Central Administrative Tribunal - Ernakulam
Basheer P vs Union Of India on 7 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 496 of 2013
Thursday, this the 7th day of July, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Ms. P. Gopinath, Administrative Member
Basheer P., S/o. Sri Moideenkutty,
aged 38 years, residing at Palliyalil House,
South Pallar, Vyramcode Post, Thirunavaya,
Malappuram District, Kerala, Pin - 676 301. ..... Applicant
(By Advocate : Mr. Shafik M.A.)
Versus
1. Union of India, represented by its Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances and Pension,
New Delhi - 110 001.
2. Central Bureau of Investigation, represented by its Director,
Plot No. 5B, CGO Complex, 7th Floor, Lodhi Road,
New Delhi - 110 003. . . . Respondents
(By Advocate : Mr. N. Anilkumar, Sr. PCGC (R))
This application having been heard on 21.06.2016, the Tribunal on
07.07.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
This Original Application has been filed seeking a direction to the respondents to appoint the applicant to the post of Public Prosecutor under respondent No. 2 based on Annexure A3 list of recommended candidates published by the Union Public Service Commission (UPSC). The applicant had applied for the post of Public Prosecutor in response to an advertisement published in the Employment News in April, 2012. On the basis of the written test he had taken part he was called for interview and was ranked No. 29 in the list of candidates recommended for appointment. At the time of interview, he was called upon to submit an attestation form wherein he had answered in affirmative to a query whether he has been arrested/prosecuted/kept under detention. To the query whether he has been convicted by a court of law he answered in negative. Later he received Annexure A5 letter from the UPSC intimating that he has been recommended to the post of Public Prosecutor in respondent No. 2 CBI. It was also stated in that letter that the offer of appointment would be made to him only after the Government satisfies itself, after inquiry as may be considered necessary that he is suitable in all respects for appointment in service and that he has good mental and bodily health and is free from any physical defects likely to interfere in the discharge of duties. It was also made clear that the offer of appointment will also be subject to such conditions as are applicable to all such appointments under the Government. The applicant appeared before a medical board and was certified as fit to hold the post. As no offer of appointment was received, he submitted Annexure A11 representation to respondent No. 2 pointing out that he was acquitted under Section 232 of the Cr. PC by the court of Session after having satisfied that there was no evidence that he committed offence. In response to the said representation he was informed vide Annexure A12 that the matter is under consideration with DOP&T and the decision of the competent authority is awaited. The applicant, therefore, being aggrieved by non-appointment to the post to which he was selected, prays for:
'i) to declare that non-appointment of the applicant to the post of Public Prosecutor under the 2nd respondent from Annexure A-3 list of recommended candidates for appointment to the post of Public Prosecutor prepared and published by the Union Public Service Commission and appointing candidates who secured lower rank on a comparative assessment and indicated in Annexure A3 list of the Union Public Service Commission is demonstrably illegal, arbitrary, discriminatory offending Articles 14 and 16(1) of the Constitution of India;
ii) to issue appropriate direction or order, directing the respondents to appoint the applicant to the post of Public Prosecutor under the 2nd respondent forthwith with effect from the date of his entitlement based on his turn in Annexure A3 list of recommended candidates of the Union Public Service Commission;
iii) to issue appropriate direction or order, directing the respondents to grant the applicant all consequential benefits based on his notional appointment from the date of his entitlement including arrears of pay and allowances expeditiously or at any rate, within a time frame that may be fixed by this Hon'ble Tribunal;
iv) to grant such other reliefs which this Hon'ble Tribunal may deem, fit and proper in the circumstances of the case;
v) to allow the above OA with cost to the applicant.'
2. The respondents resisted the OA stating that verification of character and antecedents of the applicant was done through the District Collector, Malappuram and also by the Additional Superintendent of Police, CBI and ACB, Cochin. As per the reports of those officials a case of murder and related offences under Sections 302, 143, 147, 341, 324 r/w 149 IPC was registered as crime No. 299/1997 in the Tirur Police Station in which the applicant was arrayed as an accused and that he was subsequently acquitted under Section 232 of Cr. PC on 10.9.2004. It is stated in the report that the District Police Chief did not recommend the appointment of the applicant for the sensitive post of Public Prosecutor in the CBI. In view of the verification reports of the applicant's character and antecedents and the seriousness of the allegation against him the competent authority did not approve his appointment in CBI which investigates very sensitive and complex cases. The post of Public Prosecutor is a very important and the incumbent has to discharge his duties in an outstandingly manner with high standard of extraordinary performance. The respondents further state that the applicant is not a person having clean records. The letter of UPSC was not offer of appointment and no offer of appointment was issued by the respondents to the applicant. The respondents pray for rejecting the OA.
3. The Original Application was adjudicated by this Tribunal by order dated 14.8.2014 and finding that there is no basis for coming to the conclusion about the dubious antecedents or bad character in view of the acquittal on merit in the criminal case and since the report does not refer to any other offences or misconduct, this Tribunal held that denial of appointment to the applicant on this ground alone was not valid or justifiable. While allowing the OA, this Tribunal directed the respondents to appoint the applicant to the post of Public Prosecutor based on his merit and rank in Annexure A3 list of recommended candidates by the UPSC from the date of his entitlement. However, the aforesaid order of this Tribunal was set aside by the High Court of Kerala and remanded the OA to the Tribunal with a direction to take decision after affording reasonable opportunity to the rival parties and taking into account the principles laid down by the Apex Court in the subject matter within a period of two months from the date of receipt of a copy of the judgment. The aforesaid order was passed by the High Court in its judgment dated 23.12.2015 in OP (CAT) No. 22 of 2015.
4. The High Court in the aforementioned judgment observed:
'19. We have considered the rival submissions, perused the pleadings and the records made available. The point that emerges for consideration is whether the acquittal of the Respondent under Sec.232 of the Cr.P.C by the Sessions Court in offences involving moral turpitude is entitled to be considered for appointment to a public post on the said sole ground. It is true that the judgments of the Apex Court cited supra lay down the principle that the judgment rendered by the criminal Court can be taken into account if it is found that an honourable acquittal was made by the Court. In order to find out as to whether acquittal is an honourable acquittal, the competent authority is always vested with powers, to go through the relative documents which led to the implication of the Respondent in the crime and other materials on record. So far as a criminal case is concerned, proof beyond reasonable doubt is the law settled for securing conviction, whereas in a quasi-criminal and other civil proceedings, the principle that is to be followed to ascertain the guilt by the Court is preponderance of probabilities. No doubt, if the Sessions Court after trial proceedings entered into a finding that after evaluation of the entire evidence and circumstances, there is absolutely no evidence to incriminate the accused, then it can be considered as a case of honourable acquittal, and in that regard the competent authority may be justified in relying absolutely on the said judgment, since the same was rendered by a competent Court of Law. In the case at hand, it is true that the Respondent was acquitted under Sec.232 of the Cr.P.C, holding that there was no evidence to connect the Respondent and other accused with the murder of the deceased therein. But on going through the judgment of the Sessions Court, it can be seen that all the witnesses examined by the prosecution had turned hostile, which made the prosecution give up the other witnesses. It is in that context, that the Sessions Court has entered into a finding that there was no evidence to incriminate the Respondent to the crime.
20. In this regard, the judgment of the Apex Court in 'Mehar Singh' supra is relevant and according to us, paragraph 25 contained therein is more explanatory and therefore we think that it is only appropriate that the said paragraph is narrated for reference:
'25. The expression 'honourable acquittal' was considered by this Court in S. Samuthiram. 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, 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.'
21. Therefore, the principle of honourable acquittal depends on facts and circumstances of each and every case. The core consideration of the Court of Law while considering the question of honourable acquittal should be relating to the entire proceedings that have taken place in a criminal Court from the beginning to the end and then arrive at a decision by a competent authority whether the acquittal made by the Court was after evaluating the entire evidence let in by the prosecution as well as the defence.
22. No doubt in our mind that, a competent authority is always vested with powers to arrive at an objective satisfaction in the matter of selection of its employees. The degree of consideration depends upon the post to which such a person was considered. Here, in this case, the post is a very sensitive post as that of a Public Prosecutor in a premier investigation agency, i.e. the CBI. Therefore, the competent authority is always justified in making a threadbare enquiry with regard to the antecedents and background of the candidate in arriving at a conclusion as to whether such a person is entitled to be appointed to a post of this nature. The question now before us is whether the Tribunal while considering the issue was able to consider whether the competent authority was justified in arriving at a decision not to appoint the Respondent. According to us, the evidence that was placed before the Tribunal was Annexures-R1 to R3, which we discussed earlier, which are reports of the District Collector, Malappuram and Superintendent of Police, CBI and a communication of Department of Personnel and Training dated 13.01.2014, which reads as follows:
'Department of Personnel & Training AVD-II Subject: Approval for appointment to the post of Public Prosecutor in CBI - reg.
CBI may please refer to their ID No.DP/PERS.1/2013/738/3/90/20 dated 28.02.2013 on the above subject.
2. Approval of the competent authority is conveyed for cancellation of candidature of Shri Basheer P. as Public Prosecutor in CBI.
3. CBI is requested to take necessary action in this matter accordingly under intimation to this Department.
4. CR dossiers of Shri Basheer P. received along with the proposal is returned herewith, the receipt of which may please be acknowledged.
Sd/-
Rajiv Under Secretary DD (Pers.), CBI, CGO Complex, New Delhi.
------------------------------------------------------------------- DoP&T ID No.202/66/2012-AVD-I Dated 13 January, 2014.'
23. In our view, the satisfaction of the competent authority is rendered in one sentence to the effect that the approval of the competent authority is conveyed for cancellation. According to us, what guided the Tribunal in arriving at a conclusion was the judgment of the Sessions Court by which the Respondent was acquitted of the offences. We have already held that if the acquittal is to be considered as a sole criteria for arriving at a decision, the same should be an honourable one. The Tribunal did not consider the question in the right perspective. Even if a person is acquitted, the competent authority is always at liberty to evaluate the facts and circumstances to arrive at a different conclusion and decision with regard to the appointment of a person involved in the said crime. Therefore, the prime duty of a Court of Law considering a question like this, is to find out whether there is an honourable acquittal and thereafter, whether the competent authority has considered the whole issue in order to arrive at a conclusion with regard to the competency of the candidate to secure employment. . . . . . . . . . '
5. After remand of this case we have heard the case again in extenso, after giving opportunity to the parties to submit legal arguments and to produce records. In order to ascertain the true circumstances under which the applicant was acquitted in the criminal case, we directed the new counsel engaged by the applicant after remand to produce copies of the records of SC No. 527/2001 of Court of Session, Manjeri including the FIR and FI Statement produced by the prosecution.
6. In compliance of our order the counsel produced the certified copies of the case records which comprises of the FIR, FI Statement, final report under Section 173 of the Cr. PC, Statements of the witnesses recorded by the police under Section 161 of the Cr. PC, postmortem report of the deceased victim, wound certificates of the other victims, seizure mahasar, seen mahasar and certified copies of the depositions of the witnesses.
7. We have carefully perused the judgment of the Sessions Court, Manjeri in SC No. 238 of 2001 (marked as Annexure A9) and we have heard both sides mainly on the issue whether the acquittal of the applicant in Annexure A9 case was an 'honourable acquittal' or not. Throwing more light on the law on the topic of 'honourable acquittal' in the administrative jurisprudence, the High Court in the judgment in OP (CAT) No. 22 of 2015 has referred to the judgments of the Apex Court in Commissioner of Police, New Delhi and Anr. v. Mehar Singh 2013 (7) SCC 685, Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar 1996 (11) SCC 605, Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal 1994 (1) SCC 541 and also a recent judgment of the Apex Court in State of M.P. & Ors. v. Parvez Khan (Civil Appeal No. 10613 of 2014 dated 01.12.2014). The High Court observed that if the acquittal of the applicant is to be considered as the sole criteria for arriving at a decision, the same should be an honourable one.
8. Now we are once again called upon to adjudicate whether acquittal of the applicant by Annexure A9 judgment was indeed an honourable acquittal or not. In Mehar Singh's case (supra) the Apex Court referring to the Deputy Inspector General of Police & Anr. v. S. Samuthiram - 2013 (1) SCC 598 held that acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full-fledged trial. The Supreme court in Mehar Singh further held that the selection committee is well within its right of cancelling the candidature of the candidate if it finds that the acquittal of a candidate in a criminal case is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. Bringing more clarity as to what constitues 'honourable acquittal', in paragraph 25 of Mehar Singh the Court explained:
'25. . . . . . . . . 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.'
9. Keeping in mind of the aforesaid principles of law laid down by the Apex Court in Mehar Singh's case (supra) and Samuthiram's case (supra) and in order to decide whether the acquittal of the applicant in the criminal case was a honourable acquittal or not, we have carefully examined the certified copies of the record of Annexure A9 criminal case produced by the applicant. We bestowed special attention to examine whether the applicant's name was involved in the crime right from the stage of the first information statement recorded by the police. We did a special scrutiny on this aspect in order to ascertain whether the applicant was alleged as a perpetrator of the crime from its initial reporting to the police or not. We have noted that even in FI statement the name of the applicant has been very clearly named as one among the perpetrators of the offences alleged. However, during trial all the witnesses including those who sustained injuries in the incident turned hostile to the prosecution. It appeared to us that the incident in the criminal case was the culmination of some personal animosity between two groups of relatives. It is quite possible that after the lapse of some time the persons concerned decided not to adduce incriminating evidence against the accused persons of whom the applicant was one. On a careful examination of the nature of oral evidence adduced through witnesses, we could perceive that all the material witnesses except the official witnesses were declared hostile. Therefore, acquittal of the applicant cannot be said to be based on a real evaluation of the true evidence of the witnesses or ' after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused' . Since the witnesses including injured witnesses turned hostile, it is discernible that the trial court acquitted the accused based on lack of evidence which can by no means be stated as adjudication after evaluating the merits of the real evidence of the witnesses, had they not turned hostile to the prosecution case. The fact that even the injured witnesses turned hostile is a pointer to the absence of a 'full consideration of the prosecution case'. Therefore, in the light of the guidelines indicated by the Apex Court in Mehar Singh's case (supra), we are convinced that what the applicant earned was not a honourable acquittal on the merits of this case after a full-fledged real trial of the criminal case. We note that in Samuthiram's case (supra) where the accused himself was a police constable, as the police officials who are colleagues of the accused and cited as material witnesses turned hostile, the criminal case got weakened and the trial court took the view that there was no evidence to implicate the accused.
10. In the light of the above discussion we hold that the applicant's acquittal in the criminal case by Annexure A9 judgment was by no means an 'honourable acquittal' after a full-fledged trial and was based on the evidence of the witnesses who turned hostile to prosecution.
11. The next aspect highlighted in the judgment in OP (CAT) No. 22 of 2015 was that this Tribunal did not attempt at all to examine whether the cancellation of the applicant's candidature by the competent authority was supported by adequate materials and whether the same was not vitiated by mala fides. Of course, there is no allegation of mala fides against the competent authority of the respondents in not sending the letter of appointment to the applicant even after he was selected for appointment. In this case there was indeed no offer of appointment. In Annexure A5 letter sent by the UPSC informing the applicant of his name having been recommended to the post, it was clearly stated that the offer of appointment will be made only after the Government has satisfied itself after the inquiry as may be considered necessary for ascertaining the suitability of the applicant in all respects for appointment. In this case the respondents have produced Annexures R1 to R3 to show that the District Collector, Malappuram in consultation with the District Police Chief and the head of the CBI and ACB, Cochin have reported that the accused was involved and was charge sheeted in a session's case for serious offences under Section 302, though he was finally acquitted by the Court. The District Collector has specifically mentioned in his Annexure R1 report that the applicant's candidature is not recommended.
12. No doubt CBI is one of the premier investigating agencies where integrity of the officials including the prosecutors should be beyond doubt as they deal with very important cases involving serious criminal cases and economic offences. The very linking of a candidate for the post of Prosecutor in CBI in a dreadful offence like murder punishable under Section 302 itself will give rise to a stigma in the minds of the common citizens, although acquittal by the criminal court sets such candidate at liberty free from all criminal and civil consequences. When such a candiate is appointed as Public Prosecutor who is likely to deal with cases involving similar other offences and offences graver in nature, even an iota of the feeling that may crop up in the mind of people that the prosecutor himself was involved in a criminal case, will cast a shadow not only on the system of prosecution but also may pave way to losing of the people's faith in the system.
13. Therefore, we hold that the respondents' authorities were justified in taking decision for cancellation of the candidature of the applicant as Public Prosecutor in CBI. In the result the OA is dismissed. Parties shall suffer their own costs.
(MS. P. GOPINATH) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA