Central Administrative Tribunal - Delhi
Virender vs Delhi Transport Corporation, Govt. Of ... on 25 April, 2023
1 O.A. No.2182 of 2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2182 of 2015
Orders reserved on : 27.3.2023
Orders pronounced on : 25.04.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Virender (Driver)
S/o Shri Dharam Singh,
Aged 38 years,
Working under Depot Manager,
B. No.23488, Pay Token No. 65451,
Yamuna Vihar Depot, Delhi-110053
R/o H.No.291/A/19,
Annand Colony, Old DC Road,
Sonipat, (Haryana).
...Applicant
(By Advocate: Shri Kishore Kumar Patel)
VERSUS
1. Delhi Transport Corporation,
Through its Chairman, I.P. Estate, New Delhi.
2. The Depot Manager,
Yamuna Vihar Depot, Delhi-110053.
3. Shri G.K. Kaushik,
Working as Depot Manager,
Yamuna Vihar Depot,
Delhi Transport Corporation, Delhi-110053.
4. Dy. CGM (Tr)-cum Regional Manager (East),
Delhi Transport Corportion,
Office of the Regional Manager (East)
Nand Nagari Depot Complex, Delhi-110093.
...Respondents
(By Advocate: Ms. Shreya Sharma for Ms. Arti Mahajan
Shedha)
2 OA No. 2182 of 2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
The applicant by filing the present OA under Section 19 of the Administrative Tribunals Act, 1985 has challenged the order dated 12.3.2014 (Annexure A/1) passed by the disciplinary authority whereby, the services of the applicant have been terminated and also the order 27.1.2015 (Annexure A/2) vide which the appeal preferred by the applicant against the aforesaid order of the disciplinary authority has been rejected by the appellate authority. As such in the instant OA, the applicant has prayed for the following reliefs:-
"(a) Call for the records of the case.
(b) Quash and set aside the impugned letters dated 12/3/2014, 27/01/2015 issued by the Disciplinary Authority and Appellate Authority respectively terminating the services of the applicant and further grant all consequential benefits to the applicant (Annexure-A (colly).
(c) Award exemplary costs of the proceedings.
(d) Pass such further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case."
2. The facts in brief leading to filing of the present OA are that in pursuance to the advertisement for filling up 3 OA No. 2182 of 2015 the posts of Driver in the respondents' Corporation through the Delhi Subordinate Service Selection Board (hereinafter referred to as 'DSSSB'), the applicant had applied for the said post and after being provisionally selected by the DSSSB on the basis of written examination held on 12.4.2008 and skilled test, he was issued a letter dated 29.11.2008 (Annexure A/4) for medical examination by the respondents' Corporation. Thereafter, an offer of appointment vide letter dated 24.1.2009 (Annexure A/5 Colly) in which besides others terms and conditions, were included as in paras 7 and 13, which read as under:-
"7. He is required to declare the information as prescribed in Form No.17. In case of negative character verification report, his services will be terminated without any notice.
xxx xxx xxx xxx
13. In case of finding any information given by him incorrect at any state, his services are liable to be discharged from the threshold. Thus, he would not be given any service benefit for the period as the initial eligibility/requirement would not stand satisfied."
Thereafter the applicant was appointed as a Driver on 9.3.2009 vide order dated 5.3.2009 and after his appointment, he filled in character verification certificate 4 OA No. 2182 of 2015 on 2.4.2009 wherein against Clause No.12 of the same in Hindi, the applicant has stated as under:-
"(12) ा आप पर िकसी अपराध पर िकसी
ायालय म मुकदमा चलाया गया या नही
दं ड के प म रोका गया है या
जमानत ई है / जुमाना िकया है ?
ा यह अिभ मािणत प भरते
नही"
समय आप के िव िकसी ायालय
म कोई मुकदमा चल रहा है ?
2.1 Thereafter, the respondents' Corporation vide their
letter dated 21.12.2010 sent the said CVR Form to the Superintendent of Police, Sonipat for verification and character antecedents of the applicant. The concerned Police authority submitted a report dated 30.12.2010 (Annexure A6 Colly, at page 63 of the paperbook) that an FIR No.155 dated 12.5.1999 under Sections 399/402 of IPC and under Arms Act has been registered at PS Rai and pending for adjudication/trial and thereafter another letter dated 7.3.2011 was sent to the respondents' Corporation by the concerned Police authority at Sonipat stating therein that the said case registered against the applicant has been decided vide judgment and order dated 30.11.2002 by the concerned learned Court and the applicant has been honorably acquitted from the same. Further the said police authority issued another letter 5 OA No. 2182 of 2015 dated 2.5.2011 (Annexure A/7 Colly.) stating therein that the above are the correct facts and further stating that letter issued on 7.3.2011 from their office is the correct report with regard to verification of character and antecedents of the applicant. However, on the basis of aforesaid letter dated 31.12.2010, the respondents' Corporation extended the probation period of the applicant for one more year and three years of probation period had been completed by the applicant on 9.3.2012. However, after becoming regular in the said post and after about one year, the respondent no.2 issued a charge memo dated 31.1.2013 stating therein that the applicant has not stated correct information in clause 12 of CVR Form whereas an FIR NO.155 dated 12.5.1999 under Section 399, 402 of IPC and under Arms Act was registered against the applicant and trial was proceeded before the learned Additional Sessions Judge (Fast Track Court), Sonepat and as such the applicant has violated the provisions of clause 15(2) of Delhi Road Transport (Appointment & Condition of Services) Regulations, 1952 by not stating correct facts in Clause 12 of the CVR Form submitted by him to the respondent no.2. Applicant has submitted his reply to the said charge memo explaining 6 OA No. 2182 of 2015 his stand. Thereafter, the disciplinary authority ordered for holding an enquiry and in the said enquiry also, the applicant submitted the report of police officials and the judgment and order dated 30.11.2002 to the Enquiry Officer but without considering the same, the Enquiry Officer proved the charges levelled against the applicant. Thereafter the applicant was issued a show cause notice dated 27.12.2013 along with an enquiry report with proposed penalty of termination of services, which was also replied to by the applicant vide his reply dated 11.3.2014 clarifying again that there was no case pending at the time when he filled in the said CVR Form. However, respondent No.3, without considering the explanation furnished by the applicant, had terminated the services of the applicant vide order dated 12.3.2013. Being aggrieved by the said order of the disciplinary authority, the applicant had earlier filed OA No.1667/2014, titled Virender (Driver) Vs. Delhi Transport Corporation and others, before this Tribunal and this Tribunal disposed of the said OA vide order dated 15.5.2014 with the following observations:-
2. In such matters, it is expected that before approaching the Tribunal, an appeal would be 7 OA No. 2182 of 2015 resorted to by the official who has been inflicted the penalty. In such a situation, the applicant may, if so advised, prefer an appeal before the concerned authority. Learned counsel for the applicant agrees with the above course of action and further submits that this OA along with Annexures be sent to respondent no.1 for treating the OA as an appeal and to decide the same.
3. In view of above, we dispose of the OA with the directions that a copy of this order along with the copy of the OA be sent to respondent no.1, who shall treat the same as an appeal on behalf of the applicant and after considering the matter in consonance with the rules and instructions pass a reasoned and speaking order and duly communicate the same to the applicant, within a period of three months from the date of receipt of a copy of this order.|"
2.2 In pursuance of the aforesaid direction, the appellate authority of the respondents' Corporation qua the applicant had considered the appeal of the applicant and vide impugned letter dated 27.1.2015 rejected the same by upholding the aforesaid decision of the disciplinary authority. Being aggrieved, the applicant has filed the instant OA for redressal of his grievances.
3. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant and the applicant has also filed his rejoinder while reiterating his claim denied the averments made by the respondents in their counter reply.8 OA No. 2182 of 2015
4. During the course of hearing, Shri Patel, learned counsel for the applicant has submitted that at the time of filling up CVR Form, neither any case was pending against the applicant nor any conviction or fine has been imposed by any Court. Learned counsel has further submitted that on the basis of aforesaid letter dated 31.12.2010, which was wrongly issued by the concerned Police authority at Sonipat, the respondents' Corporation has imposed a penalty by extending the applicant's probation period for another one year despite the fact that the respondents' Corporation had the knowledge of acquittal of the applicant from the said case FIR in the year 2002 whereas he filled in the said CVR Form in the year 2009. Learned counsel for the applicant has further submitted that while replying to the aforesaid charge Memo, the applicant has also brought to the notice of the respondents' Corporation about the aforesaid facts. Learned counsel for the applicant also added that Enquiry Officer being biased had not considered the aforesaid further reports of the police officials as referred to above as well as the judgment dated 30.11.2002 passed by the learned concerned Court in the said FIR case acquitting the applicant. Learned counsel also submitted that the impugned letter of the disciplinary 9 OA No. 2182 of 2015 authority terminating the services of the applicant as well as the order of the appellate authority rejecting the appeal of the applicant are passed without appreciating the aforesaid facts and as such the same are contrary to law. In support of the claim of the applicant, learned counsel for the applicant has placed reliance on the recent order/judgment dated 10.3.2023 of the Hon'ble Delhi High Court in Writ Petition (Civil) No.2219/2023, titled Mahendra Solanki vs. The Commissioner of Police and another and contended that the case of the applicant is squarely covered by the said judgment of the Hon'ble Delhi High Court.
5. Per contra, Ms. Sharma appearing as proxy counsel for the respondents' counsel, by referring the averments made in the counter reply, has submitted that there is no denial of the fact that applicant was involved in the said case FIR, which fact has not been disclosed by the applicant while filling up the said CVR Form in Clause 12 thereof. However, the applicant's involvement in the said case FIR came to the knowledge of the respondents' Corporation only when the concerned Police authority upon their request gave a report in this regard and after 10 OA No. 2182 of 2015 following the due process of law and principles of natural justice, the services of the applicant were rightly terminated by the disciplinary authority and likewise the appellate authority after considering the facts and circumstances of the case rejected the same. In support of the stand of the respondents' Corporation, learned counsel has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Satish Chandra Yadav vs. Union of India and others, reported in (2022) SCC OnLine SC 532.
6. We have heard the learned counsels for the parties and have carefully gone through the records of the case as also the aforesaid judgments relied upon by the learned counsels for the parties.
7. Having regard to the above, the undisputed facts are that while filling up the said CVR Form on 2.4.2009, i.e., after his appointment as Driver under the respondents' Corporation, applicant has mentioned 'Nahi' in Hindi in respect of Clause 12 of the said Form, relevant portion of the same has already been quoted in para 2 above. However, on verification and character antecedents of the applicant from the concerned Police authority, the said 11 OA No. 2182 of 2015 concerned Police authority vide letter dated 31.12.2010 reported that a case No.155 dated 12.5.1999 under Section 399/402 of the IPC was registered against the applicant and on the basis of the aforesaid fact, the applicant's probation period was extended for one year. The said police authority has also clarified subsequently that the applicant has been acquitted by the learned concerned Court vide judgment and order dated 30.11.2002 but since the applicant gave the wrong information and concealed the fact of his involvement in the said case FIR dated 12.5.1999 under Sections 399/402 of the IPC, which was registered against him at Police Station Rai, the disciplinary authority, after holding an enquiry and after considering the reply of the applicant to the said findings arrived at by the enquiry officer, terminated the services of the applicant. The appeal preferred by the applicant was rejected by the appellate authority.
8. The similar nature of issue as involved in the instant case had been raised before the Hon'ble Delhi High Court in the case of Mahendra Solonki (supra) and the Hon'ble 12 OA No. 2182 of 2015 High Court of Delhi elaborately considered the same and observed as under:-
"16. It may also be pointed out that while referring to various cases decided by the Hon'ble Supreme Court, a reference was also made in Avtar Singh (supra) to a three Judge Bench decision of the Hon'ble Supreme Court in TS Vasudavan Nair v.
Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, which related to non disclosure of conviction in a case registered under the Defence of India Rules for having shouted slogans on one occasion. The three Judge Bench in the aforesaid case held that non disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC.
17. In the light of aforesaid legal position, there cannot be any dispute that an applicant participating in the selection process is mandated to furnish the correct information in respect of character and antecedents in the requisite application form as well as attestation/verification form. In case the information is found to be suppressed, concealed or incorrectly declared and later on comes to the knowledge of the employer, appropriate recourse may be adopted by the employer in its discretion for cancelling the candidature or terminating the services of the employee. However, the exercise of power has to be in a reasonable manner with objectivity having regards to the facts in each case. The yardstick to be applied depends not only on the nature of the post, duties/services but as well as the nature of criminal involvement i.e. whether it is of trivial nature or otherwise. Even where the employee makes a truthful declaration on a concluded criminal case, the employer still has a right to consider the antecedents and the employer cannot be compelled to employ the candidate.
18. We are of the considered view that keeping in perspective the guidelines as laid down in Avtar Singh (supra), the competent authority in the 13 OA No. 2182 of 2015 present case was also bound to consider the suitability of the petitioner having regard to the trivial nature of offence and the fact that the charges were neither grave nor involved moral turpitude, prior to terminating his services. The same is necessary to ensure that inquiry done by the Authority concerned is 'fair and reasonable' as contemplated even in Satish Chandra's case (supra). In the absence of said exercise being undertaken, the fact of suppression or concealment of involvement even in trivial cases would lead to automatic cancelling of candidature or termination of services, in violation of guidelines envisaged in para 38.4.1 as laid down in Avtar Singh's case (supra), referred to above.
19. Reverting back to the facts of the present case, admittedly, on the date of filling up of the application form, the petitioner was not involved in any criminal case. Unfortunately, he stood implicated in FIR No.103/2020 dated October 11, 2020 under Section 294/323/506/34 IPC registered at PS: Umraoganj, owing to a family dispute, in which he was acquitted on November 06, 2020 within a short period of about four weeks. The relevant details of involvement in criminal case were concealed while filling the attestation form, which has been considered to be a disqualification rendering the petitioner unfit for employment.
It needs to be kept in perspective that the petitioner was not facing any criminal case at the time of filling up of the initial application form.
The FIR was registered under Sections 294/323/506/34 IPC only prior to filling up of attestation form, in which he also stood acquitted prior to filling up of the attestation form. The incident on the face of record related to a trivial dispute within the family over raising a wall and stood settled with reference to offences under Section 323/506/34 IPC. Further, the allegations with reference to Section 294 IPC were not supported by the witnesses on presenting of charge-sheet. The false implication in such minor incidents naming all the family members cannot be ruled out considering the tendency in rural background. In the facts and circumstances, the respondents should have considered and 14 OA No. 2182 of 2015 examined whether petitioner is suitable and fit for appointment in view of involvement in said case, in which he stood acquitted even prior to filling up the attestation form. The inquiry as to the nature of involvement was required to be fairly conducted and the petitioner should not have been automatically held unsuitable for appointment merely on the ground of concealment. The competent authority appears to have failed to consider and give due weight to the trivial nature of offence and was merely swept by the factum of non-disclosure or concealment of involvement in criminal case by the petitioner.
The factual position in the present case is distinguishable from Satish Chandra Yadav (supra) since the appellant in said case had concealed the fact of involvement in criminal case under Section 147/323/324/504/506 IPC which was pending at the time of filling the verification form. Also, the second case referred in Satish Chandra Yadav, arising out of SLP (Civil) 5170 of 2021 filed by Pushpendra Kumar Yadav, was dismissed on similar grounds as a case under Section 147/149/323/325/504/506/307 IPC was pending against him as wrong information had been given in the verification form.
On the other hand, the factual position in present case is squarely covered by Pawan Kumar v. Union of India (supra).
20. For the foregoing reasons, the order passed by the Tribunal is set aside along with order passed by the respondents terminating the services of the petitioner. Respondents are accordingly directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. Considering the facts and circumstances, no order as to costs. Pending applications, if any, also stand disposed of."
9. From the aforesaid detailed observations of the Hon'ble Delhi High Court in Mahendra Solani (supra), it is apparently evident that the Hon'ble Delhi High Court 15 OA No. 2182 of 2015 had also considered the judgment of the Hon'ble Supreme Court in the case of Satish Chandra Yadav (supra) to which reliance has been placed by the respondents in support of their stand in the instant case and observed that the aforesaid broad guidelines/conclusions referred in para 69 by the Hon'ble Supreme Court in Satish Chandra's case in no manner overrule the yardsticks as laid down in Avtar Singh's case as reflected in para 38.1 to 38.11, which is a three Judge Bench judgment. Therefore, the reliance placed by the respondents on the judgment of the Hon'ble Supreme Court in Satish Chandra Yadav (supra) does not support the stand of the respondents.
10. Having regard to the aforesaid categorical observations of the Hon'ble Delhi High Court in the case of Mahendra Solanki (supra), as quoted above, and keeping in view the admitted fact, it is evident that on the date of filling up of the CVR Form, the applicant was not involved in any criminal case. Unfortunately, he stood implicated in FIR No.155 dated 12.5.1999, which was registered under Sections 399/402 of IPC and the learned Addl. Sessions Judge, Fast Track Court, Sonepat vide judgment and 16 OA No. 2182 of 2015 order dated 30.11.2002 acquitted the applicant along with other co-delinquents by observing that the prosecution has failed to prove the charges levelled against the applicant and co-delinquents. However, the relevant details of involvement in criminal case were concealed while filling the attestation form, which has been considered to be disqualification by the respondents rendering the applicant unfit for employment. Being an admitted position that the applicant was not facing any criminal case at the time of filling up of the said CVR Form and the said FIR NO.155 was registered way back in the year 1999 well prior to filling up of CVR Form, in which the applicant also stood acquitted prior to filling up of the CVR Form. The incident on the face of record related to a false implication of the applicant and his co-delinquents as is evident from the judgment and order of the learned Trial court and further the allegations levelled Sections 397 and 402 of IPC and Section 25 of the Arms Act against the applicant were not supported by the witnesses on presenting of the charge-sheet. In the facts and circumstances, the respondents should have considered and examined whether the applicant is suitable and fit for appointment in view of involvement in the said case, in 17 OA No. 2182 of 2015 which he stood acquitted even well prior to filling up the CVR Form and further the inquiry as to the nature of involvement was required to be fairly conducted and the applicant should not have been automatically held unsuitable for appointment merely on the ground of concealment. However, the competent authority amongst the respondents appears to have failed to consider the aforesaid facts in true letter and spirit and was merely swept by the factum of non-disclosure or concealment of involvement in the said criminal case by the applicant. We also find that the factual position in the present case is distinguishable from that Satish Chandra Yadav (supra) since the appellant in the said case had concealed the fact of involvement in criminal case under Section 147/323/324/504/506 IPC which was pending at the time of filling the verification form.
11. In view of the aforesaid facts and circumstances of the present case, the present case is squarely covered by the Order/Judgment of the Hon'ble Delhi High Court in the case of Mahendra Solanki (supra). Therefore, the present OA is allowed. The impugned orders dated 12.3.2014 and 27.1.2015 are set aside. The applicant 18 OA No. 2182 of 2015 shall be entitled for all notional benefits including pay, seniority and other consequential benefits etc. The aforesaid exercise shall be completed by the respondents within eight weeks of the receipt of a certified copy of this Order.
12. However, in the facts and circumstances of the present case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/