Central Administrative Tribunal - Jabalpur
Sachin Mehra vs M/O Defence on 23 July, 2018
1 OA No.200/925/2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/925/2013
Jabalpur, this Monday, the 23rd day of July, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Sachin Mehra
S/o Shri Deen Dayal Mehra
DOB 19.07.1984
R/o H.No.1597
New Basti Sarrapipal
Near R.K. Welding Shop
P.O. Khamaria,
Ranjhi Jabalpur 482009 -Applicant
(By Advocate -Shri Vijay Tripathi)
Versus
1. The Union of India,
Through its Secretary,
Ministry of Defence,
Department of Defence
Production South Block
New Delhi 110001
2. The Chairman
Ordnance Factory Board
10-A Saheed Khudiram Bose Marg
Kolkata 700001
3. The General Manager
Vehicle Factory
Jabalpur 482009 (MP) - Respondents
(By Advocate -Shri Manish Chourasia)
(Date of reserving the order:-19.06.2018)
Page 1 of 18
2 OA No.200/925/2013
ORDER
By Ramesh Singh Thakur, JM:-
The applicant by way of filing the instant Original Application has challenged the legality, validity and propriety of the order dated 11.10.2013 (Annexure A-1), whereby the proposal for appointment of the applicant has been rejected by the respondent No.3 on the ground that the applicant has received adverse remark from the District Magistrate. Hence, this Original Application.
2. The applicant in this Original Application has prayed for the following reliefs:-
"8.1 Summon the entire relevant record from the respondents for its kind perusal.
8.2 Set aside the order dated 11.10.2013 (Annexure A-1).
8.3 Direct the respondents to appoint the applicant as Fitter Auto (Semi Skilled) with all consequential benefits;
8.4 Any other order/orders, direction/directions may also be passed.
8.5 Award cost of the litigation to the applicant."
3. The brief facts of the case are that the respondent-department has issued an advertisement to fill up the post of Semi Skilled worker in different trades. The applicant is having ITI certificate in Page 2 of 18 3 OA No.200/925/2013 the Trade of Electrician from the recognized institution, therefore, being an eligible candidate, submitted his candidature. 3.1 The applicant thereafter has received call letter (Annexure A-3), whereby the applicant was instructed to participate in the written test which was scheduled on 22.07.2012. Accordingly, the applicant appeared in the written test and performed well. The applicant was found eligible in the written examination held on 22.07.2012, therefore he was called for trade test for the post of Fitter Auto (Semi Skilled) vide letter dated 09.08.2012 (Annexure A-2). The applicant appeared for trade test on 06.09.2012. 3.2. The applicant was found suitable, the respondent-department issued a letter dated 16.10.2012 (Annexure A-5), whereby it was informed that he has been selected for the post of Fitter Auto (Semi Skilled) and along with letter dated 16.10.2012, five sets of PVR form were furnished to the applicant. After receiving the PVR form, the applicant has filled up the same and sent it to the competent authority. The applicant has disclosed all the facts in column No.12 of the PVR form. The applicant has submitted an affidavit dated 22.10.2012 (Annexure A-4) wherein he has disclosed that a case had been lodged against him under Section 324/34 in the Police Station Ranjhi. The criminal case was ended with compromise between the parties on 13.03.2010 much before Page 3 of 18 4 OA No.200/925/2013 submitting candidature for the post of Semi Skilled worker in the Trade of Auto Fitter. This fact has already been disclosed by the applicant in the PVR form as well as in the affidavit. 3.3. Thereafter the applicant was expecting his appointment letter. However, the applicant was shocked to receive the order dated 11.10.2013 (Annexure A-1) whereby it was informed to the applicant that the District Magistrate has given adverse remark in the PVR report of the applicant. Therefore, the competent authority has cancelled the proposal of the appointment of the applicant. The report of the District Magistrate has not been supplied to the applicant nor has any document been furnished to show why the District Magistrate has given adverse remark in the PVR report of the applicant. The applicant submitted that due to the offence registered against him under Section 324/34 of the IPC District Magistrate has given adverse remark. However, while rejecting the candidature of the applicant, the respondent-department has totally failed to see that the applicant has already been exonerated from the criminal case on the basis of compromise. So, the action of the respondents for cancelling his candidature is arbitrary.
4. The respondent-department has filed their reply. In the reply the respondents had admitted the fact regarding advertisement issued by the department in various trades in Vehicle Factory Page 4 of 18 5 OA No.200/925/2013 Jabalpur (Annexure R-1). It has been admitted by the replying respondents that the applicant submitted his application for the post of Fitter Automobile (Semi-Skilled). The applicant had qualified in the written examination and trade test and was finally selected for the post of 'Fitter Automobile (Semi Skilled). However, before the appointment of selected candidates verification of character and antecedents of the candidates is required to be carried out by Civil Authorities. Therefore, the applicant was issued blank attestation forms. The applicant submitted his attestation form which was forwarded to the District Magistrate, Jabalpur vide letter dated 23.11.2012. The District Magistrate vide letter dated ...02.2013 (Annexure R-2) has intimated that as per information received from Police Station Ranjhi a criminal case No.338/08 was registered under Section 324/34 of the IPC and challan was put up before the competent court and vide order dated 18.03.2010 has been exoneration on the basis of compromise.
5. The appointing authority has decided that "as person is convicted and not honourably acquitted, therefore he is not fit for Government service". Accordingly, the applicant was informed vide letter dated 11.10.2013 (Annexure A-1).
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6. The applicant has filed rejoinder to the reply filed by the respondents. The applicant has reiterated the stand as already been taken in the Original Application.
7. We have heard the learned counsel for the parties and also perused the annexures annexed with the pleadings.
8. There is no dispute regarding the advertisement whereby the applications were called for the post of Semi Skilled. It is also admitted that the applicant appeared in the written examination and thereafter he has qualified the trade test and also finally selected in the post of Fitter Auto (Semi Skilled). It is also not in dispute that the PVR form was issued by respondent-department to the applicant and he has submitted the same along with affidavit. As per affidavit dated 22.10.2012 (Annexure A-4) wherein he has disclosed that a case had been lodged against him under Section 324/34 in the Police Station Ranjhi. The criminal case was ended with compromise between the parties on 13.03.2010 much before submitting candidature for the post of Semi Skilled worker in the Trade of Auto Fitter. This fact has already been disclosed by the applicant in the PVR form as well as in the affidavit.
9. It is clear that respondent-department also does not disputed regarding concealment of any fact or pendency of any criminal case before any Court of law. Only reason given by the replying Page 6 of 18 7 OA No.200/925/2013 respondents in their reply is that the applicant has been convicted and not honourably acquitted. So, the applicant is not fit for Government service and the candidature of the applicant was rejected. So the applicant cannot be appointed in the Semi Skilled post.
10. The applicant has relied upon the judgment of Hon'ble Supreme Court in the matter of Commissioner of Police and Others vs. Sandeep Kumar reported in (2011) 4 SCC 644. The relevant Paras are as under:
"8. 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.
9. In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's 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. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London Page 7 of 18 8 OA No.200/925/2013 and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere
- that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong- very wrong - in going to the extreme they did. But, that having been shown, I think we can, and Page 8 of 18 9 OA No.200/925/2013 should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."[ Vide : Morris Vs. Crown Office, (1970) 2 Q.B.125C-H ] In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commit indiscretions, which are often condoned."
11. The applicant has also relied upon the judgment passed by the Hon'ble High Court of Gujarat in the matters of Balubhai Amidas Khristi vs. State of Gujarat and others 1978 (2) SLR 815. The relevant para is as under:-
"18. Let me compare the situation. I even a Judge can buy a ticket of State lottery and if lucky enough on my ticket being drawn winner on sheer luck no skill being involved not only I get rupees lac or more on a pure gambling chance but that it is being given wide publicity and till recently no tax was payable on this windfall. Larger prizes are offered on lottery with more attractive advertisements. It is inciting, instigating, provoking gambling instinct lying dormant, in every man to gamble. This peon rather than staking rupee one in the state lottery where he does not commit offence stupidly albeit unfortunately staked it in Varii Matka. But it is said that profit earned by lottery activities are utilised for State developmental activities such as education, cultural advancement etc. which is not true of Varii Matka. This peon merely committed an error in choosing Varii Matka stake holder rather than buying a State lottery ticket and he has in the process been sent to jail for one month and deprived of his very livelihood. Had he waited for some time he could as well have gone to casino to be set up by Maharashtra Government, and no misfortune would have be fallen him. I am afraid, what was one a high moral principle namely not to indulge in gambling can now be styled as taboo only. I can describe the situation in a much more decorative language. I would rather stop here by saying that in the context of the present day society where the State not only Page 9 of 18 10 OA No.200/925/2013 indulges into gambling activity but by advertisement incites the citizens' gambling instinct in human beings to subscribe to this once condemned activity, it would be too much to say that this peon who was found giving stake to a Varli Matka stake holder has been guilty of such conduct as would involve moral turpitude so as to be dismissed from service. Conceding that it is not conviction that is the foundation for taking disciplinary action but the conduct which led to the conviction is the foundation, I must say that conduct herein disclosed is the same conduct which every purchaser of a State lottery ticket undertakes. While one may claim to be considered progressive forward looking individual enriching State coffers the other fellow loses his job and goes to jail. I have no grievance this man being sent to jail but that conduct cannot lead to deprivation of his livelihood. Therefore, viewed from all angles, I must reluctantly come to the conclusion that the order dismissing the petitioner from service is bad on all counts and deserves to be quashed and set aside.
12. The applicant has also relied upon the judgment passed by the Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur in Writ Petition No.8854/2012 titled as Rakesh Kumar Patel vs. Union of India and others. The relevant portion Para 4 is as under:-
"4. In the case of Commissioner of Police (supra) the candidate had failed to disclose his true antecedents in the application form for appointment regarding his prosecution in a criminal case as a result of which his candidature was cancelled. The criminal case against the candidate was admittedly compromised and he was acquitted of the charges. Aggrieved, the candidate filed a petition before the Tribunal which was dismissed. He then filed a writ petition before the Delhi High Court. The Delhi High Court allowed the writ petition and quashed the order of cancellation of selection of the candidate. In an appeal filed by the Commissioner of Police, the Supreme Court upheld the order of the Delhi High Court and rejected the submission regarding justification of the cancellation of candidature Page 10 of 18 11 OA No.200/925/2013 that the candidate should have disclosed the fact of his involvement in the criminal case even if he had been acquitted. The Supreme Court observed that the candidate had been acquitted in the criminal case and he, being a youth, cannot be expected to behave as older people. It also observed that, at young age, people often commit indiscretions and such indiscretion should be condoned instead of branding young people as criminals for the rest of their lives. The Supreme Court even condoned the act of a candidate of not mentioning in the application form about his involvement in a criminal case under Section 325/34 at the Indian Penal Code by holding that he might have done so out of fear of getting disqualified automatically."
13. The Hon'ble Apex Court in the case titled as Avtar Singh vs. Union of India and others (2016) 8 SCC 471 has settled issues regarding information given by the parties before entering the Government service. The principles have been laid down in Para 38 of the judgment which is as under:-
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize 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.Page 11 of 18 12 OA No.200/925/2013
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 recourse 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.
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.Page 12 of 18 13 OA No.200/925/2013
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."
14. In the instant case, there is no suppression of fact regarding the earlier criminal case which has been finally decided by the competent court of law. It is also clear from the affidavit filed by the applicant vide Annexure A-4 that on the basis of compromise the applicant has been acquitted. It is pertinent to mention that under Section 320 of the Criminal Procedure Code, the compromise made between the accused and the complainant and the acceptance of which done by the competent court of law amounts to acquittal in the Criminal case itself. The said issue has Page 13 of 18 14 OA No.200/925/2013 been dealt by the Principal Bench of this Tribunal in Original Application No.2540/2011 decided on 20.01.2012 has been observed as under:-
"7. The acquittal of the applicant is partly on the prosecution failed to prove its case, and partly the complainant and applicant entered into compromise. The Trial Court has acquitted him in both cases. Hence, the applicant cannot be put to a blame worthy position. A stand was taken by the respondents that the applicant was acquitted partly due to the compromise reached between the parties, and as such the acquittal is not honourable. Therefore, respondents found him unsuitable for the post of Constable. This stand was contested by the counsel for the applicant on the plea that compounding of offences granted by the Trial Court is acquittal under Section 320 of Cr.PC. We have carefully considered this issue. It is noted that the Sub Section 8 of Section 320 envisages that "a composition of an offence under this Section shall have the effect of an acquittal of the accused with whom the offence has been compounded". In this regard law is well settled. The Hon'ble Apex Court in Khursheed and Another Versus State of UP [2007-12-SCC-68] has laid the ratio as follows :
"15. Sub-section (8) of Section 320 states that the composition of offence under the section shall have an effect of acquittal of the accused with whom the offence has been compounded. The resultant effect of compounding of offences would be that the accused should be acquitted. In other words, once the offences have been compounded and the requisite permission is granted by the Court, the accused must be acquitted". In view of the above, we are of the considered view that the applicant was honourably acquitted in both criminal cases.
8. We are surprised that even though the judicial pronouncements in both criminal cases have gone in favour of the applicant as he has been acquitted, denial of appointment to him for all times to come is really a serious matter. We have very carefully examined the facts of the case in both FIRs, leading to commission of the alleged crimes, Page 14 of 18 15 OA No.200/925/2013 nature of offences and we are of the considered view that those do not appear to be so serious or grave or heinous offences for which the applicant can be branded as a criminal for all times to come and prevented employment.
15. In the present case, it is an admitted fact that the applicant has been acquitted on the basis of compromise. The reasons given by the replying respondents in Annexure A-1 is not reasoned one and has relied only on the report given by the District Magistrate which is an adverse report. It is pertinent of mention that the applicant was acquitted in the criminal case on the basis of compromise and the said acquittal is permissible in the law.
16. The submission of the replying respondents is that the appointing authority has decided that "as person is convicted and not honourably acquitted, therefore he is not fit for Government service is misconceived. In the instant case, the applicant has been acquitted under Section 320 of the Cr.P.C. on the basis of compromise and for all intends and purposes this acquittal is valid in the eye of law. Moreover, in the impugned Annexure A-1 while rejecting the candidature of the applicant, the competent authority has not given any reason as to how the criminal case in which the applicant has been acquitted has made him unfit for the appointment. Moreover, as Annexure R-2 the report of the District Magistrate has clearly spelt out that the applicant has been acquitted from the offences charged against him. Therefore, we do Page 15 of 18 16 OA No.200/925/2013 not find any reasons in the impugned order as per the guideline issued by the Hon'ble Apex Court that the employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However, same standard cannot be applied to each and every post. In the instant case, the applicant has been acquitted from the offences charged against him and moreover there is no suppression of fact regarding the criminal case for which the applicant has been acquitted as per law. So, the impugned order dated 11.10.2013 (Annexure A-1) does not show that even acquittal in criminal case will affect fitness for employment incumbent if appointed or continued in service. The relevant portion in the judgment of Avatar Singh (supra) reads as under:-
"The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling 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 case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration Page 16 of 18 17 OA No.200/925/2013 of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service."
17. In view of the above, the impugned order dated 11.10.2013 (Annexure A-1) is bad in law.
18. Resultantly, the Original Application is allowed. Impugned order dated 11.10.2013 (Annexure A-1) is quashed and set aside. The respondents are directed to issue offer of appointment to the applicant for the post of Fitter Auto (Semi Skilled), if he is otherwise eligible with all consequential benefits, within a period of 90 days from the date of receipt of certified copy of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon) Judicial Member Administrative Member kc Page 17 of 18 18 OA No.200/925/2013 Page 18 of 18