Dariya Singh Vs. Union of India Through Its Secretary, Ministry of Home Affairs, North Block, New Delhi and Others - Court Judgment

ORAL:

Mrs. Meera Chhibber, Member (J):

1. Applicant has sought direction to the respondents to appoint him for the post of Constable (Executive) Male Delhi Police Recruitment, 2009 along with all benefits and allowances with effect from 17.8.2011, i.e., the date of termination.

2. It is submitted by the applicant that he was appointed as Constable on 5.7.2010. He continued to perform his duties but show cause notice dated 12.1.2011 was issued to him (page 15) by alleging that at the time of filling the application form applicant did not mention details of the criminal proceedings in column No.15 (a) to (e) rather mentioned ‘No’ against each column whereas the police verification report received in Recruitment Cell, Delhi Police from SP/Jhunjhunu (Rajasthan) revealed that a case FIR No. 31/2000 under Section 447/435 IPC, PS Chirawa, District Jhunjhunu, Rajasthan, was registered against him. He had thus suppressed his criminal involvement in the application as well as in the attestation form and had submitted a false undertaking at the time of obtaining the offer of appointment which reflects his mala fide intention and amounts to grave misconduct rendering him unbecoming of a police officer of the disciplined force, therefore, he should show cause why his services should not be terminated under Rule 5 (1) of Central Civil Services (Temporary Service) Rules, 1965.

3. Applicant immediately gave his reply stating therein clearly that the fact regarding registration of FIR No.31/2000 under Section 435/447 IPC PS Chirawa, District Jhaunjhunu, Rajasthan, came to his notice only on receipt of show cause notice. After receiving the show cause notice, he contacted the Police Station Chirawa whereupon he came to know that FIR No.31/2000 was filed on 18.2.2000 on which date he was minor, as such offence under Section 435/447 IPC cannot be attributed to him. Moreover, untraced report was filed on 7.1.2001 which was accepted by the Hon’ble Court. He had also specifically mentioned that during the investigation of the above case, he was never called by the police to join the investigation or by the court of law to attend the court proceedings. He was thus not aware about the registration of false case against his name in the Police Station Chirawa. He had also specifically stated that he was not arrested in case FIR No.31/2000, therefore, it cannot be stated that he had committed any misconduct. He had thus stated rightly No under column 15 (a) to 15 (e). He had not suppressed any information from the department. He had thus prayed that the show cause notice may be withdrawn (page 27). After receiving his reply, the respondents issued order dated 21.7.2011 whereby the show cause notice dated 12.1.2011 was withdrawn on administrative grounds. However, immediately thereafter vide order dated 17.8.2011 applicant was terminated from service. Being aggrieved, applicant gave a representation on 23.8.2011 (page 33) followed by reminder dated 28.8.2011 but since the same was not being disposed off, he had no other option but to file the present OA.

4. It is submitted by the counsel for the applicant that the order of termination is bad in law because when applicant was not even aware about the FIR, he could not have been blamed for suppressing the said fact. In any case, the case has already been filed, therefore, his case would be covered by the following judgments of the Hon’ble High Court of Delhi:-

(i) Government of NCT of Delhi and Others Vs. Jitender Kumar decided on 20.12.2007.

(ii) Government of NCT of Delhi and Others Vs. Ex.Cosntable (Executive) Prem Kumar decided on 7.1.2009.

5. Respondents on the other hand have opposed this OA. They have stated that Ex. Rect. Constable (Executive) Dariya Singh, No.21949/PTC, PIS No.28109854 had applied for the post of Constable (Executive) in Delhi Police during the recruitment held in the year 2009 (Phase-II) and selected provisionally against the Roll No.921340 subject to verification of character and antecedents, medical examination and final checking of documents etc. On receipt of his character and antecedents report from Special Branch/Delhi he was allowed to join as Constable. The applicant joined the department on 5.7.2010. Meanwhile a complaint of one Shri Harnath Singh R/o Village Brijlal Pura, Jhunjhunu (Rajasthan) was received in the office of DCP/Recruitment Cell, Delhi in which it had been alleged that the applicant was prosecuted in 1999 along with his uncle at PS Chairawa and bound down for a period of 6 months. The facts of the complaint were got verified by DCP/Recruitment Cell from SP/Jhunjhunu (Rajasthan), who informed that a case FIR No.31/2000 under Sections 435/447 IPC, PS Chairawa, District Jhunjhunu (Rajasthan) was registered against Dariya Singh S/o Shri Chand. Later on, during investigation of the case, the allegation was not proved and he was not challaned in the case. At the time of filling of application form and attestation form filled up by the applicant on 9.11.2009 and 24.9.2009 respectively, it was revealed that he did not disclose the facts regarding his involvement in the above said criminal case in the relevant column of the said forms and concealed the same deliberately, despair clear instructions given at the top of these forms that giving any kind of false information or concealing any facts will be treated as disqualification. Besides, he had also submitted a false undertaking at the time of obtaining the offer of appointment letter and succeeded in joining the department by adopting deceitful means. The concealment of facts regarding involvement in a criminal case at the initial stage clearly reflects his mala fide intention. An enquiry into the matter was also got conducted through Inspector Shailender Chauhan, No.D-3029 which reveals that applicant cheated the department and Board of Secondary Education, Rajasthan deliberately and prepared bogus and fake documents in order to get employment though he was overaged. The matter was referred to PHQ who directed vide letter No.5061/Recruitment Cell (AC-VII)/PHQ dated 11.7.2011 that the service of Rectt. Constable be terminated under Rule5 (1) of CCS (Temporary Service) Rules, 1965 on the prescribed format and also a criminal action against Rectt. Constable be initiated as per law. DCP/Rectt. Cell, NPL has been directed for registration of criminal case against Ex.R/Constable vide this Office Memo No. 10305/SIP/PTC dated 18.8.2011. Accordingly, the services of the R/Constable were terminated by the disciplinary authority vide order No.10247-5-/SIP/PTC dated 17.8.2011.

6. They have also stated that the representation of the applicant is pending with the competent authority, i.e., the Commissioner of Police. They have thus prayed that the OA may be dismissed. They have placed reliance on the judgment given by the Hon’ble High Court of Delhi in the case of Vinod Kumar Vs. Commissioner of Police and Another decided on 16.12.2011.

7. We have heard both the counsel and perused the pleadings also.

8. Since all the judgments referred to above are of Delhi Police only, these judgments would be available with the respondents. Still it would be relevant to quote the relevant portions which need to be looked into by the respondents before deciding the representation of the applicant. In Government of NCT of Delhi and Another Vs. Amit Kumar (W.P. No. 8929/2009) decided on 12.7.2010, it was held by the Hon’ble High Court of Delhi as follows:-

“12. It is thus apparent that the respondent was neither arrested in the aforesaid case nor he was summoned to face the trial. Thus, submissions made by the respondent to the effect that he had not suppressed any material fact while submitting attestation form/undertaking at the time of his appointment as Constable in Delhi Police were rightly accepted by the Tribunal.

13. Even otherwise, merely because a complaint has been filed against an incumbent by arraying him as an accused even though he is neither arrested nor summoned/tried by the concerned Court, and the case comes to an end either by way of withdrawal of the case or on the basis of a final report filed by the police after investigation, to presume that the incumbent was involved in that case would be a misnomer of justice and there is nothing on record to show that he was aware of the pendency of the FIR at the time when he filed his attestation form/undertaking. In this regard, it would be of relevance to take note of the observation made by the Hon’ble Supreme Court in the case of Vidya Charan Shukla Vs. Purshottam Lal Kaushik, AIR 1981 SC 547, wherein the Hon’ble Supreme Court has discussed the effect of acquittal of an accused in a criminal case. The relevant observations are reproduced hereunder:-

Before examining the facts and ratio of Mani Lal's case [1971]1SCR798 it will be worthwhile to notice here a general principle of criminal law bearing on this issue. This principle as re iterated by this Court in Dilip Kumar Sharma's case (at p. 289) 1976 CriLJ184 is as follows:

“An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction (for the offence) was quashed by the High Court (in appeal)... 'it killed the conviction not then, but performed the formal obsequies of the order which had died at birth.”

14. In the facts of this case, when it is apparent that the respondent was neither arrested nor summoned/tried for his involvement in FIR No.88/2001, and the case was closed by accepting the final report submitted by the police by the concerned Magistrate, wipes out even registration of the FIR itself for all purposes. This tantamounts to annulment of the FIR with retroactive force, i.e., as if it was never registered. In such a case to say that the respondent was involved in that case and suppressed this fact without anything on record to show that he ever came to know about the pendency of that matter or that was with a view to hide his involvement in a case which stood closed, would be travesty of justice. We, therefore, find no reason to interfere with the order passed by the Tribunal. The writ petition is accordingly dismissed”.

Similarly in Government of NCT of Delhi and Others Vs. Jitender Kumar (W.P. NO. 8385/2002) decided on 20.12.2007 Hon’ble High Court of Delhi had observed as follows:-

“11. We may remark here that where the case is pending at the time of filling up of the form, position would be different and in case a candidate conceals such an information or provides wrong information, the candidature or even the appointment can be cancelled {See - Sanjay Kumar Bajpai v. Union of India, 1997 II AD SC 704}. Similarly, where the prosecution, though resulted in acquittal, was for an offence which otherwise involves moral turpitude, it may be necessary to mention particulars of such a case as that may be a relevant consideration to adjudge the conduct or character of a candidate to be appointed to a service even when such a prosecution resulted in acquittal, inasmuch as, it would provide information about the antecedents of the candidate {See - Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar, JT 1996 (10) SC 34}. However, where the offence with which the candidate was charged was petty offence not involving moral turpitude and it has resulted in acquittal as well and going by the petty nature of the offence if such a factor is not material enough to deny appointment to a candidate, non-disclosure thereof shall not be a ground to terminate his services”.

It would also be relevant to refer to the latest judgment of Hon’ble Supreme Court in the case of Commissioner of Police and Others Vs. Sandeep Kumar reported in 2011 (4) SCC 644 wherein it has been held as under:-

“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 indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

As already observed above, youth often commit indiscretions, which are often condoned.

It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter”.

9. Following the above judgment, even Hon’ble High Court of Delhi in the case of Rajesh Kumar Vs. Commissioner of Police and Another in Writ Petition No.8223/2011 decided on 22.11.2011 has held as follows:-

“We are of the opinion that the Tribunal has erred in appreciating the dicta of the Apex Court in Sandeep Kumar (supra) and in not following the same. The Apex Court by the said judgment had affirmed the judgment of the Division Bench of this Court reported as Sandeep Kumar Vs. Commissioner of Police (2006) 90 DRJ 707. The Division Bench held that though there could be no denying that there should be a complete and honest disclosure of all questions but the same would not prevent the authorities and the Courts from condoning the non disclosure or false disclosure, whether it be on account of bona fides or extenuating circumstances. It was further held that the pleas of inadvertent and / or bona fide mistakes in non disclosure or wrongful disclosure and of the concealment being not willful also have to be considered. It was yet further held that in view of acquittal following compromise in the criminal case, the applicant could not be said to be having any reason for withholding the information especially if the incident did not involve any moral turpitude or grave offence and / or was not demonstrative of any propensity to crime. The Supreme Court besides affirming the aforesaid propositions further added that the age at the time of the incident also has to be considered. It was observed that indiscretions committed in youth can be condoned and owing to such indiscretion or minor offences, a young man cannot be branded as a criminal for all his life. It was yet further held that wisdom as in Morris Vs. Crown Office (1970) 2 QB 114 ought to be displayed in such matters. The test of seriousness of the offence committed and which was concealed was also evolved.

7. The hard reality cannot also be lost sight of. A disclosure of the FIR, even if leading to acquittal, invariably leads to rejection of the application. The applicants thus cannot be blamed for shying away from making such disclosure and / or from indulging in concealment for fear of rejection at the threshold only without even having any opportunity to explain. We may in this regard also notice that the ‘Policy For Deciding Cases of Candidates Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing Trial or Acquitted)’ has been framed vide Standing Order No.398/2010 dated 23.11.2010. The said Policy also provides that even where the disclosure has not been made in the application form and the facts are discovered on verification, the case is required to be referred to the Screening Committee to assess suitability for appointment. The concept of minor offences and / or offences not involving moral turpitude has also been evolved. The same indicates that the respondents have themselves accepted the judgment of the Apex Court in Sandeep Kumar (supra). The Tribunal has thus erred in ignoring the dicta in Sandeep Kumar and in blindly following the earlier judgments in Daya Shankar Yadav and Ram Ratan Yadav (supra) when the judgment in Sandeep Kumar was an advancement in law.

8. We may even otherwise observe that the principle of precedents also require the Tribunal to test the case of the petitioner in terms of the judgment in Sandeep Kumar which was later in point of time and had evolved exceptions out of the law earlier laid down in Daya Shankar Yadav and Ram Ratan Yadav. It was not for the Tribunal to ignore the latest dicta and to decide the lis following the earlier judgments holding that the same had not been noticed in the latest dicta. The Supreme Court in Director of Settlements, A.P. Vs. M.R. Apparao (2002) 4 SCC 638 held that the decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or were not brought to notice of the Court; that when the Supreme Court decides a principles it would be the duty of the High Courts or the Subordinate Courts to follow the decision of the Supreme Court.”

10. In view of above judgments, Division Bench of this Tribunal has also remitted the matter back after quashing the impugned order to decide the case in the light of judgment of Rajesh Kumar.

11. From above, it is clear that the issue is being looked at from a different angle now, therefore, the authorities need to look into all the aspects before deciding the representation finally, therefore, at this stage, if any comment is made by us, that would amount to prejudging the issue because respondents have stated that the representation is still pending with the competent authority, i.e., the Commissioner of Police, therefore, the case needs to be remanded back to the respondents with directions to decide the representation of the applicant.

12. There is yet another reason why the impugned order needs to be relooked by the appellate authority viz. Commissioner of Police. In the show cause notice given to the applicant, he was asked to explain why his services should not be terminated for having concealed the fact of involvement in a criminal case which was explained by the applicant but no order was passed on the said show cause notice. On the contrary, show cause notice was withdrawn. The applicant was terminated under Rule 5 (1) of CCS (Temporary Service) Rules, without giving any reason. Now, in the counter affidavit, respondents have taken another ground for justifying the termination of applicant on the ground that the applicant had cheated the Board of Secondary Education, Rajasthan deliberately and prepared bogus and fake documents in order to get employment though he was overaged.

13. If that is the reason of termination, applicant should have been given a show cause notice so that he could have explained the facts. No such show cause notice seems to have been given to the applicant with this allegation as there is no such mention in the counter affidavit.

14. In view of above, this OA is disposed of at the admission stage itself with a direction to the Commissioner of Police to consider all the points as referred to above and decide the appeal of the applicant within 2 weeks from the date of receipt of a copy of this order under intimation to the applicant. No order as to costs.