Central Administrative Tribunal - Delhi
Nitin Kumar Dabas vs Union Of India on 3 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1796/2012 New Delhi this the 03rd day of December, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Nitin Kumar Dabas, S/o Sh. Prem Singh, Age 26 yrs., R/o House No. 214, Sultanpur Dabas, P.O. Pooth Khurd, Delhi-110039. Applicant. (By Advocate Shri Naresh Kaushik and Ms.Arti Gupta) Versus 1. Union of India, Through Secretary, Ministry of Communication & IT, Sanchar Bhavan, 20 Ashoka Road, New Delhi-110001. 2. Department of Posts, Office of the General Manager (PAF), Sham Nath Marg, Delhi-110054. Respondents. (By Advocate Shri Subhash Gosain) O R D E R (ORAL)
Shri G. George Paracken:
The applicant is aggrieved by the impugned Notice No. Admn.III/Staff/Disc./2012-13/97 dated 27.04.2012 by which the respondents have informed him that in pursuance of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, his services shall stand terminated with effect from the date of expiry of period of one month from the date on which the said notice was served upon him.
2. The brief facts of the case are that the applicant is a resident of Bawana, Delhi. Pursuant to the advertisement issued by the Staff Selection Commission (`SSC for short) in the year 2010, he applied for the post of Multitasking Staff (`MTS for short) and a written examination was held in February, 2011. There were papers both in English as well as in Hindi language. On passing the aforesaid examination, he was selected as MTS by Annexure P-2 offer of appointment dated 13.12.2011. One of the terms and conditions of appointment was that the appointment was purely on a temporary basis and he was to be governed by the CCS (TS) Rules, 1965 as amended from time to time. Further, the appointment could be terminated at any time under the said Rules without assigning any reasons. After he has joined duty with the respondents, he filled up the prescribed Attestation Form for verification of his character and antecedents. In Para 12 (i) of the said form, there were questions as to whether he has ever been arrested, prosecuted, kept under detention, fined by a court of law and convicted by a court of law for any offence, etc.
3. According to the applicant, he was not proficient in English language as he had studied in Hindi medium and he sought the help of his uncle to fill up the aforesaid form. Even though there were some criminal cases registered against him, since all of them were over, his uncle, under the bonafide impression, answered those questions in the negative. However, on verification by the police authorities, it was reported that he was involved in two criminal cases. Therefore, the respondents have issued the aforesaid impugned notice for termination of his service. Further, he has stated that he was falsely implicated in two of the cases and in both of them, he has not been punished. In this regard, he has produced a copy of the charge sheet dated 04.12.2004 in FIR No. 448/2004 under Sections 323/341/309 IPC. The applicants name was shown as accused. During the proceedings before the Metropolitan Magistrate, Delhi, it was recorded that the injured Raj Singh and the accused persons were brothers and with the intervention of his sister and other family members, the matter was settled and the cases were compounded vide orders dated 06.02.2008. He has also produced a copy of the charge sheet dated 29.07.2008 in FIR No. 62/2008 under Sections 376/216/506/34 IPC. In the said case, the ASJ, Rohini, Delhi held that there was no incriminating evidence against the accused Nitin (applicant herein) and, therefore, he was discarded for the offences alleged against him. The applicant has, therefore, submitted that he was falsely implicated in those cases and when the attestation form was filled up, there were no cases pending against him. He has also submitted that there was no mala fide intention on his part for not disclosing the aforesaid facts and it was only a bonafide mistake.
4. In this regard, learned counsel for the applicant Shri Naresh Kaushik has relied upon judgment of the Apex Court in the case of State of Haryana & Ors. Vs. Dinesh Kumar (2008 (3) SCC 222) wherein it considered the aspect of wrong impression and held as under:
When the question as to what constitutes `arrest has for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately. The position would have been different, had the person concerned not been released on bail. We would, in the facts of these cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful misrepresentation and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the view taken by the High Court in Dinesh Kumars case.
5. He has also relied upon the judgment of the Apex Court in the matter of Regional Manager, Bank of Baroda Vs. The Presiding Officer, Central Govt. Industrial Tribunal & Anr. (1999 (2) SCC 247) wherein it was held as under:
9. The facts which are well established on record and which have weighed with us for coming to the aforesaid conclusion may now be noted. It is true that the respondent made a wrong statement while replying to query No. 27 of the application form that he had not been prosecuted at any time. It is equally true that the Labour Court itself found that giving a false statement should not be deemed to be such a grave misconduct which may be visited with extreme punishment of termination from service. However, it has also to be noted that the appellant-Management while issuing show cause notice for the first time on 26-2-1980 has in terms noted in the said notice that not only the criminal proceedings were pending but had ultimately ended in conviction of the respondent. The appellant itself thought it fit to await the decision of the criminal case before taking any precipitate action against the respondent for his misconduct. Thus, according to the respondent this suppression was not so grave as to immediately require the appellant to remove the respondent from service. On the contrary in its wisdom, the appellant thought it fit to await the decision of the criminal proceedings. This may be presumably so because the charge against the respondent was that he was alleged to have involved himself in an offence under Section 307 of the Indian Penal Code. It was not an offence involving cheating or misappropriation which would have a direct impact on the decision of the appointing Bank whether to employ such a person at all. We may not delve further into the liberal approach of the appellant itself when it did not think it fit to immediately take action against the respondent but wait till the decision of the criminal case. Be that as it may, once the Sessions Court convicted the respondent, the appellant issued the impugned notice dated 26-2-1980. It can therefore be safely presumed that if the Sessions Court itself had acquitted the respondent, the appellant would not have decided to terminate his services on this ground. So far as the notice dated 26-2-1980 is concerned, in the reply to the said show cause notice filed by the respondent he had mentioned that an appeal was pending in the High Court against the said conviction. It that view of the matter, once the High Court ultimately acquitted the respondent for any reason, with which strictly we are not concerned, the net result that follows is by the time the Labour Court decided the matter the respondent was already acquitted and hence there remained no real occasion for the appellant to pursue the termination order. Consequently, that was a sufficient ground for not visting the respondent with the extreme punisment of termination of service. But even that apart, though the conviction was rendered by the Sessions Court on 20-2-1979, the show cause notice for the first time was issued by the appellant after one year i.e. on 26-2-1980 and thereafter the termination order was passed on 18-4-1983. That itself by the passage of time created a situation wherein the original suppression of involvement of the respondent in the prosecution for an offence under Section 307 of the Indian Penal Code did not remain so pernicious a misconduct on his part as to visit him with the grave punishment of termination from service on these peculiar facts of the case and especially when the Labour Court also did not award any back wages to the respondent from 1983 till respondent's reinstatement by its order dated 29-9-1995 and one month thereafter and when the High Court also did not think it fit to interfere under Article 226 of the Constitution of India on the peculiar facts of this case. In our opinion, interest of justice will be served by maintaining the order passed by the Labour Court and as confirmed by the High Court subject to a slight modification that the respondent may be treated to be fresh recruit from the date when he was exonerated by the High Court i.e. from 13-1-1988 which can be treated as 1-1-1988 for the sake of convenience. It is ordered accordingly. From 1-1-1988 the respondent will be treated to have been reinstated into the services of the Bank on the basis that he will be treated as a fresh recruit from that date and will be entitled to be placed at the bottom of the revised scale of pay for Clerks and will also be entitled to other allowanes which were available in the cadre of Clerks in the Bank's service. The respondent will be entitled to back wages with effect from 1-11-1995 i.e. from the date when the Labour Court awarded the reinstatement of the respondent. It also directed that the appellant Bank will work out appropriate back wages payable to the respondent from 1-11-1995 in the time scale of Clerks as available from 1-1-1988 treating his services to be continuous from that date and accordingly working out of his salary and emoluments on notional basis with usual increments from 1-1-1998 and actual arrears of pay and other permissible emoluments from 1-11-1995 till reinstatement of the respondent by the appellant. All such arrears will be paid to the respondent within a period of four weeks from 1-3-1999. The respondent who is present before us takes notice of this order and his counsel on his instructions states that the respondent will report for duty pursuant to the present order before the Regional Manager, Bank of Baroda, Northern Zone, Meerut on 1-3-1999. Learned counsel for the appellant agrees to the said course being adopted. The appeal will stand dismissed subject to the aforesaid modifications. I.A. No. 2 for passing order under Section 17-B of the Industrial Disputes Act will not survive in view of the present order. We make it clear this order of ours is rendered on the peculiar facts and circumstances of the case as mentioned earlier and will not be treated as a precedent in future. There would be no order as to costs.
6. Again, the learned counsel has relied upon the judgment of the High Court of Delhi in Akhilesh Pratap Singh Vs. Director General, ITBP (2008 (118) FLR 344) wherein it has been held as under:
9. The only question to be considered is as to whether on the date when the petitioner filled the character verification form on 14.12.2002 it can be said that the petitioner had furnished wrong information against the columns/questions mentioned aforesaid. The petitioner has never been arrested, kept under detention or fined as on that date. No case was pending in any Court of law against the petitioner nor was the petitioner prosecuted. All that has happened was that on a false complaint being made by Shri Harkesh Bahadur Singh, the FIR was registered (which naturally had to be so registered) and a closure report was filed on the same date on 30.10.2002. The request for further investigation made by the complainant: to the SP also resulted in reaffirmation of the closure report on 14.11.2002. Thus, on the date of filing of the form nothing was pending against the petitioner. The petitioner would be unaware of the FIR registered against him and in any case the FIR is nothing else but a statement of fact on the allegations made by none other than the person who apprehended deposition against him in a murder case. On investigation the case was found to be false.
10. It is only when the closure report was filed before the Court of CJM and a protest petition was filed by the petitioner that the CJM in his wisdom decided to issue summons on 26.2.2003. The said date is after the form was filled in. The occasion for the petitioner to come to know of the pendency of any case against him only arose when he received the summons issued by the CJM on 26.2.2003 returnable on 16.6.2003.
11. In view of the aforesaid it can hardly be said that there was any case pending against the petitioner or that he made any false declaration which would give occasion to the respondents to terminate his services.
7. The respondents have filed their reply. They have stated that the attestation form contained a warning that furnishing of false information or suppression of any factual information in this form would be disqualification and likely to render candidate unfit for employment under Government. But in spite of the aforesaid warning, the applicant willfully mentioned NO under Para 12 (i) (b) by giving false information. He has concealed those facts but it was revealed only from the DCP, Special Branch, Asaf Ali Road, New Delhi vide his letter dated 17.02.2012. They have further submitted that the applicant should have disclosed about the two FIRs registered against him in the Bawana Police Station. They have, therefore, submitted that the applicant was unfit to be retained in the Government service and the impugned order was accordingly issued in accordance with the Rules.
8. We have heard the learned counsel for the applicant Shri Naresh Kaushik and the learned counsel for the respondents Shri Subhash Gosain. It is undisputed fact that the applicant was involved in two criminal cases but they were not of very serious nature. It is also a fact that he has concealed those facts and the respondents came to know about them only on the verification report submitted by the police authorities after verification of his character and antecedents. The crucial question is whether just because the applicant has concealed those facts, it could be held that he is unsuitable to be retained in service. As seen from the FIR No.448/2004, he was charged under Sections 323/341/509 IPC. The said sections read as under:
Section 323. Punishment for voluntarily causing hurt.
Whoever, except in the case provided for by section 334, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 341. Punishment for wrongful restraint.
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term, which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 509. Word, gesture or act intended to insult the modesty of a woman.
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
9. Further, as seen from the FIR No. 62/2008, he was charged under Sections 376/216/506/34 IPC. The said sections read as under:
Section 376. Punishment for rape (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Section 506. Punishment for criminal intimidation Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both.
Section 34. Acts done by several persons in furtherance of common intention.
34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
10. It is seen from the record that in the first case, the applicant being an accused was the brother of the complainant. During the pendency of the case, both the parties have decided to settle the matter and accordingly the case was compounded. In the second case, the ASJ himself stated that the applicant was not involved in the case at all. Therefore, both the cases registered against him are not at all of very serious nature. But at the same time, the fact remains that he has not disclosed those facts in spite of the fact that there was a requirement to do so in the attestation form.
11. Now the question is whether the applicant being a young person can be discarded and declared unfit for employment under the Government for all his life time. The approach in such cases is more liberal and lenient by the courts. In the case of Commr. Of Police & Ors. Vs. Sandeep Kumar (Civil Appeal No. 1430 of 2007), the respondent Sandeep Kumar applied for the post of Head Constable (Ministerial) in the year 1999. In the application form against Column No. 12 (a) which says Have you ever been arrested, prosecuted, kept under detention or bound down/fined, convicted by a court of law for any offence debarred/disqualified by any Public Service Commission from appearing at its examination/selection or debarred from any Examination, rusticated by any university or any other education authority/Institution, he gave the answer `No. As in the present case, the candidature of the respondent Sandeep Kumar was cancelled for concealment of facts. However, the Apex Court considered the fact that the incident in the said case happened when the respondent was about 20 years of age and at that age young people often commit indiscretions, and such indiscretions can often be condoned. The relevant part of the said order is as under:
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 be 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.
12. Further, in the case of Pawan Kumar Versus State of Haryana ( 1996 (4) SCC 17), the Honble Apex Court has observed as under:
Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary Courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are, therefore, necessary in raising the toleration limits with regard to petty offences especially when tried summarily.
12. In the above facts and circumstances of the case, though there was concealment of the factum of his involvement in the aforesaid two criminal cases in the attestation form, yet it alone does not constitute the reason for his termination from service. We, therefore, allow this O.A and quash and set aside the impugned notice dated 27.04.2012. Resultantly, the applicant shall be reinstated in service immediately but in any case within a period of four weeks from the date of receipt of a copy of this order. Of course, the applicant shall be careful in future career so that he shall not give any other opportunity to the respondents to accuse him of any such of concealment or untrustworthy action. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) `SRD