Allahabad High Court
Riyasat Ali vs State Of U P And 3 Others on 26 March, 2021
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No.-06
Case :- WRIT - A No. - 8313 of 2020
Petitioner :- Riyasat Ali
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Rajesh Yadav
Counsel for Respondent :- G.A.
Hon'ble Ajay Bhanot,J.
1. The petitioner has assailed the order dated 01.06.2019 passed by respondent no. 4- Superintendent of Police, Rampur, cancelling his selection as Constable in the U.P. Police.
2. The judgment is being structured in the following conceptual framework to facilitate the discussion:
I. Introduction II.
Submissions of learned counsels III.
Facts IV.
Legal perspectives IV.i.
Examination of suitability of candidates for appointment A Material for formation of opinion before the authority B Nature of proceedings C Standard of evidence & Impact of chargesheet D Procedure for enquiry IV.ii IV.iii Line of Enquiry by the authorities A. Consideration of criminal cases B. Mitigating factors Decision of the authority V. Analysis of facts and conclusions.
I. Introduction:
3. The recruitment process for various posts in the U.P. Police was initiated by notification no. PRPB-1(82)/2015. The petitioner applied in response to the said notification and participated in the selection process. The petitioner was selected for appointment to the post of Constable in the UP Police.
4. The declaration made by the petitioner in the affidavit of verification on 11.06.2018 during the recruitment process disclosed following criminal cases:
"1. मु0 अ0 स0-150/2013, धारा-506 आई0 पी0 सी0 थाना टांडा रामपुर, सरकार बनाम बब्बू खां आदि न्यायालय श्रीमान मुख्य न्यायिक मजिस्ट्रेट महोदय, रामपुर ।
2. मु0 अ0 स0-186/2017, धारा-323, 324, 504, 506 आई0 पी0 सी0 थाना टांडा रामपुर, सरकार बनाम रियासत आदि न्यायालय श्रीमान मुख्य न्यायिक मजिस्ट्रेट महोदय, रामपुर ।"
5. The petitioner was denied appointment as Constable. Being aggrieved the petitioner approached this Court by instituting a writ petition, registered as Writ A No. 18058 of 2018, Riyasat Ali Vs. State of U.P. and Others. The operative portion of the judgment in Riyasat Ali (supra) dated 24.08.2018 is extracted hereinunder:
"Considering the facts and circumstances, noticed above, this petition stands disposed of, permitting the petitioner to approach the authority concerned, i.e., respondent no. 4, in respect of his grievance raised before this Court, within a period of two weeks from the date of presentation of certified copy of this order. The petitioner shall be at liberty to annex all materials in support of his claim. In case such material is placed before the authority concerned, the same shall be examined, in accordance with law, and keeping in view the law laid down by Apex Court in Avtar Singh (supra). The required consideration shall be made by the authority concerned within a period of three months thereafter. "
6. In compliance of the said judgment dated 24.08.2018 rendered by this Court, the suitability of the petitioner for appointment as constable in the U.P. Police was decided by the impugned order dated 01.06.2019.
II. Submissions of learned counsels:
7. Shri Rajesh Yadav, learned counsel for the petitioner contends that the petitioner had truthfully declared details of all the criminal cases pending against him in the affidavit of verification. The petitioner was falsely nominated as Case Crime No. 0150 of 2013 in which a chargesheet under Section 306 I.P.C. was filed against the petitioner. The acquittal of the petitioner in the said case, after the impugned order was passed requires a fresh consideration of the controversy. The petitioner was acquitted in the second case by the learned trial court. The authority has not adopted any standard of evidence while considering the material against the petitioner. In absence of conviction by a court, appointment cannot be refused. The petitioner has been honourably acquitted in both criminal cases.
8. Per contra, Shri Vikram Bahadur Yadav, learned Standing Counsel for the State of U.P. submits that the petitioner was named in multiple criminal cases. The petitioner was not acquitted honourably by the trial court both the criminal cases. The material furnished by the said criminal cases was reliable and duly considered in the impugned order. The material in the record before the authority disclosed involvement of the petitioner in serious criminal offences.
9. The competent authority gave full consideration to all material facts in the right perspective. The conclusions of the competent authority in the impugned order are reasonable. Persons with such criminal profiles are not fit for appointment in the police force.
10. Heard learned counsel for the parties.
III. Facts of the case and the impugned order:
11. The undisputed facts necessary for adjudication of this controversy can be prised out from the impugned order.
12. The affidavit sworn by the petitioner disclosing the criminal prosecutions faced by him was part of the recruitment process. The impugned order dated 01.06.2019 noticing the said affidavit records the following criminal cases were registered against the petitioner :
"A. Case Crime No. 150/13, Section 307/506 I.P.C., and;
B. Case Crime No. 186/17, Sections 323, 324, 504, 506 I.P.C."
13. In wake of the Government Order dated 28.04.1958, the competent authority sought the opinion of the District Magistrate in the matter of criminal antecedents of petitioner and his suitability for appointment. The impugned order referencing the report of the District Magistrate dated 30.06.2018.
14. The criminal cases are thereafter discussed in context of the claim of the petitioner for appointment. A criminal case was registered against the petitioner as Case Crime No. 150/13, under Sections 307 and 506 I.P.C. at Police Station Tanda. The offences disclosed against the petitioner at the registration of the case are grave in nature. After investigation, a chargesheet under Section 506 I.P.C. was filed and the matter is pending before the learned trial court.
15. The second criminal case, registered as Case Crime No. 186/17, under Sections 323, 324, 504, 506 I.P.C. and tried as Criminal Case No. 5101 of 2017, State Vs. Riyasat and others, was then considered. In the said the petitioner had been acquitted by the learned trial court.
16. The impugned order notices that the prosecution case asserts that the petitioner had attacked the complainant in his stomach with a knife; and the right hand fingers of the latter were severed in the assault. After inflicting the injuries, the petitioner in the ensuing commotion escaped along with other accused persons, but only after threatening the complainant with death.
17. The competent authority finds that the acquittal was the result of prosecution witnesses turning hostile, and compromise arrived at between the parties. The competent authority in the impugned order thereafter concludes that the aforesaid criminal cases reveal criminal traits which render him unsuitable for appointment as Constable in the U.P. Police.
18. The narrative in the impugned order takes support of various authorities rendered by the Supreme Court to fortify the said findings, while rejecting the case of the petitioner for appointment.
Subsequent event:
19. The petitioner has also brought some subsequent developments relevant to the controversy in the record of the writ petition. It is asserted that criminal case registered as Case Crime No. 150 of 2013 went to trial as Criminal Case No. 7410 of 2014. The petitioner has been acquitted in the said criminal case by the learned trial court by the judgment rendered on 07.02.2020.
IV. Legal perspective:
IV.i. Examination of suitability of candidates for appointment : Role of Criminal Antecedents:
20. The impact of criminal antecedents on the appointment of a selected candidate was crystallized in Avtar Singh v. Union of India and Others1. However, the submissions made at the bar expand the scope of the controversy and require consideration of the contours and nature of an enquiry by the competent authority into the criminal antecedents of the candidate and its bearing on appointment.
21. The purpose and subject matter of the proceeding, the rights engaged, material for consideration, and consequences of the decision, decide the nature of the enquiry and procedure to be adopted.
22. The purpose of the enquiry is to determine suitability of a candidate to hold office. The police is a disciplined force which is charged with the duty to uphold the law and order in the State. Personnel in uniform belonging to disciplined forces, are expected to bear impeccable character and possess unimpeachable integrity. Adherence to these standards is essential to enable them to discharge their duties effectively, and retain the confidence of the public at large.
23. The narrative will be fortified by reference to judicial authorities in point. The need for appointing persons of untarnished character in the police force was underscored in Commissioner of Police, New Delhi and others Vs. Mehar Singh2 "The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand."
24. In B. Ramakrishna Yadav and others Vs. The Superintendent of Police and others,3 the Full Bench of Hon'ble High Court of Andhra Pradesh held:
"Verification of character and antecedents is one of the important features in service jurisprudence so as to find out whether a selected candidate is suitable to the post. Having regard to the antecedents of a candidate, if appointing authority finds that it is not desirable to appoint such person, in particular to a discipline force, it can deny employment or even terminate such person, if appointed, within the shortest possible time from the date of verification of character and antecedents. This has to be scrupulously followed in case of recruitment in police force, it being a disciplined force. As observed by the Supreme Court in Mehar Singh (supra), people repose great faith and confidence in the police force, and therefore, the selected candidate must be of confidence, impeccable character and integrity. A person having criminal antecedents is, undoubtedly, not fit in this category, more particularly when he has suppressed the information about his involvement in criminal case(s) irrespective of the fact whether the case was pending or he was acquitted."
25. Criminal antecedents are thus accepted in law as reliable guides for an employer to assess character traits and evaluate the suitability of a candidate for appointment.
IV.i.-B. Nature of the proceeding/Scope of Enquiry into suitability for appointment:
26. Determination of suitability of a candidate for appointment is an administrative decision which is part of the recruitment process. The process of evaluating suitability for appointment is not an adjudication of guilt or innocence as in a criminal case. Nor is it a quasi judicial process or a civil law proceeding.
IV.i-A. Material for consideration by the authority.
27. In public employment diverse material for formation of opinion in regard to the suitability of a candidate is acquired from different sources.
28. The diversity of material available with the authority to form its opinion is inherent in the process of determining the suitability of the candidate. The material before the authority may be reliable and conclusive or credible but probative. Both kinds of material are liable to be considered. Material of probative value but credible worth is not to be discarded, and there is no impediment in its consideration.
29. One such source is the record of criminal proceedings against the candidate. The full inventory of material before the authority includes the F.I.R., the evidence collected during the criminal investigation, chargesheet submitted in court, evidence emerging during the trial, the judgment rendered by a court of law. On the foot of such material, the competent authority can make its decision on the fitness of the candidate for appointment.
IV.i.-C. Method of Evaluation of Material/ applicability of Standards of evidence:
30. The competent authority is not always bound by the findings of the court, nor is it invariably constrained by the opinion of the investigation officer. The reasons are not far to seek.
31. The purposes of a criminal investigation, criminal trial, civil proceeding, departmental enquiry, are distinct from the rationale behind the exercise of verification of criminal antecedents of a candidate for appointment in a recruitment process. The nature of rights engaged in the respective proceedings are also different. The lattermost proceeding is an executive function, while former proceedings are judicial and quasi judicial in nature respectively.
32. Criminal prosecution of an individual before the court of law is to bring an offender of criminal laws to justice, and to punish the guilty. The object of the competent authority in a recruitment process is only to determine the suitability of a candidate to hold a public post.
33. Secondly, strict rules of evidence apply to criminal prosecution. The prosecution can succeed only when it attains the standard of evidence which proves the guilt of the accused beyond reasonable doubt. The competent authority on the contrary is not constrained by any such standard of evidence.
34. Acquittal by the criminal court happens when evidence is not sufficient to sustain a conviction. Failure to prove an offence before a court of law in a criminal trial may not reduce the probative value of said evidence before the competent authority in a recruitment process. Such evidence when placed before the competent authority may constitute credible material of probative value to render a candidate unsuitable for appointment. The scope of discretion of the competent authority will also depend on the nature of findings of the court on the same evidence.
35. Weight is given by judicial authorities to the nature of acquittal over the mere fact of acquittal. Cases in point accordingly classify acquittals in different categories-honourable acquittal, acquittal as if the prosecution did not happen, acquittal on benefit of doubt, acquittal on account of witnesses turning hostile.
36. An acquittal in a criminal trial simplicitor will not lead to an automatic discharge in departmental proceedings. This proposition was enunciated in R.P. Kapur vs. Union of India (UOI)4 in the following terms:
"9... Take again the case where suspension is pending criminal proceedings. The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. Such suspension also in our opinion is clearly related to disciplinary matters. If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters. We cannot therefore accept the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation, enquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in Article 314.....
(emphasis supplied)
37. The distinction between honourable acquittal and acquittal based on benefit of doubt was considered in relation to the right to reinstatement in service and other service benefits in Management of Reserve Bank of India Vs. Bhopal Singh Panchal5, by laying down the law as under:
"13.....When the High Court acquitted the respondent-employee by its order of November 21, 1977 giving the benefit of doubt, the Bank rightly refused to reinstate him in service on the ground that it was not an honourable acquittal as required by Regulation 46(4).
15.... It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period."
38. Commissioner of Police, New Delhi Vs. Mehar Singh6 attempted to define the expression "honourable acquittal" after acknowledging that the term often eludes precise definition. Mehar Singh (supra) after placing reliance on the law laid down in Inspector General of Police Vs. S. Samuthiram7, and RBI vs. Bhopal Singh Panchal8 held:
"24. We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India [AIR 1964 SC 787] this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] . In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] , where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
33. So far as respondent Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of the Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that.
34. The respondents are trying to draw mileage from the fact that in their application and/or attestation form they have disclosed their involvement in a criminal case. We do not see how this fact improves their case. Disclosure of these facts in the application/attestation form is an essential requirement. An aspirant is expected to state these facts honestly. Honesty and integrity are inbuilt requirements of the police force. The respondents should not, therefore, expect to score any brownie points because of this disclosure. Besides, this has no relevance to the point in issue. It bears repetition to state that while deciding whether a person against whom a criminal case was registered and who was later on acquitted or discharged should be appointed to a post in the police force, what is relevant is the nature of the offence, the extent of his involvement, whether the acquittal was a clean acquittal or an acquittal by giving benefit of doubt because the witnesses turned hostile or because of some serious flaw in the prosecution, and the propensity of such person to indulge in similar activities in future. This decision, in our opinion, can only be taken by the Screening Committee created for that purpose by the Delhi Police. If the Screening Committee's decision is not mala fide or actuated by extraneous considerations, then, it cannot be questioned.
35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of the trust reposed in it and must treat all candidates with an even hand."
39. The concept of various categories of acquittals in criminal cases thus evolved by courts, in the context of service law jurisprudence for the purposes of determining suitability for appointment or continuance in service. In service matters the consequences of an acquittal by a criminal court have to be applied in a nuanced manner and not in a pedantic fashion.
40. In Union Territory, Chandigarh Administration and Others Vs. Pradeep Kumar and Others9, while holding that an acquittal in a criminal case was not conclusive of a candidate's suitability for appointment it was stated:
"13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh [Commr. of Police v. Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910] and Parvez Khan [State of M.P. v. Parvez Khan, (2015) 2 SCC 591 : (2015) 1 SCC (L&S) 544] cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust reposed in it and must examine the candidate with utmost character.
15. From the above details, we find that the Screening Committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took the decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per Guideline 2(A)(b) and object of such screening is to ensure that only persons with impeccable character enters police force. While so, the court cannot substitute its views for the decision of the Screening Committee."
41. Following various decisions including in Mehar Singh (Supra), State of Madhya Pradesh Vs. Parvez Khan10, the Supreme Court in State of Madhya Pradesh Vs. Abhijit Singh Pawar11, reiterated the said propositions of law.
42. More recently in line with the said authorities, the Supreme Court in State of M.P. Vs. Bunty12 unequivocally set forth as under:
"13. The law laid down in the aforesaid decisions makes it clear that in case of acquittal in a criminal case is based on the benefit of the doubt or any other technical reason. The employer can take into consideration all relevant facts to take an appropriate decision as to the fitness of an incumbent for appointment/continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench."
43. The value of a chargesheet submitted by an Investigation Officer in a court, for the authority considering the suitability of candidate for appointment would now merit consideration.
44. The chargesheet submitted before the court is the result of criminal investigation by the Investigation Officer. During investigation of a criminal case the Investigation Officer has to be responsive to the standard of evidence required in a criminal trial. For the competent authority nomination or omission to name a person in a chargesheet, is at best an opinion of the Investigation Officer. Absent nomination as an accused in a chargesheet, or even a clean chit by an Investigation Officer, ipso facto does not create an entitlement for appointment. The opinion of the Investigation Officer will deserve respect, but it does not foreclose the discretion of the authority. The competent authority may for good reason based on material in the record form a different opinion in the matter of fitness for appointment.
45. In civil proceedings and departmental enquiries, the standard of evidence employed to prove a fact is preponderance of probabilities. The rights of a government employee facing departmental proceedings are significantly different from a candidate who is participating in a selection process. The evidentiary standard of preponderance of probability is not applicable to the proceedings which consider the suitability of a candidate before making the appointment.
46. The duty of an employer to evaluate the suitability of a candidate for appointment is paired with the right of the candidate for a fair consideration of his credentials.
47. Rights of selected candidates have been settled by good authority.
48. In Shankarshan Das Vs. Union of India13, the rights of candidates in a recruitment process were posited for determination. Selected candidates do not acquire an indefeasible right to be appointed was the principle holding in Shankarshan Das (supra), which is set out hereunder:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] , or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899]."
49. State of Bihar Vs. The Secretariat Assistant Successful Examinees Union14 fortifies the said proposition of law.
50. Reception of evidence is invariably required when the fact finder is required to achieve the two standards of evidence discussed above. Insistence on the said standards of evidence would demand introduction of evidence in decisions made in the recruitment process. This is fraught with serious consequences. The recruitment process would be quagmired in legal adjudications and disputes. The nature of rights of selected candidates does not permit adoption of the aforesaid standards of evidence.
51. To sum up, the authority while determining the suitability of a candidate for public employment is not required to reach the level of evidentiary standards demanded of the prosecution in a criminal trial or asked of a party in a civil trial or required of a department in a disciplinary enquiry.
IV.i.-D. Procedure for enquiry:
52. The conclusion of the competent authority is an estimation at best. The decision made by inferences drawn from the material in the records, by its very nature can never be proved by mathematical accuracy. However, to obviate possibilities of miscarriage of justice, judicial safeguards have to be built into the decision making process.
53. The law has set its face against an arbitrary denial of appointment to selected candidates. The law stated in Mohammed Imran Vs. State of Maharashtra15, is reproduced below:
"5. Employment opportunities are a scarce commodity in our country. Every advertisement invites a large number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will, however depend on the fact situation of a case.
9....If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment."
54. Emphasizing the need to exercise powers reasonably and objectivity in such matters, the Supreme Court in Avtar Singh (supra) held thus:
"35...Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases."
55. The procedural safeguards in an administrative decision making process which has penal consequences shall apply to these proceedings.
56. The authority has to adopt a procedure which is consistent with principles of natural justice.
57. Adverse material has to be provided to the candidate. The candidate can tender his defence to refute the aforesaid material and point out mitigating circumstances in his favour in the proceeding. When need arises fair and an impartial opportunity of hearing may be given to such candidate.
IV.ii. Line of Enquiry by the authorities
58. With the nature of material, evidentiary requirements, and procedural details in place, the line of enquiry to be followed by the authority shall now receive consideration.
59. Consequences of a false declaration made in the course of verification at the time of his recruitment and invalidating effect of criminal cases on the prospects for appointment, were broadly settled in Avtar Singh (supra):
"We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted: -
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
IV.ii.-A. Line of Enquiry- Aggravating Factors
60. Regard has to be paid by the competent authority to the gravity and heinous nature of offences or offences involving moral turpitude. Such cases may dissuade the competent from approving the candidate for appointment.
61. Multiplicity of criminal prosecutions is also a factor while considering the suitability of a candidate. Repetitive criminal acts may reinforce the inference of criminal traits or vice and violence in a candidate.
62. Material in the record should strongly support the inference of criminal traits, or a tendency of involvement in criminal offences, or to directly engage in criminal acts or vice and violence in the conduct. These qualities are not conducive to holding public office. On this foot the authority can justify denial of appointment.
IV.ii-B. Line of Enquiry - Mitigating Factors
63. The line of enquiry shall extend to the consideration of mitigating factors in each case.
64. The authority has to make allowance for mitigating factors in a case. Indiscretions of youth, and fallibility of human nature have to be accorded full weight. Fallibility of human nature is distinct from criminal traits in character. Depraved conduct is not youthful indiscretion. Trivial offences may often occur by human error and not perpetrated by a criminal mindset. Trivial offences may not invite invalidation of candidature. The competent authority has to determine where the threshold lies and draw the line in light of facts of each case.
65. The judgment in Commissioner of Police and Ors. Vs. Sandeep Kumar16, cited with approval in Avtar Singh (supra), turned on similar facts:
"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age 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."
66. The authority also cannot neglect the realities of social life and pace of the judicial process and has to consider them in the decision.
67. The practice of falsely framing young members of a family in trivial offences especially in villages is not uncommon. Prosecution in these offences is easily initiated and cases remain pending indefinitely.
68. Tendency to falsely implicate all family members and even distant relatives in many criminal cases arising out of matrimonial disputes has also been noticed by the courts.
69. The employer has to be alert to these realities and factor them in the decision in the facts of a case.
70. Failure to disclose past criminal prosecutions in the affidavit of verification ipso facto will not lead to automatic cancellation of appointment. The authority has to independently consider the consequences of suppression of facts in each case. Equally disclosure of criminal cases by a candidate cannot guarantee appointment. The impact of criminal antecedents on the suitability for appointment has to investigated in the manner consistent with the preceding narrative.
IV (iii). Decision of the authority:-
71. The authority while taking a decision in the matter has to consider relevant facts and material in the record and also the defence tendered by the candidate. The order should be supported by reasons which reflect due application of mind to relevant considerations. A perverse finding or a decision taken on no evidence or an order based on irrelevant considerations will vitiate the decision. Such decision would be vulnerable to judicial interdict.
V. Analysis of Facts & Conclusions:
72. The F.I.R. as well as the judgment of the trial court in Criminal Case No. 5101 of 2017, State Vs. Riyasat and others under Sections 323, 324, 504, 506 I.P.C. were part of the material considered by the authority while arriving at the impugned decision.
73. The prosecution case set out in the F.I.R. identifies the petitioner as the attacker who had severed the right hand fingers of the complainant.
74. Before the learned trial court, the complainant who had turned hostile admitted to the presence of the accused (including the petitioner) at the incident and an altercation with them. The learned trial court opined that the complainant was an injured witness. The complainant too did not deny injuries on his person. For reasons not known, no other person witnessing the crime was called as witness for the prosecution, though mentioned in the chargesheet.
75. Hostile witnesses in certain fact situations may be a circumstance which cannot be ignored by the competent authority. The competent authority in this case was fully justified in attaching weight to the fact of prosecution witnesses turning hostile while assessing the consequences of acquittal.
76. The narrative will be reinforced by another judicial authority, close to the facts of this case. In State of Rajasthan and Others Vs. Love Kush Meena17, while upholding the denial of appointment to a candidate even after acquittal in a criminal case, the role of the co-accused (including the candidate), of attacking the deceased with knives as stated in the prosecution case, was considered in the manner stated below:
"23. Examining the controversy in the present case in the conspectus of the aforesaid legal position, what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused. No doubt, in that facts of the present case, the person who ran the tractor over the deceased lady was one of the other co-accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co-accused including the respondent.
(emphasis supplied)
24. We may also notice this is a clear case where the endeavour was to settle the dispute, albeit not with the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence under Section 302/34IPC could not be compounded, the Trial Court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal.
25. The judgment in Avtar Singh's case (supra) on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt, that cannot make the candidate eligible."
77. The determination so made in Love Kush Meena (supra) reflects the recognizable principles disclosed in the preceding part of this narrative.
78. In the facts of this case, the acquittal of the petitioner cannot be held to be honourable. Further the crime was of a heinous nature. The manner of consideration of the aforesaid material by the competent authority in the impugned is lawful and the conclusions are reasonable.
79. Material furnished by the above said case alone was sufficient to support the finding of the competent authority regarding the non-suitability of the petitioner for appointment.
80. However, it was not an isolated case. The competent authority also noticed the second case against the petitioner which was registered as Case Crime No. 150 of 2013, under Sections 307 and 506 I.P.C. The petitioner was nominated as an accused in the F.I.R. and a specific role was attributed to him in commission of the crime. Chargesheet under Section 506 I.P.C. submitted against the petitioner, and the fact of the trial being underway were also considered before passing the impugned order.
81. Both the criminal cases were in no way connected with each other. Criminal cases were instituted by different parties for separate offences. Multiplicity of cases manifested repetitive criminal conduct and thus assumed significance.
82. The competent authority cannot be faulted for finding that the aforesaid antecedents revealed traits which made the petitioner unsuitable for appointment.
83. The impact of the subsequent event of the acquittal of the petitioner in Criminal Case No. 7410 of 2014, State Vs. Babbu Khan and others, under Section 506 I.P.C., by the judgment rendered by the learned trial court on 07.02.2020 shall be considered.
84. The learned trial court in the judgment dated 07.02.2020 found that some prosecution witnesses had testified to the role of the petitioner in the criminal offence. This was consistent with the prosecution case in the F.I.R. However, in view of the contrary depositions by other witnesses, the peittioner was found entitled to the benefit of doubt. Accordingly, the learned trial court acquitted the accused (petitioner) by granting him benefit of the doubt. ["अतः अभियुक्त संदेह का लाभ पाने का अधिकारी है एवं दोषमुक्त किये जाने योग्य है।"]
85. The acquittal of the petitioner was clearly not honourable.
86. The aforesaid acquittal hence is of no avail to the petitioner in the facts of the case. The multiplicity of criminal cases as seen earlier constitute aggravating circumstances which compelled the competent authority to find against the petitioner. The acquittal by the trial court in the second case does not warrant any fresh consideration of the controversy by the authority.
87. In the opinion of the competent authority the multiple criminal cases yielded material of credible nature with high probative value. The order of the competent authority based on the said material is supported by reasons. The impugned order factors relevant criteria and excludes irrelevant considerations. The inferences drawn by the authority are reasonable. The impugned order is in conformity with judicial authorities in point. There is no procedural impropriety committed by the authority while passing the impugned order.
88. The pleadings in the writ petition and the material in the record before this Court, do not establish any perversity in the findings. In these facts, disclosure of the criminal cases by the petitioner is not a defence against cancellation of his selection.
89. In wake of the preceding discussion, the impugned order dated 01.06.2019 passed by respondent no. 4- Superintendent of Police/Nodal Officer, District Recruitment Board, Rampur, is not liable to be interfered with.
90. The writ petition is liable to be dismissed and is dismissed.
Order Date :- 26.03.2021 Dhananjai Sharma