in those cases he was found unstable for appointment in central government service. Thus it is seen that the applicant is a habitual offender. The decision taken by the department is supported by valid verification report of the competent authority. The applicant is liable to be terminated without assigning any reason and without any notice. Para 2 of Annexure A1 itself clearly states that the appointment is subject to verification of character and antecedents by civil Police authorities and that in case the applicant is found unfit for government service, the appointment will be terminated forthwith. As such the respondents are not bound to issue notice to the applicant before issuance of Annexure A5 order. Since the information was leaked the applicant deliberately absented from unit without intimation so as to avoid serving of the termination order. Since the applicant was absent the 2 nd respondent served the termination order at the residential address of the applicant and the same was received by the applicant on 21.4.2017 vide Annexure R3 the acknowledgment dated 21.4.2017. There was no reason for the respondents to override the verification report of the District Collector and the Command Intelligence Officer to retain the applicant who was found unsuitable for central government service. Since the applicant is a probationer he is covered under CSS (Temporary Service) Rules and so the service of the applicant can be terminated without assigning any reason or notice. Annexure A5 order was issued based on Annexure R1 report. He is involved in other cases as well. The Indian Navy being a sensitive and important defence establishment of the country cannot compromise the conduct and character of individuals employed in the organization. There is no reason to ignore Annexure R1 and as such the claim made by the applicant is only to be disallowed and OA is to be dismissed.
3. The short point that arises for consideration is whether Annexure A5 order dated 29.3.2017 is liable to be quashed?
4. We have heard the learned Senior counsel appearing for the applicant and also the learned standing counsel appearing for the respondents and have gone through the pleadings and documents.
5. It is vehemently argued by the learned Senior counsel appearing for the applicant that Annexure R1 which is the report sent by the District Collector would reveal that the applicant was earlier involved in three cases, CC 578/2009 and CC 1968/2013 of JFCM Court Vadakara and SC 140/2012 of Sessions Court, Kozhikode. Besides those three cases the applicant was found to be involved in Crime No.519 of 2009 which was registered for offence under Section 4(1)(ix) read with Section 21(1) of MMDR Act. In that case the applicant remitted a fine of Rs. 15,000/-. It is pointed out that out of the three cases CC 578/2009 and CC 1968/29013 which were pending before the JFCM Vadakara in CC 578/2009 the applicant was one of the nine accused therein. That case was registered alleging commission of offence punishable under Section 143, 147, 148, 341, 323 and 324 red with 149 of IPC. Annexure A8 is the copy of the judgment which shows that PW1 the defacto complainant therein deposed that he had not revealed the names of the assailants in the complaint (Ext.P1). The court found that the parties had settled the matter and so ultimately all the accused were acquitted.
6. In the Sessions Case No.140/2012 the applicant was one of the four accused. That case was registered alleging commission of offences under Section 143, 147, 148, 324 and 308 read with 149 IPC. Since in that case also though PW1 to 4 (including the PW1 the injured) were examined no evidence was adduced regarding the identity of the assailants. Since there was total absence of evidence all the accused persons including the applicant were acquitted under Section 232 Cr.PC, that is, even before entering upon the defence, the accused therein were acquitted. It is not disputed that the accused was acquitted in all the three cases referred to in first para of Annexure R1.
7. It is further pointed out by the respondents that the applicant is involved in Crime No. 519/2009 which was registered alleging commission of the offence under Section 4(1)(9) read with Section 21 (1) of MMDR Act. It is not disputed that the applicant was only the Driver of the lorry which was intercepted and taken into custody alleging that it was used for illegally transporting the sand without licence attracting the offence mentioned therein. The main ground that has been projected by the learned counsel for the respondents is that since the applicant had remitted Rs. 15,000 which was imposed as the fine in that case, there is an admission of the guilt and as such it should be treated as a case where the accused was found guilty. It is important to note that no charge sheet or complaint was filed before the Jurisdictional Magistrate. It is contended by the applicant that cognizance can be taken by the court, only if a complaint is lodged by the authorized officer of the department. It is not necessary to go into that question since that question does not arise in view of the fact that the offence stood compounded by remitting an amount of Rs. 15.000/-.
8. In this connection it is argued by the learned Senior Counsel for the applicant that in such cases where a vehicle is involved, the release of the vehicle would be of paramount importance to the owner of the vehicle, and so the owner would be always eager to see that the vehicle is released by remitting the fine amount not only of the owner of the vehicle but also of the driver of the vehicle, as otherwise, the vehicle will not be released. Therefore, the fact that the amount of Rs. 15,000 was remitted in that case in the account of the applicant who was the accused as the driver of that lorry, does not mean that there was any admission of guilt. In any event that case did not reach the court. When a special enactment enables a party to remit the amount in order to avoid prosecution and when such a facility is availed of by the party it cannot be said that by remitting such a fine amount to the department any admission of guilt is made. Most often such a course is adopted or followed by persons who are interested in getting release of the vehicles involved in such cases at the earliest as otherwise it will get destroyed due to exposure to sun and rain. It is also submitted that it is not uncommon that disposal of a criminal case will take years together and if the vehicle is not released immediately it will get ruined as stated above. Therefore, the owner of the vehicle will be always interested and anxious to get release of the vehicle by paying the amount. The further fact is that if the fine amount is not remitted to avoid prosecution, the charge sheet or complaint may have to be filed before the Judicial Magistrate in which case the owner and driver may have to appear before the court and should seek and get bail from the magistrate and should undergo the ordeal of trial. It is in order to avoid such unduly delayed process, often parties are inclined to remit the fine amount. Therefore, in such a factual backdrop it cannot be contended that remission of the compounding fee of Rs. 15,000/- should be treated as an admission of guilt. The compelling circumstances in such cases cannot be lost sight of, the learned Sr. Counsel for the applicant submits. The further fact is that no complaint was filed before the jurisdictional magistrate. The remission of the sum of Rs. 15,000/- as compounding fee can never be treated as a finding of guilt or admission of guilt, it is contended. Compounding is done under circumstances as mentioend above. It is also pertinent to note that in such cases the driver of the vehicle can have no say in the matter, for, it would be interest of the owner of the vehicle that would prevail as otherwise the driver will lose his job. The driver would also be interested in avoiding criminal trial if the owner is willing to pay the compounding fee.
9. Viewed in that background the fact that a crime was registered under MMDR Act and subsequently compounding of fee of Rs. 15000/- was remitted cannot be treated as a ground to hold that there is a finding of guilt against the applicant. Mere reregistration of a crime cannot cause the termination of service. It is further submitted by the learned senior counsel for the applicant that the driver of a vehicle is only to obey the directions of the owner of the vehicle if he (the driver) is to continue in employment and so it can never be said that there was a criminal element or animus in the commission of such acts. It can only be treated as a petty violation of the rules or provisions of the MMDR Act. If as a matter of fact it was treated as a serious offence, then certainly the legislature would not have thought of allowing dropping of such a case receiving compounding fee. That is another factor which also has to be borne in mind while analyzing the alleged criminal antecedent of the applicant.
10. The learned Sr. Counsel appearing for the applicant has relied upon the decision of the Hon'ble Supreme Court in Avtar Singh Vs. Union of India and others - (2016) 8 SCC 471. That case was actually with respect to furnishing of incorrect information in the verification form before or after his induction into service. That decision rendered by the three Judges Bench of the Hon'ble Supreme Court is relied upon by the learned senior counsel to buttress her submission that the whole idea of verification of character and antecedents is that only the persons suitable for the post in question is appointed. But in order to find him/her unsuitable it should be a case where the incumbents should not have antecedents of such a nature which may adjudge him unsuitable for the post. Simply because the District Collector has opined that the applicant is unsuitable the court cannot jump to a conclusion that the applicant is unsuitable. It is pointed out that the three cases referred to earlier ended in acquittal. At the time of commission of the offences mentioned therein the applicant was aged only about 20 years. It was held by the Hon''ble Supreme Court in State of MP Vs. Remashanker Rahuvanshi - (1983) 2 SCC 145:
b� It was observed by this Court that most students and most young men who take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever lasting discredit ? Sometimes they feel strongly on injustice and resist. They are sometimes pushed into the forefront by elderly persons who lead and mislead them. Should all these young men be debarred from public employment ? Is Government service such a heaven that only angels should seek entry into it ? This Court has laid down that the whole business of seeking Police report about the political belief and association of the past political activities of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution.b� (emphasis supplied by us) The aforesaid observations made in Raghuvanshi's case was followed by the Hon'ble Supreme Court in Avtar Singh cited supra. It was also held by the Hon'ble Supreme Court in Avtar Singh:
b� Thus, it follows that merely because there is a power to terminate services or cancellation of offer of appointment, it does not follow that the person should be removed outrightly. Various aspects have to be considered and the discretion so used should not be arbitrary or fanciful. It has to be guided on certain principles for which purpose verification is sought.b� In para 30 of the said decision it was also held that the employer is given discretion to terminate or otherwise to condone the omission. Even otherwise, once the employer has the power to take a decision when at the time of filing verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In the case on hand there is no plea that the applicant had suppressed any material fact. Apart from the case which ended in acquittal and where the offences were alleged to have been committed when the applicant was aged about 20 or 21 years, the only other case is the one coming under the Sand Act (MMDR Act) which is only a technical offence the learned senior counsel submits. That also occurred in 2009. It is also pointed out that the post to which the applicant was selected is that of a Driver and not the post of the police officer/police constable or a teacher . There is nothing to show that there was any attempt on the part of the applicant to procure the job by deceitful means. The ultimate decision of the employer should be based upon objective criteria on due consideration of all relevant aspects. What yardstick is to be applied has to depend upon the nature of posts; higher posts will involve more rigorous criteria in all service not only to uniformed service. It was held by the apex court in para 36 in Avtar singh's case:
b� What yardstick is to be applied has to depend upon the nature of post, higher 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 post/nature of duties/services and power has to be exercised on due consideration of various aspects.b� The chance of reformation has to be afforded to young offenders in suitable case; interplay of reformative theory cannot be ruled out in toto, can be generally applied but it is one of the factors is to be taken into consideration while exercising the power of canceling the candidature of the applicant and discharging of service, the Apex Court held in Avtar Singh's case. Considering the nature of the offence and the further fact that the legislature itself thought of allowing the composition of the offence at the police station itself on receipt of the compounding fee it can certainly be found that the offence alleged (under MMDR Act) is trivial in nature. Since the case was dropped on the ground of remission of the compounding fee it cannot be said that there was any verdict of guilt against the applicant.
11. The decision rendered by the Hon'ble Supreme court in Ramkumar Vs. State of UP and others - (2011) 14 SCC 709 has also been cited by the learned Senior Counsel where it was held:
b� 8. In the facts of the present case, we find that though Criminal Case No.275 of 2001 underSections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon.
In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable. b� It is submitted that the facts dealt with therein are almost similar; that though some allegation was made by the defacto complainant it was specifically stated that he did not name any of the assailants. Be that as it may, since those three cases arose about seven years prior to the crucial date, at a time when the applicant was aged only 20 or 21 years, that also has to be duly considered. In this connection the decision rendered by the Hon'ble Supreme Court in Commissioner of Police and others Vs. Sandeep Kumar - (2011) 4 SCC 644 has also been relied upon wherein it was held:
'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 been 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.' Subsequent to the appointment in this case, he actually obtained another appointment in the State Service. Though the pay and allowances stated therein were much more than the one which the applicant was getting from the respondents department, he did not opt to accept that appointment since by that time the applicant had already been appointed in the respondent department. It is stated that another appointment was also given to the applicant on 16.3.2017 which also was not accepted since by that time the applicant had joined the service of the respondent department. The fact that a crime was registered, which was subsequently dropped on deposit of the compounding fee, if taken as a criminal antecedent then the future of the applicant would be doomed as he cannot get any appointment under the public employment system since this report will be treated as the final, branding him as a criminal for ever. Should it be allowed is the pertinent question posed by the learned Sr.Counsel.
12. Though the applicant contended that notice should have been issued before terminating the service, we find no merit in that contention. The applicant is only a probationer covered under CSS (Temporary Services) Rules Not only that even as per the appointment order it was made specific that the appointment is subject to the verification report of criminal antecedents and that if based on the character and antecedents the candidate is found unsuitable the appointment can be terminated without notice. Since the very appointment order itself makes it clear that if the candidate is reported to be of bad character and antecedents no further notice is required to be given, there is absolutely no illegality in the procedure followed by the respondents.
13. When the report of the District Collector is received with respect to the character and antecedents of the employee/candidate the first respondent cannot ignore the said report, the learned counsel for the respondents rightly submits. But the contention that the applicant is a habitual offender and he is involved in multiple cases may not be acceptable as such. We have delineated as to how the court or authority concerned has to view such things when an employee is ordered to be terminated based on such reports.
14. Had the appointment of the applicant been in any other service, then certainly the factors detailed earlier would have been sufficient to hold that the involvement of the applicant in a few cases, when he was aged about only 20 years (as those incidents took place about 6 or 7 years back) cannot be used as a reason to decline appointment. Similarly the fact that he was made an accused and subsequently that case was dropped as the compounding fee was remitted also may not be a serious one. But the learned counsel for the respondents would submit that the Indian Navy is an important defence establishment of the Union and so the first respondent cannot compromise on the conduct and character of the individual employed in the organization. There can be no doubt that the safety and security of the nation cannot be put at stake and that persons employed whether it be in the defence or civilian employment of Navy, should be highly disciplined persons without any blemish on the character and antecedents. The respondents would submit that if a person was involved in 4 or 5 criminal cases earlier the criminal trait in him will continue or remain in him and so if such persons are allowed to be retained in the department it would be risky and dangerous. We find force in the submission so made by the learned counsel for the respondents. But the learned Senior counsel for the applicant would submit that the applicant is appointed only as a Driver and so there would be no occasion for him to meddle with the affairs of the Indian Navy. As stated earlier, even a civilian employee working in the defence establishment should be of impeccable character and he should be obedient and loyal to the officers and to the country as a whole. Persons of criminal mind may pose serious threat to the organization, the learned counsel for the respondents submits. As a Driver, if the applicant is allowed to be retained in the Naval Organization, whether it would be risky and dangerous to continue his employment is a matter to be considered by the first respondent. Because the appointment is in Naval Department, adherence to the rule of discipline has to be scrupulously followed.
15. Whether the applicant, as a Driver has to perform duties in such a way affecting the safety and security of the nation, and also security of the officers to whom the applicant would be attached etc., are matters to be considered by the first respondent. The first respondent will consider all those aspects and will pass appropriate orders within one month from the date of receipt of a copy of this order.
16. O.A is disposed of as above. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps