Delhi Metro Rail Corporation ... vs Inderjeet
2010 Latest Caselaw 968 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P. (C.) No.1038/2010

%                            Date of Decision: 19.02.2010

Delhi Metro Rail Corporation Limited                    .... Petitioner
                     Through Mr. Tarun Johri, Advocate.

                                       Versus

Inderjeet                                                    .... Respondent
             Through                  K. Prabhakar Rao, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                        YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                          NO
3.   Whether the judgment should be reported in                      NO
     the Digest?


ANIL KUMAR, J.

* The petitioner, Delhi Metro Rail Corporation Limited has

challenged the order dated 21st December, 2009 in OA 1086/2009 titled

Sh. Inderjeet Vs. Delhi Metro Rail Corporation Ltd. Passed by Central

Administrative Tribunal setting aside the order dated 3rd June, 2008

passed by the Disciplinary Authority of the petitioner imposing the

major penalty of removal from service and also dismissing the order

dated 17th October, 2008 passed by the Appellate Authority dismissing

the appeal of the respondent and confirming the punishment of the

respondent and also quashing the order dated 3rd March, 2009 passed

by Reviewing Authority confirming the punishment.

A memorandum of charge sheet dated 22nd November, 2007 was

issued pursuant to an internal audit report that the false information

had been furnished and the material information suppressed by the

respondent and consequently, his service would be liable to be

terminated.

The petitioner had offered a job of Messenger/field helper to the

respondent and he had filled the application form and in answer to a

question as to whether he had ever been prosecuted, a negative answer

was given. The petitioner had sent the attestation form before

appointing the respondent for police verification when it transpired that

an FIR was lodged against the respondent however, he was

subsequently discharged from the case.

The petitioner, therefore, before his appointment was called upon

to explain as to why he had suppressed the information regarding the

registration of an FIR in 1995 against him under Section 325/34 IPC

which was compromised in August, 1997 prior to the respondent

applying for the job in 1999.

The respondent explained about not disclosing about the FIR

registered against him in 1995 which was settled in 1997 contending

that since the criminal case was dismissed long before respondent

applied for the job as messenger/field helper, therefore, he did not

mention about it in the attestation form.

The petitioners have not disputed that explanation of the

respondent was examined by the competent authority at that time and

since the explanation was found to be satisfactory, which was accepted,

therefore, appointment letter in March, 1999 was issued to him

pursuant to which the respondent joined duty in April, 1999.

The petitioner has also not disputed that in 2007 Group C & D

employees of the petitioner had formed a Union and got it registered

and the respondent became founder President of the Union. After

formation of union, the respondent sought the status of protected

workmen of the Union and immediately thereafter, the memorandum of

charge-sheet dated 22nd November, 2007 was issued alleging that at the

time of joining as messenger/field helper, the respondent had not

rendered the complete information and therefore, he is liable for the

consequences of the same.

After the inquiry, the Disciplinary Authority awarded the

punishment of removal from service which had been sustained in the

appeal and by the Reviewing Authority which had been set aside by the

Central Administrative Tribunal, Principal Bench primarily on the

ground of condonation of alleged misconduct even before appointment

of the respondent. The facts about non declaration of relevant

informationhad come to the notice of the petitioner on account of police

verification and an explanation was sought from the respondent which

explanation was accepted by the competent authority and only after

finding the explanation for non-disclosure about the FIR registered in

1995 and settled in 1997 prior to appointment in 1999, the respondent

was appointed in March, 1999. The Tribunal has held that once any

misconduct has been condoned, an employer cannot after such

condonation go back upon his condonation and claim a right to punish

the employee again after a number of years.

The respondent was ordered to be removed from service on

account of not disclosing the registration of an FIR in 1995 though this

would not have rendered the respondent unfit for employment. However

after considering his explanation which was accepted by the competent

authority the respondent was appointed as messenger/field helper.

After finding the information which could have rendered the employee

unfit for employment and after considering his explanation if an

employee is found to be fit for employment later, on the same ground it

cannot allowed to hold that the respondent was unfit for employment

and order with removal from service can be passed.

The respondent after his appointment in 1999, worked for eight

years without any complaint. Thereafter, after he became President of

an Union and claimed the status of protected workman, on the ground

that prior to employment, he had not disclosed some information for

which the explanation was sought and was found to be satisfactory,

would not be a ground for removal from the service.

The Tribunal has rightly noted that non-furnishing of information

did not come to the notice of the petitioner during the employment of

the respondent nor has rendered him unfit in any manner. In the

circumstances, there was no ground to remove him from service. It

appears to the more on account of formation of union of Group C & D

employees and on account of the respondent seeking the status of a

protected workman that the matter was reinitiated though the Tribunal

has not gone into this aspect of the matter.

Though the ground that the competent authority who accepted

the explanation given by the respondent at the time of his employment

regarding non-disclosure of information was only the Managing Director

and no one else could accept the explanation was taken before the

Tribunal, which had been negated and not accepted by the Tribunal

however, this plea has not been raised by learned counsel for the

petitioner before us.

Learned counsel for the petitioner has also relied on (1996) 11

SCC 605, Delhi Administration through its Chief Secretary and Ors. Vs.

Sushil Kumar, where the Supreme Court had set aside the order of the

High Court directing the Delhi Administration for re-consideration of

the case of a person who was found physically fit and who had passed

the written test and interview and was provisionally selected but who

was rejected on account of his antecedent record. The Supreme Court

had held that though such a candidate was discharged or acquitted of

the criminal offences, prior to his applying for selection to the post of

constable but it is for the authority to consider as to what is the

relevant conduct or character of the candidate to be appointed to a

service and the Tribunal was unjustified in giving direction for re-

consideration of the case of such a candidate. Apparently, the case

relied on by the petitioner is distinguishable as in Delhi Administration

vs Sushil Kumar (Supra) the candidature of the candidate was rejected

on account of his antecedents whereas in the case of the respondent

even before his appointment, the facts pertaining to the registration of

FIR, which was compromised had come to the notice of the petitioner

and an explanation was sought which was found to be satisfactory and

only thereafter the respondent was appointed to the post.

Consequently, on the ratio of the said precedent, the petitioner is not

entitled to impugned the order passed by the Tribunal. The other

precedent relied on by the petitioner (2003) 3 SCC 437 Kendriya

Vidyalaya Sangathan and Ors. Vs. Ram Ratan Yadav is also

distinguishable as in that case suppression of factual information

affecting the character of the candidate had come to the notice of the

authorities after the appointment of such a candidate and his

misconduct was not condoned. In Ram Ratan (Supra), the candidate

was selected to the post of physical education teacher and appointment

order was issued to him and thereafter he was required to fill the

attestation form where the information was suppressed by him and

later on the explanation given by him was that he had studied in Hindi

medium and therefore he had failed to understand the contents of the

relevant paras of the attestation form and had consequently not given

the correct information, was not accepted by the Supreme Court on the

ground that no prudent man can accept that the candidate did not

know or did not find out the meaning of whatsoever was stated in the

form. Other distinguishing feature of the case relied on by the

petitioners is that when the attestation form was filled by the candidate,

the case under Section 323, 341, 294, 506-B r/w Section 34 IPC was

pending against that candidate and despite that the information was

not disclosed whereas in the case of the respondent, the FIR was

registered in 1995 and the matter was compromised in 1997 and the

respondent had filled the attestation form in 1999 and the explanation

for not disclosing this information before the appointment was given to

the petitioner which was accepted and only thereafter, the respondent

was appointed to the relevant post.

The other plea raised by the petitioners before the Tribunal was

that the appointment of the respondent was an administrative mistake

and that the right to rectify that mistake at any time, was not accepted

by the Tribunal on the reasoning that this was not the ground on which

the order of removal of the respondent was passed nor the respondent

was proceeded in the departmental proceedings on that ground. In any

case, it was held that if there was a mistake on the part of the petitioner

in appointing the respondent, that could not be a ground for

misconduct nor the respondent could be removed from the service after

departmental proceedings on that ground.

In the circumstances, learned counsel for the petitioner has failed

to make out any ground which will entail any interference by this Court

in exercise of its jurisdiction against the order dated 21st December,

2009 passed in OA 1086/2009 setting aside the order of removal of the

respondent. The writ petition in the facts and circumstances is without

any merit and it is therefore, dismissed.

ANIL KUMAR, J.

FEBRUARY 19, 2010                               MOOL CHAND GARG, J.
'rs