Delhi High Court

Kumar Gorav vs Union Of India on 6 September, 2013

Author: Najmi Waziri

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Decided on : September 06, 2013
+     W.P.(C) 5609/2013 & CM 12425/2013
      KUMAR GORAV                              ..... Petitioner
                          Through :     Mr. K.K.Sharma, Sr. Adv. with
                                        Mr.Rajiv Bakshi and Mr.
                                        Bhanita Patowary, Advs.
                          versus
      UNION OF INDIA                                  ..... Respondent

Through : Sh. Amrit Pal Singh, CGSC with Sh. Utsav Sidhu and Ms. Gurjinder Kaur, Advocates along with Sh. Rakesh Kumar, Sr. Accountant, for R-1.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI (OPEN COURT)

1. Issue notice. Shri Amrit Pal Singh, CGSC accepts notice and

states that the petition can be disposed-off finally.

2. We have heard counsels for the parties.

3. The Writ Petition challenges the order of the Central

Administrative Tribunal ("Tribunal") dated 23rd May, 2013 in

O.A. No. 1852/2012 which upheld the termination of the

W.P.(C) No.5609/2013 Page 1 petitioner from his employment as Multi-Tasking Staff

("MTS") with the respondent (employer). On 4th January 2012

the petitioner accepted the appointment letter of 13th December

2011 for the post of MTS for a probation period of two years

from the date of his joining. He even attended a workshop in the

second week of February organised by the respondent

(employer) on "office procedure in computerised equipment".

On 27th April, 2012, he suddenly received a notice stating that

his services would stand terminated after expiry of one month

from the date on which the notice was served on him. No reason

or cause was assigned in the said notice of termination. His

representation against it failed to elicit any response from the

employer. Being aggrieved by the latter‟s silence and the

inexplicable notice, the petitioner challenged it before the

Tribunal.

4. The petitioner‟s appointment was subject to his accepting the

terms stipulated in the appointment letter, which recorded inter

alia, that the appointment was on a temporary basis and it could

be terminated - in accordance with the CCS (Temporary

W.P.(C) No.5609/2013 Page 2 Service) Rules, 1965 without assigning any reasons therefor.

Admittedly, the petitioner accepted this, as well as all the other

terms in the appointment letter. Indeed, in compliance of one of

the requirements of the appointment letter, the petitioner also

furnished the duly filled out Attestation Form, (Annexure VI

attached thereto). He then joined his employment. The dispute

arose when, by letter dated 27th April, 2012 ("termination

letter") the respondent gave notice of one month for

terminating the services of the petitioner. Perplexed by this

sudden development which carried no explanation or cause on

the face of it the petitioner made a representation to his

employer by letter dated 4th May, 2012 ("representation")

seeking reconsideration of the decision to terminate his service.

He reasoned that though no reason for the termination was

given in the termination letter, he was given to understand that

it was due to his likely furnishing wrong / false information in

the Attestation Form; that the failure to give particulars of

criminal proceedings pending against him was not intentional.

      He stated that his    uncle had some dispute with his father




W.P.(C) No.5609/2013                                          Page 3

regarding some ancestral property and the former - playing out

his threat to the petitioner‟s father, had maliciously and

vexatiously initiated criminal proceedings against the petitioner

as well as his brother to spoil the latter‟s future prospects. He

submitted that the Attestation Form was only in English -

which he was not sufficiently proficient in - and had it filled out

through another person, who in turn, being unaware of the

petitioner‟s family dispute, had inadvertently failed to provide

the particulars thereof in the Form. That no other criminal

proceedings are pending against the petitioner. He submitted

that that he had no intention to conceal / suppress any

particulars and that he ought to not be handed down such a

harsh punishment (i.e. of termination) for an inadvertent error.

He expressed his willingness to face any action that may be

taken against him in the event he was convicted in the criminal

proceedings. Finally, he pleaded that a more liberal view may

be adopted in the conspectus of the narrated facts and his

compelling familiar circumstances.

W.P.(C) No.5609/2013 Page 4

5. In support of his submissions before the Tribunal, the petitioner

relied on the judgements in General Officer Commanding,

Rashtriya Rifles v Central Bureau of Investigation and Anr.,

2012 (6) SCC 228; Government of NCT of Delhi and Anr. v

Amit Kumar, (order of this Court dated 12th July, 2010 in W. P.

No. 8929 of 2009); Government of NCT of Delhi and Ors. v

Jitender Kumar (order of this Court dated 20th December, 2007

in W. P. No. 8385 of 2002); Commissioner of Police, (order of

this Court dated 13th December, 2012 in W. P. No. 7748 of

2012); Ram Niwas v Municipal Corporation of Delhi, (order of

the tribunal in TA No. 955 of 2009, upheld by this court in its

order dated 27th July, 2010 in W. P. No. 2417 of 2010);

Government of NCT of Delhi and Ors. v Rajesh Kumar,

Dharender Kumar and Raja Ram, 1989 (2012) DLT 261 (DB);

Government of NCT of Delhi and Anr. v Robin Singh, 171

(2010) 705 DB. He also reiterated his contentions in the

representation before the Tribunal.

6. The respondent defended its actions contending that the

Attestation Form was in simple English and could be easily

W.P.(C) No.5609/2013 Page 5 understood by the petitioner with his level of educational

qualification but despite warnings printed on the form itself

against suppressing of information and against furnishing false

information, the petitioner wilfully furnished false information

in response to the query at para 12 (i) (b) of the Attestation

Form which asked: „Have you ever been prosecuted?‟ This

falsehood was discovered upon receipt of police verification

report. Consequently, the petitioner was terminated from service

as per the CCS (Temporary Service) Rules, 1965. Furthermore,

he being a temporary employee had no right to the post, nor any

right to be furnished any reason for his termination from

services especially in terms of the conditions stipulated in the

appointment letter. The respondent relied upon the judgement in

S. C. Patairiya v State of U. P., (order of the Allahabad High

Court dated 29th September, 2004 in W. P. No. 29899 of 1992)

in support of its contentions.

7. The Tribunal was persuaded by the employers‟ arguments and

the aforesaid impugned order, it dismissed the petitioner‟s case,

holding that since the applicant was still facing trial in a matter,

W.P.(C) No.5609/2013 Page 6 (an information he had not furnished in the requisite Attestation

Form), he could not be reappointed unless he was acquitted in

the said case. It observed:

"...No doubt the facts of this case are almost similar to those in the case of Commissioner of Police and Ors. v Sandeep Kumar (supra). In fact the dispute in which the applicant is involved is the one between his uncle and himself and his brother in respect of some family property. On the basis of his uncle's complaint against him and his brother, the police has registered FIR No. 64/2011u/s 341/323/506/34 IPC PS Kajwala and the consequential criminal case initiated against them is pending trial before the court. Offence under Section 341 IPC is "wrong restraining any person". Section 323 IPC deals with "voluntary causing hurt". Section 506 IPC deals with "criminal intimidation". Section 34 IP (sic: IPC) deals with "acts done by several persons in furtherance of common intention". None of them are serious offences which involves moral turpitude. They also do not fall within the category of rape, murder, dacoity etc. as observed in Sandeep Kumar's case (supra). But in this case the Applicant is still facing the trial. Unless, he is acquitted in the aforesaid case, he cannot be reappointed."

8. The Tribunal also held that the impugned notice of termination

had worked itself out and the Application before it had become

infructuous.

W.P.(C) No.5609/2013 Page 7

9. Before this court counsel for the petitioner has reiterated the

same contentions as made before the Tribunal. In addition, he

submitted that a criminal prosecution starts only after the

appropriate court frames charges or issues notice, as the case

may be, against an accused. He further submits that in the

present case the chargesheet was filed on 21 st July 2011, on

which summons were issued on 7th April, 2012 as aforesaid

petitioner had merely appeared before the court only on 24 th

May 2012 whereas the Attestation Form had already been filed

about five months earlier on 27th December, 2011, much prior

to the unfolding of the aforesaid sequence of proceedings before

the court. He submits that therefore, the petitioner could not

possibly have been able to mention that he was prosecuted in

paragraph 12 (i) (b) of the Attestation Form. He submitted that

because of the incidents prior to the aforesaid appearance before

court, the petitioner believed bona fide that the matter has been

patched-up a little while after the incidence of disputes with his

relatives. That the said proceedings are the outcome of family

disputes that are invariably vexatious in nature and his

W.P.(C) No.5609/2013 Page 8 prosecution is merely an attempt at harassment by his uncle. He

submits that the form was only in English - a language he was

not sufficiently proficient in and had therefore requested

another person to fill up the form for him. He submits that it

was out of sheer inability to understand or comprehend the full

import of the question at paragraph 12 (i) (b) of the Attestation

Form, that the answer thereto came to be given as "no"; that it

was a case of mistaken impression and not wilful suppression of

information

10. There can be no dispute to the proposition that the benefit of a

mistaken impression ought to be given to a person in the

position of the petitioner in contrast to one of deliberate and

wilful misrepresentation. This court draws support for this from

the judgment of the Supreme Court in State of Haryana and

Ors. v Dinesh Kumar, (2008) 3 SCC 222. A Division Bench of

this Court had occasion to consider the justifiability of

termination of services of an employee who had failed to

answer an identical question in a similar Attestation Form in

Bheem Singh Meena v Government of NCT of Delhi and Ors.,

W.P.(C) No.5609/2013 Page 9 2013 (2) SCT 791 (Delhi). In view of the employee in that case

having pleaded difficulty with the English language - the

relevant form being made available only in English- the court,

after looking at the varied scope and ambit of the term

"prosecution", observed:

"38. 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.

39. 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."

11. The Court went on to hold that susceptibility to confusion of

the contextual meaning of the word „prosecuted‟ was plausible,

in view of the constraints of proficiency in English expressed by

W.P.(C) No.5609/2013 Page 10 the employee and his consequent inability to correctly

understand the meaning and spirit of the word "prosecuted".

12. In State of Haryana v Dinesh Kumar (supra) the Supreme Court

had occasion to examine the actual meaning of the term "arrest"

and to hold that even Courts have had difficulty in interpreting

what the true import of the term "arrest", was, therefore a

layperson filling out an Attestation Form can hardly be found

fault with for misunderstanding the same.

13. The court notices that reply was sought to a succession of 11

similar questions in clause 12 (i) (a) to (k) of the Attestation

Form such as: whether the candidate had ever: been arrested;

prosecuted; kept under detention; been bound down; fined by a

court of law; convicted by a court of law for any offence,

etcetera. The petitioner‟s response to the said queries was in the

negative on his understanding of the expression "prosecuted"

and successively thereafter in the negative for the other queries

on the facts as they were.

14. This court is conscious of the principles laid down in the

Sandeep Kumar case, Commissioner of Police v Mehar Singh,

W.P.(C) No.5609/2013 Page 11 (Civil Appeal No. 4842 of 2013), Devendra Kumar v State of

Uttaranchal and Ors., (order dated 29th July, 2013 in Civil

Appeal No. 1155 of 2006) by the Supreme Court. However, the

recruitment in those cases was for police and paramilitary

forces. Insistence upon strict application of the material

disclosure standard was approved in those cases because the

courts were sensitive to the needs of disciplined and organized

forces. The facts are different in the present case inasmuch as

the petitioner has applied for a civil post, i.e., to the

Multitasking Staff of the Department of Posts. He did not intend

to withhold material information because of his difficulty in

understanding the import of the query relating to criminal

prosecution. In any case, according to him, the notice for

criminal prosecution was received almost five months after the

Attestation Form had been filled out - a fact not disputed by the

employer, and that the information submitted by him was a fair,

bona fide and genuine response to the query sought.

Accordingly, this court is of the view that the petitioner‟s case

stands on a different footing than the Sandeep Kumar case and

W.P.(C) No.5609/2013 Page 12 other similar cases. It would therefore be unfair for insistence

on his acquittal in the trial before he could be reappointed. In

any case, the notice of termination did not disclose any reason

for the action and it was never the case of the

respondent/employer that till the trial continues or till the

acquittal of the petitioner/employee, he could not be kept in

service or be reappointed. The representation of the petitioner is

said to have been rejected by the employer‟s letter dated

23rd/24th May, 2013 i.e. the same date on which the impugned

judgment was pronounced by the Tribunal. Evidently the said

rejection letter did not form a part of the proceedings before the

Tribunal and hence any reliance thereon by the latter would be

misplaced.

15. More particularly, in the Sandeep Kumar case, the Supreme

Court also observed:

"We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter.

When the incident happened, the Respondent must have been about 20 years of age. At that age, young people often commit indiscretion, and such indiscretion can often be condoned. After all, youth will be youth. They

W.P.(C) No.5609/2013 Page 13 are not expected to behave in as mature a manner as older people.

Hence, our approach should be to condone minor indiscretion rather than to brand them as criminals for the rest of their lives."

16. The judgement of the Tribunal delivered on 3 rd December,

2012 in O. A. No. 1796 of 2012 in Nitin Kumar Dabas v Union

of India and Anr. in which the employer was the same as in the

present case that is - Department of Posts is interesting. In

identical circumstances the applicant Nitin Kumar Dabas was

selected for Multitasking Staff in February 2011. He was

appointed under the CCS (TS) Rules, 1965 but in response to

the query at para 12 (i) of the Attestation Form had concealed

the factum of his being an accused in two criminal cases. His

services were terminated by a notice of identical date as in the

present writ petition, i.e. 27.04.2012. He too had contended

lack of adequate proficiency in English leading to the inaccurate

information being furnished in response to Para 12(i) of the

Attestation Form. He had contended that he had been falsely

implicated in the cases which had been subsequently

W.P.(C) No.5609/2013 Page 14 compounded interestingly the Tribunal when relying upon the

ratio in Pavan Kumar versus State of Haryana 1996 (4) SCC 17

held as under:

"12. In the above facts and circumstances of the case though there was concealment of the fact of his involvement in the aforesaid two criminal cases in the attestation form, yet it alone does not constitute the reason for his termination from service. We, therefore, allow this OA and quash and set aside the impugned notice dated 27.04.2012. Resultantly, the applicant shall be reinstated in service immediately but in any case within a period of four weeks from the date of receipt of a copy of this order. Of course, the applicant shall be careful in future career so that he shall not give any other opportunity to the respondents to accuse him of any of (sic) such concealment or untrustworthy action...."

17. This court is of the opinion that the Tribunal ought to have

passed the subsequent order (impugned in the present writ

petition) likewise, especially in view of the non-identical facts

and circumstances of both the cases and-all-the-more-so

because the same Judicial Member was a member of the Bench

which rendered judgements in both the OAs, i.e. of Nitin Kumar

Dabas and the present petitioner Kumar Gorav.

W.P.(C) No.5609/2013 Page 15

18. This Court finds no reason to differ from the views of the above

reasoning, given the facts of the present case. Accordingly, the

impugned judgement and order of the Tribunal is hereby set

aside. The petitioner is directed to be taken back in the same