Central Administrative Tribunal - Delhi
Sachin Kumar vs Govt. Of Nct Of Delhi on 24 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1641 of 2009
With
OA No.2465 of 2009
New Delhi this the 24th day of December, 2010
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
OA No.1641 of 2009
Sachin Kumar,
Roll No.203575,
Rectt.Ct. (Dvr.) of Delhi Police,
R/o 709, Muthaya Pana,
Bawana, Delhi-39 Applicant
(By Advocate: Shri Anil Singhal)
VERSUS
Govt. of NCT of Delhi
Through Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi
2. Deputy Commissioner of Police,
Headquarters, PHQ,
I.P. Estate,
New Delhi
Respondents
(By Advocate: Ms. Rashmi Chopra)
OA No.2465 of 2009
Sachin Kumar,
Roll No.203575,
Rectt.Ct. (Ex.) of Delhi Police,
R/o 709, Muthaya Pana,
Bawana, Delhi-39 Applicant
(By Advocate: Shri Anil Singhal)
VERSUS
Govt. of NCT of Delhi
Through Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi
2. Deputy Commissioner of Police,
Recruitment, New Police Lines,
Kingsway Camp,
Delhi
Respondents
(By Advocate: Ms. Rashmi Chopra)
O R D E R
Dr. Dharam Paul Sharma, Member (J) These two applications have been filed by the same applicant in respect of two different recruitment years; namely, 2007 and 2009 for appointment to the posts of Constable (Driver) and Constable (Exe.) respectively involving similar issue and are, therefore, disposed of by this common order.
2. While applying for the said posts on both the occasions, the applicant has revealed in the application forms his involvement in Criminal case FIR No.231/2004 under sections 308/323/341/34 IPC PS Bawana, Delhi. The applicant was convicted in the said case under Section 323 read with Section 34 IPC. He was, however, released on probation upon furnishing a bond with surety of an amount of Rs.10, 000/- to keep peace and be of good behavior for a period of one year. The applicant qualified physical, written and medical tests as well as interview for the posts on both the occasions and was provisionally selected. In view of his involvement in a criminal case, the applicants case was referred to the Screening Committee which, after examination of all the relevant records, was of the view that the applicants involvement in the criminal case in which he was convicted showed premeditated mind to commit crime and a tendency to disrespect for law and hence his name was not recommended by the Screening Committee. He was thereupon issued a show cause notice dated 23.02.2009 in OANo.1641/2009, calling upon him to show cause as to why his candidature should not be cancelled on the grounds mentioned therein. The applicant submitted his reply to show cause notice on 9.3.2009 requesting for withdrawal of show cause notice on the ground, inter alia, that he voluntarily revealed his involvement in the case at the time of making his application which, in any case, is not an impediment in his appointment when he has qualified to the post on merits. In support of his case, the applicant has relied upon certain court cases to which we will refer to in details while examining the matter on merits.
3. Similar show cause notice was issued on 3.6.09 in OA-2465 of 2009 to which the applicant replied on 25.06.2009 on the same lines.
4. Thereupon, the concerned authority passed the impugned orders of cancellation of applicants candidature in both the cases, the correctness and legality of which are being challenged in these proceedings.
5. The applicants case is that he has voluntarily revealed his involvement in criminal case in his application. The respondents were aware of it and still allowed him to appear in the tests and interview which he qualified and, therefore, it cannot be said that the applicant is not fit for appointment in view of his involvement in the criminal case. If the applicants involvement in criminal case per se debars him from appointment, then the respondents should not have allowed him to appear in physical, written, medical tests and interview. The fact that he has been allowed to appear in these tests and interview, indicates that the applicants involvement in the criminal case by itself was not sufficient for canceling his candidature as has been done in the case of applicant.
6. The learned counsel for the applicant referred to the following observations made by the Honble Supreme Court in the case of Pawan Kumar Vs. State of Haryana ( 1996 (4) SCC 17);
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.
7. The learned counsel made further references to the cases of Iqbal Singh Vs. Inspector General of Police & others (AIR 1970 Delhi 240); Krishan Dev Vs. State of Haryana and others (2003(2) SLR 658(P& H) and Aitha Chander Rao (1981 (Supp) SCC 17 in support of his contention that release on probation would not affect the service career of the accused person. The learned counsel for the applicant also referred to the case of State of Mdhya Pradesh and others Vs. Hazari Lal (2008 (3) SCC 273 in which the employee was dismissed from service on his conviction under Section 323, read with Section 34, IPC for which he was imposed fine of Rs.500/-. The Honble Supreme Court held that punishment of dismissal was totally disproportionate. The applicants case is on better footing since he has been released on probation.
8. The learned counsel for the applicant strongly urged that the case of Delhi Administration through its Chief Secretary & Ors. Vs. Sushil Kumar, decided on 04.10.1996 by the Honble Supreme Court on which reliance has been placed by the respondents, is not applicable to the applicants case as that was a case of concealment whereas it is not so in the present case since the applicant has voluntarily revealed his involvement in the criminal case at the time of his making applications. The respondents have not given due consideration to the applicants submissions and passed the non-speaking orders which are bad in law.
9. The respondents have filed their reply to the applications, opposing the applicants claim therein. It has been submitted that in cases where a person is involved in a criminal case and has been tried and convicted, the Screening Committee has to see the nature of offence in the context in which it is alleged to have been committed and specifically to judge the suitability of such person in police force. The Screening Committee in the present case consisted of Joint Commissioner of Police/Headquarters as Chairman, Deputy Commission of Police/Vigilance and Legal Advisor to CP, Delhi as members. The Screening Committed examined the case of the applicant and was of the view that the applicants involvement showed premeditated mind to commit crime and a tendency to disrespect for law and, therefore, the Committee did not recommend his name for appointment. On a careful consideration of the applicants case, the respondents did not find it desirable to appoint him as Constable in a disciplined force like Delhi Police. Referring to the case of Sushil Kumar (supra), it has been submitted that what would be relevant is the conduct and character of the candidate to be appointed in a service and not the actual result of the criminal case in which he was involved. The applicants case has been considered on the touch stone of this principle and his candidature has accordingly been cancelled.
10. At the hearing, the learned counsel for the respondents relied upon the cases of Satraj Singh Vs. Union of India & Ors. (2007 IX AD (Delhi) 241); Karam Singh Vs. State of Punjab and another (1996 (7) SCC 748); and Shri Ajit Kumar Vs. Govt. of NCTD & Ors. (OA-1498/2008 decided by this Tribunal on 11.1.2010).
11. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case including the files of Recruitment Cell in respect of the applicant.
12. It is well established proposition of law that the appointing authority or the employer has the right to consider the desirability and suitability of the candidature of an applicant in public service/ employment. Verification of the character and antecedents of the applicant is one of the important criteria to test whether they are suitable for employment. This is in addition to the consideration of an applicants qualifications and experience. Even if the applicant is found to be physically fit, passed the written test, in possession of the requisite qualification and experience, yet he may be denied appointment if verification of his character and antecedents warrants cancellation of his candidature.
13. On the other hand, the involvement in a criminal case, per se, is not a disqualification for appointment/public employment. Had it been so, it would have been sufficient to state that the person involved in any criminal case is not eligible for appointment and the person so involved would not be allowed to compete in the recruitment process. What is required to be seen in such cases is not the mere involvement in the criminal case but actually the conduct, character and antecedents as exhibited by ones conduct based on which an objective view has been taken as to desirability and suitability for inducting him into service. For this purpose, the candidates are required to disclose on their own their involvement in any criminal case in the past so as to facilitate the verification of their character and antecedents by the prospective employer. The act of concealing the requisite information in this regard adversely reflects upon the character and antecedents of the person concerned and this by itself is taken as a ground sufficient to cancel the candidature of delinquent candidate even if he is otherwise qualified for appointment to the post in question.
14. Between these two extremes, there lie a large number of cases of different dimensions and complexions. On the one hand, verification of the character and antecedents of the candidate for appointment is not an empty formality for he cannot claim that he be appointed to the post on the basis of his qualification and performance in the selection process notwithstanding the outcome of the verification process of his character and antecedents. On the other hand, a persons candidature need not be thrown out solely on account of his involvement in a criminal case if he is otherwise found fit for such appointment as he is further required to pass the suitability test with reference to his character and antecedents in the past the outcome of which should be such as not to render him undesirable for induction in public employment. The appointing authority is required to examine this aspect in a pragmatic and objective manner so as to take a decision in the matter based on the relevant facts and circumstances of a given case. A candidate needs to be given a fair consideration. The decision of the appointing authority in such a case should not be arbitrary.
15. The importance of verification of character and antecedents and its scope has been very aptly elucidated by the Honble Supreme Court in the case of Sushil Kumar (supra) providing necessary guidelines in such cases as follows:-
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 physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedents record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined forces . 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 focused this aspect and found him not desirable to appoint him to the service.
16. In view of the aforesaid, we do not find any force in the applicants contention that having been provisionally selected on the basis of his qualification and performance in the selection process, he is entitled for appointment notwithstanding his involvement in the criminal case which he has voluntarily disclosed in the applications at the time of submitting his application forms for otherwise the respondents could not have allowed the applicant to compete in the recruitment process.
17. Another contention of the applicant is that even though he has been convicted in the criminal case, nonetheless he has been released on probation and, therefore, his conviction would not be operated as disqualification in terms of Section 12 of the Probation of Offenders Act.
18. In Satraj Singhs case (Supra), a Division Bench of Honble Delhi High Court has an occasion to consider the question whether the release of a person on probation who is convicted of an offence has the effect of saving him from action under his service conditions and Rules, and whether the disqualification from which he is saved under Section 12 of the Act would also include action against him by his employer under his conditions/Rules. The Bench expressed the view that the question is no longer res integra. In view of the Honble Supreme Courts judgment in Satraj Singhs case, it would be relevant to note in this regard the following observations made by their Lordships in the case of T.R.Challappan (supra) :-
An order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence. This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. Under Sections 3, 4 or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.
19. It has further been observed in this case by the Honble Apex Court as follows;
In criminal trial the conviction is one thing and the sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of Section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court releases him on probation of good conduct. The conviction, however, remains untouched and the stigma of conviction is not obliterated.
20. In view of the aforesaid, the cases referred to and relied upon by the applicant are not of much help to him inasmuch as these cases relate to dismissal from service upon conviction in the criminal case in which the accused persons had been released on probation. The principle that emerges in these cases is the conviction in a criminal case does not necessarily entail dismissal in each and every case. The disciplinary powers vested in the appointing authority in such cases are essentially discretionary and, therefore, the candidates are required to be given fair consideration keeping in view of the nature of offences and the sentence imposed. As such these cases relate more to the application of doctrine of proportionality rather than the desirability and suitability of a person for induction in public employment in view of his character and antecedents.
21. The case of Ajit Kumar Vs. Govt. of NCTD, Others OA-1498/2008 decided on 11.01.2010 by a Coordinate Bench of this Tribunal, referred to by the respondents, is having a close proximity with the present case. We note with approval the following observations made by the coordinate Bench of this Tribunal in the aforesaid case:-
6. Although Section 12 of the Probation of Offenders Act, refers to a situation where a presumption is presented, we do not think it is relevant for us to hold that the past period of life of a person thereby automatically is to be wished away. So long as there is a bonafide consideration of factors, a decision by the administrative authority about the desirability of a person to be introduced into service normally vests in themselves. In Government service, mostly the weeding exercises can be done only till the time of appointment and once a person becomes member of a service even if undesirable, procedural formalities may pose problems to get rid of the person. Therefore, adoption of strict standards, after a holistic view of the situation may not be objectionable.
22. What remains to be seen in this case is whether the applicants case received fair consideration at the hands of the respondents or his candidature has arbitrarily been cancelled solely based upon his conviction in the criminal case in which he has been released on probation as stated above.
23. On perusal of the file of Recruitment Cell AC-II in respect of the applicant in OA-1641/2009, it is seen that the applicants case was referred to the Screening Committee. The Screening Committee consisted of Jt. C.P/HQ as Chairman, Addl. DCP/Vigilance and LA to CP, Delhi as Members. The Committee met on 24.12.2008 to examine the fitness of the candidates selected for the post of Constable (Driver) in Delhi Police on the basis of recruitment held in the year 2007. The case of the applicant was considered along with other four candidates keeping in view the nature, gravity and judgment of the Court. The Screening Committee recommended the cases of three candidates out of five for appointments but did not recommend the remaining two candidates for appointment. The applicants case was among the candidates who were not recommended for appointment by the Screening Committee. It is tus seen that the respondents have not cancelled the candidature of all those found to have been involved in criminal cases but have taken decisions in the matter on the basis of the character and antecedents of individuals concerned having bearing, in the opinion of the respondents, on the suitability and desirability of such persons induction in the service of Delhi Police. There is nothing wrong with this action of the respondents.
24. By the time, the applicants case came up for consideration in the next recruitment for the year 2008 the instructions contained in PHQ Circular No.14565-14615/ASIP/PHQ dated 12.09.83 had been superseded by Circular No.1-100/HAR (AC-I)/PHQ, dated 3.12.2008. Since the applicant has already disclosed in his application the factum of his involvement in the criminal case in which he was convicted but released on probation by the Court, his case was, accordingly, placed before the Screening Committee for consideration and recommendation as to his suitability for appointment in Delhi Police having regard to his character and antecedents. The Screening Committee constituted by CP Delhi comprising Joint CP/Headquarters, DCP/Vigilance and LA to CP/Delhi as members met on 27.04.2009 to decide the candidature of candidate Sachin Kumar, the applicant herein who has been provisionally selected for appointment to the post of Constable (Exe.) in Delhi Police during the recruitment held in the year,2008 to examine the case in keeping in view the nature of his involvement, gravity of the offence and the Honble High Courts judgment dated 12.8.2005. The minutes of the Committee reveal that the Committee considered the involvement of Sachin Kumar S/o Shri Jai Narayan Roll no.503389 in FIR No.231/2004 under Sections 308/323/341/34 IPC P.S.Bawana, Delhi. The Committee noted that On 28.6.2004 Shri Rajbir Singh S/o Shri Dilawar Singh r/o H.No.1153, Kanjhawla Road, Bawana, Delhi has reported that when he was doing the work of iron of clothes at Kanjhawla Road one Shri Sachin who run a grocery shop near the place of his work came to him at about 10.00 a.m. and said as to why he was cutting jokes with his father and he started abusing and giving fist blows and slapped him. The complainant further stated that Sachin made him lie on the ground and gave a leg blow on his ear. In the mean time father of Sachin namely Jai Narayan and his nephew Amit also came there and they all started beating him. Later on the father of the complainant arrived at the spot and tried to save him from the said persons. But some one from the said accused persons gave a rod blow on the head and left feet of his father as a result of which blood started oozing from the person of his father. When he tried to run away from the spot, the accused persons caught hold of him and gave beatings to him. Therefore, the said case was registered and during the trial of the case accused Sachin @ Nikki, Sonu @ Amit and Jai Narayan were held guilty for offences punishable u/s 323 read with 34 IPC and convicted. Later on the Honble Court released the accused person on probation to keep peace and good behaviour for a period of one year on each of them furnishing probation bond with surety of Rs.10,000/- each by the court of Shri Deepak Jagotra, Addl.Session Judge, Delhi vide judgment dated 12.8.2005. The Committee was of the opinion that such type of person was not suitable for police service and hence he was not recommended for appointment in Delhi Police. Even after the recommendation of the Screening Committee as aforesaid, the respondents gave notice to show cause as to why his candidature should not be cancelled for the reasons mentioned therein. After considering the reply of the applicant to the said notice, the respondents have passed the impugned order.
25. In the facts and circumstances of the case, the impugned orders cannot be viewed as arbitrary in nature or being devoid of application of mind. We are of the considered view that the present cases are not fit cases where we should interfere with the same. Both the OAs are accordingly dismissed. No order as to costs.
26. Let a copy of this order be placed on each of the case files.
(Dr. Dharam Paul Sharma) (Dr.Ramesh Chandra Panda) Member(J) Member(A) /usha/