Rajesh Kumar Vs. Govt. of Nctd Through the Commissioner of Police, Police Headquarters, Ip Estate, New Delhi and Another - Court Judgment

ORAL:

V.K. Bali, Chairman, J.

1. The candidature of the applicant for the post of Constable (Executive) in Delhi Police pursuant to show cause notice issued to him on 14.03.2011 has since been cancelled, vide order dated 11.05.2011.It is this order which is under challenge in the present Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985.

2. It is not in dispute that the applicant has cleared all the tests, and it is only while verifying about his antecedents, the Screening Committee opined against the appointment of applicant to the post of Constable (Exe.) as he was involved in a criminal case pertaining to FIR No.25/2005 u/s 376/342 IPC wherein he being juvenile was tried by Juvenile Justice Board and earned a clean acquittal, vide orders dated 10.12.2010.

3. We have dealt with a number of cases of juvenile to state that even the conviction recorded will not come in the way of a person for securing public employment. The first case decided on the issue aforesaid is in the matter of Satya Narayan Meena Vs. Union of India and Ors. (OA No. 1007/2007 decided on 23.10.2007), relevant part whereof would read as follows:-

“This aspect of the matter has been threadbare dealt with by us in our judgment recorded in OA No.1007/2007 in the matter of Satya Narayan Meena v Union of India and others, decided on 23.10.2007.We may reproduce the relevant part of the judgment, which directly deals with the issue in hand, thus:

“14. The Act of 2000 came into being for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. The very introduction of the Act of 2000 would reveal that Juvenile Justice Act, 1986 was enacted by the Parliament. Several provisions of the Constitution including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47 also impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. On 20th November, 1989 General Assembly of the United Nations adopted the Convention on the Rights of the Child wherein a set of standards to be adhered to by all State parties in securing the best interests of the child has been prescribed. The convention emphasizes social re-integration of child victims, to the extent possible, without resorting to judicial proceedings. The statement of Objects and Reasons of Act of 2000 would further reveal that under the Juvenile Act, 1986, much greater attention was required to be given to children ‘in conflict with law’ or those in need of care and protection. It was specifically mentioned that the justice system as applicable for adults is not considered suitable for being applied to a juvenile or the child or any one on their behalf including the police, voluntary organizations, social workers, or parents and guardians, throughout the country and there was urgent need of creating adequate infrastructure necessary for the implementation of the proposed legislation with a larger involvement of informal systems specially the family, the voluntary organizations and the community. In the context aforesaid, number of proposals were made, some of which are enumerated below:

(a) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults;

(b) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts ‘one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;

(c) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.

What clearly emerges from the Objects and Reasons of Act of 2000 is that judicial system has to be more appreciative of the developmental needs of children in comparison with the adults. The same is also to make effective provisions and various alternatives for rehabilitation and social integration and to minimize the stigma of a juvenile, for which purpose, the Bill is in two parts - one for juvenile ‘in conflict with law’, and another for juvenile in need of ‘care and protection’. In the background of Objects and Reasons of Act of 2000, relevant provisions of the Act need to be examined. Section 19 of Act of 2000, pertaining to removal of disqualification attaching to conviction, reads as follows:

“(1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law (emphasis supplied).

(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.”

A careful reading of the Objects and Reasons of the Act of 2000 and Section 19 thereof would make it abundantly clear that a juvenile ‘in conflict with law’ has to be rehabilitated and the stigma of conviction has also to be minimized. It appears to us that if a juvenile having been dealt with under the Act of 2000 is unable to secure a Government job for the rest of his life, it would be neither his rehabilitation nor reduction in the stigma that may be attached to the conviction for an offence for which he might have been tried.”

Provisions of the Probation of Offenders Act and that of the Juvenile Justice (Care and Protection of Children) Act, 2000, were compared and a marked distinction was found in the provisions of the two Acts. In that regard, we observed as follows:

“17. In Harichand (supra)*, the appellant was convicted of an offence under section 408 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for aterm of two years and to pay a fine of Rs.1000/-. In appeal, the Sessions Court upheld the conviction but set aside the sentence and directed release of applicant on probation under Section 4 (1) of the Act of1958,on his entering bond for good conduct in the sum of Rs.5000/- and furnishing a surety for the like amount. The appellant was dismissed from Government service. He challenged his dismissal in High Court but without any favourable result. Thus, the appellant challenged the order of High Court in the Hon’ble Supreme Court. The counsel representing appellant urged, on the basis of section 12 of the Act of 1958, that the appellant even though found guilty, would not suffer any disqualification, if any, attached to his conviction and therefore, he could not be removed from service. For his contention, he relied upon a judgment of the Hon’ble Supreme Court in the case of Aritha Chander Rao v. State of andhra Pradesh, 1981 (Supp) SCC 17.While dealing with the plea of the counsel for the appellant, the Hon’ble Supreme Court observed thus:

“7. In our view Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words ‘disqualification, if any, attaching to a conviction of an offence under such law’ therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12 suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purpose of dismissal of the person convicted from Government service.”

*Harichand v Director of School Education, 2000 (1) SCT 272

We further observed as follows:

“18. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties as noted above. We are of the firm view that once the very Object of the Act of 2000 is to, inter-alia, rehabilitate the child in conflict with law and to minimize the stigma, and when a provision has been made by Legislature to achieve this object and further when there is a conscious distinction made between a juvenile and adult in conflict with law, the provisions of Section 12 of the Act of1958 even though para material to sub section 1of Section 19 of Act, of 2000, and the judicial precedents that have been cited by Mr.Luthra, would not be of much relevance. Once, a juvenile in conflict with law has necessarily to be dealt with under the provisions of Act of 2000, it is obvious that Act of 1958 would apply to adults.

19. We have gone through the statement of Objects and Reasons of 1958 and the same are only to release the Offenders on Probation for good conduct, instead of sentencing them to imprisonment. In several states, there were no separate probation laws and even in the States where there were number of laws they were not adequate to meet the present requirements. Meanwhile, there was increasing emphasis on the reformation and rehabilitation of the offender as useful and self reliant member of society without subjecting him to the deleterious effects of jail life. It is in this background that Central law on the subject came into being which may be uniformly applicable to all the states. The object of the Act was further to admonish in respect of certain specific acts and to empower Courts to release them on probation if they are found to be less than 21 years of age. The sole object of the Act of 1958, appears to be an endeavour to reform a person who is not a juvenile but below age of 21 years, with regard to some offence so as not to send him to jail where he may mix with hardened criminals and become menace to the society. The object of the Act, does not reflect rehabilitation of an offender.

20. Having seen different objects of the two Acts i.e. 1958 and 2000, it is now time to see if there is any material difference between Section 12 of the Act of 1958 and Act of 19 of 2000. Same read thus:

Section 12 of the Act of 1958 reads thus,

“12. Removal of disqualification attaching to conviction.- Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:

Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.”

Section 19 of the Act of 2000, reads thus:

“(1) notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be”.

Section 12 of the Act of 1958 and Section 19 (1) of the Act of 2000 do appear to be pari materia. There is, however, substantial difference between the two. There is no sub-section (2) in the Act of 1958, like sub-section (2) of section 19 of Act of 2000. Sub-section (2) of Section 19 of the Act of 2000 provides that record of conviction of a delinquent has to be removed after expiry of period of appeal or reasonable period as prescribed in the rules, as the case may be. Certainly, if the record of conviction has to be removed within the period of appeal or reasonable time, it would certainly mean that the conviction of a juvenile would not come in his way in securing a government job, as otherwise there was no question of removing the record as such.

21. In the context of the distinction between two Acts, the judicial precedents relied upon by Mr. Luthra, have to be analyzed. In so far as judgment of the Hon’ble Supreme Court in Delhi Administration Vs. Sushil Kumar (supra) is concerned, it was not a case where Sushil Kumar may have been dealt with under the provisions of either of the two Acts mentioned above. It was a simple case where having successfully competed for the post of constable, the department on verification had found that he was involved in a case under sections 304, 324/34 read with section 324 of IPC, wherein even though he was acquitted, but the concerned authorities had found him not a fit person to be appointed on the post of Constable. Hon’ble Supreme Court observed that it is the conduct and character of a person seeking appointment to service, which is relevant and not the result of a criminal case. As mentioned above, there was no discussion in this case with regard to the effect of provisions as contained in Section 12 of the Act of 1958 or Section 19 of the Act of 2000. In Harichand vs. Director of School Education (supra), it was indeed a case where, Harichand was removed from service on account of involvement in a case under section 408 of IPC, and even though sentenced, in first instance, he was given benefit of section 4 of the Act of 1958. In this case, however, Hon’ble Supreme Court observed that Section 12 would apply only in respect of disqualification that goes with the conviction in the law which provides for the offence and its punishment. The plain meaning of word ‘disqualification’ if any, would be attaching to conviction of an offence, under such law. Under the provisions of the Act of 1958, ‘disqualification’ as interpreted by the Hon’ble Supreme Court is attaching a conviction for an offence under law as made under the Act of 1958.The position is not so insofar as the Act of 2000 is concerned. There is no provision in the Act of 1958 which may suggest that conviction will not be a disqualification for securing a Government job, whereas under the Act of 2000, keeping in view the Objects and Reasons of the Act and sub-section (2) of Section 19 thereof, it has to be held that conviction would not debar a juvenile from securing a Government job. As mentioned above, one of the main objects of the Act of 2000 is to rehabilitate a juvenile ‘in conflict with law’ and reduce the stigma of conviction. Further, sub-section (2) of Section 19 of the said Act would clinch the issue beyond any pale of controversy. We are of the considered opinion that if the record of conviction of juvenile has to be removed, and that too within the period of limitation or within a reasonable time which shall not be more than six months to a year, after his conviction the same could be only with the object that the conviction of a delinquent would not come in his way in securing a government job. Any other interpretation of sub section 2 of Section 19 of the Act of 2000 would not only run counter to the Object and Reasons of Act of 2000 but also plain and simple interpretation of sub section 2 of Section 19 of Act of 2000. The judicial precedents relied upon by Mr. Luthra, referred to above, are distinguishable and would not apply to a case of the juvenile, who has been dealt with under the provisions of the Act of 2000.Insofar as the judgment of this Tribunal in Naresh Kumar Meena (supra) is concerned, it adopts similar reasons as given by the two decisions of the Hon’ble Supreme Court as mentioned above.

22. Before we may part with this order, we would like to mention that the nation and the society owe a duty to rehabilitate those who might have fallen on bad ways at some weak moment of their lives. If reformed, the stigma of conviction, particularly when it may be for an offence which is petty, should not continue unabated for the rest of the life of a person. It is not unknown that when reformed, either because of reformatory measures that may be taken or when one’s own conscious may guide one to completely change his ways, some people not only follow the ordinary guidelines or principles as settled by the society, but become totally pious and excel in all walks of life. It would be a travesty of justice if the law and the society may not give any chance to such people to come into main stream and contribute in advancement of the nation. We are, in the present case, however, concerned only with those to whom the law consciously would like to rehabilitate. We are of the considered view that the Objects and Reasons of the Act of 2000 read with Section 19 thereof would clearly suggest the intention of the Legislature in not debarring a juvenile for securing a Government job for the rest of his life.”

This has been followed by us in the matter of Pradeep Hooda vs. Government of NCT of Delhi and Ors. (OA No.2458/2011 decided on 10.01.2012) and in the matter of Rajesh Kumar Vs. Govt. of NCT of Delhi and Ors, (OA No.2870/2011 decided on 19.01.2012).In the latter case, applicant therein, who was juvenile, was also tried under various sections including Section 302 as well, even though he too was acquitted.

4. For parity of reasons given by us in the judgments, referred to above, present Original Application is allowed. Impugned orders dated 14.03.2011 and 11.05.2011 are quashed, and the respondents are directed to consider the case of the applicant for appointment to the post of Constable (Executive) and, if found fit, to give him appointment, as expeditiously as possible and definitely within a period of three weeks from the date of receipt of certified copy of this order. If in the exercise, as ordained above, the applicant is appointed to the post of Constable (Executive), he will reckon his seniority from the date when persons along with whom he competed for the post were appointed, even though he shall not be entitled to back wages.