Bheem Singh Meena vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 7329 Del

              * IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Date of decision:      21st   December, 2012

                         + W.P.(C) No.7325/2010


     BHEEM SINGH MEENA                                ..... Petitioner
                              Through:    Mr.R.K. Saini, Adv. with
                                          Mr. Vikas Saini, Adv.

                              Versus

     GOVT. OF NCT OF DELHI & ORS.                     .... Respondents

                          Through:        Mr.Ruchi Sindhwani, Adv.
                                          with Ms. Bandana Shukla,
                                          Adv. & Ms. Megha, Adv.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE J.R. MIDHA


GITA MITTAL, J

1. By way of this petition, the writ petitioner prays for quashing of

the orders dated 19th November, 2009 and 10th March, 2010 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi

dismissing OA No.3196/2009 and RA No.7/2010 filed by the petitioner.

2. The petitioner hails from village Matasula, Tehsil Todabhim,

District Kanauli in the State of Rajasthan and belongs to the reserved

category. He undertook the test conducted by the Delhi Subordinate

Service Selection Board (hereinafter referred to as `DSSSB'). Vide a

memorandum dated 17th November, 1999 the petitioner was offered

the post of Trained Graduate Teacher (Mathematics) [`TGT (Math.)'

hereafter] with the respondent. The appointment to the post was

effected by an order dated 7th December, 1999 and the petitioner duly

took charge of the post on 8th December, 1999.

3. The respondent thereafter required the petitioner to fill up an

attestation form for verification of his antecedents. The petitioner

filled up the attestation form on 13th December, 1999 which was duly

attested by the lecturer of the Government College, Karauli. It is here

that the troubles of the petitioner began. At serial no.11(b) of the

attestation form, the respondents had required the candidate to

answer in `Yes/No' to the query `Have you ever been prosecuted?'.

The petitioner answered the same in the negative as `No'.

4. After a long period of five years or so, on the 24th of December,

2005 the petitioner was required to fill up the attestation form afresh.

While filling this form, the petitioner states that he had virtually copied

out the information which he had given in the earlier attestation form.

5. The attestation form was sent for verification to the district

Kharoli, Kanauli, Rajasthan, who, vide letter dated 7th April, 2006,

intimated the respondent that a case under Sections 499/93, 147, 332,

353, 427 & 149 IPC was registered and charge-sheet vide letter

no.42/94 dated 30th April, 1994 was filed in the court of CJM, Karauli,

Rajasthan against the petitioner and that he was acquitted in the case

on 2nd November, 1994.

6. At this stage, a memorandum dated 21st June, 2006 was served

upon the petitioner including a letter dated 17th June, 2006, calling

upon the petitioner to explain as to why he had concealed the fact

regarding the case registered under Sections 499/93, 147, 332, 353,

427, 149 IPC and the charge-sheet vide no.42/94 dated 30th April, 1994

in the court of CJM, Karauli, Rajasthan against him.

7. The petitioner replied to the same by the letter dated 23 rd June,

2006 stating that he was "innocent and fabricated"; that thereafter he

was never asked to appear in the court; that vide the verdict dated 2 nd

November, 1994, he was acquitted; that he forgot about the incident

after the acquittal and the column was "oversighted" while filling the

form. The petitioner stated that he was residing in Delhi since July,

1996 and did not have any idea about the status of the case after

1996. He requested that in the light of his ignorance and oversight

while filling the form, the petitioner may be forgiven for his mistake.

8. The petitioner enclosed a letter of the SHO with the response

dated 23rd June, 2006.

9. The respondents thereafter issued a show cause notice dated

14th May, 2007. The petitioner was informed that he had suppressed

factual information in the attestation form which was in violation of the

CCS Conduct Rules and that he should explain as to why disciplinary

proceedings should not be initiated against him for the said

misconduct.

10. In response, the petitioner furnished a copy of the judgment

dated 2nd November, 1994 to the respondents under the cover of his

letter dated 16th June, 2007. A reply was also sent by the petitioner on

9th August, 2007 wherein the petitioner apologized for the unfortunate

event which was not deliberate. It was explained that since the

petitioner had been acquitted by the court, he did not deem it

important enough to inform about the same at the time of his

appointment. The petitioner referred to the same as "utter negligence

and shortsightedness". The petitioner emphasized that he had been

foolish but his actions were not deliberate or mala fide.

11. The respondents did not accept the explanation and issued a

charge-sheet dated 28th July, 2007 levelling the following charge

against the petitioner:-

"Sh. Bhim Singh Meena, TGT (Maths) at the time of his appointment to Directorate of Education, Govt. of NCT of Delhi as TGT, committed gross misconduct inasmuch as he submitted false information in the Attestation Form given to him by the Department which has resulted in concealment of facts and furnishing of false information and thereby the suppression of material information by him in the Attestation form."

12. The respondent proceeded to appoint an inquiry officer and

conduct a disciplinary inquiry under the CCS Conduct Rules against the

petitioner. The petitioner has complained that the proceedings

commenced and were concluded on 27th November, 2007 itself without

recording of any evidence on behalf of the department or the

petitioner. The inquiry officer submitted a report dated 30th January,

2008 to the disciplinary authority. The petitioner challenged the same

by his letter dated 9th April, 2008.

13. The disciplinary authority passed an order dated 19th June, 2008

accepting the inquiry report and imposed the penalty of removal from

the service upon the petitioner.

14. The petitioner's statutory appeal to the appellate authority was

dismissed by an order dated 1st June, 2009 which had been challenged

on the ground that the same was cryptic, non-speaking & passed

without disclosing reasons. The petitioner contends that this order was

passed in violation of the Government of India Decision No.1 below

Rule 15 of the CCS (CCA) Rules, 1965.

15. Aggrieved by these proceedings and orders, the petitioner filed

OA No.3196/2009 under the Central Administrative Act before the

Central Administrative Tribunal, Principal Bench, New Delhi which was

dismissed by the judgment dated 19th November, 2009. The petitioner

was advised that the Central Administrative Tribunal, has erred in its

judgment and there were errors apparent on the face of the record.

He consequently filed a review application before the Tribunal which

was rejected by the judgment dated 10th March, 2010. The petitioner

has filed the present writ petition assailing these orders.

16. In support of the writ petition, the petitioner has placed reliance

on the pronouncements reported at 171 (2010) DLT 705 (DB) Govt.

of NCT of Delhi & Anr. Vs. Robin Singh; (2011) 4 SCC 644

Commissioner of Police & Ors. Vs. Sandeep Kumar; 178(2011)

DLT 263 (DB) Rahul Yadav Vs. CISF & Anr., 179(2011) DLT 59

(DB) Kuldeep Kumar Vs. UOI & Ors. & 2010 (12) SCALE 477

Daya Sankar Yadav Vs. Union of India & Ors.

17. The writ petition is vehemently opposed by Ms. Ruchi Sindhwani,

learned counsel for the respondents who has drawn our attention to

the caution contained in the attestation form which notified the

candidate that furnishing of false information or suppressing of any

material information in the attestation form would be a disqualification

and would render the candidate unfit for employment under the

Government. The candidate was further cautioned that if false

information has been furnished or that any factual information has

been suppressed in the attestation form and it comes to the notice of

the Government at any time during the course of service, such service

shall be liable to be terminated. The candidates were warned even at

the end of the question in column no.11 about the said warnings at the

top of the form. It is urged that the petitioner has deliberately

concealed the material facts of his implication and prosecution in the

criminal case rendering him liable for penalty.

18. Ms. Sindhwani, learned counsel for the respondents has further

urged at great length that the petitioner has improved his explanation

each time he has given a representation and filed reply. In this regard,

our attention has been drawn to the petitioner's communications dated

23rd March, 2006; 9th August, 2007 which were in reply to the memo

served upon him and the petitioner's reply dated 9th April, 2008 sent in

reply to the respondents' memo dated 25th March, 2008. It has been

contended that the orders of the Disciplinary Authority, Appellate

Authority and Central Administrative Tribunal are justified. Placing

reliance on the Judicial pronouncement reported at (2003) 3 SCC 437

Kendriya Vidyalaya Sangathan & Ors. Vs. Ram Ratan Yadav, it

is urged that the suppression by the petitioner was of material

information and he deliberately made a false statement which has a

clear bearing on the character and antecedents of the respondent in

relation to his continuance in office. It is contended that consequently

the impugned orders are justified.

19. We have given our careful consideration of the above to the rival

contentions.

20. Before considering the factual matrix, it would be appropriate to

consider the principles laid down in the various judicial

pronouncements on the facts similar to those in the present case

placed before us. Learned counsel for the respondents has relied

upon the pronouncement of the Supreme Court reported at (2010) 14

SCC 103 Daya Shankar Yadav Vs. Union of India & Ors. wherein

the court was of the view that the purpose of seeking information is to

ascertain the character and the antecedents of the candidate so as to

assess his suitability for the post and, therefore, the candidate has to

answer the questions in the columns truthfully and fully. It was further

held that misrepresentation or suppression or false statement therein

by itself would demonstrate conduct and character unbefitting for a

uniformed security service. It was observed that when there is

suppression or non-disclosure of material information bearing on his

character, that itself becomes a reason for not employing the

declarant.

21. There can be no dispute at all with this proposition which

mandates a finding by the court of conscious and willful suppression or

non-disclosure of material information having a bearing on the

character of the candidate.

22. It is noteworthy that even in Daya Sankar Yadav Case

(Supra), the Court agreed with the petitioner that the English version

of the questions were involved and confusing. If the queries in 12(a)

and (b) in this case had been split into separate questions with

instructions, to provide clarity and precision, there would have been no

room for controversy. For example, if questions 12(a) and (b) had

been split up into five separate questions with a note as follows, there

would have been no confusion or ambiguity: a) Have you ever been

arrested or prosecuted or kept under detention? B) Have you ever

been bound down or fined or convicted by a court of law for any

offence?

The petitioner Daya Sankar in this case was, however, disentitled

to the benefit of doubt because he had taken a stand that there was

ambiguity in the English version of the question. However, the court

found that the form contained a Hindi version of the question which

showed clear communication of the information which was required to

be furnished. In this background, the court concluded that Daya

Shankar had clearly suppressed the material fact that he was

prosecuted and thereby made a false statement. It was further held

that 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. 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 question 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.

23. In the judgment reported at 180 (2011) DLT 640 DB Manoj

Kumar Vs. Commissioner of Delhi Police, also the court was of the

opinion that the petitioner was under obligation to state the facts in

terms of the questions posed and that when one is obliged under law

to speak the truth but conceals the same, tantamounts to suppression

of truth and expression of what is false. Reliance was placed by this

court on the pronouncement of the Supreme Court in (1997) 10 SCC

538 Collector of Customs, Calcutta Vs. Tin Plate Co. of India

Limited wherein the Supreme Court had stated that "suppression"

envisages a "deliberate" or "conscious omission" to state a fact with

the intention of deriving wilful gain. It was observed by the Supreme

Court that neither equity nor law comes to the aid of such a person.

24. Applying these principles in Manoj Kumar's case (supra), it

was held that the questions were clear and the petitioner had

"deliberately" and "consciously" answered the queries in the negative

only to gain the benefit of appointment. It is noteworthy that in this

case the petitioner who had sought appointment to the post of a

constable/driver in the Delhi Police force, was a matriculate. Further

the court observed that on a perusal of the forms and the warnings, it

is luminescent that furnishing of such information was imperative. It is

not such a form where one could miss the information required and

that it was not a complex one.

25. The pronouncement of this court dated 15th July, 2010 in WP (C)

No.1851/1993 Ashok Kumar Vs. Union of India & Ors. was also

premised on the conclusion that the petitioner had deliberately

concealed a material fact.

26. Again in the judgment dated 22nd March, 2011 passed in WP (C)

No.4060/2004 Abhishek Kumar Vs. CISF & Ors., this court had

held that the columns in the form were clear and self-explanatory and

that the petitioner was duty bound to have made a fair and candid

disclosure of the complete information. Furnishing false information at

the threshold of entering service, deserves to be seriously viewed.

27. The pronouncement in WP (C) No.117/1993 Joice Michael Vs.

Union of India dated 13th July, 2010, was to the same effect. This

court had concluded that the petitioner had deliberately and knowingly

concealed the material information in his attestation and verification

form.

28. Our attention has been drawn to the pronouncement of the

Supreme Court reported at (2003) 3 SCC 437 Kendriya Vidyalaya

Sangathan & Ors. Vs. Ram Ratan Yadav wherein the facts of this

case disclosed that the respondent's contention that he had not

correctly understood the contents of column 12 & 13 was rejected. In

this background, the termination of his services on the ground of

suppression of factual information in the attestation form was

sustained.

29. In the judgment dated 23rd March, 2010 passed in WP (C)

No.8507/2009 Rajesh Kumar Vs. Union of India & Ors., the

Division Bench of this court of which one of us (Gita Mittal, J) was a

member, considered similar facts. The petitioner had been tried by the

juvenile court and acquitted without any examination of witnesses or

cross-examination when he was barely of eight years of age. This

court held that in view of the tender age of the petitioner, the

registration of the FIR and the petitioner's acquittal could not have

been possibly recollected by him after passage of more than twelve

years. This court had also observed that the petitioner had received

just twelve years of education and was semi-literate. In these

circumstance, it was held that the failure to disclose the result of the

criminal case could not be construed as an act of wilful suppression on

his part.

30. Again in the judgment dated 27th July, 2010 passed in WP (C)

No.2417/2010 Municipal Corporation of Delhi Vs. Ram Niwas, a

Division Bench of this court examined the legality of the show cause

notice issued by the Municipal Corporation of Delhi against the driver-

respondent for suppressing the fact that two FIRs were registered

against him. The Tribunal had accepted the respondent's contention

that it was not a case of misrepresentation and concealment but was a

case of mistaken impression.

31. Given the nature of the query in the attestation form, this court

had further observed that the respondent having been acquitted in

both the cases which pertain to offence not involving moral turpitude

and considering the fact that the respondent had been working as a

driver since 1989 with a clear service record, the challenge by the

Municipal Corporation of Delhi was rejected and reinstatement of the

respondent had been directed.

Placing reliance on the judgment reported at 171 (2010) Delhi

Law Times 705 (DB) Govt. of NCT of Delhi & Anr. Vs. Robin

Singh, the court held that every wrong information may not

necessarily be deception. A person may be wrong, but under bona fide

belief that he is right, if he furnishes the information. This would not

be deception.

32. In the case reported at 179 (2011) Delhi Law Times 59 (DB)

Kuldeep Kumar Vs. UOI & Ors. wherein the petitioner was acquitted

of the charges punishable under Sections 452/323/504/506 of IPC, but

did not disclose the same while filling up a verification roll, while

seeking employment in ITBP, the court held that the petitioner filled up

the form in the year 2009, eight years after the incident and six years

after being acquitted. It was, therefore, apparent that the petitioner

had only hazy memories in his mind coupled with the fact that the

information sought was worded in a complex manner. Therefore, the

petitioner was entitled to the benefit of doubt of not deliberately

furnishing false information.

33. It is clear from the above that every case has to be considered in

the factual matrix laid down before the court. In order to sustain

dismissal from service on account of wrong information being

furnished in the attestation form, it is well settled that the authorities

and the court are first required to conclude that there was deliberate

and conscious suppression of material facts with the intent to secure

employment.

34. Let us see the query which the petitioner was required to answer

in the case in hand. An examination of the attestation form in the

instant case would show that the candidate was required to answer the

following query: `Have you ever been PROSECUTED?' A candidate was

therefore requested to give information about prosecution, if any.

35. The expression `prosecution' has different hues and colours. Its

scope and ambit varies. The Black's Law Dictionary defines

"prosecute" and "prosecution" thus:-

"Prosecute- 1. To commence and carry out a legal action. 2. To institute and pursue a criminal action against (a person).

Prosecution 1. The commencement and carrying out of any action or scheme 2. A criminal proceeding in which an accused person is tried."

36. The Oxford Dictionary defines "prosecute" as follows:-

"Prosecute- To follow up, pursue; to perservere or persist in, follow out, go on with (some action, undertaking, or purpose) with a view to completing or attaining it. To institute legal proceedings against (a person) for some offence; to arraign before a court of justice for some crime or wrong."

37. In the Advanced Law Lexicon Dictionary the expression

"prosecute" is defined as "to institute legal proceedings against (a

person) for some offence."

The expression "prosecution" therefore, may encompass

registration of a case or mean facing trial. It may require conviction

and/or punishment.

38. "Prosecution" when used in the context of "malicious

prosecution" has been the subject of voluminous discussion in judicial

pronouncements as well as legal debates. Even today we often find

that challenges/defences to actions for malicious prosecution are

premised on objections that the plaintiff was never "prosecuted" as he

was not convicted underscoring the interpretations of the expression

that are pressed by legally trained minds in courts.

39. The above narration shows that the expression `prosecute' as

used in the attestation form does not clarify as to whether mere

registration of the FIR against a candidate would amount to

prosecution or whether a charge-sheet has to be placed before a

competent court which could be treated as a prosecution. It does not

state as to whether the expression means having stood a trial or

suffering a conviction. For a layman, especially someone who is not

conversant with legal terms and not familiar with the finer nuances of

the English language, the word `prosecuted' may be synonymous with

imposition of punishment.

40. It has to be borne in mind that the expression "prosecuted" is

being construed in the context of a candidate filling the attestation

form. Such person even if is educated, is not a legally trained mind.

41. Coming to the query raised at serial no.11 in the attestation form

we find it is not possible to discern from the query as to what is the

exact nature of the information which is to be provided.

42. The petitioner has pointed out the several disadvantages which

he is facing. These are not disputed. The petitioner who was born on

15th June, 1973, hails from rural background and as per the annexures

on record is a member of a scheduled tribe. He is stated to have

undergone his education in the Hindi medium. It is urged that the

petitioner is not fluent with the English language. The test conducted

by the DSSSB was also undertaken by the petitioner in Hindi medium.

43. It is noteworthy that unlike attestation forms of other

organizations, the form was only in the English language.

44. The petitioner has stated that he had appeared before the court

only in the year 1994 to explain his innocence and was never called to

appear before the court. He further stated that he was living in Delhi

since July, 1996 and had no idea about the status of the case. His

acquittal vide the judgment dated 2nd November, 1999 was before he

joined the service on 8th December, 1999. The petitioner stated that

after his one appearance in the court, he had forgotten the incident.

45. The petitioner has also stated that he has never undergone any

police or judicial custody or court appearance. He states that he has

never been sentenced with fine or imprisonment. He has therefore

never been detained or arrested. The petitioner has stated that upon

his acquittal by the competent court by the judgment dated 2 nd

December, 1999, he believed that the case against him became "non-

est" in the eyes of law and did not amount to a prosecution. It was in

this "bona fide" understanding and ignorance that the petitioner "bona

fide" answered the query at serial no.11(b) in the negative. These

facts are not challenged before us.

46. Ms. Ruchi Sindhwani, learned counsel for the respondents has

urged at great length that the petitioner at different places has given

contradictory explanations. It is urged that in his explanation in the

letter dated 23rd June, 2006, the petitioner has pleaded "ignorance and

oversight". In the reply to the show cause notice dated 9th August,

2007, the petitioner has stated that it was not deemed important

enough. In the reply to the memo dated 25th March, 2008 while

admitting the mistake, the petitioner has stated that it was on account

of "naivety & imprudence".

47. The reference to these expressions in the communications from

the petitioner cannot be made in isolation but the entire gamut of facts

and circumstances have to be considered while construing the

petitioner's conduct as well as his statements made in the afore-

noticed communications. A bare perusal of these communications

written from the side of the petitioner as compared to the available

handwriting on the attestation form, would show that these

communications, though signed by the petitioner, have not been

written by him. The ignorance referred to in the letter dated 23 rd June,

2006 relates to the ignorance with regard to the meaning of the

expression "prosecuted".

48. The expressions "oversight", "not deemed as important enough"

and "naivety and imprudence" all refer to the failure to disclose the

case which was registered against the petitioner and, contextually

point towards the petitioner's contention that he could not

comprehend the nuances of the expression in the query which he had

to answer.

In fact, the letter dated 23rd June, 2006; reply to the show cause

notice dated 9th August, 2007 and the reply to the memo dated 25 th

March, 2008 show the candour of the petitioner who immediately on

the facts being brought to his notice; did not attempt to avoid his

mistake and gave the afore-noticed explanation for the same. We are

therefore unable to hold that there is contradiction in the afore-noticed

expressions. His contention that he believed that the case against

him became non-est upon the judgment of acquittal, appears to be

bona fide.

49. The expression "prosecuted" is certainly capable of confusion as

discussed above. The query is only in the English language. Given the

disadvantaged position of the petitioner and the background in which

he has received education, the explanation of the petitioner that in this

background he could not correctly understand the meaning and spirit

of the word `prosecuted' is plausible. There is every possibility that

the petitioner in good faith did not mention the case which had been

registered against him.

50. Our attention has also been drawn to the judgment dated 2nd

November, 1999 passed by Shri Murari Lal Sharma, Chief Judicial

Magistrate, Karoli, Rajasthan in the miscellaneous Criminal Case

No.18/94 whereby the appellant was acquitted in the afore-noticed

criminal case. The Trial Judge has clearly noticed that the appellant

was not named in the police complaint. The injured who had given the

name of the persons who had assaulted him, did not name the

appellant. There is no evidence at all which would suggest that the

appellant was involved in the incident in question. The appellant was

acquitted for this reason.

51. The petitioner had informed the respondents that he had never

called even to the police station or convicted or sentenced in the

matter. These facts have not been challenged by the respondents.

52. Yet another aspect of this case is that the form was required to

be filled by the letter year 24th December, 2005 more than eleven

years after the incident in the year 1993 and more than six years after

the acquittal in 1999. It is not disputed by the respondents that the

petitioner appeared in court only once. It is human nature to suppress

an unpleasant occurrence in the deep recesses of the mind. There

would be no reason to disbelieve the petitioner when he states that he

had even forgotten the incident. In the instant case, given the facts

and circumstances noticed above, it is not possible to definitely

conclude that the filling up of the form was a conscious and deliberate

act of suppression on the part of the petitioner.

53. After 1999, till his discharge, the petitioner has admittedly

continued to perform his duties competently, with sincerity and

devotion. The petitioner was posted at the Government Boys

Secondary School, J.J. Colony, Raghbir Nagar, Delhi. The petitioner has

placed reliance on letter dated 12th December, 2006 of appreciation

given to him by the employer. The petitioner showed 97% result in

academic session 2006-2007. By the letter dated 12th December,

2006, the Deputy Director of Education congratulated the petitioner on

his success stating that the department was "making new records

because of teachers like you who are improving their performance". It

is noteworthy that while in service, the petitioner had shown good

conduct from the 8th of December, 1999 till 19th of June, 2005 for a

period of eight and a half years.

54. So far as the challenge to the disciplinary proceedings is

concerned, the petitioner has assailed the same contending that it was

incumbent upon the inquiry officer to advise the petitioner regarding

services of a defence assistant. It is not disputed that the inquiry

officer did not advice the petitioner about the same. The petitioner

has complained that he was, therefore, denied reasonable opportunity

to avail the services of a defence assistant who would have assisted

him in framing his defence and submitting his reply to the defence in

the inquiry proceedings.

55. Our attention is drawn to the letter dated 31st October, 2007 sent

by the inquiry officer to the petitioner informing him that the

preliminary hearing of the case would be held by him on 15 th

November, 2007 with direction to the officer to attend hearing with

defence assistant, if any. The communication clearly stated that the

purpose of the preliminary hearing was to sort out preliminaries and to

lay down a time schedule for inspection of the listed documents and

submission of the list of additional documents and defence witnesses.

The inquiry officer further informed the petitioner that no witnesses

would be examined on the said date.

56. The inquiry officer was unable to attend the hearing and the

preliminary hearing was adjourned to 19th November, 2007. On 19th

November, 2007, the charged officer admitted that he had not given

the information regarding the FIR due to negligence and that this was

not deliberate and had apologized for the same. This stand was taken

by him in the written statement as well. It is on record that during the

inquiry proceedings, the inquiry officer has not given any opportunity

to the petitioner to engage the services of a defence assistant. It is

also a fact that the petitioner has nowhere admitted that he had failed

to give the information with any intention of concealing the same or

with any mala fide intention or had deliberately concealed facts or

furnished false information or suppressed material information in the

attestation form.

57. The department had served a list of witnesses along with article

of charge upon the petitioner by which they were going to prove the

charge. Instead of proceeding in the matter, no evidence was

recorded in the departmental inquiry. The petitioner was given no

opportunity to prove that the omission or negligence was not

deliberate or willful and or to establish his bona fide. Despite the

above, the inquiry officer submitted a report dated 29th December,

2007 finding the petitioner guilty of the charges leveled against him.

The petitioner submitted a representation dated 9th April, 2008 against

the same. However, by an order dated 19th June, 2008, the Director of

Education as disciplinary authority, accepted the recommendations of

the inquiry officer finding the petitioner guilty of the charge and

imposed the penalty of removal from service upon the petitioner with

immediate effect. The petitioner submitted an appeal dated 16 th July,

2008 to the appellate authority which was also rejected by an order

dated 1st June, 2009.

58. It is noteworthy that in Daya Sankar Yadav (supra) heavily

relied upon by the respondents, the Supreme Court had recorded its

decision that the appellant had knowingly made a false statement with

regard to the criminal case and, therefore, had held that the order of

suspension of his service was justified. In the instant case, it is not so.

59. In Daya Sankar Yadav Vs. Union of India & Ors. (Supra),

the Supreme Court has observed in para 7 that where non-furnishing of

a material information is due to absence of clarifying the question or

due to the candidate not being aware of the said information, it cannot

be said that he had suppressed material information or made false

statements.

60. In 2008 (3) SCC 222 State of Haryana Vs. Dinesh Kumar

the Supreme Court had considered the case of an employee who had

answered "No" to a query whether he was arrested. It was found that

subsequent to registration of FIR, he had voluntarily appeared before

the magistrate, without being taken into formal custody and was

granted bail and was ultimately acquitted. It was held that in such

circumstances, even if what transpired may technically amount to

arrest, the benefit of a mistaken impression rather than the

consequences of a deliberate and willful misrepresentation and

concealment of facts, should be extended to the employee.

61. The above narration would show that the only admission by the

petitioner is to the effect that he had not stated about the criminal

case on the form. At the same time, he had clearly explained the

reasons for the omission. The respondents were bound to have given

him an opportunity to prove his explanation. An act or omission per se

may not be dishonest or mala fide. The judicial pronouncements

noticed hereinabove have held that there must be deliberation or

willfulness in the conduct of a person filling the form in either giving

wrong information or suppressing factual information. There was no

evidence at all of willfulness or deliberation or dishonesty in the

omission of the petitioner. We may also note that the petitioner has

been denied the assistance of a defence assistant which the inquiry

officer was bound to have given. The statement on the communication

intimating the date is grossly insufficient inasmuch as appointment of

the defence assistant requires appropriate action and assignment by

the employer. In the circumstances of the case, it would appear that

the disciplinary inquiry was not in accordance with law and violated

principles of natural justice. The order of the disciplinary authority

dated 19th June, 2008 and order dated 1st June, 2009 of the appellate

authority would, therefore, not be legally sustainable.

62. We find that the Central Administrative Tribunal also agreed with

the disciplinary authority and the appellate authority in holding that

the petitioner had admitted concealment and, therefore, nothing more

was required to be established. However, this is not as per applicable

law laid down by the Supreme Court of India or by this court in various

judicial pronouncements notice heretofore.

63. In view of the above discussion, it has to be held that the order

dated 19th June, 2008 of the disciplinary authority; the order dated 1 st

June, 2009 of the appellate authority; as well as the orders dated 19th

November, 2009 in OA No.3196/2009 and the order dated 10 th March,

2010 in RA No.7/2010 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi, are not sustainable and hereby set aside

and quashed.

64. As a result, the petitioner would stand reinstated in service in

accordance with law. The petitioner would also be entitled to notional

seniority and any other consequential benefits. However, the

petitioner will not be entitled to back wages. Appropriate orders in this

behalf shall be passed in six weeks.

This writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE

(J.R. MIDHA) JUDGE DECEMBER 21st , 2012 aa -f