Full Judgment
Dr. Ramesh Chandra Panda, Member (A)
MA No.3080/2011
1. For the reasons given in the MA, we recall our order dated 20.11.2011 and restore the OA No.4298/2010 to its original number. As the counsel for the parties were prepared for hearing after restoration of the OA, we heard the case finally on 02.01.2012.
OA No.4298/2010
2. We may briefly state the factual matrix of the case. During the year 2006, an advertisement to fill up 2134 vacancies for the post of Constable (Exe.) Male in Delhi Police was issued on 28.2.2006/10.3.2006 by giving due reservation to SC/ST/OBC and Ex-Serviceman candidates as per rule. In response to the said advertisement, the applicant herein, applied for the said post against the Application Form No.167917. He qualified in physical endurance and measurement Test and was declared to appear in Written Test and Interview which he appeared and was declared provisionally selected, subject to verification of character and antecedents, medical fitness and final checking of documents etc. He was got medically examined and was found fit. The character and antecedents of applicant were verified from the authority concerned which revealed that he was involved in two criminal cases viz (i) FIR No.257, dated 09.11.2001 u/s 148/149/323 IPC, PS City Narnaul (Haryana) and (ii) FIR No.104, dated 04.08.2003 u/s 148/149/323 IPC, PS Ateli (Haryana). Later on, the above said criminal cases were decided by the Trial Court vide orders dated 02.12.2003 and 03.10.2006 respectively wherein the applicant was acquitted of the charges. On the scrutiny of the Application Form and Attestation Form filled up by the applicant on 22.03.2006 and 30.12.2006 respectively, it was noticed that he had disclosed his involvement only in one criminal case i.e. FIR No.104, dated 04.08.2003 u/s 148/149/323 IPC, PS Ateli (Haryana) in the relevant column of the Application Form. However, in the relevant column of the Attestation Form, he had given all the details about his involvement in the above said two criminal cases. The case of the applicant was examined by the authorities concerned. He was issued a Show Cause Notice dated 08.08.2007 (Annexure-A6) proposing cancellation of his candidature for the post of Constable (Exe.) in Delhi Police. In response, the applicant submitted reply on 17.8.2007 which was considered and found not convincing because of the reasons that (i) he was involved in the said two criminal cases; (ii) he was involved in rioting and wrongful restraint, which showed that he had a tendency to involve himself in criminal activities; and (iii) his acquittal in the said two criminal cases was found not to be an honourable acquittal. Hence, the applicant was found not suitable for the post of Constable (Exe.) Male in Delhi Police. His candidature for the said post was cancelled by the Office Memorandum dated 27.8.2007 (Anneuxre-A7) . Aggrieved by the above order, he moved the Tribunal in OA No.1609/2007 which was decided on 17.12.2007 (Annexure-A11) in following terms :-
“7. In view of our observations made above, the impugned show cause notice dated 08.08.2007 (Annexure A-1) as also order dated 27.08.2007 (Annexure A-2) are set aside.
8. Before we may part with this order, we would like to mention that in the show cause notice as also the impugned orders, it has been mentioned that on receipt of character and antecedents report from the concerned authority, it transpired that two criminal cases were registered against the applicant, one pertaining to FIR No. 257 dated 09.11.2001 under Sections 148/142/323 IPC of Police City Narnaul and other pertaining to FIR No. 104 dated 04.08.2003 under Sections 148/149/323 IPC of PS Ateli. It has been mentioned that on scrutiny of the application form and attestation form filled up by the applicant on 22.03.2006 and 30.12.2006 respectively, it revealed that the applicant had disclosed his involvement only in criminal case FIR No. 104 dated 04.08.2003 under Sections 148/149/323 IPC, PS Ateli only in the relevant column of application form and later on, in the attestation form, he had given all the details of two criminal cases, referred to above, in the relevant columns of the said form. However, the show cause notice issued to the applicant was not on the ground that he had concealed the factum of his involvement in one of the two criminal cases mentioned above.
9. In the wake of the facts, as mentioned above, we direct the concerned respondent to re-consider the candidature of the applicant and pass appropriate orders in accordance with law. No costs.”
Pursuant to the above directions, the Competent Authority relying on the judgment of Hon’ble Supreme Court in Delhi Administration Versus Sushil Kumar [1997 SCC (LandS) 492] and keeping in view the nature of his involvement in both criminal cases, gravity of offence, judgments of the Trial Court and the grounds of acquittal, rejected applicant’s claim for appointment to the said post vide letter dated 18.3.2008 (Annexure-A5). Feeling aggrieved and challenging the order dated 18.3.2008, he filed OA No.1715/2008 which was disposed of by this Tribunal on 24.5.2010 (Annexure-A4) with the following directions :-
“8. Perusal of the impugned order shows that initially applicant had given the details of only one criminal case, i.e., FIR No.104 dated 4.8.2003 under Section 148/149/323 IPC, PS Ateli. However, in the attestation form he had given the details of the other criminal case also, i.e., FIR No. 257 dated 9.11.2001 under Section 148/142/323 IPC, PS City Narnaul. It is also an admitted position that in both the criminal cases applicant had been acquitted by the court of law. The question here is whether in these circumstances applicant’s candidature could have been cancelled. It has repeatedly been held by the Tribunal in number of cases that if a person reveals pendency of a criminal case even in the attestation form before he is given the appointment, it cannot be termed as concealment of facts. One of the grounds for canceling the candidature of applicant is that he had concealed his involvement in FIR No. 257 dated 9.11.2001. Moreover, admittedly applicant was not given any opportunity to defend himself on this ground before cancelling his candidature. After all, if respondents felt that he had concealed some material fact, at least, he should have been put on notice or given a chance to defend himself. Not having done so, this order is liable to be quashed on this ground alone.
9. Even otherwise, it is seen that when applicant had approached this Tribunal earlier, this Tribunal had specifically observed that he was acquitted in one case as there was no evidence whatsoever against him and in the other case he was given benefit of doubt. It was held that it is thus wrong to suggest that he was acquitted due to compromise. On this ground show cause notice and the order both were quashed. Since Tribunal had already quashed the show cause notice on the ground that the very basis of the show cause notice was wrong, respondents ought to have issued fresh show cause notice to the applicant giving the reasons why they think applicant’s candidature needs to be cancelled so that he could have answered, but admittedly no such show cause notice was issued to the applicant. His candidature was cancelled on 18.3.2008. This, according to us, is not correct approach because since respondents were denying right of appointment to a person, the least that is expected of them was to give proper show cause notice to the applicant before taking final view in the matter.
10. In view of above discussion, order dated 18.3.2008 is quashed and set aside. Respondents are given opportunity to pass appropriate orders after following due process of law. This may be done within a period of 3 months from the date of receipt of a copy of this order.”
In view of the above directions by the Tribunal, the applicant’s case was re-examined by the respondents. He was issued a fresh Show Cause Notice dated 20.8.2010 (Annexure-A1). He submitted his reply (Annexure-A3) taking the pleas that he could not mention the case in FIR No.104, dated 04.08.2003 u/s 148/149/323 IPC, PS Ateli (HR) in the Application Form under the impression that the same was decided in 2003 much before he filled up the Application Form, but later on corrected his bonafide mistake by disclosing the facts about both criminal cases in the Attestation Form. He further added that unlawful assembly, assaulting/ causing injuries to victims, tendency to indulge in serious criminal activities with deadly weapons and taking law into hands are wrong as the allegations were not proved in the Trial Court. He mentioned that the Department had come to the conclusion that the acquittal was not honourable. As the Trial Court after considering the evidence had recorded the applicant had to be acquitted of all the charges levelled in the criminal case, the respondents cannot interpret the judgment and evidence that had been recorded by the Trial Court. He stated that he was discriminated as the similarly placed persons had been given appointments. The Competent Authority considered his reply and found the same not satisfactory because of the reasons that he filled up Application Form for the post of Constable (Exe.) on 22.03.2006 and disclosed about his involvement in the Criminal Case in FIR No.104 dated 04.08.2003 only although Column No.15 clearly requires to give the details about arrest or any FIR registered or tried in the court of law for any offence or convicted by court or filled any bond in any court or at the time of filling the Application Form any criminal case was pending in court of law or involved in any civil case, if so to give details. But, he concealed the facts of his involvement in criminal case FIR No.257, dated 09.11.2001 despite clear warning given on the said Application Form that furnishing any false information or concealing any facts will be treated as disqualification. Both the cases were found not to be honourable acquittal as the material witnesses turned hostile perhaps due to fear of the reprisal by the accused persons. Despite his acquittal in both the criminal cases, the Competent Authority noted that he was named in the FIRs and formed unlawful assembly, assaulted victims and voluntarily caused injuries to them which exhibited his violent nature and tendency to indulge in serious criminal activities being armed with deadly weapons and taken law into his hands for settling personal issues. Hence, his candidature for the said post was again cancelled in the Office Memorandum dated 22.11.2010 (Annexure-A2). Challenging the said order he has approached the Tribunal in the instant OA with the prayers to quash the Show Cause Notice dated 20.8.2010 and cancellation order dated 22.11.2010 and requested to issue directions to the respondents to appoint him as Constable (Exe.) Male in Delhi Police.
3. The main contentions of Shri Sachin Chauhan, learned counsel for the applicant are that (i) the applicant once having been acquitted of the offence leveled against him in both the criminal cases by the Trial Court, it is not correct to deny him appointment to the post of Constable (Exe) Male and the respondent’s conclusion that the acquittal in this case is not an honourable one is based merely on suspicion and surmises as he had been falsely implicated in the criminal cases. (ii) It is further contended that the applicant has given the information on both the criminal cases in the Attestation Form and provided the facts of one pending criminal case in the Application Form. Thus, Shri Chauhan submits that the applicant has not concealed any FIR before the respondents, Shri Chauhan further stated that as the applicant was honourably acquitted in one FIR, he only mentioned of the second FIR in his Application Form. There is no concealment of the criminal cases on the part of the applicant. (iii) Referring to the alleged offence in both FIRs, he contends that the nature of offence being minor and not grave/serious, the respondents should not have denied the applicant appointment to the said post. It was stated that he was charged under Section 148, 149 and 323 of IPC which would not come under the purview of heinous crime and the respondents have failed to take into account the real gravity of the offence leveled against the applicant. In support of his contentions, he has relied on the judgment of the Apex Court in Commissioner of Police and Others Versus Sandeep Kumar [2011-4-SCC-644] and distinguished the judgment of Hon’ble Supreme Court in Delhi Administration versus Sushil Kumar (supra). (iv) It is also stated that the respondent’s orders in this case amount to discrimination as similarly situated persons mentioned in the OA have been given appointment. The counsel for applicant has also sought support from several judgments of this Tribunal in which persons similarly placed like him, i.e., who had been involved in criminal cases and subsequently acquitted, had been given appointments in the police force. In particular, he relies on the orders passed by this Tribunal in OA No.178/2008 (Anoop Kumar Versus Government of NCT of Delhi and Another decided on 23.07.2008) and OA No.1495/2007 and Government of NCTD and Others [OA No.2375/2008 decided on 02.09.2009]. (v) Shri Chauhan also referred to the orders of Full Bench of the Tribunal in OA No.2602/2011 decided on 14.12.2011, wherein the judgment of High Court of Delhi in Rajesh Kumar Versus Commissioner of Police and Another [WP(C) No.8223/2011 decided on 22.11.2011] has been referred to conclude that the High Court’s decision that the judgment of Apex Court judgment in Sandeep Kumar’s case (supra) being the advancement in law, the ratio laid therein will hold the field. He, therefore, urges to direct the respondents to appoint the applicant to the said post with all consequential benefits.
4. Mrs. Rashmi Chopra, learned counsel for the respondents has opposed the above submissions and has stated that on receipt of the report of character and antecedents of the applicant, a Screening Committee duly constituted by the Commissioner of Police, Delhi reviewed the case keeping in view of the nature of involvement of the applicant in both the criminal cases gravity of the offences and also keeping in view the judgment of the Hon’ble Supreme Court in Sushil Kumar’s case (supra) and concluded that as the applicant was acquitted of the charges on the basis of the witnesses turning hostile as such his acquittal cannot be said to be an honourable acquittal. Further, she submits that the applicant was involved in the cases of criminal offences in a premeditated plan to commit crime and has a tendency to involve in criminal activities. Accordingly, he was not found suitable for appointment as a Constable (Exe.) Male in Delhi Police and after issue of a fresh show cause notice and after considering the reply, his candidature for the said post was cancelled. The same is in accordance with rules on the subject, and is legally justifiable. The respondent’s counsel has relied on the judgment of the Apex Court in the case of Sushil Kumar (supra) which according to her, is fully applicable in the instant case. She also placed her reliance on the decision of the Coordinated Bench of this Tribunal in Sanjeev Kumar Versus Government of NCTD and Others [OA No.2429/2006 decided on 26.4.2011] to submit that the instant OA deserves to be dismissed.
5. Having heard the learned counsel for the parties, with their assistance we examined the pleadings and the relied on judgments as well. The issue in the present case is in a very narrow compass. Considering the facts of the case whether the applicant is entitled to be appointed as Constable (Exe.) in Delhi Police?
6. It is an admitted position that the present case is not a case of concealment of his involvement in the criminal cases. The applicant had indeed disclosed his involvement partly in the Application Form and fully in his Attestation Form at the appropriate time. It is also accepted that mere involvement of the applicant in the criminal case(s) in which he was subsequently acquitted by itself should not disqualify him for appointment to the post. However, what is material, in such cases, is to see the nature of the offence in which he was involved and the manner of the acquittal. In this connection, the observations of the Hon’ble Supreme Court in Sushil Kumar’s case (supra) are that the Tribunal has to see the nature of offence in which the applicant has been proceeded in the criminal case and ultimately got acquitted.
7. We may refer to the criminal case No.57-1 of 2001 in FIR No.257 dated 09.11.2001 u/s 148, 149 and 323 of IPC of P.S. City Narnaul which has been decided on 02.12.2003 and the applicant has been acquitted. In this case the applicant is one of the accused alleged to have started beating Naresh and Ajit and were armed with knife, gufti, sword. But there was no incriminating material on the file against the accused for which the statement of accused u/s 313 Cr. P.C. was dispensed with. The applicant and other accused were acquitted of the charges in the following manner by the Trial Court :-
“9. At the outset, it must be mentioned that the material witnesses of the prosecution i.e. Naresh PW1, Krishan Kumar PW2A jit PW3, Pawan Kumar PW4, Naveen Kumar PW5 and Sunil PW6 have not supported the prosecution case at all. The witnesses could not identify the accused as the persons who had caused the incident in question. At the request of APP, he was allowed to cross-examination, nothing material which would help the prosecution has come on record. Hence, there is absolutely nothing on record which would connect the accused with the alleged occurrence. Accordingly, the accused are hereby acquitted of the charge levelled against them. Their bail bonds and surety bonds stand discharged. File be considered to the records.”
The above order clearly manifests that the applicant has been honourably acquitted by the Trial Court. Further, the nature of alleged offence was not supported by the complainants and the same was not serious/grave.
8. In the criminal case No.311-1 (FIR No.104 dated 04.08.2003) u/s 148, 149, 323, 452, 427, 506 of IPC, the applicant is one of five accused. The allegation was that on 04.8.2003 they having lathi, sword came in two TATA 409 and beat Meher Chand, Manoj and Ashok, and broke the door and windows of the house. All of them were chargesheeted on 08.11.2004. They were all acquitted by the Chief Judicial Magistrate vide his order dated 03.10.2006 as follows :-
“In view of the discussion made above, it is held that prosecution has failed to prove the charge against accused beyond reasonable doubt. Consequently, accused are acquitted of the charge framed against them. Their bail bonds and surety bonds filed during trial are discharged. File be consigned with Government Recorder.”
Though the acquittal of the applicant is due to benefit of doubt, but the prosecution having failed to prove its case, the applicant cannot be put to blame worthy position.
9. We are surprised that even though the judicial pronouncements in both criminal cases have gone in favour of the applicant as he has been acquitted, denial of appointment to him for all times to come is really a serious matter. We have very carefully examined the facts of the case in both FIRs, leading to commission of the alleged crimes, nature of offences, statements of witnesses more specifically those of the complaints, and have taken into account both judgments, we are of the considered view that those do not appear to be so serious or grave or heinous offences for which the applicant can be branded as a criminal for all times to come and prevented employment.
10. A careful study of the facts in Sushil Kumar’s case (supra) relied on by the respondents in their impugned order, would reveal that the Hon’ble Supreme Court was considering a case where the candidate did not stand acquitted and the fact of the case was that the candidate concealed in his application and attestation forms the fact of his involvement in a criminal case. In present case facts are far different - the applicant has disclosed both FIRs in the Attestation Form and one of the pending FIR in the Application Form. This, by no stretch of imagination can be termed as concealment. Further, the applicant has been acquitted in both criminal cases. In the case of Ghurey Lal Versus State of Uttar Pradesh [2008-10-SCC-450] the Hon’ble Apex Court has held that the accused is presumed innocent until proven guilty. The Trial Court judgment acquitting the applicant has of course held him as innocent. Non-consideration of the said fact of acquittal and relying more on the allegations/complaints in the FIR though held not proved, the applicant has been denied his legitimate claim to be appointed to the post. This can be termed as arbitrariness.
11. At this stage, we may refer to the well settled position in law in the subject. In Sandeep Kumar’s case (supra) Hon’ble Supreme Court considered the facts of the case and noted that Sandeep Kumar at the relevant time way young, he concealed his involvement in a criminal case under Section 325/34 of IPC which resulted in Sandeep Kumar’s acquittal. While holding the cancellation of Sandeep Kumar’s provisional selection as illegal and relying on Morris Versus Crown Office [1970-2-QB-114] observed that young people often commit indiscretions and such indiscretions have often been condoned. Youth will be youth; they are not expected to behave in a manner as older people do and minor discretions committed by young people should be condoned rather than to brand as criminals for the rest of their lives. Recently, the Hon’ble High Court of Delhi considered a case similar to the present OA and following the judgment of Apex Court in Sandeep Kumar’s case (supra), High Court in the matter of Rajesh Kumar (supra) has allowed the Writ Petition and quashed this Tribunal order and inter alia observed in the following manner :-
“7. The hard reality cannot also be lost sight of. A disclosure of the FIR even if leading to acquittal, invariably leads to rejection of the application. The applicants thus cannot be blamed for shying away from making such disclosure and/or from indulging in concealment for fear of rejection at the threshold only without even having any opportunity to explain. We may in this regard also notice that the ‘Policy For Deciding Cases of Candidates Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing Trial or Acquitted)’ has been framed vide Standing Order No.398/2010 dated 23.11.2010. The said Policy also provides that even where the disclosure has not been made in the application form and the facts are discovered on verification, the case is required to be referred to the Screening Committee to assess suitability for appointment. The concept of minor offences and/or offences not involving moral turpitude has also been evolved. The same indicates that the respondents have themselves accepted the judgment of the Apex Court in Sandeep Kumar (supra). The Tribunal has thus erred in ignoring the dicta in Sandeep Kumar and in blindly following the earlier judgments in Daya Shankar Yadav and Ram Ratan Yadav (supra) when the judgment in Sandeep Kumar was an advancement in law.”
Following the dicta of Hon’ble Supreme Court in Sandeep Kumar’s case (supra) and that of High Court in Rajesh Kumar’s case (supra), the Full Bench of this Tribunal in OA No.2602/2011 decided on 14.12.2011 to follow the said law.
12. Taking into consideration the totality of facts and circumstances of the case; guided by the trite law as stated above and for the reasons stated within, the applicant succeeds in his case. On the basis of above reasoning, we would have normally remitted this case to the concerned authorities to have a fresh look in view of our observations made above, but what we find in the OA is that the applicant’s case was remanded twice before while deciding the OA No.1609/2007 on 17.12.2007 and again in the OA No.1715/2008 decided on 24.11.2010. The instant OA is his 3rd visit to the Tribunal as the applicant has been handed down twice before the same decision by the respondent i.e. cancellation of his candidature for the post of Constable (Exe.) Male. On two important grounds we do not intend the case again to be remitted back to the respondents but to decide the OA in a conclusive manner. (1) It is well settled position in law, as laid by High Court of Delhi and Supreme Court that young people commit indiscretions which being minor in nature can be condoned rather than to brand them as criminals for the rest of their lives and have quashed orders of the respondents with directions to offer appointments in Delhi Police. The present case fits into the above decision of the Apex Court. (2) The respondents have offered appointments to many similarly circumstanced candidates.
13. Resultantly, for the above reasons the impugned order dated 22.11.2010 is quashed. The respondents are directed to issue offer of appointment to the applicant for the post of Constable (Exe.) Male in Delhi Police if he is otherwise eligible. Consequently, the applicant will be entitled to his seniority as per his rank in the relevant seniority list but he will not be entitled to any back wages. Let the directions and orders as ordained above be complied with as expeditiously as possible but not later than nine weeks from the date of receipt of a certified copy of this order.
14. In terms of our above orders, directions and observations, the OA, having merits, is allowed. No costs.