Delhi High Court
Sandeep Kumar vs Commissioner Of Police And Ors. on 31 July, 2006
Author: Manmohan Sarin
Bench: Manmohan Sarin, Aruna Suresh
JUDGMENT Manmohan Sarin, J.
1. By this writ petition, the petitioner assails the order dated 13.2.2004 by which the OA filed by him was dismissed by the Principal Bench of the Central Administrative Tribunal. Petitioner in the OA had challenged the order bearing No. 8702/Rectt.Cell/PHQ/AC-I dated 29.5.2003 passed by the Deputy Commissioner of Police, Headquarters, confirming the show cause notice issued and cancelling his candidature for the post of Head Constable (Ministerial) in Delhi Police.
2. Facts culminating in the filing of the present writ petition may be briefly noted:
(i) Sandeep Kumar applied for the post of Head Constable (Ministerial) in Delhi Police on 24.2.1999. He had duly filled the application form for the post of Temporary Head Constable (Ministerial) bearing Sl. No. 047559 on 24.2.1999. He successfully qualified all the tests. On 3.4.2001, an attestation form was filled where he mentioned that because of a dispute with the tenant, a case had been registered against him, his mother and father for the offences punishable under Section 325/34 of the Indian Penal Code. It was also mentioned that the matter had been compromised. This information had not been given in the application form submitted earlier on 24.2.1999.
(ii) A Show Cause notice dated 2.8.201 had been issued to the petitioner asking him to show cause why his candidature for the post of Head Constable (Ministerial) should not be cancelled because he had concealed the factum of his involvement in the criminal case. Petitioner submitted a reply on 17.8.2001 stating that unintentionally the incident including the compromise and acquittal were not mentioned. there was no concealment with ulterior motive. An additional reply was filed by the petitioner wherein he gave instance of other cases where similar non-disclosure had been condoned either with a warning or with some minor penalty. The respondents were not satisfied with the replies and passed the order dated 29.5.2003 cancelling his candidature. The appeal/OA filed by the petitioner was also dismissed.
3. Before we notice and discuss the grounds on which the petitioner assails the cancellation of his candidature, it would be pertinent to reproduce the relevant extracts from the application form as also the attestation form. Question No. 12 of the application form dated 24.2.1999 and reply thereto were as under:
Q. 12(a) :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?
Ans. No. Q. 12(b) :Is any case pending against you in any court of law, University or any other educational authority/Institution at the time of filling up this form?
Ans. : No. The petitioner in response to Question No. 13(a) and (b) of the Attestation Form dated 13.4.2001, gave the following answers. The questions and answers are reproduced for facility of reference.
Q. 13(a) : 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 educational authority/institution?
Ans. :Due to a dispute with our tenant a case was registered against me, my father and mother u/s 325/34 in the year 21.7.96. Subsequently, both parties compromised and same was accepted by court and the court acquitted and discharge us in 1998.
Q. 13(b) :If any case pending against you in any court of law, university or any other education authority/institution at the time of filling up this attestation form (if the answer to (a) and (b) is 'Yes', full particulars of the case arrest, detention, fine, conviction, sentence etc. in the nature of the case pending in the country, university/education authority etc., at the time of filing up this form should be given.
Ans. No.
4. The petitioner (tm)s explanation as gathered from the petition and the reply to the show cause notices regarding the unfortunate incident of 1996 is that there was an electric breakdown and when he went downstairs to correct the electric snag, there was a quarrel with the tenant of the first floor with whom, the relations were otherwise strained. In the quarrel, his mother had sustained bruises along with him. The tenant had reported the matter to the local police and got the case registered against him, his father and mother. The matter was compromised on 13.1.1998. The petitioner and his parents were discharged and acquitted.
5. The petitioner claims when the form was filled up, he unintentionally omitted to mention the above incident in which he had already been acquitted. Petitioner claims that his involvement was accidental and he was not the aggressor and there had been no other incident, which would indicate any criminal propensity on the part of the petitioner or his family. At the time of filling up the Attestation Form, when his attention got focused, the factum of the above incident was duly stated as noted above. Petitioner contends that this disclosure was voluntary and much before the issuance of the show cause notice on 2.8.2001. The respondents at the concerned time did not have any knowledge of the said incident. This demonstrated the bonafides of the petitioner. Petitioner in the additional reply also gave various incidents where in cases of non-disclosure of criminal cases, the show cause notices issued had been withdrawn. He referred to the cases of one Parveen Kumar as also one Anand Kumar, where punishment of reduction of pay in two stages was given. Case of Nirbhay Singh was referred where the Tribunal had directed reinstatement. Reference was also made to the case of one Jitu Shesh Rao, who had been reinstated in service as a temporary Constable condoning the concealment of pending criminal case.
6. Learned Counsel Mr.Shyam Babu in support of the petition submits that at the time when the petitioner filled up the application form, there was no pending case. The legal effect of compromise was that petitioner stood acquitted in the case in terms of Section 320(8) of the Cr.PC. Accordingly, there was no legal requirement of its disclosure. The misrepresentation, if any, would at best be confined to the part of the inquiry contained in para 12 of the form as to whether the petitioner had been arrested or prosecuted. Mr. Shyam Babu submitted that the effect of the acquittal is that the factum of prosecution and arrest and the stigma involved therein stands washed away with the acquittal. In any case, even if it was to be held that the petitioner was required to disclose the factum of his arrest and prosecution, even though acquitted, as the inquiry is for ascertaining the character and antecedents, petitioner himself voluntarily disclosed the same at the time of filling up of the attestation form. This demonstrates that the petitioner had no intention to willfully conceal or misrepresent the facts.
7. Mr. Shyam Babu submitted that the disclosure in the attestation form prior to his selection and when the respondents had no knowledge regarding the same was an extenuating factor. Besides, non-disclosure need not be fatal in every case especially when voluntary disclosure is subsequently made of the next available opportunity, prior to selection.
8. Learned Counsel for the petitioner in support, placed reliance on the decision of the Division Bench of this Court in Kirpal Singh v. Union of India and Ors. in C.W. No. 3084/2001 and the decision of the Supreme Court in Commissioner of Police, Delhi and Anr. v. Dhaval Singh reported at JT 1998(9) SC 429.
9. Learned Counsel for the respondents, on the other hand, submitted that there was no error or infirmity in the judgment of the Tribunal or in the decision making process of the respondents in cancelling the candidatures. Petitioner, it was urged, cannot plead discrimination. Article 14 of the Constitution of India is not available as a negative covenant. He submitted that the Tribunal has rightly held that assuming certain persons had been given benefits illegally, that does not mean that all other person even if they have committed similar dereliction should be given the said benefit. He further submitted that it is a well settled principle that each case was to be examined in its own facts and circumstances. It was for the Department to decide as to whether in the particular facts, suppression of facts would entail withdrawal of candidature or any other action. He also placed reliance on the authorities cited in the impugned order. Counsel also submitted that the petitioner could not take advantage of the decision of the Supreme Court in Commissioner of Police, Delhi and Anr. v. Dhaval Singh (supra) since petitioner chose to state the correct facts only after 21/2 years of the submission of the application form. Petitioner was educated and there was no reason to believe that he did not understand the question. Respondent's counsel argued that the disclosure was made since the petitioner would have known that during the verification by the Police, the true facts would get known.
10. We have considered the rival contentions and submissions as raised and also examined the record. There is no denying that there should be a complete and honest disclosure of all questions. In this case, there was a warning on the form that:
Furnishing of false information or suppression of any factual information in the attestation form would be disqualified and is likely to render candidate unfit for employment under the Government.
At the time when the petitioner filled up the form, the petitioner and his family members already stood acquitted in the case, which was an incident way back in the year 1996. Considering the factum of the case being over and the petitioner having been acquitted, petitioner possibly thought that it was not necessary to disclose the factum of his arrest. This of course, was an error. The respondents were entitled to know about the said case even if it had resulted in acquittal for their assessment of the petitioner(tm)s character, antecedents and personality trades. Petitioner, however, corrected the mistake by disclosing the complete particulars in the attestation form filled. The Tribunal had held the passage of 21/2 years as one of the factors so as to negate the bonafides of the petitioner.
11. In our view, the petitioner on the first opportunity, that came his way at the time of filling up of the attestation form, made the candid disclosure. It cannot be assumed against the petitioner that he himself would have thought that the respondents would, in any case, come to know about the case on verification and that is why he made the disclosure in the attestation form. There is nothing on record to warrant such an inference. While it is correct that Article 14 cannot be enforced as a negative covenant, however, the decisions taken by the respondents in the numerous cases cited by the petitioner where they have condoned the non-disclosure on account of either the bonafides or extenuating circumstances the same even though not binding, is indicative of the approach followed by the respondents.
12. We may also briefly refer to the Division Bench decision of this Court. In Kirpal Singh v. U.O.I. (supra), the Department cancelled the candidature of Kirpal Singh holding that he had failed to disclose the registration of a case under Section 325/323, which occurred on 29.12.1990 after his character and antecedents had been verified on 18.9.1990. The Court held that there was no obligation to inform the factum of his arrest and criminal prosecution since O.M. dated 25.2.1995 applied only to a Government servant. Petitioner was not a Government servant at the time of his arrest. The Court took into account that he had been implicated in a false criminal charge only to defeat his selection and appointment. The Division Bench in this case observed:
Even if it was assumed that he was required to furnish this requisite information at the time of joining, still his case would deserve reconsideration in the light of his acquittal in the criminal case, which lends support to his allegation that his uncle had involved him in a criminal charge to deprive him or oust him from job.
13. The Court also held that the punishment imposed on him was rather disproportionate and deserved to be reviewed particularly in the face of his acquittal in the criminal case. While there are distinguishing features of the present case inasmuch as there was no legal requirement for disclosure since technically, Kirpal Singh was not a Government servant on the date of appointment. Nevertheless, the principle or ratio of the decision is that extenuating circumstances such as an acquittal, which followed and the quantum of punishment being disproportionate, called for a reconsideration.
14. In Dhaval Singh case, the applicant similarly had failed to disclose the information regarding pendency of the criminal case while applying. However, he voluntarily conveyed it on 15.11.1995 regarding his inadvertent omission. The respondents had failed to take note of this information and had cancelled the candidature. The Supreme Court held that it was obligatory on the part of the appellant to have considered the application and apply its mind to the stand of the respondent that he had made an inadvertent mistake before passing the order. Dhaval Singh had given the information even before his acquittal. In the present case also, as noted and discussed earlier, we are of the view that the petitioner had furnished the information voluntarily on the first available opportunity.
15.On the basis of analysis of facts, documents and evidence on record, we find the following:
(i) The non-disclosure of the case in which petitioner had been acquitted in the application form, was an inadvertent error and not willful concealment. As a result of the compromise, the petitioner already stood acquitted and he need not have nurtured any qualms about the same;
(ii) It was a solitary incident emanating from a sudden quarrel between landlord and tenant, it did not involve any moral turpitude or serious offence. It was not indicative of any propensity to crime. The matter had been compromised and the petitioner stood acquitted;
(iii) Petitioner on the first available opportunity, made a bona fide disclosure about the incident while filling in the Attestation Form. This was prior to his selection and without receipt of any show cause notice from the respondents;
(iv) There was nothing on record to warrant the Tribunal's inference that the disclosure was made since the petitioner knew that in verification, the factum of incident would get known. The respondents admittedly did not have any knowledge of the same when the petitioner disclosed it in the Attestation Form. After filling up of the form, the next available opportunity was the Attestation Form, when the petitioner disclosed the incident. The findings of the Tribunal in this regard are clearly not sustainable;
(v) The Department and Tribunal failed to appreciate the plausible explanation for non-disclosure in the application form being an inadvertent error. The respondent and Tribunal failed to recognize that in view of the acquittal following the compromise, the petitioner would have had no reasons to withhold the said information especially since the incident did not involve any moral turpitude or grave offence and was not demonstrative of any propensity to crime;
(vi) The respondents failed to take into account the plausible explanation and extenuating circumstances of the disclosure by the petitioner prior to the selection in accordance with the approach and practice followed by them in several cases wherein explanation had been accepted and non-disclosure condoned or visited with minor penalties. The respondents have departed from their practice and approach, while dealing with the petitioner's case for no justifiable reasons;
16. Considering the aforesaid findings and applying the ratio and principles emerging from Kirpal Singh v. U.O.I. (supra) and the judgment of the Supreme Court in Co mmissioner of Police, Delhi and Anr. v. Dhaval Singh (supra), we are of the view that the impugned judgment of the Tribunal dated 13.1.2004 as also the impugned order dated 29.5.2003 are not sustainable and are hereby quashed. Petitioner being a Schedule Caste candidate, we are informed, is even entitled to age relaxation and as such, he is not excluded from consideration.
17. We direct the respondents to process the case of the petitioner for appointment within a month from today. The petitioner would not be entitled to any past benefit or seniority as his appointment would come into effect from the date to be notified by the respondents.
Petition stands allowed in above terms.