Central Administrative Tribunal - Delhi
Shri Mahendra Singh vs Govt. Of Nct Of Delhi Through on 18 March, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1577/2012 Order reserved on 18th March 2013 Order pronounced on 03rd April 2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Shri Mahendra Singh, S/o Shri Jaynarayean Singh, R/o Vill. Marigsar Post Bhimsar, Distt. Jhunjhunu, Rajasthan, Presently in Delhi. Applicant (By Advocate: Ms. Jasvinder Kaur) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 2. Deputy Commissioner of Police, Establishment, 9th Floor, PHQ IP Estate Delhi. .Respondents (By Advocate: Smt. P.K. Gupta) O R D E R
Shri G. George Paracken:
This Original Application has been filed by the applicant against the impugned order No.1634/Rectt. Cell (AC-II)/PHQ dated 15.03.2012 whereby the respondents have rejected and cancelled his candidature for the post of Constable (Driver) in Delhi Police.
2. The brief facts of the case are that the applicant was selected provisionally for the post of Constable (Driver) in Delhi Police during the recruitment held in the year 2009 subject to satisfactory police verification report of his character and antecedents etc. The Applicant while filling the Application Form as well as the verification form with regard to the aforesaid recruitment had disclosed that a case FIR No.152/1999 u/s 19/54 of the Excise Act and 353 IPC was registered against him in PS Kotwali, Distt. Jhunjhunu, Rajasthan on 07.05.1999. The Respondent made further enquiry in the matter. According to the verification report dated 02.08.2011 received from DM/Jhunjhunu, Rajasthan also in the facts as stated by the Applicant was confirmed. Thereafter, his case was placed before the Screening Committee constituted by the Commissioner of Police to assess his suitability. According to the Respondents, the Screening Committee assessed his suitability for the aforesaid post keeping in view of the nature of his involvement in the said criminal case, gravity of the offence committed by him, the judgment of the courts in the matter and the grounds of acquittal. The Respondents have also stated that the Screening Committee has considered the judgment of the Honble Supreme Court of India in such cases especially the judgment dated 04.10.1996 Civil Appeal No.13231/1996 [arising out of SLP (C ) No.5340 of 1996] in DAD Vs. Sushil Kumar decided on 04.10.1996. The Committee found that the aforesaid FIR was registered against unknown persons on the complaint of Shri Rajender Sharma, SHO/Kotwali who reported that on 07.05.1999 at about 2:45 AM while he was patrolling in the government vehicle at Housing Board, one Tata-407 having registration No. RJ 18G0407 driven rashly came from Indra Nagar. On suspicion, he tried to stop the vehicle but it sped away towards Bisau Churu Road. He chased the vehicle in his govt. vehicle but driver of the truck changed his direction towards Bisau Road at Churu Bisau Trijunction. Thereafter the three persons from the truck started throwing liquor on the police party to cause hurt and to escape from them. The truck driver turned the vehicle to rough road but the vehicle struck in deep sand and could not move forward. The driver and other persons fled away from the vehicle. However, on inspection, 30 cartons each containing 12 bottles of Thunderbolt, 03 Thunder Beer Bottles (650 ML) in loose, 04 cartons each containing 12 bottles and 01 carton containing 11 bottles of English wine brand in each were found by the SHO in the vehicle. On scrutiny, no authorization certificate or licence for the liquor was found in the vehicle. On the basis of the aforesaid report, the Applicant along with other accused was charge-sheeted in the Court of Chief Judicial Magistrate, Jhunjhunu, Rajasthan. However, during the trial, the complainant SHO did not appear in the Court. The prosecution also failed to send the samples of the seized case property sent to CGSL lab intact in sealed cover. Further, the police did not conduct any identification parade of the accused persons. However, according to the Screening Committee, the circumstantial evidence clearly points towards involvement of the applicant and the driver of the aforesaid truck, as the owner of the truck, during the police investigation, informed that he had given the truck to him, even though, during the trial, the owner resiled from his statement. The Committee, therefore, came to the conclusion that the applicant played an active role in transporting huge quantity of illicit liquor without any licence/permit. His involvement in such type of crime shows disrespect for law of the land and renders him unsuitable for appointment in a disciplined Force, like Delhi Police. Therefore, the Respondents have issued a show cause notice to the applicant on 09.12.2011 to show cause on or before 27.12.2011 as to why his candidature should not be cancelled. Accordingly, he filed his reply. However, according to the Deputy Commissioner of Police, Establishment, Delhi who issued the aforesaid show cause notice, he went through the Applicants reply but it was not found convincing. Again, according to the said officer, the Applicant was also called for personal interview and he appeared before him on 27.01.2012 but he did not say anything except what he had already stated in his reply to the show cause notice. Therefore, the said Deputy Commissioner of Police, Establishment, Delhi, vide his impugned order dated 15.03.2012, cancelled the candidature of the applicant to the post of Constable (Driver) in Delhi Police. The applicant has challenged both the aforesaid show cause notice and the order of the cancellation of his candidature before this Tribunal in this O.A.
3. Respondents have filed their counter reply on the same lines as in the impugned order.
4. We have heard the learned counsel for the applicant, Ms. Jasvinder Kaur and the learned counsel for the respondents, Smt. P.K. Gupta. In our considered view, the impugned order dated 15.03.2012 is an abuse of the principles of natural justice. It is absolutely an order passed without application of mind by the authority concerned. A reading of the aforesaid impugned show cause notice dated 09.12.2011 and the order dated 15.03.2012 canceling the candidature of the applicant would give an impression that the Screening Committee has applied its mind to assess the suitability of the applicant because both those documents say that the Screening Committee considered the nature of his involvement in the criminal case, gravity of the offence, the judgment of the court, the grounds of acquittal and the judgment of the Apex Court in the case of DAD Vs. Sushil Kumar. But both these impugned documents do not say a single word about the involvement of the Applicant in the criminal case. The offence alleged against the Applicant was under Section 19/54 of the Excise Act and Section 353 of the CPC. The Screening Committee has not gone into those sections to come to any conclusion about the gravity of the offence. Though, it is stated in the impugned order that the Screening Committee has considered the judgment of the Criminal Court but not even a word has been said about grounds of acquittal. Again, according to the Screening Committee, they have considered the judgment of the Honble Supreme Court of India dated 04.10.1996 passed by the Honble Supreme Court of India in a Civil Appeal No.13231 of 1996 [arising out of SLP ( C) No.5340 of 1996] DAD Vs. Sushil Kumar. First of all, the judgment is not dated 04.10.1996. It is dated 14.10.1996. The name of the first party of the said case is not DAD but it is Delhi Administration through its Chief Secretary and Others. Further, as to how the said judgment would apply in the present case is not explained by the Screening Committee. In our considered view, the Screening Committee has not applied its mind at all.
5. Further, it is seen that the Deputy Commissioner of Police has issued a notice to the Applicant to show cause as to why his candidature should not be cancelled in view of the aforesaid view of the Screening Committee. The Applicant submitted his reply. But the Deputy Commissioner of Police himself considered the reply to the show cause notice and found it not satisfactory. Again, he himself has given an opportunity to the Applicant of personal hearing but held that he could not say anything beyond what he had stated in his reply. We found the procedure adopted by the Respondents quite strange. It was the Screening Committee consisting of very senior officers of the Respondents constituted by the Commissioner of Police which examined the case of the Applicant to assess his suitability for appointment. It was the said Committee prima facie found him unsuitable. The Applicant replied to show cause notice and tried to convince that the findings of the Screening Committee in his case was not correct and requires reconsideration. But it was a Deputy Commissioner of Police who was comparatively a lower grade officer who considered the reply of the Applicant to the show cause notice and rejected it. In such a situation, the question that arises is whether the show cause notice has any sanctity or not. When the Screening Committee was of the prima facie view that the Applicant was not suitable for appointment and before a final decision in the matter is taken, it has decided to put the Applicant on notice, it shall be the same authority to consider the reply. Otherwise, it will only be an empty formality to issue such a show cause notice.
6. This Tribunal has recently considered various cases decided by this Tribunal, Honble High Court of Delhi and the Apex Court on the issue and held out the following circumstances under which the candidature of the persons appearing in various competitive examinations/selections could be cancelled. The relevant part of the order in O.A. No.4219/2011 and connected cases reads as under:-
(i) The modern approach should be to reform a person instead of branding him as a criminal, all his life.
(ii) The approach and attitude in considering the cases of applicants who have been convicted in any criminal case should have a change; the minor indiscretions made by the young people shall be condoned,
(iii) Filling up the application forms truthfully, disclosing that the candidate was prosecuted and convicted alone by any criminal court does not entitle a person to be appointed in the Police service. The administrative authority may adjudge his suitability based on the grave and serious offence and the moral turpitude in which he is involved,
(iv) Merely because one was involved in a criminal case but acquitted before the date of appointment for which he has given all information to the authorities required under the law, he cannot be denied employment,
(v) Merely because an FIR was lodged against a person, it cannot ipso facto lead to the conclusion that he cannot be treated unsuitable for public service.
(vi) Merely because a person has been prosecuted in respect of any criminal offence but has been acquitted of those offences alleged against him, he cannot be disqualified for public appointment,
(vii) Conviction, not on account of any moral turpitude shall not be treated as conviction for the purpose of disqualifying a candidate for his entry into service and his further retention in service,
(viii) Mere involvement in a criminal case or registration of an FIR is not a proof of involvement in a criminal case, unless the trial court delivers the verdict holding one guilty of the offences,
(ix) A person with stigma cannot be enrolled but an innocent person cannot be denied the right for public employment, if he has been falsely implicated and there is no incriminating material against him,
(x) A candidate who has been convicted in heinous crime and who concealed those information in the application and attestation forms shall not be enrolled,
(xi) The case of a candidate who has been acquitted in the criminal case but concealed that information in the application and attestation forms should be carefully examined by the Screening Committee and appropriate decision shall be taken, particularly from the point of view his moral character and any other cases pending against him,
(xii) Once the findings of the trial court are based on the fundamental principles of the criminal jurisprudence, the acquittal is the presumption of one being innocent,
(xiii) Administrative authorities should not overreach or override whatever is recorded on judicial side by the court of criminal jurisdiction,
(xiv) If the acquittal by the trial court is not challenged by the prosecution in the higher forum by making an appeal against the acquittal, the decision of the trial court acquitting the accused stands final and cannot be questioned or interpreted otherwise by the administrative authority,
(xv) In order to minimize discretionary powers disentitling the persons convicted for offences to public employment, such offences shall be of grave and serious nature and involving moral turpitude, (xvi) Guidelines issued by the Executive authorities in their Standing Orders shall be followed strictly and there shall be specific reasons on record for departure from them, (xvii) Plea bargaining and concept of summary trials shall be given due consideration and the persons concerned shall not be made disentitled for public employment notwithstanding that he has been acquitted, (xviii) The primary consideration shall be, whether public interest and public good would be jeopardized if a person with a criminal background is of inducted in public service, (xix) Whether the accused has been acquitted by giving benefit of doubt or it is a clean acquittal has to be seen after going through the judgment of the criminal court fully. Here also the nature of offences has to be considered properly, (xx) In the case of acquittal from the charge by the court pursuant to the compromise arrived at between the parties and the witness did not support the prosecution, the nature of the offence has to be gone into; and (xxi) In the case of compounding offence also, what is important is the nature of the offence.
(xxii) Respondents are within their right either to cancel the candidature or to terminate the service of one who deliberately withhold or suppressed relevant information.
(xxiii) The Screening Committee shall consider each issue with due application of mind and not in a routine or mechanical manner. It shall also give detailed and reasoned order while rejecting the candidature of any person observing the principle of natural justice
7. Going by the merits of this case, it is seen that cancellation of the candidature of the applicant is absolutely unwarranted. By the respondents own submission, the case FIR 152/1999 u/s 19/54 of the Excise Act and 353 IPC was registered against unknown persons. The Rajasthan Police has involved the applicant in the aforesaid case on the basis of the statement obtained from the owner of the truck which was involved in the incident that he had given the said truck to the applicant. They have, at the same time, stated that the truck owner has stated before the criminal court that he has not made any such statement before the police. Further, they themselves have admitted that no identification parade has been conducted by the Rajasthan police and the complainant SHO Rajender Sharma himself was not present in the Court. It was for the said reason that the Chief Judicial Magistrate, Jhunjhunu, Rajasthan acquitted the applicant along with co-accused Shri Rakesh Kumar and Shri Kamal Singh, vide its order dated 02.04.2005. The CJM has very clearly stated in his judgment that there was an attempt by the police to connect them with the incident but the prosecution failed to prove that they had any actual involvement in it. The CJM has also observed that the applicant and other accused persons were not even sent for identification parade and as a result their identities were not established and thus the prosecution failed to prove the allegation against them that they were the persons sitting in the Tata 407 No.RJ 185G 0407 and attacked the police party and that the seized liquor was recovered from their custody. Further, the trial court has observed in its judgment that there was no mention that the liquor samples seized, kept in the Malkhana and sent to the Forensic Science Laboratory were in the sealed cover.
8. Considering the above facts and circumstances of the case, we are of the firm view that merely because there was an FIR lodged against the applicant, it cannot ipso facto lead to the conclusion that he is unsuitable for public service. This is particularly so, when the applicant was duly prosecuted in the criminal offence alleged against him and he has been acquitted. In such circumstances, the selection committee could not have overreached or over ridden whatever has been recorded on the judicial side by the court of competent criminal jurisdiction. Therefore, the Annexure A-3 show cause notice issued to the applicant by the Deputy Commissioner of Police, Establishment, Delhi on 09.12.2011 as to why his candidature for the post of Constable (Driver) 2009 in Delhi Police should not be cancelled and the subsequent impugned Annexure A-1 order dated 15.03.2012 canceling his candidature are absolutely arbitrary and illegal. They are, therefore, quashed and set aside. We also direct the respondents to appoint the applicant against the aforesaid post of Constable (Driver) in Delhi Police along with his batch mates forthwith with all consequential benefits except arrears of pay and allowances. The necessary orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this order.
9. With the aforesaid directions, the O.A. is allowed. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
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