Central Administrative Tribunal - Allahabad
Vinod Kumar vs Union Of India on 21 October, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 21 DAY OF 10, 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. Manjulika Gautam, Member (A) Original Application No.700 of 2008 (U/S 19, Administrative Tribunal Act, 1985) Vinod Kumar, aged about 46 years, Son of late Sukh Lal, Resident of Madhowadi, Nai Basti, in front of Jahajwali Kothi, Bareilly. Applicant Present for Applicant : Shri Saurabh, Advocate Versus 1. Union of India, through General Manager, North Eastern Railway, Gorakhpur. 2. The Divisional Railway Manager, North Eastern Railway, Izzatnagar. 3. Mukhya Samadi Nirikashak North Eastern Railway, Izzatnagar. 4. Additional Divisional Railway Manager, North Eastern Railway, Izzatnagar. Respondents Present for Respondents : Shri P.N.Rai, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The applicant, at the material point of time, was serving as a Safaiwala under the control of the respondent no.5. He was issued with a charge sheet (Annexure A-1) which reads as under:-
pwWfd Jh fouksn dqekj iq= Jh lq[kyky] dSfjt lQkbZokyk@dklxat vk/khu lekfM v/kh{kd@ dklxat ds :i esa dk;Z djrs le; ijojh@1991 ds nkSjku dnkpkj@vopkj fd;k] og ;g gS fd Jh fouksn dqekj us lk{;dky i= tks muds }kjk 4&2&91 dks Hkjk x;k Fkk] mlesa xyr ykHk ikus ds fy;s xyr ?kksk.kk QkeZ ds dkye la0 12 ij nh fd muds fo:) dksbZ Hkh eqdnek vFkok fxjQ~rkfj;kW ugha gbZ gS tc fd pfj= lR;kiu ikeZ dks tc ftyk eftLVz~zsV cjsyh dks Hsktk x;k Fkk rks vij ftyk eftLVz`sV@cjsyh us lwfpr fd;k fd deZpkjh ds fo:) LFkkuh; Fkkuk <izse uxj Fkkuk= esa gktk dk lh vkj ua0 1@ch@,l 13 th ,DV esa lh ,l ua0 1 fnukad 3&1&87 dks pkyku gqvk gS] U;k;ky; esa fopkjk/khu gS A deZpkjh dk mijksDr dk;Z mlesa lR;fuB jgus dh deh ,d ,slk dk;Z gS tks fof/k O;oLFkk ds foijhr ,oa vkksHkuh; dk;Z gS vkSj ftldk rkRi;Z jsy lsod vkpj.k fu;e 1966 ds fu;e 3 < I = < I = ,oa <III= dk mYya?ku gS tks dnkpkj gS A
2. The applicant denied the charges, whereafter an enquiry was conducted. Vide Annexure A-2, the enquiry report was submitted on 31.05.1992, as per which the Enquiry Officer held that the charge was proved. By Annexure A-3 order dated 08.03.1994 the Disciplinary Authority dismissed the applicant stating that the applicant has admitted enquiry report and awarded the penalty of dismissal from service. The applicant has filed a Revision Petition vide Annexure A-4 dated 06.10.1994. The respondents had advised the applicant to defend the case in person, vide Annexure A-8 and the applicant, being an illiterate requested for the Assistance of another railway employee vide Annexure A-9 representation dated 25.04.1995. This was allowed, however, there is no reversal of the penalty order. Vide Annexure A-13 order dated 26.08.2004 the revision petition was dismissed. It is against the penalty order (Annexure A-3) and Revision Order Annexure A-13 that the applicant has filed this O.A..
3. Respondents have contested the O.A.. According to them, at the time of regularization, the applicant conceals material fact which was highlighted in the notice of the railway administration by Police Department. It is stated that the Additional District Magistrate, Bareilly vide his letter dated 04.10.1991 stated that Challan for the act of throwing garbage at a wrong place was issued to the applicant for which he was fined Rs.75/- and this material fact has also been accepted at the time of enquiry held in his DAR case.
4. Counsel for the applicant argued that this is unfortunate case. Admittedly, the applicant is an illiterate person and at the time of his regularization he had filled up the attestation form in which in respect of Clause XII he had replied in negative as he was not remembering the fact of his having been Challaned in 1987, an act which was four years old by that time. He had narrated that as a matter of fact the Challan was in respect of his father, whereas his name was included. The fact of the Challan episode could be remembered by him at the time when he was issued with the show cause notice. He was not to hide anything from the Department and it was this genuine and honest feeling that prompted him to admit before the Enquiry Officer as to his having paid the fine.
5. Counsel for the respondents submitted that the question is one of judging the character and antecedents of the individuals to continue in service or not. As the applicant had suppressed the material information, he was visited with the penalty of dismissal from service.
6. Arguments were heard and documents perused. The purpose of filling of attestation form, especially with reference to clause 12 thereof has been given vividly in the following decisions of Apex Court:-
(a). Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav,(2003) 3 SCC 437
(b). B.R. Chowdhury v. Indian Oil Corpn. Ltd.,(2004) 2 SCC 177,
(c). Secy., Deptt. of Home Secy., A.P. v. B. Chinnam Naidu,(2005) 2 SCC 746,
(d). Union of India v. Bipad Bhanjan Gayen,(2008) 11 SCC 314,
(e). Kamal Nayan Mishra v. State of M.P.,(2010) 2 SCC 169
7. In Ram Ratan Yadav case (supra), the Apex Court has held as under:-
The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.
8. Referring to the above case, the Apex Court in the case of Secy., Deptt. of Home Secy., A.P. v. B. Chinnam Naidu,(2005) 2 SCC 746 has opined as under:-
9. A bare perusal of the extracted portions shows that the candidate is required to indicate as to whether he has ever been convicted by a court of law or detained under any State/Central preventive detention laws for any offences whether such conviction is sustained or set aside by the appellate court, if appealed against. The candidate is not required to indicate as to whether he had been arrested in any case or as to whether any case was pending. Conviction by a court or detention under any State/Central preventive detention laws is different from arrest in any case or pendency of a case. By answering that the respondent had not been convicted or detained under preventive detention laws it cannot be said that he had suppressed any material fact or had furnished any false information or suppressed any information in the attestation form to incur disqualification. The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an attestation form. We find no reason to accept such contention. There was no specific requirement to mention as to whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.
9. What constitutes an undesirable aspect warranting termination of the employment is given in the case of Union of India v. Bipad Bhanjan Gayen,(2008) 11 SCC 314, wherein the Apex Court has held as under:-:
It was a deliberate attempt on the part of the respondent to withhold relevant information and it is this omission which has led to the termination of his service during the probation period.
10. In a recent case of Kamal Nayan Mishra v. State of M.P.,(2010) 2 SCC 169 again the Apex Court has referred to the ratio in Ram Ratan Yadav (supra) and held as under:-
14. Therefore, the ratio decidendi of Ram Ratan Yadav is, where an employee (probationer) is required to give his personal data in an attestation form in connection with his appointment (either at the time of or thereafter), if it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry.
11. In all the above decisions, the bottomline is that when an individual fills up the attestation form, he is expected to bring the actual truth without deliberately suppressing any material. In case, with a view to getting the employment, an individual suppresses material information, he would be an undesirable person to be retained in the employment.
12. It is with the above ratio that this case has to be analyzed to ascertain whether the respondents act of termination of the service for not properly filling up clause 12 of the attestation form is legal and justified.
13. Neither the applicant nor the respondents had furnished copy of the attested form. However, in all expectation, the said clause would be uniform and identical. As such it is appropriate to refer to the said clause as given in the judgment of the Apex Court in Ram Ratan Yadav (supra). The same reads as under:-
12. Have you ever been prosecuted/kept under detention or bound down/fined, convicted by a court of law of any offence? No.
14. The above clause is specific about the nature of offence which is grave in nature. A prosecution, or detention, conviction or arrest is related to serious social crimes and a person with such a criminal background is undesirable to be retained in Government service. In the case of the applicant, true, he had not reflected the aspect of his having been fined in reply to clause 12 of the attestation form. His fine was not for any grave offence but, admittedly, for throwing garbage at a wrong place. This incident is stated to have taken place sometime in 1987 and the attestation form was filled up in February 1991, after almost four years. And, the offence was not that grave as to be retained in memory for such a long time. It was under these circumstances that the applicant appears to have not indicated the aspect of his having been fine in 1987, in his attestation form filled up in 1991. Though, the Magistrate had indicated that the case was pending, according to the applicant he had no idea about the same. Thus the wrong information given by the applicant cannot be said to be a deliberate act but more due to a natural forgetfulness. The applicant, after all is an illiterate unlike in other cases when the literates deliberately furnish wrong information with a view to obtaining a Government job.
15. It is appropriate at this juncture to state that the fine lavied upon the applicant is not for any serious crime but for having thrown garbage in wrong place. The Apex Court in the case of Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera, (1995) 3 SCC 377 has held as under:-
As held by this Court in Shankar Dass v. Union of India:-
Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service on the ground of conduct which has led to his conviction on a criminal charge. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly.
10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge.
16. From the above it is clear that the applicant has not committed that kind of crime which would have justified termination of his service. Nor he could be suspected to have deliberately suppressed the material fact while filling up the attestation form. His plain and candid admission before the enquiry authority the fact of his having been fined for a pity offence some four years ago certainly confirms that he is fruitful. Thus the penalty of dismissal from service awarded to the applicant is shockingly and grossly disproportionate to the so called misconduct. In past the act cannot come under the term misconduct.
17. In view of the above, the O.A. is allowed. The impugned order vide Annexure A-3 and A-13 are quashed and set aside. The applicant is entitled to be reinstated in service. However, he is not entitled to any back wages for the period he had not functioned, since the long gap of time is partly attributable to delay caused by the applicant in approaching Revisional Authority and thereafter.
18. This period of absence shall not constitute break in service of the applicant. Nor shall the applicant be entitled to any benefits for this period. His pay shall be as he was drawing earlier with the next increment falling due after completion of 12 months period from the date of his earlier increment if any granted to him. However, he would be entitled to the revision of corresponding of pay scale as per the present pay rules.
19. The respondents are directed to pass suitable orders on the above lines within a period of three months from the date of communication of this order. No cost.
( Mrs. Manjulika Gautam) (Dr. K.B.S. Rajan)
Member-A Member-J
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