* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 10th August, 2011
Judgment Delivered On: 26th August, 2011
+ R.P.No.439/2009 & CM No.14148/2009 in
WP(C) 10041/2005
BIRENDER MAHTO ..... Petitioner
Through: Mr.Dushyant Parashar, Advocate for
Review Petitioner/Petitioner
versus
UOI & ORS. ..... Respondents
Through: Mr.Darpan Wadhwa, Advocate and
Mr.Vipin Tyagi, Advocate
CORAM:
HON‟BLE MR.JUSTICE PRADEEP NANDRAJOG
HON‟BLE MR.JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. The writ petition was dismissed vide judgment and
order dated 27.2.2009 by a Bench Coram: B.N.Chaturvedi, J. and
S.L.Bhayana, J. Review sought vide R.P.No.439/2009 has been
left as an unfinished task and since both Hon‟ble Judges have
superannuated and the review petition remained pending, the
present decision decides the said review petition as also CM
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 1 of 9
No.14148/2009.
2. Seeking review it is pleaded in Ground (a) that a
factually wrong information has been observed by the Bench in
para 10 of the judgment under review wherein it stands
recorded that a criminal case was pending in which the
petitioner was an accused.
3. Vide CM No.14148/2009 it is stated that said fact
recorded is not at page 10 of the judgment but is in para 11 of
the decision and thus it is prayed that the averments in the
review petition be read as explained in the application.
4. Indeed, the assertions in the application are correct and
thus we dispose of the application noting that the stated wrong
fact noted by the Bench would be in the paragraph referred to in
the application.
5. In a nut shell, while seeking review, it has been pleaded
that the Division Bench was wrongly influenced by the fact that
a criminal case was still pending against the petitioner whereas
the fact of the matter was that pursuant to a compromise the
petitioner had been acquitted on 13.6.2001.
6. The petitioner had approached this Court on the plea
that while filling up the verification roll after he was offered
employment as a Constable in CISF, pertaining to information
sought vide serial No.12 (b) and 12 (f) of the verification roll, he
replied in the negative under a mistaken belief that the case
being settled he could respond in the negative to the
information sought. It be highlighted that information sought
vide serial No.12 (b) and 12 (f) of the verification roll was:-
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 2 of 9
"12 (b) Have you ever been prosecuted?
12 (f) Have you ever been convicted by Court of
Law for any offence?"
7. It is not in dispute that the petitioner responded in the
negative and thus was employed on probation pending
character verification and during character verification it was
revealed that the petitioner was an accused in FIR No.68/1993
for offences under Sections 447/341/323/324/337/34 IPC and
that pursuant to a compromise he was acquitted, as were the
others, on 13.6.2001.
8. When this information came to the knowledge of the
department, a show cause notice was issued to the petitioner on
5.11.2003 seeking his explanation as to why did he suppress the
truth. To which he responded in the following words, on
19.11.2003:-
“I, Force No.022440051 Constable Virendra Mahto,
working under your control. The applicant has
received the above mentioned letter from your office.
In this connection I have to submit that there was a
family dispute regarding division of land between my
father and my uncles in the year 1993. In this dispute,
they added my name also due to malafide intention
though I was not involved in the same. This case was
settled and therefore, it escaped my attention that I
was implicated in the case. I therefore, filled up the
information in col.12 inadvertently.
Sir, I have committed this mistake intentionally while
filling the form. I therefore, urge upon your goodself
to have a humane angle and keep in mind my future
while taking a decision in the matter. I may be
pardoned for this mistake. I shall not commit any such
mistake in future. I request your honour to have a pity
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 3 of 9
on my family consisting of my parents, younger sister
and children. I may be given one opportunity. I shall
ever remain grateful to you.”
9. We highlight, that as in the reply aforesaid dated
19.11.2003, even in the writ petition it is pleaded that since
petitioner‟s name was added mala fide in the FIR and as the
case was settled, it escaped his attention, while filling up the
verification roll, to state correctly that he was an accused for
having committed an offence, but was acquitted.
10. The defence taken was that suppression of any
information which has a bearing on character verification was a
serious matter and thus the department was fully justified in
terminating petitioner‟s service while he was still on probation.
11. With reference to a decision of the Supreme Court
reported as 2003 (3) SCC 437 Kendriya Vidyalaya Sangathan &
Ors. Vs. Ram Rattan Yadav, the Division Bench held that the
petitioner had suppressed the relevant information. The writ
petition was dismissed. Inadvertently the Division Bench noted
that the petitioner was still an accused and this information was
suppressed and not that the petitioner was an accused in the
past, but had been acquitted on the basis of a compromise.
However, we may note that in paragraph 12 the Division Bench
has noted that the offence was compounded.
12. Seeking review, apart from pleading that the Division
Bench appears to have been influenced as if the petitioner was
still an accused, a plea which we find to be incorrect inasmuch
as the concluding paragraph of the judgment under review is
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 4 of 9
para 12, where the Division Bench has correctly noted that the
offence was compounded, the grounds on which review has
been sought are as under:-
“(d) With greatest respect this Hon‟ble High Court
has failed to differentiate between the factual and
material information because the non disclosure of the
factual information does not tantamount to non
disclosure of material information because the
material information vis-a-vis petitioner would be the
conviction which is not the case of the petitioner
because the case had been close as compromised vide
order dated 13.6.2001 of the Ld. Judicial Magistrate,
Ist Class, Chappra, Bihar, as the same was a family
feud between the father and the uncle of the
petitioner.
(e) With greatest respect this Hon‟ble High Court
ought to have appreciated that at the time of filling
the Attestation Form the case was already
compromised vide order dated 13.6.2001 of the
Ld.Judicial Magistrate, Ist Class, Chappra, Bihar. It is
relevant to mention here once a case has been
compromised the petitioner was right in that a boy of
limited education will not be able to differentiate
between the legal education will not be able to
differentiate between the legal Terminology of the two
questions reproduced herein for sake of brevity;
12(b) Have you ever been prosecuted?
(f) Have you ever been convicted by court of
Law for any offence?
The first question 12(b) pertains to prosecution which
will be called when the petitioner would have been
undergone Trial which was not the case here as the
case of the petitioner was compromised vide order
dated 13.6.2001 of the Ld. Judicial Magistrate, Ist
Class, Chappra, Bihar, which naturally has not given
any bearing to the petitioner to think about the same
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 5 of 9
particularly.
The second question pertains to conviction which is
completely absent in the case of the petitioner
because the matter has attained finality in terms of
Compromise entered between the petitioner‟s father
and his uncle vide order dated 13.6.2001 passed by
the Learned Magistrate, Chappra, Bihar.
(f) With greatest respect this Hon‟ble High Court
has failed to appreciate that the petitioner cannot be
held guilty for non disclosure of information in which
the case between the petitioner and respondent has
been compromised vide order dated 13.6.2001 of the
Ld. Judicial Magistrate, Ist Class, Chappra, Bihar, and
also in which the petitioner has been allegedly being
made party in a criminal case which was a family feud
between the brothers of the petitioner‟s father,
moreover the same does not amount to concealment
because the petitioner had already been acquitted by
the Criminal Court in 2001, vide order dated
13.6.2001, where the petitioner had been allegedly
implicated, whereas the attestation form had been
filled by the petitioner in the year 2002 for the job in
which the petitioner had been selected to serve the
country with respondent No.2 organization.
(g) .......
(h) .......
(i) With greatest respect this Hon‟ble High Court
has failed to appreciate that in column 12 (b) the
information has been sought “have you ever been
prosecuted? The petitioner has written “No”. In fact,
a false case was registered against the family
members of the petitioner including the petitioner by
his relatives/uncles over a dispute of ancestral family
property. The same was decided vide order dated
13.6.2001 of the Ld. Judicial Magistrate, Ist Class,
Chappra, Bihar, whereby the petitioner was found
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 6 of 9
innocent and acquitted discharged from the charges
framed in criminal case No.2633/1993 and trial
No.199/2001. It was also mentioned in the said order
that the prosecution failed to prove the case against
the petitioner. Since the petitioner was exonerated in
the said false case, the petitioner did not deem it fit to
mention this fact in the Attestation Form without
having any oblique motive as the case had already
been closed by then.”
13. It is all rolled over pleadings and with regret we must
note that the tendency today is to keep on frolicking and draft
pleadings in a roller coaster manner, with an eye to impress the
client, and not to conform to the rules of pleadings which
requires a concise statement of material facts to be pleaded and
wherever necessary with material particulars and no more.
14. We highlight that the petitioner is now trying to
sometimes say that since he was exonerated he did not deem it
fit to mention this fact in the attestation form and sometimes is
trying to plead that since the case was false he justifiably
believed to respond in the negative and sometimes, as evident
from ground (d) urged in the review petition urges that „ this
Hon‟ble High Court has failed to differentiate between the
factual and material information because the non disclosure of
the factual information does not tantamount to non disclosure of
material information because the material information vis-a-vis
petitioner would be the conviction which is not the case of the
petitioner because the case had been close as compromised
vide order dated 13.6.2001 of the Ld. Judicial Magistrate, Ist
Class, Chappra, Bihar, as the same was a family feud between
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 7 of 9
the father and the uncle of the petitioner‟.
15. We do not understand what does the petitioner mean by
pleading that this Court failed to differentiate between the
factual and material information because non disclosure of the
factual information does not amount to non disclosure of
material information. As we understand most humbly, a non
disclosure of a factual information, disclosure whereof would be
relevant, would be non disclosure of a material information.
16. We may note that the decision in Ram Rattan Yadav‟s
case (supra) relied upon by the Predecessor Bench has been
referred to in the latest decision reported as 2010 (2) SCC 169
Kamal Nayan Mishra Vs. State of M.P. & Ors. wherein non
disclosure of information of a relevant fact which has a bearing
on character verification was held to be fatal. Of course, on facts
the decision was on favour of Kamal Nayan Mishra, but it is the
ratio of law which is binding.
17. We may note that the language of the verification roll in
Kamal Nayan Mishra‟s case and Ram Rattan Yadav‟s case were
different than the instant case and we would highlight that in
Kamal Nayan Mishra‟s case the Supreme Court highlighted that
where the language of a question is confusing, benefit ought to
be given to the candidate. In the instant case, information
sought vide serial No.12 (b) of the verification roll i.e.: „Have you
ever been prosecuted?‟ is plain and clear and admits of no two
meanings and we see no scope for any confusion. We may
highlight that the petitioner became an accused in the year
1993 and pursuant to the offence being compounded earned an
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 8 of 9
acquittal in the year 2001. If he filled up the attestation form on
14.2.2002. The date of the acquittal being 13.6.2001 it is
impossible to believe that within 8 months of the acquittal, the
petitioner forgot that he was an accused for having committed
an offence. Nobody can accept the argument that having
earned an acquittal, the accused would think that he was never
prosecuted.
18. We see no merit in the application seeking review and
thus dismiss the same but without any orders as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 26, 2011
mm
R.P.No.439/2009 & CM No.14148/2009 in W.P.(C) No.10041/2005 Page 9 of 9