Central Administrative Tribunal - Jodhpur
Hyder Khan vs M/O Railways on 12 February, 2025
1- O.A. No. 130/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 130/2016
Date of Pronouncement : 12.02.2025
Date of Reserve : 27.01.2025
CORAM :
Hon'ble Mr. Justice Rameshwar Vyas, Member (Judicial)
Hon'ble Ms. Shalini Misra, Member (Administrative)
....
Hyder Khan S/o Sh. Kasam Khan, aged 57 years, r/o near Christian
Kabristan, Chandmari Abu Road, District Sirohi, T.S. Khalasi (Diesel) in
the Office of the Diesel Foreman, North Western Railway, Abu Road,
District Sirohi.
...Applicant
[By Advocate: Mr. J.C.Singhvi]
Versus
1. Union of India through the General Manager, North Western
Railway, Jaipur.
2. Divisional Railway Manager, North Western Railway, Ajmer.
3. Senior Divisional Mechanical Engineer (Diesel), North Western
Railway, Abu Road, District Sirohi.
4. Divisional Personnel Officer, North Western Railways, Ajmer.
5. Diesel Foreman, North Western Railways, Abu Road, District
Sirohi.
..Respondents
[By Advocate: Mr. B.L.Tiwari, Sr. CGSC]
O R D E R
Per Justice Rameshwar Vyas :
Being aggrieved by the order dated 19.01.2016 (Annex.A/1), whereby the applicant was removed from the post of Avji Temporary Status Khalasi on the ground that while filling up the attestation form at the time of his regularization in service, he concealed his conviction under Section 447 Indian Penal Code.2- O.A. No. 130/2016
2. Facts of the case in brief are as under :-
The applicant along with two hundred candidates were appointed on the post of Artisan Khalasi and the applicant was posted in the Diesel
-Shed, Abu Road on 20.02.1979. The matter for their regularization of services was taken up by the respondents. During the process of regularization on 04.04.2002, a charge memo was issued against the applicant and eventually, he was dismissed from service vide order dated 19.07.2004 against which he filed O.A. No. 315/2004 and, the same was allowed by this Tribunal on 07.03.2008. (Annex.A/2). The operative portion of the order reads as under :-
"In the result, all the four OAs noted above, are allowed. The impugned order dated 19th July, 2004, passed by the Disciplinary Authority vide Annex. A/1 to the above O.As and consequential orders, if any, are set aside. It is made clear that it is open to the respondents to proceed against the applicants to hold disciplinary proceedings in accordance with relevant Rules/Act, Regulations."
In compliance of the above direction, the applicant was reinstated in service on 10.11.2008. Thereafter, this Tribunal in another OA No. 236/2009 vide its order dated 18.03.2013, directed the respondents to grant him the due salary from the date of dismissal till reinstatement and also to pay him the Bonus as accrued to him during the said period pursuant to which the fixation of pay as per the VI Pay Commission was also made vide order dated 12.09.2013.
3. Thereafter in terms of the liberty granted to respondents in the above mentioned OA, the applicant was issued another charge memo to the effect that the education certificate produced by him at the time of his appointment, was not issued by the concerned school and he got service on a false certificate. However, the applicant was exonerated vide order dated 20.03.2013 (Annex.A/4) issued by the respondent No. 3 who observed that at the time of applicant's appointment in Railway service, no educational qualification was required for that post. It is also relevant 3- O.A. No. 130/2016 to mention that while exonerating the applicant, the respondent No. 3 did not touch the issues of submitting false certificate.
The applicant by way of filing O.A. No. 363/2013 challenged that part of the order which granted liberty to the respondents to take further action against him and the same was allowed vide order dated 02.02.2015 (Annex.A/5) by quashing and setting aside that part of the order.
Apart from above, the applicant also filed OA No. 366/2013 seeking a direction against the respondents for his regularization which was disposed of vide order dated 09.02.2015 (Annex.A/6) directing the respondents to consider the case of the applicant for regularization and if found eligible, regularize him as per the provisions of rules with consequential benefits. Thereafter, the matter of regularization of the applicant was taken up. Vide communication dated 05.06.2015 (Annex.R/1) offer was made to him for regular appointment which was subject to verification of his character antecedents along with other conditions as mentioned in the said letter enclosing a copy of the attestation form and character certificate. As per the warning given in the attestation form (G204 F/R10), in case of false information or suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.
4. In response to the above offer of appointment, the applicant filed an attestation form to the effect that no criminal case was ever pending against him nor he has been convicted by any criminal court. The information furnished by the applicant was sent for police verification. As per the report of the police an FIR No. 202/2003, under Section 447 IPC and SC/ST Court Act, was registered against him wherein after trial he was convicted and sentenced under Section 447 IPC on 30.10.2004.
4- O.A. No. 130/2016Thereafter, vide order dated 04.12.2015 (Annex.A/7), the service of the applicant was not regularized for the reason that he suppressed the fact of institution of a criminal case against him and his conviction under Section 447 IPC. Thereupon, the applicant was served upon with a notice dated 04.12.2015 (Annex.A/15) and was asked to file his representation within a period of fifteen days against proposed termination. In response to the above notice, the applicant vide letter dated 22.12.2015 sought copy of some orders/circulars which was replied to vide letter dated 28.12.2015 (Annex.A/11) enclosing thereto copy of letter dated 20.02.2013 (Annex.A/12), 25.03.2014 (Annex.A/13) and letter dated 26.02.2015 (Annex.A/14). Thereafter, the applicant filed his representation dated 04.01.2016 (Annex.A/15). Not agreeing with representation submitted by the applicant, respondents vide impugned order dated 19.01.2016 (Annex.A/1), terminated the services of the applicant who has assailed his termination mainly on the grounds that the terms of the order dated 20.02.2013 (Annex.A/12) copy of which has been supplied to him by the respondents, applies to fresh appointments whereas, the applicant's case is not for a fresh appointment but was for regularization. It has been pleaded that without initiating the disciplinary proceedings, the question of termination is untenable. Furthermore, the order of sentence passed by the Special Judge, SC/ST Cases, Sirohi, has been suspended by Hon'ble the High Court of Rajasthan vide its order dated 10.11.2004 passed in S.B. Criminal Appeal No. 1090/2004. It is also one of the grounds of challenge that when the operation of sentence was suspended, the conviction cannot be operated till currency of suspension order. It is averred that the respondents did not consider the grounds raised by the applicant in his representation and passed an order terminating him from service. The applicant has been serving the Railways for the last thirty six years. It has been contended that no Railway employee can be penalized for misconduct without initiation of 5- O.A. No. 130/2016 disciplinary proceeding against him. The impugned order is in violation of the Railway Servants (Discipline & Appeal) Rules, 1968. Since the order of sentence was passed when the applicant had already been dismissed pursuant to an inquiry initiated against him, there was no occasion for him to inform the authorities about his conviction. The impugned order is not a speaking one. Assailing the validity of the impugned order, he has prayed to allow the O.A.
5. In the reply to the OA, it is averred that the chargesheet SF-5 was issued to the applicant for giving false educational certificate while seeking appointment in the respondent Department and consequently, he was removed from service by imposition of a NIP dated 19.07.2004. As per directions given by this Tribunal in OA No. 366/2013 vide order dated 02.02.2015, the applicant was required to be considered for regularization as per the instructions issued by the Railway Board. In compliance of the same, he was sent an offer for regularization on 05.06.2015 (Annex.R/1). Perusal of the above office order indicates that the offer of regularization was subject to verification of his character antecedents and other conditions as mentioned in the offer. The applicant for the reasons best known to him, did not produce the copy of appointment offer as such, he was guilty of suppressing the material facts from this Tribunal and on this count alone, he is not entitled to get any relief. The applicant for the purposes of disclosing his character antecedents submitted an affidavit before the competent authority along with an attestation form wherein, he, on oath has specifically disclosed that he was never arrested or convicted in an offence by any criminal court. In course of verification process it was informed by the office of District Magistrate, Sirohi, that a criminal case bearing No. 202/2003 under section 447 IPC & SC/ST Act Cases, was registered against him and a challan was filed in the Court wherein after trial vide judgment 6- O.A. No. 130/2016 dated 30.10.2004, a rigorous imprisonment of six months with a fine of five hundred rupees was imposed upon him. Therefore, it goes without saying that the applicant deliberately suppressed the facts of his conviction while submitting an affidavit for considering his regularization. Therefore, the competent authority had rightly issued the order dated 04.12.2015 whereby his case for regularization was rejected. Mere suspension of the sentence does not wash out the conviction. During the suspension of sentence the convicted person is not to be behind the bars. Contradicting the claim of the applicant, respondents have prayed to dismiss the O.A.
6. The applicant filed a rejoinder reiterating his stand as taken in the O.A.
7. Heard learned counsel for the parties and perused the material available on record.
8. Learned counsel for the applicant contended that the letters dated 25.03.2014 and 26.02.2015 (Annexs.A/13 and 14) relying upon which the respondents came to the conclusion that the applicant suppressed his conviction, are not applicable in the present matter since he was already in the employment of the Department since 1979. The above circulars relate to fresh appointments and not to the cases where regularization is undertaken. The respondents committed grave error in removing the applicant from service without following the service rules. If the respondents were of the view that the applicant has made any false information then he could be denied regularization but could not be awarded a penalty of removal. He further submits that when the criminal case was registered and decided against him he was not in service. He was dismissed from service on 19.07.2004 and in compliance of the order passed by this Bench in OA No. 315/2004 he was reinstated on 7- O.A. No. 130/2016 10.11.2008. Learned counsel for the applicant further submitted that the sentence awarded to him under Section 447 IPC was already suspended by Hon'ble the High Court of Rajasthan and the appeal is still pending for consideration before it. Applicant's services could not be terminated without considering the pros and cons of his remaining in service. The applicant was already in the employment of the respondents from 1979. In view of this, he has prayed to allow this O.A. In support of his arguments learned counsel for the applicant has placed reliance on the following judgments:-
2001 (3) WLC (Raj) 411- Kanyaiya Vs. The State of Rajasthan In this case while realizing the effect of not suspending the conviction pending, the court directed that the conviction of the applicant Kanyaiya shall remain suspended till disposal of the criminal appeal.
2012 (2) DNJ (Raj) 621 - Ram Kishan Singad Vs. RSRTC & Ors.
In the said case, Hon'ble High Court of Rajasthan held that pendency of a criminal case does not debar a candidate from seeking appointment.
2012 (3) WLC (Raj) 455 - Suryabhan Singh Solanki Vs. State of Rajasthan & Ors.
In the said case, the petitioner was denied appointment on the ground of his conviction in a criminal case prior to the process of selection. Hon'ble High Court of Rajasthan after taking into consideration the facts that the petitioner was acquitted from offence under Section 323 IPC yet held guilty under Section 147 IPC for which he was given him benefit of probation under Section 4 of the Probation of the Offenders Act and directed the respondents to consider his case for appointment.8- O.A. No. 130/2016
2012 (3) WLC (Raj) 459 - Majid Khan Vs. The State of Rajasthan.
In this case, a candidate applying for the post of Head Constable intentionally did not disclose his involvement in the criminal case but later on at the time of filling of attestation form disclosed this fact. Looking at the age of the applicant Hon'ble Court took a lenient view and allowed the appeal.
[2002] (2) ESC 832 (All)- Sada Nand Misra Vs. State of UP and Anr.
In this case, the Hon'ble Court held that it is not open for the concerned authority to consider conviction / punishment till the stay order exists.
JT 2009 (15) SC 433 - Kamal Nayan Mishra Vs. State of Madhya Pradesh and Ors.
In this case the belated termination of an employee from service was held unjustified and violative of Article 311 of the Constitution.
[2011] (131) FLR 17 - Ram Kumar Vs. State of UP & Ors.
In that case the appointing authority without considering the suitability of the petitioner for appointment to the post of Constable mechanically held that on account of furnishing an affidavit stating the incorrect facts at the time of recruitment, terminated his candidature. Hon'ble Supreme Court in the matter quashed the termination order and directed to take the delinquent in service.
9. On the contrary, learned counsel for the respondents submitted that the applicant deliberately narrated wrong facts to the effect that he was neither convicted by any criminal court nor arrested whereas in terms of the offer of appointment dated 05.06.2015 (Annex.R/1), the applicant was required to mention his conviction. It is further submitted that 9- O.A. No. 130/2016 suspension of the sentence does not mean that conviction has also been suspended. The judgments relied upon by the learned counsel for the applicant are not applicable in the facts and circumstances of the present case.
It is further submitted that before terminating his services, the applicant was provided an opportunity to make a representation. The respondents' authority after taking into consideration the defence taken by the applicant and also in the facts and circumstances of the case, decided not to regularize the services of the applicant and decided to terminate him from service.
10. Having regard to the submissions made by learned counsel for the parties and material available on record, it emerges that applicant was appointed on the post of Artisan Khalasi in the Diesel Shed of Abu Road on 20.02.1979 along with other candidates. When the cases of their regularization was taken up it was noticed that the applicant had placed on record false educational certificate which could not be verified, therefore, instead of regularizing him he was given a charge sheet and after inquiry, he was dismissed from service vide order dated 19.07.2004. Thereafter, he was ordered to be reinstated after long litigation. The sole reason for his reinstatement was for the post, applicant was holding, no educational qualification was required. It is pertinent to note that there was no finding with regard to submitting a false school certificate by the applicant at the time of his appointment.
11. When the applicant cleared all hurdles with regard to considering his name for regularization, the respondents on 05.06.2015, sent a letter (Annex.R/1) to the applicant wherein the applicant was informed that prior to his appointment his character antecedents would be certified by the District Magistrate and in case of any adverse comment is noticed, his services shall be terminated without prior notice. Knowing this fact the 10- O.A. No. 130/2016 applicant submitted attestation form along with affidavit Annex.R/2 wherein, the applicant had mentioned as under :-
"(1)He was never arrested. (2)He was never prosecuted. (3)He was never remained in custody. (4)He was never imposed any fine. (5)He was not held guilty by any Court. xxxx".
When the information was submitted by the applicant, the same was sent for police verification in response to which it was reported by the District Magistrate, Sirohi that a FIR 202/2003 under 447 IPC and SC/ST Court was registered against him wherein on 30.10.2004, the applicant was sentenced to six months imprisonment with a fine of five hundred rupees.
12. The above conviction and sentence is not in dispute. It is also not in dispute that the sentence has been suspended but conviction still exists. Against the order of conviction and sentence passed by the Special Judge SC/ST cases, Sirohi, an appeal was filed by the applicant before the Hon'ble High Court of Rajasthan wherein, the Hon'ble High Court vide order dated 10.11.2004 (Annex.A/16) suspended only the sentence of imprisonment and there is no mention of suspending the conviction of the applicant.
13. There is no dispute with regard to legal position that suspension of the conviction and sentence are two different things. Suspending the sentence entitles the convict not to remain behind the bar but does not immune him from the stigma of conviction. So, in appropriate cases where conviction deprives him from some valuable right then he has to pray for suspending the conviction apart from prayer to suspend his sentence.
It is immaterial that conviction of the applicant was made during the period of his dismissal from 19.07.2004 to 10.11.2008 as it was prior to his regularization. At the time of filing information for his 11- O.A. No. 130/2016 regularization he was required to follow the terms and conditions of the appointment dated 05.06.2015 (Annex.R/1). It is an admitted position that pursuant to the above mentioned offer of appointment (Regularisation), the applicant submitted false fact with regard to registration of criminal case against him and his conviction by a Special Court, SC/ST, Sirohi. This fact emerged only after police verification whereas the applicant was expected to disclose this fact at the time of furnishing information in response to his offer of appointment (Regularisation). The applicant cannot say that since his appointment (Regularisation) was not a fresh appointment, he was not required to go through the process of filing attestation form. No candidate / employee can say that after serving for some time, he is not under an obligation to furnish correct information as required by the Department. Therefore, it is incorrect on the part of the applicant to say that the circulars dated 25.3.2014 and 26.02.2015 (Annexs. A/13 and 14) are not applicable in the facts of the present case. In the present matter the trouble started on account of furnishing an alleged false school certificate to the applicant at the time of his initial appointment. It is also important to note that in the present O.A., the applicant did not file a copy of a letter dated 05.06.2015 (Annex.R/1), wherein he was asked to give correct information in the attestation form. The applicant has also deliberately not filed the copy of the attestation form wherein warning has been written that if any false information is furnished or there has been any suppression of any material/factual information in the attestation form, services of a person would be liable to be terminated.
Thus, the applicant has not come before this Tribunal with clean hands. He was required to state correct facts at the time of filling the attestation form supported by an affidavit. The respondents committed no error in terminating the services. Before terminating his services, he 12- O.A. No. 130/2016 was given a prior notice to which the applicant filed his representation. The applicant has not submitted justified reasons against the notice, therefore, the respondent authorities committed no error in rejecting the representation and terminated his services. It is important to note that before terminating his services, the applicant had already been denied regularization.
14. In normal circumstances, a person who deliberately furnishes false material facts before his employer, is certainly not entitled to get any relief for his appointment (Regularisation). In the present case, this Tribunal finds no reason to take a lenient view directing the respondents to forgive the act of the applicant in supplying false information. The applicant willfully and knowingly and with a dishonest object, concealed the fact of his conviction. The respondents followed the principles of natural justice by giving him a prior notice of fifteen days. As earlier stated, the applicant has not come with the clean hands in this O.A. In view of this, this tribunal finds no merit in this OA. The O.A. is dismissed with no order as to costs.
(Shalini Misra) (Rameshwar Vyas)
Member(A) Member (J)
jrm.
13- O.A. No. 130/2016