Central Administrative Tribunal - Delhi
Kulbir Singh vs Govt. Of Nct Of Delhi on 26 February, 2010
Central Administrative Tribunal Principal Bench OA No. 2939/2009 New Delhi this the 26th day of February, 2010 Honble Mr. Justice M.Ramachandran, Vice Chairman (J) Honble Dr. Veena Chhotray, Member (A) Kulbir Singh, (Roll no. 900581), S/o Shri Balwan Singh, R/o VPO Deorar, Distt. Jind (Haryana) -Applicant (By Advocate: Shri Anil Singal) -V E R S U S- 1. Govt. of NCT of Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, New Delhi 2. Dy. Commissioner of Police, Recruitment, New Police Lines, Kingsway Camp, Delhi -Respondents (By Advocate: Shri H.K. Gangwani) O R D E R
Dr. Veena Chhotray:
The applicant is a provisionally selected candidate as Constable (Exe.) under the Delhi Police on the basis of the recruitment held in the year 2007. His candidature, however, has been cancelled by the respondents, vide their order dated 9.9.2009 (Annex. A-1), on the ground of unsuitability in the context of the applicants involvement in two criminal cases-prior to the initiation of the aforesaid recruitment process. Even though, in these cases the applicant had been acquitted by the Trial Court, the Screening Committee, after consideration of the facts of the case, has still not found him suitable for the post and hence the candidature has been rejected. By way of relief, the OA seeks quashing the impugned order with a direction for issuance of the letter of appointment to the applicant with all consequential benefits, including seniority, promotion and arrears of pay. Award of costs in his favour besides passing of any other order deemed just and equitable have also been prayed.
2. This is the second round of litigation. Earlier, the applicants candidature had been cancelled by the respondents vide their order dated 12.6.2008 on the ground of concealment of the facts regarding the aforesaid criminal involvement at the time of the application. This view had been taken despite the disclosure by the applicant at the attestation stage. The applicant had challenged this order by his OA No. 2082/2008 which had been decided by the Tribunal vide a common order dated 23.7.2009. A copy of this order has been enclosed with the OA as Annex. A-3. Dealing with three identical cases in which all the applicants had, though failed to furnish the requisite information about the criminal cases at the stage of application, had subsequently disclosed at the attestation stage, the OA had been allowed. While doing so, the Tribunal had relied on the judgment of the Apex Court rendered in Commissioner of Police Vs. Dhaval Singh [1999 (1) CC 246). It had been held that since the candidate had given full details before the actual verification process, a strict approach was not warranted. Besides, the fact of a subsequent circular dated 5.5.2009 issued by the respondents on the subject had also been taken note of while deciding this case. As per this circular, guidelines have been issued that where full details of adverse circumstances although not incorporated in the application filed by the candidates, if later on had been supplied in the attestation forms, the candidature need not be cancelled.
While allowing the OAs, the following observations had been made by the Tribunal:-
6. Of course, learned counsel for respondents submits that each case is to be examined on its own merit and yard stick could not have been generally employed. It may be so. But, however, taking notice of the circumstances, we hold that the applicants are entitled to fair chance of being considered for employment. As young man entering to life they deserve a chance. Mr. Singal submits that they had a lesson of their life, and would give no reason for any complaints hereafter. They should remind themselves that they are being considered to be a disciplined force where qualities of hand and heart are very much needed. The operational directions as contained in Para 7 were as follows:-
7. We formally quash the impugned orders in the Original Application and direct the respondents to consider applicants candidature as valid for all purposes. Selection process in respect of them is to be continued and we expect that within a period of one month appropriate follow up orders will be passed, as might be necessary. Thus, the controversy, in the present case, is in a very narrow compass, as the issue of concealment is no more res intergra.
3. The applicant had, in this case, responded to the advertisement in the months of April/May, 2007. The orders of acquittal in both the cases had been passed before the date of application. The criminal cases in question related to the FIR No. 70/2002 dated 4.4.2002 under Section 323/324/34 IPC and the FIR No. 71/2002 dated 4.4.2002 under Section 323/452/506 and 34 IPC. Both these cases related to PS Julana Distt. Jind (Haryana) and had originated out of the same sequence of events. The allegations against the accused named in the FIRs (including the applicant) were of causing injuries during the quarrel which had a background of a fight during the election of Sarpanch. In fact, the complainant of the first FIR was Smt. Sona Devi, the sarpanch herself. The final judgments were passed on 20.3.2007 and 29.3.2007 acquitting the accused. This was a case where in both the cases, the prosecution witness had turned hostile resulting in acquittal. While considering the matter afresh in pursuance of the Tribunals aforesaid order, the Screening Committed had arrived at the following findings:-
In view the above circumstances, it has been established that you were involved in two criminal cases. In case FIR No. 70/2002, all the witnesses who received injuries during quarrel did not recognize any of the accused persons in the court regarding causing the injuries during the fight in the village. They did not support the prosecution version and turned hostile. This is a case of acquittal in which material witnesses did not support the prosecution story, resulting in acquittal which cannot be said to be an honorable acquittal. In second case FIR No. 71/2002, during trial of the case in examination in chief the PWs proved their statements recorded by the police and deposed accordingly. They turned hostile during cross examination. The court acquitted all the accused persons including you by giving benefit of doubt vide judgment dated 29.03.2007. The Screening Committee has observed that in both the above cases, you had played an active role in beating and causing injuries to the complainants. Your involvement in these cases shows you propensity to indulge in crime without fear of law of the land. On this basis, the view had been taken that the applicant was not suitable to the post of Constable (Exe.) in a Force like Delhi Police and was, therefore, not recommended for appointment for this post.
4. On behalf of the applicant, the learned counsel, Shri Anil Singhal and for the respondents, the learned counsel, Shri H.K. Gangwani would make the submissions. The learned counsel, Shri Anil Singhal would seek to highlight the directions of the Tribunal in the earlier order whereby the candidature of the applicant was to be considered as valid for all purposes and the selection process was to be continued. It would be contended that the respondents could not now take a fresh view, allegedly in contravention of these directions. As the impugned order had been issued without a show cause notice and an opportunity to represent, it would also be challenged on grounds of violation of the principles of natural justice. By way of factual averment, Shri Anil Singhal would submit that as both the FIRs, in this case, had originated from the same incidents, mention of two criminal cases tended to be misleading. Besides, he would also seek to rely on a number of precedents in support of the claims.
In addition to the above submissions, the OA also raises several other grounds, the salient ones among which are being mentioned here. It is stated that the respondents, in the case, were exceeding their jurisdiction by sitting over the decision of the Tribunal Court (Ground 5.1). It would also be averred that since earlier the respondents had cancelled the candidature of the applicant only on the ground of concealment of facts regarding involvement in the criminal case and not on the ground of being not suitable, even though this ground too was available at the time of passing of the earlier order, their subsequent repeated cancellation of the candidature was hit by the principles of estopple (Ground 5.2). Further, it is argued that since the applicant had already been acquitted from the criminal cases which meant that any stigma attached had been obliterated, as such he could not be denied appointment on that ground (Ground 5.3). The OA also avers that the respondents have nothing to show that apart from the disclosed criminal cases, the antecedents of the applicant were not good or that any other adverse material had been found against him (Ground 5.5). The non-reference to the involvement in a criminal case, as one of the ground of ineligibility in Rule 6 of the DP (A&R) Rules, 1980 has also been mentioned (Ground 5.10). Reasoned plea of discrimination and citing several instances pertaining to recruitments of different years in what is claimed to be in similar cases is also one of the pleas in the OA. It is stated that by the impugned action of the respondents, the applicants fundamental right to life, including earning of livelihood stands violated.
5. The respondents stand as revealed from their counter affidavit and emphasized by the learned counsel, Shri Gangwani would be that there has been no illegality or arbitrariness on their part. Their stand is that the present order has been passed by the respondents in pursuance of the direction of the Tribunal by which the matter has been considered afresh by a duly constituted screening committee. It is further submitted that after a detailed consideration of the facts of the case, the applicant has not been found a fit candidate for appointment to Delhi Police. It is also emphasized by the respondents that the applicant cannot make any legally enforceable claims since the applicant had only been declared provisionally selected subject to verification of character and antecedents. With regard to the averment of discrimination, it would be stated that each case has to be dealt on individual merit.
6. The issue before us has been adjudicated in a number of cases by the Tribunal, the High Court and even by the Apex Court. Briefly, the salient points of law on the subject as emerging from various judicial pronouncements may be summed up as below:-
(a) The important case was the judgment of the Apex Court in Civil Appeal No. 13231 of 1996 DAD Vs. Susheel Kumar. In this case, it was held by the Apex Court that verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State. Further, the view taken was that the fact of the applicant having been discharged or acquitted of the criminal offences had nothing to do with the question of his appointment instead what would be relevant was the conduct or character of a candidate to be appointed to a service and not the actual result thereof.
This decision of the Apex Court has been heavily relied upon by the respondents in their counter affidavit.
(b) The next important judgment in this case, which we may mention is by the Delhi High Court in WP (C) No. 6042-43/2005 and other connected Writ Petitions in the matter of Government of NCT of Delhi & Ors. Vs. Deepak Kumar & Ors., decided on 28.11.2005. In this case, it was held that the mere fact that the applicant seeking appointment in Delhi Police who was involved in a criminal case had been acquitted, would not be enough to secure posting with Delhi Police. Further, it was decided that it was 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 had to be properly examined.
(C) The issue has also been considered by the Tribunal in a number of cases. We may particularly refer to the decision in the OA No. 178/2008 (Anoop Kumar Vs. Govt. of NCT & Anr.) decided by a coordinate Bench (PB) of the Tribunal vide its order dated 23.7.2008 (Annex. A-5). In this order it was impressed that the denial of appointment to a citizen for all times to come is indeed a serious matter and cannot be taken lightly. This was more so when there was no finding of conviction by the criminal court. Distinguishing such a situation where the administrative authorities had no choice, it was opined that in cases where there had been no conviction, it became incumbent on the high ranking police officials to consider all the relevant aspects while dealing with a serious matter like denial of appointment to a citizen.
Reiterating the decision of the Delhi High Court in Deepak Kumar & Ors. (supra), the Tribunal had held that the nature of offence and the manner of acquittal must be gone into properly. While going into the details, it was felt that the nature of offence could not be exclusively determinable only on the label or the sections on which an FIR may be registered. Further, the attending circumstances leading to commission of crime, nature of offence that may appear from the contents of the First Information Report, statements of witnesses and the medical evidence, all attendant circumstances needed consideration. While considering the manner of acquittal, merely observing that the witnesses had turned hostile was not found to be a sufficient ground to deny appointment to a citizen. On the other hand, the judgment of the criminal court had to be taken into consideration with all the aspects leading to acquittal.
Further, the ground of discriminatory treatment among similarly situated persons had also been given serious weightage while finally allowing the OA and giving the direction that the appointment to the applicant was not to be denied on the ground of his involvement in a criminal case.
(d) We also find it relevant that in the OA No. 2255/2009 (Praveen Yadav Vs. GNCT of Delhi & Ors.), decided by the Principal Bench again on 12.11.2009, the view was taken that in the realm of administrative discretion, the authorities even if acting as a quasi judicial authority would not be allowed to partake the character of judicial authority by recording a finding over and above the finding recorded by the Trial Judge. Both these decisions have been heavily relied upon by the counsel for the applicant.
(e) On the aforesaid basis, we may conclude the law on the subject by stating that whereas the respondents do indeed have a right to verify the character and antecedents of the applicant before issuing the final appointment order and also that mere acquittal in the criminal case would not entail a claim for suo moto appointment, in this case under the Delhi Police; at the same time, the matter needs a careful consideration by the respondents before denying a person the right for appointment for all times to come. Such a view cannot be taken lightly or perfunctory, and would only be justified after a very thorough consideration of all the attendant circumstances of the case and the order of acquittal. Besides, there is also the need for extreme caution in this respect so that the quasi judicial authorities do not over step their legitimate domain and give a finding over and above the findings recorded by a Trial Court. While dealing with such cases, discrimination also has been held to be an important ground.
7. In the gamut of law, as briefly delineated above, we find the present case not coming clean on the prescribed touchstone. At the outset, the cancellation of candidature in this case has been ordered without issuance of a show cause notice, as could normally be expected under the circumstances after the deliberations of the screening committee. Even though, at the first instance, when the cancellation had been done only on the ground of concealment, the same had been preceded by a show cause notice and had been issued after consideration of the representation of the concerned candidate; in this case, the respondents have not found observance of the simple procedural formality as necessary, leading to the conclusion that there has been a violation of the principles of natural justice. Again, we find merit in the applicants contention that instead of considering the matter sequentially and canceling the candidature first on the ground of concealment and subsequently on the ground of non-suitability, it was open to the respondents to have considered both the grounds even at the initial stage. This was more so because it was a case in which the applicant had, at the stage of the attestation form, disclosed the fact regarding criminal involvement. Such repetitive acts do lead to avoidable harassment and agony to the affected person.
Even though strictly speaking, the Tribunals order in the OA was only in the limited context of the issue regarding concealment, however, the observations made and as extracted above do give an inkling to the disposition of the Tribunal in this case. Even in the final directions to consider the applicants candidature as valid for all purposes may not unjustifiably be viewed against the background of the observations in the preceding paragraph.
Our major objection comes from the way the findings in this case have been arrived at by the screening committee. As extracted segments in the aforesaid para 3 would show that the basis was essentially the facts narrated in the FIR and the view taken that since the acquittal had been on ground of the prosecution witnesses turning hostile, the same could not be treated as honourable acquittal. The conclusive observation in both the above cases you had played an active role in beating and causing injuries to the complainants and on this ground treating it as indicating a propensity to indulge in crime without fear of law of the land, seems to be overstepping their jurisdiction and sitting over the finding of the criminal court. The several instances of discrimination mentioned in the OA also affect the case.
8. Considering all these circumstance, we do not find the present order as sustainable in law nor do we find it as satisfying the test of a thorough and a serious consideration of the nature of offence and the manner of acquittal, as laid down by the Delhi High Court in Deepak Kumars case (supra). On the other hand, the approach seems to be extremely casual and perfunctory, compounded by the violation of the principles of the natural justice and the fact of this being the rejection of candidature on the second occasion though on a different ground. Since the applicant has already been twice subjected to the cancellation of the candidature, remitting the matter once again to the respondents may not service much useful purpose.
Taking totality of the circumstances, we set the impugned order aside and direct the respondents to offer appointment to the applicant for the post of Constable, if he may otherwise be entitled to. In other words, the appointment would not be denied on the ground of his involvement in a criminal case. The prayer for treating the same with retrospective effect in the matters of seniority, promotion or arrears of pay etc. is not found to be entertainable. The OA stands allowed. No order as to costs.
(Dr. Veena Chhotray) (M.Ramachandran) Member (A) Vice Chairman (J) /lg/