Central Administrative Tribunal - Delhi
Narender Kumar Singh vs Commissioner Of Police on 24 August, 2011
Central Administrative Tribunal Principal Bench OA No. 1046/2011 New Delhi this the 24th day of August, 2011 Honble Shri G.George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Narender Kumar Singh, S/o Sh. Dhakkan Singh, R/o Village Chhoti Ballam, Post Nagla Birkhu, Distt. Aligarh (UP)-202123 -Applicant (By Advocate: Shri Ajesh Luthra) -VERSUS- 1. Commissioner of Police, Police Headquarters, IP Estate, New Delhi 2. Deputy Commissioner of Police, (Recruitment) New Police Lines, Kingsway Camp, Delhi -Respondents (By Advocate: Shri Vijay Pandita) O R D E R
Dr. Veena Chhotray:
The applicant, a provisionally selected candidate for the post of Constable (Executive) in Delhi Police, is aggrieved at termination of his services, for non-disclosure of his earlier involvement in a criminal case.
By way of relief, the OA seeks quashing the Show Cause Notice dated 1.12.2010 proposing cancellation of his candidature and the order dated 21.12.2010 canceling the candidature. Further directions for restoring his candidature and offering appointment with all consequential benefits have also been sought. No interim relief, though prayed, was granted.
2. The brief facts are that the applicant had been provisionally selected for the post of Constable (Exe.) on the basis of recruitment held in the year 2009. The selection was made subject, inter alia, to verification of character and antecedents. On receipt of the Character and Antecedents Report, it was found that a FIR No. 11/2010 (Crl.Case No.36/2010), dated 23.01.2010 U/S 498A/323/506 IPC & > Dowry Act, PS Gonda, Distt. Aligarh (UP) had been registered against him along with others. However, as per this report also, the applicant had not been challaned in that case.
On scrutiny of the Attestation Form filled up by the applicant on 9.5.2010, it was revealed that the applicant had not disclosed about his involvement in any criminal case despite a clear warning at the top of the Form. This was viewed by the authorities as a deliberate concealment and adoption of deceitful means with a mala fide intention.
Subsequently, however on 5.6.2010, the applicant had submitted an application in the Recruitment Cell regarding non-mentioning the facts of the above said criminal case in the Form. A request for being allowed to join the Department had also been made.
Resultantly, a SCN dated 1.12.2010 was issued against the proposed cancellation of his candidature. The applicant submitted a written reply denying such an intention on his part and giving reasons as to why this should not be made a ground for cancellation of his candidature. On consideration, the respondents did not find the plea put by the applicant as acceptable. Holding him unsuitable for appointment in Delhi Police, order dated 21.12.2010 canceling his candidature was issued.
The aforesaid SCN dated 1.12.2010 and the cancellation order dated 21.12.2010 are the subject of challenge in the present OA.
3. In support of the claims in the OA, the major submissions made are: (i) Para 4.6 explains the background of the criminal case in question has been explained. This criminal case had been filed at the behest of the applicants elder brothers wife, estranged at that time. Registration of the FIR had taken place on a complaint filed by her in the Court under Section 156 (3) CrPC. However, the matter had been resolved later on withdrawal of the complaint. A closure report had been filed by the Police on 17.3.2010 and the permission of the Court granted on 8.6.2010. A copy of the Courts order has been enclosed as Annexure A/3. (ii) the case of the applicant is that the matter in the aforesaid criminal case-subsequently got resolved-had been followed by his elder brother and father. As for himself, the applicant states about not even being aware of his name having been included in the FIR. The OA avers that no notice had been issued by the local Police against the applicant nor had he ever been called to the Police Station. He had also not been summoned by the Honble Court. It is also stated that no challan had been prepared in the said case. The applicant claims to have known about it for the first time only on 5.6.2010 when he had visited the office of the respondents to collect the joining letter with the original testimonials. On being told about his alleged involvement in the said criminal case, the applicant had immediately submitted his application dated 5.6.2010, referred to above.
4. Hence, as per the applicant, at the most, it was a case of a bona fide mistake. Considering the fact that the initial complaint had culminated into a criminal case and the applicant had also nothing to gain from the alleged concealment, the impugned order passed by the respondents confirming the proposed cancellation as per the SCN, is also alleged to be a mechanical order passed arbitrarily without application of mind.
The learned counsel, Shri Ajesh Luthra, would emphasise the dispute in this case having pertained to the elder brothers wife, which had nothing to do with the applicant. Besides the plea of the applicant not being aware of inclusion of his name in the FIR at the time of filing the Attestation Form would also be dwelt upon. In support decisions of the Tribunal in the OA No. 919/2007 (Shri Pal Vs. Union of India & Ors.) decided on 26.10.2007 and the OA No.1683/2008 (Bhagirath Vs. GNCTD & Ors.) decided on 13.2.2009, would be cited. Non-preparation of challan and the ultimate closure of this case would also be stressed to reinforce the contention of the applicant standing nothing to gain by the alleged willful concealment.
5. The respondents have reiterated their stand about non-disclosure of the criminal case in respect of the specific columns prescribed and despite a warning at the top of the Form. Rebutting the applicants contention of his not being aware of his involvement in the said case at the critical time, the counter reply submits that the Attestation Form had been filled on 10.5.2010 whereas the applicant had submitted a representation about non-mentioning of the said case only on 5.6.2010. The non-mentioned of this important fact as required under the Attestation Form is asserted to be deliberate and intentional amounting to use of deceitful means on his part to somehow get the appointment.
The learned counsel, Shri Vijay Pandita, would also bring to our notice about the applicants involvement in another criminal case and the following submission in the counter reply:
Page 8 of the counter after cancellation of the candidature of the -----------relevant columns of application from and attestation form.
The counter reply has also cited judicial rulings to support the stand; the major ones being
(i) In the decision of the Apex Court in Kendriya Vidhyalaya Sangathan & Ors. Vs. Ram Rattan Yadav [JT 2003(2) SC 256] it was held that if an employee concealed the facts in the Application Form, he had no claim to remain in the Government job.
(ii) The order of the Apex Court in Delhi Administration Vs. Sushil Kumar (1996) 11 SCC 605, upholding the right of the State with regard to verification of character and antecedents of a selected candidate and the outcome of the criminal offence not being relevant in such context.
(iii) The Apex Courts decision in Civil Appeal No. 9913/2010, Daya Shanker Yadav Vs. Union of India and Ors. where it was observed that an employee on probation can be discharged from service or a prospective employee may be refused employment on the ground of non-disclosure of his involvement in a criminal case.
(iv) Besides the Tribunals orders in the OA 1640/2009 (Jai Singh Vs. Govt. of NCT of Delhi) decided on 4.6.2010 and the OA 221/2007 (Vijay Pal (Constable) Vs. Government of NCT of Delhi) decided on 2.1.2008, have been cited.
6. We have carefully considered the respective submissions by the learned counsels, the material on record and the development of law on the subject.
6.1 To deal first with the respondents plea of the applicant having been involved in another criminal case. Consideration of the same in the present context would be strongly objected by the applicants learned counsel. Shri Ajesh Luthra would contend that the same could not be made an issue in the present case as the impugned show cause notice/order of cancellation by the respondents did not proceed on that ground. Thus, its being brought in at the stage of post-cancellation of candidature would be extraneous. Citing the Apex Courts decision in Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405, it would be argued that action is to judged by the reasons stated while making an order and supplementary reasons in the shape of affidavits are to be excluded.
We find a merit in the contention of the applicants learned counsel. Besides, as the said criminal case had not been mentioned in the show cause notice, this would also involve a violation of the principles of natural justice.
6.2 The applicants plea of not being aware of his inclusion in the criminal case vide the FIR No. 11/2010 dated 23.1.2010 also needs consideration. It is noted that even as per the respondents, the alleged non-disclosure had not pertained to the filing of the Application Form. Being a 2009 recruitment and registration of the FIR being subsequent to it, the question did not arise. The applicants case is that at the time of filing of the Attestation Form on 9.5.2010, he was not aware of his name having been included in the FIR. In support, pleas of not having been issued any formal notice or even being called informally by the local Police have been raised. Further, it has been submitted that there had been no challan prepared in the said case itself. There was no summoning by the court also. Under the circumstances, his contention is that he was utterly unaware of his name having been included in the said FIR. Further, it has been submitted that it was only on 5.6.2010 when the applicant had visited the office of the respondents to collect the joining letter with original testimonials, that he came to know from the office staff about having been found involved in the said criminal case. As per the applicant, on the same date he had submitted his application to the authorities mentioning the relevant facts and requesting for treating the non-disclosure as an inadvertent miss on his part.
Even though, the respondents have sought to rebut this contention, but no factual rebuttal of the supportive details is found to be forthcoming from the counter reply. The decisions of the coordinate Benches of the Tribunal (Principal Bench) in the OA No. 919/2007 and the OA No. 1683/2008, relied upon by the applicants learned counsel, have a bearing on the point at issue. In the OA No. 919/2007 (Shri Pals case), while dealing with a case of termination on grounds of non-disclosure of criminal antecedents, the learned coordinate Bench had held, question of suppression would come, if respondents are able to demonstrate that either applicant was summoned by Police/Court or he was arrested. Likewise, in the OA 1683/2008 (the case of Bhagirath) the claims being agitated were against cancellation of candidature on ground of non-disclosure of criminal antecedents. The plea taken by the applicant (who was in the ex-servicemen category) was that he had never been summoned by the Police or Court. Besides, the complaint in question was false and the same had been dropped by the Police within two days of being filed, with the approval of the court. In this case also, the learned coordinate Bench expressing distress at non-application of mind by the authorities in passing the impugned order of cancellation of candidature had observed:
The plea of the applicant, which was substantiated, was that he himself never knew about lodging of any complaint against him and, therefore, there was no occasion for him to have made a mention of the same in the relevant columns of the Application Form.
6.3 The case laws relied upon by the respondents and briefly indicated in para ------above, have been contended by the applicants learned counsel as not being applicable in view of the latest decision of the Honble Apex Court in Commissioner of Police Vs. Sandeep Kumar. To reinforce the argument further, our decisions in the OA 728/2011 (Naveen Kumar Mandiwal Vs. Delhi Police & Ors.) and OA 3518/2011 (Constable Vijay Pal Yadav Vs. GNCTD & Ors.) decided respectively vide orders dated 3.8.2011 and 4.8.2011, have also been referred.
7. The matter had been considered at length by this very Bench in the OA No. 728/2011 (Naveen Kumar Mandiwal Vs. Commissioner of Police & Ors.) decided on 3.08.2011. Specifically dealing with the issue of non-disclosure of previous criminal involvement, the perceptible shift in law in the decision of the Apex Court in Commissioner of Police & Ors. Vs. Sandeep Kumar had been noticed. It would be pertinent to extract the relevant provisions:-
5.1.1 We have carefully considered the respective submissions and the material on record. The facts of the case are not disputed; what is at variance is their perceptions by both the sides. Such cases have formed the subject of judicial consideration on several occasions by different Benches of the Tribunal, by the High Courts as well as by the Apex Court. What we note is a clear and perceptible shift in the law on the subject. For this purpose, it would be apt to refer to the decision of the Apex Court in the Civil Appeal No. 1323/1996, the Delhi Administration Vs. Sushil Kumar, (1996) 11 SCC 605. Whiling dealing with the case of cancellation of candidature of a provisional selected candidate for the post of Constable in Delhi Police on the ground of non-disclosure, in a case of subsequent acquittal in the criminal offence, the Honble Apex Court had propounded the following law:-
6.4 In Delhi Administration Vs. Sushil Kumars case (supra) while dealing with the case of a cancellation of candidature of a provisionally selected candidate for the post of Constable in Delhi Police on the ground of non-disclosure, in a case of subsequent acquittal in the criminal offence, the Honble Apex Court had propounded the following law:-
Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Rejecting the stand of the Tribunal, the following had also been observed:-
The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though, he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant in the conduct or character of a candidate to be appointed to a service and not actual result thereof. If the actual result happened to be a particular way, the law will take care of the consequences. The consideration relevant to the case of the antecedents of the candidate. Appointing authority, therefore has rightly focused this aspect and found him not desirable to appoint to the service. 5.1.2 The sea change in this case is perceived in the recent decision of the Honble Apex Court in Commissioner of Police & Ors. Vs. Sandeep Kumars case (supra) replied upon by the applicants counsel. Again dealing with a case of cancellation of candidature for the post of Head Constable in Delhi Police (Ministerial) for non-disclosure of a criminal case, the Honble Apex court had taken a liberal view and upheld the view taken by the Delhi High Court reversing the decision of the Tribunal. In this case, the respondents and some of his family members had been involved in a criminal case under Section 325-34 IPC, to be subsequently compromised and leading to acquittal by the Trial Court. The Hon,ble Apex Court had considered the matter in the broader perspective and referred to the character Jean Valjean in Victor Hugos 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 his whole life. A reference has also been made to the case of Welsh students who had been agitating in support of Welsh language and Lord Dennings judgment [vide: Morris Vs. Crown Office, (1970) 2 Q.B.114].
Agreeing with the Delhi High Courts view about the cancellation of candidature in this case being illegal, the Honble Apex Court had observed as follows:-
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. The following had also been observed:-
In our opinion, we should display the same wisdom as displayed by Lord Denning.
As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter. It is noted that the emphasis has now shifted on the seriousness of the offences for which a person has been alleged to be involved and introduction of the extenuating factors of lightness of the offences and the tendency of the young and inexperienced to commit minor indiscretions when they are tender and inexperienced in years.
5.1.3 The earlier judgments of the Punjab and Haryana High Court adverted to on behalf of the applicant fall in the line, demonstrated by the Honble Apex Court in its most recent judgment referred to above. In the case of Subhash Vs. State of Haryana & Anr. (supra) dealing with a similar issue of non-disclosure of a criminal case leading to acquittal, the Honble Single Bench had found the pleas of the respondents opposing the claims of the applicant as highly hyper technical. Further, the view taken was that the non-disclosure of information relating to his acquittal in the criminal case could not be a ground for withholding the appointment of the petitioner.
Similarly, the Division Bench of the Punjab and Haryana High Court in the case of Dinesh Kumar Vs. State of Haryana (supra) had not found the objections raised by the respondents as acceptable.
5.1.4 Considering the recent trend, we find it necessary to refer to another OA No. 1415/2010 (Ajay, Ex. Constable in Delhi Police Vs. GNCTD), again relied upon on behalf of the applicant. In this case also taking a favourable view, the learned Coordinate Bench had observed as follows:-
To this, we have to examine the circumstance of full disclosure of this case at the time of application itself forgetting the relevancy of the dates since his selection was based on analysis of competitive merits, the fact that he was acquitted and the offence was so minor and petty and the circumstances thereof are too late to be mentioned of, would have ensured the selection in the first place. Therefore, the impugned orders are vitiated by non-application of mind as to the cause and effect of the actions alleged against the applicant. 5.1.5 In view of the significant change in law on the subject, as upheld by the most recent decision of the Apex Court in Sandeep case (supra), we do not find it necessary to deal with the other cases relied upon by the parties with the singular exception of the Apex Courts judgment in Daya Shanker Yadav Vs. Union of India & Ors. (supra) relied upon by the respondents, would be appropriate.
The learned counsel, Shri Amit Anand, has, particularly, drawn our attention to Paras 8, 9 and 10 of this order, which according to him, express the ratio decidendi of the order. This was a case relating to termination of services of a provisionally selected Constable in the Central Reserve Police Force on the ground of non-disclosure of criminal involvement. Upholding the judgment of the Delhi High Court, the appeal had been disallowed. Para 8 had dealt with the relevant rule of the CRPF Rules. Para 9 had considered the various scenarios regarding response from the prospective employee to the queries in the verification form. In Para 9(c), it was mentioned that where the declarant had answered the question in the negative and on verification, it was found that the answers were false, the employer may refuse to employee the declarant or discharge him (if already employeed), even if the declarant had been clear of the charges. This was because of suppression of material information itself becoming a reason for not employing the declarant. In para 10, it had been reiterated that an employee on probation could be discharged from the service or a prospective employee could be refused employment. Para 10 (ii) dealing with the issue of suppression of material facts has stated as under:-
on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for an criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post. This view of the Honble Apex Court has been relied upon by the respondents learned counsel, Shri Amit Anand, to justify the impugned decision of termination in the present case.
5.1.6 However, considering the well established principle of law that subsequent decision of the Court would be a binding precedent, we have no choice but to be guided by the decision in Sandeeps case (supra) delivered in March, 2011.
8. The above order highlights the shift of emphasis to the nature of the offence-serious or otherwise-in which a person is alleged to have been involved and the introduction of the extenuating factors of lightness of offences. Further, the Honble Apex Court has been in favour of condonation of tendency of young and inexperienced to commit minor indiscretions rather than to brand them criminals for the whole life and visit with serious consequences like stigmatizing and denial of appointment otherwise earned on merit. A non-acceptance of hyper technical pleas on the part of the authorities is also evidenced in the decision of the Honble Apex Court.
The view taken in Daya Shanker Yadavs case (supra) holding a view contrary could not be followed taking into account the factors of judicial precedence since the decision in Sandeeps case was later in point of time.
Further, in the present case presence of several mitigating factors-particularly the claim of the applicant not being aware of the alleged criminal involvement on the critical date of filing of the Attestation Form-as pleaded by the applicant in his reply to the show cause notice and further reiterated in the OA cannot be lost sight off.
9. To conclude, after a careful consideration of the various relevant factors, we have arrived at the view that the respondents plea of there being another criminal case revealed against the applicant after the cancellation of the candidature, cannot be made a legally tenable ground for the impugned decision of cancellation of candidature. We have also found, on the basis of the respective submissions before us, the claim of the applicant of not being aware of his name having been included in the criminal case on the date of the filing of the Attestation Form meriting a serious consideration. As regards the basic aspect concerning the law as developed, the case is squarely covered by this aspect of our decision in Naveen Kumar Mandiwals case, with the relevant paras in the said order being extracted at length above. Further, we have not found it necessary to consider the other judicial rulings relied upon by either of the parties, in view of the latest decision of the Honble Apex Court in Sandeep Kumars case. We have also held there being several mitigating factors in favour of the applicant deserving serious consideration on the part of the respondents, which is not evidenced from a perusal of the impugned show cause notice or the cancellation order. Resultantly, the present case is found to be one warranting our judicial intervention.
10. For the foregoing reasons, the OA is allowed in terms of the following directions:-
(a) The impugned show cause notice dated 1.12.2010 as well as the cancellation order dated 21.12.2010 are found to be unsustainable in law and hence quashed and set aside.
(b) The respondents are directed to offer appointment to the applicant on the basis of the aforesaid selection, if found otherwise eligible. This would be from prospective effect.
(c) The prayer for consequential benefits is not found to be acceptable.
Our directions are to be complied by the respondents within a period of two months from the date of receipt of a copy of this order. No order as to costs.
(Dr. Veena Chhotray) (G.George Paracken) Member (A) Member (J) /lg/