Central Administrative Tribunal - Delhi
Praveen Yadav vs Gnct Of Delhi on 12 November, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2255/2009 Thursday, this the 12th day of November 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Praveen Yadav s/o Shri Ram Kishan r/o Village & PO Tent Tehsil & Distt. Rewari (Haryana) ..Applicant (By Advocate: Shri Ajesh Luthra) Versus 1. GNCT of Delhi through Commissioner of Police PHQ, MSO Building IP Estate, New Delhi 2. Dy. Commissioner of Police (Rectt. Cell) New Police Lines Kingsway Camp, New Delhi ..Respondents (By Advocate: Shri Chandramani Bhardwaj for Ms. Rashmi Chopra) O R D E R (ORAL)
Shri Shanker Raju:
Heard the learned counsel for the parties.
2. Cancellation of candidature of a Constable in Delhi Police pursuant upon a show cause notice dated 8.7.2009 by an order dated 4.8.2009 is the gravamen of the charge made out against the applicant.
3. It is trite in criminal law as well as the Criminal Procedure Code that there is no concept of honorable acquittal and an acquittal is good for acquittal purposes, which obliterates any stigma of being involved in a crime against the person, who has been charged with and proceeded against, as ruled by the Punjab and Haryana High Court at Chandigarh in Shashi Kumar v. Uttri Haryana Bijli Vitran Nigam, 2005 (1) ATJ HC 154.
4. Applicant, who applied for the post of Constable in the recruitment year 2008, was provisionally selected but on police verification, it had transpired that he was involved in FIR No.270/2008 dated 29.11.2008 under Sections 307/323/506/34 IPC, PS Khol, Distt. Rewari (Haryana) on the alleged offence of assaulting and threatening the complainant and other prosecution witnesses. A trial proceeded whereby the witnesses had not supported the version of the prosecution, which resulted in hostility of the witnesses and prosecutor sought permission to dispense with further evidence. Ultimately a judgment passed on 12.3.2009 by the Additional Sessions Judge, Rewari clearly states that prosecution witnesses have not supported the allegations leveled by the prosecution and it is specifically stated that the applicant was not a person, who had caused injuries to daughter, namely, Arti. In the above view of the matter, finding that the prosecution had utterly failed to bring home the guilt against the applicant, the accused person, including the applicant, stands acquitted of the charges. No appeal has been preferred against this order by the State, which means that the order has attained finality.
5. A show cause notice was issued to the applicant on the ground that though the applicant was acquitted in the appeal, yet examining the nature of injuries, Section 307 IPC was added and the applicant, along with brother, assaulted the complainant with a criminal intent and inflicted serious injuries. This has been responded by the applicant and in the order canceling the candidature decision in DAD v. Sushil Kumar (Civil Appeal No.13231/96) decided on 4.10.1996 has been referred to wherein it is stated that the nature of involvement in the above criminal case of the applicant makes him unfit to shoulder the responsibility of the post of Constable in the disciplined force.
6. On the other hand, learned proxy counsel for respondents vehemently opposed the contentions and stated that the decision in Sushil Kumars case (supra) gives prerogative and discretion to the authorities to ascertain the suitability of a selected candidate to the post. Though the applicant was acquitted of the criminal offence but his whereabouts show that he was of a criminal intent and such a person should not be allowed to be a part of the disciplined force, which has paramount responsibilities towards the security of the State.
7. On careful consideration of the rival contentions of the parties and perusal of material placed on record, we are of the considered view that in the realm of administrative discretion, the authorities even if acting as a quasi judicial authority would not be allowed to partake the character of a judicial authority by recording a finding over and above the finding recorded by a trial judge, who has been competent enough under the Cr. PC not only to adjudicate but also to consider the issue as to whether a person is guilty of an offence or not? Having held the applicant in a criminal trial on the basis of findings not guilty of the offence, as no incriminating evidence has come forth, it does not lie within the jurisdiction of Deputy Commissioner of Police to take a parallel view that the applicant was involved in the criminal case. It is trite in law that involvement or otherwise of a person in criminal offence is to be ascertained not only by examining the allegations in FIR but also on the basis of finality arrived to a prosecution lodged by the State. As in the present case, the State having miserably failed to establish the evidence against the applicant, we cannot hold that the applicant was guilty of any offence. If such a view is to be upheld in law, then what constituted an offence are the facts and these facts are the particular act of the applicant, which constituted an offence within the meaning of Sections 325 and 307 IPC. Having not been a guilty of such an offence, inference drawn from the allegations either in the FIR or on the basis of the statements of witnesses made under Section 161 of Cr. PC, would amount to picking an isolated portion of the investigation discarding the judicial findings or the record. The authority has acceded to its jurisdiction by not acting as a quasi judicial authority but partaking the character of the Judicial Magistrate recorded a finding over and above the finding of the trial judge, which has not been challenged by the prosecution in appeal. Having attained finality, it overrides any finding recorded on administrative side.
8. Insofar as the fitness and character of a person for appointment to Delhi Police is concerned, having been acquitted in the criminal case where no imputation and suspicion has been raised or observed by the trial court, we cannot substitute the views of disciplinary authority to hold him unfit for holding the post of Constable. A person acquitted of an offence if otherwise when no adverse material has been found against him. This is an obliteration of any stigma attached to the facts or the constituted facts of offence, for which a presumption and a legal inference in law has to be drawn that a person has not been involved in a criminal case. If such a view is taken, then the applicant was fit to be appointed to Delhi Police and wrongful denial is bad in law.
9. We are not oblivion of the fact that a similar litigation has gone to the High Court where a direction had been issued giving discretion to the appointing authority to adjudge the circumstances of the case and thereafter to take a view on appointment. However, applying the aforesaid in the instant case, the appointing authority has not considered this aspect in true perspective and merely because the offences are under Sections 307 and 325 IPC, totally ignoring the decision of the trial court whereby nobody has caused the applicant on any assault and the trial court having acquitted the applicant, a contrary view taken is non-application of mind and using the discretion in a most non-judicious manner, cannot be countenanced in law.
10. A similar view has been taken on a different context on the plea of discrimination by the coordinate Bench of this Tribunal in Anoop Kumar v. Govt. of NCT of Delhi & another (OA-178/2008) decided on 23.7.2008, which would buttress our plea and substantiate the cause of the applicant. We respectfully agree with the same and follow it.
11. Resultantly, OA is allowed by setting aside the impugned order and restoring the appointment of the applicant. Respondents are directed to now offer appointment to the applicant within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/