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Judgment
Rajinder Kashyap, Member (A)
The applicant has filed present Original Application under Section 21 of the Administrative Tribunals Act, 1985. By way of this O.A., the applicant seeks the following relief: -
i. To quash and set aside the SCN dated 20.08.2024 under Rule 5(1) of CCS(TS) Rules and the applicant be entitled for all consequential benefits including seniority and promotion and pay and allowances.
Or/and
ii. Any other relief which this Hon’ble court deems fit and proper may also be awarded to the applicant.
BRIEF FACTS:
The applicant states that she applied for the post of Constable Executive (Female) in Delhi Police in the year 2023 as an "SC" candidate. The applicant participated in the selection process and was subsequently selected on merits in her category. She was given an offer of appointment vide letter dated 01.02.2024. The offer of appointment stipulates that the applicant would be subjected to basic training for 10 months and thus the applicant is undergoing her basic training for the post of Constable Executive (Female)since 01.07.2024.The applicant states that on 30.01.2024, she had filled up an Attestation Form as well as given an undertaking, whereby to the best of her knowledge, she has revealed every information correctly. While undergoing training with the Delhi Police (respondents) since 01.07. 2024,to the surprise of the applicant, a Show Cause Notice dated 20.08.2024 was issued to her which was received by her on 23.08.2024, making allegations against her that the she has concealed the fact regarding registration of the criminal case in the attestation form and also submitted false undertaking and tried to seek appointment to the post of Constable in Delhi Police by adopting deceitful means and on the basis of those allegations, the applicant has been put to notice under Rule 5 (1) of Temporary Service Rules.
The Show Cause Notice dated 20.08.2024 contains allegation against the applicant that at the time of filling up of the attestation form and the undertaking on 30.01.2024, she did not give this information in relation to a criminal case registered and pending against the applicant in FIR No. 261 of 2021, under Sections 147, 148, 149, 323, 325, 308, 352, 427, 452, 504, 506 of the IPC in Police Station, Bagrai District, Pratapgarh, UP. It is alleged that the applicant filled up false information in the Attestation Form to obtain the present employment by deceitful means and by concealing the fact.
The applicant contends that she has come to know about the FIR No. 261 of 2021 dated 24.09.2021 only after issuance of the ‘Show Cause Notice’ dated 22.08.2024 as the applicant was never called by the police. There was no interrogation, arrest, trial, summon or notice in relation to the said FIR and thus the applicant had no knowledge of the aforesaid FIR. Thus, the same cannot be construed as concealment in view of the law laid down by the Hon’ble Apex Court in the matter of Avtar Singh Vs. Union of India reported in 2016 (8) SCC 471. The applicant submits that the impugned ‘Show Cause Notice’ is stigmatic and therefore, bad in law in view of the law laid down by the Hon’ble Apex Court in the case of Dipti Prakash Bannerjee Vs. Satyender Nath Bose reported in 1999(3), SCC 60. She submits that the impugned notice is also bad in law as the same is not provided under the CCS (Temporary Service) Rules, 1965.
REPLY BY THE RESPONDENTS:
In the counter affidavit the respondents contend that the record of the applicant was scrutinized which reveals that in the Attestation Form filled by her on 30.01.2024 she clearly mentioned that no FIR was ever registered against her. Moreover, an Undertaking was also given by the applicant wherein she solemnly affirmed that she had not concealed any facts in the Application Form as well as in the Attestation Form. This shows that she concealed the facts regarding her involvement in the said criminal case deliberately. Furthermore, it was clearly mentioned in the offer of appointment under Sl. No. 05 of terms and conditions that the offer of appointment is subjected to verification of character and antecedents and if the report received from the concerned authority is adverse, necessary action will be taken against her.It is categorically held under Point No. 2(A)(i) of Standing Order No. 398/2018 (Now amended HRD/12/2022) of Delhi Police regarding 'Policy for deciding cases for provisionally selected candidates in Delhi Police, who have disclosed their involvement in Crl. Cases/acquittal/discharge etc. or concealed the same while furnishing information in Attestation Form for the purpose of verification of Character & Antecedents', as under: -
“Point No.2: Action for concealment of information or furnishing of false/bogus/forged documents etc. in cases which are detected after the candidate has joined Delhi Police.
(A)(i) In case the declaration is found false/bogus after appointment but before the individual has been confirmed, then in view of the judgment in Avtar Singh Vs. UOI, Supreme Court 2016, the Disciplinary Authority may pass appropriate order for terminating the services of the individual as appointment of such a person may not be proper.”
In rejoinder dated20.12.2024, the applicant states that it has been established in the present case that no notice has been served to the applicant in terms of Sub-Rule 1 of Rule 5 of CCS(TS) Rules, thus the invoking of provision of CCS(TS) Rules is not sustainable in the eyes of laws. The impugned order is being passed as being devoid of sub-rule 1 of Rule 5 of CCS(TS) Rules and thus the same is bade in law. The applicant has placed reliance on the judgment of this Tribunal in the case of Sandeep Vs. GNCTD in OA No. 2137/2009 decided on 31.01.2011.
Vide order dated 18.09.2024, this Tribunal had directed the respondents not to pass any adverse order and/or to take any coercive action against the applicant pursuant to the impugned Show Cause Notice dated 20.08.2024.
Learned counsel for the respondents has stated in their reply dated 27.11.2024 that Delhi Police has laid down a policy vide Standing Order No. 398/2018 (Now amended HRD/12/2022) of Delhi Police regarding policy for deciding cases for provisionally selected candidates in Delhi Police, who have disclosed their involvement in criminal cases/acquittal/discharge etc. or concealed the same while furnishing information in Attestation Form for the purpose of verification of character and antecedents.
The respondents further contend that page 17 of the MA No. 4483/2024 contains the signature of applicant, therefore, the applicant is aware of her involvement in criminal case for which Show Cause Notice dated 20.08.2024 (impugned as Annexure A-1) was issued by the competent authority under the respondents. They also make a reference to Attestation Form filled by the applicant (Annexed at pages 41 to 50)to the counter reply. It is seen that while giving answers to a set of questions mentioned from serial nos. 15 (i) (a) to 15 (i), the applicant has categorically stated ‘NAHI’ in Hindi, which is ‘NO’ in English. The said Attestation Form has been filled by the applicant on 30.01.2024. A report dated 25.05.2024 of the SHO, Police Station Bagharai, Janpad, Pratapgarh is available which is placed on pages 49 to 50 which reveals that FIR under relevant sections was registered against the applicant.As per page 17 of the MA (MA No. 4483/2024), a notice has been issued to the concerned person including the applicant to remain present in the court. The said above mentioned communication is signed by Shri Dhananjay Rai, SHO, Police Station Delhpur, Janpad, Pratapgarh on 25.10.2024 and also contains signature of I.O.dated 25.05.2024.
The respondents rely upon the judgment of the Hon’ble Apex Court dated 16.01.2023 in the matter of Ex-Const/DVR Mukesh Kumar Raigar Vs. Union of India & Ors. in SPL (Civil) No. 10499 of 2022. The relevant portion of the judgment reads as under:
“38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.”
Learned counsel for the applicant has argued that the impugned Show Cause Notice dated 20.08.2024 contains allegation which are stigmatic and not in the format prescribed. They further state that how the issue of concealment of facts in a criminal case, if not revealed in attestation form is to be dealt with is laid down in the judicial pronouncements. To buttress their arguments they place reliance on Annexure A/10 which is a order of respondents in the case of Constable Atar Singh No. 5352/DAP (PIS No. 29101871) under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980. In the case of Constable Atar Singh, a departmental inquiry was conducted and thereafter the respondents took a final decision on 25.11.2013. Learned counsel for the applicant argues that the present case also needs to be adjudicated by the respondents which they have not done in this case and they have resorted to issuance of Show Cause Notice for termination under Rule 5 (1) (a) of CCS (Temporary Service) Rules, 1965 and as per point No. 2 A (i) of S.O. No. HRD/12/2022.
ANALYSIS:
It is incontrovertible fact that the applicant was given an offer of appointment vide letter dated 01.02.2024. The applicant has filled up Attestation Form as well as given an Undertaking on 30.01.2024 and therein provided the information sought for. The applicant is undergoing police training since 01.07. 2024. A ‘Show Cause Notice’ (SCN) dated 20.08.2024 was issued to her which was received by her on 23.08.2024, stating that the she has concealed the fact regarding registration of the criminal case in the Attestation Form and also submitted false Undertaking to seek appointment to the post of Constable in Delhi Police by adopting deceitful means. The SCN has been issued under Rule 5 (1) of Temporary Service Rules. Applicant contests the above action of the respondents.
The main question involved in this matter is whether applicant is aware of an FIR registered against her at the time of filing up of Attestation Form and Undertaking to the respondents.
To find out the relevant position in the matter, it would be necessary to examine the various documents produced by applicant and respondents in this matter as part of their respective pleadings. The applicant filled Attestation Form on 30.01.2024. The details with regard to personal information of in Form No. 12.18 (1) Police Department Personal Information of the Recruit was also filled by the applicant on 30.01.2024. FIR No. 261/2021 was registered on 24.09.2021 against seven accused, including the applicant. Notice under Section 41 (1) (B) of Cr. P.C., placed by the respondents as R-2 with their reply dated 27.11.2024, contains the name of applicant along with other 06 persons and also bears dated signature of Shri Dhananjay Rai, SHO, Police Station Dehlpur, Janpad, Pratapgarh mentioning date as 25.10.2024. As mentioned above, the notice under Section 41(1) (B) of Cr.P.C. (Annexure R-2) bears a date of 25.10.2024 and there is no other information placed in these pleadings which could reveal that the applicant was aware of the criminal case registered against her and pending at the time of submission of the Attestation Form i.e. on 30.01.2024. In view of this position, it could be said that at the time of filling the Attestation Form, the information given by the applicant is correct. Therefore, the Show Cause Notice issued to the applicant on 20.08.2024 mentioning that at the time of filing up of attestation form the applicant did not mention her involvement in the above said criminal case in the relevant column filled up by her on 30.01.2024 and thereby concealed the facts of her involvement in the above-mentioned criminal case, is not correct, hence not tenable.
The Hon’ble Supreme Court in the judgment dated 21.07.2016 in the matter of Avtar Singh V/s Union of India lays down that if a criminal case was pending but not known to the candidate at the time of filling up the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. The Hon’ble Supreme Court in guideline no. 8 and guideline no. 11 recorded as under:
“8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
This Tribunal in its interim order in O.A. No. 1844 of 2022 dated 20thJuly 2022, directed to continue the training of the Constable (applicant therein) despite the issuance of the termination order on the basis of the allegations of concealment about a criminal case in the Attestation Form.
The Hon'ble Delhi High Court in the matter of Mahinder Solanki's in W.P.(C) No. 219 of 2023 in its judgement dated 10th March, 2023, which is further upheld by the Hon'ble Apex Court, held that despite concealment about the criminal case in the Attestation Form by the applicant therein, the candidature of the constable cannot be cancelled or terminated from service.
Hon'ble Delhi High Court in W.P.(C) 12696 of 2023 GNCTD& Ors. v/s Virender dated 28th February, 2024 (Annexure A-18) stated that any termination order which is stigmatic in nature has to be set aside as the delinquent official despite being on probation, if being subjected to termination on the basis of specific allegations, then the protection of Article 311 has to be there and the only action that can be taken against the delinquent official is only by conducting a departmental enquiry. Paras 46 to 47 of the same reads as under: -
“46. In the present case, we have already held that the impugned order is stigmatic and that the Tribunal was justified to the extent of holding that the termination order of the respondent was bad. But, what we do not agree is the conclusion arrived by the Tribunal, that is, the Tribunal while setting aside the order of termination had granted libertyto the petitioners to initiate disciplinary enquiry and/or take action in accordance with the relevant rules depending upon the final outcome of the FIR, which according to us shall mean that the employer needs to wait for the final decision on the FIR, which will take its own time.
We would state here that, mere pendency of an FIR shall not restrain/preclude the employer to initiate disciplinary proceedings under the relevant rules, as it is a settled law that, a Criminal Case & Departmental Enquiry are two different proceedings and for holding the charge against a government servant in a departmental enquiry, the same needs to be proved on the principles of preponderance of probability.”
This Tribunal in OA No. 2137/2009 in the matter of Constable Sandeep Vs. Govt. of N.C.T.D on 31.01.2011. Para 13 of the order reads as under:
“13. It is seen in the present case that no notice has been given to the applicant in terms of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965. Nor he has been given pay and allowances in lieu of notice. Yet the services of the applicant have been terminated with immediate effect under the said Rule. Such an action is ex facie contrary to the provisions of the said rules and as such not sustainable in law. The impugned termination 'order is, therefore, quashed and set aside being devoid of provisions of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965 and the respondents are directed to reinstate the applicant forthwith with all consequential benefits. In, view of this, we need not go into other submissions made by the applicant. The respondents shall, however, be at liberty to proceed against the applicant, if they so desire, after following due process as per the applicable rules. Smile doing so, it will be desirable for the respondents to keep in mind the submissions of the applicant in this Application with a view to curtail any avoidable litigation in the matter for it shall be open to raise all these submissions afresh in appropriate proceedings as and when occasion arise to do so. The respondents should, therefore, keep all such submissions in mind while taking any further action in this matter.”
This Tribunal in OA No. 4020/2018 vide order dated 17.07.2023 in the matter of Mohit Kumar Chaudhary Vs Govt. of NCTD. Paras 12 and 13 of the order read as under:
“12. In the aforesaid background, even if it is assumed that the impugned order dated 07.07.2017 is an order simpliciter, we are of the considered view that the impugned order of termination is founded on an act of specific misconduct of applicant and, therefore, the impugned termination order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.
In the result, having regard to the decisions of this Tribunal in Virender (supra) and Satyender and also for parity of reasons, the impugned SCN dated 26.05.2017, order of termination dated 07.07.2017 and order dated 24.07.2017, whereby the representation of applicant has been rejected, are set aside. The respondents are directed to reinstate the applicant in service, as expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in accordance with the relevant rules, if they so decide.”
The factual matrix of the present case is similar to the case of Constable Sandeep (Supra) in OA No. 2137/2009 decided on 31.01.2011 by the Tribunal. In the present matter also the applicant’s family was having some family disputes with some persons living in their neighborhood. FIR No. 261/2021 under Sections 147, 148, 323, 325, 308, 352, 427, 504, 506 was registered on 24.09.2021 at Police Station Bagrai, District Pratapgarh, Uttar Pradesh against nine persons including the applicant implicating her alongwith her family members. As per the pleadings in the matter, it does not reveal that the applicant was aware of pending criminal case against her at the time of submitting the Attestation Form and giving an Undertaking on 30.01.2024, wherein she provided the required particulars for the job of Constable in Delhi Police.
It is seen that in the present case, no notice has been given to the applicant in terms of Sub Rule (1) of Rule (5) of Civil Services (Temporary Service) Rules, 1965. In view of this, the impugned Show Cause Notice dated 20.08.2024 (Annexure A-1) is quashed and set aside.
However, it is also a fact that a criminal case is pending against the applicant. Therefore, the respondents shall be at liberty to proceed against the applicant, if they so desire, after following the due process as per the applicable rules. With a view to curtail any avoidable litigation in the matter while doing so, it will be desirable for the respondents to keep in mind the submissions of the applicant in this O.A.. The respondents should, therefore, keep all such submissions in mind while taking any further action in the matter.
In the facts and circumstances of the case and for the reasons recorded above, the present Original Application is allowed. No order as to costs. Pending MAs, if any, stand closed.