Central Administrative Tribunal - Delhi
Shri Bhupender Singh vs The Commissioner Of Police on 2 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 1579/2011
ORDER RESERVED ON: 21.02.2012
ORDER PRONOUNED ON: 02.03.2012
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
Shri Bhupender Singh,
S/o Shri Mange Ram,
Roll No. 806170,
R/o Village & P.O Rawta,
New Delhi -110073 Applicant.
(By Advocate: Shri Sachin Chauhan)
Versus
1. The Commissioner of Police,
Police Headquarters, I.P.Estate,
New Delhi.
2. The Deputy Commissioner of Police,
Establishment,
Through Police Headquarters,
I.P. Estate, M.S.O. Building,
New Delhi. Respondents.
(By Advocate: Shri Amit Anand)
O R D E R
Shri G. George Paracken:
The applicant was a candidate for the post of Constable (Driver) in Delhi Police. He was selected provisionally during the recruitment held in the year 2009, subject to satisfactory verification report of his character and antecedents. However, the character and the antecedent verification report received in his case from the DCP/Special Branch, Delhi revealed that a case FIR No. 92/2001 under Section 332/353/427/186/34 IPC was registered against him in Police Station Jafarpur Kalan, Delhi on 12.07.2001. On scrutiny of his application form also, it was found that he had disclosed about his involvement in the aforesaid criminal case in the relevant columns of the application as well as attestation forms. Accordingly, his case was examined in detail by the Screening Committee constituted to assess his suitability for appointment as Constable (Driver) in Delhi Police. The Committee considered the nature of his involvement in the criminal case, the gravity of the offence, the judgment of the court and the grounds of his acquittal. The Committee observed that the allegation against the applicant was that he along with S/Shri Prakash, Azad and Gyan had assaulted the public servants S/Shri Sukhbir, Chanderbhan, Rai Singh and other staff working in DVB in Village Rawta while they were repairing an electric fault. The applicant and other co-accused had used criminal force and also damaged tempo bearing No. DL 1LC 9866. After investigating the matter, a charge sheet was filed against the applicant and the co-accused in the court. However, vide judgment dated 06.09.2007, the Court acquitted them as all the material witnesses denied the prosecution version. According to the impugned order, even though he was acquitted from charges, the fact was that he voluntarily obstructed the public servants from discharging their public functions and caused hurt on their person which showed his mob mentality which renders him unsuitable for appointment in Delhi Police where the highest standards of discipline are maintained.
2. Aggrieved by the aforesaid findings of the Screening Committee, the applicant was called upon to show cause as to why his candidature for the post of Constable (Driver) should not be cancelled. He was also required to give reply to the aforesaid show cause notice within 15 days.
3. The applicant submitted a reply to the show cause notice on 30.08.2010. At the outset, he has submitted that he had not concealed any material facts from the respondents. On the contrary, he disclosed all the relevant information in the prescribed forms. He has further submitted that he was falsely implicated in the aforesaid criminal case and after full-fledged trial he was acquitted in the year 2007. He has also stated that he was totally innocent and had no connection whatsoever with the alleged offence. Further, his contention was that he could not have been subjected to any further suffering just because the FIR was registered against him which was beyond his control. He has also contended that none of the prosecution witnesses has supported the prosecution story and the Honble Court found that the complainant and other prosecution witnesses have not identified the accused. Again, the complainant had disclosed that he had named the accused persons on hearsay. He has further submitted that once the Honble Court of competent jurisdiction has recorded its findings, it is no more open to the administrative/quasi judicial authorities to overreach the same. He has, therefore, submitted that the findings of the Screening Committee are illegal and erroneous and they have to be rejected.
4. The applicant has also relied upon the judgment of the Honble Apex Court in R.K. Gupta Vs. Union of India & Ors. (2005 (3) AISLJ 390) wherein it has been held that in a criminal trial for want of evidence, acquittal has to be considered as an honorable acquittal.
5. Again, he has relied upon the judgment of Punjab and Haryana High Court in Bhag Singh Vs. Punjab and Sind Bank (2006 (1) SCT 175) and submitted that where acquittal is for want of evidence to prove the criminal charge, mere mention of benefit of doubt by the criminal court is superfluous and baseless and such an acquittal has to be considered as an honorable acquittal.
6. He has also given the cases of other candidates who have been given appointments after they have been acquitted as the witnesses have turned hostile. He has given the specific cases of Shri Mintu Yadav involved in FIR No. 87-A/2000 under Section 452/323/324/504 IPC, Shri Shamsher Singh involved under Section 353/323 IPC, Shri Sanjiv Kumar involved in FIR 206/97 under Section 302/307 IPC, Shri Arun Kumar involved in FIR No. 214/97 under Section 323/325 IPC and Shri Anil Kumar involved in FIR No. 64/2002 under Section 323/324/325/452/506/34 IPC.
7. He has further submitted that reliance of the respondents on the judgment of the Apex Court in Civil Appeal No. 13231 of 1996 (arising out of SLP (C) No.5340 of 1996) DAD Vs. Sushil Kumar is absolutely misplaced. He has further submitted that Sushil Kumars case (supra) was not applicable in his case as the facts were altogether different and the Supreme Court was not at all dealing with a situation where the candidates stood already acquitted of the criminal cases.
8. However, the respondents vide Annexure A-2 order dated 03.02.2011 rejected his representation stating that it was not convincing. They have reiterated that the applicant voluntarily obstructed the public servants from discharging their public functions and caused hurt on their person which shows his mob mentality and, therefore, he rendered himself unsuitable for appointment in Delhi Police where the highest standards of discipline are maintained.
9. The applicant has challenged the aforesaid impugned show cause notice dated 16.08.2010 and the order of cancellation of his candidature dated 03.02.2011 in this O.A. on various grounds. One of his contentions was that he was subjected to hostile discrimination which is in violation of principles contained in Articles 14 and16 of the Constitution as similarly placed persons have been given appointment by the respondents themselves. He has specifically given the names of S/Shri Hari Ram, Arvind, Shiv Kumar, Jai Kumar and Vikas Chand, Shankar Lal.
10. The learned counsel for the applicant has also relied upon the judgment of the Honble High Court of Madras in the case of Union of India & Ors. Vs. Jayaram Damodhar Timiri (AIR 1960 Madras 325) wherein it was held that there is no conception of the expression of honourable acquittal in Criminal Procedure Code. The relevant part of the said judgment reads as under:
(3)..in the first place, we are unable to understand the legal significance of an expression like honourable acquittal. Certainly, the code of criminal procedure does not support this conception. The onus of establishing the guilt of accused is on the prosecution and if it failed to establish the guilt beyond doubt, the accused is entitled to be acquitted.
11. He has also relied upon the judgment of the Punjab and Haryana High Court in the case of Jagmohan Lal Vs. State of Punjab & Ors. (AIR 1967 Punjab 422). The relevant part of the said judgment reads as under:
.The moment the court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The code of criminal procedure does not contemplate honourable acquittal. The only words known to the codices are discharged or acquitted. The effect of a person being discharged or acquitted is the same in the eyes of law. Since according to the accepted notions of imparting criminal justice, the court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the court the accused is acquitted.
12. He has further relied upon the judgment of the Bombay High Court in the case of Dattatraya Vasudeo Kulkarniv Vs. Director of Agricuture Maharashtra & Ors. (1984(2) SLR 222) to the aforesaid effect.
13. Again, he has relied upon the judgment of the Apex Court in State of Maharasthra Vs. Rama Shanker Raghuvanshi and Anr. (1983 SCC (L&S) 263) wherein it was held that denial of employment on the ground of past political activities offends the fundamental right guaranteed under Articles 14 and 16 of the Constitution. The relevant part of the said order is as under:
is government service such a heaven that only angels should seek entry into it? We do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic right guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set for in the preamble of the Constitution. We think it offends the fundamental right guaranteed by Article 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities considered likely to affect the integrity and efficiency of the individuals service
14. Further, he has relied upon the order of a co-ordinate Bench of this Tribunal in OA 1716/2008 - Ramesh Kumar Dhabbai Vs. Govt. of NCT of Delhi & Anr. decided on 12.01.2010. The facts in the aforesaid case are more or less the same as those in the present case. This Tribunal has held that Section 341 IPC deals with the punishment for wrongful restraint and Section 323 IPC for voluntarily causing hurt. While the plea of the applicant therein was that he was falsely implicated in the case without any basis, after considering the entire facts of the case and case law relied upon by the applicant, the O.A was allowed with the following observations:
.While the plea of the applicant was that this was a false implication without any basis, the respondents had arrived at the conclusion of the whole episode showing a premeditated crime. Even if it were so, it is not borne out any of the facts before us. Again the contention on the part of the applicant regarding discriminatory treatment being meted out to him does not seem to have been considered with due seriousness by the respondents. Except making a bald averment that the facts of the case were different, nothing in this aspect is found either in the impugned order or in the counter affidavit. We cannot help agreeing with the learned counsel for the applicant that this seems to be a rather mechanical way of looking at the whole situation.
As was observed by the coordinate Bench in Anoop Kumars case depriving an otherwise eligible and qualified candidate from appointment, cannot be taken lightly. The facts of the case as presented before us do not show the impugned decision as justified either considering the nature of offence or the manner of the acquittal; besides as already stated the plea of hostile discrimination has not been addressed satisfactorily by the respondents.
7. In view of the foregoing, we find the claims in the OA as justified and allowing it partly, quash the impugned orders and direct the respondents to offer the appointment of a Constable (Executive) Male to the applicant on the basis of 2006 recruitment year. As regards the plea of consequential benefits made in the OA, we would be guided by the guidelines set forth by the Honble Delhi High Court in Deepak Kumars case supra) where it was decided that the appointment in such case should be effective from the date of joining with no claim at all with regard to arrears of pay and allowances or seniority. No costs.
15. Again, in another similar case decided by this Tribunal on 23.07.2008 in O.A 178/2008 Anoop Kumar Vs. Govt. of NCT of Delhi & Ors., the following orders have been passed:
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. From the judgment of acquittal recorded by the learned ASJ, New Delhi dated 24.8.2007 (Annexure A-3), it would appear that the applicant along with one Vikas was tried for offences u/s 308/325/34 IPC. Bittoo Singh, the first informant, on 8.8.2004 while lodging the FIR, stated that on 5.8.2004 he had gone to Central School, Sector 8, R. K. Puram at 1.30 pm to pick up his grandsons Manish Sagar and Piyush Sagar and when he left for his house along with both his grandsons and reached outside the school gate on service road at 1.40 pm, a motorcycle No. DL 49 SK 9393 on which there were two boys and two more boys who were near them started abusing him and also told him that his grandson had beaten up their brother few days ago. They also declared aaj tujhe hum dekhenge. He further told the police that one boy namely Vikas was also present there who was studying along with Piyush Sagar and had beaten him up many days ago. He suspected Vikas to have called those four boys outside the school who caught hold of him and grappled with him. In the meantime, Bittoo Singhs nephew Jaipal Singh also reached there who had come to pick up his nephew from school and when he saw that those boys were quarreling with him, he tried to rescue him and was also beaten by the boys. Two of those boys, namely, Ajay and Vikas were armed with dandas and one of the other two boys grappled with him and the fourth boy grappled with Jaipal. The boys, namely, Anoop (the applicant herein) and Vikas attacked them with dandas and both of them sustained injuries. He further informed that he could identify both the boys who grappled with both of them. The material witnesses, it appears from the judgment, turned hostile. The learned trial judge, while acquitting both the accused observed as follows:
In view of the testimony of PW1 to PW5 there is no incriminating evidence on record against both the accused persons that they had picked up quarrel with the injured and caused injuries on their person. Hence their statement u/s 313 CrPC is dispensed with. They are acquitted of the charges. The bail bonds stand discharged. We are surprised, rather distressed that even though it has been ordained authoritatively by judicial pronouncement that the nature of offence and the manner of acquittal has to be examined properly, the respondents appear to have ignored both. Denial of appointment to a citizen for all times to come is indeed a serious matter. The same cannot be dealt with so lightly so as not even to consider the attending circumstances leading to commission of crime, nature of offence that may appear from the contents of the first information report, statements of witnesses and the medical evidence. While considering the manner of acquittal, it may not be enough to simply observe that the witnesses had turned hostile, and by simply so observing, to deny appointment to a citizen. The judgment of the criminal court has to be taken into consideration with all the aspects leading to acquittal. The manner of acquittal, and in particular, as to whether the same is a clean acquittal or acquittal on benefit of doubt, has also to be taken into consideration. To elaborate, insofar as, the nature of offence is concerned, we may mention that some times the facts disclosed in the FIR supported with other material, even if taken to be gospel truth, may not constitute an offence under which an FIR is registered, challan presented and the accused tried. In a case of acquittal, where witnesses have not deposed in tune with the statements made by them before the police, the finding of acquittal is recorded without going into any other aspect of the case. If thus in a given case, the offence with which an accused is charged and tried, may not at all be gone into, his plea that the offence with which he was charged was not made out at all even from reading of the FIR and attending circumstances, has to be gone into at some stage. Making a mention of the offence with which a person might have been charged and put to trial is no way to determine the nature of offence. We are of the considered view that nature of offence is not exclusively determinable only on the label or sections on which an FIR may be registered. With a view to find gravity of offence for which a person may have faced criminal trial, the narration of facts in the FIR, supporting material and the medical evidence is required to be taken into consideration. Insofar as, the manner of acquittal is concerned, once again, the judgment of the criminal court has to be carefully gone into. In a given case, the witnesses may not have deposed in tune with their statements made before the police, but they may not have been declared hostile and cross-examined by public prosecutor. Such a situation arises when the prosecution witnesses may support the prosecution version to some extent and the public prosecutor may think that to the extent they have supported prosecution version, the finding of conviction can yet be recorded. He may thus not declare the witnesses to be hostile nor thus cross-examine them. In ultimate analysis, as to whether the accused has been acquitted by giving benefit of doubt or it is a case of clean acquittal, has also to be seen. In the present case, the narration of facts given in the FIR would reveal that four persons, including the applicant gave beatings to Bittoo Singh and Jaipal. Only two, out of four, were put to trial. In the FIR itself, Bittoo Singh appears to have made contradictory statements. In the first instance, he stated that two boys who were armed with dandas were Ajay and Vikas, whereas others had only grappled. He, however, later named the applicant as also one of those who had caused injuries to him. With a view to satisfy ourselves with regard to gravity of offence, we required the counsel representing the parties to produce before us the medico legal report of Bittoo Singh and Jaipal. The same has been made available to us. It appears that Bittoo Singh, the first informant, had received five injuries on his person. Two of the five injuries are swelling of lower wrist and right eye. Even though, two other injuries are of vertex of head and occipital front region, but all the five injuries are simple in nature. Jaipal, the other injured received four injuries, but for injury number (iii) which is one incisor teeth on lower maxilla broken, other injuries are simple in nature. It is only injury number (iii) on the person of Jaipal which can be said to have brought the offence under section 325 IPC. The provisions contained in section 308 IPC may not have been attracted in the facts and circumstances of the present case. We are conscious that we are not here to determine the controversy with regard to nature of offence, but surely, all these aspects were required to be taken into consideration by the concerned authorities in finding out the nature of offence. The situation where the criminal court may record a finding of conviction is entirely different. The concerned authorities in that event would have no choice but for to follow the judgment of the criminal court, but in a case where the relevant aspects of the case have not even been touched upon, it becomes duty of the high ranking police officers to take them into consideration while dealing with a serious matter like denial of appointment to a citizen. We may reiterate that the Honble Delhi High Court in Deepak Kumar & Others (supra) held that the nature of offence and manner of acquittal has to be gone into properly. Further, the concerned authorities have to find out if the offence alleged against a person involves moral turpitude and that the same is heinous, grave and committed with such evil propensities that he may not deserve to be appointed. Simply observing the provisions of IPC with which a person may be charged and tried, does not appear to be sufficient compliance of the directions issued by the Honble High Court. The observations made above would be more pertinent if the offence with which a person is charged and tried under the sections that might have been mentioned in the FIR may not appear to be so serious. To illustrate, whereas, it may be permissible to hold the nature of offence to be serious when a person is tried under sections 302, 376 and such other offences, the same may not be true when a person is not charged with such serious offences as mentioned above.
8. On the findings, as mentioned above, we would have normally remitted this case to the concerned authorities to have a fresh look at the matter in view of our observations made above, but what we find from the records is that in similar circumstances, the respondents employed one Brahm Prakash who too was involved in a case u/s 308 IPC. The applicant made such a mention in his reply to the show cause. He has reiterated the same in para 5.7 of the OA, which reads as follows:
5.7 Because the respondent failed to appreciate that in the present recruitment Sh. Brahm Prakash having Roll No.4000076 was also involved in a criminal case under S 308 IPC and acquitted of the charge by the Court as the matter was compromised by both the parties and witnesses did not support the prosecution case, was appointed as a constable, but the applicant was discriminated and arbitrarily his candidature was cancelled. In the corresponding paragraph of the counter reply, the fact stated in the pleadings of the OA, as mentioned above, has not been denied. All that has been mentioned is that each and every case is decided after considering all facts of the case like ground of involvement, gravity of offence and acquittal etc. It may be mentioned at this stage that this Tribunal while deciding OA Nos.2429/2006 and connected OAs (supra) was dealing with different cases, some of which were such which came to this Tribunal in a second round of litigation. The OAs initially filed by them were allowed by this Tribunal by holding that an acquittal is an acquittal and the mere fact that a person has been acquitted by giving benefit of doubt when the witnesses turn hostile, would not make any difference. This view of the tribunal did not find favour with the Division Bench of the Honble Delhi High Court, and all the matters were remitted to the Commissioner of Police to find out the nature of offences and the manner of acquittal, and accordingly pass appropriate orders in accordance with law. While defending the order of the Tribunal, the applicants had urged before the Honble High Court that there was clear and apparent discrimination even in the decision making process of the respondents as in some cases they had cancelled the candidature of few persons on the ground that they were not suitable for the post of constable, whereas in cases of some other similarly situated persons, against whom also there were criminal cases, the respondents had taken a decision to allow them to join and work as constable in the same police department. In support of the said contention, cases of Rajesh Kumar and Braham Pal were referred. Braham Pal, it was urged, was involved in a criminal case u/s 308 IPC and was acquitted of the charge by the court pursuant to compromise arrived at between the parties and as the witnesses did not support the prosecution case, and he was allowed to work as constable. On the aforesaid contention raised by the applicants, while remitting the case to the Commissioner of Police, the Honble High Court also observed that in some other cases the Commissioner of Police had allowed the applicants to join the post considering the gravity of the offence wherein they were involved. One of the aspects that had thus to be considered by the Commissioner of Police was to find out whether a person similarly situate to an applicant was appointed or not. This aspect of the case we have also referred to in our judgment in Sanjeev Kumar & Others (supra). There is absolutely no dispute that a person similarly situated has since been appointed. The applicant may not be right in saying that Braham Prakash was a candidate along with him, as it appears he competed in selection process held earlier, but nonetheless, there were no distinguishing features between the nature of offence and the manner of acquittal in his case and that of the applicant. This plea was specifically raised by the applicant and surely, as the respondents had no answer to the same, they just kept quiet over it. The learned counsel representing the applicant has relied upon a decision of this Tribunal in OA No.1495/2007 decided on 7.1.2008 in the matter of Virender Singh v Union of India & Others. The applicant therein was involved in a criminal case for offence u/s 308/34 IPC, and yet this Tribunal had directed the respondents to consider his candidature without taking into consideration his involvement in the criminal case, but the same appears to be distinguishable on facts. Acquittal in the said case was a clean acquittal. It was not a case of witnesses turning hostile and further, when the offence was said to have been committed, the applicant therein was a minor and had made application for appointment as constable after eight years of the incident. It is true that we have held in the case aforesaid that offence u/s 308 IPC is an attempt to commit culpable homicide not amounting to murder, maximum sentence prescribed for which is seven years, and it is not a heinous crime. The applicant, it appears, has been meted out with discriminatory treatment. The respondents cannot be permitted to have different yardsticks for different people. They have to have a uniform view when the facts presented before them are absolutely identical.
9. In view of the discussion made above, this Application is allowed. Direction is issued to the respondents to offer appointment to the applicant for the post of constable, if he may otherwise be entitled to. In other words, the appointment to the applicant would not be denied on the ground of his involvement in a criminal case. There shall be no order as to costs.
16. Similarly, the Honble High Court of Delhi in Govt. of NCT of Delhi & Anr. Vs. Jai Prakash (WP (C) 3566/2010), decided on 24.05.2010, held that the authorities cannot refuse employment to a candidate who has been selected merely because he was involved in a criminal case in which he was acquitted before his appointment. The relevant part of the said judgment reads as under:
8. We may observe here that merely because a person is prosecuted in respect of any criminal offence and is acquitted of the offences so alleged against him, he cannot be disqualified for public appointment. Admittedly, there are no such rules and regulations framed by Delhi Police or by Govt. of India whereby merely criminal proceedings had been initiated against a person that he would be debarred from joining public service.
17. The respondents have filed their reply reiterating their position in the impugned orders. They have also submitted that the applicants candidature has been cancelled after observing the principles of natural justice i.e. after giving him an opportunity of personal hearing.
18. The learned counsel for the respondents, Shri Amit Anand has also relied upon the judgment of the Apex Court in Daya Shankar Yadav Vs. Union of India & Ors. (2010 (12) SCALE 477) wherein it has been observed as under:
10. Thus an employee on probation can be discharged from service or a prospective employee may be refused employment:
(i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college etc.; and
(ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for an criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post.
19. We have heard the learned counsel for the parties. It is not necessary for us to re-consider the issue raised in the O.A once again as the same has already been decided by this Tribunal in a catena of orders rightly relied upon by the learned counsel for the applicant. The Honble High Court has also upheld the same view in its judgment in Jai Prakashs case (supra). In the facts and circumstances of the case, the judgment of the Apex Court in Daya Shankars case (supra) has no application.
20. In view of the above position, this O.A. is allowed. The impugned show cause notice dated 16.08.2010 and the letter dated 03.02.2011 are quashed and set aside. The respondents are directed to offer the appointment to the applicant for the post of Constable (Driver) if he is otherwise found suitable. If he is found fit, he shall be appointed after completing the normal codal formalities immediately with all consequential benefits as enjoyed by his batchmates except back wages.
21. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Dr. Ramesh Chandra Panda) ( G. George Paracken )
Member (A) Member (J)
SRD