Following are the citations which says that an accused in Dowry and domestic violence cases can't be deprived of Government jobs even when trial has not been completed and conviction has not come.During such phase an accused can file writ petition U/A 226/227 and right to speedy trial is a requirement under Article 21 of the
Constitution guaranteeing right to life and liberty of a citizen.
Central Administrative Tribunal - Lucknow
Vineet Kumar Aged About 32 Years ... vs Union Of India Through Secretary, ... on 12 September, 2012
Original Application No. 331/2011
This the 12th day of September, 2012
Hon ble Mr. Justice Alok Kumar Singh, Member (J)
Hon ble Sri S.P.Singh, Member (A)
Vineet Kumar aged about 32 years son of Sri Vijay Pal Singh resident of 741, Civil Lines, Kalyani Devi, Unnao.
.
Applicant
By Advocate: Sri P.K. Srivastava
Versus
1. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director, Central Bureau of Investigation, Govt. of India, 5B, 7th Floor, CGO Complex, Lodhi Road, New Delhi-110003.
3. Staff Selection Commission, through its Chairman, Block No.12, CGO Complex, Lodhi Road, New Delhi-110003.
4. The Regional Director (NR), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi-110003.
Respondents
By Advocate: Sri S.P. Singh
(Reserved on 10.9.2012)
ORDER
By Hon ble Mr. Justice Alok Kumar Singh, Member (J)
This O.A. has been filed for the following reliefs:-
i) to quash the orders dated 12.5.2011 and 17.6.2011 contained in
Annexure 1 and 2 to this O.A. holding such orders bad in law, not
enforceable and simultaneously directing the opposite parties to
appoint the petitioner on the post of Assistant Public Prosecutor in
CBI in pursuance of his selection by the Staff Selection Commission
(SCC) within a specified time limit that may be allowed by this Hon ble
Tribunal.
ii) to issue any other order or direction as this Hon ble Tribunal deems
fit and proper may also be passed along with the costs of the
original application.
2. In short, the case of the applicant is that the Staff Selection
Commission (SSC) (Respondent No.3) advertised 17 vacancies for selection
for the post of Assistant Public Prosecutor (APP) for Respondent
No.2 i.e. C.B.I. vide advertisement published in the employment news /
weekly news 22-28 August, 2009. Reservation for the relevant
categories were also made and the applicant belonging to OBC category,
being eligible for the post, participated in the selection and
after interview, he was finally selected in the month of July, 2010. He
stood at position No. 10 in the select list and second amongst the OBC
category candidates. On 12.8.2010, CBI, New Delhi asked for certain
documents which were to be sent by registered post or in person latest
by 31.8.2010 along with two set of attestation form were also enclosed
for filling. The applicant appeared in person on 26.8.2010 in the
office of the CBI, New Delhi along with the requisite certificate.
Thereafter, when the applicant did not receive any communication and
other selected candidates were being given appointment letters for
joining by 15.1.2011, he preferred an application under Right to
Information Act on 29.4.2011 and received communication dated 20.5.2011
enclosing therewith point-wise reply furnished by CBI on 12.5.2011. The
SSC also issued a show cause notice of the same date i.e. 12.5.2011 to
the applicant calling upon him to show cause as to why not the
candidature of the applicant be cancelled because he has misled the SCC
regarding his involvement in the criminal case. He submitted a detailed
reply on 25.5.2011 (Annexure -9) saying that the candidature of the
applicant has been rejected in an arbitrary manner without application
of mind. It has also been clarified that at the time of submission of
forms in response to the advertisement , no criminal case was pending
against the applicant. At that relevant time, he was staying at Banaras
Hindu University pursuing his PHD. During that period, a matrimonial
discord brewed up with his elder brother Pradeep Kumar Singh and his
wife who were staying in Vikas Nagar, Lucknow. His elder brother
filed a divorce suit. On the other hand, his brother s wife lodged an
FIR under case Crime No.43/2010 u/s 498-A, 323, 504 and 506 IPC and
> Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur falsely
roping therein the entire family which included the applicant , his
married sister and Bua etc. (Annexure 10). During investigation, the
police added Section 324, 292, 294 ,452 IPC also. But the applicant was
enlarged on bail on 27.5.2010 (Annexure 11).
3. It has been further pleaded that the police finally submitted
charge sheet against all the family members except the father and the
Learned CMM, Kanpur took cognizance on 27.5.2010. As already said at
the time of filling form, neither there was any requirement by the SSC
nor there was any occasion for the applicant to inform the SSC as
regard the lodging of FIR in the criminal case. Similarly, at the time
of interview held on 23.6.2010 also, whatever information was sought
by the SSC were duly supplied. Nothing has been concealed by the
applicant at both the above stages. During course of time, some of the
family members also challenged the charge sheet u/s 482 Cr PC before
the Hon ble High Court vide Misc. Application No. 23046/2010 and the
proceedings of the lower court were stayed. Thereafter, the matter was
sent to the mediation centre for amicable resolution. The efforts
however failed and ultimately the above case was also dismissed on
8.3.2011. After the applicant was declared successful by the SCC and
recommended for appointment in response to the letter dated 12.8.2010,
it was for the first time the applicant had to submit attestation form
to CBI answering certain queries as mentioned at point No.12 as under:-
12 a) Have you ever been arrested? Yes/No
b) Have you ever been prosecuted? Yes/No
c) Have you ever been kept under detention? Yes/No
d) Have you ever been bound down? Yes/No
e) Have you ever been fined by a court of law? Yes/No
f) Have you ever been convicted by a court
of law for any offence Yes/No
g) Have you ever been debarred from any
Examination or rusticated by any University? Yes/No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination? Yes/No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes/No
j) detention /fine/conviction/ sentence
Punishment etc and /or the name of the
Case pending in the Court/ university
Educational authority etc. at the time of
Filling up this form? Yes/No
Note 1) Please also see the WARNING at the top of this attestation form.
2) Specific answer to each of the question should be given by striking out Yes/No as the case may be.
The warning at Point No. 1,2 and 3 mentioned in the said attestation form are being berating been reproduced herein:-
1. The furnishing of false information of suppression of any factual
information in the application for would be a disqualification and is
likely to render the candidate unfit for employment under the Govt.
2. If detained, arrested prosecuted bound down, fined, convicted
debarred acquitted etc. subsequent to the completion and submission of
this form the detail should be communicated immediately to the Union
Public Service Commission or the authority to whom the attestation form
has been sent earlier as the case may be, failing which it will be
deemed to be suppression of factual information.
3. If the act that information has been furnished or that there has
been suppression of any factual information in the attestation form
comes to notice at any time during the service of a person, his
services would be liable to be terminated.
4. The applicant answered the aforesaid questions correctly including
about the criminal case and he also gave complete description of the
criminal case at the foot of the point No. 12. Thus at no point of time,
he concealed any thing either from the CBI or from the SSC. Reference
has also been made to para 2.2.7 of the chapter 2 of the Manual of
CBI (Admn.) of Govt. of India, New Delhi which provides for
verification of character and antecedents. It is also provided that
even if a person has been convicted after obtaining specific approval
of the Govt. if appointing authority feels that there are redeeming
features and reasons to believe that such a person has cured himself
of the weakness, he may be appointed. In the case of the applicant, he
has not been convicted and there is no provision in the rules including
the CBI manual that selection of a candidate may invite ineligibility
in case a criminal case is found to be pending. Still his candidature
has been canceleld without any application of mind . Hence this O.A.
5. The O.A. has been contested by filing a detailed CA on behalf of
the CBI (R.No.1). It has been admitted that the applicant was finally
selected but the SSC while recommending the names of the candidates
for appointment in the CBI had advised to verify their
character/antecedents before issuing offer of appointment. The
applicant was therefore, directed to furnish the required information in
the attestation form for verification of his character/ antecedents
vide letter dated 12.8.2010. The applicant filled the attestation form
under his signature. In column No.12 of the Attestation form, he has
furnished information as under:-
a) Have you ever been arrested? Yes
b) Have you ever been prosecuted? No
c) Have you ever been kept under detention? No
d) Have you ever been bound down? No
e) Have you ever been fined by a court of law? No
f) Have you ever been convicted by a court
of law for any offence No
g) Have you ever been debarred from any
Examination or rusticated by any University
or any other educational authority/
institution? No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination/ selection? No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes
6. It has been also admitted that the applicant has further mentioned
that a case Crime No. 43/2010 dated 21.2.2010 u/s 498-A/323/504/506
IPC and > of DP Act has been registered against him in the
Police Station Kidwai Nagar, Kanpur. It was further mentioned that
Hon ble High Court has referred the matter to the mediation centre and
proceedings has been stayed. Based on the information furnished by
the applicant, the District Magistrate, Unnao was requested vide
letter dated 6.9.2010 for verification of character /antecedents of the
applicant. He sent his report on 31.12.2010. Similarly, S.P. Unnao
also sent his report on 5.10.2011 mentioning about the pendency of the
above criminal case. The verification about the conduct of the
applicant was also made by the CBI itself through its Dy. S.P. who
reported on 28.9.2010 that the charge sheet dated 6.6.2010 under the
aforesaid sections has been filed, which is under trial. After
examining the above reports, it was found that the applicant is
involved in the above criminal case which is still pending . Though he
has not been convicted, it was decided not to appoint him in the
organization. Accordingly, his dossier was returned to SSC vide
letter dated 3.2.2011 followed by letter dated 15.2.2011 requesting
to sponsor another candidate of OBC category in his place. The
applicant was also informed about this vide letter dated 12.5.2011 with
reference to his application dated 29.4.2011 under RTI. Thereafter, SSC
issued a show cause notice dated 12.5.2011 to the applicant . He
submitted his reply to the SSC on 25.5.2011. After due consideration of
the reply, the SSC vide its letter dated 17.6.2011 had cancelled the
candidature of the applicant.
7. The applicant also filed Rejoinder Reply reiterating his
averments contained in the O.A. and also saying that now even the
criminal case against him and his family members has been decided on
29.3.2012 and all the accused along with applicant have been acquitted.
After this judgment, no appeal has been filed in the higher court of
law. Therefore, the applicant deserves to be appointed in pursuance
of his selection by the SSC.
8. No Counter Reply has been filed on behalf of SSC which has passed the impugned order dated 17.6.2011 (Annexure -2).
9. We have heard the learned counsel for parties and perused the material on record.
10. Before entering into the merit of the case, certain facts are
required to be mentioned which are either admitted or not denied from
the other side. It is worthwhile to mention that out of the four
respondents, including Union of India, CBI and SSC, only CBI has filed
Counter Reply.
11. Admittedly, the applicant got finally selected by the SSC for
the post of Assistant Public Prosecutor for CBI in response to the
advertisement published in the employment news/weekly news 22-28
August, 2009. He stood at position No.10 in the select list and second
amongst the OBC category candidates. On 12.8.2010, the CBI, New Delhi
asked for certain documents which were required to be sent by
registered post or to be made available in person latest by 31.8.2010.
Those documents also included two set of attestation forms which were
to be filled by the applicant. The applicant personally submitted
those forms/ documents on26.8.2010 in the office of the CBI, New Delhi.
12. Earlier, in response to the advertisement in question, the
applicant had filled the form (Annexure 5) on 21.6.2010 showing him a
practicing advocate in Unnao Bar Association from 11.1.2003. This form
consisted of 16 columns which we have gone through but did not find
any column requiring to give any particulars of involvement in any
criminal case. Similarly, the typed copy of the advertisement in
question, which has been brought on record also does not show any such
requirement. It is also noteworthy that till that relevant time, only
an FIR has come into existence in case Crime No. 43/2010 dated
21.2.2010. But any charge sheet/ criminal case was not pending. It
has also not been denied that at that time, the applicant was staying
at BHU pursing his PHD and during that period , a matrimonial
discord brewed up with his elder brother and elder brother s wife who
were staying in Vikas Nagar, Lucknow. His elder brother filed a
divorce suit. On the other hand his elder brother s wife lodged an FIR
under case Crime No. 43/2010 U/Ss 498-A, 323, 504 and 506 IPC and
> Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur. It is a
matter of common knowledge that in such unfortunate matrimonial
disputes, cases are lodged from both sides and from the side of the
wife, when an FIR is lodged, allegation of harassment on account of
non-fulfillment of demand of dowry etc. are usually made not only
against the husband but also against all the family members and some
times even against married sisters etc. as has been done in the present
case also. The applicant was however, released on bail. Thus, at the
time of filling form, neither there was any requirement in the form
or in the advertisement issued by the SSC nor there was any occasion
for the applicant to inform the SSC in respect of lodging of FIR in a
criminal case. For the first time, after his final selection, such
information was sought vide letter dated 12.8.2010 in the shape of
attestation form at point No.12. It is also not disputed that the
applicant furnished correct information in column No.12. The relevant
sub columns are (a) and (i) :
a) Have you ever been arrested? Yes
i) Is any case pending against you
in any Court of law at the time of filling
up this Attestation form? Yes
13. In fact these replies have been categorically admitted in para 8
of the counter reply filed by the CBI itself. Not only this, it has also
been fairly admitted in the same paragraph of Counter reply that the
applicant has also gave particulars such as case Crime No. 43/2010
dated 21.2.2010 U/Ss 498-A, 323, 504, 506 of IPC and > of
D.P. Act Police Station, Kidwai Nagar, Kanpur and that the Hon ble
High Court has referred the matter to the Mediation Centre and
proceedings have been stayed and that the applicant was granted bail
by the CMM Court, Kanpur. In the show cause notice issued on 12.5.2011
(Annexure -8), it is mentioned as to why the candidature may not be
cancelled as the candidate has mislead the Commission regarding his
involvement in criminal case. But in fact, there does not appear to be
any concealment or act of misleading on the part of the applicant
because admittedly, he has revealed the relevant information with full
particulars in response to the relevant columns of the attestation
form as mentioned above. Probably, that was the reason that while
passing the impugned order dated 17.6.2011 (Annexure -2), cancelling the
candidature of the applicant, the ground of concealment or misleading
has not been mentioned. Instead it has been simply said that on
account of his involvement in the said case, it has been decided not
to appoint him in the CBI as APP. We would come to that question
hereinafter. But we find that the explanation/ reply was sought
unnecessarily and wrongly from the applicant by means of show cause
notice dated 12.5.2011 that he has mislead the Commission regarding his
involvement in the criminal case, whereas he had furnished all the
required information correctly in response to para 12 of the
attestation form as already mentioned. This becomes further clear from
the reply submitted by the applicant in response to the above show
cause (Annexure -9). It is a detailed reply comprising 10 paragraphs.
The relevant paragraphs of the reply are as under:-
4. It so happened there after that a criminal case wide CR Case No.
43/2010/ U/S 498-A, 323, 504, 506 IPC and > D.P.Act has been
registered at police station Kidwai Nagar, Kanpur (U.P. on 21.2.2010 on
the complaint of Smt.Meera Devi. The said Smt. Meera Devi is wife of
elder brother of the applicant namely Pradeep Kumar Singh. Entire
family of the applicant and also certain distant relatives has been
roped in the said criminal case which is essentially the matrimonial
dispute between my elder brother and his wife. The Axe has also fell
upon the applicant only because he is the younger brother of husband of
said Smt.Meera Devi as he has also being named in the said case.Teh
copy of the FIR enclosed as Annexure -1.
5. The applicant came to know of such FIR only on 14.3.2010 when he
was arrested while he was staying in Lucknow. The applicant was released
on bail wide order dated 15.3.2010 by CMM, Kanpur . Copy is enclosed
as Annexure No.2. Mother was also named in the FIR was released on bail
on 15.3.2010 the elder brother was also released on bail on 20.3.2010.
I.O. supplemented the charge with sections 324, 292, 294, 452 on
17.3.2010. For which the applicant was released on bail 27.5.2010 by
the CMM Court, Kanpur. Rest of the person named in FIR sought stay on
their arrest by preferring the writ petition .Wherein the Hon ble High
Court, Allahabad wide order dated 29.3.2010 stayed the arrest of
remaining.
6. The applicant received the interview letter from SSC conveying
the interview date fix on 23.6.2010.The applicant was required to
submit the biographical data at the time of interview. The format was
sent along with the interview letter. The applicant appeared in the
scheduled interview on 23.6.2010 and also submitted the biographical
data. It is pertinent to mention that there was no requirement as
per the information sought in the said biographical data to bring in
the notice of the SSC as to any criminal case which could have been
lodged/ instituted after the submission of the application form till the
date of interview. The applicant was neither only inquired in this
behalf by the SSC in all bonafides and good faith. He submitted the
biographical data without any concealment of information , he was
expected to fill in prescribed bio data form.
7. The applicant was declared successful when the result was declared in July/ August, 2010.
8. Thereafter, the applicant received letter dated 12.8.2010 from
the CBI, HO , New Delhi where under he was required to submit
certificate in support of date of birth, education certificate, caste
certificate in original before the CBI by 31.8.2010. Two attestation
form fully filled by the candidate was also required to be submitted
by 31.8.2010, attestation form was also enclosed with this letter.
9. The applicant appeared before the CBI, H.O. on 26.8.2010 for the
purpose of verification of his certificates and submissions of
attestation form in response to the letter of CBI. The applicant
submitted the attestation form the said form contained every detail of
which the applicant was required to make disclosure at point No.12,
therein the applicant was required to answer various questions by
putting in yes/ no option, a few of which questions pertaining to the
arrest / prosecution conviction criminal case etc. the applicant
made true and correct disclosure to every question wide point no. 12
of the form. The applicant in all bonafide and with a view to give
complete information regarding the criminal case in which he was
unfortunately found involved by writing details of the same in his
own handwriting at the foot of the page no. 4 below the point No.12
(i) .At the point of time, Hon ble High Court , Allahabad ordered
dated 15.7.2010 the dispute seems to be between husband and wife,
matter was referred to mediation centre and further proceedings of
criminal case No. 43/2010 was remain stayed. The copy of the order is
enclosed as Annexure No. 3. It is also relevant to mention that it was
not required in the attestation form that SSC is also to be informed
by the candidate as regard to lodging of criminal case.
10. The applicant never concealed anything at any point of time
either from the SSC or from the CBI. The application form submitted
to the SSC was duly filled in and complete in all respect. Since no
case was lodged against the applicant by that time, there was no
occasion of any concealment on the part of the applicant. Again there
was no requirement in the application form that SSC has to be kept
informed regarding future involvement in criminal case, subsequent
to submitting the application form neither was there any column in
biographical data sent by the SSC along with the interview letter.
Requiring the applicant to disclose the criminal case lodged after
submitting the application form till the date of interview. Again
there was no occasion for the applicant to conceal anything from the
SSC when he was not asked for the same by the SSC, in the first place.
For the first time, after the submission of application form in
connection with the present requirement process the applicant was
required to disclose the criminal case pending against the applicant
when he had to submit the attestation form sent by the CBI and where
in the applicant mentioned everything without even iota of any
concealment .The applicant did never have any point of time nor will
in future any intention to mislead either the SSC or CBI.
In view of the above, it is most humbly requested the candidature of
the applicant may not be cancelled. The applicant sincerely desires
to serve the institution of the CBI with complete determination and
dedication and if he is given appointment on the said post he would
ever feel obliged.
Applicant
Sd/-
25.5.2011
14. Now, we come to the impugned order of cancellation of
candidature of the applicant which has been passed after considering the
above reply comprising 10 paragraphs running into four pages. In
comparison to the above, the impugned order is very short which consists
of only seven lines and there is not even a whisper about the main
and sole point i.e. the applicant has concealed or mislead the
Commission about his involvement ina criminal case. It appears that
when the Commission did not find any act of misleading or
concealment, then they left that point and instead passed an order
saying that on account of his involvement in the criminal case, it has
been decided not to appoint him. The detailed explanation / reply
submitted by the applicant has not been discussed at all. Thus, there
does not appear to be any sequence or proximity or coherency between
the show cause notice, the detailed reply submitted by the applicant
vis-a-vis the above order passed by the SSC. There also does not appear
any application of mind in passing the impugned order. It is also not a
reasoned order because none of the points raised by the applicant in
his reply have been dealt with. Not only this, there also does not
appear to be any rule or provision in the CBI manual or elsewhere as
claimed by the applicant that a person duly selected by the SSC shall
be held ineligible or unsuitable for appointment in the CBI merely
because of pendency of a criminal case. There was also no direct
involvement of the applicant in this case. Being husband s brother
(Devar), he along with his married sister and Bua who were living
separately, were also implicated. It was also not a case of moral
turpitude or any serious offence. Reference has also been made in the
pleadings contained in O.A. to para 2.2.7 of the chapter 2 of the
Manual of CBI (Admn.), Govt. of India, New Delhi which provides for
verification of character and antecedents. It says that even if a
person has been convicted then after obtaining specific approval of
the Govt. , if appointing authority feels that there are redeeming
features and reasons to believe that such a person has cured himself of
the weakness, he may be appointed. In the present case, what to say of
conviction, the applicant has been finally acquitted on 29.3.2012 and no
appeal has been filed in the higher court of law. In the present case,
the SSC has not even filed any Counter reply. It is only the CBI who
has filed Counter Reply. Thus, the author of the impugned order i.e. the
SSC (R-3) has not even dared or cared to controvert the pleadings of
the O.A. Therefore, as against the SSC, the pleadings of the O.A.
stand uncontroverted and admitted.
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
Hon ble Delhi High Court allowed it. Thereafter, an appeal was filed
by the Commissioner of Police. The Hon ble 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.
2. 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 Hon ble 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 Hon ble 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 Hon ble 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 Hn ble 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 Hon ble 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.
3. 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 Hon ble 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.
4. 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 Hon ble 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 Hon ble 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 Hon ble 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 Hon ble 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 Hon ble 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 Hon ble 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 Hon ble 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.
16. From the side of the respondents following case laws have been relied upon:-
(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 Hon ble High Court however directed to issue appointment
letter subject to final decision of pending criminal case. The Hon ble
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 Hon ble 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 applicant s 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 Hon ble 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 Hon ble 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.
(S.P.Singh) (Justice Alok Kumar Singh)
Member (A) Member (J)
HLS/-
-------------------------------------------
Central Administrative Tribunal - Delhi
Harish Kumar S/O Surender Singh vs Government Of Nct Of Delhi Through ... on 28 July, 2008
Bench: V Bali, J A L.K., M Chhibber
ORDER
V.K. Bali, J. (Chairman)
1. Harish Kumar, applicant herein, had applied for selection to the
post of Constable (Driver) in Delhi Police on 02.05.2005 in prescribed
format. He cleared the written test on 05.08.2005, physical measurement
test on 18.01.2006, trade test on 02.02.2006 and interview on
03.04.2006. On succeeding in the above tests and the interview, he was
called for completion of codal formalities for appointment as Constable
(Driver) on 03.05.2006, and after completion of such formalities, he
was provisionally selected along with other 14 candidates on
26.05.2006, and was directed to report for medical examination on
13.06.2006. As the luck would have it, by the time he was called to
complete codal formalities, his in-laws and wife got an FIR registered
under Section 498A/406 IPC against him and his relations. He honestly
disclosed this fact in his pre-appointment formalities. In
November/December, 2006, when other candidates, selected with him,
received appointment letters but the same was not issued to him, he
submitted a representation, upon which he received the impugned order
dated 05.02.2007 conveying him that his case for appointment has been
held in abeyance till the finalization of the case in the trial court
after which it shall be decided after thorough examination of the
decision of the court on merits. It is in the wake of facts, as
mentioned above, present Application under Section 19 of the
Administrative Tribunals Act, 1985 has been filed seeking to set aside
order dated 05.02.2007 and in consequence thereof to direct the
respondents to issue him appointment letter for the post of Constable
(Driver).
2. It has been the case of the applicant all through as also before
this Tribunal that he got married on 21.04.2003, and after marriage it
was revealed that his wife Mrs. Sumitra had been suffering from certain
serious incurable diseases and was thus not fit to perform marital
obligations. The said fact was concealed by parents of the girl from
him and the marriage was thus arranged fraudulently. The above fact
came to his notice when he took his wife to doctor for her treatment.
It is the case of the applicant that after his marriage in April, 2003,
he has been regularly getting his wife treated from various hospitals
i.e. Charak Palika Hospital, Moti Bagh, Satyam Medical Centre
(Government approved Maternity & Nursing Home), Gopniye Nirog Dham,
A.I.I.M.S. etc. Medical record of applicant's wife has been enclosed at
Annexure A-3 (Colly.). It is further the case of the applicant that
when his in-laws realized that disease of their daughter is incurable,
they, under fear psychosis that applicant may not divorce their
daughter, lodged a false complaint against him in Crime Against Women
Cell, before whom a number of hearings were given but no amicable
solution came to be found out, and on false and fabricated grounds the
applicant was subjected to trial before the court of ASJ, Patiala House
under Sections 498-A/406 IPC. The applicant avers that when true facts
were brought to the notice of trial judge seized of the criminal case,
some interim orders, which may show the defence projected by him, came
to be passed. Such orders have been placed on record at Annexure A-5
(Colly.). The first order placed on record is dated 21.03.2005 which
appears to be passed in the application filed under Section 438 Cr.P.C.
seeking anticipatory bail, relevant part whereof reads as follows:
The complainants are not ready and willing to join the company of
the applicants. There seems to be some dispute regarding the mental
as well as physical health of complainant Sumitra which has resulted
into the breaking of the two families, though the complaint has been
filed under Section 406/498-A IPC. Applicant Yogesh Kumar is ready
and willing to take back his wife and child with him. No FIR is
registered.
Under these circumstances, in case any FIR is registered against any
of the applicants and applicants are wanted in any case,
Investigating Officer shall give them a week's notice before their
arrest.
The next order placed on record is dated 25.10.2005, which reads as
follows:
Counsel for complaint submits that both the complainants are ready
to live with their husband. Counsel for applicants submits that
applicant Yogesh in FIR No. 168/05 is ready to keep the complainant.
Counsel for applicant also submits that the complainant Sumitra is
suffering from epilepsy fits (dyspareunia) and she was got treated
by the applicant. The photostat copy of medical papers have been
filed by the applicant. IO seeks time to verify the same. Adjourned
to 14/11/05. Till then interim order to continue.
The next order is dated 19.12.2005. The same reads as follows:
I have heard the parties at length. Complainant is willing to go to
matrimonial home but Mr. Suhail submits that he is not in a position
to say anything at this stage. However, he has argued vehemently
that this is not a case where Section 406/498-A IPC is attracted as
he is willing to return the entire dowry articles. He has time and
again taken the dowry articles to the CAW Cell He has shown me the
photographs of the truck loaded with the articles standing in front
of the police station but IO for the best reasons known to him has
not collected the articles nor the complainant. He has argued
vehemently that complainant Sumitra is suffering from dysparenia. He
submitted that there has been no cohabitation between the
complainant and the applicant and this is the root cause of the
entire problem. It is very difficult to give any opinion at this
stage but both the complainants are willing to join matrimonial
home. I direct the complainant and the applicants to sit together in
the company of Ld. counsel for complainant as well as for applicant
and sort out the matter amicable. If applicants are not willing to
take back the complainants the applicants are directed to return all
the dowry articles to the complainant. To come up on 20th January
2006. Interim order to continue.
The last order placed on record is dated 20.04.2006. The same reads as
follows:
It is reported that Rs. 70,000/- have been agreed to be paid by the
accused persons to the complainant without prejudice in lieu of the
jewelery articles. Rs. 40,000/- have been paid in cash today to the
father of the complainant by the Ld. counsel for the accused before
the Court. Rs. 30,000/- are agreed to be paid today to the counsel
for the complainant. On this, Ld. counsel for complainant has no
objection to the grant of anticipatory bail to the applicants.
In view of the same, it is directed that in the event of arrest,
applicants shall be released on bail on their furnishing personal
bond in the sum of Rs. 10,000/- with one surety each in the like
amount to the satisfaction of the IO/SHO concerned subject to the
condition that the applicants shall join investigation of the case
as and when summoned by the IO.
3. While challenging the impugned order, the applicant has taken
variety of grounds but what primarily has been urged before this
Tribunal is that at the time the impugned order came to be passed, no
charge had been framed against the applicant or his co-accused by the
court seized of the matter and, therefore, the procedure so as to keep
the candidature of the applicant in animated suspension or in abeyance
would be wholly illegal as has already been held by judicial precedents
upto the highest court of the land. Learned Counsel appearing for the
applicant has tried to compare cases of promotions where sealed cover
procedure is adopted with initial appointment. It is urged that if
while promoting a government servant the sealed cover procedure is
adopted only when a charge is framed in a criminal case, the same
should also hold good with regard to initial appointment. The other
ground seriously pressed is with regard to validity of circular relied
upon by the respondents on the basis of which the candidature of the
applicant has been kept in abeyance. It is urged that circular relied
upon by the respondents is wholly unjustified and unreasonable which
offends Articles 14 & 16 of the Constitution of India.
4. Pursuant to notice issued by this Tribunal, respondents have entered
appearance and, while filing counter reply, contested the cause of the
applicant. At this stage, we may only refer to the circular relied upon
by them in denying relief to the applicant. The same, we may, however,
reproduce while dealing with question number (ii) framed for
adjudication by this Tribunal, which too, we may mention hereinafter.
Suffice it to say at this stage that the circular dated 12.9.1983 inter
alia provides that if a candidate may have revealed his involvement in
a criminal case, he would be taken in service, if he is fully
exonerated by the court or no moral turpitude was involved. On the
basis of the circular, it is the case of the respondents, once a
candidate seeking appointment in Delhi Police is involved in a criminal
case, the decision in the said case has to be awaited and appointment
made only if he is fully exonerated, and further that the offence with
which he may have been charged, does not involve moral turpitude.
5. The Division Bench, before which the matter came up for hearing on
05.11.2007, by an order of even date, referred the case to the Full
Bench. The questions referred to the Full Bench would be clear from
paragraphs 4 to 6 of the reference order, which read as follows:
4. The circular relied upon by the respondents deals with two
different situations. Candidates who may not have revealed their
involvement in a criminal case despite knowledge of the same, would
not be appointed and in fact, their candidature shall be cancelled
as they had given false statement and tried to seek employment by
adopting deceitful means. The other situation covered under the
circular pertains to such candidates who have disclosed the factum
of pendency of criminal case against them. The candidature of such
candidates shall be kept in abeyance till the decision of the case
and it is only after the court's judgment that the case along with
the judgment would be thoroughly examined with a view to ascertain
as to whether the candidate has been fully exonerated. The decision
could be taken at the level of Police Headquarters. If the circular
Annexure R-I is strictly applied irrespective of the nature of
criminal involvement of a candidate and the facts and circumstances
under which he is facing criminal trial, perhaps the impugned order
cannot be adversely commented upon and has thus to be sustained. The
words 'still pending' in the circular would take their ordinary
meaning, and presentation of challan in a court would be treated as
if a case is pending against a candidate. The question that,
however, arises is that as to when a criminal case can be said to be
pending against a person under law, particularly in the context of
service jurisprudence. The question framed above is of considerable
importance and is arising case after case. There is no clarity on
the issue referred to above, and we have come across some judgments
which may have taken contradictory views as well.
5. The other significant question that arises for determination in
the present case is as to whether pendency of any case of whatever
nature it may be and whatever the facts and circumstances of the
case, can become a ground to keep in abeyance appointment of a
citizen who has been selected after due process of selection. To
illustrate, if a candidate seeking recruitment is involved in petty
offences under IPC or such offences which are tried summarily
involving hundreds of thousands of people throughout the country,
like motor vehicle challans, can his candidature be kept in
abeyance? Whether the nature of offence and the facts leading to
commission thereof would be a relevant factor? Would the authorities
not like to see the bare minimum facts of the allegations made
against a candidate in the offence alleged to have been committed by
him? would yet be the question that may need a serious thought.
6. We may also mention that whereas the learned Counsel representing
the applicant contends that registration of an FIR, at the most,
makes an alleged offender only an accused and not a criminal. Every
person facing a trial is supposed to be innocent till proved guilty,
and, therefore, if the allegation made against him may turn to be a
hoax or an outcome of ill will of the complainant to frame him, and
ultimately the criminal trial may culminate into honourable
acquittal, what shall be the fate of the candidate who may have
suffered a long agonizing trial? Shri Ajesh Luthra, the learned
Counsel representing the respondents, would, on the other hand,
contend that what shall happen if the trial results into conviction?
Would it be desirable to appoint a person in the police force who
may ultimately be convicted? The contentions raised by the learned
Counsel representing the parties would lead to yet another
significant question to be determined by this Tribunal, which would
be as to whether it is possible to find some middle path where the
interest of the candidate may be vouchsafed without any adverse
effect in the police discipline.
6. Culled out from paragraphs 4 to 6, the questions that need
adjudication would be:
As to whether the circular relied upon by the respondents pertaining
to initial appointment can be compared to sealed cover procedure in
the matter of promotion, which course is to be adopted as per rules
and judicial precedents, when the concerned criminal court has
framed the charge, or if it is a case of departmental enquiry, the
charge has been framed.
Second question that would need adjudication by the Full Bench would
be as to whether the circular relied upon by the respondents is
harsh and unreasonable and offends Articles 14 & 16 of the
Constitution of India.
7. At the very outset, we may mention that in service matters, broadly
speaking, there are three stages, which would be - (i) appointment,
(ii) promotion and (iii) retirement. It appears to us that different
parameters may follow on the three stages in service matters, as
enumerated above. Initial appointment, in any case, in our considered
view, cannot be compared with promotion, and that being so, the rules
or judicial precedents that may govern promotion may not at all be
applicable in the matter of initial appointment. Service jurisprudence
would commence only when a person is appointed, and that being so, a
protection while in service or for promotion may not be available to a
person who has still to enter service.
8. The learned Counsel representing the applicant, for the contention
raised by him that mere registration of an FIR against a person would
not debar him from occupying a public office, by and large relied upon
judgments in the matter of promotion and retirement. The basic judgment
on the issue relied upon is of Hon'ble Supreme Court in
Union of India
and Ors. v. K.V. Jankiraman and Ors. (1993) 23 ATC 322. The question
debated and adjudicated in the case aforesaid was as to whether an
employee can be denied promotion on the ground of pendency of
preliminary enquiry/criminal investigation. The specific questions
dealt with are as follows:
(1) What is the date from which it can be said that
disciplinary/criminal proceedings are pending against an employee?
(2) To what benefits an employee who is completely or partially
exonerated is entitled to and from which date? (3) What is the
course to be adopted when the employee is held guilty in such
proceedings if the guilt merits punishment other than that of
dismissal?
Obviously, in the context of the facts of the present case, it is only
question number (1) as reproduced above, which is relevant. After
considering the rival contentions of the learned Counsel representing
the parties, the Hon'ble Supreme Court observed thus:
It is only when a charge-memo in a disciplinary proceedings or a
charge-sheet in a criminal prosecution is issued to the employee
that it can be said that the departmental proceedings/criminal
prosecution is initiated against the employee. The sealed cover
procedure is to be resorted to only after the
charge-memo/charge-sheet is issued. To deny the said benefit they
must be at the relevant time pending at the stage when
charge-memo/charge-sheet has already been issued to the employee.
The pendency of preliminary investigation prior to that stage will
not be sufficient to enable the authorities to adopt the sealed
cover procedure. If the allegations are serious and the authorities
are keen in investigating them, ordinarily it should not take much
time to collect the relevant evidence and finalise the charges.
Further, if the charges are that serious, the authorities have the
power to suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a remedy.
9. From perusal of paragraph above, it is clear that even in case of
promotion, Hon'ble Supreme Court is of the view that if allegations are
serious, authorities can always suspend the person and suspension
itself would be sufficient to permit the authorities to resort to
sealed cover procedure meaning thereby that in case of serious
allegations even promotion could be denied by suspending him but in
normal complaints of petty nature it was held, unless the authorities
issue charge-sheet, it should not be taken against the employee to deny
him the promotion. The reasoning for same is given in para 16 wherein
it is clearly mentioned that experience shows, many a time,
investigation and complaints are initiated at the instance of
interested persons and are kept pending deliberately for long periods
without taking them to a logical conclusion. It was observed that if
allegations are of serious nature, and authorities are keen to
investigate them, ordinarily it should not take much time to collect
the relevant evidence and finalise the charges but if complaints are
not even seriously viewed or taken cognizance of, it would amount to
injustice to the employees, if their names are allowed to be kept in
sealed cover merely on the ground of some pending investigations.
10. The next reliance of the learned Counsel is on the judgment of the
Hon'ble Supreme Court in
Coal India Ltd. and Ors. v. Saroj Kumar Mishra
(2007) 9 SCC 625. The said case also pertains to promotion. Respondents
before the Hon'ble Supreme Court, it appears from the judgment, were
not promoted on the premise that vigilance cases were pending against
them. When respondents were not promoted and persons junior to them
were promoted, they filed writ petition before the Orissa High Court,
which was allowed. In the appeal preferred by Coal India Ltd. and
others, it was canvassed that in terms of memo dated 19.6.1979 pendency
of vigilance or departmental action would itself be sufficient for not
promoting the officer who would, in the event of his complete
exoneration, be promoted as and from the date his immediate junior has
been promoted. The Hon'ble Supreme Court in the context of the memo
referred to above, as modified from time to time, held that circular
letter issued by the appellants put restrictions on a valuable right of
an employee, and, therefore, required to be construed strictly. So
construed, there cannot be any doubt whatsoever that the conditions
precedent contained therein must be satisfied before any action can be
taken in that regard. The Hon'ble Supreme Court then referred to the
revised guideline, which reads as follows:
The vigilance clearance shall be withheld only on the ground (a)
when officer is under suspension; (b) when the officer, in respect
of whom a charge-sheet has been issued and disciplinary proceedings
are pending; and (c) when an officer in respect of whom prosecution
for a criminal charge is pending.
Even though the circular was said not to be applicable ipso facto, but
since the same clearly laid down the law otherwise prevailing, the
contention of the counsel as noted above, was repelled and the appeal
preferred by Coal India Ltd. was dismissed.
11. Learned Counsel representing the applicant has placed reliance upon
other judicial precedents for the proposition that while promoting an
employee, departmental and criminal proceedings can be taken into
consideration only if charge has been framed, be it in departmental or
criminal proceedings, and sealed cover procedure in such an
event/situation has to be resorted. It would be unnecessary to burden
the present judgment by referring to all these judgments. Suffice it to
say that either because of the rules governing a particular service in
the matter of promotion or judicial precedents, the law by now is well
entrenched that only if charge has been framed in departmental or
judicial proceedings, that sealed cover procedure has to be adopted and
in case the proceedings are not at that stage, the employee will be
entitled to promotion. Insofar as post retiral benefits are concerned,
government employees are governed by CCS (Pension) Rules. In view of
rule 69 read with rule 9(6) and (4), in case where a government servant
has retired and against whom proceedings are pending under Sub-rule (2)
of Rule 9, provisional pension has to be sanctioned. The date of
institution is further explained in Sub-rule (6) of Rule 9, which reads
thus:
9(6) For the purpose of this rule, -
departmental proceedings shall be deemed to be instituted on the
date on which statement of charges is issued to the Government
servant or pensioner, or if the Government servant has been placed
under suspension from an earlier date, on such date; and
judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the
complaint or report of a Police Officer, of which the Magistrate
takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is
presented in the Court.
The provisions of rule 9(6) also take care of the stage where criminal
case would be said to be instituted. The same would be said to be
instituted only after charge is framed. Obviously, the object of the
rule is to ensure that at the fag end of his career an employee is not
put to indefinite inconvenience on the ground of some
investigation/enquiry which has not culminated into a charge sheet. It
is will known and may not need any elaboration that charge sheet, be it
in departmental enquiry or criminal trial, is framed only when the
allegations of misconduct or criminality may prima facie are made out
from the material on record. In both the situations, as mentioned
above, for employees who are already in service, rules and judicial
precedents are framed only to ensure that no injustice is done to the
employees and they are not harassed on account of frivolous complaints.
Thus, rules that may apply for denying promotion or post-retiral dues,
as may be applicable in the case of promotion and retirement, in our
considered view, would not hold good when a person is seeking entry in
government service. As mentioned above, service jurisprudence starts
only when a person is appointed. While seeking initial appointment, a
candidate, in our considered view, has no enforceable right to be
appointed, nor, therefore, any duty is cast upon the employer to
protect his interests. As per known procedure, for initial appointment
in service a candidate who may answer basic qualifications of education
and experience etc. has to go through a process of selection. Such
candidates who may successfully go through the process set for
selection, would be provisionally empanelled, but before the government
may issue orders of their appointment, it has an indefeasible right to
verify the character and antecedents of such candidates. It is often
seen that in some cases even provisional appointment letters are issued
but the same are subject to verification of character and antecedents.
This verification is necessarily to be done to ensure that no
undesirable or anti-social elements enter government service. This
procedure becomes all the more essential when it is a case of making
appointment to a disciplined force. The role of employees in Delhi
Police, at whatever level they may be appointed, is to safeguard the
interest of public at large and maintain law and order. Surely, the
department would not make recruitment of a person simply because he has
successfully gone through the selection process, if his integrity is
doubtful or if he is, at any stage, suspected to have committed an
offence. Thus, if on verification of character and antecedents of a
candidate, either disclosed by himself or that may come to the notice
of concerned authorities, it may transpire that such candidate is
involved in a criminal case, in our considered view, his candidature
can be put in suspended animation, awaiting result of the criminal case
that he may be involved in. A person is at least suspect of committing
a crime if the FIR lodged against him discloses ingredients of the
crime that he is said to have committed. In our considered view, the
concerned authorities need not await framing of charge by the criminal
court and thus to appoint him till such time a criminal charge is
framed against him. Mere registration of an FIR, contents whereof may,
however, disclose commission of an offence would be sufficient to put
on temporary hold appointment of the candidate. His candidature, in our
considered view, can be kept in abeyance till final decision of the
criminal case. The department would thus be within its right to await
the final outcome of the criminal case in which the candidate may be
involved. It is settled proposition of law by now that the employer
would have a right and be thus justified to verify the character and
antecedents of a candidate before issuing him letter of appointment.
Reliance in this connection be made to judgments of the Hon'ble Supreme
Court in
Delhi Administration and Ors. v. Sushil Kumar
, and
R. Radhakrishnan v. Director General of Police
and Ors. (2008) 1 SCC 660. The facts in Delhi Administration (supra)
reveal that Sushil Kumar had cleared all the tests for recruitment as
constable in Delhi Police. 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 local police. On verification it was found that his
antecedents were such that his appointment to the post of constable was
not found desirable, and accordingly his candidature was cancelled. He
successfully challenged the order denying him appointment before this
Tribunal. His Application was allowed on the ground that since he had
been discharged and/or acquitted of the offence punishable under
Section 304/324/34 IPC, he cannot be denied the right of appointment to
the post under the State. Hon'ble Supreme Court, in appeal against the
order of the learned Tribunal, reversed its order by observing as
follows:
The question is whether the view taken by the tribunal is correct in
law? It is seen that verification of the character and antecedents
is one of the important criteria to test whether the selected
candidate is suitable to a post under the State. Though he was found
physically fit, passed the written test and interview and was
provisionally selected, on account of his antecedent record, the
appointing authority found it not desirable to appoint a person of
such record as a Constable to the disciplined force. The view taken
by the appointing authority in the background of the case cannot be
said to be unwarranted. The tribunal, therefore, was wholly
unjustified in giving the direction for reconsideration of his case.
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 focussed this aspect and found it not desirable to appoint
him to the service.
In R. Radhakrishnan (supra), even though it was a case wherein the
petitioner who had sought appointment as a fireman had suppressed the
factum of his involvement in a criminal case in which he was acquitted
also, the Hon'ble Supreme court while rejecting his plea relied upon
its decision in Delhi Administration (supra) as well.
12. In recent past, i.e., on 24.4.2008, we had occasion to deal with a
set of connected OAs bearing No. 2137/2006 and others in the matter of
Sanjeev Kumar and Ors. v. Government of NCT of Delhi and Ors. The
question involved was with regard to recruitment as constables in Delhi
place, and the applicants therein although were selected after going
through the entire process of selection, were not appointed even though
criminal cases in which they were involved had resulted into acquittal.
Some of the OAs decided by the common order dated 24.4.2008 had earlier
come up before this Tribunal and were allowed by observing that
appointments to the applicants were denied only because of their
involvement in criminal cases, and the mere fact that they were
acquitted either on account of witnesses turning hostile or giving them
benefit of doubt would not make any difference in their acquittal, and
that once they were acquitted the administrative authorities could not
sit over the decision of the court and come to a contrary conclusion.
Decision of this Tribunal was challenged before the High Court of
Delhi. Orders passed by the Tribunal were set aside and the matter was
remitted to Commissioner of Police to appreciate the nature and gravity
of offences and the manner in which they were acquitted, and to pass
orders for their appointment or otherwise. It was held that even though
a person may be acquitted of the charge, but when the same is because
of the witnesses turning hostile or giving benefit of doubt, the
authorities would be well within their right to take a decision and to
find out as to whether they were fit to be appointed or not. Some of
the candidates who suffered adverse orders and were thus not appointed,
challenged the said orders before this Tribunal once again. Meanwhile,
some other candidates of a different recruitment year were also not
appointed on similar grounds. All these Applications came up for
hearing before us, and, as mentioned above, were decided on 24.4.2008.
It was held by this Tribunal that 'In wake of judgment of Delhi High
Court, which is an inter partes decision and, therefore, binding upon
the parties and SLP against which has since been dismissed, in our
considered view, it is not open for the applicants to contend that an
acquittal is an acquittal and no distinction can be made on that behalf
whether being honourable acquittal or acquittal on benefit of doubt.
This was indeed the view of this Tribunal, which has been specifically
overruled by the Division Bench of Delhi High Court. Hon'ble Delhi High
Court, as mentioned above, noted the findings of this Tribunal that
there could be no different yardstick for those persons who have been
acquitted honourably to be treated differently from those persons who
were also involved in criminal cases but were acquitted on benefit of
doubt.
13. The judicial precedents referred to above and in particular Delhi
Administration (supra) and Sanjeev Kumar (supra), would clearly
manifest that the employer would be well within his right not to make
appointment of a person who may be involved in a criminal case. Surely,
even if the acquittal in the criminal case may not necessarily result
in giving appointment to the person, no different parameters may follow
where a person is involved in criminal case, as he may even be
convicted. Before we may part with this aspect of the case, we may
mention that putting the case of a candidate in suspended animation
awaiting decision in the criminal case, in a way is adopting of sealed
cover procedure, as may be applicable in the case of promotion. The
candidature of the applicant is not rejected merely because of his
involvement in a criminal case. Only his appointment has to await
decision of the criminal case. In a case of sealed cover procedure
also, the employee is not promoted. His promotion is dependent upon
outcome of departmental/criminal proceedings against him. The only
difference is that whereas in the case of promotion, sealed cover
procedure is adopted if charge sheet has been framed in
departmental/criminal proceedings, in the case of initial appointment,
as in the present case, the said procedure is adopted on involvement in
a criminal case when FIR for a cognizable offence is registered. We
find no merit whatsoever in the contention of the learned Counsel
representing the applicant that mere involvement of a candidate in
criminal case is not enough to stall his appointment awaiting decision
of the criminal case, and, therefore, till such time at least the
criminal court may frame charge against him, he has to be appointed.
That being so, the first question as framed above would be answered
against the applicant.
14. The circular dated 12.9.1983 on which rests the defence projected
by the respondents so as to put on a temporary hold appointment of a
candidate in Delhi Police, reads as follows:
With a view to dealing with cases of concealment of facts about the
involvement of candidates in criminal cases at the time of
filling-up their application/attestation forms for recruitment in
Delhi Police, it has been decided that:
The candidature of such individuals against whom the cases are still
pending will be held in abeyance till the decision of the case.
After the court's judgement, each case alongwith judgment will be
thoroughly examined, with a view to seeing whether the candidate has
been fully exonerated or if his moral turpitude was involved. Such
decision will be taken at the level of Police Headquarters.
If the candidate had himself revealed his involvement in a criminal
case, he would be taken in service, if he is fully exonerated by the
court or no moral turpitude was involved.
The candidates not revealing their involvement in the criminal cases
despite knowing the same (knowledge will be presumed on the part of
the candidate about his involvement in the criminal case, if he was
arrested therein) and thus concealing the material information,
which may be revealed later, on verification of character and
antecedents, the candidature of the candidate would be cancelled, as
he had given false statement and had tried to seek employment in the
Delhi Police, by adopting deceitful means.
Perusal of the circular aforesaid would reveal broadly two categories
one, where a person is involved in a criminal case, but while seeking
appointment with Delhi Police he conceals the same. Concealment in
itself is a ground to deny appointment to him. Surely, we are not
concerned with this aspect of the circular. The other part of the
circular deals with candidature of a person who has voluntarily
mentioned about his involvement in a criminal case. He is not to be
taken in service till such time he is fully exonerated by the court or
the offence is not such which may involve moral turpitude. The learned
Counsel representing the applicant vehemently contends that the
circular putting on hold employment of a duly selected candidate is
unreasonable, unrealistic and harsh, and that the same suffers from the
vice of Article 14 of the Constitution. It is urged that the State
would not deny any person equality before law or the equal protection
of laws and the concept of equality and equal protection of laws
guaranteed by Article 14 in its proper spectrum encompasses social and
economic justice in a political democracy. Article 14 enjoins upon the
State and its instrumentalities to make laws in such a manner that the
same are fair, just and equitable, after taking objectively all the
relevant options into consideration, and in a manner that is
reasonable, relevant and germane to effectuate the purpose of public
good and in general public interest. While elaborating, the counsel
contends that the circular would make no distinction between
involvement of a candidate in heinous crimes or crimes which may be
absolutely petty in nature, and may ultimately result in a token fine.
Non appointment of a candidate for his involvement in a petty case like
motor vehicle challans and such other petty offences would be wholly
unreasonable, denying an opportunity to the person to seek public
appointment, which is a Fundamental Right. The outcome of a criminal
case which has to be awaited may take years and years because of
complex procedural laws and tardy progress of cases in the courts,
which may some times even take a decade. The acquittal of a person by
the trial court seeking appointment may not put an end to his miseries.
The State may challenge the order of acquittal by filing an appeal, or
even a complainant aggrieved of the said order may challenge the same
in a higher judicial forum. In the process, not only the candidate may
be deprived of his livelihood for years, but it may also result into
his becoming overage and losing the benefit of his success in a
competitive test for appointment.
15. Per contra, Shri Ajesh Luthra, learned Counsel representing the
respondents, with matching vehemence contends that the circular only
ensures that the police which has important task to perform including
maintaining law and order, is not run by persons who may have a tainted
past, and only such persons could be appointed who may have an
unblemished character, as surely, candidates with criminal background
would not only not be able to protect the law and order, but even
public would have no confidence in them, bringing the whole system to
disrepute, frustrating the object of running administration efficiently
and honestly. He further contends that if appointment is to be made
pending criminal trial against a candidate and ultimately he is
convicted, surely, there would be such persons who cannot and should
not be appointed and, therefore, circular dated 12.9.1983 is legal and
has to be sustained. It is also urged by the learned Counsel that
initial appointment is prerogative of the employer and no one simply on
his successful participation in the test can be automatically
appointed, and that verification of character and antecedents of a
person is the right of employer and the circular is in tune with the
same.
16. Having heard the learned Counsel representing the parties, we are
of the considered view that the circular dated 12.9.1983 cannot be
struck down being unreasonable or harsh. Surely, those who may be
facing trial for heinous offences cannot and should not be permitted to
occupy any public office, and in particular, a disciplined force. When
it may come to involvement of a candidate in a serious crime, it may be
noted that it is not even the case of the applicant that he should be
given employment in Delhi Police. The only contention raised by the
learned Counsel is that if the offences may be petty in nature and may
involve no moral turpitude, appointment cannot be put on hold till
finalisation of the criminal trial, and, therefore, a candidate should
be given employment which may be subject to the outcome of the criminal
case. In the context of the facts as mentioned above, the only question
that needs to be determined by this Tribunal is as to whether when the
circular makes no distinction whatsoever between involvement of a
candidate in a serious or a petty offence, the same should be struck
down even on that count.
17. We have given our anxious thoughts to the rival contentions of
learned Counsel representing the parties. Before we may, however,
comment upon validity of the circular dated 12.9.1983 and the
jurisdiction of this Tribunal to uphold or strike it down, we may
mention that there appears to be a marked distinction between a citizen
seeking employment to a public office involved in petty offences and
offences which may involve moral turpitude or serious crimes. The
present and future of job seekers in a country like ours, where there
are teaming millions unemployed youth, it appears to us, cannot be
ruined because of their involvement in petty offences which may involve
no moral turpitude also. Circular dated 12.9.1983 which came into being
25 years ago, in our considered view, needs a fresh look. There are
lots of changes taking place in the social milieu. Therefore, it is
high time that the provision of law, which in the present case, was
made more than two decades ago, is looked at again. The IPC describes
various kinds of offences, some of which are bailable while the others
are non-bailable. Some offences are cognizable while others are
non-cognizable. Some others are compoundable with permission of the
court and others are non-compoundable. We need not enumerate in all
their details such offences. Suffice it, however, to say that there are
some offences which are compoundable even without permission of the
court. Obviously, such offences are petty. Should a person involved in
compoundable offences be debarred from seeking employment when such
offences are not considered to be serious at all and even permission of
court is also not required for compounding the same? In our considered
view, involvement of a person in such crimes should not be hurdle in
getting public employment. Offences involving moral turpitude, however,
stand on different footing. If the victim of a crime may forgive the
offender and thus compound the offence willingly or voluntarily, there
does not appear to be any reason for the State to deny employment to
the accused of such an offence. Practical experience shows that in case
of offences which are compoundable with permission of the court,
generally, when the victim may willingly or voluntarily like to
compromise, such permission is granted. There were times when for
cognizable and non-cognizable offences, trial had to conclude and
culminate in conviction or acquittal, even though parties might have
settled their disputes. The High Court had no power either under
Article 226 of the Constitution or Section 482 CrPC to quash an FIR
pertaining to a non-compoundable offence, even if the parties might
have arrived at a compromise. With the advent of time, the law has now
been settled that even in non-compoundable offences where parties may
have compromised, the High Court would have ample power and
jurisdiction to quash the FIR. Reference in this connection be made to
the judgment of the Hon'ble Supreme Court in
B. S. Joshi and Ors. v.
State of Haryana and Ors. (2003) 4 SCC 657 followed by a Full Bench of
five Hon'ble Judges of the Punjab & Haryana High Court in
Kulwinder
Singh and Ors. v. State of Punjab and Anr. Crl. Misc. Petition No.
33016-M of 2007 decided on 8.8.2007, and reported as 2007 (3) RCR 1052.
In this scenario, it would be iniquitous to deny or put on indefinite
hold appointment of a person seeking public employment. Balance between
purity in administration by employing clean people and the fundamental
right of a person to seek a job of his choice, has to be struck. We
have no doubt in our mind that public appointment should not be denied
to a person who may not have been charged with any offence involving
moral turpitude and is involved in only petty offences. To illustrate,
can a person be denied employment if he is involved in motor vehicle
challans, defying a prohibitory order under Section 144 CrPC or petty
offences like 323 IPC which is simple hurt. There are cases which have
been intentionally given criminal overtones, even though they may be
pure and simple property disputes, or arising from contracts and
partnership concerns, and/or pure and simple money transactions. Such
criminal proceedings are normally resorted to with a view to put
pressure upon the other side to abide by a contract that he might have
failed to adhere to. The list of petty offences and such offences which
may be made to look like as if having criminal overtones should not be
a hurdle in the way of a person seeking public appointment. That apart,
even though the offence may appear to be somewhat serious, but the
attending circumstances may show that the accused is a victim of
frame-up so as to settle some score, or the circumstances may appear to
show that it is a family feud, or a matrimonial dispute, where some
times the whole family of one party may be involved in a criminal case,
need to be looked into. A provision like circular dated 12.9.1983
encompassing in it all kinds of offences, petty or serious, involving
moral turpitude or not, in our considered view, would seriously and
prejudicially affect not only the rights of a citizen, but would also
be impediment in progress of the nation. The hardship that a person may
face in long agonizing trials is indeed a factor which also needs to be
taken into consideration.
18.
In Pawan Kumar v. State of Haryana and Anr. , the
Hon'ble Supreme Court while dealing with case of a person who was
convicted in summary trial for offence under Section 294 IPC and on
that count his services were terminated as no longer required, observed
thus:
13. 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 IPC 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 IPC on today's society and its standards, and
its changing views of obscenity. The matter unfortunately was dealt
with casually at all levels.
The Hon'ble Supreme Court further observed that:
14. Before concluding this judgment we hereby draw the attention of
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 find, 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 the 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.
It may be noted that Section 294 IPC is causing annoyance to others by
doing any obscene act in any public place, or singing, reciting or
uttering any obscene songs, ballad or words, in or near any public
place.
In State of M.P. and Ors. v. Hazarilal , the
Hon'ble Supreme Court was dealing with the case of a person who was
convicted for an offence Under Section 323 IPC, and on that account was
shown the exit door from his service. The job of the employee was
restored and the attitude of the appellants was held to be ex facie
wholly unreasonable. While dealing with the issue, the Hon'ble Supreme
Court observed as follows:
8. An authority which is conferred with a statutory discretionary
power is bound to take into consideration all the attending facts
and circumstances of the case before imposing an order of
punishment. While exercising such power, the disciplinary authority
must act reasonably and fairly.
19. Having held that it may not be justifiable for the respondents to
deny or to put on indefinite hold appointment of a person for his
involvement in a criminal case of whatever nature it may be, the
question that arises is as to whether on that ground the circular dated
12.9.1983 can be set aside or quashed being opposed to provisions
contained in Article 14 of the Constitution. We have, once again, given
our thoughtful consideration to the issue and are of the view that
once, denying or withholding appointment of a person for his
involvement in a serious offence or an offence that may involve moral
turpitude is permissible and also desirable, it may not be possible for
us to strike down the circular or even to re-write it. If we were
perhaps to hold that the circular would be read to mean that a citizen
involved in petty offences involving no moral turpitude can be
permitted to join the job, which may be even subject to the outcome of
the criminal trial, it would amount to legislation, which, surely, is
not in our domain. It is too well settled a proposition of law that
abuse or misuse of a provision does not per se invalidate the
legislation. If a provision of law is misused and subjected to abuse of
process of law, it is for the legislature to amend, modify or repeal
it, if deemed necessary. Reference in this connection be made to the
decision of the Hon'ble Supreme Court in
Sushil Kumar Sharma v. Union
of India and Ors. , wherein it was held as follows:
12. It is well settled that mere possibility of abuse of a provision
of law does not per se invalidate a legislation. It must be
presumed, unless the contrary is proved, that administration and
application of a particular law would be done 'not with an evil eye
and unequal hand'.
(See A. Thangal Kunju Musalidar v. M.
Venkatichalam Potti ).
14. the principle appears to be well settled that if a statutory
provision is otherwise intra vires, constitutional and valid, mere
possibility of abuse of power in a given case would not make it
objectionable, ultra vires or unconstitutional. In such cases,
'action' and not the 'section' may be vulnerable. If it is so, the
court by upholding the provision of law, may still set aside the
action, order or decision and grant appropriate relief to the person
aggrieved.
20. In view of the settled law that abuse or misuse, in the present
case misuse, of a provision would be no ground to invalidate it, we
have no choice but for not to accede to the prayer of learned Counsel
representing the applicant to quash circular dated 12.9.1983. The
second question for adjudication by the Full Bench, as reproduced
above, would be answered accordingly.
21. Before we may part with this order, we may mention that circular
dated 12.9.1983 which came to be issued 25 years ago needs a fresh look
in the light of our observations made above. Such was also the wish of
the Hon'ble Supreme Court in
Pawan Kumar v. State of Haryana (supra).
We direct that the Chief Secretary, Government of NCT of Delhi would
bring to the notice of the Hon'ble Lieutenant Governor of Delhi this
judgment recorded by us for remedial measures, if it may be so thought
appropriate and reasonable.
22. The matter be listed before appropriate Division Bench for decision
on merits.
