Central Administrative Tribunal - Delhi
Sanjeev Kumar S/O Shri Nahar Singh vs Govt. Of Nct Of Delhi Though on 26 April, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2429/2006 This the 26th ay of April 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) Sanjeev Kumar s/o Shri Nahar Singh r/o Village & PO Kirthal Mohalla Aajlan Distt. Bagpat, UP ..Applicant (By Advocate: Shri Sachin Chauhan) Versus 1. Govt. of NCT of Delhi though Commissioner of Police Police Headquarters IP Estate, New Delhi 2. Joint Commissioner of Police Headquarters, PHQ IP Estate, New Delhi 3. Deputy Commissioner of Police Headquarters (Estt.) Through Police Headquarters IP Estate, MSO Building New Delhi ..Respondents (By Advocate: Ms. Renu George) O R D E R
Shri M.L. Chauhan:
The applicant has filed this OA thereby praying for quashing of the impugned order dated 31.1.2006 (Annexure A-1) whereby his case for appointment to the post of Constable (Executive) in Delhi Police was rejected. It may be stated that such order was passed pursuant to the directions issued by the Honble High Court of Delhi vide its judgment dated 28.11.2005 in CWP No.8016-17/2005. The applicant has also prayed that the aforesaid impugned order may be quashed and respondents may be directed to appoint him as Constable (Executive) in Delhi Police, with all consequential benefits.
2. At this stage, relevant facts may be noticed. The applicant was selected to the post of Constable (Executive) in Delhi Police during the recruitment held in the year 2002, subject to verification of character antecedents etc. It was found that the applicant was charged under Sections 302/307 IPC PS Loni (UP) and subsequently, acquitted of the charges vide order dated 15.1.2002. Thereupon, the respondents denied the appointment to the applicant. Feeling aggrieved by the action of the respondents, the applicant as also the other similarly situated persons filed OA before this Tribunal in the year 2003-2004. The said OA (OA-639/2004 along with connected matters) was disposed of vide common order dated 24.12.2004 and this Tribunal was pleased to allow the said OAs filed by the applicants therein, including the OA filed by the present applicant. The matter was then carried to the Honble High Court by filing WP (C) No.6042/2005 and other 18 connected writ petitions, which were allowed by the High Court and the order dated 24.12.2004 passed by this Tribunal was set aside and the matter was remitted to the Commissioner of Police with direction to appreciate the nature and gravity of offences and the manner in which they were acquitted. It was further observed that upon consideration of such facts, if it was found that they could be allowed to join and work against the post of constables, it was directed that they should be allowed to join their posts but their order of appointment would be effective from their joining with no claim at all with regard to arrears of pay and allowances or seniority. It was also observed that even after such appreciation of all the facts and circumstances of the cases, it was found by the Commissioner of Police that the applicants could not be appointed, as they were not suitable and desirable persons to be appointed to the post of constables, he should pass an appropriate order giving reasons for such decision. On consideration of 19 cases, the Commissioner of Police offered appointment to 7 candidates, while remaining were denied appointment. Out of those who were denied appointment, eleven have filed original applications in this Tribunal. This Tribunal vide order dated 24.4.2008 in OA-2429/2006 passed reasoned orders in respect of 4 persons, whereas no reasoning has been given in respect of 10 persons and the judgment rendered by the Tribunal in OA-2429/2006 along with connected matters decided on 24.4.2008 was further challenged before the Honble High Court of Delhi by filing WP (C) No.8059/2008, which was disposed of vide the order dated 23.9.2010. At this stage, it will be useful to quote relevant portion of the said judgment, which thus reads:
2. The applicant was one out of the 14 persons whose Original Application was considered and disposed of by the Tribunal.
3. A perusal of the impugned decision shows that the Tribunal has listed the 14 applicants before it in two different categories being Table 1 and Table 2 profiled in para 5 of the decision of the Tribunal.
4. Thereafter, till paragraphs 17 the Tribunal has discussed the law on the subject and in para 18 onwards commencing with the phrase? Coming to the facts of the case. the Tribunal has proceeded to consider only 4 cases of 4 applicants. We do not find any discussion pertaining to the remaining 10 applicants before the Tribunal. In that, we do not find a reflection of the legal principles culled out by the Tribunal vis-a-vis the facts of the said 10 individual cases.
5. Petitioner Sanjeev Kumar falls in the category of such applicants whose cases have not been dealt with by the Tribunal.
6. Under the circumstances we dispose of the writ petition setting aside the impugned order dated 24.4.2008 vis-a-vis petitioner Sanjeev Kumar and we restore OA No.2429/2006 filed by Sanjeev Kumar.
3. As such, this OA has been restored to its original number for the purpose of deciding the issue in the light of the observations made by the Honble High Court, as reproduced above. Accordingly, the matter is taken up for hearing.
4. We have heard the learned counsel for the parties and perused the material placed on record.
5. In the light of the observations made by the Honble High Court, as reproduced above, the question, which requires our consideration in this case is whether keeping in view the nature of gravity of offence involved and the finding recorded by the criminal court, the applicant could have been denied the appointment to the post of Constable (Executive) in Delhi Police. At this stage, it may be stated that it is not a case of such nature where the applicant has suppressed/concealed the material information regarding his involvement in the criminal case while filling up the attestation form/application form and thereby making false declaration. As already stated above, the applicant has disclosed his involvement as well as well acquittal in the criminal case to the authorities. Further, the Honble High Court in its earlier judgment, while setting aside the order of this Tribunal in the earlier OA, has observed that the applicants in those writ petitions were involved in a different nature of criminal cases and were, therefore, acquitted on benefit of doubt. After recording the said finding, the Honble High Court observed that the competent authority has to take decision in that regard as to whether such candidates are found suitable to be appointed to a disciplined force like the Delhi Police and whether a person is involved in a criminal case and his acquittal is due to the fact that witnesses turned hostile and did not support the prosecution case and were, therefore, acquitted on benefit of doubt and if such persons are declined appointment in a disciplined force, the action of authorities cannot be said to be arbitrary or irrational, especially when the charges in the criminal case framed against the respondents were of grave nature. The Honble High Court of Delhi has also distinguished the case of Rajesh Kumar, who was involved in the Excise Act.
6. Learned counsel for the applicant has drawn our attention to the impugned order at Annexure A-1 and argued that the competent authority after reciting the facts of the case has recorded the finding that the applicant was involved in a heinous crime of murder and the acquittal is not honourable and thus the involvement is of such a nature that it makes the applicant unfit for a disciplined force like the Delhi Police. According to the learned counsel for applicant, such a finding cannot be sustained inasmuch as the gravity of offence is not sufficient ground to decline appointment to the applicant.
7. Learned counsel for the applicant has also drawn our attention to the judgment of the trial court dated 15.1.2002 and argued that it is not a case of such nature where the applicant was acquitted by giving the benefit of doubt. In order to appreciate the contentions raised by the learned counsel for the applicant, it will be useful to quote paragraph 9 of the judgment of the trial court, which thus reads:
During the examination of witnesses before the Court, PW-1 to PW-5 became hostile. All the witnesses have given a similar statement that they had never seen the accused persons assaulted Chander Pal and Marich. The witnesses also stated that they were not present at the spot at the time of incident. The witnesses showed their ignorance regarding rivalry between the complainant and accused persons. As per the witnesses police had never recorded their statements. PS-5 stated that he neither recorded his statement by dictating the same nor he got typed the same. His signatures were obtained in the police station. Therefore, the alleged incident at the alleged time and place allegedly took place by the accused persons has not been proved from the statement of the witnesses. No evidence is available in the record upon which the accused could be found guilty of above offences. Hence, in these circumstances all the accused persons are liable to be acquitted from the charge.
8. Learned counsel for the applicant has thus argued that in view of the finding recorded by the trial court, the applicant has been honourably acquitted for want of evidence. Thus, under these circumstances, it was not permissible for the respondents to decline the appointment to the applicant solely on the ground that he was involved in a case under Sections 302/307 IPC.
9. We have given due consideration to the submissions made by the learned counsel for the applicant and are of the view that the finding recorded by the respondents in order to decline the appointment to the applicant cannot be interfered with in exercise of power of judicial review. As can be seen from the judgment of the trial court, as the witnesses have resiled from their earlier statement and they have stated that they were not present at the time of incident where the deceased Chander Pal and injured Marich were beaten, as a result of which Chander Pal had died and Marich were sustained grievous injuries. The Court summoned injured Marich, who could not be traced and therefore he was dropped. According to us, the statement of Marich, who was also injured person, was relevant, which could have thrown light on the manner in which the incident has occurred and involvement of persons, who have committed the crime, as the injured person would not have exculpated the real accused. Be that as it may, the fact remains that the acquittal of the applicant was on the ground that prosecution witnesses have turned hostile and injured person could not be procured and under these circumstances, it cannot be said that the acquittal of the applicant was on merit and after appreciating the evidence.
10. Learned counsel for the applicant has placed reliance upon the decision of the Honble High Court in Govt. of NCT of Delhi & another v. Jai Prakash (WP (C) No.3566/2010) decided on 24.5.2010 to contend that in similar circumstances, the Honble High Court has upheld the judgment of this Tribunal in respect of a respondent, who was involved in criminal case under Sections 32/33 of the Forest Act, 1927 read with Section 379 IPC. We fail to understand how the applicant can take assistance from this judgment of the Honble High Court in view of the specific finding given by it in the case of the applicant decided on 28.11.2005 whereby the High Court has directed the respondents to examine each case looking into the gravity of the case and the manner in which the offence was committed and then consider whether the appointment can be given to the candidates, who are not involved in a serious crime. The judgment has become final between the parties, as such the reliance placed upon the decision of the High Court in the case of Jai Prakash (supra) is not attracted in the instant case.
11. Learned counsel for the applicant has also drawn our attention to paragraph 7 of the said judgment whereby the Honble High Court taking into consideration the judgment of the Honble Apex Court in G Narayanaswami v. Pannerselvam, (1972) 3 SCC 717 has observed that the Apex Court in the said case has held that if there is some provision under the rules for such disqualification, the disqualification may be considered in accordance with the rules so prescribed. On the basis of the observations made in paragraph 11, learned counsel for the applicant argued that there was no disqualification regarding entry into service. As such, the applicant cannot be denied appointment solely on the ground of his involvement in criminal case. We fail to understand how the learned counsel for the applicant can take assistance from the observations made by the High Court based upon the judgment of the Apex Court in G. Narayanaswamis case (supra). That was a case where the qualifications for membership of a Legislative Council were prescribed and the relevant provisions stipulated that disqualifications in regard to a person, who shall not be qualified to be chosen to fill a seat in the Legislative Council of the State. Thus, the judgment rendered by the Apex Court in regard to the election laws cannot be made operative in service matter. It is settled position that so long as the person is not appointed in a service, he cannot be said to be a government servant and the rules, regulations and the instructions issued by the Government relate to in-service candidate and not to a person, who has not been appointed to a post. Be that as it may, the contentions raised by the learned counsel for the applicant based upon the judgment of the High Court deserve out right rejection.
12. Similarly, the applicant cannot take assistance from the judgment of this Tribunal in Anoop Kumar v. Government of NCT & another (OA 178/2008) decided on 23.7.2008 where the applicant was involved in a case under Sections 308/325/34 IPC. That was a case where the witnesses turned hostile and he was given the benefit of doubt. This Tribunal in paragraph 8 of the order has already stated that the case was not so serious and the judgment was rendered in the facts and circumstances of that case.
13. According to us, ratio as laid down by the Honble Apex Court in Delhi Administration through its Chief Secretary & others v. Sushil Kumar, 1997 SCC (L&S) 492 is fully attracted in the facts and circumstances of this case. The Honble Apex Court in the said case has held that the discharge on acquittal of a person under criminal offence has nothing to do with denial of appointment to him on the ground of undesirability based upon the antecedents of candidates. That was not a case of suppression of material information and making false statement in the application/attestation form but was a case where the appointment was denied to the respondent before the Honble Apex Court on account of his antecedents record where he was involved in a criminal case but acquitted by the competent court. That was a case where the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90. 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. Feeling aggrieved, he filed OA in the Tribunal. The Tribunal allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC, he cannot be denied the right of appointment to the post under the State. The Honble Apex Court held that 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.
14. If the matter is viewed in the light of the judgment rendered by the Apex Court, we see no infirmity in the action of the respondents whereby the applicant has been declared unfit for a disciplined force, like the Delhi Police.
15. Further, the learned counsel for the respondents has also drawn our attention to the decision of the Apex Court in the case of Union of India & others v. Bipad Bhanjan Gayen, (2008) 11 SCC 314, which was a case where the respondent therein has furnished wrong information in the attestation form regarding his involvement in the criminal case. The Apex Court in paragraph 10 of the judgment has held that We are further of the opinion that an employment as a police officer pre-supposes a higher level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated. The observations made by the Apex Court though in a different context regarding high degree of integrity in respect of a police officer cannot be lost sight of. The fact remains that the applicant was involved in a serious crime and he has been acquitted solely on the ground that the prosecution witnesses turned hostile and the presence of injured person, who could have thrown light on the incident, could not be procured, despite repeated efforts. In case the appropriate authority has decided not to give appointment to such type of a person based upon the antecedent, it is not possible for us to say that such a decision is arbitrary and according to us, it is the prerogative of the employer to select a person who according to them bears good moral conduct.
16. Accordingly, the OA being bereft of merit is dismissed with no order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/