Central Administrative Tribunal - Delhi
Shri Vipin Rathi vs The Commissioner Of Police on 27 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.48/2013 MA No.1145/2013 Order reserved on: 06.05.2013 Order pronounced on: 27.05.2013 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri Vipin Rathi Roll No.705685 S/o Shri Sharvan Kumar R/o Village & Post Amir Nagar District Muzaffar Nagar, U.P.-251306. .Applicant (By Advocate: Shri S.C. Sagar). Versus 1. The Commissioner of Police, Through Dy. Commissioner of Police, Recruitment Cell, PHQ, New Delhi. 2. Government of NCT of Delhi Players Building, Delhi Secretariat, New Delhi-110 002. (Through its Chief Secretary) ..Respondents (By Advocate: Mrs. P.K. Gupta). O R D E R
Honble Sh. G. George Paracken:
Applicant in this Original Application was a candidate for the post of Constable (Executive) Male in Delhi Police in the recruitment held in the year 2011 . In this Original Application, he has challenged the impugned Annexure-B notice dated 22.11.2012 calling upon him why his candidature for the said post should not be cancelled. He has also challenged the impugned Annexure-A order dated 11.12.2012 cancelling his candidature. The relevant part of the said order reads as under:-
In response to Show Cause Notice dated 22.11.2012, you had submitted your reply dated 07.12.2012 stating therein the plea(s) that the above said case was registered against you as the complainant had personal grudges and taken personal vendetta during the Panchayat Election (Gram Pardhan) and this is due to one of the jealousy in framing up the case due to pursue of your higher qualification in BCA only being student from your village. You were neither arrested by the Police nor taken into judicial custody as you were released in courts bail. You had also cited the judgment dated 17.03.2011 passed by the Honble Supreme Court of India in Civil Appeal No. 1430/2007 and pleaded that your case is much better than the aforesaid case and requested that the Show Cause Notice issued to you should be withdrawn.
The plea(s) put forth by you in the reply has been considered and found not convincing because of the reasons that you were found involved in criminal case involving moral turpitude with the intention to outrage the modesty of the wife of the complaint under the influence of liquor with your associates and also attacked the complaint thereby causing injuries on his head. During trial of the case the main PWs did not support the case of prosecution. Your act is calculated for the post of Constable (exe.) Male in Delhi Police is hereby cancelled with immediate effect.
2. According to the said show cause notice, the Applicant was provisionally selected subject to verification of his character & antecedents, medical fitness and final checking of documents etc. However, the report received from DM/Muzaffar Nagar (UP) revealed that he was involved in a criminal case vide FIR No. 179/2010 u/s 323/324/352/504/506 IPC, PS/Titavi (UP) though he was acquitted by the Court vide its order dated 25.08.2010. Scrutiny of his application form & the attestation from filled up by him on 08.11.2011 and 08.06.2012 respectively also revealed that he had disclosed about his involvement in the said criminal case only in the attestation from. Accordingly, his case was examined by the Screening Committee of PHQ constituted by the Commissioner of Police, Delhi to adjudge the nature of his involvement in the said case, gravity of the offence, judgment of the Court, grounds of acquittal. The Committee found that the said case was registered on the complaint of one Shri Niyaz and his allegation was that on 01.03.2010 at about 2:00 p.m. while he along with his wife and one Sajid (servant of landlord) were doing the peeling work of sugarcane in the field of Samar Pal, four persons, namely, Deepak, Parveen, Balraj and Vipin (Applicant herein) reached the field under the influence of liquor and caught hold of his wife and started filthy activities with her. When he tried to stop them, the Applicant attacked him with balkati due to which he sustained injuries on his head. The other accused persons had also beaten him mercilessly. On raising alarm one Bhura, his brother and one Idreesh reached the spot. Balraj while running away from the spot fired at him from desi Katta but he narrowly escaped. They have also threatened him with dire consequences. Later on, the trial court framed charge against them u/s 323/34, 324/34, 352, 354, 504, 506 IPC. During the course of trial, four main witnesses were examined to prove the case of prosecution. Later on, on the request of complainant, the remaining witnesses were dropped. The court, after examining the relevant documents, evidence on report and request of defence counsel, dropped all the above charges except the charge u/s 294 IPC. Four witnesses called to support the prosecution story in support of charge u/s 294 IPC but they also turned hostile. Hence, the Court, vide its order dated 25.08.2010, acquitted the Applicant and other accused persons, on benefit of doubt. The Screening Committee, however, observed that the Applicant was involved in the aforesaid criminal case of moral turpitude with the intention to outrage the modesty of the wife of the complaint under the influence of liquor with his associates and also attacked the complaint thereby causing injuries on his head. Though the main PWs did not support the case of the prosecution during trial of the case his was such that it makes him unfit for the Police Force.
3. Applicant in the Annexure-C reply dated 07.12.2012 submitted that when he filled up the form for the post of Constable (Executive) Male in Delhi Police during the Recruitment held in the year of 2011, he unintentionally omitted to mention the facts about his involvement in the aforesaid case as he had already been acquitted. However, according to him, when he filled up the Attestation Form he has given the full details about it. Further, he has submitted that the aforesaid case was registered against him and his cousin brothers, as the complainant had personal grudge against them and he was taking and take personal vendetta on the elders of family members who were actively supporting their candidate contesting against the other party (Muslim community). They have, therefore, falsely framed the aforesaid charge against him purposely to deprive him from getting any job in future. However, he appeared along with his cousin brother on the receipt of court summon but he has never been formally arrested by police. On the other hand, he was released by the court on bail, on the same day. Further, according to him, there were no other incident which would indicate any criminal activity on his part or on the part of his cousin brothers. He has, therefore, submitted that his disclosure in the Attestation Form was voluntary and he was acquitted on 25.08.2010 and the result of recruitment was published only in the year 2011. The Applicant has also stated even he was required to furnish the requisite information in the Attestation Form at the time of its filling, still his case would deserve reconsideration in the light of his acquittal in the criminal case which lends support to his submissions that his villagers had involved him in a criminal case to deprive him or oust him from job. As he had passed out his 12th class and was pursing his final year of BCA (Bachelor of Computer Application) from Shri Ram College, Muzaffar Nagar, U.P., he had applied for the post of Constable on the basis of his 12th class qualification. He has also stated that the complainant was jealous about him because he was pursuing his higher qualification, i.e., BCA and he was the only student from his village doing higher studies.
4. In this regard the learned counsel for the applicant Shri S.C. Sagar has relied upon the following judgments:-
(i) Apex Courts judgment in the case of Commissioner of Police and other Vs. Sandeep Kumar Civil Appeal No.1430/2007 decided on 17.3.2011 wherein it has been held as under:-
It is alleged that the false statement made by the applicant because the applicant and some his family members were in involved in criminal case FIR No. 362 U/s 325/34 IPC and the compromise was arrived between the parties on 18.01.1998 and the applicant and his family members were acquitted on 18.01.1998. In response to the advertisement issued in January, 1999 for filling up certain post of Head Constable (Ministerial), the applicant applied on 24.02.1999 but did not mention in his application form that he was involved in the aforesaid criminal case.
XXX XXX XXX When the incident happened the Applicant must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as old 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. The modern approach should be to reform a person instead of branding him as a criminal all his life. It is true that in the application form the respondent did not mention that he was involved in a criminal case under section 325/34 IPC. Probably he did not mention this out of fear that if he did not so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
(ii) Writ Petition No. 4051/2012 - Commissioner of Police Vs. Anil Kumar decided by the Honble High Court of Delhi on 13.07.2012. In this case, this Tribunal had earlier set aside the order of cancellation of the candidature of the respondent Anil Kumar for the post of Constable (Exe.) with Delhi Police. The facts of the case were that that for the recruitment carried out in the year 2009 for the post of Constable (Exe.). Applicant mentioned in both the application form as well as the attestation form about his alleged involvement in the criminal case arising out of the FIR No.190/2009 under Section 452/354/506 IPC registered at PS-Kosli, District Rewari, Haryana. The Applicant was provisionally selected subject to satisfactory verification of his character and antecedents, medical fitness etc. Subsequently, he was acquitted by the trial court in the said criminal case vide judgment dated 17.05.2010. Accordingly to the said judgment, insofar as the offence punishable under Section 354 IPC was concerned, it had already been compounded and therefore the trial proceeded only in respect of the other allegations under Section 452/506 IPC. But none of the Prosecution Witnesses or the alleged victim supported the prosecution version. The trial court, therefore, came to the conclusion that there was nothing on record to connect the accused with the offence for which he had been charge-sheeted and accordingly he was acquitted. Despite the above facts, a notice was issued to him on 03.03.2011 by the Delhi Police calling upon him to show cause as to why his candidature should not be cancelled in view of the said criminal case which had been registered against him and in view of the fact that the Screening Committee had not found him suitable for the said post. The High Court, however, observed that it is well known that in view of Section 320(8) Cr.PC, compounding of an offence would have the effect of an acquittal. Therefore, it can be inferred that the respondent Anil Kumar had been acquitted in respect of the offences which were allegedly committed by him. The High Court further held that in the above facts and circumstances, there was no reason to interfere with the order of the Tribunal. The relevant part of the said order is as under:-
7. We do not see any reason to interfere with the impugned order passed by the Tribunal. First of all, the respondent Anil Kumar had clearly disclosed the factum of registration of the criminal case in both his application form as well as in the attestation form. Secondly, the said respondent had also been acquitted by the trial court insofar as the offences under Section 452/506 IPC are concerned and as regards the offence under Section 354 IPC the same had already been compounded with the permission of the court in terms of the provisions of Section 320 CrPC. The effect of all this would be that the respondent stood acquitted of all charges against him.
8. Once the respondent Anil Kumar has been acquitted by the trial court, it was not open to the petitioner to rely on the very same allegations and conclude that his candidature be cancelled for his involvement in the criminal case. It was open to the petitioner to have made other inquiries with regard to antecedents and character of the respondent Anil Kumar and if any information with regard to his unsuitability came to the knowledge of the petitioner then his candidature could have been cancelled. But that is not the case here. The petitioner had solely WP relied on the very same allegations which found mention in the FIR which had culminated in the acquittal of the respondent Anil Kumar. That is not permissible.
9. The order of the Tribunal be complied with within four weeks from today.
10. The writ petition is dismissed with no order as to costs.
(iii) Pawan Kumar Vs. State of Haryana and Another AIR 1996 SC 3300. It was a case where the Appellant was tried and fined Rs.20/- on entering the plea of guilt. The Apex Court allowed the appeal of the Appellant saying that payment of fine would not amount to conviction. The relevant part of the said judgment is as under:-
11. The totality of the situation thus is that since the appellant was tried summarily under Section 260 and has been sentenced to pay a fine of Rs. 20 on his entering the plea of guilt, he could not have filed an appeal against the same. Procedural barbs thus coil the appellant, causing repercussions not only to his service career but in being branded for ever as "unfit" for Government service. This is the rancour and the sting which hurts the appellant most, not the payment of fine of the paltry sum of rupees twenty, but the consequences which have visited him, due to the act/s covered under Section 294, I.P.C. leading to the conviction per se being treated as involving moral turpitude.
12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on February 2, 1973 (Annexure E in the Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not, however, be taken in Government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294, I.P.C. is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26th March, 1975 explained the policy decision of February 2, 1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:
".....The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not:
(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(2) whether the motive which led to the act was a base one.
(3) 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.
Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude."
Section 294, I.P.C. still remains out of the list. Thus the conviction of the appellant under Section 294, I.P.C. on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision above-quoted.
13. We had required of the respondents to produce before us the copy of the judgment whereby the appellant was convicted for the offence. As was expected only a copy of the institution/summary register maintained by the Court of the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4-6-1980 was imposed a fine of Rs. 20/-. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered. It is of no significance that the appellant treats himself a convict as he had pleaded guilty. Ex facie it only shows that the entry concerns F.I.R. No. 231/3-6-1980 under Section 294, I.P.C. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the I.P.C. or any other particular? Mere payment of fine of Rs. 20/- does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three Courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294, I.P.C. per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294, I.P.C. on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.
14. Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary Courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are, therefore, necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs. 2,000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in Government service. This can brook no delay, whatsoever.
15. As a result of the above discussion, we allow this appeal, set aside the judgment and decree of the High Court as also that of the two Courts below and decree the suit of the appellant as prayed for, with costs.
(iv) OA No. 331 of 2011 Vineet Kumar Vs. U.O.I. & Others decided on 12.09.2012. This was a case where this Tribunal allowed the OA filed by the Applicant following the judgment in Sandeep Kumars case (supra). The relevant part of the said order reads as under:-
15. From the side of the applicant, reliance has been placed on the following four case laws:-
(1) Commissioner of Police and others Vs. Sandeep Kumar (2011) 4 SCC 644. Before Markandey Katju and Gyan Sudha Misra, JJ. The case in hand appears to be substantially covered by the preposition of law laid down in this case law. In the above case, in the application form itself, an information was sought as to whether the applicant has been arrested, prosecuted, kept under detention, convicted by any court of law etc. But the candidate i.e. Sandeep Kumar wrongly answered in negative , though he was involved in a case U/Ss 325/ 34 IPC. The selection was for the post of Head Constable (Ministerial). In the case before us, the selection is for APP in CBI wherein no such information was sought at the time of filing of form and he did neither conceal any information nor give any wrong information. Coming back to the case of Sandeep Kumar (Supra), after applying in February, 1999, he was qualified in all the test for selection. Then on 3.4.2001, he filled the attestation form, wherein for the first time, he disclosed that he had been involved in a criminal case with his tenant which later on has been compromised in 1998. Therefore, in August, 2001, a show cause notice was issued to him as to why his candidature may not be cancelled on account of concealment of the fact that he was involved in the above criminal case and for making a wrong submission in his application form. He submitted his reply but the authorities were not satisfied and canceled the candidature of the applicant in May 2003. Sandeep Kumar filed a petition before CAT, which was dismissed but the Honble Delhi High Court allowed it. Thereafter, an appeal was filed by the Commissioner of Police. The Honble Apex Court did not find any substance in the appeal and therefore upheld the judgment of Delhi High Court. The relevant paragraphs are as under:-
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.
9. In this connection, we may refer to the character Jean Valjean in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed:
I come now to Mr Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show and to show to all students everywhere that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land and I speak both for England and Wales they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. (Vide Morris v. Crown Office1, QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
13. For the reasons given above, this appeal has no force and it is dismissed. No costs.
As said above, the case in hand is substantially and squarely covered by the above case law.
(v). Ram Kumar Vs. State of U.P. and others reported in 2011 (3) LBESR 544. Before R.V. Raveendran and A.K. Patnaik, JJ. This case has been decided by the Honble Apex Court in August 2011 i.e. after about 4 months of the decision of the above case of Commissioner of Police (supra) which was decided in March 2011. In this judgment, the aforesaid case of Commissioner of Police (supra) was also cited and considered. From the other side, reliance was placed on the judgment of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437, in which the case under sections 323, 341, 294, 506-B read with Section 34 IPC was pending and this material was suppressed in the attestation form. The criminal case was however, withdrawn. Appointment in question was on the post of Physical Education Teacher in Kendriya Vidyalaya Sangathan. On these facts, the Honble Apex Court held in that case that he was to serve on the said post and he could not be suitable for that post because the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. Therefore, his dismissal from service was not interfered with. On the other hand, the facts of the case of Ram Kumar (supra) were that the post in question was of a constable and the applicant had submitted an affidavit dated 12.6.2006 to the recruiting authority in the proforma of verification roll. In para 4,he had stated that no criminal case was registered against him. He was selected and appointed as male constable and deputed for training. Thereafter, Police Station, Jaswant Nagar, Etawah submitted a report about pendency of criminal case under Sections 324/323/ 504 IPC. Subsequently the criminal case was disposed of on18.7.2002 and the appellant was acquitted. Along with the above report of the police station, the order of acquittal was also enclosed. The said report was however, submitted to the SSP, Ghaziabad who by order dated 8.8.2007 cancelled the order of selection on the ground that he has submitted an affidavit stating wrong facts and concealed correct facts and his selection was irregular and illegal. Aggrieved by this order, a writ petition was filed before a single judge who dismissed it on 30.8.2007, in the light of the judgment of Kendriya Vidyalaya Sangathan (supra). Then a special appeal was filed before the Division Bench which has also dismissed it on 31.8.2009. After considering all the facts and circumstances, the Honble Supreme Court observed as under:-
7. We have carefully read the Government Order dated 28.04.1958 on the subject Verification of the character and antecedents of government servants before their first appointment and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point.
8. It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
9. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
10. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.
In respect of Kendriya Vidyalaya Sangathan (supra), the Honble Apex Court observed that the facts of that case were therefore, materially different from the facts of the case of Ram Kumar (Supra). Therefore, the Honble Apex Court allowed the appeal and set aside the appeal of Learned Single Judge and Division Bench of the High Court of Allahabad and quashed the order passed by the SSP, Ghaziabad with a direction that the applicant will be taken back in service within a period of 2 months from the date of receipt of order. But he will not be entitled for any back wages for the period he has remained out of service. Thus, this case is applicable in the present case before us with full strength.
(vi) Awadhesh Kumar Sharma Vs. Union of India and others reported in (2000) 1 UPLBEC 763. Before M. Katju and Shitla Prasad Srivastava, JJ. According to the facts of this case, the petitioner applied for appointment as Mazdoor in Central Ordinance Department, Kanpur and he was finally selected for the post vide letter dated 7.1.1989.However, he did not mention about his involvement in a criminal case under Sections 147/323/352/504 IPC which was later converted into Section 307 IPC. Hence, his selection was cancelled. However, in the criminal case, he was acquitted vide judgment and order dated 7.7.1989. Thereafter, he made representation that since he has been acquitted in the criminal case, he may be permitted to join duty. But he was informed by letter dated 12.10.1990 that he can be considered as a fresh candidate as and when vacancies are released. He then filed a petition before the CAT which was dismissed and the review application was also dismissed. Then he filed writ petition. The Division Bench of our High Court opined that when the petitioner was acquitted, it has to be deemed in law that he was never involved in any criminal case. It is settled law that every statute ordinarily operates prospectively unless expressly made retrospectively whereas every judgment of a Court of law operates retrospectively unless expressly made prospectively. The only material against the petitioner was the criminal case in which he was acquitted. Therefore, the Honble High Court mandated that since he has been selected, he must now be allowed to join duty. The impugned orders dated 26.2.1997 and 24.12.99 were quashed and the mandamus was issued to appoint the petitioner within 6 weeks in accordance with law in pursuance of selection letter issued in his favour earlier. This case law also applies in the present case with full force.
(vii) Harendra Panwar, Constable Vs. State of U.P.and others reported in 2012 (2) LBESR 94 (All)- Present : Sunil Hali, J. In this case also, pursuant to the advertisement, the petitioner applied for the post of Constable for which he was selected from District Etawah and was appointed as a Constable in the Police Department on 26.11.20005. After completion of the post recruitment training the petitioner was posted as Constable in District Etawah in June 2006. On 18.8.2007, his selection was cancelled by the respondent No.2 for the reasons that he did not disclose that a case Crime No. 32 of 2005 under Sections 147, 148, 149, 307, 504 and 506 IPC at P.S. Kandhala, District- Muzaffar Nagar was against him. The Honble High Court while referring to G.O. dated 28.4.1958, providing for verification of character and antecedents of the Govt. servants as a pre-requisite for being appointed as a Govt. servant, observed that character and antecedents of the appointee shall have to be verified by having an over view of his personality in respect of his moral character and integrity. This is done in order to enable the appointing authority to draw its satisfaction as to whether a person is fit to be appointed to the said post. The Honble Court found that in the G.O. no such obligation is caste on the appointee to disclose any such information regarding his involvement in a criminal case. But in column 11 of the form, it was required to inform as to whether the petitioner has been convicted in any case or not. The Honble High Court then observed that in the case before it , the petitioner was not convicted in any case. Therefore, withholding of an information which was not required to be given by the petitioner could not have become a ground for cancellation of his appointment. The Honble High Court specifically observed that it is trite in law that mere involvement in a criminal case is not an impediment for appointment to the post of a constable. Moreover, after a person has already been acquitted from the criminal charge, the stigma attached to a person is obliterated. The Honble High Court observed that while recording its satisfaction, the appointing authority may on verification of the conduct, antecedents and character come to a conclusion that the over all profile of the petitioner is not conducive for his appointment. This will depend upon many factors including the reputation of the person, his behaviour in the public, his integrity and morality etc. The notes attached to column 3 of the G.O. dated 28.4.58 itself provide that a conviction need not of itself involve the refusal of a certificate of good character. Stands of conviction should be taken into consideration if it involves moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means a Government. The case of Ram Kumar (supra) was also referred, which was followed by the Honble High Court saying that in the order before it also no satisfaction has been recorded by the appointing authority that the petitioner is not suitable to be appointed with reference to the nature of alleged suppression and the nature of criminal case. Therefore, the Honble High Court allowed the writ petition and quashed the impugned order with the direction to the respondents to take back the petitioner in service within a period of one month with all consequential benefits except back wages for the period he remained out of service.
5. Learned counsel for the respondents Mrs. P.K. Gupta, on the other hand relied upon the following judgments:-
(1). State of West Bangal and Others Vs. SK. Nazrul Islam (2011) 10 SCC-184. In this case law there was concealment of fact regarding antecedents. A criminal charge sheet had already been filed against him. The authority i.e. Police Directorate, West Bangal therefore, did not appoint him as a constable. He went to the Tribunal which declined any relief. The Honble High Court however directed to issue appointment letter subject to final decision of pending criminal case. The Honble Apex Court held that no mandamus could have issued by High Court because a criminal case was pending. It was also observed that the person cannot be held to be suitable in the police till he has not been acquitted.
The above case law is not applicable here because of different facts and circumstances. Admittedly, there is no concealment of facts regarding antecedents in the case before us. Moreover, here the applicant has already been acquitted. Therefore, this case law is not applicable in the present case.
(2). Arun Kumar Yadav Vs. GNCT of Delhi through Chief Secretary, Delhi Secretariat and Others, O.A.No.2339 of 2008 (Swamynews 52-53). In this case there was concealment of involvement in a criminal case, though he was acquitted. The Tribunal held that though the applicant was acquitted but the fact remains that he concealed this fact. As said above in the case before us however, there is no such concealment. Therefore this judgment of CAT Principal Bench (decided on 12.8.2010) has also no application in the present matter. Moreover, this was decided on 12.8.2010 by the Principal Bench whereas subsequently in March, 2011 the Honble Apex Court has decided the case of Commissioner of Police (Supra) in which similar question was involved as already discussed on page 15 of this order. We are therefore bound to obey the preposition of law laid down in the above case of Commissioner of Police, being the law of land. Further, from the perusal of the electrostat copy of this judgment as published in Swamynews as filed on behalf of respondents, it appears that following three judgments were also considered by the Principal Bench CAT in that case. We obtained these case laws also from our CAT library and the same were also perused by us. We would like to make a brief mention of these judgments also as under:-
(1). Union of India and Others Vs. Bipad Bhanjan Gayen (2008) 11 SCC-314.
(2). R. Raqdhakrishana Vs. Director General of Police and Others (2008) 1 SCC-660. Both these cases do not apply in the present case because of different facts. In both these cases wrong information was disclosed by the candidate which is not a case here.
(3). Delhi Administration Through its Chief Secretary and Others Vs. Sushil Kumar (1996) 11 SCC 605. According to facts of this case appointment was denied on the ground of undesirability because on verification it was found that his appointment to the post of constable was not desirable. The involvement of the applicant was under Section-304 IPC, 324 read with 34 IPS, which was very serious offence. He was however acquitted. But, the appointing authority took a view that in the background of the case, it was not desirable to appoint him as a constable to a disciplined force. The Apex Court found that appointing authority has rightly focused this aspect and found him not desirable to appoint him to the service. But, in the present case neither any such consideration has been made nor any such order has been passed by the appointing authority. Instead the impugned order has been passed by the Commission. However, that order has no connectivity with the show cause notice as already discussed. The applicant was asked to show cause in respect of alleged concealment of his involvement in the criminal case. But the order cancelling his candidature was passed on the ground of his involvement and not concealment. The sole point of concealment was thus given up. Further, the Commission has not even defended the order passed by it. The Commission has not filed any Counter Affidavit refuting the averments and pleadings of the applicant contained in O.A. Moreover, in the case before us the offence is of not of a serious nature. It was an outcome of a matrimonial dispute and allegations were of harassment on account of non-fulfillment of demand of dowry wherein, the applicants brother-in-law (Devar), was also implicated though, he was living separately in a different district/city making preparations for appearing in competitive examinations as per uncontroverted pleadings. Even, married sister and Bua living separately were also implicated as is normally done these days in such cases. Lastly the above is a case law of 1996. During last 15-16 years, the law has further developed and we do not have any justification to ignore the recent and two consecutive case laws on this point of Honble Apex Court in the above cases of Commissioner of Police (Supra) and Ram Kumar (Supra), both of 2011. Therefore, the respondents cannot derive any benefit from the above case law.A photostat copy of a letter dated 29.8.2012 of CBI (Administration) showing internal correspondence has also been filed alongwith the above case law. In fact no cognizance can be taken of such a paper at this stage because, it is not a part of pleading. It has been filed after closure of final arguments. Still, we have perused it. It is mentioned in this letter that as per verification report dated 14.8.2012 the applicant has been acquitted in the relevant criminal case and the limitation period of filing an appeal has also expired. Further, it is mentioned that another case no.757/2010 under Section-12 of Domestic Violence Act is pending in the Court of Metropolitan Magistrate, Kanpur in which the applicant is also one of the accused. Therefore, a request has been made vide this letter to bring it to the notice of learned counsel for the respondents to apprise this Tribunal before passing final orders. As said above this subsequent fact has not been pleaded in the counter affidavit. This Tribunal cannot travel beyond the pleadings, which are on record. This alleged case also does not find place either in show cause notice or any documents on record including the impugned order of cancellation of candidature. Otherwise also, it appears to be an offshoot of same matrimonial dispute giving rise to above main criminal case which has already ended in acquittal. It is a petty case of similar nature under different Act. It has no significance after acquittal in the main case.
17. Thus in the case before us, firstly there is no concealment at all in respect of involvement in the criminal case. Admittedly the applicant had furnished all the required information with all the particulars. Therefore, the show cause notice in respect of alleged concealment was ab-anitio wrong and against the record and when this fact was specifically pointed out in the reply it was not dealt with at all in the impugned order. Instead the impugned order was passed on a new ground i.e. merely on the ground of involvement in a criminal case, though it has been nowhere provided either in any law or in the Manual of CBI (Admn.) or in the conditions of the relevant advertisement that candidature or selection can be cancelled on this ground. On the converse in para 2.2.7 of the chapt. 2 of the Manual of CBI (Admn.) (as pleaded in O.A. (which is not controverted in C.A.) that even if a person is a convict, he can be appointed after obtaining approval of the Govt., if appointing authority feels that there are redeeming features and reasons to believe that the person has cured himself of the weakness, if any. In the present case, such facts were not considered at all and there was no application of mind by the appointing authority on these points. In fact, appointing authority has not passed any order whatsoever. After receiving of verification report the dossier was admittedly sent from CBI to the Commission which issued show cause notice dated 12.5.2011 and then impugned order dated 17.6.2011 was passed by the Commission cancelling the candidature of the applicant. But even the Commission was not sure as to who took the actual decision. It is a typical order which has been passed by the Commission saying the CBI has decided not to appoint him and at the same time, it is mentioned that Commission has also decided the same. But there is neither any separate decision of the CBI nor any such joint decision of both of them on record. Secondly, as has been observed in the cases of Ram Kumar (Supra ) and Harendra Panwar (supra) in the present case also, no such satisfaction has been recorded by the appointing authority that the applicant was not fit or suitable to be appointed to the post in question. Thirdly, the applicant has been ultimately acquitted in the criminal case and no appeal has been filed which, as laid down in the case of Awadhesh Kumar Sharma (Supra), would mean that he was not involved in any criminal case on the alleged date because the judgment of acquittal in his favour operates retrospectively. Fourthly, it is trite in law that mere involvement in a criminal case is not an impediment for appointment and after acquittal ,the stigma attached to a person is obliterated.
18. In the conspectus of the discussion made hereinabove and having regard to the preposition of law laid down by the Honble Apex Court in the aforesaid judgments, this O.A. is partly allowed. The impugned order dated 17.6.2011 cancelling the candidature of the applicant (Roll No. 0901040793-OBC) is hereby quashed. The other order which has been impugned dated 12.5.2011 is in fact an information furnished under Right to Information Act and as such in respect of it neither any order can be passed nor it is required to be passed. In the follow up action, the opposite parties are directed to appoint the applicant on the post in question in pursuance of his selection, expeditiously. No order as to costs.
6. The respondents have filed their reply. They have re-iterated their position in the impugned Show Cause Notice and impugned order of cancellation of the candidature of the Applicant.
7. We have heard the learned counsel for the Applicant, Shri S.C. Sagar and the learned counsel for the Respondents, Mrs. P.K. Gupta. We have also perused the judgment of the Judicial Magistrate, Muzzafar Nagar in Case No.724/9 of 2010- State Vs. Deepak etc. The case of the prosecution before the Court was that one Niyaz gave a written complaint to the PS Titavi stating that on 1.3.2010 while he and his wife Islaman and one Sajid, a servant of Samarphul were doing the peeling work of cane sugar in the field, at about 2.00 p.m. the Applicant and his accomplices Deepak, Praveen and Balraj reached the field and caught hold of his wife and started misbehaving with her under the influence of alcohol. When he opposed them, Vipin (the Applicant) attacked him with Balkati and as a result his head got lacerated. The remaining three persons have also beaten him up very badly and cruelly. When he raised alarm, Bhura, son of Ejaj, his brother and Idarish, son of Ismail came at the scene of crime. At that time Balraj, son of Kamal Singh fired at him with his country pistol but he escaped narrowly and saved his life by moving away from there. While running away, they called him bastard and told him that they would kill him. On the basis of the aforesaid report, crime case No.179/2010 was registered under Sections 323/324/352/354/504/506 IPC against the Applicant and other accused persons. However, court acquitted all the accused persons including the Applicant for want of evidence. The relevant part of the judgment reads as under:-
Thus, it is clear from the above investigation that the witnesses which have been produced on behalf of the prosecution to prove its story, they have not supported the prosecution story from their evidence. No mutual coordination is found in the story of the prosecution and testimonies given by the witnesses produced by the prosecution and there is a material contradiction on important points. Even no mutual coordination is found in the evidence of the witnesses. Documentary evidence of the prosecution, formal vitality whereof has been admitted by the counsel for the accused persons under section 294 Cr.P.C., have not been got proved under the Evidence Act. Prosecution has absolutely failed to prove the charge framed by the Court against the accused persons from the evidences produced by the prosecution. Charge made against the accused persons is not proved from the evidences so produced nor is there any such fact or evidence is available on the file from which it is apparent that prosecution story has any force. Therefore, court is of the view that accused persons while getting benefit of doubt are liable to the acquitted of the charge made against them.
ORDER While giving benefit of doubt, all the accused persons Deepak Parveen, Balraj and Vipin are acquitted of the charge U/s 323/324/352/354/504/506 IPC made against them. Accused persons are on bail, their personal bonds are discharged and their sureties are also discharged from their liability.
8. However, the Screening Committee was of the view that, even though the Applicant was acquitted in the criminal case pending against him, he did not disclose the facts about his involvement in the criminal case in the Application Form. As a result, he was provisionally selected subject to verification of his character and antecedents. The Committee has also considered the fact that section of the IPC under which he was charge sheeted are the ones dealing with offences involving moral turpitude. Therefore, the Committee found him unsuitable for recruitment in Delhi Police. However, before his candidature was cancelled, he was given a new notice to explain his position.
9. The contention of the Applicant was that the aforesaid FIR followed by the criminal case was registered against him and his cousins out of vendetta between two communities. His family members while actively supporting the candidate of a particular community, the complainant and others belonging to another community was supporting another candidate. His further contention was that the complainant has purposely complained against him of activities involving moral turpitude to ensure that he will not get any Government jobs in future. But later on, both the parties have agreed to compound those offences which were compoundable. For the other charges, the prosecution did not produce any evidence. Thus, the Magistrate finally acquitted the Applicant and all other accused persons. Further, according to the Applicant, the order of acquittal was in the year 2010 and the recruitment was in the year 2011 and he disclosed those facts in the attestation form filled by him.
10. However, it is seen that the Screening Committee has not gone into the aspects which have been explained by the Applicant in his reply to the show cause notice. The show cause notice was issued on 22.11.2012, the Applicant submitted his reply on 07.02.2012 and the Dy. Commissioner of Police rejected it on 11.12.2012 simply stating that his reply was not found convincing. In our considered view when the High Level Screening Committee has considered the case of the Applicant and at its instance, show cause notice was issued to him, it is for them alone to consider his reply and take appropriate decision and not for any lower functionary at the level of a Dy. Commissioner of Police to give the ultimate decision. Therefore, in our considered view the very purpose of issuing the show cause notice to the Applicant in this case was defeated. It only served as an empty formality and no proper consideration by the competent authority has gone into.
11. In our considered view, there is a difference between involvement in offences involving moral turpitude like outraging the modesty of a women and mere allegation to that effect with the motive to deprive of a person his opportunity to be recruited in Government service. The case of the Applicant in this case is that the complainant has purposely and falsely implicated him in offences involving moral turpitude so that he will not get any job in Government service in future. To support his contention, he has submitted that during the trial of the criminal case against him, the parties have agreed for compounding some of the offences which were compoundable and with regard to the rest of the alleged offences which were not compoundable, no evidence was adduced.
12. We, therefore, quash and set aside the impugned Annexure-A order dated 11.12.2012 canceling the candidature of the Applicant. Further, we remit the case back to the Respondents to place the Applicants reply to the show cause notice before the Screening Committee to consider the same in an independent and dispassionate manner. The Screening Committee may also, if necessary, order further enquiry in the matter to find out the veracity of the submission made by the Applicant in his reply. While taking the final decision in the matter, they shall also consider the various judicial pronouncements relied upon by both the learned counsel in this case. Thereafter, the Respondents shall pass a reasoned and speaking order preferably within a period of three months from the date of receipt of a copy of this order.
13. With the aforesaid direction, this OA is disposed of. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh