Central Administrative Tribunal - Delhi
Chet Ram Meena vs Commissioner Of Police on 20 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1881/2011 ORDER RESERVED ON: 11.10.2012 ORDER PRONOUNCED ON: 20.12.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. JAYATI CHANDRA, MEMBER (A) Chet Ram Meena, S/o Shri Mool Chand Meena, R/o Village Bhagatankapura, Post & Tesil Bamanwas, Distt. Sawai Madhopur (Raj)-322211. Applicant. (By Advocate Shri Ajesh Luthra) Versus 1. Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Deputy Commissioner of Police, (Recruitment), New Police Lines, Kingsway Camp, Delhi. Respondents. (By Advocate Mrs. Sumedha Sharma) O R D E R
Shri G. George Paracken:
The challenge in this Original Application is against the order dated 23.11.
aggrieved by the impugned Annexure A-1 show cause notice dated 03.03.2011 proposing to cancel his candidature for the post of Constable (Executive) Male in Delhi Police. He is also aggrieved by the Annexure A-2 order dated 02.03.2011 by which his candidature has been cancelled.
2. This case was earlier heard and disposed of by a co-ordinate Bench of this Tribunal vide its order dated 15.11.2011. In fact, this O.A was allowed and the respondents were directed to give appointment to the applicant to the post of Constable (Exe.) on the ground that his case was squarely covered by the earlier order of a co-ordinate Bench in Dharam Veer Singh Vs. Govt. of NCT of Delhi & Ors. (OA 164/2010) decided on 25.11.2010 having its operative part as under:
6. It is not possible to agree with the arguments of the Respondents in view of the fact that the candidature of the Applicant has not been cancelled by the impugned order dated 17.06.2009 on the ground of concealment of the fact of involvement in two criminal cases. The candidature has been cancelled on the ground that the criminal cases would reveal that the Applicant is a person who is in the habit of picking up a quarrel and resorting to violence. The Respondents failed to appreciate that by virtue of Section 12 of the Probation of Offenders Act, 1958 no adverse consequences of the criminal cases would follow. The Applicant would not suffer any disqualification by virtue of the above cited provision of law.
7. In the light of the above discussion we are of the considered opinion that the order dated 17.06.2009 of the Deputy Commissioner of Police, Recruitment and the order dated 31.08.2009 are not maintainable. The impugned orders are, therefore, quashed and set aside. Since the Applicant has cleared all the tests required for the post of Constable in Delhi Police and considering his case as if there was no criminal case against him, the candidature of the Applicant can not be cancelled. The Respondents are directed to appoint the Applicant to the post of Head Constable in Delhi Police along with others of the batch for which he had competed, without, however, giving him the benefit of back wages. He would be entitled to count his seniority from the date the person immediately below him in the merit list of the Constables for the selection of the year 2006, which would count for the purpose of increment. These directions would be complied with within eight weeks of the receipt of a certified copy of this order. No costs.
3. Meanwhile, the respondents have challenged the aforesaid order of this Tribunal in Dharam Veer Singhs case (supra) before the Honble High Court of Delhi in WP (C) No. 1694/2011 GNCTD & Anr. Vs. Dharam Veer Singh and the High Court, vide its judgment dated 15.02.2012 in the said writ petition allowed the said writ petition and other two connected cases and quashed and set aside the order of this Tribunal. The relevant part of the said judgment is as under:
1. W.P.(C) No.1694/2011 impugns the order dated 25.11.2010 of the Central Administrative Tribunal (Tribunal), Principal Bench allowing the OA No.164/2010 under Section 19 of the Administrative Tribunals Act, 1985 preferred by the respondent and directing the petitioner Delhi Police to appoint the respondent to the post of Head Constable along with others of the batch for which he had competed, without however giving him the benefit of back wages but entitling him to seniority from the date the person immediately below him in the merit list of Constables for the selection of the year 2006 was appointed. Notice of the writ petition was issued and vide interim order dated 06.04.2011, the operation of the order of the Tribunal stayed.
x x x x x x
10. In so far as the respondent In W.P.(C) No.1694/2011 is concerned, we find Delhi Police to have at the level of Deputy Commissioner evaluated the suitability of the respondent and considering the charge against the respondent and disposal of the cases as compromised with admonition and benefit under Section 3 of the Probation of Offenders Act concluded the respondent to be habitual of picking up quarrels and resorting to violence and his such attitude rendering him unsuitable. It is thus not as if the candidature of the respondent was cancelled merely for non disclosure and / or for concealment of the said facts, as was the case in Sandeep Kumar (supra). The Delhi Police as an employer cannot be deprived of making such assessment qua the persons seeking employment with it and persons not found suitable for cogent reasons cannot be thrust upon the Police Force. In this light of the matter, the argument of the counsel for the respondent that the petitioner Delhi Police had in response to the contempt petition filed before the Tribunal sought time to comply with the order and concealed the said fact is of no consequence. Merely because the Delhi police to avoid being hauled up for contempt sought time from the Tribunal to comply with the order cannot deprive it of its right to avail remedies against the said order. In so far as the effect of Probation of Offenders Act is concerned, another Division Bench of this Court in Gokul Ram Meena Vs. GNCTD 177 (2011) DLT 471 has dealt in detail on the said aspect and concluded the same to be a relevant factor in service matters. We are thus of the opinion that W.P.(C) No.1694/2011 of the Delhi Police deserves to be allowed and the order of the Tribunal impugned therein directing Delhi Police to appoint the respondent is set aside/ quashed.
4. Thereafter, the respondents in this case had filed RA No. 78/2012 and this Tribunal, vide its order dated 22.08.2012, allowed the same and its relevant part is as under:
11. In view of what has been stated above, the present RA is allowed. The Tribunals order dated 15.11.2011 is recalled and OA-1881/2011 is restored to its original number. However, the contentions raised by the learned counsel for original applicant based upon the standing order No.398/2010 that even in terms of the standing order of the Department itself, i.e., condition No.9 thereof, if any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service, which standing order was not brought to the notice of the High Court in Dharam Veer Singhs case (supra) the original applicant is entitled to the relief, shall be considered when the OA is heard on merits and we do not want to express any opinion at this stage. However, learned counsel for original respondents has further stated that the judgment in Dharam Veer Singhs case (supra) has also been upheld by the Apex Court when the SLP (C) No.20293/2012 was dismissed was dismissed by the Apex Court vide order dated 13.7.2012.
12. For the foregoing reasons, the RA is allowed. Registry is directed to list the OA-1881/2011 before the appropriate Bench on 31.8.2012.
5. In view of the above position, we have once again gone through the facts of this case. It is seen that the applicant was provisionally selected for the post of Constable (Executive) Male in Delhi Police during the recruitment held in the year 2009. Pursuant to the said selection, while others have been appointed, he was not given the appointment but he was served with the impugned Annexure A-1 show cause notice dated 03.03.2011 proposing to cancel his candidature primarily on the ground that he was fined Rs.500/- in FIR No. 25/205 u/s 341/323/452/506 IPC PS Dausa Distt, Dausa u/s 5 of Probation of Offenders Act on the charge that he along with his associates had criminally trespassed the complainants house and beat her mother and assaulted her with Lathi causing serious injuries but he was given the benefit u/s 12 of the said Act directing that the said fine will not affect his career adversely.
6. The applicant denied the alleged charges levelled against him in the show cause notice by submitting the Annexure A-3 reply dated 09.03.2011. However, the respondents were not satisfied with the said reply and cancelled his candidature vide the impugned Annexure A-2 order dated 22.03.2011. The relevant part of the said order reads as under:
Scrutiny of your Application Form and Attestation Form filled up by you revealed that you had disclosed in the relevant column of Attestation Form about the facts of your involvement in criminal case FIR No. 25/2005 u/s 341/232/452/506 IPC, PS Dausa, Distt. Dausa (Raj.) in which the Court vide order dated 22.05.2010 fined Rs.500 and given benefit u/s 12 of Probation of Offender Act.
Accordingly, the case was examined by the Screening Committee of PHQ constituted by the Commissioner of Police, Delhi to judge the nature of your involvement in above criminal case, gravity of the offence, judgment of the court, grounds of conviction as well as judgment dated 04.10.1996 in Civil Appeal No. 13231 of 1996 (arising out of SLP (C) No. 5340 of 1996) DAD Vs. Sushil Kumar. You were not found suitable for police service by the Screening Committee and you were issued a show cause notice vide this office memo No. 3352/Rectt.Cell (R-IV)/NPL dated 03.03.2011 as to why your candidature for the post of Constable (Exe.) in Delhi Police should not be cancelled for the reasons mentioned therein. In response to Show Cause Notice you have submitted your reply stating therein that the above said case was registered on a false and motivated complaint of your neighbour on local issues. Since even after five years, the culmination of trial was not in sight and meanwhile you were selected in Delhi Police on the basis of the instant recruitment, as such, you had pleaded guilty to cut short the protected trial. The conviction was a result of plea bargain which is evident from the judgment of Honble Court. In a situation where the appointment would have been deferred till the finalization of criminal case which was likely to continue for years, you thought it fit to get rid of the said case so that you can get employment at the earliest. May be, that you entered into plea bargain out of inexperience. It is further submitted that benefit of rule 3 an 12 of Probation of Offenders Act was granted by the Honble Court and a specific direction was issued that it will have no adverse effect in the service career of the applicant.
The plea (s) put forth by you in the reply have been considered and found not convincing because of the reasons that Dushyant Gupta, Roopa eena & you armed with Danda trespassed into the house and beaten up the complainants mother an also insulted her. Dushyant & Roopa Meena hit her mother with lathi causing serious injuries. The alleged persons also twisted her fingers. The complainant raised alarm due to which Mahesh Gupta and Shakuntla Gupta came to rescue them. Later on, the Honble Court vide order dated 22.05.2010 fined Rs.500/- u/s 5 of Probation of Offender Act but given benefit u/s 12 of Probation of Offender act extending that the above fine will not effect your service career adversely. The Committee has observed that you along with your associates criminally trespassed into the complainants house and beat her mother and also assaulted her with lathi causing serious injuries. The court had convicted you with Rs.500/- as fine as it was your first conviction and concluded that such type of person, who has no respect for a woman has no place in a disciplined force.
Therefore, on the basis of report submitted by the Screening Committee duly constituted by the Commissioner of Police, Delhi and in view of all circumstances as stated above, you are found not suitable for appointment to the post of Constable (Exe.) Male is hereby cancelled with immediate effect.
7. According to the learned counsel for the applicant Shri Ajesh Luthra, the respondents have read the order in the aforesaid criminal case wrongly and without application of mind inasmuch as that they have not appreciated its correct facts. He has pointed out that the actual number of the FIR mentioned in the criminal case was 25/2006 and not 25/2005 and the relevant Sections were 341/323/504 IPC and not 341/323/342/506 IPC as stated in the impugned notice and the order. His further contention was that the amount of Rs.500/- the applicant was liable to pay was not as a fine rather it was the expense of prosecution which was directed to be deposited u/s 5 of the Probation of Offenders Act. In this regard, he has invited our attention to the Annexure A-4 copy of the order of the criminal court dated 22.05.2010 having its relevant part as under:
Considered the point of sentence. The counsel of accused stated that this the first crime of accused, with intentions of Lok Adalat has admitted of commission of offence and requested to release the accused on probation but the Asstt. Public Prosecutor opposed for the same.
I have considered the arguments of the parties and carefully perused the case file. There is no evidence available on record to prove earlier offence against the accused and he admitted the commission of offence with his own accord, hence in consideration of the whole facts, circumstances and nature of offence, it is in the interest of justice that the accused be given the get benefit of probation as provided in the Law.
Therefore accused Chet Ram s/o Mool Chand Caste Meena R/o Baman was presently House No. 1/143, Housing Board Dausa be given the benefit of Section 3 of Probation Act, by condemning the commission of offence 341, 323, 504 IPC released on probation. Under the provisions of section 5 of Probation Act, a fine of Rs.500/- imposed upon the accused for the expenses of prosecution. The accused Chetram is also awarded the benefit of Section 12 of Probation Act thereby despite the conviction, no adverse effect would come out on his service career.
In accordance to the order, the accused Chetram deposited the prosecution expenses amount of Rs.500/- through receipt No. 056238/08. Accused released on probation.
The proceedings will continue against the accused persons Dushyant and Roop Singh. File be produced on 10.6.2010 as already fixed.
8. The contention of the applicants counsel as in the Review Petition is that while considering the case of Dharam Veer Singh in WP (C) No. 1694/2011 (supra), parties in the petition have not brought to the notice of the High Court regarding the Standing Order No. 398/2010 dealing with the policy for deciding cases of candidates provisionally selected in Delhi Police, involved in criminal cases (facing trial or acquitted). Para 9 of the said order reads as under:
If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service.
9. He has also relied upon the judgment of the Honble High Court of Delhi in Writ Petition (C) No. 2068/2010 -Govt. of NCT of Delhi & Anr. Vs. Robin Singh wherein it has been held that the gravemen of the allegation constituting the act committed by the person concerned is of prime consideration in cases like one in which the applicant has been involved. The relevant part of the said judgment is as under:
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. 54. The writ petition is dismissed and the direction issued by the Tribunal is upheld. 55. No costs.
10. He has also relied upon the judgment of the Honble Apex Court in Pawan Kumar Vs. State of Haryana & Anr. (1996 (4) SCC 17) wherein it has been held as under:
12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on February 2, 1973 (Annexure E in the Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not, however, be taken in Government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294, I.P.C. is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26th March, 1975 explained the policy decision of February 2, 1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:
".....The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not:
(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(2) whether the motive which led to the act was a base one.
(3) 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.
Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude."
Section 294, I.P.C. still remains out of the list. Thus the conviction of the appellant under Section 294, I.P.C. on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision above-quoted.
13. We had required of the respondents to produce before us the copy of the judgment whereby the appellant was convicted for the offence. As was expected only a copy of the institution/summary register maintained by the Court of the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4-6-1980 was imposed a fine of Rs. 20/-. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered. It is of no significance that the appellant treats himself a convict as he had pleaded guilty. Ex facie it only shows that the entry concerns F.I.R. No. 231/3-6-1980 under Section 294, I.P.C. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the I.P.C. or any other particular? Mere payment of fine of Rs. 20/- does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three Courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294, I.P.C. per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294, I.P.C. on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.
14. Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary Courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are, therefore, necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs. 2,000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in Government service. This can brook no delay, whatsoever.
15. As a result of the above discussion, we allow this appeal, set aside the judgment and decree of the High Court as also that of the two Courts below and decree the suit of the appellant as prayed for, with costs.
11. The respondents have filed their reply and they have refuted the contentions of the applicant. They have stated that on scrutiny of application form and attestation form filled up by the applicant, it was revealed that he had disclosed the facts of his involvement in criminal case FIR No. 25/2005 u/s 341/323/452/506 IPC, Police Station Dausai, Distt. Dausa (Rajasthan) in the relevant columns of the Attestation Form. Accordingly, the case of the applicant was examined in the PHQ by the Screening Committee duly constituted by the Commissioner of Police, Delhi in view of the nature of involvement of applicant in the criminal case, gravity of the offence, the judgment of the Court, the grounds of the conviction as well as the judgment of the Honble Supreme Court dated 04.10.1996 in Civil Appeal No. 13231 of 1996 (arising out of SLP (C) No. 5340 of 1996) D.A.D Vs Sushil Kumar. The screening committee found that the complainant Smt. Prabha Devi reported that on 09.01.2006 while she was working in her house, Dushyant Gupta, Roop Mena and the applicant Chet Ram Meena armed with danda trespassed into her house and beaten up the complaintants mother and also insulted her. Dushyant and Roop Meena hit her mother with lathi causing serious injuries. The complainant raised alarms due to which Mahesh Gupta and Shakuntal Gupta came to rescue them. Later on, the applicant pleaded guilty before the Ld. Court and Ld. Court of Chief Judicial Magistrate, Dausa Distt. Rajasthan after examining the evidence on record, held the applicant guilty for the offence U/s 341/323/504 IPC. However, on the point of award of sentence, the Ld. Court of Chief Judicial Magistrate, Dausa Distt., Rajasthan gave him the benefit under the provisions of Probation Act. The screening committee after examining all the aspects of the case, reached at a conclusion that such type of person, who has no respect for a woman has no place in a disciplined force and not recommended his case for appointment to the post of Const. (Exe.) Male in Delhi Police.
12. In view of the decision of Screening Committee, the applicant was issued with a show cause notice by the DCP/Recruitment Cell, NPL vide Memo No. 3352/Rectt. Cell (R-IV)/NPL dated 03.03.2011 (Annexure A/1) proposing cancellation of his candidature for the post of Constable (Exe.) in Delhi Police for the reasons mentioned therein. In response to show cause notice, applicant had submitted his reply to this office on 09.03.2011 (Annexure A/3 of the OA) stating therein that the above said case was registered on a false and motivated complaint of his neighbour on local issue. Since even after five years, the culmination of trial was not in sight and meanwhile he was selected in Delhi Police on the basis of the instant recruitment, as such, he had pleaded guilty to cut short the protected trial. The conviction was the result of plea bargain which is evident from judgment of Honble Court. In a situation where the appointment would have been differed till the finalization of criminal case which was likely to continue for years, he thought it fit to get rid of the said case so that he can get employment at the earliest. May be, that he entered into pleas bargain out of inexperience. The applicant further pleaded that benefit of rule 3 and 12 of Probation of Offenders Act was granted by Honble Court and a specific direction was issued that it will have no adverse effect in the way of his service career and has requested to allow him to join as Const. (Ex.) in Delhi Police. The plea(s) put forth by the applicant were considered in detail along with relevant record available on file and found not convincing in view of observations made by the Screening Committee. As such, he was found not suitable for the post of Constable (Exe.) Male in Delhi Police. Accordingly, the candidature of the applicant for the post of Const. (Exe.) was cancelled by DCP/Rectt., NPL Delhi vide his office Memo No. 4209/Rectt. Cell (R-IV)/NPL, dt. 2.03.2011 (Annexure A/2 of OA) and informed accordingly. She has also stated that the Honble High Court has rightly set aside the earlier order of this Tribunal in this case dated 25.11.2010 in OA 164/2010 (supra) vide its judgment dated 15.02.2012 in WP (C) No. 1694/2011. The Supreme Court also upheld the aforesaid judgment of the High Court on 13.07.2012 in SLP (C) No. 20293 of 2012.
13. The learned counsel for the respondents Smt. Sumedha Sharma invited our attention to the judgment of the Honble Supreme Court in Civil Appeal No. 13231 of 1996 (arising out of SLP (C) No. 5340 of 1996) - D.A.D Vs. Sushil Kumar relied upon by the respondents in the impugned order. The relevant part of the said judgment is 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 records, the appointing authority found it not desirable to appoint a person of such record as a constable to the disciplinary 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 directions for reconsideration of his case. Though, he was discharged or acquitted of the criminal offence, 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 of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found him not desirable to appoint to the service.
14. She has further submitted that the aforesaid order of this Tribunal was upheld by the High Court in WP (C) No. 1694/2011 GNCTD & Anr. Vs. Dharam Veer Singh and connected cases, decided on 15.02.2012 wherein it has been held as under:
8. We have recently had occasion to deal with the questions as raised in these petitions in our judgment dated 16.11.2011 in W.P.(C) No.8752/2011 titled Vinod Kumar Vs. Commissioner of Police and judgment dated 20.12.2011 in W.P.(C) No.6518/2011 titled Commissioner of Police Vs. Ranvir Singh. It was held that though non disclosure by the candidate of his involvement in a criminal case when he was of under age and not expected to behave in a mature manner as elder people expect, cannot be a ground for cancellation of provisional selection but where the Delhi Police as employer makes an assessment as to the suitability for service in its force which is required to constantly interact and render assistance to public and finds a candidate unsuitable, its such decision cannot be lightly interfered with. It was further held that Delhi Police as employer is entitled to consider the factum of the charge against the candidate in assessing his / her suitability for induction in the police force even though the candidate may have been acquitted of the said charge. It was also noticed that the Delhi Police itself has vide Standing Order No.398/10 dated 23.11.2008 framed "Policy for Deciding Cases of Candidates Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing Trial or Acquitted)" providing reference of such candidates to the Screening Committee to assess suitability for appointment.
9. We shall now proceed to consider each of the aforesaid cases in the light of our conclusions aforesaid.
10. In so far as the respondent In W.P.(C) No.1694/2011 is concerned, we find Delhi Police to have at the level of Deputy Commissioner evaluated the suitability of the respondent and considering the charge against the respondent and disposal of the cases as compromised with admonition and benefit under Section 3 of the Probation of Offenders Act concluded the respondent to be habitual of picking up quarrels and resorting to violence and his such attitude rendering him unsuitable. It is thus not as if the candidature of the respondent was cancelled merely for non disclosure and / or for concealment of the said facts, as was the case in Sandeep Kumar (supra). The Delhi Police as an employer cannot be deprived of making such assessment qua the persons seeking employment with it and persons not found suitable for cogent reasons cannot be thrust upon the Police Force. In this light of the matter, the argument of the counsel for the respondent that the petitioner Delhi Police had in response to the contempt petition filed before the Tribunal sought time to comply with the order and concealed the said fact is of no consequence. Merely because the Delhi police to avoid being hauled up for contempt sought time from the Tribunal to comply with the order cannot deprive it of its right to avail remedies against the said order. In so far as the effect of Probation of Offenders Act is concerned, another Division Bench of this Court in Gokul Ram Meena Vs. GNCTD 177 (2011) DLT 471 has dealt in detail on the said aspect and concluded the same to be a relevant factor in service matters. We are thus of the opinion that W.P.(C) No.1694/2011 of the Delhi Police deserves to be allowed and the order of the Tribunal impugned therein directing Delhi Police to appoint the respondent is set aside / quashed.
11. The case of the petitioner in W.P.(C) No.6253/2011 was also examined in detail by the Screening Committee; he, as a student of B.A. Part-I, was in the examination found copying by unfair means and was prosecuted and convicted under Section 3/6 of the Public Examination Act and given benefit of Section 4 of the Probation of Offenders Act and was thus not found suitable for Delhi Police. Again, the cancellation of the provisional candidature of the said petitioner is not merely on the ground of non disclosure / concealment but on assessment of his suitability. The Tribunal has concurred with the said assessment of the Delhi Police. We, in exercise of powers of judicial review are not inclined to interfere with such decision of the Delhi police of not finding the petitioner suitable for employment and which decision is found to be based on cogent reasons. Accordingly, W.P.(C) No.6253/2011 is dismissed and the petitioner therein not found entitled to employment.
12. However the facts of W.P.(C) No.7811/2011 disclose that the name of the respondent therein was not included in the FIR when filed and was included subsequently and the respondent therein had confessed his guilt during a Lok Adalat and the Court where the said criminal case was pending considering the nature of the offence, character of the respondent and the factum that the respondent was still studying in the School, had released the respondent on probation after admonition. We find the petitioner Delhi Police to have not evaluated the suitability of the respondent considering the said factors. We are further of the view that what was laid down by the Apex Court in Sandeep Kumar squarely applies to the said facts. Accordingly, W.P.(C) No.7811/2011 is dismissed and the order dated 27.07.2011 of the Tribunal directing the Delhi Police to appoint the respondent therein is upheld and the petitioner Delhi Police is directed to now comply with the said order within six weeks. No order as to costs.
15. We have heard the learned counsel for the applicant, Shri Ajesh Luthra and the learned counsel for the respondents, Smt. Sumedha Sharma. As earlier stated, this Original Application was disposed of by a co-ordinate Bench of this Tribunal vide order dated 15.11.2011 as the same was found to be squarely covered by an earlier order of this Tribunal bearing OA No. 164/2010 Dharam Veer Singh Vs. Govt. of NCT of Delhi & Ors. decided on 25.11.2010 (supra). Accordingly, the respondents were directed to give appointment to the applicant to the post of Constable (Exe.) Male in Delhi Police. Later on, since the Honble High Court of Delhi has set aside the aforesaid order in Dharam Veer Singhs case (supra), the order passed in this case on 15.11.2011 could not survive and the OA was liable to be dismissed. However, the contention of the original applicant is that the High Court dismissed Dharam Veer Singhs case (supra) without taking into consideration of the Standing Order No. 398/2010 issued by the respondents as the same was never brought to its notice. This Tribunal has allowed the RA vide order dated 24.08.2012. We have gone through the facts of this case once again. We have also gone through the documents/judgments relied upon by the learned counsel for the parties. While allowing the OA earlier, this Tribunal has considered the provisions containing in Sections 3,4 and 12 of the Probation of Offenders Act, 1958 and they are produced below:
3. Power of court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under Section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.
Explanation - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
4. Power of court to release certain offenders on probation of good conduct -
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interest of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being the learned Single Judge than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
12. Removal of disqualification attaching to conviction - Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under Section 4 is subsequently sentenced or the original offence. The Tribunal came to the conclusion that in view of Section 12 of the Probation of Offenders Act, 1958, the respondents could not have once again taken the criminal case decided against the applicant as a reason for cancelling his candidature because as per the provisions contained in the said Section, no adverse consequences of the criminal case would follow and the applicant would not suffer any disqualification by virtue of it. However, the High Court held that the Delhi Police as an employer cannot be deprived of making such assessment qua the persons seeking employment with it and persons not found suitable for cogent reasons cannot be thrust upon the Police Force. Therefore, the High Court allowed the writ petition filed by the respondents and set aside the order of this Tribunal dated 15.11.2011. The contention of the respondents is that since the said order is based upon the earlier order of this Tribunal in Dharam Veer Singhs case (supra) and it has been set aside by the High Court as stated above, this case has no legs to stand on its own and, therefore, it is also liable to be quashed and set aside. Further, according to the respondents, Dharam Veer Singhs case (supra) has attained the finality as the Apex Court has also dismissed the SLP filed by the appellant therein. However, the contention of the applicants counsel is that the Honble High Court while allowing the writ petition in Dharam Veer Singhs case (supra) has not considered the relevant material. He particularly relied upon the Standing Order No. 398/2010 wherein it has been stated in clear terms that if any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958, the department also would not view it adversely for the suitability of the person concerned for Government service. The learned counsel has also submitted that the respondents have misinterpreted the judgment of the criminal court in the case of the applicant as the criminal court awarded Rs.500/- as not fine but actually it was only the expense of the prosecution which has been directed to be deposited under Section 5 of the Probation of Offenders Act.
16. The learned counsel has also relied upon the High Courts another judgment in Robin Singhs case (supra) wherein it has recognized importance of plea bargaining and held as under:
To deny, with plea bargaining being 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.
He has also relied upon the judgment of the Apex Court in Pawan Kumars case (supra) wherein similar observation has been made as follows:
Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary Courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining.
17. We have considered the submissions from both sides. In our considered view, the Honble High Court did not have occasion to consider the aforesaid factual and legal position in this case. When the Department itself vide their Standing Order No. 398/2010 have categorically held that if any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 it will not be viewed adversely by the department for his/her suitability for government service, the officers of the same department cannot go against it and take a different view. As held by the Apex Court in J.N. Ganatra Vs. Morvi Muncipality, Morvi (1996 (9) SCC 495), It is settled proposition of law that a power under a statute has to be exercised in accordance with the provisions of the statute and in no other manner. We also do not find merit in the contention of the learned counsel for the respondents that the case of the Dharam Veer Singh (supra) has attained its finality as the simple dismissal of an SLP is not to be considered as the law laid down by the Apex Court in the case concerned.
18. In view of the above position, we allow this OA and reiterate the concluding para of the order dated 15.11.2011. Accordingly, we quash and set aside the impugned show cause notice dated 03.03.2011 (Annexure A-1) and the order dated 22.03.2011 cancelling the candidature of the applicant (Annexure A-2). We also direct the respondents to give appointment to the applicant to the post of Constable (Executive) Male in Delhi Police, as if there was no criminal case filed against him with all consequential benefits which are being enjoyed by his batchmates, except back wages. The aforesaid directions shall be complied with within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(MRS. JAYATI CHANDRA) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD