Parmod Kumar vs Uoi & Ors.
2016 Latest Caselaw 1027 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C). 222/2006


                                           Decided on: 10.02.2016
       IN THE MATTER OF:

       PARMOD KUMAR                                   ..... Petitioner
                         Through:    Mr.Rajinder Dhawan and Mr.
                                     B.S. Rana, Advocates

                    versus


       UOI & ORS.                                   .....Respondents
                         Through:    Ms.Barkha Babbar and Ms.
                                     Dipanjali Tyagi, Advocates

       CORAM:

       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MR. JUSTICE SUNIL GAUR

%

     HIMA KOHLI, J. (Oral)

1. The petitioner, after being selected for the post of a Constable

with the respondents-CISF on 28th October, 1996, has assailed an

order dated 8th November, 2005, passed by the respondent No.3-

Director General-CISF, rejecting his revision petition against the

order dated 11th/13th November, 2004, passed by the Deputy

Inspector General-CISF (the Appellate Authority), imposing upon

him the penalty of removal from service.

2. The facts of the case are that in the year 1995-1996, the

respondents-CISF had issued an Advertisement for recruitment to

the post of Constables. The petitioner had applied in response to the

said advertisement, and on 28th October, 1996, he had appeared for

the examination at the CISF Unit, BSL/Bokaro and was declared

qualified. Prior to his formal appointment, the petitioner was

required to fill up an Attestation Form, which he had filled up on

14th November, 1996 and submitted to the respondent-CISF. In

Column No.12 of the said Attestation Form, the petitioner was

required to state as to whether he had ever been arrested or

prosecuted or kept under detention or bound down or fined by a

court of law or convicted by a court of law for any offence. Apart

from the aforesaid information required to be submitted by the

petitioner in Column No.12, the opening paras of the Attestation

Form had declared as below: -

"(i) The furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification and is likely to render the candidate unfit for employment under the Government.

(ii) If detained, convicted, debarred etc. subsequent to the completion and submission of this Form, the details should be communicated immediately to the authority to whom the Attestation Form has been sent earlier, failing

which it will be deemed to be a suppression of factual information.

(iii) If the fact that false information has been furnished or that there has been suppression of factual information in the Attestation Form comes to notice at any time during the service of a person, his services would be liable to be terminated."

3. At the time of submitting the Attestation Form, the petitioner

had replied in the negative to all the queries raised in Column

No.12. Thereafter, vide order dated 10th June, 1997, the petitioner

was recruited by the respondents as a Constable (GD).

4. What the petitioner did not reveal at the time of filling up of

the Attestation Form was that in the year 1995, pursuant to a

dispute that had erupted between his family and some of his

relatives on the paternal side, an FIR was registered against his

father and him (GR No.881/1995 at P.S. Suryagarha, District

Lakhisarai, Bihar) under Sections 341/323/447 and 307/34 of the

IPC. Furthermore, prior to his applying to the CISF for being

recruited as a Constable in the year 1995, the petitioner had

obtained anticipatory bail from the criminal court in respect of the

aforesaid FIR, which fact was also not intimated to the respondents.

5. After summons were issued to the petitioner and his father

(both as accused persons), they had appeared before the learned

Additional Chief Judicial Magistrate (in short ACJM), Lakhisarai,

evidence was led in the case and their statements were recorded

under Section 313 of the Cr.P.C.. Vide judgment dated 17 th April,

2003, the petitioner and his father were found guilty under Section

323 of the IPC and were convicted. Further, their bail-bonds were

cancelled and they were taken into judicial custody.

6. The respondents remained unaware of the above

developments all along and the things remained hunky dory on the

employment front of petitioner between 1997-2003, till 16th

September, 2003, when the respondents received a letter from the

District Prosecution Office, Sessions Court, Lakhisarai enclosing

therewith a copy of the judgment dated 17th April, 2003 passed by

the learned ACJM. In view of the aforesaid judgment, vide order

dated 24th September, 2003, a preliminary inquiry was directed

against the petitioner and he was called upon to submit his reply.

On 29th September, 2003, the petitioner had submitted a reply

admitting inter alia that the learned ACJM had imposed a sentence

of imprisonment for one year on him in Case No.GR 881/1995.

However, he claimed that the said case was false and stated that he

had been granted bail. He further informed the respondents that he

had preferred an appeal against the judgment of the learned ACJM

before the Sessions Judge, which was pending. Dissatisfied by the

reply furnished by the petitioner, vide order dated 29th November,

2003, the respondents dismissed him from service.

7. Aggrieved by the aforesaid order, the petitioner filed an

appeal before the Appellate Authority and vide order dated 17 th

March, 2004, he was reinstated in service with a direction to initiate

fresh disciplinary action against him under Rule 36 of the CISF

Rules, for suppression of factual information. As a consequence, a

fresh Memorandum dated 26th April, 2004 was issued to the

petitioner, leveling two charges against him. The first charge was of

deliberately furnishing wrong information and concealing correct

information from the Department in the Attestation Form and the

second charge was of failing to disclose the information to the

Department till as late as 28th September, 2003, that a criminal

case was pending against him where he had obtained anticipatory

bail and was issued summons by the criminal court in the year 2002

and that he had presented himself before the concerned court on

17th April, 2003, when he was awarded the punishment of

imprisonment for one year.

8. On 11th May, 2004, an Inquiry Officer was appointed to

inquire into the charges levelled against the petitioner. The

proceedings held before the Inquiry Officer have been perused by

us in the course of arguments. It is relevant to note that during the

Inquiry, the Inquiry Officer had posed several questions to the

petitioner. The relevant queries and the replies of the petitioner are

reproduced below for ready reference:-

"Question 3 Did you know that a FIR has been registered against you?

       Ans.             In respect of FIR, I only know that my
                        grandfather got a FIR registered in this
                        matter and later on the matter was
                        settled in a village panchayat. This was
                        informed to me by my father.
       Question 6       Why did not you mention about incident
                        of 14.11.1995 in case No.881/95 while
                        filling   up   the    attestation    form   on
                        14.11.1996?
       Ans.             Sir, I know that a panchayat had been
                        conducted in that matter and both the
                        parties    resolved    the   matter     hence
                        considering the matter to be over, I did
                        not mention about it in the attestation
                        form.
       Question 7       Is it in your knowledge that a settlement
                        has been prepared?
       Ans.             Sir, settlement papers were prepared.

Question 7(A) Can you present settlement prepared in the matter?

Ans. Sir, settlement papers in Suryagarha Police Station but it is difficult to find them now.

      Question 8    Were you ever arrested by Police or fined
                    by    court   or     trialed   before   your
                    recruitment in CISF?
      Ans.          Before recruitment in CISF, a false case
                    was leveled against me in the year 1995.
                    I came to know about the said case in
                    the year 2002 as informed by my father
                    and neither I was fined by any court nor
                    arrested by police.
      Question 9    Did you come to know that the matter
                    has gone to court?
      Ans.          Sir, I came to know that the matter has
                    gone in the court in the year 2002.
      Question 11   You   knew    that    case     No.881/95   is
                    pending in the court, did you inform the
                    department about it?
      Ans.          Sir, I was advised by my advocate to not
                    to inform the department and I was not
                    aware of departmental rules.

Question 13 Did you appear in the court at that time because case no.881/95 was decided on 17.04.2003?

Ans. Sir, I appeared in ACJM Court Lakhsarai on 17.04.2003.

Question 14 Why did you conceal/did not give the

information regarding conviction by court from/to the department from 17.04.2003 to 28.09.2003?

Ans. Before the order of conviction on 17.04.2003, bail was granted by ACJM Lakhisarai and an appeal was filed in the court of Addl. Sessions Judge-VIII Munger against the order of conviction. Sir, being an unaware of departmental rules, I did not inform the department about this case. Sir, if I have violated any rule then I apologize for it.

Question 15 When did you inform about case No.881/95 to the department?

Ans. Sir, for the first time, I informed the department on 29.09.2003 about this case."

9. Based on the findings of the Inquiry Officer, vide order dated

23rd July, 2004, the Disciplinary Authority imposed the following

punishment on the petitioner: -

"On the basis of abovementioned discussion I, under the power conferred upon me under Rule 32 read with List-1 and Rules 34(v)of the CISF Rules 2001, order that from the date of issuance of this order the pay of the charged employee should be reduced by two stages for two years from Rs.3500 to Rs.3350 in the time scale of Rs.3050-75- 3950-80-4590. I further order that he will not earn increment of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future increments in pay."

10. Aggrieved by the order passed by the Disciplinary Authority,

the petitioner preferred an appeal. After considering the

submissions made by the petitioner, the Appellate Authority issued

him a notice to show-cause dated 22nd September, 2004 expressing

an opinion that the penalty awarded by the Disciplinary Authority

was not commensurate with the gravity of the misconduct

committed by the petitioner and intimating him that it was proposed

to enhance the penalty imposed upon him to removal from service.

The petitioner was called upon to respond to the notice to show-

cause, which he did by submitting a representation dated 1st

October, 2004, whereafter he was given a personal hearing by the

Appellate Authority on 29th October, 2004. After considering his

representation, vide order dated 11th/13th November, 2004, the

Appellate Authority set aside the punishment awarded by the

Disciplinary Authority and imposed the penalty of removal from

service upon the petitioner. The petitioner preferred a Review

Petition against the order dated 11th/13th November, 2004, which

was rejected vide order dated 19th March, 2005 passed by the

Inspector General (I.G.), CISF stating inter alia that there were no

mitigating circumstances that deserved interference with the orders

passed by the Appellate Authority.

11. Aggrieved by the decision of the Appellate Authority, the

petitioner filed a Revision Petition before the Directorate General,

CISF on 14th June, 2005, which was also turned down vide order

dated 8th November, 2005, with the observation that there was no

ground made out for interference and the punishment inflicted on

the petitioner was commensurate with the gravity of the proven

misconduct on his part. The petitioner has challenged the aforesaid

orders in the present petition.

12. Mr. Dhawan, learned counsel for the petitioner, argues that

the petitioner had not made any disclosure about the pendency of

the FIR against him at the time of filling up of the Attestation Form

and nor had he made any mis-statement therein for the reasons

that the Attestation Form did not contain any column requiring him

to disclose any such information. He further states that the

Attestation Form was verified by the Local Police and as per their

verification report dated 15th August, 1998, there was nothing on

record against the petitioner. He submits that as the report of P.S.

Surajgarh was not against the petitioner, the respondent should not

have proceeded to take any action against him. Further, a fine line

is sought to be drawn between the terms "Prosecuted" and "Bound-

down", used in Column No.12 of the Attestation Form, to urge that

the petitioner had neither been "prosecuted" at the time of filling up

of the Attestation Form, in the year 1996, nor had he been "bound

down".

13. It is however, not denied that the petitioner had intimated the

fact of his conviction to the respondent on 29th September, 2003

i.e. after the respondent had received the letter dated 16 th

September, 2003 from the District Prosecution Office, Sessions

Court, Lakhisarai and after the order dated 24th September, 2003

came to be passed directing initiation of a preliminary Inquiry

against him. In support of his submissions that the impugned

punishment inflicted upon the petitioner is liable to be set aside,

learned counsel for the petitioner relies on following decisions: -

(i) (1991) 4 SCC 109 Union of India and Others v K.V.

Jankiraman and Others

(ii) (2011) 4 SCC 644 Commissioner of Police and Others v Sandeep Kumar

14. Per contra, learned counsel for the respondents disputes the

submissions made by the other side and states that the offer of

appointment issued to the petitioner vide letter dated 3 rd June,

1997 had clearly stipulated therein that he would be subjected to

the provisions of the CISF Acts and Rules and any other Rules and

Regulations of the Central Government that may be framed from

time to time. She particularly draws the attention of this Court to

para 1.16 of the CISF Recruitment Manual that refers to verification

of character and antecedents. The said para is reproduced

hereunder for ready reference: -

"1.16 No person will be appointed to the Force unless his character and antecedents are verified on the form of certificate of character (Annexure IV) by the concerned Dist. Magistrate or Sub-Divisional Magistrate or their superior officers as per instructions contained in the form. As soon as one is enrolled, his character and antecedents shall be verified through detailed verification in accordance with the procedure prescribed by the Central Govt. from time to time through the Dist. Magistrate/Deputy Commissioner of the District concerned or such other authorities as may be deputed by the Govt. from time to time.

(b) The verification roll shall be in CISF Attestation Form and after verification it shall be attached to the service documents of the individual concerned.

(c) The contents of 'warning' printed on verification roll should be fully explained to the individual and they may be cautioned that any attempts towards suppression of facts or submission of incorrect information is liable to render their appointment invalid.

(d) If a person is adversely reported upon in the verification roll by the local authorities his services will be terminated by giving him one month notice or one month's

pay in lieu thereof under CISF Rule 19 read with para 2(a) of Form of Agreement executed by him under Rule 15 of CISF Rules, 1969."

15. Learned counsel for the respondents contends that prior to his

formal appointment in the CISF, the petitioner was required to fill

up an Attestation Form, which he did on 14th November, 1996 and

he was conscious of the fact that certain warnings had been printed

on the very first page of the said Form. Despite the same, the

petitioner had proceeded to furnish false information and had

suppressed factual information in the said Attestation Form, thus,

rendering him ineligible for employment with the respondent-CISF.

To fortify her submission that the question of suitability of a

candidate lies within the exclusive domain of the

respondent/employer and the Court while exercising its power

under judicial review is not expected to examine the nature of the

criminal case, but is only required to satisfy itself as to whether the

petitioner had revealed all the material information to the

respondent at the time of seeking employment, learned counsel for

the respondents relies on the judgment of the Supreme Court in the

case of Devender Kumar v State of Uttaranchal & Ors. (2013) 9

SCC 363 and the judgment dated 17th November, 2015, passed by

a co-ordinate Bench of this Court in W.P.(C). 5291/2005 entitled

Praveen Kumar v. Ministry of Railways and Ors..

16. We have carefully considered the arguments advanced by

learned counsels for the parties and have examined the records as

also the decisions cited by both sides. The settled legal position on

the question of obtaining an appointment from the public authority

by concealment/misrepresentation of facts, was recently noted by a

Division Bench of which one of us (Hima Kohli, J.) was a member, in

W.P.(C). 7009/2005 entitled, "Manoj Kumar v. Union of India and

Ors." decided on 22nd January, 2016, wherein it was observed as

below: -

"11. Coming straight to the settled legal position on the issue of obtaining an appointment from a public authority by concealment/misrepresentation of facts, there are several decisions of the Supreme Court and High Courts that have consistently held that when an applicant gets an office by misrepresentation of facts or by playing a fraud upon the competent authority, such an order is unsustainable in the eyes of law on the principle that fraud vitiates even the most solemn proceedings and misrepresentation itself amounts to fraud. In the case of Delhi Administration through its Chief Secretary and Ors. vs. Sushil Kumar reported as (1996) 11 SCC 605, the Supreme Court had the occasion to examine a similar case where the appointment of the respondent therein to the post of a

Constable was refused by the Delhi Govt. and it was observed as under:-

"17. It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offence, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequence. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service." (emphasis added)

12. In the case of Devendra Kumar vs. State of Uttaranchal and Ors. reported as (2013) 9 SCC 363 where the Supreme Court was examining the validity of the termination of an employment to the post of a Constable obtained by the applicant by suppressing material facts at the time of his appointment, on a conspectus of the case law on the said point, including the judgments in the case of District Collector and Chairman, Vizianagaram Social

Welfare Residential School Society vs. M. Tripura Sundari Devi reported as (1990) 3 SCC 655, S.P. Chengalvaraya Naidu (Dead) by LRs vs. Jagannath (Dead) by LRs and Ors.

reported as AIR 1994 SC 853, Andhra Pradesh State Financial Corporation vs. GAR Re-Rolling Mills and Anr. reported as AIR 1994 SC 2151, Union of India and Ors. vs. M. Bhaskaran reported as AIR 1996 SC 686, United India Insurance Co. Ltd. Vs. Rajendra Singh and Ors. reported as AIR 2000 SC 1165, Ram Chandra Singh vs. Savitri Devi and Ors. reported as AIR 2004 SC 4096, Vice-Chairman, Kendriya Vidyalaya Sangathan and Anr. vs. Girdharilal Yadav reported as (2004) 6 SCC 325, A.P. Public Service Commission vs. Koneti Venkateswarulu reported as AIR 2005 SC 4292 and R. Radhakrishnan vs. Director General of Police and Ors. reported as AIR 2008 SC 578, the Supreme Court had held that suppressing material information itself amounts to moral turpitude, irrespective of the gravity of the offence. The following pertinent observations were made by the Supreme Court in the said case:-

"10. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that

eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

XXX XXX XXX

22. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case." (emphasis added)

17. Mindful of the guidelines laid above, we return to the facts of

the case in hand that are undisputed. Before the petitioner had

appeared in the examination for recruitment to the post of a

Constable in the respondent-CISF in October, 1995, a criminal case

had been registered against him in P.S. Suryagarh, District

Lakhisarai, Bihar. Admittedly, the petitioner did not furnish the said

information to the respondent either at the time of applying for the

post of a Constable, or at the time of filling up and furnishing the

Attestation Form. In fact, as noted above, the petitioner was

recruited in CISF, on 10th June, 1997 and it was only after the

passage of six years, when the District Prosecution Office, Sessions

Court, Lakhisarai had dispatched a copy of the judgment dated 17th

April, 2003, pronounced by the learned ACJM, Lakhisarai in Case

No.GR 881/1995, intimating the respondent that the petitioner had

been sentenced for imprisonment for a period of one year for an

offence committed under Section 323 of the IPC, that the petitioner

had admitted to his conviction on 29.09.2003. The records reveal

that not only was the petitioner aware of the institution of a criminal

case against him, but he had also taken steps to obtain anticipatory

bail in the said case in the year 1995, which had also happened

prior to his applying to the respondent for recruitment as a

Constable.

18. The contention of the learned counsel for the petitioner that

the Attestation Form did not specify that the applicant is required to

furnish any information with regard to any FIR registered against

him, is untenable and unfounded. Column No.12 of the Attestation

Form is crystal clear. The same poses a series of queries to an

applicant. A relevant extract of Column No.12 of the Attestation

Form, is as under: -

"12. (a) Have you ever been arrested?

(b) Have you even been prosecuted?

(c) Have you even been kept under detention?

(d) Have you even been bound down?

(e) Have you even been fined by Court of Law?

(f) Have you even been convicted by a Court of Law for any offence?"

19. It has also been rightly pointed out by learned counsel for the

respondents that the Attestation Form opens with a warning that if

detained, convicted or debarred subsequent to completion or

submission of the Form, an applicant is required to communicate

the relevant details to the concerned authorities, failing which it

shall be deemed that it was a case of suppression of factual

information. In the teeth of the said words of caution inserted in the

Attestation Form, the petitioner had elected to remain silent till he

was confronted with the order dated 24th September, 2003, wherein

preliminary inquiry was directed against him. By the said time, the

learned Additional Chief Judicial Magistrate had pronounced the

judgment dated 17.04.2003 and the petitioner was arrested. It is a

different matter that subsequently, on the petitioner preferring an

appeal against the said decision, the sentence imposed against him

was suspended. This will, however, not wipe away the fact that the

petitioner was all along aware of the grave and adverse

consequence of furnishing false information to the respondent or

the fact that the said false information would lead to his

appointment being rendered invalid. Therefore, an adverse

inference shall have to be drawn against the petitioner.

20. The submission of the learned counsel for the petitioner that

the petitioner comes from a rural background, was about 20 years

of age at the relevant time and his case was being conducted

mainly by his father and therefore, he was unaware of the fact

position of the said case, which should be sufficient ground to

extend him the benefits of the decision in the case of Sandeep

Kumar (supra), would not be of any assistance to him. As noted in a

subsequent decision of the Supreme Court in the case of Devender

Kumar (supra), the purpose of seeking the information by an

employer is not to find out or assess the nature or gravity of an

offence that may or may not result in a criminal case. The

information is required to be furnished to examine the character

and antecedents of an applicant and consider his suitability to

continue in service.

21. Rather, we are inclined to concur with the findings of the

Appellate Authority, who had observed that the act of the petitioner

could not be taken leniently and not only had he suppressed the

pendency of the criminal case against him at the time of his

employment in the CISF, while in employment, he had suppressed

the fact that he had been attending court proceedings, had obtained

bail and remained present in the Court at the time of his conviction.

If personnel belonging to a force like the CISF are let off by a lesser

penalty and continue to remain in service, it would erode the very

fiber of a disciplined force. The respondent-CISF being a disciplined

force is well entitled to impose the strictest of norms at the time of

the entry of an employee.

22. Furthermore, if the petitioner is treated on a different footing

and the norms are relaxed for him, it would result in causing

injustice to other similarly placed applicants, who were honest

enough to have disclosed their antecedents and based on the said

disclosures, the respondent had rejected their applications at the

very outset. While examining the impugned penalty awarded by

the respondents, the Court is not expected to examine the nature of

offence alleged against the petitioner and the consequences of the

criminal case.

23. We therefore, conclude that even if the petitioner has partly

succeeded in the appeal filed against the judgment of the learned

Additional Chief Judicial Magistrate, and the sentence imposed on

him stood suspended whereafter he has been placed on probation,

it would not count in his favour, for the reason that this Court in

exercise of its powers of judicial review is required to examine the

decision making process adopted by the respondents and not the

punishment ultimately imposed upon him, unless the same is

absolutely perverse or completely disproportionate to the nature of

the offence alleged against him. The respondent being a para

military force, cannot be expected to place confidence in a person,

who had suppressed material information at the time of his entry.

24. In the given facts and circumstances of the case, we find no

perversity in the impugned orders and so, they are upheld and the

present petition is dismissed as being devoid of merits. No orders as

to costs.

(HIMA KOHLI) JUDGE

(SUNIL GAUR) JUDGE FEBRUARY 10, 2016 s