Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2436/2009 This the 8th day of March 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Pramod Kumar s/o Shri Devkaran Singh r/o H.No.1770 Lajja Puri (Near Ram Lila Maidan) Hapur, Distt. Ghaziabad (UP) 245 101 ..Applicant (By Advocate: Shri Ajesh Luthra) Versus 1. GNCT of Delhi Through its Chief Secretary Delhi Secretariat, Players Building IP Estate, Near ITO, New Delhi-2 2. Commissioner of Police Police Headquarters IP Estate, New Delhi 3. Dy. Commissioner of Police Recruitment, NPL Through Commissioner of Police PHQ, IP Estate, New Delhi ..Respondents (By Advocate: Shri R N Singh) O R D E R
Shri Shanker Raju:
In criminal jurisprudence, the acquittal is acquittal. It is neither honorable nor disgraceful. The Apex Court in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450 observed that The accused is presumed innocent until proven guilty. The trial courts acquittal bolsters the presumption that he is innocent. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. Due or proper weight and consideration must be given to the trial courts decision. This is especially true when a witness credibility is at issue.
2. Agitated before us by the applicant, who was selected as Constable (Executive) Male, is a show cause notice issued by the respondents on 15.7.2009 whereby pursuant upon the involvement of the applicant in two criminal cases and acquittal thereof on his alleged involvement in the crime showing propensity in indulgence, a proposal to cancel the candidature has been made. Also assailed is an order passed on 4.8.2009 whereby pursuant upon the reply of the applicant, he was not found suitable for the post of Constable (Executive) Male in Delhi Police and his candidature was cancelled.
3. Brief facts are relevant; so are enumerated. Applicant pursuant to recruitment of Constables in Delhi Police in the year 2008 had applied for the post and after qualifying the selection procedure he was provisionally selected to the post, subject to verification of character antecedents. While filling up the application and attestation forms, applicant has disclosed the factum of two criminal cases registered against him, being CC-918/2005 under Sections 147/148/325/323/506 IPC in which he was acquitted on 1.9.2007 by the Court of Upper Judicial Magistrate, Hapur. Also disclosed the factum of criminal case registered under Sections 308/504 of IPC where on a judgment by Upper District and Session Judge on 23.4.2009 he had been acquitted of the offences. Instead of being appointed, applicant was served with a show cause notice relying upon the decision of the Apex Court in DAD v. Sushil Kumar (Civil Appeal No.13232 of 1996 [arising out of SLP (C) No.5340 of 1996]) decided on 4.10.1996 and giving details of the criminal cases that the facts of the case or the allegations constituting offences after being enumerated despite the court has not found the applicant as unfit in any of the cases had acquitted the applicant. Circumstances have been examined to establish that the applicant had played active role in beating and causing injuries to the complainant. As such, his crime shows propensity in indulgence without fear of law. Applicant replied to the show cause notice in detail and by citing law that the acquittal is on merit and after it any involvement in the criminal offence being obliterated, applicant is not unfit to be appointed in Delhi Police, which he has qualified otherwise on his own merit. The competent authority in response to the show cause notice without dealing with the contentions of the applicant recorded the following observations to cancel the candidature of the applicant:
Accordingly, your case was examined in detail by the Committee constituted by the Commissioner of Police, Delhi in view of the nature of your involvement in above-said criminal case, gravity of the offence, the judgment of the court, the grounds of acquittal and the judgment of the Honble Supreme Court of India dated 04.10.1996 in Civil Appeal No.13231 of 1996 (arising out of SLP (C) No.5340 of 1996) DAD Vs. Sushil Kumar and you were issued a show cause notice vide this office Memo No.XII/154/2009/22742/Rectt. Cell (R-IV)/NPL, dated 15.07.2009 as to why your candidature for the post of Const. (Exe.) Male in Delhi Police should not be cancelled for the reasons mentioned therein. In response to Show Cause Notice you have submitted your reply to this office on 22.07.2009 which has been considered alongwith your representation submitted to C.P., Delhi. The plea(s) put-forth by you in the reply have been considered in detail along with the relevant record available on file and found not convincing because of the reasons that in case FIR No.55/2005 u/s 147/148/323/326/504/506 IPOC, PS Hapur (UP) you alongwith your friends abused Mr. Kapil and beaten him. But during the trial no witness agreed to the beating and Court had acquitted you by giving benefit of doubt. In other case FIR No.466/2005 Shri Lalit Sharma & Shri Manoj Gurjar, Genl. Secy. College Union alleged that on 21.9.205 when they were opening the lock of their office you along with Ramender Azad @ Ranku, Pramod @ Lappa, Nirdosh @ Timpu and Deepak Azad @ Tinku came and started abusing them. Deepak hit them with the Butt of Katta". Ramender Azad picked up Phawra kept outside the office and hit on the head, back, and hands and legs of Manoj Kumar with the intension of kill him. When he and Shri Anuj Tyagi raised alarm many people gathered there. Upon this, you along with others flew away from the spot. Manoj was admitted to hospital. During trial of the case all the witnesses betrayed and not supported the prosecution version. Manoj himself admitted that he could not see who has beaten him. The Court found that you & others are not found involved U/s 308/504/34 and acquitted. Keeping in view of the circumstances, it has been established that you had played an active role in beating and causing injuries to the complainant. Your involvement in crime shows propensity in indulging crime without fear of law.
Therefore, on the basis of report submitted by the Committee duly constituted by the Commissioner of Police, Delhi and in view of all circumstances as stated above, you are found not suitable for the post of Constable (Exe.) Male in Delhi Police and your candidature for the post of Constable (Exe.) Male is hereby cancelled with immediate effect.
4. Applicants learned counsel Shri Ajesh Luthra has contended that cancellation of the candidature of the applicant despite he has disclosed it and when a full-fledged trial has found the applicant innocent on acquittal, recommendation by the Committee on unsuitability of the applicant by examining the judgment amounts to overreaching the findings recorded by the judicial authority is misuse of their discretion and has relied upon the decision of this Tribunal in R.K. Gupta v. Union of India & others, 2005 (1) AISLJ 390 to contend that the acquittal on benefit of doubt is an acquittal on merit and for similar ratio, he has relied upon the decision of the Punjab and Haryana High Court in Bhag Singh v. Punjab & Sind Bank, 2006 (1) SCT 175.
5. Apart from the above decisions, applicants counsel has assailed discrimination in the matter of appointment by citing the cases of Shri Brahm Prakash, Shri Rajesh Kumar and Shri Mintu Yadav to contend that being identically situated their candidature was not cancelled and they were not found unfit to be retained in service.
6. Learned counsel for applicant has placed reliance on the following decisions to buttress his plea:
Praveen Yadav v. GNCT of Delhi & another (OA-2255/2009) decided on 12.11.2009, Samraj Singh v. Govt. of NCT of Delhi & another (OA-153/2009 decided on 8.11.2009; and Anoop Kumar v. Government of NCT of Delhi & another (OA-178/2008) decided on 23.7.2008
7. On the other hand, Shri R N Singh, learned counsel for respondents vehemently opposed the contentions and defended the impugned orders passed by the respondents. It is stated that the applicant, who was involved in two criminal cases, the screening committee examined the decisions and while referring to one of the orders of acquittal in criminal case No.918/2005, it is stated that during the cross examination, PW Kapil Tyagi had clearly admitted that quarrelling person was the applicant and no anonymity was found to have implicated the applicant. While referring to the other judgment, it is stated that the PW-1 stating that quarrel had taken place with the applicant and amount of injury, hostility and benefit of doubt given to the applicant does not amount to clean acquittal. As such, the circumstances when examined clearly indicated that applicant had played active role in beating and causing injuries to the complainant. As such, in a disciplined force like Delhi Police, applicant is not found fit and suitable for the post of Constable (Executive). Hence on an opportunity of show cause in consonance with the decision of Apex Court in Sushil Kumars case (supra), the candidature of the applicant was cancelled.
8. It is also stated by learned counsel for respondents that the suitability of the applicant has been examined and finding some evidence of involvement, the discretion vested in the administrative authorities having been exercised judiciously, the decision of the respondents does not suffer from any legal infirmity. It is further stated that the screening committee is constituted by the Commissioner of Police with higher officers in it, as such no arbitrariness or mala fide being raised, he defends the orders passed by the respondents and prays for dismissal of the OA.
9. We have carefully considered the rival contentions of the parties and perused the material placed on record.
10. Right to employment, though may not have established as a fundamental right under the Constitution of India but Articles 14 and 16 of the Constitution forbid hostile discrimination in denial of appointment to a person, who has been selected on his own merit. In a judicial review, mala fide and non-appointment in violation of Constitution of India are the two components giving scope to the Courts to interfere.
11. Delhi Police is governed by Delhi Police Act, 1978 where appointments of subordinate ranks, including Constable, are regulated by Section 12 of the Act, 1978. However, Section 147 of the Act authorizes Administrator, i.e., Lt. Governor to frame rules for recruitment and all other conditions of service of the members of the Delhi Police, which includes the post of Constable. Accordingly, Delhi Police (Punishment & Appeal) Rules, 1980 have into come being where the appointment to the post of Constable (Executive) Male is provided under Rule 9 of the Rules, 1980. Rule 9 (vi) of the Rules, 1980 authorizes the Commissioner of Police to frame standing orders prescribing application forms and detailed procedure to be followed for conducting physical efficiency, physical measurement written tests and viva voce for regulating such a recruitment. However, as a condition precedent, Rule 25 of the Rules, 1980 provides as under:-
25. Verification of character and antecedents. (i) Every candidate shall, before appointment, produce an attestation form, duly certified by two gazetted officer, testifying that the candidate bears a good moral character and they are not aware of anything adverse against him. The candidate may be provisionally enrolled pending verification of his character and antecedents which shall be done by making a reference to the concerned police station. Standing instructions in this regard laying down the procedure for getting such verifications shall be issued by the Commissioner of Police.
(2) An entry about the result of verification of character and antecedents shall be made in the service book/character Roll of the police officer concerned. The papers of such verification shall be filed with his Miscellaneous Personal File.
12. If one has regard to the above, what is required for appointment as a subordinate officer in Delhi Police is a good moral character and there should no adversity against the concerned. One is required to testify his good moral character while he produces the attestation form.
13. Applicant in this case, who has been acquitted in first criminal case earlier to filling up the application form and in another criminal case, he was acquitted later on, had not suppressed this information but had disclosed it both in the application as well as attestation forms. As such, the respondents have not cancelled the candidature on account of suppression of material information.
14. Good moral character is the primary requirement for appointment in a disciplined force and there must be a clear finding to an act involving moral turpitude, if one is to be disqualified for being appointed, as ruled in K.L. Narasimha Rao v. State of A.P. & others, 2002 SCC (L&S) 999.
15. Moral turpitude as per Aiyers judicial dictionary (eleventh edition 1997) has been defined by the High Court of Gujarat in Thakarebhai Bhagabhai v. D.D.O., Surat, (1980) 21 Guj LR 966 and according to which, an offence under Sections 323, 324, 149 and 147 of IPC read with Section 135 of the Bombay Police Act does not involve moral turpitude. Moreover, as per the decision of Punjab and Haryana High Court in Durga Singh v. State of Punjab, AIR 1957 Punj 97, moral turpitude is a term, which has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellowman or to society in general.
16. In the above view of the matter, let us go into the background of the methodology adopted by the respondents before canceling the candidature of the applicant.
17. In Delhi Administration through its Chief Secretary & others v. Sushil Kumar, (1996) 11 SCC 605, a Constable, who suppressed material information of his involvement of the criminal case, though he was acquitted even before he could fill up the application forms, the Apex Court keeping in light the Delhi Police being a disciplined force took cognizance of the acquittal but stressed upon the conduct and character of a candidate to be appointed in service and not the actual result.
18. However, a coordinate Bench of the Apex Court when confronted with an identical situation where the candidature has been cancelled on concealment in Commissioner of Police v. Dhawal Singh, (1991) 2 SCC 246 took into consideration the decision of Sushil Kumars case (supra) and observed that there has been a material decision in both the cases and due to an inadvertent mistake where the respondents had failed to convey the factum of criminal proceedings in which he was acquitted, cancellation of candidature was found to be not apt in law.
19. After these decisions, respondents as a policy decision constituted a screening committee with the orders of the Commissioner of Police to examine the suitability of a person by examining the decision of the trial court and thereafter on response by the concerned, actions were taken to cancel the candidature of the applicant on founding unsuitability. In Secy., Deptt. of Home Secy., A.P. & others v. B. Chinnam Naidu, 2005 SCC (L&S) 323 where the issue was suppression of truth in the attestation form, the Apex Court ruled that denying somebody appointment after one is selected, the same has to be governed by some statutory provisions even though one has no right to that appointment. It was also ruled that whether a person was a desirable person to be appointed in government service was not the subject-matter of adjudication.
20. In Kendriya Vidyalaya Sangathan & others v. Ram Ratan Yadav, 2003 SCC (L&S) 306 where in the attestation form one has suppressed the information, the character verification was found to be an integral part of process of appointment and making a false statement, the termination was held to be justifiable by the Apex Court.
21. In Union of India & others v. Bipad Bhanjan Gayen, (2008) 2 SCC (L&S) 1034 on account of two criminal cases, which the applicant has not disclosed while on training, withholding of relevant information and omission has been held to be apt for termination of his services.
22. What is discerned from the reading of the above ratio is that one, who deliberately withheld on suppression certain information, respondents are within their right to either cancel the candidature or terminate the services of the applicant, which would not be interfereable in judicial review by the Court.
23. However, another aspect of the matter is that the appointing authorities, more particularly in the instant case the Delhi Police, are not acting as quasi judicial authorities but are acting as administrative authorities within their domain to appoint a selectee, who has no indefeasible right of appointment. What is required for adjudging his suitability is laid down under Section 25 of the Delhi Police (Appointment and Recruitment) Rules, 1980 and the only condition precedent for such appointment is that on attestation form if something is disclosed, the person should be found to have born a good moral character and there is nothing pending against him.
24. Mere involvement in a criminal case or registration of FIR is not a proof of involvement in a criminal offence unless the trial court, which is the only competent forum to record a finding as to the guilt of an accused in a criminal offence, delivers the verdict holding one guilty of the offences. The decision in Ghurey Lal (supra) where the Apex Court ruled that once the findings of trial courts are based on fundamental principles of the criminal jurisprudence, the acquittal is a presumption of one being innocent.
25. Insofar as the benefit of doubt and hostility of witnesses are concerned, these are the aspects, which will not be material or relevant to record a finding by the administrative authorities as to involvement of the person in criminal activity or his being guilty of committing the crime. What is allowed to the administrative authorities is to adjudge the suitability of a person but not in the manner that whatever recorded on judicial side by the court of criminal jurisdiction should be overreached and overridden by taking a definite view or reading between the lines in the judgment to arrive at a finding of guilt. It is trite in law that if the acquittal by a trial court is not challenged by the prosecution in higher forum by making an appeal against the acquittal, the decision of the trial court acquitting the accused stands final and cannot be questioned or interpreted otherwise by administrative authority, which is coram non judice in the circumstances.
26. While in service, a police official, who is involved in a criminal case, as per the trite law constituted no bar for holding a departmental inquiry not for an offence committed by the concerned but on a misconduct made out of the offences alleged against the concerned. It is also trite law that despite acquittal, no contrary decisions are there that acquittal does not bar a departmental inquiry, yet pre-dominantly as a consistent view benefit of doubt and hostility of witnesses when the witness has not been found to have been won over by the accused, acquittal made has always been taken as an acquittal on merit. Discretion is always vested in the administrative authorities but the exercise is not unfettered and unguided. In the exercise of discretionary power, the condition precedent is consideration, which includes active application of mind and consideration of all relevant aspects of the matter, as ruled by the Apex Court in Bhikhubhai Vithlabhai Patel & others v. State of Gujrat & another, 2008 (4) SCALE 278.
27. A statutory power in discretion cannot be exercised on absolute and unfettered terms and a discretion has to be exercised judiciously by the administrative authorities.
28. In our Constitution, three separate wings, i.e., Judiciary, Executive and Legislation are independent in their functioning and are advised and cautioned by various pronouncements of the Apex Court not to overlap or interfere in respective domains. No doubt, as a Commissioner of Police or any other subordinate officer, respondents are not the competent authorities to take a decision otherwise as to whether the acquittal of the applicant in criminal case is bad in law or despite his involvement he has been let-off to recommend filing of an appeal against the order of punishment. This domain is exclusively available with the prosecution branch of Government of NCT of Delhi and neither in the Delhi Police Act nor in the Delhi Police (Appointment and Recruitment) Rules, 1980 this power has been delegated to them. Exercise of such power to scrutinize the judgment and by reading between the lines to hold a finding of propensity in crime by the applicant despite acquittal from such an act is an act wholly without jurisdiction. Administrative authorities being creature of statute have to remain within its four corners while exercising their respective powers/discretion.
29. It appears that under the guise of adjudging unsuitability of the applicant for appointment in Delhi Police, an extensive examination of the facts and circumstances of the criminal case and judgment thereupon has been carried out by the screening committee. One of the statements of PW Manoj had been picked up in isolation when he denies hostility in his cross examination. The above factum is the bone of contention and the sole reliance to hold that the applicant had played active role in beating and causing injuries. However, what has been left out from consideration is the observation of the trial court while acquitting the applicant, which is relevant to be highlighted:-
On the perusal of oral evidence and documentary evidence, it is clear that Kapil Tyagi complainant of the case admitted in his examination in chief that Arun and Pramod abused him, in regard to sustain injury, the complainant of the case had not stated any thing. Complainant of the case admitted this fact that some body gave injury from back side and he could not see him clearly shows that accused Arun & Pramod Tyagi did not sustain injury to Kapil Tyagi complainant of the case, merely indicate for abusing. FIR was lodged by Pawan on which complainant of the case admitted his signature, but complainant of the case Kapil Tyagi stated in his examination in chief he admitted his signature on FIR but the contents of written complainant had not read over to him by the written when witness Pawan stated in his cross examination that he had not seen the quarrel and he reached at the spot after half an hour of the occurrence. Witness Sonu Tyagi also stated that he had not seen beatings with Kapil Tyagi. In the cross examination he stated that statement u/s 161 IPC was not read over to him. Statement was written by S.I. himself and had not taken his statement.
After careful consideration of above evidence, documentary evidence and oral evidence, I am of the opinion that from the statement of complainant of the case it is clear that he has no knowledge of whatever was written in the complaint, nor the contents of the complaint read over to him by the writer and only his signature was affixed. In accordance to oral evidence of the prosecution witness Pawan and Sonu, it is very clear that they have not seen any quarrel, Statement u/s 161 Cr. P.C. were not taken from them by the I.O. and he himself wrote the same. During the beatings and occurrence of incident they were not present and reached after half an hour, of which it is clear that no evidence on record for sustained injuries to the complainant of the case Kapil Tyagi. From the statement of complainant of the case it is also clear that the injuries sustained to him from back side and did not see him nor prove other charges by the prosecution.
Therefore on the perusal of all evidence available on record, in opinion of the court, prosecution failed to prove the charges against the accused persons and the accused persons are entitled to get the benefit of doubt and entitled to acquittal.
30. If one has regard to the above, the testimony of Kapil Tyagi was not of beating but of abusing him and when a categorical finding has been recorded by the trial court as to the applicant was not the person who gave injuries to the complainant, picking up on isolation without considering the reply of the applicant, is non-application of the mind by the authorities while adjudging the suitability of the applicant. It appears that the authorities had not applied its mind to the various components, material and record of the criminal trial and on ipsi dixit, isolating the statement, held the applicant guilty of an offence, of which he has been acquitted.
31. Like-wise in another case on the testimony of PW-1 Lalit Sharma where factum of quarrel has come, the finding of the trial court judge as to hostility and no evidence having come on record to prove the charge on benefit of doubt has been construed to be that the applicant has committed the offence. Respondents despite having knowledge of their Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 construed benefit of doubt without examining as to whether in the trial court decision, there has been a specific finding that the applicant is the person who committed an offence but suspicion rests upon him.
32. Indulgence under the guise of adjudging the suitability and infiltrating into the arena, which is occupied by the judicial dicta, i.e., valid reasons for acquittal of the applicant by the administrative authorities to give a finding like a judicial officer in a criminal trial that the applicant had played an active role in beating and causing injuries to the complainant proved his involvement. Apart from these two cases where the applicant has been acquitted, no other adverse material is available with the respondents, which would show that the applicant was not having a good moral character.
33. Before we part with this, a consistent view has been taken by various coordinate Benches of this Tribunal into this aspect. Though we have gone into very minute details as to the jurisdiction of the respondents, yet in Praveen Yadavs case (supra), where one of us (Shri Shanker Raju, Member (J)) was a Member, the Tribunal has recorded as under:-
7. On careful consideration of the rival contentions of the parties and perusal of material placed on record, we are of the considered view 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 a judicial authority by recording a finding over and above the finding recorded by a trial judge, who has been competent enough under the Cr. PC not only to adjudicate but also to consider the issue as to whether a person is guilty of an offence or not? Having held the applicant in a criminal trial on the basis of findings not guilty of the offence, as no incriminating evidence has come forth, it does not lie within the jurisdiction of Deputy Commissioner of Police to take a parallel view that the applicant was involved in the criminal case. It is trite in law that involvement or otherwise of a person in criminal offence is to be ascertained not only by examining the allegations in FIR but also on the basis of finality arrived to a prosecution lodged by the State. As in the present case, the State having miserably failed to establish the evidence against the applicant, we cannot hold that the applicant was guilty of any offence. If such a view is to be upheld in law, then what constituted an offence are the facts and these facts are the particular act of the applicant, which constituted an offence within the meaning of Sections 325 and 307 IPC. Having not been a guilty of such an offence, inference drawn from the allegations either in the FIR or on the basis of the statements of witnesses made under Section 161 of Cr. PC, would amount to picking an isolated portion of the investigation discarding the judicial findings or the record. The authority has acceded to its jurisdiction by not acting as a quasi judicial authority but partaking the character of the Judicial Magistrate recorded a finding over and above the finding of the trial judge, which has not been challenged by the prosecution in appeal. Having attained finality, it overrides any finding recorded on administrative side.
8. Insofar as the fitness and character of a person for appointment to Delhi Police is concerned, having been acquitted in the criminal case where no imputation and suspicion has been raised or observed by the trial court, we cannot substitute the views of disciplinary authority to hold him unfit for holding the post of Constable. A person acquitted of an offence if otherwise when no adverse material has been found against him. This is an obliteration of any stigma attached to the facts or the constituted facts of offence, for which a presumption and a legal inference in law has to be drawn that a person has not been involved in a criminal case. If such a view is taken, then the applicant was fit to be appointed to Delhi Police and wrongful denial is bad in law.
9. We are not oblivion of the fact that a similar litigation has gone to the High Court where a direction had been issued giving discretion to the appointing authority to adjudge the circumstances of the case and thereafter to take a view on appointment. However, applying the aforesaid in the instant case, the appointing authority has not considered this aspect in true perspective and merely because the offences are under Sections 307 and 325 IPC, totally ignoring the decision of the trial court whereby nobody has caused the applicant on any assault and the trial court having acquitted the applicant, a contrary view taken is non-application of mind and using the discretion in a most non-judicious manner, cannot be countenanced in law.
10. A similar view has been taken on a different context on the plea of discrimination by the coordinate Bench of this Tribunal in Anoop Kumar v. Govt. of NCT of Delhi & another (OA-178/2008) decided on 23.7.2008, which would buttress our plea and substantiate the cause of the applicant. We respectfully agree with the same and follow it.
11. Resultantly, OA is allowed by setting aside the impugned order and restoring the appointment of the applicant. Respondents are directed to now offer appointment to the applicant within a period of three months from the date of receipt of a copy of this order. No costs.
34. In Anoop Kumars case (supra), another coordinate Bench of this Tribunal recorded the following observations:-
. The OAs initially filed by them were allowed by this Tribunal by holding that an acquittal is an acquittal and the mere fact that a person has been acquitted by giving benefit of doubt when the witnesses turn hostile, would not make any difference. This view of the tribunal did not find favour with the Division Bench of the Honble Delhi High Court, and all the matters were remitted to the Commissioner of Police to find out the nature of offences and the manner of acquittal, and accordingly pass appropriate orders in accordance with law. While defending the order of the Tribunal, the applicants had urged before the Honble High Court that there was clear and apparent discrimination even in the decision making process of the respondents as in some cases they had cancelled the candidature of few persons on the ground that they were not suitable for the post of constable, whereas in cases of some other similarly situated persons, against whom also there were criminal cases, the respondents had taken a decision to allow them to join and work as constable in the same police department. In support of the said contention, cases of Rajesh Kumar and Braham Pal were referred. Braham Pal, it was urged, was involved in a criminal case u/s 308 IPC and was acquitted of the charge by the court pursuant to compromise arrived at between the parties and as the witnesses did not support the prosecution case, and he was allowed to work as constable. On the aforesaid contention raised by the applicants, while remitting the case to the Commissioner of Police, the Honble High Court also observed that in some other cases the Commissioner of Police had allowed the applicants to join the post considering the gravity of the offence wherein they were involved. One of the aspects that had thus to be considered by the Commissioner of Police was to find out whether a person similarly situate to an applicant was appointed or not. This aspect of the case we have also referred to in our judgment in Sanjeev Kumar & Others (supra). There is absolutely no dispute that a person similarly situated has since been appointed. The applicant may not be right in saying that Braham Prakash was a candidate along with him, as it appears he competed in selection process held earlier, but nonetheless, there were no distinguishing features between the nature of offence and the manner of acquittal in his case and that of the applicant. This plea was specifically raised by the applicant and surely, as the respondents had no answer to the same, they just kept quiet over it. The learned counsel representing the applicant has relied upon a decision of this Tribunal in OA No.1495/2007 decided on 7.1.2008 in the matter of Virender Singh v Union of India & Others. The applicant therein was involved in a criminal case for offence u/s 308/34 IPC, and yet this Tribunal had directed the respondents to consider his candidature without taking into consideration his involvement in the criminal case, but the same appears to be distinguishable on facts. Acquittal in the said case was a clean acquittal. It was not a case of witnesses turning hostile and further, when the offence was said to have been committed, the applicant therein was a minor and had made application for appointment as constable after eight years of the incident. It is true that we have held in the case aforesaid that offence u/s 308 IPC is an attempt to commit culpable homicide not amounting to murder, maximum sentence prescribed for which is seven years, and it is not a heinous crime. The applicant, it appears, has been meted out with discriminatory treatment. The respondents cannot be permitted to have different yardsticks for different people. They have to have a uniform view when the facts presented before them are absolutely identical.
9. In view of the discussion made above, this Application is allowed. Direction is issued to 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 to the applicant would not be denied on the ground of his involvement in a criminal case. There shall be no order as to costs.
35. In Kulbir Singh v. Govt. of NCT of Delhi & another (OA-2939/2009) decided on 26.2.2010, in an identical situation, a coordinate Bench of this Tribunal, of which one of us (Dr. Veena Chhotray, M (A)) is a Member, the following observations have been made:-
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.
35. Having regard to the above, as we respectfully agree with the decisions of the coordinate Benches of the Tribunal, referred to above, we are of the considered view that denial of appointment to the applicant and cancellation of his candidature is not apt in law.
36. Resultantly, OA is allowed. Impugned orders are set aside. Respondents are directed to offer appointment to the applicant as Constable (Executive) Male with consequences, as admissible in law, within a period of two months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/