Delhi High Court
Dhara Singh Meena vs Govt. Of Nct Of Delhi & Ors on 14 October, 2015
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1715/2012
% Date of Judgment: 14th October, 2015
DHARA SINGH MEENA ..... Petitioner
Through: Mr. Ravinder Singh, Advocate.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Santosh Kumar Tripathi, ASC for
GNCTD/R-1.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. By way of the present petition, the petitioner challenges the order dated
18.11.2011 passed by the Learned Central Administrative Tribunal, New
Delhi in O.A. No. 637/2011, whereby the Tribunal was pleased to hold that
the suppression of material information and also giving false statement is a
serious misconduct and as such the petitioner cannot be allowed to be
retained in service.
2. To appreciate the controversy in hand, it would be necessary to give a brief
gist of the facts. The charge against the petitioner was that he had committed
gross misconduct inasmuch as he submitted false information in Col. 11 of
the attestation form given to him by the respondents department at the time
of his appointment and he not only concealed the material facts but has also
furnished false information. The aforesaid charge was served upon the
petitioner but he denied the same. Thereafter, an enquiry was conducted
under the provisions of Rule 14 of CCS (CCA) Rules, 1965 and the enquiry
officer held that the charge levelled against him stood proved. The
disciplinary authority considered the factual information that FIR No. 23/95
u/s 147,148,149,302,303 IPC was registered against the petitioner in Police
Station Toda Bhim on 18.12.1995. The charge sheet No.65 was prepared on
26.7.1995 in the aforesaid case and the challan was put up before the Court
of ACJ (JD) JM Hindon City (N.I) on 26.10.1996. It was during the
pendency of the aforesaid case that the petitioner had applied for the post of
TGT (Training) on 22.3.1999 with Delhi Subordinate Services Selection
Board (DSSSB for short). On having been selected he was offered
appointment by the Directorate of Education on 27.12.1999. Section 10 of
the letter of Offer of Appointment contains the following provisions:
"10) That if at stage it is found that any
information/declarations and submissions given by
the candidate is found false and any information
has been concealed. The appointment will be
terminated and he/she will be liable to proceeded -
-- in this manner deemed fit"
Thereafter, vide letter dated 03.01.2000, the petitioner accepted all the terms
and conditions of appointment including the aforesaid provisions contained
in Section 10. The petitioner also submitted an affidavit on a stamp paper
affirming that all the documents submitted by him along with his application
were genuine and if proved to be false subsequently his service shall be
liable to be terminated in addition to the penal action warranted in the
matter. Again, on 04.01.2000 he filled up the form for verification of
character antecedents, which also contains the following declarations:
"1.The furnishing of false information or
suppression of any factual information in the
attestation form which would be disqualification
and is unfit for employment under the Government.
2. If detained, convicted, debarred etc subsequent
to the completion and submission of this form, the
details should be communicated immediately to the
Union Public Service Commission on the Authority
to whom the attestation form has been sent earlier
as the case may be, failing which it will be deemed
to be a suppression of factual information.
3. If the facts or false information has been
furnished or that there has been suppression of any
factual information in the attestation form comes
to notice at any time during the service of a
person, his services are liable to be terminated."
However, having complete knowledge of the instructions above, the
petitioner deliberately concealed the facts of his prosecution and the
consequent penalty. In Section 11 of the Verification of Character and
Antecedents Form, there were specific questions whether any case was
pending against the petitioner in any court of law, whether he had been
arrested, prosecuted, detained, bound down, fined by a court of law,
convicted by a court of law etc. In response to all these questions, the
petitioner crossed out 'yes' option and ticked 'No'. As regards to the
question whether the petitioner was fined by a court of law, the petitioner
left it unanswered deliberately which shows that the petitioner was in a
dilemma whether to conceal or reveal the facts in his case. Moreover, even
after the judgment of Criminal Court was pronounced on 20.02.2003 and
declared him guilty under Section 147 (guilty of rioting) and under Section
323 (guilty of causing hurt voluntarily) of the IPC, he did not disclose the
same. On the other hand, it was the District Magistrate (DM for short)
Karauli who informed the respondents vide his letter dated 12.12.2003 that
the petitioner was found guilty under Section 147 and 323 of the IPC and
that the petitioner was released on a bail bond of Rs.1000 for a year along
with a sum of Rs.500 to be deposited as Prosecution Fee and subject to his
good conduct in future that the petitioner will not repeat his crime and shall
present himself before the Court whenever called upon. On the basis of
specific information provided by the DM, the respondents wrote to the HOS
GBSSS No.1 Tagore Garden on 24.1.2004 to call for an explanation from
the petitioner on the report of the DM. It was in response to the said letter
that the petitioner finally disclosed the fact of his conviction.
3. During the departmental enquiry, the petitioner took a different stand. In the
reply to the charge sheet dated 7.12.2004, the petitioner expressed ignorance
that his name had been included in the case in which he had been committed.
The petitioner in his deposition before the Inquiry Officer, has claimed that
he did not himself place on record the fact of the pending cases while
responding to column A to F of Sl. No.11 of the Attestation Form. He has
also submitted that since he was not punished at that time, it was not
necessary to record the information in the attestation form. However, the
petitioner in his representation dated 11.06.2007 accepted that he was
penalised with fine of Rs.500/- but stated that he did not disclose the fact as
he was under the impression that he has been discharged.
4. The petitioner was also given an opportunity for personal appearance before
the disciplinary authority on 31.03.2010 but the petitioner failed to appear.
Instead, the petitioner submitted the representation on 31.3.2010 repeating
his submissions made by him earlier. The petitioner further prayed that he
was an ST candidate and he has a large family dependent upon him.
However, the disciplinary authority came to the conclusion that the
petitioner got his job by concealing information about the criminal case
pending against him under grave Sections of the IPC under Sections
302,323,147, 148, 149 etc. It has also been held that if the petitioner had
revealed about his involvement in such criminal act, the petitioner would not
have been offered the appointment. Accordingly, the disciplinary authority
has imposed the punishment of penalty of dismissal from service upon the
petitioner vide its order dated 11.08.2010.
5. The petitioner preferred an appeal against the aforesaid order of the
disciplinary authority but the same was rejected by the Appellate authority
vide its order dated 10.11.2010 holding that the petitioner had not made out
any case in his appeal warranting interference with the orders of the
disciplinary authority.
6. Thereafter, the petitioner challenged the orders of the disciplinary authority
as well as the Appellate Authority in the Original Application on the ground
that the order of dismissal passed by the disciplinary authority is without any
application of mind, arbitrary and hence not sustainable in the eyes of law.
7. The learned Counsel for the petitioner has submitted that he was not
supplied with material documents, namely, application form, attestation
form so that he could come to know as to whether there was any
concealment on his part. The learned counsel for the petitioner has also
submitted that the petitioner was not given a copy of the enquiry report as
the report which was given to him is that of one Sh. Ramesh Chander, Head
Clerk, the presenting officer and also he was not supplied the copy of
documents as mentioned therein. The learned counsel for the petitioner
further submitted that even though the respondents became aware of the
incident immediately on its occurrence but they failed to take any action for
a considerable period of time. The petitioner further added that on
09.02.1995 the case was filed against the petitioner under Section
323/302/149/336/148/147 of IPC but he was not convicted for any heinous
crime except u/s 147, 323 of IPC and he was awarded with fine of Rs.500/-
along with furnishing a bond of good conduct.
8. Learned counsel for the petitioner submitted that the penalty of the dismissal
from the service is arbitrary, grossly excessive and out of proportion as
compared to the offence as the order of dismissal from service with
disqualification for future employment in Government Department was too
harsh and oppressive.
9. Counsel for the petitioner further submitted that the conviction of the
petitioner under Section 323 and 147 of Indian Penal Code does not
necessarily disqualify the petitioner from a government job as the same is
not an offence of moral turpitude. Furthermore counsel for the petitioner
submitted that the Learned Trial Court directed the petitioner to furnish a
bond in the sum of Rs. 1000/- for one year which demonstrates that the
culpability of the petitioner was of a minor nature and the penalty of the
dismissal from the service does not commensurate with the offence allegedly
proved and the same is arbitrary, grossly excessive and out of all proportion
to the offence committed and not warranted by the facts and circumstances
of the case.
10. The Counsel for the petitioner submitted that the impugned order failed to
take note of the settled principle of law of estoppel, waiver and acquiesce.
Furthermore, the Counsel for the petitioner submitted that the respondents
while passing the order of dismissal and disposing of the appeal had not
considered that the alleged incident came to knowledge and notice of the
respondents immediately thereafter on its occurrence but the respondents
have chosen not to take any action against the petitioner.
11. The Counsel for the petitioner submitted that the petitioner has unblemished
record in his entire service career and no complaint was ever found or made
against him.
12. Whereas the Counsel for the respondent submitted that the petitioner
concealed the information that an F.I.R No. 23/1995 was registered on
18.02.1995 u/s 147,148,149,302,303 against certain persons including the
petitioner before joining the respondents' school as TGT (Drawing) in the
year 2000. Counsel for the respondent further submitted that the order by the
Learned Trial Court came on 20.02.2003 whereby the petitioner was held
guilty u/s 147,323 of IPC and fined Rs. 500/- by the Learned Trial Court and
was released on probation subject to furnishing bail bond of Rs. 1000 for
one year and to remain present as and when required by the court during the
said period.
13. The Counsel for the respondent to further support his case relied upon a
judgment of Apex Court in the case of KVS Vs. Ram Ratan Yadav, AIR
2003 SC 1709.
14. We have heard the learned counsel for the parties.
15. The law relating to the interference in the punishment by the court is well
settled by the Apex Court. The interference with the punishment can only
be after coming to the conclusion that the punishment was in outrageous
defiance of logic, perverse, irrational and shocking. In B.C.
Chaturvedi v. Union of India : (1995) 6 SCC 749 a three-Judge Bench
held as under: (SCC p. 762, para 18)
"18. ... The High Court/Tribunal, while exercising
the power of judicial review, cannot normally
substitute its own conclusion on penalty and
impose some other penalty. If the punishment
imposed by the disciplinary authority or the
appellate authority shocks the conscience of the
High Court/Tribunal, it would appropriately
mould the relief, either directing the disciplinary
authority/appellate authority to reconsider the
penalty imposed, or to shorten the litigation, it may
itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in
support thereof."
16. In Chairman cum Managing Director, Coal India Limited and Anr. v.
Mukul Kumar Choudhuri and Ors.: (2009) 15 SCC 620 , Hon'ble Apex
Court held:
"26. The doctrine of proportionality is, thus, well
recognized concept of judicial review in our
jurisprudence. What is otherwise within the
discretionary domain and sole power of the
decision maker to quantify punishment once the
charge of misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which is out
of proportion to the fault. Award of punishment
which is grossly in excess to the allegations cannot
claim immunity and remains open for interference
under limited scope of judicial review. One of the
tests to be applied while dealing with the question
of quantum of punishment would be : would any
reasonable employer have imposed such
punishment in like circumstances? Obviously, a
reasonable employer is expected to take into
consideration measure, magnitude and degree of
misconduct and all other relevant circumstances
and exclude irrelevant matters before imposing
punishment..."
17. In Dev Singh v. Punjab Tourism Development Corporation Ltd. and
Anr. :(2003) 8 SCC 9, the Apex Court while observing that a Court sitting in
appeal against a punishment imposed in the disciplinary proceedings will not
normally substitute its own conclusion on penalty. The Court however, held
that if the punishment imposed by the disciplinary authority or the appellate
authority shocks the conscience of the court, then the court would
appropriately mould the relief either by directing the disciplinary/appropriate
authority to reconsider the penalty imposed or to shorten the litigation it may
make an exception in rare cases and impose appropriate punishment with
cogent reasons in support thereof. In the case before it, the court, noticing
that the charge established against the appellant was not motivated by any
ulterior consideration and at the most could be an act of negligence,
substituted the penalty imposed upon him by punishment of withholding one
increment stoppage at the efficiency bar and also directed that he would not
be entitled to any back-wages for the period of suspension.
18. On perusal of facts and submissions advanced by the counsel for both the
parties, we are of the considered view that the punishment imposed by the
learned Tribunal dismissing the petitioner from his service is harsh and
would cause injustice to the petitioner. F.I.R. No. 23/1995 was registered
on 18.02.1995 u/s 147,148,149,302,303 against the petitioner although the
learned Tribunal failed to consider that the petitioner was only charged u/s
147,323 of IPC and fined Rs. 500/- by the Ld. Trial Court and was released
on probation subject to furnishing bail bond of Rs. 1000/- for one year and to
remain present as and when required by the court during the said period.
This clearly shows that the offence for which the petitioner was charged by
the Learned Trial Court was not grievous in nature and therefore, in the
present case the order of dismissal from service is not appropriate.
19. To meet the ends of justice, the order of the Central Administrative Tribunal
is modified to the extent that :-
a) The petitioner is entitled to reinstatement with continuity in service.
b) The petitioner will not be entitled to any back-wages.
The writ petition is accordingly disposed of. There shall be no orders as to
costs.
SANGITA DHINGRA SEHGAL, J
G. S. SISTANI, J
OCTOBER 14, 2015
sc
