Central Administrative Tribunal - Delhi
Jasvinder Singh vs M/O Defence on 10 April, 2024
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O.A. No.1353/2019
Item No. 56
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.1353/2019
Reserved on : 05.04.2024
Pronounced on : 10.04.2024
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Jasvinder Singh,
S/o. Mohan Lal,
Aged about 27 years,
Gram Pensal, Post Office Ajijpur Kalla,
Tehsil Bilaspur, Yamuna Nagar,
Haryana 133 206 ....Applicant
(By Advocate : Mr. Pushpinder Singh)
Versus
1) Union of India, through Chief Secretary,
Ministry of Defence, Govt. of India,
South Block, New Delhi.
2) The General Manager (Admin),
Opto Electronics Factory,
Ministry of Defence, Government of India,
Raipur, Dehradun - 248 008 (Uttarakhand).
3) The Joint General Manager (Admin),
Opto Electronics Factory,
Ministry of Defence, Government of India,
Raipur, Dehradun - 248 008 (Uttarakhand).
4) The Director General of Ordnance (Co-ordination
and Services), Directorate of Ordnance,
(Co-ordination and Services), 10A, S, K Bose Road,
Kolkata - 700 001.
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O.A. No.1353/2019
Item No. 56
5) Chairman & Managing Director India Optel Limited,
DPSU, Corporate Headquarter at OFIL Campus,
Raipur, Dehradun - 248 008.
6) Pr. Director/OFRC, Sh. Avinash Gupta, Director,
Ambajhari, Nagpur, Maharashtra.
...Respondents
(By Advocate : Mr. K. M. Singh)
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J) Applicant, is an aspirant for the post of Machinist, in the Opto Electronics Factory, Raipur, Dehradun. He has filed this Original Application aggrieved of the cancellation of his selection in the Industrial Establishment of the Ordnance Factory Board. After disinvestment of the Ordnance Factory Board, the Original Application was amended. Amended memo of parties was filed arraying as party respondents, the Chairman and Managing Director of the India Opto Limited, DPSU which is the Corporate entity in place of the factory after disinvestment.
That the Ordnance Factory recruitment center, on behalf of all the Ordnance Factories had invited online applications from eligible citizens of India for filling up of various vacancies/posts of semi-skilled grade industrial employee in 3 O.A. No.1353/2019 Item No. 56 Group 'C' in different trades through its advertisement no. 10201/11/0209/1718. Applicant had applied in response to this advertisement. He was issued admit card for the written examination, held on 10.09.2017. Applicant came in the merit and was selected as Machinist as Examiner (Engg). A provisional call letter for document verification was issued for 17.01.2018 at Dehradun. The applicant had cleared both written examination as well as the trade test and was finally selected. The applicant was sent the attestation form with the call letter of 17.01.2018. The attestation form was required to be filled and submitted on 04.09.2018.
2. The respondents thereafter sent the attestation form for verification to the Superintendent of Police, Yamuna Nagar. The Superintendent of Police in its report dated 12.10.2018 has stated that an FIR No. 48 dated 18.03.2014 under Section 323/452/506/341 IPC was got registered against the applicant and other accused persons. The SHO in his report has said that the applicant was acquitted by the learned SDJM Shri Sunil Kumar, Bilaspur on 27.11.2015.
Applicant has also annexed with the OA the order of acquittal passed by the Sub Divisional Judicial Magistrate on 4 O.A. No.1353/2019 Item No. 56 27.11.2015. He has acquitted the applicant, for reason as recorded by him, that vide order dated 29.09.2015, the Hon'ble High Court of Punjab & Haryana at Chandigarh had quashed the FIR along with all consequential proceedings arising out of the said FIR. In view of the order passed by the Hon'ble High Court, the Sub Divisional Judicial Magistrate was pleased to acquit all the accused persons including the applicant and the Criminal trial came to an end. On receipt of this verification report, the respondents sent a show cause notice dated 04.02.2019, to the applicant calling for his explanation as to why his selection may not be cancelled for having concealed material information in the attestation form. The applicant submitted his reply to the show cause notice. In the said reply, he stated that since the FIR No. 48 dated 18.03.2014 was quashed by the Hon'ble High Court of Punjab and Haryana at Chandigarh along with all the consequential proceedings, the said FIR had been declared zero and the proceedings on the FIR with effect from 18.03.2014 to 27.11.2015 were treated as zero, therefore, he tried to explain that he had filled his response in column no. 12 of the attestation form as 'No'. He requested the respondents to 5 O.A. No.1353/2019 Item No. 56 take a sympathetic view as the applicant was less than 22 years at the time of registration of FIR and therefore, he deserved a second chance. The respondents considered this explanation, however, they were pleased to cancel the selection of the applicant vide their order dated 14.03.2019, which is the subject matter of challenge in the present OA filed by the applicant seeking the following reliefs :-
"8(i) issue an appropriate order or direction thereby directing the Respondents to withdraw the cancellation of selection order dated March 14, 2019 and ;
(ii) issue an appropriate order or direction thereby directing the Respondents to restore the selection order dated 27.08.2018;
(iii) Pass any such other or further order(s) as this Hon'ble Tribunal may deem fit and appropriate in the interest of justice and in favour of the Applicant;
(iv) Allow the present Application with costs, in favour of the applicant."
3. Counsel for the respondents vehemently argued resisting the OA. Respondents relied upon the attestation form and the warning printed on the same. For the sake of clarity, the said warning printed on this attestation form in its opening paras are reproduced below :-
"15. The opening paragraph of the said attestation form is enshrined with the warning such as :-6 O.A. No.1353/2019 Item No. 56
1) The furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under the government.
2) If detained, convicted, debarred etc subsequent to the completion and submission of this form, the detail should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form is sent earlier as the case may be failing which it will be deemed to be suppression of factual information.
3) If the fact that the false information has been furnished or that there has been 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. He thus submitted that furnishing of any false information or withholding of any material information would lead to automatic disqualification. The candidates/applicant were all suitably forewarned in the attestation form itself but the applicant did not adhere to this warning and instead attempted to mislead the respondents by answering the relevant question as 'No'. For the sake of clarity, the relevant question in the attestation form at column 12 B is reproduced below :-
"12.(b) Have you ever been prosecuted ? Ans- No"
5. He therefore, submitted that the applicant does not deserve any leniency or sympathy.
7O.A. No.1353/2019 Item No. 56
In rejoinder counsel for the applicant has relied upon the judgment of the Hon'ble Apex Court in SLP No. 20525/2011 titled as Avtar Singh Vs. Union of India dated 21.07.2016 and the judgment passed by the Coordinate Bench of this Tribunal in Mohan Singh Meena Vs. Govt. of NCTD and Ors. in OA No. 973/2016 decided on 10.08.2023 and in Devendervs. Govt. of NCTD and Ors in OA No. 1348/2017 decided on 20.09.2023.
6. We have heard the parties and perused the material on record. It is not in dispute that the applicant had participated and cleared all the stages of the selection process. He was declared meritorious and issued call letter for document verification also. He was not appointed for suppressing information. He was issued a show cause notice to which he replied also. The impugned order cancelling his selection was passed based on the information sent by the Superintendent of Police, Yamuna Nagar on verification of the details as filled up by the applicant in the attestation form.
7. While deciding the issue, we are guided by the law laid down by the Hon'ble Apex Court in SLP in Avtar Singh (supra). The relevant portion is quoted hereunder :- 8 O.A. No.1353/2019 Item No. 56
22. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered.
For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service. xxx xxx xxx
26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
xxx xxx xxx
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed 9 O.A. No.1353/2019 Item No. 56 service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. xxx xxx xxx
30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.10 O.A. No.1353/2019 Item No. 56
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case."
8. We have also considered the judgments of the Coordinate Bench namely Mohan Singh Meena Vs. Govt. of NCTD and Ors. in OA No. 973/2016 decided on 10.08.2023 and in Devender vs. Govt. of NCTD and Ors in OA No. 1348/2017 decided on 20.09.2023. In both these cases, the Tribunal has relied extensively upon the judgments of the High Court as well as the Apex Court which are based on similar circumstances as in the present case. The said judgments are listed below :-
"(a) WP(C) No. 4304/2013 Commissioner of Police Vs. Prem Singh Choudhary decided on 05.12.2013
(b) WP(C) No. 1028/2014 Praveen Vs. UOI & Ors., decided on 03.12.2014
(c) WP(C) No. 1032/2014 Pradeep Singh Vs. UOI & Ors., decided on 03.12.2014.
(i) Commissioner of Police & Anr. Vs. Meher Singh Civil Appeal No. 4842/2013.
(ii) Commissioner of Police & Anr. Vs. Shani Kumar Civil Appea No. 4965/2013.
(iii) Manjeet Singh Vs. State of Haryana & Ors.
MANU/SC/0546/2021 11 O.A. No.1353/2019 Item No. 56
(iv) Yunis Alias Kariya Vs. State of Madhya Pradesh MANU/SC/1116/2002 : AIR 2003 SC 539
(iii) Ajit Kumar Vs. Commissioner of Police/Delhi & Ors. WP(C) No. 2372/2010
(iv) Union Territory, Chandigarh Administration and Ors. Vs. Pradeep Kumar and Anr. MANU/SC/0007/2018 :
(2018) 1 SCC 797"
9. Now coming to the facts of the present case. In the present case, the only reason for rejection of the candidature of the applicant is that he had failed to mention about the registration of FIR against him and neither did he mention about the quashing of the said FIR by the Hon'ble High Court. For this suppression, the candidature was cancelled. It is not in dispute that the FIR in question was registered on 18.03.2014 and the same was quashed on 29.09.2015 by the Hon'ble High Court and the applicant was acquitted from the criminal trial on 27.11.2015. That the attestation form was filled and submitted on 04.09.2018, three years later. The fact that the applicant was 21½ years old at the time of registration of FIR and was about 25 years old at the time of filling of the attestation form is also admitted. The law as laid down by Hon'ble Apex Court as well as the judgments referred to by the Coordinate Bench of this Tribunal, require the appointing authority to take into consideration entire facts and 12 O.A. No.1353/2019 Item No. 56 circumstances in totality. In the present case, it seems the respondents were impressed only by the fact that the applicant did not mention the FIR in the attestation form. The fact that he already stood acquitted more than three years ago when he filled the attestation form has not been considered at all. The law as laid down by the Hon'ble Apex Court in Avtar Singh's case (supra) requires the employer to assess the situation including the impact of suppression or false information while adjudging the suitability of an incumbent for the services in question. The applicant is a meritorious candidate who got selected after clearing the open selection process and therefore, it seems that the employer would not be justified in simply cancelling the candidature without taking into consideration the objective criteria.
10. In view of the above discussion, we are of the view that the impugned order dated 14.03.2019 cannot be sustained. Hence, the same is quashed and set aside. The respondents are directed to consider the case of the applicant afresh in an objective manner, for appointment to the post and in case such consideration finds favour to the applicant, he shall be issued the offer of appointment along with all consequential 13 O.A. No.1353/2019 Item No. 56 benefits on a notional basis including seniority and pay fixation etc., with effect from the date his immediate junior was appointed and on actual basis from the date of joining.
11. The exercise ordained above shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. The OA is disposed of accordingly.
There shall be no order as to costs.
(Sanjeeva Kumar) (Harvinder Kaur Oberoi) Member (A) Member (J) /Mbt/