Central Administrative Tribunal - Delhi
Nawab Khan vs Govt. Of Nct Of Delhi on 15 December, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2562/2011 New Delhi this the 15th day of December, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Nawab Khan, S/o Shri Shammi Khan, R/o Village & Post Office Pinan, Tehsil Rajgarh, District Alwar-301413 (Rajasthan). -Applicant (By Advocate Shri Shyam Babu with Shri Shekhar Kumar) Versus 1. Govt. of NCT of Delhi, Through its Chief Secretary, Players Building, I.P. Estate, New Delhi. 2. The Commissioner of Police, Delhi Police, Police Head Quarters, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police (Recruitment) New Police Lines, Kingsway Camp, Delhi. -Respondents (By Advocate Ms. Renu George) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
a) call for the records of the case and quash/set aside the impugned order dated 11.6.2011 (Annexure-A) passed by Respondent No.3.
b) declare that the Applicant is entitled to be appointed as Constable (Executive) (Male) in Delhi Police on the basis of recruitment held in year 2009 granting him all benefits including pay and allowances, seniority etc. with effect from 2009.
c) Pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case.
d) award cost.
2. Briefly stated, facts of the case are that the applicant was provisionally selected for the post of Constable (Executive) Male in Delhi Police during the recruitment held in the year 2009 (Phase-II), subject to verification of character and antecedents, medical fitness and final checking of the documents etc. He was involved in a criminal case FIR No.134/2008 under Sections 323/341/324/354/326/ 307/34 IPC & 3 (i) (xi)3(2)(v) SC/ST Act, PS Rajgarh, Distt. Alwar (Rajasthan) in which he was acquitted by the Court vide order dated 14.11.2008. However, the applicant has disclosed about registration of the above criminal case in the relevant column of attestation form filled up by him. Accordingly, the case of the applicant was examined by the Screening Committee of PHQ constituted by the Commissioner of Police, Delhi in the light of the attending circumstances which led to the commission of above offence, nature of offence, nature of injuries, type of weapon used, grounds of acquittal, court judgments, the role of the candidate as well as judgments of the Apex Court in Delhi Administration through its Chief Secretary & others v. Sushil Kumar [1997 SCC [L&S] 492] and Daya Shankar Yadav v. Union of India & others, [Civil Appeal No.13231 of 1996]. Applicant was not found suitable for police service by the Screening Committee and pursuant to such recommendation made by the Screening Committee a show cause notice was issued to the applicant on 14.03.2011 as to why his candidature for the post of Constable (Executive) Male in Delhi Police should not be cancelled for the reasons mentioned therein. The Appointing Authority after taking into consideration the reply submitted by the applicant to the show cause notice and on the basis of the recommendation made by the Screening Committee vide impugned order dated 11.06.2011 (Annexure A) cancelled the candidature of the applicant for the post of Constable (Executive) Male with immediate effect. It is this order, which is under challenge.
3. Notice of this Application was given to the respondents. The facts as stated above have not been disputed by the respondents. In the reply respondents have stated that the case of the applicant was examined by the Screening Committee of PHQ constituted by the Commissioner of Police, Delhi in the light of the attending circumstances which led to the commission of above offence, nature of offence, nature of injuries, type of weapon used, grounds of acquittal, court judgments, the role of the candidate as well as judgments of the Apex Court in Sushil Kumar (supra) and Daya Shankar Yadav (supra) and observed that the applicant along with his associates was involved in a case of molestation, assaulting and causing injuries. His involvement in the above mentioned criminal case shows his depraved character and propensity to indulge in crime without fear of law and such type of person is not suitable for appointment in Delhi Police, as such did not recommend his case for appointment to the post of Constable (Executive) Male in Delhi Police. Thus, according to the respondents the action taken by them is legal and justified.
4. Applicant has filed the rejoinder, thereby reiterating the submissions made in the OA. Learned counsel of applicant has also filed written arguments, thereby stating that the applicant has disclosed about registration of the above criminal case in the relevant column, as such judgments of the Apex Court in Sushil Kumar (supra) and Daya Shankar Yadav (supra) are not at all relevant and reliance placed on them is totally misconceived. It is stated that the case of Daya Shankar (supra) is a case of concealment of material facts in the application or attestation form. Learned counsel of applicant has placed reliance upon a subsequent decision of the Apex Court in the case of Commissioner of Police v. Sandeep Kumar [(2011) 4 SCC 644], which was a case of suppression or of giving a false information in the attestation form and where the Apex Court while affirming the judgment of the Delhi High Court observed that young people often commit indiscretions and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
5. We have heard the learned counsel of the parties and perused the written submissions filed by the learned counsel of applicant. We are of the view that the applicant cannot draw any assistance from the judgment rendered by the Apex Court in the case of Sandeep Kumar (supra). It is not a case of such nature where the applicant was involved in minor offences. In the instant case applicant is involved in a grave and serious offence, including Section 326 and 307 IPC. However, in this case the matter has not been decided by the trial court on merits and the matter was compromised. The Screening Committee after looking into the gravity of offence and nature of involvement of the applicant has observed that the applicant was involved in a case of molestation, assaulting and causing injuries and as such conduct of the applicant shows his depraved character and propensity to indulge in crime without fear of law. Based on these recommendations the competent authority has cancelled the candidature of the applicant by issuing a show cause notice on considering the reply of the applicant. Thus, we see no infirmity in the action of the respondents. Reliance placed by the applicant on the decision of the Apex Court in the case of Sandeep Kumar (supra) is of no consequence, as it is not a case of such nature where the applicant was involved in petty offences.
6. At this stage we wish to refer to the decision of the Delhi High Court in W.P. (C) No.5510/2010 in the matter of GNCT of Delhi and Anr. V. Dinesh Kumar & Anr., decided on 11.11.2010 and connected W.P. (C) No.5527/2010 in GNCT of Delhi v. Subhash Chand. The High Court of Delhi in para-18 of the judgment placed reliance upon OM No.6857-GSI-72-2755 dated 02.02.1973 whereby the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude, disentitling the convict to public employment. As per the said OM the following penal offences were held grave, serious and involving moral turpitude, disentitling the convict to public employment:
Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182, 193 to 201, 205, 209, 293, 302, 304, 307, 354, 359,362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377, 379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409, 417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to 476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code. Thereafter the High Court held that the offences punishable under Sections 323, 540 and 506 IPC are non-cognizable offences and are bailable. It was further held in para-40 of the judgment that no moral turpitude, as generically understood, is involved. The acts do not shock the moral conscience of the society and with reference to the motive do not evidence a person with depraved character. The offences are not of the kind which would justify dismissal or removal from service if the respondent had committed the same if in service. The High Court further held that thus being charged with the said offences, of which the respondent has ultimately been acquitted, would not be a bar and cannot be treated as a bar to seek employment and on being successful at the entrance exam, to be denied the same.
7. At this stage, we may also wish to reproduce the decision of the Apex Court in the case of Sushil Kumar (supra). According to us, the ratio as laid down by the Apex Court in Sushil Kumar, (supra) is fully attracted in the facts and circumstances of this case. The Apex Court in the said case has held that the discharge on acquittal of a person under criminal offence has nothing to do with denial of appointment to him on the ground of undesirability based upon the antecedents of candidates. That was a case of suppression of material information and making false statement in the application/attestation form but was a case where the appointment was denied to the respondent before the Apex Court on account of his antecedents record where he was involved in a criminal case but acquitted by the competent court. That was a case where the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90. 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 the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Feeling aggrieved, he filed OA in the Tribunal. The Tribunal allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC, he cannot be denied the right of appointment to the post under the State. The Apex Court held that 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 it not desirable to appoint him to the service.
8. If the matter is viewed in the light of the judgment of the High Court of Delhi as well as judgment of the Apex Court we see no infirmity in the order passed by the competent authority. As already stated, above, the competent authority has passed the order after taking into consideration the observations made by the Screening Committee that the applicant along with his associates was involved in a case of molestation, assaulting and causing injuries and his involvement in the above mentioned criminal case shows his depraved character and propensity to indulge in crime without fear of law and thus has taken the final decision after looking into the gravity of the offence as well as the manner in which the offence was committed although the matter was compromised between the parties. Thus, it cannot be said that the respondents have passed the order mechanically.
9. Further, it cannot be said that the applicant is involved in a minor offence so as to attract ratio of the decision of the Apex Court in the case of Sandeep Kumar (supra). We are of the view that the public interest would be jeopardized if a person with such a criminal background against whom FIR for molestation, assaulting and casing injuries was lodged is indicted in public service. Further, in exercise of judicial review it is not possible for us to substitute the finding given by the appropriate authority and to hold the same arbitrary, which decision has been taken after the recommendations of the Screening Committee. It may be stated here that said Screening Committee has been constituted by the respondents pursuant to their Standing Order relating to Policy For Deciding Cases of Candidates Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing Trial or Acquitted).
10. If the matter is viewed in the light of the judgment rendered by the Apex Court and the finding recorded by the competent authority, we are of the view that the applicant has not made out any case for grant of relief. Accordingly, the OA is found bereft of merit, which is dismissed. No costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.