Central Administrative Tribunal - Delhi
Brahm Prakash Dahiya S/O Hardhyan Singh vs Government Of Nct Of Delhi Through on 18 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2405/2007 This the 18th day of December, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Brahm Prakash Dahiya S/O Hardhyan Singh, R/O VPO Harsauli, Distt. Alwar, Rajasthan, presently at C/O Flat No.50, Pocket 16, Sector 3, Dwarka, Delhi. Applicant ( By Ms. Jasvinder Kaur, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Deputy Commissioner of Police, 4th Bn, DAP, PHQ, IP Estate, Delhi. Respondents ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Brahm Prakash Dahiya, the applicant herein, having served Indian Army with an unblemished and spotless career for seventeen years, took voluntary retirement due to some compelling domestic circumstances on 31.8.2003. Eversince then, he is clamouring for a job to keep his body and soul together. An opportunity came in his way when he responded to a recruitment notice issued by Delhi Police for the post of Constable (Exe.) in the year 2005. He successfully competed for the same but was denied appointment on the ground that he had concealed his involvement in a criminal case. He had not mentioned about his involvement in the criminal case when he filled in the application form, even though he had mentioned the same while filling the attestation form on 26.12.2005. He was served with a notice calling upon him to show cause as to why his candidature for the post of constable should not be cancelled. He responded to the show cause notice vide representation dated 5.5.2006, but his candidature was cancelled by the Deputy Commissioner of Police, 4th Bn., DAP, vide order dated 3.7.2006. Aggrieved, he filed OA No.141/2007 which was disposed of by this Tribunal on 18.9.2007 with the following directions:
13. In view of the observations made above, this Original Application is partly allowed. Impugned orders dated 03.07.2006 (Annexure A-1) passed by the Deputy Commissioner of Police (Disciplinary Authority) and dated 01.12.2006 (Annexure A-2), conveying rejection of applicants appeal, passed by the Assistant Commissioner of Police are quashed with a direction to the respondents to re-consider the matter of the applicant in the context of the nature of the case, the way and manner it resulted in acquittal, the time lag between the incident and filling up the form by the applicant, the employment of the applicant with Army for a period of 17 years, and all other related matters. There would have been no difficulty for us to give our finding on the aforesaid issue as well but we would not like to take the task upon us when primarily it is required to be gone into by the concerned authorities at first instance. Let the exercise ordained above be taken and completed within a period of three months from the date of receipt of a certified copy of this order. Pursuant to directions issued by this Tribunal in the OA referred to above, the respondents have once again, cancelled the applicants candidature vide impugned order dated 27.11.2007 (Annexure A-1). It is this order which has now been challenged in the present Application filed by him under Section 19 of the Administrative Tribunals Act, 1985. While disposing of the earlier Application bearing OA No.141/2007, we returned a finding that the applicant was neither arrested nor any charge was framed against him, nor thus he was convicted by any court of law for any offence. There was no case pending against him in any court of law at the time when he had filled in the application form. Technically speaking, therefore, there was nothing wrong in the applicant mentioning NO against column number 15 in the application form. We further observed that once, it was held that the requirement of column number 15 was such that the applicant need not have mentioned about the criminal case which was once registered against him, no further question would arise, and further that assuming that the applicant as a good citizen seeking appointment in a police force, was yet required to make a mention of the criminal case, non mention of the criminal case in his application form was an inadvertent mistake. The directions reproduced above came to be issued after considering the entire case law on the issue. In the impugned order, after referring to the case history culminating into the order passed by this Tribunal dated 18.9.2007, it has been observed thus:
After examining your case from the said context, the following facts have been observed:-
The perusal of FIR No.144/04 reveals that you along with your companions beat up Jagat Singh and his family members including two women members. You and your companions hit them on the head, hands and legs with an iron angle rod. Although the said criminal case has come to an end by way of compromise and you have since been acquitted from the charges, yet your involvement in such a criminal case indicates your criminal nature/intention.
It is an admitted fact that there had been an altercation between two parties wherein dangerous weapons were used by you along with your companions. Somehow, both the parties have agreed to get the matter decided by submitting compromise deed with hidden agenda. Had the trial been held in the said case in the Honble Court, there would have been every possibility of conviction of member(s) of either party including yourself. In fact your acquittal in the above criminal case which is based on compromise deed cannot be said an honourable acquittal. Your involvement in the above said criminal case clearly reflects on your conduct and character thus making you unsuitable for appointment to Delhi Police.
In addition to the above facts, it is also stated that the Honble Supreme Court of India in Civil Appeal No.13231 of 1996 (arising out of SLP (C) No.5340 of 1996) DAD Vs. Sushil Kumar in which the apex Court observed as under:
Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though, he was physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedents record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for re-consideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant in the conduct or character of a candidate to be appointed to a service and not actual result thereof. If the actual result happened to be a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found him not desirable to appoint to the service. From the above discussion, it has become clear that your acquittal in case FIR No.144/04 U/S 323/341/325 IPC, PS Khairthal (Raj) is not honourable and had been obtained by managing a compromise deed between the two parties. In this case, no prosecution witnesses were testified as no trial was held to find out the culprit. Appointment of a candidate against whom such serious allegations are leveled before joining the uniformed force is not in the in the interest of Delhi Police force, as such a person cannot be entrusted with important task of protecting the city.
2. The controversy with regard to the applicant having concealed his involvement in the criminal case, in view of our judgment dated 18.9.2007 in OA No.141/2007, has been given quietus. The only issue that thus needs consideration and adjudication by this Tribunal has now to be confined to justification of the respondents in denying to the applicant appointment to the post of constable in consideration of his involvement in a criminal case. While disposing of OA No.141/2007, we had given some details of the criminal case in which the applicant and others were involved. The same needs elaboration. Records of the case reveal that the occurrence culminating into two cross cases one against the applicant and his companions, and the other against Jagat Singh and others, had taken place on 26.6.2004. Whereas an FIR bearing No.144/04 came to be registered against the applicant and his family members u/s 323/325/341 IPC, another FIR bearing No.146/04 dated 28.6.2004 came to be registered against the other side u/s 143/323/341/379 IPC. The FIR that came to be registered against the applicant and three others was on the statement of one Jagat Singh. While making his statement to the concerned SHO, he stated that on 26.6.2004 at 6.00 a.m., Bina wife of his younger brother had gone to ease herself. On her return, Ghanshyam, Brahm Prakash (the applicant), Saroj and Shakuntala, came on the way in front of her house armed with stick, iron rod and iron angle, and inflicted injuries upon him, Bina and Kiran. The applicant, Ghanshyam and their wives hit Bina on head, hands and feet with iron angles. He further stated that because of the beatings they received injuries. On the basis of statement made by Jagat Singh, the police registered a case under Sections 341/323/34 IPC. It appears that on examination of the injuries received by Bina, a fracture was detected and the FIR was converted to u/s 341/323/325 IPC. From the medico legal report of Smt. Bina dated 26.6.2004 it would appear that she suffered one injury in the nature of lacerated wound with semi-solid red blood clot of the size 4x1 =x bone deep on scalp just left to saggital suture starting from 2 back to forehead hairline. The word hairline has been mentioned in the medico legal report, from which it may appear that there was a hairline fracture. It appears that the injury on Bina was subjected to X-ray examination and she was found to have a fracture in left fronto paritel bone. It is for this reason, it appears that the injury on the person of Bina was treated to be grievous and the FIR was converted u/s 341/323/325 IPC. From the medico legal report produced on records, it would appear that Kiran wife of Hawa Singh received four injuries two bruises and two abrasions. All the injuries were simple and caused with blunt weapon. Two bruises were on side upper lip and at the level of L.1 vertebra. Two abrasions were on forearm and right eyebrow.
3. A case against the complainant party u/s 143/323/341/379 IPC also came to be registered vide FIR No.146/04 dated 28.6.2004. The FIR was lodged by the applicant. In the statement made to the SHO, he stated that on 26.6.2004 in the morning at 6.00 a.m. Jagat Singh s/o Hira Lal, Bina Devi w/o Daya Ram, Kiran Devi w/o Hawa Singh, Suresh Devi w/o Jagat Singh and Pritam Kuwari d/o Jagat Singh, were beating Saroj Devi, wife of his brother Ghanshyam by surrounding her. On hearing the commotion, when he went there to pacify, he was also surrounded and beaten up. It would appear that the applicant and Saroj Devi received injuries.
4. Before we may delve further on the controversy in issue, we may mention that vide order dated 26.8.2008 we directed the respondents to produce on record certified copies of the medico legal report of Smt. Bina before the next date of hearing. During the course of arguments, we are informed that Bina, Kiran and Jagat Singh were injured in the incident, and since Bina had received grievous injury, we wanted to have a look at the medico legal report. Bina had only one injury on her person, which, of course was grievous, even though the fracture appears to be only hairline. Jagat Singh sustained 2 or 3 injuries, which were simple in nature. Smt. Kiran w/o Hawa Singh also sustained four injuries, which too, as mentioned above, were simple in nature. It appears to us that the concerned authority while passing the impugned order examined only the FIR registered against the applicant and his family members, and no other material. Even the FIR lodged against the applicant and his family members, it appears, had not been read carefully and with application of mind. It has been stated in the impugned order that the applicant along with his companions had given beatings to Jagat Singh and his family members, including two women members, and further that the injuries were given to all of them on head, hands and legs with iron angle rod. Only Jagat Singh and two women, namely, Bina and Kiran, were injured in the incident. Other family members of Jagat Singh were not injured at all. It has thus to be held that the finding recorded in the impugned order that the applicant and his companions had given beatings to Jagat Singh and his family members, is incorrect. Further, none of the injured, but for Bina, had injury on head. There is no mention of the nature of injury. No medical records appear to have been checked up to find the damage caused by the injury. It may be recalled that injuries sustained by either of the three mentioned above were also simple in nature, but for one injury on the person of Bina, which, according to the prosecution itself would be covered under Section 325 IPC. The same was bone deep and was a hairline fracture, and condition of the patient, namely, Bina at the time she was medically examined was normal in all respects. The doctor treating Bina on 12.7.2004, however, mentioned as follows:
The head injury patient Smt. Beena was kept under my treatment for observation and supervision for the delayed consequence of the head injury but the patient was having vital parameters normal. No unconsciousness, no convulsions, no ENT bleeding, oriented for time, place and person following. Moving all extremities actively B/L pupils quite normal, the wound healing is healthy and without infection so in this case it can be concluded that the injury was not enough to cause death. All these aspects were not taken into consideration. Further that it was a case of cross versions and that at least two persons from the side of the applicant, i.e., applicant himself and Smt. Saroj were also injured, was also not taken into consideration.
5. In less than a month from the date of registration of the case, i.e., on 24.7.2004, the parties entered into a compromise. In the compromise signed by the applicant from his side and Smt. Beena from the other side, it has been mentioned that there was a trivial dispute amongst the parties, who were residents of the same village and that they wanted to maintain cordial relations, and in order to maintain cordial relationship they had compromised the issue and were satisfied with the same. It was further mentioned that the compromise had been reached in total control of faculties and without any pressure and coercion. The compromise deed was read over to the parties by the concerned court and they accepted the deed to be correct. The Magistrate on compromise reached by the parties on 24.7.2004 recorded the following order:
Accused present with Advocate. Present witness PW1 Jagat Singh gave statement. Thereafter complainant Smt. Bina, Smt. Kiran & Jagat Singh presented an application to forward compromise deed in respect of offence under section 325 IPC. The complainants are given permission to compromise the case. Thereafter, complainants Smt. Bina, Smt. Kiran & Jagat Singh and accused persons Brahm Prakash, Smt. Shakuntala, Smt. Saroj together presented a compromise deed in respect of offence u/section 323, 341, 325 IPC.
Compromise deed has been properly drafted and attested. In terms of compromise the accused persons Sh. Brahm Prakash, Smt. Shakuntala and Smt. Saroj are acquitted of the offences under section 323, 325, 341 IPC. The bail bonds are discharged. No further proceedings remain in the case. Upon pronouncement of order file be consigned to records. Despite the fact that the compromise came to be recorded in the manner as recorded above, the concerned authority in the impugned order observed that somehow, both the parties agreed to get the matter decided by submitting compromise deed with hidden agenda, and that had the trial been held, there would have been every possibility of conviction of members of either party, including the applicant. The reason given by the authority appears to be far fetched and a figment of imagination. When the compromise was recorded on the statement made by the parties in a court of competent jurisdiction and the reasons for arriving at the compromise were also mentioned, there was no question for the concerned authority to make sweeping remarks on purely conjectures and surmises. What could be the hidden agenda, one is just left to guess. Denial of public appointment to a citizen for all times to come and for his life is a serious matter. The concerned authority appears to have taken such a serious matter too lightly without taking into consideration relevant material, and by not correctly stating the facts. The motive for compromise, as mentioned above, is based on no material. The same is, at the most, based upon imagination and, therefore, can be said to be an outcome of conjectures and surmises. We are of course here not to try to dissect the case as the criminal court would do, but surely, when it is a case resulting into compromise, some salient features of the case have to be taken into account by the authorities themselves. A case of conviction would pose no problem as in that case, the respondents may be justified in denying public appointment to a citizen. However, when the case is of acquittal, either by way of compromise or because of prosecution witnesses turning hostile, the main features of the case have to be taken into consideration. Looked from that angle, it could be well reasonably said that it is a case of cross versions, and in case the version of the applicant as reflected in the FIR was to be accepted, the injuries given by him and his family members to the other party, could be in exercise of the right of self-defence. Another salient feature of the case is that it could well be a case of free fight. In that event, every one would be punished with the role attributed to him/her. It is not disclosed in the FIR as to who caused injury on the head of Bina. There is only one injury sustained by Bina. The allegation that so many people caused injury to her is belied from medical records. Once, it was a case where it was not known as to who caused injury to Bina and there was no applicability of Section 34 or 349 IPC, because it being a case of sudden and free fight, no one could be convicted under Section 325 IPC. These were the relevant aspects of the case which have been totally ignored by the concerned authority. In our order dated 18.9.2007 in OA No.141/2007, we had also directed the concerned authority to look into the time lag between the incident and filling up of the form by the applicant, his employment with Army for a period of 17 years, and all other related matters. Not a word is mentioned with regard to the time lag between the occurrence and filling up of the form, the way and manner the case resulted in acquittal of the applicant, or even for that matter, the unblemished service career of the applicant in Army, which too is a disciplined force. We have mentioned in our order aforesaid that there would be no difficulty for us to give finding on the aforesaid issues as well. We, however, preferred this exercise to be gone into, in the first instance, by the authorities. From the findings and directions as mentioned above, there is a clear hint discernible, but the respondents would take no clue from the same and would like to determine the things the way they wish, and while doing so, would not even bother about the directions given to them.
6. The impugned order, it appears, was not only an outcome of non-application of mind to the relevant factors but also in defiance of the orders passed by this Tribunal in OA No.141/2007, which has attained finality having not been challenged in any higher judicial forum.
7. In a recent decision recorded by us in OA No.178/2008 on 23.7.2008 in the matter of Anoop Kumar v Government of NCT of Delhi & Others, while dealing with a similar question where the applicant was involved in a criminal case u/s 308/325/34 IPC, and wherein too, it was not a case of concealment of involvement of the applicant in the criminal case, after taking into consideration the decision of the Honble Delhi High Court in WP (C) No.6042-43/2005 and other connected writ petitions in the matter of Government of NCT of Delhi & Others v Deepak Kumar & Others decided on 28.11.2005, and the decision recorded by us in OA No.2429/2006 and other connected OAs in the matter of Sanjeev Kumar & Others v Government of NCT of Delhi & Others decided on 24.4.2008, we observed as follows:
We are surprised, rather distressed that even though it has been ordained authoritatively by judicial pronouncement that the nature of offence and the manner of acquittal has to be examined properly, the respondents appear to have ignored both. Denial of appointment to a citizen for all times to come is indeed a serious matter. The same cannot be dealt with so lightly so as not even to consider the attending circumstances leading to commission of crime, nature of offence that may appear from the contents of the first information report, statements of witnesses and the medical evidence. While considering the manner of acquittal, it may not be enough to simply observe that the witnesses had turned hostile, and by simply so observing, to deny appointment to a citizen. The judgment of the criminal court has to be taken into consideration with all the aspects leading to acquittal. The manner of acquittal, and in particular, as to whether the same is a clean acquittal or acquittal on benefit of doubt, has also to be taken into consideration. To elaborate, insofar as, the nature of offence is concerned, we may mention that some times the facts disclosed in the FIR supported with other material, even if taken to be gospel truth, may not constitute an offence under which an FIR is registered, challan presented and the accused tried. In a case of acquittal, where witnesses have not deposed in tune with the statements made by them before the police, the finding of acquittal is recorded without going into any other aspect of the case. If thus in a given case, the offence with which an accused is charged and tried, may not at all be gone into, his plea that the offence with which he was charged was not made out at all even from reading of the FIR and attending circumstances, has to be gone into at some stage. Making a mention of the offence with which a person might have been charged and put to trial is no way to determine the nature of offence. We are of the considered view that nature of offence is not exclusively determinable only on the label or sections on which an FIR may be registered. With a view to find gravity of offence for which a person may have faced criminal trial, the narration of facts in the FIR, supporting material and the medical evidence is required to be taken into consideration. Insofar as, the manner of acquittal is concerned, once again, the judgment of the criminal court has to be carefully gone into. In a given case, the witnesses may not have deposed in tune with their statements made before the police, but they may not have been declared hostile and cross-examined by public prosecutor. Such a situation arises when the prosecution witnesses may support the prosecution version to some extent and the public prosecutor may think that to the extent they have supported prosecution version, the finding of conviction can yet be recorded. He may thus not declare the witnesses to be hostile nor thus cross-examine them. In ultimate analysis, as to whether the accused has been acquitted by giving benefit of doubt or it is a case of clean acquittal, has also to be seen. While taking into consideration the facts of that case, we further observed, thus:
We are conscious that we are not here to determine the controversy with regard to nature of offence, but surely, all these aspects were required to be taken into consideration by the concerned authorities in finding out the nature of offence. The situation where the criminal court may record a finding of conviction is entirely different. The concerned authorities in that event would have no choice but for to follow the judgment of the criminal court, but in a case where the relevant aspects of the case have not even been touched upon, it becomes duty of the high ranking police officers to take them into consideration while dealing with a serious matter like denial of appointment to a citizen. We may reiterate that the Honble Delhi High Court in Deepak Kumar & Others (supra) held that the nature of offence and manner of acquittal has to be gone into properly. Further, the concerned authorities have to find out if the offence alleged against a person involves moral turpitude and that the same is heinous, grave and committed with such evil propensities that he may not deserve to be appointed. Simply observing the provisions of IPC with which a person may be charged and tried, does not appear to be sufficient compliance of the directions issued by the Honble High Court. The observations made above would be more pertinent if the offence with which a person is charged and tried under the sections that might have been mentioned in the FIR may not appear to be so serious. To illustrate, whereas, it may be permissible to hold the nature of offence to be serious when a person is tried under sections 302, 376 and such other offences, the same may not be true when a person is not charged with such serious offences as mentioned above. We may also note that in similar circumstances as in Anoop Kumar (supra), the respondents employed one Brahm Prakash as constable, who too was involved in a criminal case u/s 308 IPC and was acquitted of the charge by the court as the matter was compromised by the parties and witnesses did not support the prosecution case. The applicant in the present case was involved along with his family members in a criminal case u/s 325 IPC, which is voluntarily causing grievous hurt, imprisonment for which is seven years. The offence is bailable and triable by any magistrate. Brahm Prakash in the said OA was involved in a case u/s 308 IPC, which is attempt to commit culpable homicide not amounting to murder. Maximum punishment prescribed for the said offence is three years, but if injury has been caused, the imprisonment is for seven years. The offence is non-bailable and triable by a court of session. It is rather strange that the respondents would give appointment to a person who is involved in a more serious offence in similar circumstances, and would deny the same to a person who is involved in a lesser offence.
8. Before we may part with this order, we may mention that Ms. Jyoti Singh, learned counsel representing the respondents, faintly urged that the applicant was arrested and that a wrong finding came to be recorded by us in our order dated 18.9.2007 in OA No.141/2007 that the applicant was not arrested, and that being so, it would be a case of concealment of material fact. We are unable to accept the contention of the learned counsel. Learned counsel representing the applicant in the earlier OA had also urged before us that the applicant already stood acquitted on the basis of a compromise as he was never arrested nor tried in any court of law for any offence nor was he convicted. There was no case either pending in a court of law when the applicant had filled in his form. In paragraph 7 of the order, we have mentioned that it is not in dispute that the applicant was not arrested in connection with the FIR registered against him and no charge had been framed at the time when the compromise was arrived at between the parties resulting in acquittal of the applicant and others. The finding arrived at by us is not on the basis of statement made by the counsel representing the applicant alone, as urged before us. The said finding came to be recorded as there was no dispute that the applicant had not been arrested. Be that as it may, our order dated 18.9.2007 has attained finality. It was not challenged before a higher judicial forum. So much so, the respondents while accepting the order passed by us, passed the order as ordained. Further, even at this stage, no material has been brought on record to show to us that the applicant was arrested at any time. Was it a formal arrest or a proper arrest after the applicant might have obtained bail from the concerned court, is also not disclosed.
8. In view of the findings recorded as above, the Application is allowed. Impugned order dated 18.11.2007 is quashed and set aside. In consequence thereof, a direction is issued to the respondents to forthwith offer appointment to the applicant on the post of Constable (Exe.). Inasmuch as, the applicant has been wrongfully denied appointment to the post of Constable (Exe.) for about three years, we are of the view that he deserves cost of the litigation, which we quantify at Rupees five thousand.
( Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/