Central Administrative Tribunal - Delhi
Through vs Robin Singh (W.P. (C ) No.2068/2 on 4 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.4404/2010 New Delhi this the 4th day of February, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Ms. Kavita D/o Sh. Daya Nand r/o V.P.O. Barwasni Distt. Sonepat (Haryana) Through Ms. Simran Singh & Nitesh Kumar Singh, Advocates 243, Lawyers Chambers Delhi High Court, New Delhi. Applicant (By Advocate: Shri Ms. Simran Singh) v. 1. Govt. of NCT of Delhi Through Commissioner of Police Police Headquarters I.P.Estate New Delhi. 2. Dy. Commissioner of Police (Establishment) Recruitment Cell Police Headquarters, I.P.Estate New Delhi. Respondents O R D E R
By Shailendra Pandey, Member (A) The applicant has challenged the order dated 06.08.2010 of the respondents, in terms of which her services were terminated from the post of Constable in Delhi Police under Rule 5(i) of CCS (CCA) Rules, and also order dated 25.11.2010, vide which her appeal filed against the said order was rejected.
2. The applicant has sought the following reliefs:
to quash and set aside the order dated 06.08.2010 and order dated 25.11.2010 and she be reinstated in service without (this may be `with all) consequential benefits.
Since the applicant had already completed her recruit training, she be allowed to sit in the exams with the on-going batch and her seniority be fixed accordingly as per merits.
3. The brief facts of the case, that are relevant, are that the applicant (Ms. Kavita) had applied for the post of Constable (Executive) Female in Delhi Police in the year 2009 and, having successfully qualified the physical endurance test, written test as well as interview held in this connection, was offered appointment on purely temporary basis subject to various terms and conditions one of which was that Her appointment will be liable for termination if the facts given by her in the Declaration Form/Undertaking are found to be incorrect in any material aspect. She was also directed to join as Constable (Exe.) and report to Police Training School, Jharoda Kalan for basic training on 01.01.2010. On receipt of her police verification report from District Magistrate, Sonepat, it was found that the applicant had been involved in a criminal case FIR No.307 dated 03.09.2008 u/s 323/354/506/34 IPC at PS, Sadar Sonepat, Haryana (she was later acquitted by the Court vide order dated 18.12.2008 after both the parties had compromised the matter) but had not disclosed her involvement/acquittal in the above mentioned case in the relevant columns of the application as well as attestation forms while applying for the post (despite clear stipulation to this effect in the forms). Therefore, a Show Cause Notice dated 18.05.2010 was issued to her to which she replied on 31.05.2010 stating that she was innocent in the case registered against her and some other co-accused, and she was acquitted by the Court just after 3= months of the case and at the time of filling up application form/attestation form as well as undertaking no criminal case was pending against her and that there was no one to guide her when she filled the forms.
4. The appointing authority did not find her explanation in this regard acceptable and, noting that she had been acquitted as a result of a compromise, cancelled the candidature of the applicant for the post of Constable (Executive) Female in Delhi Police vide order dated 06.08.2010. Aggrieved by this, the applicant made a representation to the next higher authority but her appeal was rejected vide order dated 25.11.2010. Both the aforementioned orders dated 31.05.2010 and 25.11.2010 have been challenged in the present OA on the following main grounds:-
i) That the case registered against her was a false one arising out of bickering in the family and all were acquitted by the Court and that there was no malafide intention to conceal the same and that her not mentioning it was more a result of her not having proper advice while filling the application/attestation forms. In this connection, she has referred to her rural background.
ii) that at the time of filling up of the application and attestation forms there was no criminal case pending against her, and the small incident arising from family bickering should not stand in her way of serving in the police department.
iii) that the order of the appellate authority dated 25.11.2010 is a completely non-speaking order and the issues raised in her appeal dated 01.09.2010 have not been considered.
5. The applicant in her appeal has also referred to Judgement of a Co-ordinate Bench of this Tribunal in OA No.553/2008 (Amit Kumar v. Govt. of NCT of Delhi & Others, decided on 26.09.2008 which was upheld by the High Court of Delhi in WP (C) No.8929/2009 and the Judgement of the High Court of Delhi in Govt. of NCT of Delhi & Anr. v. Robin Singh, WP (C) No.2068/2010, decided on 25.08.2010 and a further decision of a Coordinate Bench of this Tribunal in OA No.301/2010 (Kapil Yadav v. Govt. of NCT of Delhi & Others) to support her contention that a case involving allegations of a petty offence in which she stood acquitted before her applying for the post should not come in the way of her appointment. She has also stated that her termination order is stigmatic and punitive and should be set aside.
6. We have heard the counsel for the applicant and perused the contents of the OA.
7. It is seen that in the appeal filed on 01.09.2010, the applicant had raised several contentions but the appellate authority had passed a cryptic and bland order dated 25.11.2010 which reads as under:
Reference your office memo 3111/SIP-PTC dated 02.11.2010 on the subjected cited above.
The case of Ex-Constable (Exe) Female Kavita No.13359/PTC has been examined in this Hqrs and it has been decided that the request of the candidate could not acceded to. She may be informed.
The Ch Roll and relevant file of the candidate are returned herewith.
Sd/-
Inspr. C.Cell/PHQ For Dy. Commissioner of Police Establishement:Delhi ..
DATED 25.11.2010
8. Such an order is clearly unacceptable. It is a settled principle of law that the disciplinary/appellate authorities must consider the various points raised by the employee concerned and give reasons in support of their decision. This is necessary to ensure that the decision is as per law and not a result of caprice, whim or fancy on the part of the authority concerned. The appellate order dated 25.11.2010 is clearly deficient in this regard as it does not even mention the points raised in the appeal, leave alone discuss then and give reasons for not accepting them. Therefore, the order dated 25.11.2010 is liable to quashed.
9. Moreover, the following observations of High Court of Delhi in the case of Govt. of NCT of Delhi & Anr. Vs. Robin Singh (W.P. (C ) No.2068/2010, decided on 25.08.2010) [171 (2010) DLT 705 (DB)], are of significant relevance to this case and this case has been relied on by the applicant in her appeal, along with the decision of this Tribunal in Amit Kumar (supra):
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.xxxxxxxxxx
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.
20-21xxxxxxxxxxxxxxxxxx
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 misdemeanors. 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 misdemeanors 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.
28-36. xxxxxxxxxxxxxxx
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.
39-48. xxxxxxxxxxxxxx
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.
50-51.xxxxxxxxxxxxx
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.
(Emphasis supplied) In the above case, the High Court was dealing with a case in which the applicant was involved in an act in which no moral turpitude, as generically understood, was involved.
10. From the aforesaid observations of the High Court in Robin Singhs case (supra) especially the observations contained in paras 49 & 52 above, it cannot be laid down as a proposition of law that a person would be undesirable for induction in the service force merely because of his involvement in a criminal case in which he subsequently came to be acquitted. There can be no straight jacket formula in the matters and the respondents would be duty bound to examine each case on its own merits having regard to the totality of the facts and circumstances of the case and then decide as to whether the person is really unsuitable for induction in the service or not. The High Court has emphasized the need for having suitable guidelines with regard to categories/acts/offences which may or may not prohibit ones induction into police service. This non-suitability for induction into police service has to be further supplemented by requiring the respondents to record their reasons in reaching a given conclusion in such matters.
11. In view of the above discussion, as the appellate order is clearly unsustainable in law, we do not deem it necessary to issue notice to the respondents at this stage and think the ends of justice would be met by quashing the appellate order dated 25.11.2010 and remitting the case back to the respondents to re-consider the appeal dated 1.09.2010 of the applicant after noting and dealing with all the points raised therein, including the observations of the High Court of Delhi in Robin Singhs case (supra) (and the guidelines drawn up by the respondents) as well as the orders of this Tribunal referred to in the appeal and the OA, and then take a decision in the matter. The decision taken may be communicated to the applicant through issue of a reasoned and speaking order within four weeks of receipt of this order.
12. The OA stands disposed of in terms of the above directions. No costs.
Registry is directed to send a copy of the OA along with a copy of this order to the respondents.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
/nsnrsp/