Nirbhai Singh vs Union Of India & Ors.
2011 Latest Caselaw 3284 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment Reserved on: 23rd May, 2011
%                                  Judgment Pronounced on: 12th July, 2011


+      WP (C) No. 894/2011


       NIRBHAI SINGH                                       ..... Petitioner
                            Through:       Mr. Krishna Mohan, Adv.


                            Versus


       UNION OF INDIA & ORS.                                 ..... Respondents

                     Through:              Mr. Sachin Datta, Adv. for R-1
                                           Mr. Sandeep Khatri, Adv. for R-2&3

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJIV KHANNA

1   Whether reporters of the local papers 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



DIPAK MISRA, CJ

By this writ petition preferred under Articles 226 and 227 of the

Constitution of India, the petitioner has prayed for issue of a writ of

certiorari for quashing the order dated 22nd January, 2010 passed by the

Central Administrative Tribunal, Principal Bench (for short „the tribunal‟)

WP (C) No. 894/2011 page 1 of 21 in OA No. 418/2008, wherein the tribunal has declined to interfere with

the order dated 8th March, 2007 whereby the order of termination of the

applicant‟s services initially passed by the competent authority on 12th

January, 1999 under sub-rule (1) of Rule 5 of the Central Civil Services

(Temporary Services) Rules, 1965 (for short „the 1965 Rules‟) was

confirmed after the matter was remanded by this Court.

2. The facts that have been exposited are that the petitioner applied for

the post of Constable (Executive) in Delhi Police for special recruitment in

Moga (Punjab). He filled up an Application Form and thereafter the

Attestation Form. He was medically examined and was selected for the

post of Constable (Executive) in Delhi Police and joined the duties on 27th

March, 1998. After the submission of the Application Form, a case was

registered against his brother and himself under Sections 306/34 of the

Indian Penal Code (for short „IPC‟) at PS Mehna. The charge sheet was

filed on 17th April, 1998. Eventually, the petitioner was acquitted by

judgment dated 1st September, 1998. However, he did not inform the

respondent-employer about his involvement in the criminal case. He

remained in judicial custody for about two months in the aforesaid

criminal case which was registered for abetting the suicide committed by

WP (C) No. 894/2011 page 2 of 21 his brother‟s wife, late Karamjeet Kaur. The department came to know

about his involvement in the criminal case and the factum of detention

only after the information given by Sri B.S. Ramoowalia, the ex Minister of

Welfare. As the factual score would further depict, a show cause notice

dated 28th September, 1998 was served on him to explain why his services

should not be terminated under Rule 5(1) of the 1965 Rules for

concealment of fact after joining the service by adopting deceitful means

which was deliberate and intentional. The petitioner replied to the show

cause stating, inter alia, that he was not aware of the provision when the

Application Form and Attestation Form were filled up; that there was

nothing against him and he had been falsely implicated in the case; and

that he was ultimately acquitted and, hence, there was no justification to

proceed against him.

3. The respondent-employer did not find the reply satisfactory and by

order dated 12th January, 1999, his services stood terminated. Against the

order of termination, he submitted a representation on numerous grounds

which included the ground that removal from service without holding a

regular departmental enquiry was vitiated, but the said representation did

not render any success to the petitioner.

WP (C) No. 894/2011 page 3 of 21

4. Being grieved by the same, he preferred OA No. 1745/1999 which

was dismissed by the tribunal by order dated 17th December, 2002. The

said order was assailed before this Court in WP(C) No.6592/2003 and this

Court allowed the writ petition, set aside the order passed by the tribunal

and remitted the matter to the respondent authority to consider the

defence of the petitioner after granting him an opportunity of showing that

he was not aware of the requirement of disclosing his involvement in a

criminal case relating to future. This Court expressed the opinion that the

willful suppression and concealment is required to be established

otherwise without the aid of deeming provision. A direction was issued

that the petitioner would appear before the competent authority on 27th

December, 2006.

5. After the remit, the respondents re-examined the matter and passed

the order on 8th March, 2007 confirming the order of termination. The

petitioner was afforded an opportunity of personal hearing on 24th

January, 2007. The authorities concerned referred to the language

employed in the Forms and expressed the view that it was obligatory on

the part of the individual concerned to inform with regard to his

involvement in a criminal case in future and the same was to be given to

WP (C) No. 894/2011 page 4 of 21 the Deputy Commissioner of Police, 3rd Battalion, Armed Police, Delhi -

110009, but the petitioner, despite his involvement and detention, chose

not to inform the said authority. The tribunal scrutinized the order passed

by the authority and came to hold that the same is in accord with the

directions given by the High Court and the plea that the petitioner was not

aware of the same because of the time gap and, hence, the same should be

treated as infirm or illegal and was unacceptable.

6. We have heard Mr. Krishna Mohan, learned counsel for the

petitioner, Mr. Sachin Datta, learned counsel for the respondent No.1 and

Mr. Sandeep Khatri, learned counsel for the respondent Nos.2 and 3. In

pursuance of the order passed by this Court, the respondents have

produced the original file relating to the petitioner.

7. At the very outset, we must state that a contention was raised by the

petitioner before the tribunal that Rule 5(1) of the 1965 Rules was not

applicable as he was a permanent employee but the tribunal declined to

address the same as the said issue had been foreclosed by the order of this

Court in WP(C) No.6592/2003. On a perusal of the order passed in the

earlier writ petition, we find that this Court had clearly held that the

WP (C) No. 894/2011 page 5 of 21 services of the petitioner were temporary. Thus, the view expressed by the

tribunal withstands scrutiny and, accordingly, we concur with the same.

8. The gravamen of the matter is whether the order passed by the

competent authority which has been given the stamp of approval by the

tribunal is justifiable on the facts and also meets the observations made

and directions issued by this Court on earlier occasion. It is worth noting

that this Court had posed a question whether there can be deemed

presumption of suppression and concealment in the facts of the case and

had opined thus:

"11. ..... There is also inherent distinction between the non-disclosure or concealment of a past event where the deeming provision could apply as the facts are within the knowledge of the person, and in respect of a future event, where the application of the deeming provision would entail attributing to the person concerned, his remembering the provision, which may or may not be true. As noted above, even in cases relating to the disclosure or non-disclosure of past event, the approach of the Supreme Court has been that the defence of the employee ought to be considered. The same would apply with greater force to a provision dealing with a future event. Therefore, in our view, simply by invoking the deeming provision especially in respect of a future event, the authority cannot terminate the employment without considering the employee‟s defence.

WP (C) No. 894/2011 page 6 of 21

12. In view of the foregoing discussion, we are of the view that even if there is incorrect disclosure in the application/attestation forms as to a past event, it is obligatory to consider the defence of the employee before coming to the conclusion of suppression. This should apply with greater force for non-compliance with disclosure of Future Events. Secondly, the meaning given to the word "deemed" depends upon the context in which it is used. The ordinary meaning includes "generally regarded" or "prima facie regarded" and does not in every case mean "treated as". Thirdly, the statutory principles of deemed legal fiction should not be engrafted in the context of contractual relationship."

Thereafter, the Division Bench proceeded to state as follows:

"15. Having heard learned counsel for the parties and noted the legal position in the paras above, we find that there is no analogous provision relating to disclosures, as in the application form, in the Central Civil Services (Temporary Services) Rules, 1965. We find that in this case, the question which arises for determination is whether it can be attributed to the petitioner that he remembered the disclosure clause on the basis of the deemed presumption. It goes without saying that that the petitioner could not have forgotten the period of his incarceration. The question is whether he remembered that the application form, that he had filled nearly a year back, contained a clause requiring him to make such a disclosure. Even if such a presumption was to be raised, it would be a rebuttable presumption where he has to be permitted to lead evidence in defence and the same being objectively considered rather than arriving at a finding of deemed suppression or fraudulent concealment.

WP (C) No. 894/2011 page 7 of 21

16. In the instant case, there is no real consideration of the defence of the petitioner that he was not aware of the instruction in the form which required him to inform the authorities as and when he was prosecuted or arrested in future, after having filled up the form. In our view, in a mass recruitment drive as this, it is quite plausible that a person filling up the form may not even retain a copy or remember the covenant contained therein so as to inform the authorities at a later date on the happening of the eventuality. The authorities in the instant case have acted on the presumption raised as per the clause without considering the defence of the petitioner. It has not been shown that the petitioner having the knowledge of the requirement to inform the authorities and its consequences, deliberately hid the factum of his subsequent arrest in order to secure the employment. The relevant portion of the order dated 12.1.1999 is reproduced for facility of reference:

"It was obligatory on his (petitioner‟s) part to inform this department soon after his arrest in the said case in conformity with the clause mentioned in the application form prescribed for recruitment in Delhi Police as well as in the attestation form which he filled during the course of his recruitment in Delhi Police. But he did not disclose the facts of his arrest in the said criminal case, which amounts to concealment of fact. His plea that he was unaware of the procedure is devoid of any weight being the plea to be an afterthought. Besides this, ignorance of rules is no excuse. He intentionally concealed the facts.

His next plea that he has been acquitted in the said criminal case is also not tenable since his acquittal is not honourable due to non-supporting the case by main PWs. Here it is also worth mentioning that this plea of the Rectt. Constable Nirbhai Singh, No. 2408/N does not require any

WP (C) No. 894/2011 page 8 of 21 consideration, as the issue is that he concealed the fact of his arrest in the said criminal case."

From the foregoing it would be seen that the respondent authority, on the basis of the clause in the Application Form has rejected the plea of the petitioner of not being aware of the same, as an afterthought and treated the same as deliberate and intentional concealment. The authority in holding "ignorance of rules is no excuse" has treated it as a deeming provision akin to raising a statutory presumption."

After so holding, this Court referred to the order passed by the

tribunal which has concurred with the view expressed by the competent

authority and, thereafter, this Court proceeded to direct as follows:

"We accordingly set aside the order of the Tribunal dated 17.12.2002 as also order dated 12.1.1999 of the respondent authority and remand the case to respondent authority to consider the defence of the petitioner after granting him an opportunity of showing that he was not aware of the requirement of disclosing his involvement in a criminal case in future. The willful suppression and concealment is required to be established otherwise, without the aid of the deeming provision. The petitioner would appear before the concerned respondent authority on 27.12.2006. the respondent authority would decide the remanded matter within three months."

9. After the said order was passed, as has been indicated earlier, a

show cause notice was issued and the explanation of the petitioner was

WP (C) No. 894/2011 page 9 of 21 taken into consideration. After issuing notice to show cause and

considering the explanation, the competent authority passed the following

order:

"A Show Cause Notice for terminating his services from the force was issued to Rectt. Constable Nirbhai Singh, No. 2408/N vide this office endst. No. 12255/SIP-N dated 29.9.98, under sub-rule (1) of Rule 5 of CCS (Temporary Services) Rules - 1965 on the allegation that he concealed the facts of his involvement in case FIR NO. 100 dated 27.12.97 u/s 306/34 - IPC PS Mehna (Punjab) after submitting the application form for the recruitment as Constable in Delhi Police. As per warning mentioned at Sl.No.4 of the application form as well as in the attestation form at St.No.2, it has clearly been mentioned that in case after submitting these forms a candidate is involved and arrested in any criminal case, he will furnish its information immediately to DCP/II or IV Bn., DAF, failing which it would be considered as concealment of facts. Enquiry has been got conducted by DCP/II Bn. DAF and it has been found that a case FIR No. 100 dated 27.12.97 u/s 306/34 IPC PS Mehna was registered against him. He was arrested and was on Court bail. The case was challenged to Court on 27.3.98 and 17.4.98. However, he succeeded in joining the department on 27.3.98 (F.N.). He did not disclose the facts of his involvement/arrest in this criminal case even after joining the department which was obligatory on his part. He has thus adopted deceitful means in joining the department deliberately and knowingly.

The Show Cause Notice for termination was served upon him on 6.10.98 and he has submitted his reply in response to S.C.N. to this office on 20.10.98. He has

WP (C) No. 894/2011 page 10 of 21 taken plea that he was not aware of the provision on the subject. He has also submitted that he has been acquitted from the offences bythe Court of Sh. K.C. Suri Addl. Sessions Judge, Faridkot vide judgment dated 1.9.98.

I have gone through the reply submitted by Rectt.

Constable Nirbai Singh No. 2408/N on the pros and cons of the case as well as available record. He was involved and arrested in case FIR No. 100 dated 27.12.97 u/s 306/34-IPC PS Mehna (Punjab) after submitting the application form for recruitment as Constable in Delhi Police. It was obligatory on his part to inform this department soon after his arrest in the said case in conformity with the clause mentioned in the application form prescribed for recruitment in Delhi Police, as well as in the attestation form, which he filled during the course of his recruitment in Delhi Police. But he did not disclose the facts of his arrest in the said criminal case which amounts to concealment of facts. His plea that he was unaware of the procedure is devoid of any weight being the plea to be an after thought. Besides this, ignorance of rules is no excuse. He intentionally concealed the facts. His next plea that he has been acquitted in the said criminal case is also not tenable, since his acquittal is not honourable due to non-

supporting the case by main PWs. Here it is also worth mentioning that this plea of the Rectt. Constable Nirbhai Singh, No.2408/N does not require any consideration, as the issue is that he concealed the fact of his arrest in the said criminal case."

10. After so stating, the competent authority further noted that after

being in custody for a period of a month and a half, the petitioner had

joined the department and that is sufficient enough to establish that there

WP (C) No. 894/2011 page 11 of 21 was willful suppression and concealment on the part of the petitioner. The

authority also took note of the fact that during the personal hearing, the

petitioner did not disclose any new fact but only stated that he was from a

down-trodden family and did not have the knowledge of rules and had

not done anything intentionally and willfully. The same has not been

given credence by the authority concerned. The tribunal, while dealing

with the facet whether the order has been passed keeping in view the

observations and the guidelines of the High Court, has opined that the

respondents have re-examined the matter on the anvil of the rule; that the

order is a speaking and reasoned one stating the grounds based on which

the conclusions have been rested; that the respondents had done their best

to inform the individual concerned regarding the requirements inasmuch

as the Forms clearly spelt out the „Chetavani‟ (warning) that it was

obligatory on the part of the individual concerned to inform his/her

involvement in a criminal case in future; that there was no reliance on the

deeming provision; that the condition as to information of criminal case is

prominently displayed in the language which could be understood by the

candidate and the petitioner having passed matriculation in second

division with Hindi as a subject was very much aware of it; that the time

WP (C) No. 894/2011 page 12 of 21 gap between the selection and the detention was very short since the

petitioner had applied for the post in October, 1997 and the case was

registered against him in December, 1997; that he was detained in custody

for about two months before he joined his duties in March, 1998; that the

petitioner was the beneficiary of such concealment and the motive is tell

tale; that the plea that the petitioner was not aware of the requirement to

inform the authorities about his detention in future and could not

remember the same was not acceptable; that apart from making a bald

statement, nothing had been provided by the petitioner to support his

contention; that the very first page of the "Application Form" and the

"Attestation Form" eminently displayed the warning to the effect that if

after submitting the Application Form the applicant is detained or

prosecuted by any Court, the details must be furnished to the 3rd Battalion,

Armed Police, Delhi immediately and failure to do so would be deemed to

be suppression of information; and that it is not the case of the petitioner

that he had not understood the warning.

11. Criticising the order of the tribunal, it is contended by Mr.Krishan

Mohan, learned counsel for the petitioner, that neither the competent

authority nor the tribunal had understood the purport of the observations

WP (C) No. 894/2011 page 13 of 21 and directions of this Court and had again passed an order on the

touchstone of deemed suppression. It is urged by him that the detention

which pertains to a future event has its own signification and, therefore,

the nature of proof has to be different and that is what was exactly meant

by the Division Bench when the earlier orders passed by the tribunal and

the competent authority were quashed and the matter was remanded to

consider afresh without the aid of deeming provision. It is further

canvassed by him that it was obligatory on the part of the authorities to get

it established that there had been willful suppression and concealment and

the same having not been done, the order is vulnerable.

12. Mr. Sachin Datta, learned counsel for the respondent No.1 and

Mr.Sandeep Khatri, learned counsel for the respondent Nos. 2 and 3, per

contra, contended that what had been held by this Court is that the

defence of the petitioner is to be considered and, accordingly, a show cause

notice was issued to him, but in his explanation, he could only state that he

came from a down-trodden family and deserved to be reinstated. The

learned counsel for the respondents would further submit that considering

the factual matrix, the nature of the Forms and the surrounding

circumstances and in the absence of a proper defence, the order passed by

WP (C) No. 894/2011 page 14 of 21 the competent authority which has been concurred with by the tribunal

cannot be found fault with.

13. At this juncture, we think it appropriate to refer to the order of

selection which, inter alia, stated thus:

"Their appointment is on the basis of their self declaration. If the facts given by them are found incorrect in any material, their services will be terminated and they will be debarred from Government services in future, besides legal action."

14. After the training was over, the order of recruitment was issued on

15th July, 1998. The petitioner had filled up the Application Form on

6.10.1997. In the said Form, at the top, it has been mentioned „Chetavani‟

(Warning). Clauses 3, 4 and 5 which are in Hindi, on being translated,

would read as follows:

"3. Furnishing of any false information in this form or concealment of any correct information will be considered as an ineligibility, which can render the applicant ineligible for the job.

4. After filling and submitting this form if you, were ever confined, or were held guilty by any Court of law, or were deprived of anything, etc., then the information thereof regarding the aforesaid should be given in detail immediately to DCP, 3rd Battalion, Delhi Armed Police,

WP (C) No. 894/2011 page 15 of 21 Delhi - 9. Failure to do so will be considered to be concealment of correct information.

5. If at any point of time during the period of continuation of service, it is found that you have furnished any false information or have concealed truth, you will be terminated from the service."

15. On 10th October, 1997, the petitioner filled up the Attestation Form.

The English rendition of Clause 2 of the said Form which is in Hindi, reads

as follows:

"2. After filling and submitting this form if you, were ever confined, or were held guilty by any Court of law, or were deprived of anything, etc., then the information thereof regarding the aforesaid should be given in detail immediately to DCP, 3rd Battalion, Delhi Armed Police, Delhi - 9. Failure to do so will be considered to be concealment of correct information."

16. If the Application Form and the Attestation Form are read

conjointly, it is difficult to accept that there was no suppression of material

facts by the petitioner. This Court had remanded the matter on the

foundation that there cannot be a deemed presumption of suppression.

On a close scrutiny of the order passed by the competent authority, we are

of the considered opinion that the said authority has not presumed

suppression but has analysed the facts and arrived at the conclusion that

WP (C) No. 894/2011 page 16 of 21 there has been suppression of material facts. The stand of the petitioner

was only to the effect that he belonged to lower strata of the society but the

said plea of stratum would not obliterate the act done. The petitioner had

remained in custody for almost two months. There was not a big gap

between the date of release and the date of appointment. It cannot be

conceived that the petitioner, who was entering into the police force, could

not remember the warning in the Application Form or the stipulation in

the Attestation Form. It was too obvious to be ignored. In this context, we

may refer with profit to the definition of the word „suppression‟ from the

Law Lexicon of P. Ramanatha Aiyar which reads thus:

"Where there is an obligation to speak a failure to speak will constitute "suppression of a fact" but where there is no obligation to speak silence cannot be termed "suppression"."

17. In Black‟s Law Dictionary, „suppressio veri‟ has been defined thus:

"Suppression or concealment of the truth. It is a rule of equity, as well as of law, that a suppression very is equivalent to a suggestion falsi; and where either the suppression of the truth or the suggestion of what is false can be proved, in a fact material to the contract, the party injured may have relief against the contract."

WP (C) No. 894/2011 page 17 of 21

18. In this regard, we may fruitfully refer to the decision in Daya

Shankar Yadav v. Union of India & Ors, JT 2010 (13) SC 791 wherein a

two-Judge Bench of the Apex Court referred to the pronouncements in

Union of India & Ors. v. Bipad Bhanjan Gayen, (2008) 11 SCC 314, State

of Haryana & Ors. v. Dinesh Kumar, (2008) 3 SCC 222, R. Radhakrishnan

v. Director General of Police & Ors., (2008) 1 SCC 660, Secretary,

Department of Home Secretary, A.P. & Ors. v. B. Chinnam Naidu, (2005) 2

SCC 746 and Kendriya Vidhyalaya Sangathan & Ors. v. Ram Ratan

Yadav, (2003) 3 SCC 437 and came to hold as follows: -

"13.1. If the object of the query is to ascertain the antecedents and character of the candidate to consider his fitness and suitability for employment, and if the consequence of a wrong answer can be rejection of his application for appointment, or termination from service if already appointed, the least that is expected of the employer is to ensure that the query was clear, specific and unambiguous. Obviously, the employer cannot dismiss/discharge/terminate an employee, for misunderstanding a vague and complex question, and giving a wrong answer.

14. We do hope that the CRPF and other uniformed services will use clear and simple questions and avoid any variations between the English and Hindi versions. They may also take note of the fact that the ambiguity and vague questions will lead to hardship and mistakes and make the questions simple, clear and straightforward. Be that as it may.

WP (C) No. 894/2011 page 18 of 21

15. But in this case, the appellant is not entitled to any benefit of doubt on the question whether he knew the meaning and purport of questions 12(a) and (b). Even assuming that there was ambiguity in the English version of the questions, a reading of the Hindi version of the questions shows a clear indication of the information that was required to be furnished by the declarant. The appellant read the questions in Hindi and answered them in Hindi. We extract below an English translation of query 12(a) in Hindi to show that there was no ambiguity in regard to the question:

English Translation of the question in Hindi

"Have you ever been arrested for any offence or have been prosecuted or have been taken in custody or have been released on bail or have been fined/convicted by court of law or have been debarred/disqualified by any Public Service Commission from appearing at its examination/ selection or debarred from taking any examination/restricted by any university or any other educational authority/institution?"

(emphasis supplied)

15.1. The fact that a criminal case was registered against the appellant is not disputed. The fact that no criminal case was pending against him, when he gave the verification declaration in the year 2004, or the fact that he was not convicted or fined or bound down in any case, loses relevance, when he clearly suppressed the material fact that he was prosecuted and thereby made a false statement. Though the English version of the questions could have used a little more clarity, we cannot agree with the contention that he was misled into answering the question wrongly, as the Hindi version of the questions which were answered by the

WP (C) No. 894/2011 page 19 of 21 appellant did not suffer from any vagueness or ambiguity.

16. We are satisfied that the appellant had knowingly made a false statement that he was not prosecuted in any criminal case. Therefore, the employer (CRPF) was justified in dispensing with his services for not being truthful in giving material information regarding his antecedents which were relevant for employment in a uniformed service, and that itself justified his discharge from service. Consequently, we dismiss this appeal as having no merit."

[Emphasis added]

19. In the case at hand, it is absolutely clear that the query in the Forms,

both application and attestation, was neither vague nor complex. It was as

clear as noon day and as simple as transparency in the hardest truth,

allowing no room for doubt or confusion. Regard being had to the order

of remit, the defence (whatever it is worth) of the petitioner and the

reasons ascribed by the competent authority which have been concurred

with by the tribunal, the irresistible conclusion is that the petitioner had

suppressed the material facts and the same stands established beyond any

reproach.

20. In view of the aforesaid analysis, we do not find any illegality or

infirmity in the order passed by the tribunal and, consequently, the writ

WP (C) No. 894/2011 page 20 of 21 petition, being without any substance, is dismissed without any order as to

costs.

                                           CHIEF JUSTICE



JULY 12 , 2011                             SANJIV KHANNA, J.
pk




WP (C) No. 894/2011                                           page 21 of 21