Central Administrative Tribunal - Delhi
Om Prakash Meena vs Union Of India Through on 23 November, 2010
Central Administrative Tribunal Principal Bench O.A. No. 3424/2009 New Delhi, this the 23rd day of November, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Om Prakash Meena S/o Shri Jaisi Ram Village and P.O. Jagjeevan Pur, Teh-Weir, District Bharatpur (Rajasthan), Pin Code-321408. ..Applicant By Advocate: Ms. Neha Gupta Versus 1. Union of India through General Manager, Northern Railways, Baroda House, New Delhi. 2. Divisional Railway Manager, Delhi Division, Chelmsford Road, New Delhi. 3. Sr. Divisional Personnel Officer, Northern Railway, Delhi Division, Chelmsford Road, New Delhi. Respondents By Advocate: Shri Saba Rahman. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
It is submitted by the applicant that he was given offer of appointment on 21.1.2009 and training to the post of Apprentice DSL, Technician Grade-III/Mechanical after he was selected through the RRB/CGD vide letter dated 10.11.2008.
2. On 7.2.2009 applicant filled attestation form and gave it to the department along with all the documents. Applicant was given show cause notice dated 23.7.209 as to why his candidature should not be treated as cancelled as he had suppressed the facts that he was booked in case No.214/2002 under Sections 143, 323, 379, 447, 504. Though he was acquitted but he had given false undertaking in Column. 12 (1) of the attestation form.
3. It is stated by the applicant the he could not remember any such case so he enquired from Dy.SP, Bharatpur, Rajasthan, who informed him that long time back on 24.11.2001, one Mr. Harsahay Meena S/o Shri Ramdhan Meena R/o VPO Jagjeevan Pur, Teh-Weir, District Bharatpur, Rajasthan, the neighbour of the applicant had lodged an FIR No.214/02, u/s 143, 323, 378, 447, 504 IPC, wherein the complainant had alleged certain allegations against six people including the applicant. Accordingly, on 23.12.2002 case No.142/2002 was registered but within 2 weeks the said complaint was withdrawn by the complainant on 8.1.2003 in view of a compromise.
4. Applicant gave his reply explaining all these facts and by stating that the complaint was absolutely false and baseless. Neither the police had called him in the police station for any investigation, nor he had received any information from any other source whatsoever about the registration of FIR or any case thereafter. After the registration of the FIR the applicant was neither arrested nor kept in detention, fined, convicted, sentenced or punished by the police or any judicial authority, nor had the police filed any challan against the applicant in the concerned court. Moreover applicant had never been served with any summon for his appearance by the concerned court, therefore, there was no clue to the applicant that he had ever been involved in any case or any FIR had been registered against him, therefore, answer to Col.12 (1) of the attestation form cannot be said to have been given with any mala fide intention to gain any benefit but it was given under the bona fide belief in given circumstances, therefore, show cause notice may be withdrawn.
5. However, without considering these facts, the respondents cancelled his candidature vide order dated 10.8.2009 (page 13). Applicant has challenged this order in the present OA and has sought a direction to the respondents to confirm the candidature of the applicant for the post of App. Tech Grade III/DSL, in the interest of justice.
6. Respondents have opposed this OA. They have stated after applicant was given offer of appointment he submitted copies of documents along with attestation form. In the attestation form itself, warning was given at the top as under:-
(i) The furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under the Government.
(ii) If the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his service would be liable to be terminated.
7. The applicant in relevant Col.12 had given false declaration concealing the facts of a criminal case registered against him, which came to light on verification by the Dy.SP/Bharatpur, who revealed that the applicant was booked under case No.214/2002 under Section 143, 323, 379, 447, 504 IPC on 24.11.2002, which was challaned vide CS No.142 dated 23.12.2002 under Section 323/341/325 IPS. Subsequently, he was acquitted by the Judicial Magistrate, District Bharatpur based on a compromise. Since applicant had suppressed the vital information and had given false undertaking in Column 12 (1) of the attestation form thereby concealing the facts, he was rightly issued the show cause notice. His reply was considered but it was not found correct because the questions were both in English and Hindi. The candidature was, therefore, rightly cancelled in terms of the warning. They have thus prayed that the OA may be dismissed.
8. We have heard both the counsel and perused the pleadings also. Before we discuss the facts of the present case, we would like to refer to the latest judgment given by the Honble High Court of Delhi in the case of Government of Delhi and Another Vs. Robin Singh wherein the question whether the pendency of a criminal proceeding or a conviction or for that matter a criminal proceeding which has already terminated either in conviction or an acquittal be a justified ground to dismiss a Government servant from service or deny entry into Government service, has been beautifully dealt with after examining different facets of the issue.
9. The brief facts of the case were that the respondent in that case had applied for the pot of Sub Inspector in Delhi Police. In the attestation form filled by the respondent similar warning was given. In response to question No.13 respondent had written No. The question and answers were as follows:-
13. (a) Have you been arrested/prosecuted kept under detention of bound down/fined, convicted by a court or law for any offence or debarred/disqualified by any public service commission from appearing at its examination selection or debarred from any other educational authority/institution?
No
(b) Whether any FIR was ever registered against you in any Police Station? If yes, give complete details.
No.
(c) If any case pending against you in any court of law university or any other education authority/institution at the time of filling up this attestation form. (If the answer to (a) and (b) is yes, full particulars of the case arrest, detention, fine, conviction sentence etc. in the nature of the case pending in the country, university/education authority etc., at the time of filling up this form should be given.
No. within few days thereafter respondents had informed the authority that on a private complaint filed by a complainant before a learned Magistrate pertaining to the offence punishable under Section 323/504/506 IPC, he was acquitted on 9.6.2008. However, looking at his reply to question No.13 in the attestation form, the respondents therein was given a show cause notice dated 30.7.2008 as to why his candidature should not be cancelled since he had given false information in the application and attestation form.
10. Respondents therein gave the reply stating therein neither any FIR was filed against him nor he was ever arrested. Only a criminal complaint was filed u/s 323/504/506 IPC. Charge was framed on 6.6.2008, therefore, on 28.3.2008 when respondent had filled the attestation form, it could not be stated that any criminal case was pending against him or he had concealed the fact. He had thus prayed that the show cause notice may be withdrawn specially when he had given the said information on his own vide application dated 8.7.2008.
11. Ignoring his defence, his candidature was cancelled vide order dated 22.9.2008. The respondent therein had challenged the order dated 22.9.2008 in the Tribunal by filing OA No.2367 which was allowed noting that he was acquitted of the charge on 9.6.2008. The department was directed to take steps to issue appointment letter to the respondent subject to fulfillment of other conditions by the respondent.
12. This order was challenged before the Honble High Court of Delhi by the department on the ground that the charge against the respondent in the show cause notice was one of concealment and in respect thereof the factual foundation was laid by stating that the complaint was filed against him on 25.10.2006 and he applied for the job on 10.11.2007. The respondent was fully aware about the criminal case against him on 8.1.2008 yet while filling up the Attestation Form on 28.3.2008 he deliberately did not disclose the information. They had submitted it hardly mattered if the respondent was ultimately acquitted. It was highlighted that the respondent was seeking employment in the police force which required utmost integrity, propriety and probity of character and that a person who had a brush with criminal law was not suited to be appointed as a member of the police force.
13. Honble High Court noted that the respondent therein had learnt about the non-cognizable case on 8.1.2008 as the Learned Magistrate had issued a process for the respondent to appear before him. He appeared also on 12.1.2008, therefore, he knew about this case on 23.8.2008 when he filled up the attestation form.
14. Having noted so Honble High Court observed as follows:
16. It is no doubt true that police plays an essential role of enforcement of law and order in modern societies. Without an efficient police force, a society would become anarchic. To ensure that the police force of a state is efficient, the state must ensure that each individual recruited to the police force, at whatever level, must possess the following attributes:-
(a) Physical Strength and fitness/Free from medical diseases.
(b) Emotional maturity, and ability to remain calm in emotionally charged situations.
(c) Ability to exercise initiative in their work.
(d) Good moral character and integrity.
(e) The ability to carry a great deal of responsibility in handling difficult situations alone/ dependability.
(f) Good Judgment.
17. Keeping in view the above attributes, which are the minimum required of a person who becomes a member of the police force, it becomes the duty of the State to carefully screen the candidates with reference to the aforesaid attributes. But, what we find in India is that the only screening done is with respect to the moral character and integrity, physical strength and free from medical disease. Evidenced by the instant case, the first attribute is sought to be verified by archaic means i.e. checking on the police dossiers or relying upon information provided by the candidate himself and the second, of physical strength, by subjecting the candidates to a physical test, and of being free from medical disease by conducting the medical examination. No evaluation pertaining to the emotional maturity, ability to remain calm in emotionally charged situations, ability to handle difficult situations and be responsive and the ability of initiative in work is conducted.
18. We find that in some jurisdictions abroad, such as United States of America, Canada, Philippines, to name a few, a psychological test is conducted to ascertain the suitability of candidates commensurate to the nature of job they are being inducted to. At times a polygraph test is also conducted to check the deceiving tendencies of candidates. Because so much public trust is placed in peace officers, candidates for these positions are carefully screened to rule out emotional instability, poor judgment, lack of dependability, or other problems which might negatively affect their law enforcement work.
19. A criminal record is a record of a person's criminal history, generally used by potential employers to assess the candidates trustworthiness. The information included in a criminal record varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offenses and may also include traffic offenses such as speeding and drunk-driving. In some countries the record is limited to actual convictions (where the individual has pleaded guilty or been declared guilty by a qualified court) while in others it also includes arrests, charges dismissed, charges pending and even charges of which the individual has been acquitted. The latter policy is often argued to be a human rights violation since it works contrary to the presumption of innocence by exposing people to discrimination on the basis of unproven allegations.
20. It is unfortunate that in India we are not marching ahead in the comity of nations and prefer to be governed by the recruitment processes which are a legacy of the British era; ignoring that the purpose of governance then was to rule and the purpose of governance now is to serve.
21. We have prefaced our decision with the statement whether pendency of a criminal proceeding or for that matter a conviction by a competent court of law may justify eyebrows to be raised, but would it justify the shutting of ones eye?
22. Now, a man can be booked for the offence of over-speeding and perhaps may be convicted for parking his motor vehicle in a non-parking area. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service? The answer would be in the negative. As against that, a man has committed murder or has broken into a departmental store and stolen cash. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service. The answer would be in the affirmative.
23. Not to induct persons with a criminal background in public service, is based on the premise that considerations of public policy, concern for public interest, regard for public good would justify a prohibition. Thus, the primary consideration is, whether public interest and public good would be jeopardized if a person with a criminal background is inducted in public service. And this takes us straight to the core of the issue, whether brush with penal law would justify the eyes to be closed against the offender or only such brush with penal law which is of a higher degree of criminality. If the answer is in the negative, the further question: what should be the higher degree of criminality which would justify the eyes being shut to such person needs to be addressed.
24. With respect to the first two examples given by us in para 22 above, none would argue that for such trivial offences the eyes must be shut against the offender, and with regard to the next two, everybody would agree that the eyes should be shut to such a person who has to be ignored. We concede that the examples are in the extreme, but they certainly help us in understanding as to the process of reasoning required to be adopted to decide as to on which side of the border-line a case would fall.
25. A look at the penal laws in India would show that most of the penal offences can be categorized under two broad categories i.e. felony and misdemeanour. A further look at the sections stipulating penalties would show that felonies are treated as more grave vis-`-vis misdemeanours. Further, by classifying offences as cognizable and non-cognizable, higher and lower degrees of criminality to the offences can be discerned. Further, by classifying offences as bailable and non-bailable, the degree of criminality can be further discerned.
26. The civil concept of an offence being of a depraving character is to look at whether the act complained of suffers from the tag of a moral turpitude or not.
27. We do not intend to make a catalog of reported decisions as to what misdemeanours should normally attract the penalty of removal or dismissal from service. We may simply state that with respect to conviction for grave and serious offences alone, on the anvil of public interest and for public good, Courts have held that the offender has rendered himself unfit to continue in office and in extreme cases summary dismissal or removal from service by invoking Article 311 of the Constitution is also held justified.
28. Thus, we have a guideline of serious and grave offences being the touchstone in case of the door being shown to the government servant.
29. Looking through the prism of case law pertaining to when can the door be shown to a government servant and by doing reverse engineering we can safely say that what is good for the door to be shown, is good for prohibiting entry through the door, and thus while denying public employment with respect to the offence committed by a person, it can be said, and we say so, that it may be a serious violation of the constitutional right of a citizen to be fairly treated in the matter of public employment if trivial offences committed by the citizen would justify the State shutting its eyes and denying employment.
30. Having answered the question posed in para 1 above, and the answer being in favour of the citizen, we need to answer the further question as to which offences or brush therewith, would justify non entry into public service.
31. We have a clue; of offences being grave, serious and involving a moral turpitude justifying public employment not being given. These would certainly not justify the offender being inducted into public service. None would disagree that convicted and fined for parking a car in a no-parking area or convicted for over-speeding would attract the de minimis principle, but the problem would be in cases closer to the borderline. For therein would lie the problem as to in which side of the boundary line should they be categorized.
32. It is unfortunate that in India, the Government does not come out with white papers of the deliberations at various seminars, but we find a reference made to the All India Seminar on Correctional Service held at New Delhi in March 1969, to consider and lay guidelines pertaining to the problem of rehabilitation of ex-convicts, with emphasis on the need for their employment under the government. Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude. The said OM lists the under-noted penal offences as grave, serious and involving moral turpitude, disentitling the convict to public employment; the offences are:- Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182, 193 to 201, 205, 209, 293, 302, 304, 307, 354, 359, 362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377, 379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409, 417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to 476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code.
33. We are a little surprised at the list as it excludes offences such as promoting enmity or doing acts prejudicial to maintenance of harmony i.e. offences punishable under Section 153-A IPC. It excludes offences pertaining to mutiny and its abetment i.e. offences under Sections 131 to 136 IPC. But we do not comment. However, what we find is, the common thread of including all offences against women and such offences which are punishable with imprisonment for life as also imprisonment for a term exceeding three years and above. We get a clue. Offences which do not carry a mandatory sentence of imprisonment and it to be imprisoned the term is less than 3 years and the offender can be let off with payment of fine, are not included in the said list. It is an undisputed fact that there are no rules to guide the authorities in Delhi Police as to in what cases despite acquittal, the person can be kept out of service or can be deprived of employment.
34. That apart, as generically understood, offences involving moral turpitude can be classified with reference to the act being one which shocks the moral conscience of the society in general and this can be determined with reference to the motive of the offender i.e. whether the motive which led to the act was a base one or alternatively whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
35. Today, with plea bargaining being a well-recognized facet of the administration of criminal law and a part of criminal jurisprudence in India, we do perceive a large number of cases involving thousands and thousands throughout the country, appearing before the Summary Courts and paying small amounts of fine, more often than not, as a measure of plea bargaining. Foremost would be amongst them petty crimes committed mostly by the young and/or the inexperienced. Some may even undergo a petty sentence of imprisonment of a week or ten days. We may also notice that Section 302 Cr.P.C. prescribes for taking note of compoundable offences at the instance of the complainant itself and there are cases where compounding can take place with the permission of the Court.
36. Life is too precious to be staked over petty incidents and the cruel result of conviction for petty offences being the end of the career, the future and the present, of young and inexperienced persons cannot blast their life and their dreams.
37. In a growing democracy, where the systems are failing and the weak and the downtrodden are hardly given the opportunity to sharpen their intellect thereby diminishing the ability of their consciousness to act as a mirror to their acts and actions, it is high time that the executive brings into place a policy where summary/ordinary conviction should not be treated as a conviction for entry or retention in government service.
38. Till then, it would be the duty of the Court to interpret the law by harmonizing human sufferings and human wants, delinquencies and criminal tendencies; conscious of the fact that passengers on Spaceship Earth are the rich and the poor, the needy and the well-off, the hungry and the well-fed, the educated and the uneducated. The need of the hour is to understand that criminals are not born and are not irredeemable brutes. Crime may be a disease but not the criminal, who are a kind of psychic patients and to understand, that anti-social maladies are mostly the result of social imbalances. It must be remembered that on the one hand, social stresses, for various reasons, explosively mount in the real worlds hard environs and the harsh remedy of heartless incarceration and ouster from society deepens the criminality. The swing of the pendulum to the humanist side requires respect for the worth of personhood and the right of every man and woman in its residual human essence.
39. What is the gravamen of the allegation constituting the act committed by the respondent which was treated as voluntarily causing hurt is not known to us. What was the nature of insult heaped upon the complainant which attracted the offence punishable under Section 504 IPC and what was the act which attracted the crime of criminal intimidation is also not known. But from a trinity of the three i.e. the alleged offence punishable under Section 323 IPC, Section 504 IPC and Section 506 IPC we can safely presume that the allegation against the respondent was of abusing the complainant and threatening to beat him followed by simple beating.
40. All these offences are non-cognizable and needless to state are bailable. No moral turpitude, as generically understood, is involved. The acts do not shock the moral conscious of the society and with reference to the motive do not evidence a person with depraved character. The offences are not of the kind which would justify dismissal or removal from service, if the respondent had committed the same if in service.
41. Thus, being charged with the said offences, of which the respondent has ultimately been acquitted, would not be a bar and cannot be treated as a bar to seek public employment and on being successful at the entrance exam, to be denied the same.
42. As noted in para 5 and para 6 above, the charge was of acting deceitfully by withholding relevant information. With reference to our discussion in para 15 above, it is apparent that the wrong information pertained to only a part of the information sought vide serial No.13 (a) and (c) of the attestation form, by not informing that a criminal complaint pertaining to a Non-Cognizable Report was pending against him. In para 15 above we have recorded that part information was wrong, but was it out of deceit would be dealt with later and hence we discuss said aspect.
43. Though not attracting the de minimis principle as explained by us in para 31 above, the offences alleged to be committed by the respondent are fairly trivial and it is in this context the wrong answer has to be considered and appreciated.
44. This takes us to the issue of whether the wrong partakes the character of deception.
45. Now, every wrong information may not necessarily be deception. A person may be wrong, but under the bona fide belief that he is right, he furnishes the information. This would not be deception.
46. As per his reply to the show cause notice, contents of which reply have been noted by us in para 7 above and analyzed in para 8 above do show, though erroneous, the respondent claims forming a bona fide belief that unless a charge is framed in a non-cognizable offence and pursuant to a Non-Cognizable Report, that no case is pending against him.
47. We have no reason to doubt that under a mistaken legal belief the respondent wrote back that no case was pending against him in any court of law. Thus, the charge of deception as laid in the show cause notice dated 30.07.2008 is not sustainable.
48. Hence, the reason for denying employment has to fail.
49. The last issue which we need to discuss is, whether the respondent should be denied employment in the Police department. It was urged by learned counsel for the petitioner that persons who have a brush with criminal law, even if they are acquitted, are undesirable elements to be inducted as Police Officers. As stated above, there are no guidelines available with the petitioner to declare as to who is undesirable element to prohibit his induction in Delhi Police.
50. The respondent is not being inducted in the higher cadre of the Police i.e. the IPS cadre. He is entering the lower rungs. His address shows his rural background. The same is: R/o VPO Mulhera, District Meerut, U.P.
51. We have discussed hereinabove the necessity to harmonize the various social imbalances and in particular in favour of those who have been denied the opportunity of developing their consciousness and thereby being deprived of their conscious acting as a mirror to their acts. We have highlighted as to how in various jurisdictions abroad the issue is dealt with. We have discussed hereinabove the deliberations at the All India Seminar on Correctional Service where emphasis for re-habilitation of ex-convicts, committing minor offences, by induction in public service was accorded primacy in the deliberations.
52. It would be advisable for the petitioner to devise a selection procedure by subjecting those who are desirous of seeking employment under the Police to the various tests which we have noted in para 16 above and which we have culled out from jurisprudence followed in matured democracies.
53. The respondent was born on 21.05.1987. The age of the respondent when he was made an accused in the Non-Cognizable Report would be 19 years. The trivial offence of what he was charged of, in which he has been acquitted, cannot make him a criminal of a kind where public interest requires his non-induction in the Police force and that too as a Sub-Inspector (Executive) and that means his duties would be clerical and not with arms and surely not on the streets requiring him to deal with public. Assuming that the petitioner did the acts of which he was accused of, the same is a trivial brawl which he had in the village. Some fist blows with choicest abuses in tandem were hurled at the victim.
15. Perusal of above shows that Honble High Court has dealt with the issue threadbare and after discussing different facets of the issue summed up the case by holding as follows :
The trivial offence of what he was charged of, in which he has been acquitted, cannot make him a criminal of a kind where public interest requires his non-induction in the Police force and that too as a Sub-Inspector (Executive) and that means his duties would be clerical and not with arms and surely not on the streets requiring him to deal with public. Assuming that the petitioner did the acts of which he was accused of, the same is a trivial brawl which he had in the village. Some fist blows with choicest abuses in tandem were hurled at the victim.
16. If the facts of present case are seen in the backdrop of above judgment, we note in November, 2002 an FIR was filed against the applicant u/s 323/341/325 IPC and within 2 months, the case was withdrawn by the complainant as the matter was compromised. It is not the case of the respondents that charge was framed against the applicant. The charges under which FIR was filed against the applicant were under Section 323 which deals with simple hurt, Sec. 341 deals with Punishment for wrongful restraint - Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both and Section 325 deals with grievous hurt. Offence under Section 323 is non-cognizable while offences under Section 325 & 341 are though cognizable but they are compoundable as the option of person who has received hurt. All the offences are bailable. In this case also, no moral turpitude can be said to be involved specially keeping in view the fact that within 2 months the complaint was withdrawn also as is evident from the report received by the respondents meaning thereby that the complainant was not even serious about his complaint. Moreover, applicant has stated he was not even aware about this case which was filed way back in 2002 and was withdrawn also within 2 months.
17. In these circumstances, if applicant did not mention about it in the form, it cant be stated that the applicant had concealed the facts with a mala fide intention to gain entry in Railways, as explained by the Honble High Court in para 45 of above mentioned case. In any case in this case also the charge was of trivial nature which was not even allowed to be taken to its logical conclusion, therefore, on this ground alone there is no justification to cancel the candidature of the applicant.
18. In view of above, order dated August, 2009 being not sustainable in law is quashed and set aside. Respondents are directed to pass appropriate follow up orders for appointing the applicant after completing the formalities by ignoring the show cause notice within 4 weeks from the date of receipt of a copy of this order under intimation to the applicant. Applicant would be entitled to seniority from the date when his batch was appointed but he would not be entitled to any back wages as he had not performed any work on the post.
19. The O.A. is allowed. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
Member (A) Member (J)
Rakesh