Central Administrative Tribunal - Delhi
Rakesh Kumar Shekhawat vs Delhi Metro Rail Corporation Through ... on 22 March, 2010
Central Administrative Tribunal Principal Bench OA No.2887/2009 New Delhi this the 22nd day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Rakesh Kumar Shekhawat, S/o Shri Virendra Singh Shekhawat, S/o Sh. Virendra Singh Shekhawat, R/o Village Jaipahari, Via Bagar, Distt. Jhunjhunu, Rajasthan. -Applicant (By Advocate Shri Yogesh Sharma) -Versus- 1. Delhi Metro Rail Corporation through its General Manager, Metro Bhawan, Fire Brigade Lane, Barakhamba Road, New Delhi. 2. The Addl. General Manager (R&T), Delhi Metro Rail Corporation, Metro Bhawan, Fire Brigade Lane, Barakhamba Road, New Delhi. -Respondents (By Advocate Shri Tarun Johri with Shri Ankur Gupta) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant assails respondents order dated 3.8.2009, whereby he has been denied appointment on the post of Customer Relations Assistant (CRA) in Delhi Metro Rail Corporation (DMRC) on the ground that he has been convicted and released on probation under Section 147 of the IPC.
2. At the outset, applicant fulfilling all eligibility criteria applied through advertisement dated 4-10.10.2008 for the post. He submitted all his documents and on selection when character antecedents were verified, appointment has been denied to applicant vide impugned order dated 3.8.2009.
3. The aforesaid has been assailed by the applicant on the ground that Section 12 of the Probation of Offenders Act removes any disqualification attached to conviction on release on probation. As such cancelling his appointment is bad in law in the light of the decision of the Apex Court in Union of India v. Bakshi Ram, (1990) 2 SCC 246.
4. Learned counsel of applicant would also contend that before appointment has been denied to the applicant, no reasonable opportunity to show cause has been afforded to him and for this the decision of the High Court in Beg Singh v. General Manager, Vijaya Bank, 2005 (2) SLR (Raj.) 164 has been relied upon.
5. Learned counsel would also contend that applicant at a tender age of 19 while studying in college was amongst the students, who have been convicted in Lok Adalat under Section 147 of IPC as an unlawful assembly, there is a presumption of act on the person constituting such assembly for a petty offence, applicant has been convicted but later on has not been convicted on moral turpitude, as ruled by the Tribunal in Shamsher Singh v. Union of India, reported in 163, SCL Digest 1994 page 249. Further reliance has been placed as to the disqualification attached in appointment on conviction on a decision of the Apex Court in Punjab Water Supply Sewerage Board and another v. Ram Sajivan and another, (2007) 9 SCC 86. Learned counsel states that to deny appointment at the threshold of the career on an event taken place during student life, nowhere applicant has been proved to be unfit for service; otherwise his character antecedents are clear.
6. On the other hand, learned counsel of respondents vehemently opposed the contentions and by relying upon a decision of the Apex Court in Divisional Personnel Officer, Southern Railway and Anr. etc. v. T.R. Challappan etc., (1975) 2 SLR 587 stated that even on release on probation the stigma of conviction is not obliterated. Learned counsel further relied upon a decision of the Apex Court in Delhi Administration through its Chief Secretary and others v. Sushil Kumar, (1996) 11 SCC 605 to contend that it is the prerogative of the respondents to assess the suitability of the applicant and his desirability for appointment. As the applicant has a criminal background, denial of appointment cannot be assailed successfully.
7. Lastly the decision of the Tribunal in Ajit Kumar v. Govt. of NCTD, decided on 11.01.2010 (Manu/CA/0004/ 2010) has been relied upon to contend that in an identical situation appointment has been denied.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. No doubt, prerogative to appoint a person is of the respondents, yet when employment in this country has not partaken the character of a Fundamental Right yet right to be considered fairly and equitably for appointment is a right and denial thereof in violative of Articles 14 and 16 of the Constitution and on arbitrary basis cannot be countenanced in law.
10. Conviction in an offence may be an impediment for appointment but keeping in light the gravity of the offence once the Court of competent criminal jurisdiction invokes Sections 4 and 12 of the Probation of Offenders Act, this disqualification attached to the conviction is obliterated. A Three Judge Bench of the Apex Court in Shankar Dass v. Union of India and another, (1985) 2 SCC 358 had an occasion to go into this aspect where the following observations have been made:
4. Section 12 of the Probation of Offenders Act must be placed out of way first. It provides that notwithstanding anything contained in any other law a person found guilty of an offence and dealt with under the provisions of S. 3 or 4 "shall not suffer disqualification" attaching to a conviction for an offence under such law. The order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of S. 12. There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications. For example. Chapter III of the Representation of the People Act, 1951. entitled "Disqualifications for membership of Parliament and State Legislatures" and Chapter IV entitled "Disqualifications for Voting" contain provisions which disqualify persons convicted of certain charges from being members of legislatures or from voting at elections to legislatures. That is the sense in which the word "disqualification" is used in S. 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned single Judge of the Delhi High Court..
11. The Apex Court in Bakshi Ram (supra) while interpreting Section 12 observed as under:
11. Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The Section was not intended to exhonerate the person from departmental punishment. The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of S. 12. On this aspect, the High Courts speak with one voice. The Madras High Court in R. Kumaraswami Aiyer v. The Commissioner, Municipal Council, Tiruvannamalair, 1957 Cri LJ 255 and Embru (P) v. Chairman Madras Port Trust, (1963) 1, Lab LJ 49 (Mad) the Andlira Pradesh High Court in A. Satyanarayana Murthy v. Zonal Manager, L.I.C., AIR 1969 Andh Pra 371, the Madhya Pradesh High Court in Prem Kumar v. Union of India, 1971 Lab IC 823; The Punjab & Haryana High Court in Om Prakash v. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala, (1971) 1 Serv LR 648 : (AIR 1973 Punj & Har 1 ) (FB). The Delhi High Court in Director of Postal Services v. Daya Nand, 1972 Serv LR 325: 1972 Lab IC 736 have expressed the same view. This view of the High Courts in the aforesaid cases has been approved by this Court in T. R. Challappan's case, (1975) 2 Serv LR 587 (AIR 1975 SC 2216).
12. In Trikha Ram v. V. K. Seth, 1987 Supp SCC 39: (AIR 1988 SC 285) this Court after referring to S. 12 has altered the punishment of dismissal of the petitioner therein into "removal from service", so that it may help him to secure future employment in other establishment.
13. Section 12 is thus clear and it only directs that the offender "shall not suffer disqualification, if any, attaching to a conviction of an offence under such law". Such law in the context is other law providng for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of S. 12 stands removed. That in effect is the scope and effect of S. 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. Apparently, such a view has no support by the terms of S. 12 and the order of the High Court cannot, therefore, be sustained.
12. In a recent decision in Ram Sajivan (supra) the factum of the provisions of Section 12 of the Probation of Offenders Act have been gone into, where the following observations have been made:
In fact in Harichand v Director of School Education [(1998) 2 SCC 383], Aitha Chander Rao (supra) was held to be not a binding precedent on the point holding ;
6. The order in the case of the said Rao was delivered on an appeal against conviction. The conviction was sustained but, having regard to the peculiar circumstances of the case, the said Rao was released on probation and it was added that this may not affect his service career in view of Section 12 of the Probation of Offenders Act. We do not find in the order in Rao case1 any discussion of the provision of Section 12 or of the meaning of the words disqualification, if any attaching to a conviction of an offence under such law therein. The order cannot, therefore, be regarded as a binding precedent upon the point.
7. In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words disqualification, if any, attaching to a conviction of an offence under such law therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.
13. The decision cited in case of Sushil Kumar by the learned counsel of respondents is in a peculiar background of a disciplined force like Delhi Police, where the candidature even on acquittal when cancelled, it has been left to the prerogative of the petitioners therein to go into the suitability of the candidate. Another decision of the coordinate Bench in Ajit Kumar (supra) though considered Sections 4 and 12 of the provisions of Probation of Offenders Act but in the light of the decision of the Apex Court in Sushil Kumar (supra) dismissed the case, which cannot be applied in the instant case being distinguishable. However, in the instant case the decision in Bakshi Ram (supra) where disqualification as to conviction is obliterated and has been held not to suffer the concerned from disqualification of appointment.
14. This is on the analogy that the disqualification of conviction on grant of benefit under Section 12 the disqualification would not be valid for seeking election to any authority or body. We have seen in the past also that politicians on conviction when released on probation have been allowed to contest election. Why a distinct attitude be adopted in case of appointment? No doubt, character of a person in the past is relevant for his entry in Government service, yet it is not the Angels which are to gain entry. However, in the order passed by the respondents Bakshi Rams case (supra) has not been considered and rather the case of Shanker Dass (supra) of higher coram being binding and of precedent value under Article 141 of the Constitution of India when clearly ruled that for appointment disqualification attached to conviction would not be applied. The applicant at a tender age on an offence, which does not involve moral turpitude being a part of unlawful assembly when in Lok Adalat has been convicted, the aforesaid should not be viewed at the threshold of his career as an impediment to his entry in Government service. We do not find any other adverse material which could treat him having a criminal background. An isolated incident in the rage at a tender age would not disqualify him after his release on probation under Section 12 of the Probation of Offenders Act for appointment.
15. We have found that the respondents have denied appointment to the applicant on the ground that this will send a wrong signal across in the organization which lays such a high premium on ethics, discipline and integrity. We are of the considered view that once moral turpitude is not involved how this observation could be made. The discretion vested in administrative authorities in the matter of appointment may be of their own but has to be exercised judiciously.
16. Another infirmity which has cropped up is denial of reasonable opportunity to the applicant before his appointment has been cancelled. In the matter of appointment and after selection cancellation of candidature without following the due process of law in violation of principles of natural justice is also held to be illegal on civil consequences by the Apex Court in Prakash Sinha v. State of Bihar, 2009 (9) SCALE 529 and in case of cancellation of a candidature by the Apex Court in Jaswant Singh v. State of M.P., (2002) SCC (L&S) 1128.
17. Resultantly, for the foregoing reasons, we do not approve in law the reasons recorded by the respondents in the impugned order and denial of appointment to the applicant also cannot be countenanced in law. The OA is accordingly allowed. Impugned orders are set aside. Respondents are directed to offer appointment to the applicant to the post of CRA, however, with a prospective effect, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
San.