Central Administrative Tribunal - Delhi
Harish Kumar S/O Surender Singh vs Government Of Nct Of Delhi Through on 28 July, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO.502/2007 New Delhi, this the 28th day of July, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Harish Kumar S/o Surender Singh, R/o 168 Katwaria Sarai, I.I.T., Hauz Khas, New Delhi-110016. Applicant (By Shri Ravi Kant Jain, Advocate) Versus 1. Government of NCT of Delhi through Principal Secretary Home, 5th Floor, IGI Indoor Stadium Complex, Delhi. 2. Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi-110002. 3. Deputy Commissioner of Police, Office of the Commissioner of Police, MSO Building, I.P. Estate, Police Headquarters (Estt.), New Delhi-110002. Respondents ( By Shri Ajesh Luthra, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Harish Kumar, applicant herein, had applied for selection to the post of Constable (Driver) in Delhi Police on 02.05.2005 in prescribed format. He cleared the written test on 05.08.2005, physical measurement test on 18.01.2006, trade test on 02.02.2006 and interview on 03.04.2006. On succeeding in the above tests and the interview, he was called for completion of codal formalities for appointment as Constable (Driver) on 03.05.2006, and after completion of such formalities, he was provisionally selected along with other 14 candidates on 26.05.2006, and was directed to report for medical examination on 13.06.2006. As the luck would have it, by the time he was called to complete codal formalities, his in-laws and wife got an FIR registered under Section 498A/406 IPC against him and his relations. He honestly disclosed this fact in his pre-appointment formalities. In November/December, 2006, when other candidates, selected with him, received appointment letters but the same was not issued to him, he submitted a representation, upon which he received the impugned order dated 05.02.2007 conveying him that his case for appointment has been held in abeyance till the finalization of the case in the trial court after which it shall be decided after thorough examination of the decision of the court on merits. It is in the wake of facts, as mentioned above, present Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed seeking to set aside order dated 05.02.2007 and in consequence thereof to direct the respondents to issue him appointment letter for the post of Constable (Driver).
2. It has been the case of the applicant all through as also before this Tribunal that he got married on 21.04.2003, and after marriage it was revealed that his wife Mrs. Sumitra had been suffering from certain serious incurable diseases and was thus not fit to perform marital obligations. The said fact was concealed by parents of the girl from him and the marriage was thus arranged fraudulently. The above fact came to his notice when he took his wife to doctor for her treatment. It is the case of the applicant that after his marriage in April, 2003, he has been regularly getting his wife treated from various hospitals i.e. Charak Palika Hospital, Moti Bagh, Satyam Medical Centre (Government approved Maternity & Nursing Home), Gopniye Nirog Dham, A.I.I.M.S. etc. Medical record of applicants wife has been enclosed at Annexure A-3 (Colly.). It is further the case of the applicant that when his in-laws realized that disease of their daughter is incurable, they, under fear psychosis that applicant may not divorce their daughter, lodged a false complaint against him in Crime Against Women Cell, before whom a number of hearings were given but no amicable solution came to be found out, and on false and fabricated grounds the applicant was subjected to trial before the court of ASJ, Patiala House under Sections 498-A/406 IPC. The applicant avers that when true facts were brought to the notice of trial judge seized of the criminal case, some interim orders, which may show the defence projected by him, came to be passed. Such orders have been placed on record at Annexure A-5 (Colly.). The first order placed on record is dated 21.03.2005 which appears to be passed in the application filed under Section 438 Cr.P.C. seeking anticipatory bail, relevant part whereof reads as follows:-
The complainants are not ready and willing to join the company of the applicants. There seems to be some dispute regarding the mental as well as physical health of complainant Sumitra which has resulted into the breaking of the two families, though the complaint has been filed under section 406/498-A IPC. Applicant Yogesh Kumar is ready and willing to take back his wife and child with him. No FIR is registered.
Under these circumstances, in case any FIR is registered against any of the applicants and applicants are wanted in any case, Investigating Officer shall give them a weeks notice before their arrest. The next order placed on record is dated 25.10.2005, which reads as follows:-
Counsel for complaint submits that both the complainants are ready to live with their husband. Counsel for applicants submits that applicant Yogesh in FIR No. 168/05 is ready to keep the complainant. Counsel for applicant also submits that the complainant Sumitra is suffering from epilepsy fits (dyspareunia) and she was got treated by the applicant. The photostat copy of medical papers have been filed by the applicant. IO seeks time to verify the same. Adjourned to 14/11/05. Till then interim order to continue. The next order is dated 19.12.2005. The same reads as follows:-
I have heard the parties at length. Complainant is willing to go to matrimonial home but Mr. Suhail submits that he is not in a position to say anything at this stage. However, he has argued vehemently that this is not a case where section 406/498-A IPC is attracted as he is willing to return the entire dowry articles. He has time and again taken the dowry articles to the CAW Cell He has shown me the photographs of the truck loaded with the articles standing in front of the police station but IO for the best reasons known to him has not collected the articles nor the complainant. He has argued vehemently that complainant Sumitra is suffering from dysparenia. He submitted that there has been no cohabitation between the complainant and the applicant and this is the root cause of the entire problem. It is very difficult to give any opinion at this stage but both the complainants are willing to join matrimonial home. I direct the complainant and the applicants to sit together in the company of Ld. counsel for complainant as well as for applicant and sort out the matter amicable. If applicants are not willing to take back the complainants the applicants are directed to return all the dowry articles to the complainant. To come up on 20th January 2006. Interim order to continue. The last order placed on record is dated 20.04.2006. The same reads as follows:-
It is reported that Rs.70,000/- have been agreed to be paid by the accused persons to the complainant without prejudice in lieu of the jewelery articles. Rs. 40,000/- have been paid in cash today to the father of the complainant by the Ld. counsel for the accused before the Court. Rs.30,000/- are agreed to be paid today to the counsel for the complainant. On this, Ld. counsel for complainant has no objection to the grant of anticipatory bail to the applicants.
In view of the same, it is directed that in the event of arrest, applicants shall be released on bail on their furnishing personal bond in the sum of Rs.10,000/- with one surety each in the like amount to the satisfaction of the IO/SHO concerned subject to the condition that the applicants shall join investigation of the case as and when summoned by the IO.
3. While challenging the impugned order, the applicant has taken variety of grounds but what primarily has been urged before this Tribunal is that at the time the impugned order came to be passed, no charge had been framed against the applicant or his co-accused by the court seized of the matter and, therefore, the procedure so as to keep the candidature of the applicant in animated suspension or in abeyance would be wholly illegal as has already been held by judicial precedents upto the highest court of the land. Learned counsel appearing for the applicant has tried to compare cases of promotions where sealed cover procedure is adopted with initial appointment. It is urged that if while promoting a government servant the sealed cover procedure is adopted only when a charge is framed in a criminal case, the same should also hold good with regard to initial appointment. The other ground seriously pressed is with regard to validity of circular relied upon by the respondents on the basis of which the candidature of the applicant has been kept in abeyance. It is urged that circular relied upon by the respondents is wholly unjustified and unreasonable which offends Articles 14 & 16 of the Constitution of India.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and, while filing counter reply, contested the cause of the applicant. At this stage, we may only refer to the circular relied upon by them in denying relief to the applicant. The same, we may, however, reproduce while dealing with question number (ii) framed for adjudication by this Tribunal, which too, we may mention hereinafter. Suffice it to say at this stage that the circular dated 12.9.1983 inter alia provides that if a candidate may have revealed his involvement in a criminal case, he would be taken in service, if he is fully exonerated by the court or no moral turpitude was involved. On the basis of the circular, it is the case of the respondents, once a candidate seeking appointment in Delhi Police is involved in a criminal case, the decision in the said case has to be awaited and appointment made only if he is fully exonerated, and further that the offence with which he may have been charged, does not involve moral turpitude.
5. The Division Bench, before which the matter came up for hearing on 05.11.2007, by an order of even date, referred the case to the Full Bench. The questions referred to the Full Bench would be clear from paragraphs 4 to 6 of the reference order, which read as follows:-
4. The circular relied upon by the respondents deals with two different situations. Candidates who may not have revealed their involvement in a criminal case despite knowledge of the same, would not be appointed and in fact, their candidature shall be cancelled as they had given false statement and tried to seek employment by adopting deceitful means. The other situation covered under the circular pertains to such candidates who have disclosed the factum of pendency of criminal case against them. The candidature of such candidates shall be kept in abeyance till the decision of the case and it is only after the courts judgment that the case along with the judgment would be thoroughly examined with a view to ascertain as to whether the candidate has been fully exonerated. The decision could be taken at the level of Police Headquarters. If the circular Annexure R-I is strictly applied irrespective of the nature of criminal involvement of a candidate and the facts and circumstances under which he is facing criminal trial, perhaps the impugned order cannot be adversely commented upon and has thus to be sustained. The words still pending in the circular would take their ordinary meaning, and presentation of challan in a court would be treated as if a case is pending against a candidate. The question that, however, arises is that as to when a criminal case can be said to be pending against a person under law, particularly in the context of service jurisprudence. The question framed above is of considerable importance and is arising case after case. There is no clarity on the issue referred to above, and we have come across some judgments which may have taken contradictory views as well.
5. The other significant question that arises for determination in the present case is as to whether pendency of any case of whatever nature it may be and whatever the facts and circumstances of the case, can become a ground to keep in abeyance appointment of a citizen who has been selected after due process of selection. To illustrate, if a candidate seeking recruitment is involved in petty offences under IPC or such offences which are tried summarily involving hundreds of thousands of people throughout the country, like motor vehicle challans, can his candidature be kept in abeyance? Whether the nature of offence and the facts leading to commission thereof would be a relevant factor? Would the authorities not like to see the bare minimum facts of the allegations made against a candidate in the offence alleged to have been committed by him? would yet be the question that may need a serious thought.
6. We may also mention that whereas the learned counsel representing the applicant contends that registration of an FIR, at the most, makes an alleged offender only an accused and not a criminal. Every person facing a trial is supposed to be innocent till proved guilty, and, therefore, if the allegation made against him may turn to be a hoax or an outcome of ill will of the complainant to frame him, and ultimately the criminal trial may culminate into honourable acquittal, what shall be the fate of the candidate who may have suffered a long agonizing trial? Shri Ajesh Luthra, the learned counsel representing the respondents, would, on the other hand, contend that what shall happen if the trial results into conviction? Would it be desirable to appoint a person in the police force who may ultimately be convicted? The contentions raised by the learned counsel representing the parties would lead to yet another significant question to be determined by this Tribunal, which would be as to whether it is possible to find some middle path where the interest of the candidate may be vouchsafed without any adverse effect in the police discipline.
6. Culled out from paragraphs 4 to 6, the questions that need adjudication would be:
As to whether the circular relied upon by the respondents pertaining to initial appointment can be compared to sealed cover procedure in the matter of promotion, which course is to be adopted as per rules and judicial precedents, when the concerned criminal court has framed the charge, or if it is a case of departmental enquiry, the charge has been framed.
Second question that would need adjudication by the Full Bench would be as to whether the circular relied upon by the respondents is harsh and unreasonable and offends Articles 14 & 16 of the Constitution of India.
7. At the very outset, we may mention that in service matters, broadly speaking, there are three stages, which would be (i) appointment, (ii) promotion and (iii) retirement. It appears to us that different parameters may follow on the three stages in service matters, as enumerated above. Initial appointment, in any case, in our considered view, cannot be compared with promotion, and that being so, the rules or judicial precedents that may govern promotion may not at all be applicable in the matter of initial appointment. Service jurisprudence would commence only when a person is appointed, and that being so, a protection while in service or for promotion may not be available to a person who has still to enter service.
8. The learned counsel representing the applicant, for the contention raised by him that mere registration of an FIR against a person would not debar him from occupying a public office, by and large relied upon judgments in the matter of promotion and retirement. The basic judgment on the issue relied upon is of Honble Supreme Court in Union of India & Others v K. V. Jankiraman & Others [(1993) 23 ATC 322]. The question debated and adjudicated in the case aforesaid was as to whether an employee can be denied promotion on the ground of pendency of preliminary enquiry/criminal investigation. The specific questions dealt with are as follows:
(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? (3) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? Obviously, in the context of the facts of the present case, it is only question number (1) as reproduced above, which is relevant. After considering the rival contentions of the learned counsel representing the parties, the Honble Supreme Court observed thus:
It is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. Further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
9. From perusal of paragraph above, it is clear that even in case of promotion, Honble Supreme Court is of the view that if allegations are serious, authorities can always suspend the person and suspension itself would be sufficient to permit the authorities to resort to sealed cover procedure meaning thereby that in case of serious allegations even promotion could be denied by suspending him but in normal complaints of petty nature it was held, unless the authorities issue charge-sheet, it should not be taken against the employee to deny him the promotion. The reasoning for same is given in para 16 wherein it is clearly mentioned that experience shows, many a time, investigation and complaints are initiated at the instance of interested persons and are kept pending deliberately for long periods without taking them to a logical conclusion. It was observed that if allegations are of serious nature, and authorities are keen to investigate them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges but if complaints are not even seriously viewed or taken cognizance of, it would amount to injustice to the employees, if their names are allowed to be kept in sealed cover merely on the ground of some pending investigations.
10. The next reliance of the learned counsel is on the judgment of the Honble Supreme Court in Coal India Ltd. & Others v Saroj Kumar Mishra [(2007) 9 SCC 625]. The said case also pertains to promotion. Respondents before the Honble Supreme Court, it appears from the judgment, were not promoted on the premise that vigilance cases were pending against them. When respondents were not promoted and persons junior to them were promoted, they filed writ petition before the Orissa High Court, which was allowed. In the appeal preferred by Coal India Ltd. and others, it was canvassed that in terms of memo dated 19.6.1979 pendency of vigilance or departmental action would itself be sufficient for not promoting the officer who would, in the event of his complete exoneration, be promoted as and from the date his immediate junior has been promoted. The Honble Supreme Court in the context of the memo referred to above, as modified from time to time, held that circular letter issued by the appellants put restrictions on a valuable right of an employee, and, therefore, required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. The Honble Supreme Court then referred to the revised guideline, which reads as follows:
The vigilance clearance shall be withheld only on the ground (a) when officer is under suspension; (b) when the officer, in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending. Even though the circular was said not to be applicable ipso facto, but since the same clearly laid down the law otherwise prevailing, the contention of the counsel as noted above, was repelled and the appeal preferred by Coal India Ltd. was dismissed.
11. Learned counsel representing the applicant has placed reliance upon other judicial precedents for the proposition that while promoting an employee, departmental and criminal proceedings can be taken into consideration only if charge has been framed, be it in departmental or criminal proceedings, and sealed cover procedure in such an event/situation has to be resorted. It would be unnecessary to burden the present judgment by referring to all these judgments. Suffice it to say that either because of the rules governing a particular service in the matter of promotion or judicial precedents, the law by now is well entrenched that only if charge has been framed in departmental or judicial proceedings, that sealed cover procedure has to be adopted and in case the proceedings are not at that stage, the employee will be entitled to promotion. Insofar as post retiral benefits are concerned, government employees are governed by CCS (Pension) Rules. In view of rule 69 read with rule 9(6) and (4), in case where a government servant has retired and against whom proceedings are pending under sub-rule (2) of rule 9, provisional pension has to be sanctioned. The date of institution is further explained in sub-rule (6) of rule 9, which reads thus:
9 (6) For the purpose of this rule, -
departmental proceedings shall be deemed to be instituted on the date on which statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.
The provisions of rule 9(6) also take care of the stage where criminal case would be said to be instituted. The same would be said to be instituted only after charge is framed. Obviously, the object of the rule is to ensure that at the fag end of his career an employee is not put to indefinite inconvenience on the ground of some investigation/enquiry which has not culminated into a charge sheet. It is will known and may not need any elaboration that charge sheet, be it in departmental enquiry or criminal trial, is framed only when the allegations of misconduct or criminality may prima facie are made out from the material on record. In both the situations, as mentioned above, for employees who are already in service, rules and judicial precedents are framed only to ensure that no injustice is done to the employees and they are not harassed on account of frivolous complaints. Thus, rules that may apply for denying promotion or post-retiral dues, as may be applicable in the case of promotion and retirement, in our considered view, would not hold good when a person is seeking entry in government service. As mentioned above, service jurisprudence starts only when a person is appointed. While seeking initial appointment, a candidate, in our considered view, has no enforceable right to be appointed, nor, therefore, any duty is cast upon the employer to protect his interests. As per known procedure, for initial appointment in service a candidate who may answer basic qualifications of education and experience etc. has to go through a process of selection. Such candidates who may successfully go through the process set for selection, would be provisionally empanelled, but before the government may issue orders of their appointment, it has an indefeasible right to verify the character and antecedents of such candidates. It is often seen that in some cases even provisional appointment letters are issued but the same are subject to verification of character and antecedents. This verification is necessarily to be done to ensure that no undesirable or anti-social elements enter government service. This procedure becomes all the more essential when it is a case of making appointment to a disciplined force. The role of employees in Delhi Police, at whatever level they may be appointed, is to safeguard the interest of public at large and maintain law and order. Surely, the department would not make recruitment of a person simply because he has successfully gone through the selection process, if his integrity is doubtful or if he is, at any stage, suspected to have committed an offence. Thus, if on verification of character and antecedents of a candidate, either disclosed by himself or that may come to the notice of concerned authorities, it may transpire that such candidate is involved in a criminal case, in our considered view, his candidature can be put in suspended animation, awaiting result of the criminal case that he may be involved in. A person is at least suspect of committing a crime if the FIR lodged against him discloses ingredients of the crime that he is said to have committed. In our considered view, the concerned authorities need not await framing of charge by the criminal court and thus to appoint him till such time a criminal charge is framed against him. Mere registration of an FIR, contents whereof may, however, disclose commission of an offence would be sufficient to put on temporary hold appointment of the candidate. His candidature, in our considered view, can be kept in abeyance till final decision of the criminal case. The department would thus be within its right to await the final outcome of the criminal case in which the candidate may be involved. It is settled proposition of law by now that the employer would have a right and be thus justified to verify the character and antecedents of a candidate before issuing him letter of appointment. Reliance in this connection be made to judgments of the Honble Supreme Court in Delhi Administration & Others v Sushil Kumar [(1996) 11 SCC 605], and R. Radhakrishnan v Director General of Police & Others [(2008) 1 SCC 660]. The facts in Delhi Administration (supra) reveal that Sushil Kumar had cleared all the tests for recruitment as constable in Delhi Police. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by local police. On verification it was found that his antecedents were such that his appointment to the post of constable was not found desirable, and accordingly his candidature was cancelled. He successfully challenged the order denying him appointment before this Tribunal. His Application was allowed on the ground that since he had been discharged and/or acquitted of the offence punishable under Section 304/324/34 IPC, he cannot be denied the right of appointment to the post under the State. Honble Supreme Court, in appeal against the order of the learned Tribunal, reversed its order by observing as follows:
.The question is whether the view taken by the tribunal is correct in law? It is seen that 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 found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent 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 reconsideration 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 is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in 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 focussed this aspect and found it not desirable to appoint him to the service. In R. Radhakrishnan (supra), even though it was a case wherein the petitioner who had sought appointment as a fireman had suppressed the factum of his involvement in a criminal case in which he was acquitted also, the Honble Supreme court while rejecting his plea relied upon its decision in Delhi Administration (supra) as well.
12. In recent past, i.e., on 24.4.2008, we had occasion to deal with a set of connected OAs bearing No.2137/2006 and others in the matter of Sanjeev Kumar & Others v Government of NCT of Delhi & Others. The question involved was with regard to recruitment as constables in Delhi place, and the applicants therein although were selected after going through the entire process of selection, were not appointed even though criminal cases in which they were involved had resulted into acquittal. Some of the OAs decided by the common order dated 24.4.2008 had earlier come up before this Tribunal and were allowed by observing that appointments to the applicants were denied only because of their involvement in criminal cases, and the mere fact that they were acquitted either on account of witnesses turning hostile or giving them benefit of doubt would not make any difference in their acquittal, and that once they were acquitted the administrative authorities could not sit over the decision of the court and come to a contrary conclusion. Decision of this Tribunal was challenged before the High Court of Delhi. Orders passed by the Tribunal were set aside and the matter was remitted to Commissioner of Police to appreciate the nature and gravity of offences and the manner in which they were acquitted, and to pass orders for their appointment or otherwise. It was held that even though a person may be acquitted of the charge, but when the same is because of the witnesses turning hostile or giving benefit of doubt, the authorities would be well within their right to take a decision and to find out as to whether they were fit to be appointed or not. Some of the candidates who suffered adverse orders and were thus not appointed, challenged the said orders before this Tribunal once again. Meanwhile, some other candidates of a different recruitment year were also not appointed on similar grounds. All these Applications came up for hearing before us, and, as mentioned above, were decided on 24.4.2008. It was held by this Tribunal that In wake of judgment of Delhi High Court, which is an inter partes decision and, therefore, binding upon the parties and SLP against which has since been dismissed, in our considered view, it is not open for the applicants to contend that an acquittal is an acquittal and no distinction can be made on that behalf whether being honourable acquittal or acquittal on benefit of doubt. This was indeed the view of this Tribunal, which has been specifically overruled by the Division Bench of Delhi High Court. Honble Delhi High Court, as mentioned above, noted the findings of this Tribunal that there could be no different yardstick for those persons who have been acquitted honourably to be treated differently from those persons who were also involved in criminal cases but were acquitted on benefit of doubt.
13. The judicial precedents referred to above and in particular Delhi Administration (supra) and Sanjeev Kumar (supra), would clearly manifest that the employer would be well within his right not to make appointment of a person who may be involved in a criminal case. Surely, even if the acquittal in the criminal case may not necessarily result in giving appointment to the person, no different parameters may follow where a person is involved in criminal case, as he may even be convicted. Before we may part with this aspect of the case, we may mention that putting the case of a candidate in suspended animation awaiting decision in the criminal case, in a way is adopting of sealed cover procedure, as may be applicable in the case of promotion. The candidature of the applicant is not rejected merely because of his involvement in a criminal case. Only his appointment has to await decision of the criminal case. In a case of sealed cover procedure also, the employee is not promoted. His promotion is dependent upon outcome of departmental/criminal proceedings against him. The only difference is that whereas in the case of promotion, sealed cover procedure is adopted if charge sheet has been framed in departmental/criminal proceedings, in the case of initial appointment, as in the present case, the said procedure is adopted on involvement in a criminal case when FIR for a cognizable offence is registered. We find no merit whatsoever in the contention of the learned counsel representing the applicant that mere involvement of a candidate in criminal case is not enough to stall his appointment awaiting decision of the criminal case, and, therefore, till such time at least the criminal court may frame charge against him, he has to be appointed. That being so, the first question as framed above would be answered against the applicant.
14. The circular dated 12.9.1983 on which rests the defence projected by the respondents so as to put on a temporary hold appointment of a candidate in Delhi Police, reads as follows:
With a view to dealing with cases of concealment of facts about the involvement of candidates in criminal cases at the time of filling-up their application/attestation forms for recruitment in Delhi Police, it has been decided that:-
The candidature of such individuals against whom the cases are still pending will be held in abeyance till the decision of the case. After the courts judgement, each case alongwith judgment will be thoroughly examined, with a view to seeing whether the candidate has been fully exonerated or if his moral turpitude was involved. Such decision will be taken at the level of Police Headquarters.
If the candidate had himself revealed his involvement in a criminal case, he would be taken in service, if he is fully exonerated by the court or no moral turpitude was involved.
The candidates not revealing their involvement in the criminal cases despite knowing the same (knowledge will be presumed on the part of the candidate about his involvement in the criminal case, if he was arrested therein) and thus concealing the material information, which may be revealed later, on verification of character and antecedents, the candidature of the candidate would be cancelled, as he had given false statement and had tried to seek employment in the Delhi Police, by adopting deceitful means. Perusal of the circular aforesaid would reveal broadly two categories one, where a person is involved in a criminal case, but while seeking appointment with Delhi Police he conceals the same. Concealment in itself is a ground to deny appointment to him. Surely, we are not concerned with this aspect of the circular. The other part of the circular deals with candidature of a person who has voluntarily mentioned about his involvement in a criminal case. He is not to be taken in service till such time he is fully exonerated by the court or the offence is not such which may involve moral turpitude. The learned counsel representing the applicant vehemently contends that the circular putting on hold employment of a duly selected candidate is unreasonable, unrealistic and harsh, and that the same suffers from the vice of Article 14 of the Constitution. It is urged that the State would not deny any person equality before law or the equal protection of laws and the concept of equality and equal protection of laws guaranteed by Article 14 in its proper spectrum encompasses social and economic justice in a political democracy. Article 14 enjoins upon the State and its instrumentalities to make laws in such a manner that the same are fair, just and equitable, after taking objectively all the relevant options into consideration, and in a manner that is reasonable, relevant and germane to effectuate the purpose of public good and in general public interest. While elaborating, the counsel contends that the circular would make no distinction between involvement of a candidate in heinous crimes or crimes which may be absolutely petty in nature, and may ultimately result in a token fine. Non appointment of a candidate for his involvement in a petty case like motor vehicle challans and such other petty offences would be wholly unreasonable, denying an opportunity to the person to seek public appointment, which is a Fundamental Right. The outcome of a criminal case which has to be awaited may take years and years because of complex procedural laws and tardy progress of cases in the courts, which may some times even take a decade. The acquittal of a person by the trial court seeking appointment may not put an end to his miseries. The State may challenge the order of acquittal by filing an appeal, or even a complainant aggrieved of the said order may challenge the same in a higher judicial forum. In the process, not only the candidate may be deprived of his livelihood for years, but it may also result into his becoming overage and losing the benefit of his success in a competitive test for appointment.
15. Per contra, Shri Ajesh Luthra, learned counsel representing the respondents, with matching vehemence contends that the circular only ensures that the police which has important task to perform including maintaining law and order, is not run by persons who may have a tainted past, and only such persons could be appointed who may have an unblemished character, as surely, candidates with criminal background would not only not be able to protect the law and order, but even public would have no confidence in them, bringing the whole system to disrepute, frustrating the object of running administration efficiently and honestly. He further contends that if appointment is to be made pending criminal trial against a candidate and ultimately he is convicted, surely, there would be such persons who cannot and should not be appointed and, therefore, circular dated 12.9.1983 is legal and has to be sustained. It is also urged by the learned counsel that initial appointment is prerogative of the employer and no one simply on his successful participation in the test can be automatically appointed, and that verification of character and antecedents of a person is the right of employer and the circular is in tune with the same.
16. Having heard the learned counsel representing the parties, we are of the considered view that the circular dated 12.9.1983 cannot be struck down being unreasonable or harsh. Surely, those who may be facing trial for heinous offences cannot and should not be permitted to occupy any public office, and in particular, a disciplined force. When it may come to involvement of a candidate in a serious crime, it may be noted that it is not even the case of the applicant that he should be given employment in Delhi Police. The only contention raised by the learned counsel is that if the offences may be petty in nature and may involve no moral turpitude, appointment cannot be put on hold till finalisation of the criminal trial, and, therefore, a candidate should be given employment which may be subject to the outcome of the criminal case. In the context of the facts as mentioned above, the only question that needs to be determined by this Tribunal is as to whether when the circular makes no distinction whatsoever between involvement of a candidate in a serious or a petty offence, the same should be struck down even on that count.
17. We have given our anxious thoughts to the rival contentions of learned counsel representing the parties. Before we may, however, comment upon validity of the circular dated 12.9.1983 and the jurisdiction of this Tribunal to uphold or strike it down, we may mention that there appears to be a marked distinction between a citizen seeking employment to a public office involved in petty offences and offences which may involve moral turpitude or serious crimes. The present and future of job seekers in a country like ours, where there are teaming millions unemployed youth, it appears to us, cannot be ruined because of their involvement in petty offences which may involve no moral turpitude also. Circular dated 12.9.1983 which came into being 25 years ago, in our considered view, needs a fresh look. There are lots of changes taking place in the social milieu. Therefore, it is high time that the provision of law, which in the present case, was made more than two decades ago, is looked at again. The IPC describes various kinds of offences, some of which are bailable while the others are non-bailable. Some offences are cognizable while others are non-cognizable. Some others are compoundable with permission of the court and others are non-compoundable. We need not enumerate in all their details such offences. Suffice it, however, to say that there are some offences which are compoundable even without permission of the court. Obviously, such offences are petty. Should a person involved in compoundable offences be debarred from seeking employment when such offences are not considered to be serious at all and even permission of court is also not required for compounding the same? In our considered view, involvement of a person in such crimes should not be hurdle in getting public employment. Offences involving moral turpitude, however, stand on different footing. If the victim of a crime may forgive the offender and thus compound the offence willingly or voluntarily, there does not appear to be any reason for the State to deny employment to the accused of such an offence. Practical experience shows that in case of offences which are compoundable with permission of the court, generally, when the victim may willingly or voluntarily like to compromise, such permission is granted. There were times when for cognizable and non-cognizable offences, trial had to conclude and culminate in conviction or acquittal, even though parties might have settled their disputes. The High Court had no power either under Article 226 of the Constitution or Section 482 CrPC to quash an FIR pertaining to a non-compoundable offence, even if the parties might have arrived at a compromise. With the advent of time, the law has now been settled that even in non-compoundable offences where parties may have compromised, the High Court would have ample power and jurisdiction to quash the FIR. Reference in this connection be made to the judgment of the Honble Supreme Court in B. S. Joshi & Others v State of Haryana & Others [(2003) 4 SCC 657] followed by a Full Bench of five Honble Judges of the Punjab & Haryana High Court in Kulwinder Singh & Others v State of Punjab & Another [Crl. Misc. Petition No.33016-M of 2007 decided on 8.8.2007, and reported as 2007 (3) RCR 1052]. In this scenario, it would be iniquitous to deny or put on indefinite hold appointment of a person seeking public employment. Balance between purity in administration by employing clean people and the fundamental right of a person to seek a job of his choice, has to be struck. We have no doubt in our mind that public appointment should not be denied to a person who may not have been charged with any offence involving moral turpitude and is involved in only petty offences. To illustrate, can a person be denied employment if he is involved in motor vehicle challans, defying a prohibitory order under Section 144 CrPC or petty offences like 323 IPC which is simple hurt. There are cases which have been intentionally given criminal overtones, even though they may be pure and simple property disputes, or arising from contracts and partnership concerns, and/or pure and simple money transactions. Such criminal proceedings are normally resorted to with a view to put pressure upon the other side to abide by a contract that he might have failed to adhere to. The list of petty offences and such offences which may be made to look like as if having criminal overtones should not be a hurdle in the way of a person seeking public appointment. That apart, even though the offence may appear to be somewhat serious, but the attending circumstances may show that the accused is a victim of frame-up so as to settle some score, or the circumstances may appear to show that it is a family feud, or a matrimonial dispute, where some times the whole family of one party may be involved in a criminal case, need to be looked into. A provision like circular dated 12.9.1983 encompassing in it all kinds of offences, petty or serious, involving moral turpitude or not, in our considered view, would seriously and prejudicially affect not only the rights of a citizen, but would also be impediment in progress of the nation. The hardship that a person may face in long agonizing trials is indeed a factor which also needs to be taken into consideration.
18. In Pawan Kumar v State of Haryana & Another [(1996) 4 SCC 17], the Honble Supreme Court while dealing with case of a person who was convicted in summary trial for offence under section 294 IPC and on that count his services were terminated as no longer required, observed thus:
13. .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 IPC 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 IPC on todays society and its standards, and its changing views of obscenity (emphasis supplied). The matter unfortunately was dealt with casually at all levels. The Honble Supreme Court further observed that:
14. Before concluding this judgment we hereby draw the attention of 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 find, 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 the 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. It may be noted that section 294 IPC is causing annoyance to others by doing any obscene act in any public place, or singing, reciting or uttering any obscene songs, ballad or words, in or near any public place. In State of M.P. & Others v Hazarilal [(2008) 3 SCC 273], the Honble Supreme Court was dealing with the case of a person who was convicted for an offence u/s 323 IPC, and on that account was shown the exit door from his service. The job of the employee was restored and the attitude of the appellants was held to be ex facie wholly unreasonable. While dealing with the issue, the Honble Supreme Court observed as follows:
8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly..
19. Having held that it may not be justifiable for the respondents to deny or to put on indefinite hold appointment of a person for his involvement in a criminal case of whatever nature it may be, the question that arises is as to whether on that ground the circular dated 12.9.1983 can be set aside or quashed being opposed to provisions contained in Article 14 of the Constitution. We have, once again, given our thoughtful consideration to the issue and are of the view that once, denying or withholding appointment of a person for his involvement in a serious offence or an offence that may involve moral turpitude is permissible and also desirable, it may not be possible for us to strike down the circular or even to re-write it. If we were perhaps to hold that the circular would be read to mean that a citizen involved in petty offences involving no moral turpitude can be permitted to join the job, which may be even subject to the outcome of the criminal trial, it would amount to legislation, which, surely, is not in our domain. It is too well settled a proposition of law that abuse or misuse of a provision does not per se invalidate the legislation. If a provision of law is misused and subjected to abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. Reference in this connection be made to the decision of the Honble Supreme Court in Sushil Kumar Sharma v Union of India & Others [(2005) 6 SCC 281], wherein it was held as follows:
12. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand. (See A. Thangal Kunju Musalidar v. M. Venkatichalam Potti (1955) 2 SCR 1196 : AIR 1956 SC 246). 14. the principle appears to be well settled that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, action and not the section may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.
20. In view of the settled law that abuse or misuse, in the present case misuse, of a provision would be no ground to invalidate it, we have no choice but for not to accede to the prayer of learned counsel representing the applicant to quash circular dated 12.9.1983. The second question for adjudication by the Full Bench, as reproduced above, would be answered accordingly.
21. Before we may part with this order, we may mention that circular dated 12.9.1983 which came to be issued 25 years ago needs a fresh look in the light of our observations made above. Such was also the wish of the Honble Supreme Court in Pawan Kumar v State of Haryana (supra). We direct that the Chief Secretary, Government of NCT of Delhi would bring to the notice of the Honble Lieutenant Governor of Delhi this judgment recorded by us for remedial measures, if it may be so thought appropriate and reasonable.
22. The matter be listed before appropriate Division Bench for decision on merits.
( Meera Chhibber ) ( L. K. Joshi ) ( V. K. Bali )
Member (J) Vice-Chairman (A) Chairman
/as/