Central Administrative Tribunal - Delhi
Sunny Chattha vs The Commissioner Of Police on 4 June, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3242/2009 New Delhi, this the 4th day of June, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sunny Chattha, S/o Shri Virendra Kumar Singh, R/o 74/9, In front of Ganga Udyog, Devipura-I, Bulandshaher (UP) Applicant (By Advocate: Shri Ajesh Luthra) Versus The Commissioner of Police, Police Headquarter, I.P. Estate, New Delhi Respondent (By Advocate: Shri R.V. Sinha for Shri R.N. Singh) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a provisionally selected candidate for the post of Constable (Executive) Male in Delhi Police during the recruitment held in the year 2008, is challenging cancellation of his candidature on the ground of unsuitability in the background of a criminal case in which he has subsequently been acquitted by the Criminal Court. After consideration by the Committee constituted for this purpose by the Commissioner of Police, the Respondents have held the view that despite the acquittal by the Court, the involvement of the applicant in the crime shows criminal propensity in indulging in crime without fear of law having least regard for the law of the land. Considering him unsuitable for the post of Constable in Delhi Police, his candidature for this post has also been cancelled with immediate effect by the impugned order dated 4.8.2009 (Annexure-A).
The OA seeks by way of relief, a direction to review the impugned order alongwith directions declaring him as a successful candidate for the post of Constable (Executive) Male during the recruitment year 2008 and for issuance of appointment letter with immediate effect. The prayer for interim relief, which inter alia, had included a direction for keeping a post reserved till final outcome of the OA, has not been granted by the Tribunal.
2. The main issue of law involved in this case is the legal sustainability of the order of cancellation of the candidature. On behalf of the applicant, the learned counsel Shri Ajesh Luthra and for the respondents, the learned counsel Shri R.V. Sinha would make the submissions. We have heard both the learned counsels and also carefully perused the material on record.
3.1 The brief facts are that a criminal case vide the FIR No.133/2006 under Section 395/397 IPC, PS Kotwali Dehat, Bulandshahr (UP) had been registered against the applicant along with other co-accused. The same had pertained to an incident on 4.9.2006 in which as per the complainant, one Phool Singh, 7 named accused (including the applicant before us) and 10-12 other unnamed students of I.P. College had come to his house with weapons and sticks at 3 p.m. that day. Further, the allegation was of assaulting and beating the complainant and his daughter-in-law, and even pushing the 15 months old grand son with a threat to kill him. Damaging the house-hold articles and taking away a sum of Rs.15,000/- from the safe had also been alleged.
In this case, the applicant along with the other co-accused had subsequently been acquitted by the trial court vide its Order dated 19.8/2008 for failure of the prosecution to prove the case.
3.2 The applicant had not disclosed the fact of the registration of the FIR or a criminal case being in progress at the time of applying for the post of Constable, in the application form filled up on 19.5.2008, despite there being a specific column for this purpose. However, subsequently vide a representation dated 18.12.2008 (Annexure-C), this fact had been brought to the notice of the Respondents. Further, in the Attestation Form filed on 15.1.2009, the fact of the criminal case as well as the acquittal by the trial court had been revealed. This was before the respondents got intimation in this regard through their character and antecedents report.
3.3 After issue of a show cause notice dated 20.7.2009 (Annexure-K) and consideration of written reply dated 29.7.2009 (Annexure-L) as well as the earlier representation, the Respondents had taken the decision of cancellation of his candidature, which has been challenged in the present OA.
4.1 The learned counsel for the applicant, Shri Ajesh Luthra would submit that the FIR in question was a false one. It would be submitted by the learned counsel that this was a case of a retaliation FIR being lodged by the complainant as a counter blast to the FIR bearing No.132/06 registered by some of the accused herein against the complainants themselves. Further, the fact of the relevant sections of law i.e. Sections 395 and 397 of IPC being mentioned in the FIR, having been changed at the time of the charge sheet would also be driven home by the learned counsel. Producing a copy of the judgment of the trial court, the learned counsel would submit that this was an extremely weak case in which the prosecution had not even been able to examine all of its own witnesses. As per the learned counsel, the trial court had not found any case against the accused and thus had acquitted them.
4.2 The applicant in his representation dated 19.12.2008 had sought to explain the circumstances under which the FIR had got registered and how under a bonafide belief of a compromise and settlement, the applicant had not furnished the relevant information at the time of filling up the application form. Further, in his reply to the show cause notice, he had submitted as an extenuating factor the suo-motu disclosure by his own representation as well as through his Attestation Form regarding this case and the acquittal.
4.3 To reinforce his argument, the learned counsel would cite the decision of the Tribunal in OA No.2436/2009 (Pramod Kumar vs. GNCTD & Ors) decided on 08.03.2009 by this very Bench. The learned counsel would also advert to the decision of the High Court of Delhi in Writ Petition (Civil) No.3566 of 2010 (Govt. of NCT of Delhi & Anr vs Jai Prakash) decided on 24.5.2010.
5. The OA has been contested by the Respondents. The learned State counsel, Shri R.V. Sinha would state the present case to be one of concealment as well as unsuitability. The fact of suppression of vital information regarding the criminal case in the application form by the applicant would be emphasized by the learned counsel. It would also be submitted that as a well established proposition of law, a mere selectee has no indefeasible right to appointment, though such a denial should not be arbitrary. In support, the learned counsel would cite the decision of the Apex Court in Shankarsan Dash v. Union of India {AIR 1991 SC 1612}. The learned counsel would further submit that the Screening Committee in this case had not found the applicant, who had been involved in a criminal case and the acquittal had been only by giving the benefit of doubt; hence such a decision could not be considered as arbitrary. The fact of the impugned order containing the reasons for the same would also be contended in support of his stand.
5.1. Dealing with the issue of concealment, as stated above, the learned counsel for the respondents have attached importance to the fact of suppression of this information relating to the criminal case by the applicant in the initial application form. We also note that the suo-motu disclosure in this case on which the applicant has set store was first made on 18.12.2008 i.e. subsequent to the order of acquittal dated 19.8.2008. As per the applicant, same had been done since he had found his name in the list of qualifying candidates.
5.3 In Civil Appeal No.13232 of 1996 (DAD v. Sushil Kumar) dealing with a case of denial of appointment in Delhi Police on ground of non-disclosure of involvement in a criminal case, the Apex Court had held that verification of character and antecedents was an important criteria to test the suitability or otherwise of the selected candidate to the post under the State. Again in a decision by a Coordinate Bench of the Tribunal in the case of Shri Anil vs Commissioner of Police, Police Headquarters, The Deputy Commissioner of Police (Hd. Quarters), Police Headquarters and The S.O. to CO Police Headquarters decided on 09.04.2010 discussing the law on the subject, the following had been held:-
22. What is discerned from the reading of the above ratio is that one, who deliberately withheld on suppression certain information, respondents are within their right to either cancel the candidature or terminate the services of the applicant, which would not be interfereable in judicial review by the Court. 5.4 In the present case, the suo-motu disclosure by the applicant to the respondents by his representation as well as in the Attestation Form, before the antecedents verification report through the departmental channel cannot be lost sight of. The same fact has been admitted by the respondents as well in their impugned order. Also while dealing with similar cases in the past, we have had an occasion to note about a Circular having been issued by the respondents in cases where though there has been non-disclosure of a criminal case at the stage of the application form, subsequently on disclosing the same in the Attestation Form, the cases could be considered for appointment.
In view of the foregoing, we hold the issue of concealment not being the material factor in this case regarding cancellation of applicants candidature.
6. The acquittal order dated 19.08.2008 had been passed in this case by the Court of Upper Civil Judge: (Jr. Division)/Judicial Magistrate: Court No.2, Bulandshahar. A perusal of the relevant judgment corroborates the contention by the learned counsel for the applicant regarding the charge sheet in this case having been issued under sections 147, 323 and 504 IPC and not under Sections 395 and 397, as mentioned in the FIR. It is also found that whereas the FIR had mentioned 7 named accused and 10-12 unnamed accused, the charge sheet was confined only against 7 named accused, including the applicant before us. Of this also, as two co-accused had absented, their cases had been separated by the order of the trial court. So the Court had considered the case against 5 persons, only including the applicant.
6.1 Non-production of all the prosecution witnesses has been contended by the learned counsel for the applicant as a ground to prove their case being extremely weak. In this case only two prosecution witnesses i.e. the complaint and his daughter-in-law had been examined. Further, on the request of the prosecution itself, two witnesses had been discharged from giving their evidence with the approval of the Court. Even these two critical witnesses had denied making any statement before the I.O. (Daroga) or identify the accused before the court. On a detailed consideration of all the facts of the case, the Court had arrived at the following findings:-
Hence, the prosecution examined two witnesses in respect of the matter and these witnesses are the material witnesses of the occurrence and can put proper light on the occurrence, but both the witnesses never stated in anything in their examination in chief as well as cross examination to prove that the accused persons have caused the such offence or involved in the offence. (rendered in English Translation) Accordingly, all the five accused, including the applicant before us, were acquitted of the offences under Section 147, 323, 504 of the Indian Penal Code; their bail bonds cancelled and sureties discharged.
7.1 The general proposition of law regarding the selectee having indefeasible right to point except against arbitrariness or malafide has been reiterated by the superior courts in a catena of judgments. At the same time as was held by the Apex Court in Prakash Ratan Sinha vs. State of Bihar & Ors { (2010) 1 SCC (L&S) 443}, any administrative action by an instrumentality of the State within the realm of public law is subject to judicial review for being tested on the anvil of principles of natural justice. Again in BIECCO LAWRIE Ltd vs State of West Bengal & Anr { (2009) 2 SCC (L&S) 729}, the Apex Court had observed that the principles of natural justice get attracted wherever a person suffers a civil consequences or a prejudice is caused to him by an administrative action. Elaborating it further, the Honble Court had stated that the right likely to be affected would also include a legitimate expectation.
7.2 Even specifically on the subject of cancellation of candidature in direct recruitment in various posts in Delhi Police on grounds of unsuitability because of involvement in a previous criminal case despite the acquittal, the matter has been considered on several occasions in judicial fora. We find it apt to extract the summing up of the major milestones on this subject, in an earlier decision by the same Bench in OA No.2853/2009 (Sudeep Kumar vs. Commissioner of Police & Anr) decided on 16.4.2010:
7. The law on the subject has come in for consideration in a catena of judgments by the Apex Court, the High Courts as well as in a number of cases before the Central Administrative Tribunal. We are here summoning up the major milestones in development of law on the subject:
(a) In Civil Appeal No. 13231/1996 (DAD Vs. Sushil Kumar), dealing with a case of denial of appointment in Delhi Police on grounds of non-disclosure of the fact of involvement in a criminal case, the Apex Court had held that verification of character and antecedents is an important criteria to test whether the selected candidate is suitable to the post under the state. Drawing a distinguishing line, the view had been taken that the fact of the applicant having been discharged or acquitted of the criminal offence had nothing to do with the question of his appointment instead what would be relevant was the conduct or character of a candidate to be appointed to service and not the actual result thereof.
(b) The Delhi High Court in WP (C) No. 6042-43 of 2005 and other connected writ petitions in the matter of Govt. of NCT of Delhi & Ors. Vs. Deepak Kumar & Ors. decided on 28.11.2005 had not agreed with the view taken by the Tribunal in several OAs allowing the prayers by the applicants against cancellation of their candidature simply on the ground of their acquittal in the previous criminal cases. Instead it was held that the mere fact of acquittal would not be enough for securing appointment in Delhi Police. It had also been decided that it was open to the department to deny appointment to a person, who might have been acquitted in a criminal case; but before such action is taken, the nature of offence in which he might have been involved and the manner of acquittal had to be properly examined.
(c) We find the decision of the Tribunal in the OA 178/08 by a coordinate Bench (PB of CAT) headed by the Honble Chairman, vide its order dated 23.7.2008, particularly significant. In this order, it was impressed that the denial of appointment to a citizen for all times to come is indeed a serious matter and cannot be taken lightly. This was more so when there was no finding of a conviction by the criminal court and it became incumbent upon the high ranking Police officials to consider all the relevant aspects while dealing with a serious matter like denial of appointment to a citizen. In this case reiterating the decision of the Honble Delhi High Court in Deepak Kumar & Ors. (supra), the Tribunal had delineated that merely the nature of offence could not be determined on the label or the sections of the offence in the FIR. Further, while considering the manner of acquittal merely observing that the witnesses had turned hostile was not a sufficient ground to deny appointment to a citizen. On the other hand, all the attendant circumstances leading to commission of crime, nature of offence that may appear from the contents of the FIR, statements of witnesses, medical evidence and all attendant circumstances needed consideration. The ground of discriminatory treatment among the similarly situated persons had also been given serious weightage.
(d) In OA No. 2255/2009 (Praveen Yadav Vs. GNCT of Delhi & Ors.) decided by this very Bench on 12.11.2009, the aspect emphasized was that in the realm of administrative discretion, the authorities even if acting as quasi judicial authority, would not be allowed to partake the character of judicial authority by recording a finding over and above the finding recorded by the Trial Court.
(e) In OA No. 2939/2009 (Kulbir Singh Vs. Govt. NCT of Delhi & Ors.) in which one of us [Member (A)] was a Member, a perfunctory and casual approach while coming to the finding of a criminal propensity by the screening committee was held to be objectionable.
(f) In the recent case OA No. 2436/2009 (Pramod Kumar Vs. GNCT of Delhi & Ors.) taking a holistic view of the entire issue, it was held that in the criminal jurisprudence, there is no such concept like honourable or disgraceful acquittal. Further, it was emphasized that in Delhi Police, the authorities have been mandated to make the appointment in terms of Rule 25 of the 1980 Rules (Promotion & Appointment) on the subject of verification of character and antecedents which required a good moral character with nothing adverse reflected on it. In this very case, it was held that in matters of appointment, administrative authorities are not acting as quasi judicial authorities. Thus, though the Delhi Police is within its domain to appoint or not to appoint a selectee who does not hold indefeasible right to be appointed; however, the same has to be as per the statutory provisions and without overreaching its jurisdiction. In this case, it was held that mere involvement in a criminal case or registration of FIR is not a proof of such involvement unless the Trial Court-which is the competent forum-records a finding as to the guilt of the accused. It was also held that benefit of doubt and hostility of witnesses would not be the material aspects relevant for administrative authorities while adjudging suitability in such cases nor can they overreach the findings of the judicial authorities as recorded by a Trial Judge.
8. In light of the above, we would like to reproduce the following extracts from our earlier judgment in Kulbir Singhs case:
On the aforesaid basis, we may conclude the law on the subject by stating that whereas the respondents do indeed have a right to verify the character and antecedents of the applicant before issuing the final appointment order and also that mere acquittal in the criminal case would not entail a claim for suo moto appointment, in this case under the Delhi Police; at the same time, the matter needs a careful consideration by the respondents before denying a person the right for appointment for all times to come. Such a view cannot be taken lightly or perfunctory, and would only be justified after a very thorough consideration of all the attendant circumstances of the case and the order of acquittal. Besides, there is also the need for extreme caution in this respect so that the quasi judicial authorities do not over step their legitimate domain and give a finding over and above the findings recorded by a Trial Court. While dealing with such cases, discrimination also has been held to be an important ground. 7.3 The learned counsel for the applicant has placed reliance on the recent decision of the Delhi High Court in Govt. of NCT of Delhi & Anr vs. Jai Prakash on this very subject. This was a case in which the appeal by the department against the Tribunals order dated 15.1.2010 allowing the OA had been dismissed by the High Court and the order of the Tribunal upheld. The OA was challenging the cancellation of the candidature of the applicant for the post of S.I. in Delhi Police on grounds of unsuitability in the background of a criminal case in which subsequently there had been an acquittal by the trial court. The Tribunal considering the factual matrix of the case had found the decision of the Respondents as arbitrary and without due application of mind. The conclusive observations as well as the final directions respectively in paras 7 and 8 of the order were extracted by the Honble High Court in its judgment dated 24.5.2010. As these are relevant to the present case too, they are being reproduced as hereunder:
7. In appropriate cases, the administration, of course, has the discretion to come to bonafide finding, whether or not unsuitability for a posting especially in an organization which is to enforce law and order. An acquittal in a case, cannot, therefore, always be considered as a situation, binding hands of the prospective employer. However, we find that in the cases cited before us every aspect of the situation had been discussed in detail by the criminal court. There was no evidence sufficient enough to show that the applicant had misbehaved or committed crime or offence as suggested in the FIR. But nevertheless it had been stressed that there was nothing to connect the applicant with the alleged offence. Notwithstanding to contend that applicant required to be penalized by denying him appointment appears to be arbitrary. Of course, we do not think that the Committee especially constituted for the purpose has the power to decide individual which are presented before it, but in the present instance, the issue has been approached mechanically and without due application of mind. The applicant had become undesirable for appointment not for good reason.
8. Therefore, we quash the impugned orders and direct that the applicant is to be conferred appointment. We remit the matter to the respondents so that appropriate orders are to be passed giving appointment to the applicant to the post of SI (Fix.). This should be done within a period of two months from the date of receipt of a copy of this order. Applicant should be given seniority notionally from the date of his acquittal, namely 5.6.2009 but he will not be entitled to any arrears of pay. 7.4 While considering the matter, the Honble High Court had been seized with the aspect of any disqualification for public appointment being justified in terms of the relevant rules and regulations. Para 8 of this judgment had made the following observations:-
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. In this case the judgments delivered by the Constitution Bench in the case of G. Narayanaswami vs. Pannerselvam {1972) 3 SCC 717 and Shrikant vs.Vasant Ram & Ors. (2006 (2) SCC 682) with regard to the disqualifications of a Member of the Legislative Council/Assembly in the light of the Article 121 of the Constitution of India and specific provisions in the relevant Act had been cited. Besides, the judgment in the case of Secy. Department of Home Secy. A.P. and Ors vs. B. Chinnam Naidu (2005) 2 SCC 746 had also been referred to. The Honble High Court had further considered the legal position as summarized by the Tribunal in the case of Shri Anil vs. Commissioner of Police, Police Headquarters, The Deputy Commissioner of Police (Hd. Quarters), Police Headquarters and The S.O. to CO Police Headquarters decided on 09.04.2010, inter alia, had mentioned to the provisions of Section 25 of the Delhi Police (Appointment & Recruitment) Rules, 1980 had been made and the condition precedent for such appointment being the disclosure in the Attestation Form and the person bearing a good morale character and nothing pending against him had been done . Holding the trial court as the only competent forum to record a finding as to the guilt of an accused in a criminal offence, the Tribunal had taken the following view:-
25. xxxxxxx. What is allowed to the administrative authorities is to adjudge the suitability of a person but not in the manner that whatever recorded on judicial side by the court of criminal jurisdiction should be overreached and overridden by taking a definite view or reading between the lines in the judgment to arrive at a finding of guilt. xxxxx"
In its conclusive findings with regard to the case, the Honble High Court had found that the findings of the trial court had been based on the fundamental principles of criminal jurisprudence and the presumption of innocence in favour of the accused had got reinforced by the acquittal by the trial court. The final direction in the order was upholding the decision of the Tribunal in allowing the OA as faultless.
8. In the aforesaid background of facts as well as law, we find that in the present case the judgment of the trial court leaves nothing to chance and after having considered all the relevant aspects there has been an unambiguous decision of acquittal in favour of the accused. The averments on behalf of the applicant regarding the FIR in question being a subsequent retaliatory one as also the variance in the provisions of law as per the registered FIR and as per the charge sheet and the trial, are significant too. Like the OA in Jai Prakashs case, we find the present case also suffering from an apparent arbitrariness and non application of mind on the part of the respondents before taking the decision of cancellation of applicants candidature. As was observed by a Coordinate Bench of the Tribunal chaired by Honble Chairman in OA No.178/2008 (Anoop Kumar vs. Govt. of NCT of Delhi & Anr) decided on 23.7.2008, denial of appointment to a citizen for all time to come is indeed a serious matter and cannot be taken lightly.
In the given context, we are not inclined to remit the matter to the Respondents for reconsideration. Hence, the OA is allowed; the impugned order quashed hereby and the Respondents directed to pass appropriate orders giving appointment to the applicant to the post of Constable (Executive) Male for recruitment in the year 2008. This should be done within a period of two months from the date of receipt of a copy of this order. We would also like to clarify that the applicant should be given seniority notionally from the date of appointment of his junior though would not be entitled to any arrears of pay. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
Member (A) Member (J)
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