{"id":44585,"date":"2011-08-26T00:00:00","date_gmt":"2011-08-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/birender-mahto-vs-uoi-ors-on-26-august-2011"},"modified":"2016-09-05T12:38:12","modified_gmt":"2016-09-05T07:08:12","slug":"birender-mahto-vs-uoi-ors-on-26-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/birender-mahto-vs-uoi-ors-on-26-august-2011","title":{"rendered":"Birender Mahto vs Uoi & Ors. on 26 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Birender Mahto vs Uoi & Ors. on 26 August, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                            Judgment Reserved On: 10th August, 2011\n                            Judgment Delivered On: 26th August, 2011\n\n+                    R.P.No.439\/2009 & CM No.14148\/2009 in\n                              WP(C) 10041\/2005\n\n        BIRENDER MAHTO                             ..... Petitioner\n                 Through:          Mr.Dushyant Parashar, Advocate for\n                                   Review Petitioner\/Petitioner\n\n                                   versus\n\n        UOI & ORS.                                  ..... Respondents\n                  Through:         Mr.Darpan Wadhwa, Advocate and\n                                   Mr.Vipin Tyagi, Advocate\n\n        CORAM:\n        HON\u201fBLE MR.JUSTICE PRADEEP NANDRAJOG\n        HON\u201fBLE MR.JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n\n     3. Whether the judgment should be reported in the\n        Digest?\n\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.         The writ petition was dismissed vide judgment and
\norder dated 27.2.2009 by a Bench Coram: B.N.Chaturvedi, J. and
\nS.L.Bhayana, J. Review sought vide R.P.No.439\/2009 has been
\nleft as an unfinished task and since both Hon\u201fble Judges have
\nsuperannuated and the review petition remained pending, the
\npresent decision decides the said review petition as also CM
\nR.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 1 of 9<\/span>
\n No.14148\/2009.\n<\/p>\n
2.        Seeking review it is pleaded in Ground (a) that a
\nfactually wrong information has been observed by the Bench in
\npara 10 of the judgment under review wherein it stands
\nrecorded that a criminal case was pending in which the
\npetitioner was an accused.\n<\/p>\n
3.        Vide CM No.14148\/2009 it is stated that said fact
\nrecorded is not at page 10 of the judgment but is in para 11 of
\nthe decision and thus it is prayed that the averments in the
\nreview petition be read as explained in the application.\n<\/p>\n
4.        Indeed, the assertions in the application are correct and
\nthus we dispose of the application noting that the stated wrong
\nfact noted by the Bench would be in the paragraph referred to in
\nthe application.\n<\/p>\n
5.        In a nut shell, while seeking review, it has been pleaded
\nthat the Division Bench was wrongly influenced by the fact that
\na criminal case was still pending against the petitioner whereas
\nthe fact of the matter was that pursuant to a compromise the
\npetitioner had been acquitted on 13.6.2001.\n<\/p>\n
6.        The petitioner had approached this Court on the plea
\nthat while filling up the verification roll after he was offered
\nemployment as a Constable in CISF, pertaining to information
\nsought vide serial No.12 (b) and 12 (f) of the verification roll, he
\nreplied in the negative under a mistaken belief that the case
\nbeing settled he could respond in the negative to the
\ninformation sought.         It be highlighted that information sought
\nvide serial No.12 (b) and 12 (f) of the verification roll was:-\n<\/p>\n
R.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 2 of 9<\/span><\/p>\n
        \"12 (b)       Have you ever been prosecuted?\n        12 (f)       Have you ever been convicted by Court of\n                     Law for any offence?\"\n\n<\/pre>\n
7.        It is not in dispute that the petitioner responded in the
\nnegative     and     thus    was     employed        on   probation   pending
\ncharacter verification and during character verification it was
\nrevealed that the petitioner was an accused in FIR No.68\/1993
\nfor offences under Sections 447\/341\/323\/324\/337\/34 IPC and
\nthat pursuant to a compromise he was acquitted, as were the
\nothers, on 13.6.2001.\n<\/p>\n
8.        When this information came to the knowledge of the
\ndepartment, a show cause notice was issued to the petitioner on
\n5.11.2003 seeking his explanation as to why did he suppress the
\ntruth.     To which he responded in the following words, on
\n19.11.2003:-\n<\/p>\n
       “I, Force No.022440051 Constable Virendra Mahto,
\n       working under your control.         The applicant has
\n       received the above mentioned letter from your office.
\n       In this connection I have to submit that there was a
\n       family dispute regarding division of land between my
\n       father and my uncles in the year 1993. In this dispute,
\n       they added my name also due to malafide intention
\n       though I was not involved in the same. This case was
\n       settled and therefore, it escaped my attention that I
\n       was implicated in the case. I therefore, filled up the
\n       information in col.12 inadvertently.\n<\/p><\/blockquote>\n
       Sir, I have committed this mistake intentionally while
\n       filling the form. I therefore, urge upon your goodself
\n       to have a humane angle and keep in mind my future
\n       while taking a decision in the matter. I may be
\n       pardoned for this mistake. I shall not commit any such
\n       mistake in future. I request your honour to have a pity
\nR.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005       Page 3 of 9<\/span>
\n        on my family consisting of my parents, younger sister
\n       and children. I may be given one opportunity. I shall
\n       ever remain grateful to you.”\n<\/p><\/blockquote>\n
9.        We highlight, that as in the reply aforesaid dated
\n19.11.2003, even in the writ petition it is pleaded that since
\npetitioner\u201fs name was added mala fide in the FIR and as the
\ncase was settled, it escaped his attention, while filling up the
\nverification roll, to state correctly that he was an accused for
\nhaving committed an offence, but was acquitted.\n<\/p>\n
10.       The     defence      taken     was    that    suppression   of   any
\ninformation which has a bearing on character verification was a
\nserious matter and thus the department was fully justified in
\nterminating petitioner\u201fs service while he was still on probation.\n<\/p>\n
11.       With reference to a decision of the Supreme Court
\nreported as 2003 (3) SCC 437 Kendriya Vidyalaya Sangathan &
\nOrs. Vs. Ram Rattan Yadav, the Division Bench held that the
\npetitioner had suppressed the relevant information.                   The writ
\npetition was dismissed. Inadvertently the Division Bench noted
\nthat the petitioner was still an accused and this information was
\nsuppressed and not that the petitioner was an accused in the
\npast, but had been acquitted on the basis of a compromise.
\nHowever, we may note that in paragraph 12 the Division Bench
\nhas noted that the offence was compounded.\n<\/p>\n
12.       Seeking review, apart from pleading that the Division
\nBench appears to have been influenced as if the petitioner was
\nstill an accused, a plea which we find to be incorrect inasmuch
\nas the concluding paragraph of the judgment under review is<\/p>\n
R.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005       Page 4 of 9<\/span>
\n para 12, where the Division Bench has correctly noted that the
\noffence was compounded, the grounds on which review has
\nbeen sought are as under:-\n<\/p>\n
       “(d) With greatest respect this Hon\u201fble High Court
\n       has failed to differentiate between the factual and
\n       material information because the non disclosure of the
\n       factual information does not tantamount to non
\n       disclosure of material information because the
\n       material information vis-a-vis petitioner would be the
\n       conviction which is not the case of the petitioner
\n       because the case had been close as compromised vide
\n       order dated 13.6.2001 of the Ld. Judicial Magistrate,
\n       Ist Class, Chappra, Bihar, as the same was a family
\n       feud between the father and the uncle of the
\n       petitioner.\n<\/p><\/blockquote>\n
       (e) With greatest respect this Hon\u201fble High Court
\n       ought to have appreciated that at the time of filling
\n       the Attestation Form the case was already
\n       compromised vide order dated 13.6.2001 of the
\n       Ld.Judicial Magistrate, Ist Class, Chappra, Bihar. It is
\n       relevant to mention here once a case has been
\n       compromised the petitioner was right in that a boy of
\n       limited education will not be able to differentiate
\n       between the legal education will not be able to
\n       differentiate between the legal Terminology of the two
\n       questions reproduced herein for sake of brevity;\n<\/p><\/blockquote>\n
       12(b)         Have you ever been prosecuted?\n         (f)         Have you ever been convicted by court of\n                     Law for any offence?\n\n<\/pre>\n
       The first question 12(b) pertains to prosecution which
\n       will be called when the petitioner would have been
\n       undergone Trial which was not the case here as the
\n       case of the petitioner was compromised vide order
\n       dated 13.6.2001 of the Ld. Judicial Magistrate, Ist
\n       Class, Chappra, Bihar, which naturally has not given
\n       any bearing to the petitioner to think about the same
\nR.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 5 of 9<\/span>
\n        particularly.\n<\/p><\/blockquote>\n
       The second question pertains to conviction which is
\n       completely absent in the case of the petitioner
\n       because the matter has attained finality in terms of
\n       Compromise entered between the petitioner\u201fs father
\n       and his uncle vide order dated 13.6.2001 passed by
\n       the Learned Magistrate, Chappra, Bihar.\n<\/p><\/blockquote>\n
       (f)    With greatest respect this Hon\u201fble High Court
\n       has failed to appreciate that the petitioner cannot be
\n       held guilty for non disclosure of information in which
\n       the case between the petitioner and respondent has
\n       been compromised vide order dated 13.6.2001 of the
\n       Ld. Judicial Magistrate, Ist Class, Chappra, Bihar, and
\n       also in which the petitioner has been allegedly being
\n       made party in a criminal case which was a family feud
\n       between the brothers of the petitioner\u201fs father,
\n       moreover the same does not amount to concealment
\n       because the petitioner had already been acquitted by
\n       the Criminal Court in 2001, vide order dated
\n       13.6.2001, where the petitioner had been allegedly
\n       implicated, whereas the attestation form had been
\n       filled by the petitioner in the year 2002 for the job in
\n       which the petitioner had been selected to serve the
\n       country with respondent No.2 organization.\n<\/p><\/blockquote>\n
       (g)    .......\n       (h)    .......\n\n<\/pre>\n
       (i)   With greatest respect this Hon\u201fble High Court
\n       has failed to appreciate that in column 12 (b) the
\n       information has been sought “have you ever been
\n       prosecuted? The petitioner has written “No”. In fact,
\n       a false case was registered against the family
\n       members of the petitioner including the petitioner by
\n       his relatives\/uncles over a dispute of ancestral family
\n       property. The same was decided vide order dated
\n       13.6.2001 of the Ld. Judicial Magistrate, Ist Class,
\n       Chappra, Bihar, whereby the petitioner was found
\nR.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 6 of 9<\/span>
\n        innocent and acquitted discharged from the charges
\n       framed in criminal case No.2633\/1993 and trial
\n       No.199\/2001. It was also mentioned in the said order
\n       that the prosecution failed to prove the case against
\n       the petitioner. Since the petitioner was exonerated in
\n       the said false case, the petitioner did not deem it fit to
\n       mention this fact in the Attestation Form without
\n       having any oblique motive as the case had already
\n       been closed by then.”\n<\/p><\/blockquote>\n
13.       It is all rolled over pleadings and with regret we must
\nnote that the tendency today is to keep on frolicking and draft
\npleadings in a roller coaster manner, with an eye to impress the
\nclient, and not to conform to the rules of pleadings which
\nrequires a concise statement of material facts to be pleaded and
\nwherever necessary with material particulars and no more.\n<\/p>\n
14.       We highlight that the petitioner is now trying to
\nsometimes say that since he was exonerated he did not deem it
\nfit to mention this fact in the attestation form and sometimes is
\ntrying to plead that since the case was false he justifiably
\nbelieved to respond in the negative and sometimes, as evident
\nfrom ground (d) urged in the review petition urges that \u201e this
\nHon\u201fble High Court has failed to differentiate between the
\nfactual and material information because the non disclosure of
\nthe factual information does not tantamount to non disclosure of
\nmaterial information because the material information vis-a-vis
\npetitioner would be the conviction which is not the case of the
\npetitioner because the case had been close as compromised
\nvide order dated 13.6.2001 of the Ld. Judicial Magistrate, Ist
\nClass, Chappra, Bihar, as the same was a family feud between<\/p>\n
R.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 7 of 9<\/span>
\n the father and the uncle of the petitioner\u201f.\n<\/p>\n
15.       We do not understand what does the petitioner mean by
\npleading that this Court failed to differentiate between the
\nfactual and material information because non disclosure of the
\nfactual information does not amount to non disclosure of
\nmaterial information.         As we understand most humbly, a non
\ndisclosure of a factual information, disclosure whereof would be
\nrelevant, would be non disclosure of a material information.\n<\/p>\n
16.       We may note that the decision in Ram Rattan Yadav\u201fs
\ncase (supra) relied upon by the Predecessor Bench has been
\nreferred to in the latest decision reported as 2010 (2) SCC 169
\nKamal Nayan Mishra Vs. State of M.P. & Ors. wherein non
\ndisclosure of information of a relevant fact which has a bearing
\non character verification was held to be fatal. Of course, on facts
\nthe decision was on favour of Kamal Nayan Mishra, but it is the
\nratio of law which is binding.\n<\/p>\n
17.       We may note that the language of the verification roll in
\nKamal Nayan Mishra\u201fs case and Ram Rattan Yadav\u201fs case were
\ndifferent than the instant case and we would highlight that in
\nKamal Nayan Mishra\u201fs case the Supreme Court highlighted that
\nwhere the language of a question is confusing, benefit ought to
\nbe given to the candidate.              In the instant case, information
\nsought vide serial No.12 (b) of the verification roll i.e.: \u201eHave you
\never been prosecuted?\u201f is plain and clear and admits of no two
\nmeanings and we see no scope for any confusion.                 We may
\nhighlight that the petitioner became an accused in the year
\n1993 and pursuant to the offence being compounded earned an
\nR.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005   Page 8 of 9<\/span>
\n acquittal in the year 2001. If he filled up the attestation form on
\n14.2.2002.       The date of the acquittal being 13.6.2001 it is
\nimpossible to believe that within 8 months of the acquittal, the
\npetitioner forgot that he was an accused for having committed
\nan offence.        Nobody can accept the argument that having
\nearned an acquittal, the accused would think that he was never
\nprosecuted.\n<\/p>\n
18.       We see no merit in the application seeking review and
\nthus dismiss the same but without any orders as to costs.\n<\/p>\n
                                            (PRADEEP NANDRAJOG)
\n                                                   JUDGE<\/p>\n
                                                  (SUNIL GAUR)
\n                                                      JUDGE
\nAUGUST 26, 2011
\nmm<\/p>\n
R.P.No.439\/2009 & CM No.14148\/2009 in W.P.(C) No.10041\/2005      Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Birender Mahto vs Uoi & Ors. on 26 August, 2011 Author: Pradeep Nandrajog * 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-44585","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBirender Mahto vs Uoi & Ors. on 26 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/birender-mahto-vs-uoi-ors-on-26-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Birender Mahto vs Uoi & Ors. on 26 August, 2011 - 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