Manoj Kumar vs Union Of India And Ors.
2016 Latest Caselaw 482 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    W.P.(C) 7009/2015

                                    Reserved on : 13.01.2016
                                    Pronounced on : 22.01.2016
IN THE MATTER OF:

MANOJ KUMAR                                        ..... Petitioner
                        Through: Mr. Rajendra Prasad, Advocate.


                        versus


UNION OF INDIA AND ORS.                       ..... Respondents
                    Through: Mr. J.K. Singh, Advocate.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HON'BLE MR.JUSTICE R.K. GAUBA


HIMA KOHLI, J.

1. The petitioner prays for issuance of a writ of certiorari for

quashing the Memorandum dated 15.6.2015 issued by the

respondent/Railway Protection Force (RPF) discharging him from

training with immediate effect and cancelling his selection to the

post of Constable.

2. The undisputed facts of the case are that the respondent /RPF

had invited applications for recruitment to the post of Constables

vide Employment Notice No.1/2011. In the recruitment

advertisement, the applicants were called upon to declare as to

whether any case was registered against them or they had ever

been arrested or prosecuted. The petitioner had applied in response

to the said advertisement and he was selected and asked by the

respondent/RPF to report for training. At the time of presenting

himself for training, the petitioner was required to fill up an

Attestation Form furnishing inter alia, certain information. In

column no. 12 of the Attestation Form amongst others, the

petitioner was required to state if he had ever been arrested,

prosecuted, kept under detention, bound down or fined/convicted

by any court of law. Apart from the Attestation Form, the petitioner

was also required to furnish an affidavit declaring inter alia if he

had ever been arrested, prosecuted, kept under detention, bound

down or fined/convicted by any court of law for any offence or

debarred or disqualified by any Railway Recruitment Board or any

Recruitment Board/Commission of the Govt. of India or any State

of India. He was also called upon to state if any case was pending

against him in any Court of law.

3. The replies submitted by the petitioner to the queries posed

in column no. 12 of the Attestation Form dated 10.6.2014 were

all in the negative. Similarly, in his affidavit dated 13.10.2014, the

petitioner had denied having ever been arrested, prosecuted, kept

under detention, bound down or fined/convicted by any court of

law. He had also denied that any case was pending against him in

any Court of law.

4. While undergoing his official training but before reaching the

stage of practical training, the petitioner's police verification report

was received by the respondent No.2/RPF from S.P., Janpad Shamli

(U.P.), which revealed that a case had been registered against him

at P.S. Kandhala, U.P., vide Crime No. 113A/2011 under Sections

147,148,149,323,324,352,504,506 of the IPC.

5. Immediately upon receiving the aforesaid information, a

notice to show cause dated 4.5.2015 was issued to the petitioner.

In his representation dated 6.5.2015, the petitioner admitted to the

fact that a case was registered against him at P.S. Kandhala, U.P.

but he claimed that he had been acquitted in the said case and his

name was excluded in the FIR. He also sought to explain that since

he was never detained in police custody/judicial custody, he

thought that it was not necessary for him to state the said facts in

the Attestation Form and the affidavit.

6. Taking note of the fact that the petitioner had admitted the

registration of a criminal case against him in the year 2011 and

gone on to state that he was acquitted in the said case and the said

fact had been withheld by him in the Attestation Form and the

affidavit, vide impugned Memorandum dated 15.6.2015, the

petitioner's selection to the post of Constable in the RPF was

cancelled on the ground that he had contravened Para 9 of the

Advertisement for selection of Constables in RPF/RPSF and Para 1

of the Attestation Form and had made a false declaration in the

affidavit.

7. Learned counsel for the petitioner had argued that no FIR

was registered against the petitioner and no charge sheet was

framed against him and nor had he ever been arrested for any

offence in any Police Station including PS Kandhala, U.P. and

therefore, the petitioner did not consider it necessary to furnish the

relevant information in the Attestation Form and the affidavit. He

contended that the police had erred in giving an adverse report at

the time of the petitioner's verification which is liable to be quashed

and he is entitled to be reinstated in the service.

8. In their counter affidavit, the respondent Nos.1 and

2/RPF have referred to Para 9F of the Employment Notification

No.01/2011 that mentioned that false declaration is an offence

under the law and would lead to disqualification of the applicant

and to dismissal from service, if employed, apart from institution of

a criminal case. Similarly, it has been stated in the first para of the

format of the Attestation Form prescribed in the employment notice

that furnishing false information or suppression of any factual

information would lead to disqualification of the applicant and

render the candidate unfit for employment and if appointed, would

result in dismissal from service. In this context, reference was also

made to Letter No. 88(e) RC-3/6 (IR) (TRG) dated 16.11.2005,

issued by the Ministry of Railways stating inter alia that furnishing

of false information or suppression of factual information in the

Attestation Form shall make the candidate unfit for the course.

9. Counsel for the respondents stated that the petitioner had

admittedly suppressed material facts and given false information

which had resulted in issuance of the impugned Memorandum,

cancelling his selection to the post of a Constable in the RPF. In

support of his submission that the respondent No.2/RPF is justified

in issuing the impugned Memorandum, learned counsel had relied

on the judgment dated 17.11.2015, pronounced by a Co-ordinate

Bench in W.P.(C) No. 5291/2015 Pravin Kumar vs. Ministry of

Railway & Ors.

10. We have perused the averments made in the petition and the

counter affidavit and heard the arguments advanced by learned

counsels for the parties. The original records of the case handed

over by learned counsel for the respondents have also been

carefully examined.

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)

13. The facts of the instant case are undisputed. On receiving the

notice to show cause, vide his representation dated 5.7.2015, the

petitioner had conceded that a case had been registered against

him in the year 2011 in Police Station Khandala, U.P. He has also

admitted to the fact that he did not furnish the said information

either at the stage of applying for the post of Constable or while

furnishing the Attestation Form and the affidavit before joining his

training. In fact, the petitioner had remained dead silent till the

respondent No.2/RPF undertook a verification of the information

furnished by him and only then did it learn of a criminal case filed

against the petitioner, vide Crime No. 113A/2011 and proceeded to

issue a notice to show cause to him. While the petitioner accepted

the fact that Case No.278/2011 was pending against him before the

Judicial Magistrate, District Kairana, U.P., he, however, claimed

that the police had wrongly given an adverse report against him

which was liable to be quashed.

14. The order sheet reveals that on 02.11.2015, the predecessor

Bench had directed the petitioner to place on record the relevant

documents with regard to the FIR that had named him. However,

compliance has not been made. Instead, learned counsel for the

respondents had handed over the original records of the case which

contains a certified copy of the judgment dated 21.12.2011, passed

by the competent criminal court in Case No.278/2011, arising out

of Crime No.113A/2011. As emerges from a perusal of the

aforesaid judgment, the incident in question had taken place on

21.3.2011, when the petitioner along with four others had allegedly

barged into the residence of the complainant, armed with lathis,

swords etc. and the accused had abused and thrashed the

complainant, his wife, son and daughter-in-law due to which they

had sustained injuries. On hearing the hue and cry, the neighbours

of the complainant had come to their rescue. The FIR lodged

against the petitioner and four others was registered under

Sections 147,148,323,324 IPC read with Sections 149, 352,504 and

506 IPC. A perusal of the judgment dated 21.12.2011 reveals that

the complainant (PW-1), PW-2 and PW-3 (family members) had

turned hostile and in those circumstances, all the accused including

the petitioner herein were acquitted on the ground that they were

entitled to benefit of doubt.

15. In light of the aforesaid facts, the contention of the learned

counsel for the petitioner that his client had inadvertently not

furnished the relevant information while filling up the Attestation

Form and the affidavit, is unacceptable. Contrary to the

submissions made on behalf of the petitioners that no FIR was

registered against him, no charge sheet was framed against him

and nor had he ever been arrested in any criminal case, in the

course of verification of the information furnished by the petitioner,

the respondent No.2/RPF had come across Crime No.113A/2011

registered against him at PS Kandhala, U.P. It is only when the

respondent No. 2/RPF discovered of its own that there was

"Suppressio Veri and Suggestio Falsi" on the part of the petitioner

in his Attestation Form and the affidavit, that the notice to show

cause was issued to him.

16. The Attestation Form required to be filled up by the petitioner

runs into five pages and 13 columns. Column No.12 of the form

requires an applicant to state in the affirmative or negative, if the

candidate had ever been arrested, prosecuted, kept under

detention, bound down or fined by a court of law. The petitioner

had filled up the said form on 10.6.2014 and by the said date, the

competent criminal court had pronounced a judgment dated

21.12.2011 in Criminal case No.278/2011, arising out of Crime

No.113A/2011 acquitting the petitioner along with the other

accused by giving them benefit of doubt. Despite the said fact

being well within the knowledge of the petitioner, who had

participated in the said proceedings and had remained on bail

through out the pendency of the case, he had responded to all the

five queries raised in column No.12 of the Attestation Form by

replying in the negative.

17. Similarly, in his affidavit duly attested on 13.10.2014, the

petitioner had yet again reiterated that he had never been arrested,

prosecuted, kept under detention or fined/convicted by any Court

of law for any offence, nor had he been debarred or disqualified by

any Railway recruitment Board or any Recruitment

Board/Commission of the Govt. of India or of any State of India,

when he was all along cognizant of the fact that the said

declaration was patently false. He was also aware of the

consequences of furnishing false information as the Employment

notice had itself spelt out that a false declaration would lead to

disqualification. It is of no consequence that petitioner was

ultimately acquitted by the criminal court by giving him benefit of

doubt. What is relevant is that the petitioner had indulged in

suppressing material information at the time of his selection and

appointment, which itself would be a ground to terminate his

service, even if he stood acquitted or discharged. The respondents

are well entitled to claim that considering the fact that the

petitioner's appointment is to a public post, his antecedents are of

great significance and if not found desirable, they need not appoint

him to the said post.

18. Suppression of material information for purpose of verification

of the character and antecedents of an applicant/employee and

making a false statement would certainly have a bearing and in

case of misrepresentation, the employment secured by him would

be voidable at the option of the employer. It was not for the

petitioner herein to decide whether the information called for by the

respondents was relevant or irrelevant. Having obtained

employment on the basis of false information furnished by him at

three different stages, i.e., at the stage of submitting his

application, then at the stage of filling up the Attestation Form and

finally, at the stage of making declarations in his affidavit, the

petitioner is disentitled to any relief.

19. We are, therefore, not inclined to accept the submission

made by the learned counsel for the petitioner that the

Memorandum dated 15.06.2015 issued by the respondent

cancelling the selection of the petitioner to the post of Constable in

the RPF, deserves interference. For the reasons stated above, the

present petition is dismissed being devoid of merits with no order

as to costs.

                                                         (HIMA KOHLI)
                                                           JUDGE




                                                            (R.K. GAUBA)
JANUARY 22, 2016                                               JUDGE
ap/rkb/sk