Central Administrative Tribunal - Delhi
Shri Arun Kumar vs Manager (Personal) on 5 April, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3541/2011 Order Reserved on:08.02.2013 Order pronounced on 05.04.2013 Honble Mrs. Manjulika Gautam, Member (A) Honble Shri V. Ajay Kumar, Member (J) Shri Arun Kumar s/o Shri Suraj Mal r/o 401, Village Pehladpur Banger Delhi 110 042. Applicant (By Advocate: Shri S. M. Hooda) Versus Manager (Personal) Delhi Transport Corporation Govt. of N.C.T. of Delhi I.P.Estate New Delhi. General Manager Delhi Transport Corporation I.P.Estate New Delhi. Respondents (By Advocate: Sh. Ajesh Luthra) O R D E R By V. Ajay Kumar, Member (J):
The admitted facts, briefly, are that the applicant was provisionally considered by the Delhi Subordinate Services Selection Board (DSSSB) for selection to the post of Driver and his name was referred to Delhi Transport Corporation (DTC) along with other selected candidates, for appointment to the post of Driver, vide letter dated 22.10.2008. He completed the pre-recruitment formalities like medical examination, acceptance of the offer of appointment and training including submission of details of pending court cases, if any, in prescribed Form No.17. He was given offer of appointment on 20.04.2009 and upon acceptance of the same he was directed to undergo training with DTC Training School, NND Complex.
2. The respondents while verifying the documents submitted by the applicant found that a criminal case is pending against him. In Form No.17 which was submitted by the applicant himself, in respect of the said criminal case, he had only mentioned that one case is pending against him vide FIR No.336/2006 in Thana Shahbad Dairy, Delhi 110042, but no details about the Sections of IPC or Cr.PC were mentioned. Consequently, he was not allowed to join duties although others have been allowed to join the duties.
3. Aggrieved by the said action, the applicant preferred OA No.1969/2010 and this Tribunal by its order dated 06.07.2010 disposed of the said OA by directing the respondents to consider the representation of the applicant and to take a decision by passing a speaking order. In pursuance of the said order, the respondents issued show cause notice dated 15.04.2011 stating that he has not given the full details about the Sections of the IPC or Cr.PC in his Form No.17 and they came to know that the applicant was involved in FIR No.336/226 under Section 147/148/149/341/353/186 and 332 IPC, PS Bawana. It was further stated that the said criminal case vide FIR No.336/2006 is pending in PS Bawana whereas the applicant falsely stated in Form No.17 that the same is pending in Thana Shahbad Dairy, Delhi and called for his explanation why his candidature to the post of Driver in Delhi Transport Corporation should not be cancelled.
4. The applicant vide his reply dated 21.04.2011 submitted that he has neither concealed any fact nor stated anything false in respect of PS Bawana. He submits that in the year 2000, his residential area was under the jurisdiction of PS Bawana, whereas at the time of applying or joining as Driver, the said PS Bawana was bifurcated into two areas and his residential area has fallen under the jurisdiction of PS Shahbad Dairy and, therefore, he mentioned in the Form No.17 that the FIR No.336/2006 is pending in Thana Shahbad Dairy. He further submits that a co-accused by name Shri Ravinder Kumar in the same crime was appointed as a Teacher in the MCD School and he further submits that one Shri Sunil Kumar, who is involved in a more serious criminal offences under Sections 308/323/34 IPC vide FIR No.902/2005, PS S.P.Badli, was appointed as Driver initially and later as Conductor by the DTC itself and, hence, denying appointment to him is discriminatory and arbitrary.
5. The respondents after considering the representation of the applicant passed the present impugned order canceling the provisional selection of the applicant.
6. Shri S.M.Hooda, the learned counsel for the applicant, submits that prima-facie, the applicant has not concealed the fact of his involvement in the criminal case and that he duly mentioned in Form No.17 about the pendency of FIR No.336/2006 in Thana Shahbad Dairy. Since in the proforma of Form No.17, it was not specifically required to mention the Sections under which a candidate is charged, the applicant under bonafide belief not mentioned the same. Even mentioning the Thana Shahbad Dairy is also correct as on the date of submission of the said Form No.17, the Thana PS Bawana was bifurcated into two and that the residence of the applicant falls within Thana Shahbad Dairy. The learned counsel further submits that in any event, pendency of a criminal case cannot be a ground for denying appointment to the applicant. In fact, the respondents themselves appointed various others who were also involved in criminal cases against whom the cases are pending in various Police Stations.
7. The learned counsel further submits that in any event if the respondents still feel that the applicant concealed any fact, the same may be condoned, considering the young age and future of the applicant. He placed reliance on the case of the Honble Apex Court in Commissioner of Police and Others v. Sandeep Kumar, (2011) 4 SCC 644.
8. Shri Ajesh Luthra, the learned counsel for the respondents-DTC, per contra, submits that the applicant admittedly not mentioned all the required details of the criminal case in which he was involved while submitting Form No.17 and hence, he is not entitled for appointment in DTC. He further submits that the applicant with an intention to mislead the respondents mentioned the Thana Shahbad Dairy instead of PS Bawana wherein the FIR No.336/2006 was registered. The DTC being the employer can always empowered and entitled to choose employees with clean criminal record, in preference to those persons who are involved in criminal cases that too for serious offences.
9. The learned counsel further submits that the Honble Apex Court in SLP (C) No.28608 of 2011 in Jainendra Singh v. State of U.P., having deferred with the view expressed in Sandeep Kumars case (supra), referred the said Jainendra Singhs case to a Larger Bench by its order dated 30.07.2012 (A copy of the same is placed on record) and hence, the age of the applicant cannot be a ground and this Tribunal cannot treat the act of the applicant as a genuine/bonafide mistake.
10. Heard Shri S.M.Hooda, the learned counsel for the applicant and Shri Ajesh Luthra, learned counsel for the respondents and have also perused the pleadings on record, carefully.
11. When it is the admitted case of both sides that the applicant in Form No.17 mentioned the FIR No.336/2006 and the name of the Police Station in which the said FIR is pending as on the date of submission of the said Form, it cannot be said that he has concealed any facts in respect of his criminal case.
12. With regard to involvement in any criminal offences, the number of the FIR and the name of the Police Station in which the said FIR is pending are the relevant and necessary facts and nothing prevents the respondents from obtaining the full information from the concerned Police Station with the particulars given by the applicant, and in the absence of any specific requirement to mention the provisions of law under which various offences were charged against the applicant, the reasoning of the respondents for canceling the provisional selection of the applicant that he has concealed the facts, is unsustainable and untenable.
13. In Secretary, Department of Home, A.P. & Others vs. B. Chinnam Naidu, (2005) 2 SCC 746, after reiterating that suppression of material information or giving false information in attestation form would result in the candidate being discontinued from service, cautioned that the Court will have to examine in each case, whether a candidate has suppressed material information or has given false information in the attestation form; and where the candidate is required to state as to whether he has been convicted by a criminal court, if the candidate answered in the negative, the fact that a criminal case was pending as on that date, would not amount to misrepresentation, it was held:
9. 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.
10. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437, the position was the reverse. There the candidate took the stand that as there was no conviction, his negative answers to whom 12 and 13 were not wrong. This Court did not accept the stand that requirement was conviction and not prosecution in view of the information required under Columns 12 and 13 as quoted above. The requirement was `prosecution and not `conviction. The logic has application here. The requirement in the present case is `conviction and not `prosecution.
14. In State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222, considered the case of an employee who had answered NO to a query whether he was arrested. It was found that subsequent to registration of FIR, he had voluntarily appeared before the magistrate, without being taken into formal custody and was granted bail and was ultimately acquitted. It was held that in such circumstances, it was not altogether unreasonable to expect a layman to construe that he had never been arrested, even though the legal position may be otherwise. It was held that in such circumstances, even if what transpired may technically amount to arrest, the benefit of a mistaken impression rather than the consequences of a deliberate and willful misrepresentation and concealment of facts, should be extended to the employee.
15. It is to be seen that in Commissioner of Police and Others v. Sandeep Kumar, (2011) 4 SCC 644, the candidature for the post of Head Constable was cancelled on the ground that the candidate had concealed his involvement in a criminal case under Sections 325/34 IPC. The Honble Apex Court held that young people often commit indiscretions and authorities should have to condone such indiscretions.
16. Since the present case does not involve the fact of concealment of particulars with regard to any criminal cases, as observed above, the reliance placed by the applicants counsel on Sandeep Kumars case (supra) and the submission made by the learned counsel for the respondents about referring a similar matter in Jainendra Singhs case (supra) to a Larger Bench does not have any affect on this case.
17. In these circumstances and for the aforesaid reasons, the OA is allowed and the impugned order dated 28.06.2011 (Annexure A1) is quashed and set aside and the respondents are directed to issue the appointment order to the applicant, if he is otherwise eligible, forthwith. The respondents shall notionally fix the pay of the applicant on par with his other batch-mates, however, he is not entitled for any arrears. No order as to costs.
(V. Ajay Kumar) (Manjulika Gautam) Member (J) Member (A) /nsnrvak/