Birendra Mahto vs Uoi & Ors.
2009 Latest Caselaw 683 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.10041/2005

%                             Date of Decision : 27th of February, 2009

#     BIRENDRA MAHTO                                     ......Petitioner
!                                       Through: Mr. Aditya Singh, Adv.

                                             versus
$     UOI & ORS.                                        .....Respondents
^                                       Through: Mr. Darpan Wadhwa, Adv.

*     CORAM:
      HON'BLE MR.JUSTICE B.N. CHATURVEDI
      HON'BLE MR.JUSTICE S.L. BHAYANA

      1.         Whether the Reporters of local papers
                 may be allowed to see the judgment?                   Yes

      2.         To be referred to the Reporter or not?                Yes

      3.         Whether the judgment should be
                 reported in the Digest?                               Yes

:      B.N.CHATURVEDI, J.

1. Based on a written examination and interview,

to fill up the posts in constabulary of CISF

(respondent No.2) the petitioner was, on his selection,

offered an appointment as a constable vide letter

dated 14.1.2002. Pursuant to such offer of

appointment, the petitioner reported at Training

Centre, CISF, Arrakkonam, Tamil Nadu on 21st of

April, 2002 and was, thus, appointed as a temporary

constable in CISF with effect from 21st of April,

2002(FN). The aforesaid letter dated 14.1.2002

offering appointment to the petitioner, was

accompanied by an Attestation Form to be filled up by

him and submitted to the respondent No.2 at Tamil

Nadu at the time of his joining. Column 12(b) of the

Attestation Form required an information to the

following effect: "Have you ever been prosecuted?" To

this, the information, as furnished by the petitioner,

was 'No'.

2. Vide letter dated 12.6.2002, the petitioner was

placed on probation for a period of two years on being

appointed as a temporary constable, subject to the

condition that in the event of his being found

unsuitable for retention in the service at any time

either during the period of his initial training or the

period of probation, his services were liable to be

terminated.

3. In November, 2003, the petitioner was served

with a memo requiring him to submit his explanation

for suppressing the information against column 12 of

the Attestation Form that he had been named as an

accused in case FIR No.68/93 dated 3.8.1993, PS

Daudpur, Distt. Chhapra, Bihar under Sections 447,

341, 323, 324, 337/34 IPC and prosecuted in that

case. The petitioner submitted his explanation dated

19.11.2003, in which, he though did not dispute his

name figuring as an accused in the FIR and his

subsequent prosecution, he added that it was a false

case reported by his real uncles on account of

disputes between his father and uncles in respect of

partition of ancestral properties and that the case was

later compromised between his parents and uncles. It

was further submitted that since the matter had been

compromised, he was, at the time of filling up column

12 of the Attestation Form, under the impression that

no offence had been committed by him and that there

could be no question of any punishment for the same.

Acknowledging the lapse on his part in furnishing

correct information, the petitioner pleaded that it had

happened due to ignorance and that he deserved to be

dealt with leniently on humanitarian consideration.

4. It appears that the aforesaid explanation from

the petitioner was not found satisfactory and

consequently, vide letter dated 12.1.2004, his services

were terminated with immediate effect paying one

month's salary in lieu of the notice period as he was

not found fit for further retention in service.

5. On behalf of respondents, defending the

impugned action terminating the services of the

petitioner, it is pleaded that in view of intentional and

deliberate suppression of correct information against

column 12 of the Attestation Form, the petitioner was,

after being afforded an opportunity of explaining his

position, found not fit for permanent appointment and

his services were, therefore, terminated in exercise of

powers conferred on the appointing authority under

Rule 25(2) of the CISF Rules, 2001.

6. We have heard the learned counsel

representing respective parties and also perused the

relevant parts of the record.

7. The background facts leading to issue of memo

dated 5.11.2003 requiring the petitioner to explain his

position in regard to suppression of information on his

part in relation to his being prosecuted in connection

with a case FIR No.68/93 dated 3.8.1993, PS

Daudpur, Distt. Chhapra, Bihar under Sections 447,

341, 323, 324, 337/34 IPC in column 12 of the

Attestation Form by answering the same in negative,

are undisputed.

8. Learned counsel for the petitioner assailed the

impugned action terminating the services of the

petitioner on the sole ground that the

Commandant/CISF Unit, ONGC, Ahmedabad while

passing the impugned order terminating the services

of the petitioner with immediate effect vide letter dated

12.1.2004 acted without application of his mind by

omitting to accord due consideration to the

explanation dated 19.11.2003 submitted by the

petitioner pursuant to memo dated 5/19.11.2003

rendering the same vitiated and legally unsustainable.

A decision of the Supreme Court in "Commissioner of

Police, Delhi & Another Vs. Dhaval Singh", (1999) 1

SCC 246, was relied upon by the learned counsel for

the petitioner to lend strength to his aforesaid

argument. Dhaval Singh's (supra) was a case where

the respondent, a candidate for appointment as

constable, put a cross mark in the column of

Attestation Form against which he was required to

give information about pendency of criminal case, if

any, against him. He had, however, before order

cancelling his candidature was passed on 20th of

November, 1995 on the ground of suppression of

correct information, on his own informed the authority

concerned about the pendency of the criminal case

against him as also his subsequent acquittal therein.

Without adverting to information so furnished by the

respondent, the authority concerned proceeded to

cancel the appointment of the respondent which was

eventually challenged by the respondent before the

Central Administrative Tribunal. The Central

Administrative Tribunal allowed the respondent's

application and set aside the orders of cancellation of

candidature and rejection of his representation, and

directed the appellant to offer appointment to the

respondent within three months from the date of

receipt of the copy of the order. The order of the

Central Administrative Tribunal was challenged in SLP

before the Supreme Court. The Supreme Court,

noticing that the information regarding pendency of

criminal case voluntarily furnished by the petitioner

was, before passing of the impugned order, left out of

consideration and also that such communication from

the respondent had never been disposed of, held that

there was lack of proper application of mind and that

there was, in the circumstances, no error committed

by the Central Administrative Tribunal in setting aside

the orders cancelling respondent's candidature and

rejecting his representation.

9. The case on hand is clearly distinguishable on

facts. Unlike in Dhaval Singh's case(supra), no

voluntary information regarding his prosecution in the

criminal case registered against him was ever

furnished by the petitioner at any point of time

subsequent to filling up and submission of his

Attestation Form before the same was gathered on

verification of his antecedents through the District

Magistrate, District Chhapra, Bihar. The explanation

offered by the petitioner to the effect that the FIR

naming him as one of the accused was got falsely

registered by his uncles and that the matter was

eventually compromised during its pendency before

the concerned Court or his acquittal in the case could

not obliterate the effect arising out of furnishing of

incorrect information required in column 12 of the

Attestation Form, especially where para 1 at the very

beginning of the Attestation Form appended a note of

caution, "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." The information required to

be furnished simply pertained to prosecution, if any,

in a criminal case and it had nothing to do with the

falsity or otherwise as also eventual acquittal in the

case.

10. Learned counsel for the respondents, referring

to a decision of the Supreme Court in "Kendriya

Vidyalaya Sangthan & Others Vs. Ram Ratan Yadav",

(2003) 3 SCC 437, involving more or less similar facts

as in the present case, contended that the

suppression of material information as sought against

column No.12 of the Attestation Form and making a

false statement has a clear bearing on the character

and antecedents of the petitioner in relation to his

continuance in service.

11. In Ram Ratan Yadav(supra), the respondent,

selected for the post of Physical Education Teacher in

Kendriya Vidyalaya, was offered an appointment. Para

8 of the letter of appointment required him to fill in an

Attestation Form which contained columns 12 and 13

to the following effect:

"12. Have you ever been prosecuted/kept under detention or bound down/fined, convicted by a court of law of any offence?

13. Is any case pending against you in any court of law at the time of filling up this Attestation Form?"

Answer to both these questions furnished by the

respondent was in negative. Like para 1 of the

Attestation Form in the instant case, para 9 of the

Attestation Form, though worded somewhat differently,

in the aforesaid case provided:

"Suppression of any information will be considered a major offence for which the punishment may extend to dismissal from the service."

Contrary to the information furnished by the respondent

in columns 12/13 of the Attestation Form, a report

received from police revealed that a criminal case

registered under Sections 323, 341, 294, 506-B read

with Section 34 IPC was pending against the respondent

on the date of his filling the Attestation Form. Finding

that the respondent had suppressed the material

information in regard to his prosecution and pendency

of a criminal case at the relevant time, his services were

terminated which he challenged before the CAT. The

application filed by him challenging the order of

termination of his service was, however, dismissed by

the Tribunal. On a petition challenging the Tribunal's

order dismissing his application, the High Court set

aside the order of the Tribunal. Kendriya Vidyalaya

Sangthan, aggrieved by the order of the High Court,

went in appeal before the Supreme Court, which was,

eventually, allowed by reversing the order of the High

Court and restoring the Tribunal's order. The following

observations of the Supreme Court in deciding the

appeal may appear useful to extract:

"11. It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the respondent filled the Attestation Form. Hence, the information given by the respondent as against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement......

.......The requirement of filling columns 12 and 13 of the Attestation Form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.

12. 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......."

12. The above extracted observations by the

Supreme Court in Ram Ratan Yadav (supra) appear to

apply equally in the context of present case as well

and there is no scope to take a different view in the

matter. In his reply to show-cause notice, the

petitioner did not dispute that the information

furnished by him in column 12 of the Attestation Form

was incorrect inasmuch as he was found to have been

prosecuted in a criminal case and was facing trial

therein at the relevant time when he filled up the

Attestation Form. Expressing regret for the lapse and

seeking to justify suppression of material information

of his being prosecuted in the criminal case by

pleading that the petitioner was labouring under the

misimpression that no offence had actually been

committed by him, in view of compounding of the

offences, could not have accounted for dilution of

seriousness of the lapse to the extent of offsetting the

consequential effect in the nature of the impugned

order. The reply to show-cause notice submitted by

the petitioner was very much before the competent

authority when the impugned order came to be passed

and thus it appears unacceptable that the same was

not accorded due consideration. Moreover, the nature

of reasoning advanced by the petitioner to justify the

aforesaid lapse on his part, would even otherwise

appear to supply no explanation to help obviate the

impugned penal consequence that ensued.

13. Noticing that the impugned order terminating

the services of the petitioner suffers from no vice

warranting an interference therewith, the petition fails

and the same is accordingly dismissed with no orders

as to costs.

                                    (B.N.CHATURVEDI)
                                          JUDGE



                                       (S.L. BHAYANA)
    February 27, 2009                      JUDGE
    RS/