Central Administrative Tribunal - Jabalpur
Gendalal Jharia vs M/O Defence on 26 April, 2019
1 OA No.200/00938/2012
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00938/2012
Jabalpur, this Friday, the 26th day of April, 2019
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Gendalal Jharia
S/o Shri Dojilal Jharia
DOB 1.2.1974
R/o H.No.71 New Basti
Subhash Nagar
Ranjhi Jabalpur 482005 (M.P.) -Applicant
(By Advocate -Shri Vijay Tripathi)
Versus
1. Union of India,
Through its Secretary
Ministry of Defence
Department of Defence Production
South Block
New Delhi 110011
2. The Chairman
Ordnance Factory Board
10-A Saheed Khudiram Bose Marg
Kolkata (W.B.) 700001
3. Senior General Manager
Ordnance Factory,
Khamaria Jabalpur (M.P.) 482005 - Respondents
(By Advocate -Shri A.P. Khare)
(Date of reserving the order:14.12.2018)
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2 OA No.200/00938/2012
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed by the applicant challenging the legality, validity and propriety of the order dated 07.01.2012 (Annexure A-1), whereby the offer of the appointment of the applicant for the post of Danger Building Worker (Semi Skilled) has been cancelled on the basis of police verification report. Hence, this Original Application.
2. The applicant in the present Original Application has sought for the following reliefs:-
"8.1 Summon the entire relevant record from the respondents for its kind perusal;
8.2 Set aside the order dated 7.1.2012 (Annexure A-1);
8.3 Direct the respondents to appoint the applicant as Danger Building Worker (Semi Skilled) with all consequential benefits;
8.4 Any other order/orders, direction/directions may also be passed.
8.5 Award cost of the litigation to the applicant."Page 2 of 22 3 OA No.200/00938/2012
3. Briefly the case of the applicant is that the respondent-department has issued an advertisement for filling up the post of Semi Skilled Worker in different trades including Danger Building Workers. The applicant is an Ex-Trade Apprentice of Gun Carriage Factory, Jabalpur and has obtained trade apprentice training from Gun Carriage Factory from 21.09.1992 to 20.09.1995 in the Trade of Turner. After completion of trade apprentice training, the National Council for Vocational Training has issued a National Apprenticeship Certificate as annexed as Annexure A/2. The applicant has received call letter dated 06.10.2010 (Annexure A-3), whereby the applicant was instructed to appear in the trade test which was scheduled on 30.10.2010. Accordingly, the applicant appeared in the trade on 30.10.2010. The applicant was found suitable for the post of Danger Building Worker (Semi Skilled). Thereafter the respondents have issued attestation form in favour of the applicant. After receiving attestation form, Page 3 of 22 4 OA No.200/00938/2012 the applicant filled up the same and submitted in the office respondent No.3.
3.1. It is submitted by the applicant that in the year 2002 a false and frivolous case under Section 13 of the Gambling Act was registered against the applicant in the Police Station Ranjhi, Jabalpur. To avoid trail, the applicant deposited Rs.75/- as fine before Shri B.S. Bhadoria Judicial Magistrate First Class, Jabalpur. This fact has been disclosed in the attestation form. The said attestation form of the applicant was sent to the office of District Collector, Jabalpur for police verification report. The Executive Magistrate has informed the respondent- department vide letter dated 07.06.2011 that a criminal case was registered against the applicant under Section 13 of the Gambling Act and after submitted charge sheet by the police authorities before the Court, fine of Rs.75/- was imposed against the applicant by the Judicial Magistrate First Class Jabalpur which the applicant had deposited before the said authority. After receiving the said report Page 4 of 22 5 OA No.200/00938/2012 from the Executive Magistrate, the offer of appointment of the applicant has been cancelled on the ground that the punishment of fine has been imposed upon the applicant under Section 13 of the Gambling Act.
4. The respondent-department has filed counter reply. In the reply the respondents has submitted that the applicant had filled up the following information at Para 12(i) of the attestation form that
(a) Have you ever been arrested? Yes
(b) Have you ever been prosecuted? Yes
(c) Have you ever been kept under detention?
Yes
(d) Have you even been bound down? Yes
(e) Have you ever been fined by a Court of Law?
Yes
(f) Have you ever been convicted by a Court of Law for any offence? Yes.
Page 5 of 22 6 OA No.200/00938/2012
5. It is specifically mentioned in Para 12(ii) of Attestation Form that if the answer to any of the above mentioned question is 'Yes' full particulars of the case/arrest/detention/fine/conviction/sentence/ punishment etc and /or the nature of the case pending in the Court/University/ Educational Authority etc. at the time of filling up this form has to be given. However, the particulars of the case were not disclosed by the applicant during the submission of Attestation Form (Annexure R/1) before respondents. The said attestation form was forwarded to District Magistrate Jabalpur by the respondent for verification of his character from Civil Authority. The District Magistrate Jabalpur vide letter dated 07.06.2011 intimated to respondents that applicant involved in criminal case No.610/02 under Section 13 of Gambling Act wherein Rs.75/- fine was imposed by Hon'ble Court against the applicant. A copy of said letter, a copy of Special Branch IG of Police Bhopal Letter dated 25.05.2011, 07.04.2011 and a copy of affidavit are Page 6 of 22 7 OA No.200/00938/2012 annexed as Annexure R-2, 3, 4 and 5. Therefore candidature of the applicant for the post Danger Building Worker (Semi Skilled) was cancelled by the Competent Authority on account of suppression of information as mentioned in the Para 12(ii) of the Attestation form.
6. We have heard the learned counsel for the parties and also perused the annexures annexed with the pleadings.
7. There is no dispute regarding the advertisement whereby the applications were called for the post of Semi Skilled grade. It is also admitted that the applicant appeared in the trade test and and also finally selected in the post of Danger Building Worker (Semi Skilled). It is also not in dispute that the attestation form was issued by respondent-department to the applicant and he has submitted the same along with affidavit. As per affidavit dated 23.03.2011 (Annexure R-5) wherein it has been specifically stated by the applicant that one case was registered against him in Police Station, Ranjhi, Jabalpur Page 7 of 22 8 OA No.200/00938/2012 which has been finally disposed of after paying a fine of Rs.75/- and at present there is no case against him pending in District Magistrate, Jabalpur or in any other Police Station. It is clear that respondent-department also does not disputed regarding concealment of any fact or pendency of any criminal case before any Court of law. Only reason given by the replying respondents in rejecting the claim of the applicant is that the offence committed by the applicant and by assessing its graveness the appointment to the post of DBW (Semi-skilled) cannot be offered hence the candidature for the said post stands cancelled abinitio. So, the applicant is not fit for Government service and the candidature of the applicant was rejected. So, the applicant cannot be appointed in the Semi Skilled post.
8. The applicant has relied upon the judgment of Hon'ble Supreme Court in the matter of Commissioner of Police and Others vs. Sandeep Kumar reported in (2011) 4 SCC 644. The relevant Paras are as under:
Page 8 of 229 OA No.200/00938/2012
"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a Page 9 of 22 10 OA No.200/00938/2012 deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong-Page 10 of 22 11 OA No.200/00938/2012
very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."[ Vide : Morris Vs. Crown Office, (1970) 2 Q.B.125C-H ] In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commit indiscretions, which are often condoned."
9. The applicant has also relied upon the judgment passed by the Hon'ble High Court of Gujarat in the matters of Balubhai Amidas Khristi vs. State of Gujarat and others 1978 (2) SLR 815. The relevant para is as under:-
"18. Let me compare the situation. I even a Judge can buy a ticket of State lottery and if lucky enough on my ticket being drawn winner on sheer luck no skill being involved not only I get rupees lac or more on a pure gambling chance but that it is being given wide publicity and till recently no tax was payable on this windfall. Larger prizes are offered on lottery with more attractive advertisements. It is inciting, instigating, provoking gambling instinct lying dormant, in every man to gamble. This peon rather than staking rupee one in the state lottery where he does not commit offence stupidly albeit unfortunately staked it in Varii Matka. But it is said that profit earned by lottery activities are utilised for State developmental activities such as education, cultural Page 11 of 22 12 OA No.200/00938/2012 advancement etc. which is not true of Varii Matka. This peon merely committed an error in choosing Varii Matka stake holder rather than buying a State lottery ticket and he has in the process been sent to jail for one month and deprived of his very livelihood. Had he waited for some time he could as well have gone to casino to be set up by Maharashtra Government, and no misfortune would have be fallen him. I am afraid, what was one a high moral principle namely not to indulge in gambling can now be styled as taboo only. I can describe the situation in a much more decorative language. I would rather stop here by saying that in the context of the present day society where the State not only indulges into gambling activity but by advertisement incites the citizens' gambling instinct in human beings to subscribe to this once condemned activity, it would be too much to say that this peon who was found giving stake to a Varli Matka stake holder has been guilty of such conduct as would involve moral turpitude so as to be dismissed from service. Conceding that it is not conviction that is the foundation for taking disciplinary action but the conduct which led to the conviction is the foundation, I must say that conduct herein disclosed is the same conduct which every purchaser of a State lottery ticket undertakes. While one may claim to be considered progressive forward looking individual enriching State coffers the other fellow loses his job and goes to jail. I have no grievance this man being sent to jail but that conduct cannot lead to deprivation of his livelihood. Therefore, viewed from all angles, I must reluctantly come to the conclusion that the order dismissing the petitioner from service is bad on all counts and deserves to be quashed and set aside.Page 12 of 22 13 OA No.200/00938/2012
10. The applicant has also relied upon the judgment passed by the Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur in Writ Petition No.8854/2012 titled as Rakesh Kumar Patel vs. Union of India and others. The relevant portion Para 4 is as under:-
"4. In the case of Commissioner of Police (supra) the candidate had failed to disclose his true antecedents in the application form for appointment regarding his prosecution in a criminal case as a result of which his candidature was cancelled. The criminal case against the candidate was admittedly compromised and he was acquitted of the charges. Aggrieved, the candidate filed a petition before the Tribunal which was dismissed. He then filed a writ petition before the Delhi High Court. The Delhi High Court allowed the writ petition and quashed the order of cancellation of selection of the candidate. In an appeal filed by the Commissioner of Police, the Supreme Court upheld the order of the Delhi High Court and rejected the submission regarding justification of the cancellation of candidature that the candidate should have disclosed the fact of his involvement in the criminal case even if he had been acquitted. The Supreme Court observed that the candidate had been acquitted in the criminal case and he, being a youth, cannot be expected to behave as older people. It also observed that, at young age, people often commit indiscretions and such indiscretion should be condoned instead of branding young people as criminals for the rest of their lives. The Supreme Court even condoned the act of a candidate of not mentioning in the application form about his involvement in a criminal case under Page 13 of 22 14 OA No.200/00938/2012 Section 325/34 at the Indian Penal Code by holding that he might have done so out of fear of getting disqualified automatically."
11. The applicant has also relied upon the order passed by this Bench in the case of Chandan Thakur vs. Union of India passed in Original Application No.200/00898/2013 decided on 26.02.2013.
12. The Hon'ble Apex Court in the case titled as Avtar Singh vs. Union of India and others (2016) 8 SCC 471 has settled issues regarding information given by the parties before entering the Government service. The principles have been laid down in Para 38 of the judgment which is as under:-
"38. 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:
38.1 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.Page 14 of 22 15 OA No.200/00938/2012
38.2 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.
38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4 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 : -
38.4.1 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.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. 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.Page 15 of 22 16 OA No.200/00938/2012
38.5. 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.
38.6 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.
38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9 In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be Page 16 of 22 17 OA No.200/00938/2012 considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
13. The Hon'ble Apex Court in Para 38.4.1 has clearly mentioned that 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. The case of the applicant falls under 38.4.1. The applicant has not concealed the facts and it has been specifically submitted by the applicant that one case was registered which was closed by depositing a fine of Rs.75/-
14. In the reply filed by the respondents, it is also clear from letter dated 07.06.2011 that the District Magistrate Jabalpur has intimated the replying respondent that fine of Page 17 of 22 18 OA No.200/00938/2012 Rs.75/- was imposed upon the applicant for the offence under Section 13 of the Gambling Act. It is true that the applicant has been convicted and fine of Rs.75/- has been imposed upon the applicant. But it is also clear that these offences are petty offences.
15. In the impugned order dated 07.01.2012 (Annexure A-1) the reason given for rejecting the claim of the applicant is that the offence committed by the applicant and by assessing its graveness the appointment to the post of DBW (Semi-skilled) cannot be offered hence the candidature for the said post stands cancelled abinitio. It is pertinent to mention that the applicant was involved in a petty offence under Gambling Act, which is the bailable offence and the Hon'ble Apex Court has clearly held that in a case trivial in nature in which conviction had been recorded for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question. In the impugned order (Annexure A-1), we do not find such reasons in the impugned order itself. It has been further Page 18 of 22 19 OA No.200/00938/2012 held by the Hon'ble Apex Court that the 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 Page 19 of 22 20 OA No.200/00938/2012 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. The relevant portion in the judgment of Avatar Singh (supra) reads as under:-
"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 Page 20 of 22 21 OA No.200/00938/2012 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."
16. In view of the above, we are of the opinion that the applicant is very young in age and the matter regarding his conviction under Section 13 of the Gambling Act is a trivial and petty offence and is a bailable offence that too for the year 2002. In the impugned order dated 07.01.2012 (Annexure A-1), we did not find any reasons as per settled legal position as discussed above (supra), the said impugned order is illegal and unlawful.
17. Resultantly, the Original Application is allowed. Impugned order dated 07.01.2012 (Annexure A-1) is quashed and set aside. In view of our findings, the Page 21 of 22 22 OA No.200/00938/2012 respondents are directed to reconsider the case of the applicant in respect of the employment for the post of Danger Building Worker (Semi Skilled), within a period of 90 days from the date of receipt of certified copy of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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