Central Administrative Tribunal - Delhi
Pankaj vs Gnct Of Delhi on 19 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3915 of 2010 New Delhi this the 19th day of April, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Pankaj, S/o Shri Azad Singh, R/o Opp. Vatika Banquet Hall, Gali No.8, Vishal Nagar, Sonepat (Haryana). .... Applicant ( By Advocate Shri Ajesh Luthra) VERSUS 1. GNCT of Delhi, Through Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 2. Deputy Commissioner of Police, (Recruitment) New Police Lines, Kingsway Camp, Delhi. .. Respondents ( By Advocate Shri Vijay Pandita) O R D E R Dr. Dharam Paul Sharma, Member (J) :
Feeling aggrieved of cancellation of candidature, the applicant has filed this Application under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of impugned order of cancellation of his candidature dated 5.8.2010 and praying for the directions to the respondents to restore his candidature and offer him appointment to the post of Sub-Inspector (Executive) Male with consequential benefits.
2. The applicant applied for appointment to the post of Sub-Inspector (Executive) Male in Delhi Police in response to recruitment notification dated 21.10.2009 issued by the respondents, a copy of which is at Annexure A/3 to the Application. After having qualified all the tests conducted for this purpose, the applicant was provisionally selected. However, in stead of receiving appointment letter from the respondents, he received a show-cause notice dated 18.6.2010 proposing cancellation of his candidature for the reason that the Screening Committee upon consideration of his case with a view to assess his suitability for the post applied for consequent upon his involvement in case FIR No.62 dated 16.3.2003 under Section 383/506 IPC PS Sonepat, Haryana, has not recommended his case having regard to the facts of the case, the judgment of the Honble Court, the gravity of the offence involved and the role of the applicant concerned. The Screening Committee was of the view that his conduct shows tendency to commit crime without fear of law or respect of law and such type of attitude renders him unsuitable for appointment in a law -enforcing agency and in a disciplined force like Delhi Police. The applicant was provisionally selected subject to verification of character and antecedents and medical fitness and final checking of the documents etc. In his application for the post in question the applicant has disclosed the registration of FIR, the factum of his arrest and detention as well as his trial and acquittal by the Court of law. He has given details of the case in his attestation form as well. FIR no.62 was registered under Section 382/506 IPC pursuant thereof Sessions Case NO.63 of 2004/03 was insisted under Section 392/397/506 IPC.
3. The brief facts of the case are that on the complaint of one Shri Shamsher Singh, who was working as guard at Mitter Sain Sukhbir Singh Jain Petrol Pump, Rohtak Road, Sonepat, Haryana, a criminal case FIR No.62/2003 under Section 392/397/506 IPC & 23 Arms Act P.S. City Sonepat, Haryana was registered on 16.3.2003. He complained that in the intervening night of 15/16.03.2003 about 3.15 AM, three young persons came to the petrol pump and one person placed knife on his neck and other persons went inside the petrol pump office and went away with the cash bag. The complaint alleged robbery of Rs.23,500/- and four papers credit slips of Rs.26515/-. The offence was found punishable under Section 392/397/506 IPC read with Section 25 of Arms Act. During the investigation of the case, all the accused including the applicant were arrested by the local police and certain properties were recovered from them. Inquiry Officer recovered Rs.5000/-, one knife and one bag from the applicant. Two independent witnesses were joined by the Inquiry Officer at the time of interrogation and they had attested the recovery memos. In the trial, the complainant did not identify the accused person in the Court. Out of the two witnesses of the recovery, one, who appeared in the trial become hostile. The Inquiry Officer, however, stood to his stand but he was found lacking in corroboration as official witnesses turned hostile. Accordingly, the Court concluded that the case of the prosecution suffered from material doubt and in view of the settled law, benefit of doubt must go to the accused person and accordingly, acquitted the accused, as the prosecution failed to prove its case against them beyond shadow of doubt. In these circumstances, the respondents have cancelled the candidature of the applicant after affording him due an opportunity to show cause against proposed cancellation of his candidature which action has now been impugned in the present proceedings by the applicant, as wholly illegal, unjustified without application of mind. It has been the case of the applicant that once he is acquitted, no stigma remains attached to him and it could not be said that he was involved in the offence. Apart from the investigating officer who was duty bound to support his investigation for else he risked his job, no other witness supported the prosecution case. The applicant could not be made to suffer in the matter of his appointment only because an FIR was registered against him. The case is six year old, since then he has completed his graduation and pursuing his LLB. The applicant has referred to large number of cases where persons, whose names have been mentioned in the OA, have been appointed in Delhi Police after acquittal in criminal cases alleged against them.
4. The respondents in their counter reply have opposed the applicants claim. It has inter alia been stated that admittedly, the Investigating Officer arrested the applicant on 6.4.2003 and recovery of Rs.5000/-, knife and one bag was made from the applicant. One of the two independent witnesses, who joined the Inquiry Officer at the time of interrogation and attested the recovery from him, turned out hostile during the course of trial. Furthermore, the complainant who was the material witness also turned hostile. Notwithstanding the applicants acquittal, the conduct of the applicant shows tendency to commit crime without fear of laws or respect of law and such type of attitude renders him unsuitable for appointment in a law enforcing agency and in a disciplined force like Delhi Police. The case of the applicant was duly considered by the Screening Committee consisting of Senior Officers of impeccable integrity and reputation, but it did not recommend the case of the applicant whereupon the applicant was given a show cause notice and was also given a personal hearing. Admittedly, the applicant has faced trial for committing robbery. Even after his acquittal, it is open to the respondents to verify the antecedents and character of the candidate seeking appointment in police force and the respondents have established in-house mechanism for this purpose whereby each case is considered on its own facts and merits. Therefore, no parity can be sought in such cases. There are cases where persons have been given appointments, who have been acquitted in criminal case on their own facts. On the other hand, there are cases where such appointments have been denied having regard to the facts of the individual cases. The reason being that each and every case is a separate case and each case is decided by the Screening Committee considering the facts and circumstances of that case. The fact remains that in the present case a perusal of the available records shows, in the opinion of the Screening Committee with which the respondents agreed, that the applicant has a tendency to commit crime without fear of law or respect of law and such type of attitude renders him unsuitable for appointment in a law enforcing agency and in a disciplined force like Delhi Police.
5. At the hearing, the learned counsel for the applicant strongly urged that the impugned order is bad for the reason that the grounds taken by the applicant in his reply to the show cause notice were not given due consideration. The order is also bad for being a non-speaking order. Undue emphasis has been placed on the evidence of the Investigating Officer who had to support the prosecution story otherwise he would have to risk his job. The learned counsel for the applicant has placed strong reliance on the evidence of complainant Shri Shamsher Singh which has been dealt with in para 12 of the judgment of the Additional Session Judge, Sonipat dated 15.7.2006, a copy of which is at Annexure A/7. Accordingly, it has been contended that complainant has stated that the persons committed the robbery were not armed with any weapon and they have taken away the money lying in the bag from inside the room of the petrol pump. The complainant has further stated that accused persons, present in the court, had not committed robbery nor they had snatched anything from the petrol pump on which he along with Joginder accused was performing duties. The learned counsel for the applicant thus contended that if the applicant has not committed the alleged robbery, the presumption of innocence in his favour gets fortified by the judicial verdict of acquittal. The learned counsel for the applicant relied upon the case of Awadesh Kumar Sharma vs. Union of India, 2000 LAB. I.C. 1885 (Allahabad High Court) wherein the petitioner involved in a criminal case under Section 307, penal code at the time of his selection to the post advertised was acquitted of the charge. The High Court held that it has to be deemed in law that in fact he was never involved in any criminal case. Judgment of Court of law acquitting him would operate retrospectively and thus candidate entitled to be allowed to join duty. The learned counsel for the applicant referred to the cases of Pramod Kumar vs. G.N.C.T. of Delhi and others in OA No.2436/2009 decided on 8.3.2010, Surender Singh Rathi vs. Commissioner of Police and another in OA 1845/2010 decided on 13.12.2010 and Kamal Kishor vs. GNCT of Delhi and Anr. OA 528 of 2010 decided on 13.12.2010, wherein the applicants have been given appointments after their acquittal in the criminal cases respectively lodged against them. To the same effect is the case of Govt. of NCT of Delhi and Anr. vs. Jai Prakash in Writ Petition No.3566/2010 decided on 24.5.2010 by the Delhi High Court on which reliance has also been placed by the applicants counsel.
6. The learned counsel for the respondents referred to the disclosure statement of the accused Jogender which has been dealth with in para 16 of the judgement of the Additional Session Judge, Sonipat, wherein he has stated that the accused Panjak, the applicant herein, is stated to have made disclosure statement, Ex. PG to the effect that he had kept concealed a knife, Rs.5000/- and one bag in his house situated in West Ram Nagar, Sonipat and offered to get the same recovered. The learned counsel for the respondents submitted that acquittal of the applicant is immaterial, as his candidature has been cancelled not because of his involvement simplicitor in the criminal case but on the basis of his past reputation wherefrom the tendency of commit crime without fear of law or respect of law and such type of attitude renders him unsuitable for appointment in a law enforcing agency and in a disciplined force like Delhi Police. The learned counsel for the respondents strongly urged that what is to be seen in such case is the very basis on which the respondents action is based. Referring to the case of Delhi Administration vs. Sushil Kumar, 1996 (11) SCC 605, the learned counsel for the respondents strongly urged that what is relevant in such cases is the conduct and character of the candidate to be appointed in service and the fact that one is discharged/acquitted from the criminal offence has nothing to do with this question. The recovery made from the applicant in this case has not been explained by the applicant. The same has been confiscated to the State. The learned counsel for the respondents referred to para 11 of the counter reply wherein the manner in which the applicants case has been dealt with is indicated and the same is perfectly in order and not open to any challenge in law. The respondents counsel also submitted the case file in which the applicants case has been processed for our perusal.
7. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully scanned the records, including the case file in which the applicants case has been processed.
8. The controversy involved in the present case is confined to a narrow compass. The question in issue is whether the applicant is entitled for appointment to the post applied for having been qualified for it in all the tests upon his acquittal in a criminal case or there is something more than that which is required to be looked into before such an appointment can be made. The case needs to be distinguished from the cases of concealment as the applicant has voluntarily disclosed his involvement in criminal case in his application as well as in attestation form. A perusal of the case law on the subject would reveal that there are cases on either side where appointments have been made to the persons who have been acquitted in the criminal case on the one hand and where such appointments have been denied in spite of acquittal in criminal case faced by the applicants. What is the distinguishing feature in the two categories of cases? Whether acquittal in criminal case is good enough for the purpose of appointment? If a person is denied appointment merely for the reason of his involvement in a criminal case, such a denial would not be sustainable in law, especially when the person concerned stand acquitted in that case. What is relevant in such a case is the essence of verification of the character and antecedents of the person seeking appointment. It is one of the important criteria to test whether selected candidate is suitable to the post in the State service or not. It may be pertinent to note in this regard that the person concerned may otherwise be fit for appointment after having qualified written and physical tests, interview and selected provisionally. But such a selection is not absolute. The same is subject to verification of character and antecedents. If upon such verification, it is found that the candidates character and antecedents are such which renders him unsuitable for induction in the service of the State, his candidature is liable to be rejected in spite of having been selected provisionally after due process. In Sushil Kumars case (supra), the Tribunal has held that since Sushil Kumar has been discharged/acquitted from the offence punishable, he could not be denied the right of appointment to the post in the State. In appeal thereagainst, the question before the Honble Supreme Court was whether the view taken by the Tribunal was correct in law. Answering this question in negative, the Honble Supreme Court held that :
2. This appeal by special leave arises from the order of the central Administrative tribunal, New Delhi made on 6/9/1995 in OA No. 1756 of 19 The admitted position is that the respondent appeared for recruitment a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. " 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. Aggrieved by proceedings dated 18/12/1990 culminating in cancellation of his provisional selection, he filed OA in the central Administrative tribunal. The tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 Indian Penal Code, under Section 324 read with Section 34 Indian Penal Code and under Section 324 Indian Penal Code, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. 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.
9. Thus nature of offence in which the applicant is involved and the manner of his acquittal are relevant considerations and mere factum of acquittal by itself is not decisive in the matter. Reference in this regard may be made to the case of Government of NCT of Delhi and others vs. Deepak Kumar and others (W.P. (C) No.6042-43/2005 decided on 20.11.2005) wherein the Delhi High Court inter alia held :
the mere fact that an applicant seeking appointment in Delhi Police who was involved in a criminal case has been acquitted, would not be enough to secure him a posting with Delhi Police. It is open for 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 has to be properly examined. Following the judgment of Honble Delhi High Court in case aforesaid, in OA No.2429/2006 and other connected OAs in the matter of Sanjeev Kumar & Others v Government of NCT of Delhi & Others, decided on 24.4.2008, we held thus:
11. In wake of judgment of Delhi High Court, which is an inter parties decision and, therefore, binding upon the parties and SLP against which has since been dismissed, in our considered view, it is not open for the applicants to contend that an acquittal is an acquittal and no distinction can be made on that behalf whether being honourable acquittal or acquittal on benefit of doubt. This was indeed the view of this Tribunal, which has been specifically overruled by the Division Bench of Delhi High Court. Honble Delhi High Court, as mentioned above, noted the findings of this Tribunal that there could be no different yardstick for those persons who have been acquitted honourably to be treated differently from those persons who were also involved in criminal cases but were acquitted on benefit of doubt. The Honble Bench observed that the applicants were involved in different nature of criminal cases and all of them were acquitted due to the fact that the witnesses turned hostile and did not support the prosecution case and were, therefore, acquitted on benefit of doubt. A distinction has, thus, been drawn between an honourable acquittal and acquittal on benefit of doubt
10. The above aspect has also been very aptly dealt with by the coordinate Bench of this Tribunal in Anoop Kumar vs. Govt. of NCT of Delhi and Anr. in OA No.178 of 2008 decided on 23.7.2008 Justice V.K. Bali, Chairman, speaking for the Bench, observed that :
7. While considering the manner of acquittal, it may not be enough to simply observe that the witnesses had turned hostile, and by simply so observing, to deny appointment to a citizen. The judgment of the criminal court has to be taken into consideration with all the aspects leading to acquittal. The manner of acquittal, and in particular, as to whether the same is a clean acquittal or acquittal on benefit of doubt, has also to be taken into consideration. To elaborate, insofar as, the nature of offence is concerned, we may mention that some times the facts disclosed in the FIR supported with other material, even if taken to be gospel truth, may not constitute an offence under which an FIR is registered, challan presented and the accused tried. In a case of acquittal, where witnesses have not deposed in tune with the statements made by them before the police, the finding of acquittal is recorded without going into any other aspect of the case. If thus in a given case, the offence with which an accused is charged and tried, may not at all be gone into, his plea that the offence with which he was charged was not made out at all even from reading of the FIR and attending circumstances, has to be gone into at some stage. Making a mention of the offence with which a person might have been charged and put to trial is no way to determine the nature of offence. We are of the considered view that nature of offence is not exclusively determinable only on the label or sections on which an FIR may be registered. With a view to find gravity of offence for which a person may have faced criminal trial, the narration of facts in the FIR, supporting material and the medical evidence is required to be taken into consideration. Insofar as, the manner of acquittal is concerned, once again, the judgment of the criminal court has to be carefully gone into. In a given case, the witnesses may not have deposed in tune with their statements made before the police, but they may not have been declared hostile and cross-examined by public prosecutor. Such a situation arises when the prosecution witnesses may support the prosecution version to some extent and the public prosecutor may think that to the extent they have supported prosecution version, the finding of conviction can yet be recorded. He may thus not declare the witnesses to be hostile nor thus cross-examine them. In ultimate analysis, as to whether the accused has been acquitted by giving benefit of doubt or it is a case of clean acquittal, has also to be seen We may reiterate that the Honble Delhi High Court in Deepak Kumar & Others (supra) held that the nature of offence and manner of acquittal has to be gone into properly. Further, the concerned authorities have to find out if the offence alleged against a person involves moral turpitude and that the same is heinous, grave and committed with such evil propensities that he may not deserve to be appointed. Simply observing the provisions of IPC with which a person may be charged and tried, does not appear to be sufficient compliance of the directions issued by the Honble High Court. The observations made above would be more pertinent if the offence with which a person is charged and tried under the sections that might have been mentioned in the FIR may not appear to be so serious. To illustrate, whereas, it may be permissible to hold the nature of offence to be serious when a person is tried under sections 302, 376 and such other offences, the same may not be true when a person is not charged with such serious offences as mentioned above.
11. The nature and gravity of the offence and the manner of acquittal are important factors for consideration in such cases. If the nature and gravity is not grave enough to disentitle the person from public employment, the same may not be denied even in cases of conviction. This aspect has been dealt very aptly by the Division Bench of Delhi High Court in Dinesh Kumar vs. Govt. of NCT of Delhi in Writ Petition (Civil) No.5510/2010 decided on 11.11.2011. It would be relevant to refer in this regard the observations made by the Honble Delhi High Court as follows:-
16. In the decision reported as 171 (2010) DLT 705 Government of NCT of Delhi and Anr. vs. Robin Singh, a co-ordinate Bench of this Court of which one of us namely Pradeep Nandrajog, J. was a member of, had visited the law on the subject and answered the question: Whether a conviction by Competent Court of Law would justify non-grant of public appointment. Needless to state, the corollary to the question answered would be whether a person charged of having committed a penal offence, but acquitted after trial or due to a compromise would be disentitled for public employment.
17. The decision notes that in jurisprudences abroad, with respect to public employment relatable to police service, apart from other attributes, emotional maturity and ability to remain calm in emotionally charged situations, apart from good moral character and integrity, are determined with reference to scientifically conducted screening processes, it was noted that in India the archaic system of police verification is still being adopted. It was noted that not to induct a person with a criminal background in public service is based on the premise that considerations of public policy, concern for public interest, regard for public good, would justify such a prohibition. Thus, the primary consideration was: Whether public interest/public good would be jeopardized if a person with a criminal background is inducted in public service.
18. Looking at the penal laws it was noted that the penal offences could be broadly categorized into two categories i.e.Felony and misdemeanour. It was noted that a further look at the penal provisions supporting penalties would show that felonies are treated graver vis-?-vis misdemeanours. It was further noted that by classifying offences as cognizable and non-cognizable, higher or lower degrees of criminality of offences could be discerned. Further, while classifying offences as bailable and non-bailable, further degree of criminality could be discerned. It was noted that the civil concept of an offence being of a depraving character is to look at whether the act complained of suffers from the tag of a moral turpitude or not. It was noted that pertaining to delinquency and rebabilitation of convicts, at All India Seminar on Correctional Service held in New Delhi in March 1969 it was emphasized that by depriving people the chance to serve under public employment may be counter-productive as these people may be made to live outside the society and therefore may attract retribution from them. It was noted that at the conference it was highlighted that grave and serious penal offences involving moral turpitude alone should disentitle a convict to public employment. In Para 32 it was noted that Government of Haryana had issued an Office Memorandum dated 2.2.1973 listing offences in respect whereof public employment should be declined. Para 32 may be reproduced as it is illustrative. It reads as under:-
32. It is unfortunate that in India, the Government does not come out with white papers of the deliberations at various seminars, but we find a reference made t the All India Seminar on Correctional Service held at New Delhi in March 1969, to consider and lay guidelines pertaining to the problem of rehabilitation of ex-convicts, with emphasis on the need for their employment under the government. Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude. The said OM lists the under-noted penal offences as grave, serious and involving moral turpitude, disentitling the convict to public employment; the offences are:- 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, 262, 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 o 476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code.?
19. The conclusion arrived at was as under:-
34. That apart, as generically understood, offences involving moral turpitude can be classified with reference to the act being one which shocks the moral conscience of the society in general and thus can be determined with reference to the motive of the offence, i.e. whether the motive which lead to the act was a base one or alternatively whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society...
37. In a growing democracy, where the systems are failing and the weak and the downtrodden are hardly given the opportunity to sharpen their intellect thereby diminishing the ability of their consciousness to act as a mirror to their acts and actions, it is high time that the executive brings into place a policy where summary/ordinary conviction should not be treated as a conviction for entry or retention in government service.
12. The question thus boils down to then whether the person is denied the appointment in State service on account of his involvement in a criminal case in which he has been acquitted or on account of his antecedents and character that renders him undesirable for induction in State service? The word antecedent literally refers to persons ancestors and social background and character on the other hand refers to mental and moral qualities distinctive to an individual. It includes within its ambit the strength and originality in a persons nature as well as persons good reputation. The person though not having been convicted yet may not enjoy good reputation and good past track record. The ambit and scope of the expression antecedents and character is thus having wider import then that of actual result in a criminal case.
13. Having regard to the facts and circumstances of the present case, the judgment of the Additional Session Judge, the nature of gravity of the offence and the manner of acquittal, whereupon the Screening Committee after due consideration and deliberation concluded that the applicant herein is unsuitable for appointment in Delhi Police like enforcing agency and discipline force in view of the tendency he has exhibited in his conduct, cannot be found faulted with.
13. Having bestowed our careful consideration to the facts and circumstances of the present case as well as the respective submissions of both the parties, we are of the considered view that the applicant has not been able to make out a case for grant of the relief prayed for in the present Application. The Application is accordingly dismissed. No order as to cost.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
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