Rajasthan High Court - Jaipur
The Director General Of Police vs Sher Singh Meena S/O Shri Dhanpal Meena on 8 December, 2021
Bench: Akil Kureshi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 407/2021
1. The Director General of Police, (Recruitment) Rajasthan,
Jaipur
2. The Superintendent of Police, District Sawaimadhopur,
Rajasthan
----Appellants
Versus
Sher Singh Meena S/o Shri Dhanpal Meena, aged about 29
years, R/o Village and Post Badolass, Tehsil and District
Sawaimadhopur (Rajasthan)
----Respondent
For Appellant(s) : Mr. Avinash Choudhary on behalf of Dr. Vibhuti Bhushan Sharma, AAG For Respondent(s) : Mr. Vigyan Shah Mr. Harendra Neel HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS Judgment 08/12/2021 D.B. Civil Misc.Application No. 175/2021:-
It appears that this application has been filed out of abundant caution though there is no delay in filing the appeal.
The application is disposed of accordingly. D.B. Special Appeal Writ No. 407/2021:-
This appeal is filed by the State Government to challenge the judgment of the learned Single Judge dated 20/01/2021. The brief facts are as under:-
The respondent original writ petitioner had applied for the post of Constable advertised by the State Government on 25/05/2018. He was selected for the post in question. However, at the time of character verification it was informed by the SHO PS Surwal that a criminal case bearing No.186/2011 was filed against (Downloaded on 10/12/2021 at 09:38:03 PM) (2 of 7) [SAW-407/2021] the petitioner which was decided by the Magistrate on 04/01/2016 in favour of the petitioner. He was given benefit of doubt. The petitioner was not offered appointment on this ground. He thereupon filed the petition which was allowed by the learned Single Judge by the impugned judgment whereupon, this appeal has been filed by the State Government.
In somewhat similar background while allowing the State appeal by a separate order passed today in DBSAW No.599/2021, we had made the following observation:-
"We have heard learned counsel for the parties at a considerable length. At the outset, we may record that the observations of the learned Single Judge that a person cannot be deprived of joining the society merely on the ground that the acquittal by way of benefit of doubt or by way of compromise is not in consonance with the several decisions of the Supreme Court on the point. We would refer to some of these judgments shortly. However, for the present, we may record that when it comes to the question of securing public employment particularly when the service is in disciplined or armed force, the courts recognise considerable latitude in the employer to judge the antecedents. Mere acquittal is not seen in every case as a clean chit given to the accused. Clear demarcation is made between cases of acquittal which are termed as honourable acquittal and those where the accused has been given either the benefit of doubt or legal technicality such as lack of sanction though required.
In a recent judgment dated 16/11/2021 in DBSAW No.637/2021 : Union of India Vs. Ex-Constable /dvr Mukesh Kumar, a division bench of this court had occasioned to refer to few judgments. Reference was made to the famous decision in the case of Avtar Singh Vs. Union of India and others : (2016) 8 SCC 471. Reference was also made to the recent judgment in the case of Commissioner of Police Vs. Rajkumar reported in (2021) 8 SCC 347. The decision in the case of Devendra Kumar Vs. State of Uttaranchal and others reported in (2013) 9 SCC 363. The decision in Rajasthan Rajya Vidyut Prasaran Nigam Limited and others Vs. Anil Kanwaria : (2021) SCC Online 739 was relied upon in which, the following observations were made:-
"The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an (Downloaded on 10/12/2021 at 09:38:03 PM) (3 of 7) [SAW-407/2021] employee who at the initial stage of the employment, i.e., while submitting the declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such as employee. The choice/option whether to continue or not to continue such as employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."
Eventually, the appeal of the Union of India was allowed. Judgment of the learned Single Judge directing appointment of a candidate who though acquitted was not appointed as a Constable by CISF was reversed making the following observations:-
"Reverting back to the facts of the case, as noted, the Revisional Authority as desired by the High Court took into consideration the representation of the petitioner but found that the petitioner cannot be retained in service for which Revisional Authority has recorded elaborate reasons. It has been observed that the allegation against the petitioner involved one of commission of offence under Section 324 of IPC which is causing hurt by sword which is a dangerous weapon. The acquittal was based on a compromise. The petitioner had not been acquitted honorably. The CISF is an Armed Force of Union of India and its man power is deployed in sensitive sectors such as Airports, Department of Atomic Energy, Department of Space and other Internal Security duties including election duties. The personnel of the Force are required to maintain discipline of the highest order. Inter-alia on such grounds the Revisional Authority refused to reconsider the question of punishment imposed on the petitioner. We do not think that there was any further scope for tampering with the view of the Revisional Authority. Even looked from the angle of observations made by the Supreme Court in the case of Avtaar Singh (supra), Revisional Authority was justified in taking the view that it did. As observed by the Supreme Court in case of Raj Kumar (supra) such public employment carries a degree of discretionary powers in the competent authority and (Downloaded on 10/12/2021 at 09:38:03 PM) (4 of 7) [SAW-407/2021] competent authorities thus enjoy a degree of latitude. When the petitioner was being engaged as a Constable in an Armed Force whose personnel are involved in maintaining security of sensitive organisations, what level of discipline should be expected, must essentially be left to the employer.
We are unable to accept the contention of the Counsel for the original petitioner that in the earlier round of litigation when the High Court passed an order dated 16.02.2018 in the petition filed by the petitioner No.8190/2012, there was no scope for the Revisional Authority to reiterate its stand on maintaining the order of dismissal. The counsel had argued that Union of India without challenging the said order could not have reiterated the stand that the Revisional Authority did. We have perused the order which merely required the Revisional Authority to consider the representation of the petitioner and the entire issue keeping in mind the observations made by the Supreme Court in the case of Avtar Singh (supra). There is nothing in this order suggesting that the penal order of dismissal stood set aside in perpetuity.
In the result, the impugned judgment of the learned Single Judge is set aside. Appeal of the Union of India is allowed and disposed of accordingly."
Two more decisions of Supreme Court of recent origin have been cited before us by the counsel for the appellants taking the similar view. In case of State of Rajasthan vs. Love Kush Meena in Civil Appeal No.3894/2020 dated 24/03/2021 had observed as under:-
"23. Examining the controversy in the present case in the conspectus of the aforesaid legal position, what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the Accused. No doubt, in that facts of the present case, the person who ran the tractor over the deceased lady was one of the other co-Accused but the role assigned to the others including the Respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co-Accused including the Respondent.
24. We may also notice this is a clear case where the endeavour was to settle the dispute, albeit not with (Downloaded on 10/12/2021 at 09:38:03 PM) (5 of 7) [SAW-407/2021] the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence Under Section 302/34 Indian Penal Code could not be compounded, the Trial Court continued and qua those offences the witnesses turned hostile.
We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal.
25. The judgment in Avtar Singh's case (supra) on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt, that cannot make the candidate eligible.
26. We may also note the submission of learned Counsel for the Respondent that as per para 38.3 in Avtar Singh's case (supra), the employer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that, in any case, the circular had come into force and as per the judgment in Avtar Singh's case (supra) para 38.4, it is the date of decision which is material and as on the date of decision dated 23.05.2017, the said circular was applicable.
27. We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However, such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate for appointment, despite the circular, the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court.
28. We are, thus, of the view that the impugned orders cannot be sustained and the Appellants are well within their rights to have issued the order dated 23.05.2017.
29. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated (Downloaded on 10/12/2021 at 09:38:03 PM) (6 of 7) [SAW-407/2021] 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs."
In case of Union of India Vs. Methu Meda (Civil appeal No.6238/2021 dated 06/10/2021, the Supreme Court had made the following observations:-
"21. In view of the aforesaid, it is clear the Respondent who wishes to join the police force must be a person of utmost rectitude and have impeccable character and integrity. A person having a criminal antecedents would not be fit in this category. The employer is having right to consider the nature of acquittal or decide until he is completely exonerated because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee and the decision of the Committee would be final unless mala fide. In the case of Pradeep Kumar (supra), this Court has taken the same view, as reiterated in the case of Mehar Singh (supra). The same view has again been reiterated by this Court in the case of Raj Kumar (supra).
22. As discussed hereinabove, the law is well-settled.
If a person is acquitted giving him the benefit of doubt, from the charge of an offence involving moral turpitude or because the witnesses turned hostile, it would not automatically entitle him for the employment, that too in disciplined force. The employer is having a right to consider his candidature in terms of the circulars issued by the Screening Committee. The mere disclosure of the offences alleged and the result of the trial is not sufficient. In the said situation, the employer cannot be compelled to give appointment to the candidate. Both the Single Bench and the Division Bench of the High Court have not considered the said legal position, as discussed above in the orders impugned. Therefore, the impugned orders passed by the learned Single Judge of the High Court in Writ Petition No. 3897 of 2013 and Division Bench in Writ Appeal No. 1090 of 2013 are not sustainable in law, as discussed hereinabove.
23. Accordingly, this appeal is hereby allowed and the impugned orders are set-aside. No order as to costs."
In view of such settled law, we find that the learned Single Judge has committed a serious error in issuing the directions in favour of the original petitioner. Learned counsel for the original petitioner however relied on an order dated 05/10/2021 passed by the Supreme Court in Special Leave to Appeal (C) No. 10830/2020 in the case of (Downloaded on 10/12/2021 at 09:38:03 PM) (7 of 7) [SAW-407/2021] State of Rajasthan and others Vs. Rajesh Kumar Meena, which reads as under:
"We have heard learned counsel for parties. The Matter pertains to the alleged criminal antecedents of the respondent which really do not exist on account of a compromise entered into. If we look to nature of the allegations, it shows that they flow out of matrimonial dispute between the sisters of the respondent and her in laws.
In view of the aforesaid facts and circumstances, we are not inclined to interfere with the impugned order.
The special leave petition is dismissed. Pending applications stand disposed of."
This order thus would proceed on the basis that the allegations against the petitioner was arising out of the matrimonial dispute between the two families. This decision does not lay down any ratio which runs contrary to the several decisions noted by us hereinabove.
We also perused the record of the criminal case in which the petitioner was involved. The FIR was filed against the petitioner and other family members for commission of offfence under Sections 147, 148, 149, 323 and 307 IPC. The medical report suggested that one of persons on the complainant side had received injury with a sharp edged weapon. The accused were allegedly carrying weapons such as stick, axe, sickle etc. The judgment of the learned trial judge is based entirely on compromise. Since offence punishable under Section 307 IPC not being compoundable, is not so recorded. Nevertheless, the witnesses did not support the prosecution case and that is how the court came to the conclusion of no evidence against the accused. This is clearly not a case of clean acquittal or an honourable acquittal. Eventually, it would be for the employer to judge the effect of involvement of a person who is likely to serve the police department as Constable for years to come.
In the result, the appeal is allowed. Judgment of the learned Single Judge is reversed."
Coming to the facts of the case, we noticed that the petitioner was involved for offence punishable under Section 379 IPC. Though he was acquitted by the trial court but the same was not clean acquittal but mere on benefit of doubt.
In the result, the appeal is allowed. Judgment of the learned Single Judge is reversed.
(UMA SHANKER VYAS),J (AKIL KURESHI),CJ Anil Goyal/BM Gandhi/3 (Downloaded on 10/12/2021 at 09:38:03 PM) Powered by TCPDF (www.tcpdf.org)