CWP No. 2522 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2522 of 2009 Date of decision: 18.02.2010 Sanjay Kumar s/o Sh. Dai Ram ...... PETITIONER VERSUS Union of India and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Pritam Saini, Advocate, for the petitioner. Ms. Geeta Singhwal, Central Government Counsel, for respondents No. 1 to 3. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for quashing of the order dated 12.07.2007 (Annexure P-3) dated 02.11.2007 (Annexure P-5) and the order dated 12.01.2009 (Annexure P-9). Briefly the facts of the case are that respondent No. 2-The Director General of Police, Central Industrial Security Force (hereinafter CWP No. 2522 of 2009 2 referred to as 'CISF') issued advertisement for recruitment of Constables in the Force. The petitioner applied for the same. He appeared before the Recruitment Board for physical measurement on 23.07.2007 and on going through the physical tests, which he successfully cleared, the petitioner was allowed to appear in the written examination on 28.03.2007. He passed the written examination and was selected as Constable, General Duty (Male) and issued appointment letter dated 01.06.2007 (Annexure P-1). The petitioner reported for his training to the Principal, CISF RTC Arakkonam, Post Suraksha Campus, District Vellore (Tamilnadu) on 16.06.2007. The Basic Training Course was scheduled to start on 18.06.2007. The documents, as required by respondent No. 3, were submitted by the petitioner. One of the documents, which was submitted by the petitioner, was certificate issued by the Superintendent of Police, Rohtak dated 09.06.2007, wherein it was stated that a case FIR No. 198 dated 08.08.2006 under Sections 302/323/120-B/34 IPC stood registered against the petitioner at Police Station Meham, District Rohtak, in which he was facing trial before the Court. The petitioner submitted an affidavit dated 12.06.2007, wherein he admitted the factum of the case being pending against him but he also stated therein that in case the petitioner is convicted by the competent Court, he would pay back the expenses incurred by the CISF during his training. The competent authority, at the Basic Training Centre, did not allow the petitioner to continue with the training and relieved him from the Basic Training Course with immediate effect vide order dated 12.07.2007 (Annexure P-3) on the ground that a criminal case was registered against the petitioner in Police Station CWP No. 2522 of 2009 3 Meham, District Rohtak, which was pending trial. In the said order it was mentioned that the matter is being forwarded to the higher authorities for consideration and in case of his acquittal in the criminal case for the criminal charge, the petitioner could produce the certified copy of the order of the Court for consideration of the higher authorities. Thereafter, the competent authority i.e. Senior Commandant, CISF RTC, Arakkonam passed an order dated 02.11.2007 (Annexure P-5) cancelling the provisional offer of appointment issued to the petitioner on 01.06.2007. The reason given for cancellation of the provisional offer of appointment was that a criminal case under Section 302 IPC was registered against the petitioner and the same was pending trial. The petitioner thereafter preferred an appeal before the competent authority but the said appeal was held to be not maintainable as the petitioner had not yet joined the CISF. In the criminal case, which was registered against the petitioner, the petitioner was not an accused in the FIR and it was only during the investigation that a co-accused made a disclosure statement, on the basis of which, the petitioner was roped in as a co-accused in the conspiracy to commit the murder of one Vinod son of Balwan Singh. After the conclusion of the trial, the learned Additional Sessions Judge-I, Jind vide his judgment dated 26.04.2008 (Annexure P-7) acquitted the petitioner along with the other co-accused. A perusal of the judgment would show that the learned Additional Sessions Judge has not anywhere referred to the name of the petitioner showing his involvement in the case and as a matter of fact, while concluding his judgment he has stated that not even a whispering against the accused namely, Vinod, Kaptan, Joginder, Satish, Devener, Jitender, Sanjay (petitioner) and Vikas has come on record and, CWP No. 2522 of 2009 4 therefore, they were acquitted. After the passing of this judgment, the petitioner preferred an appeal/representation before the Director General of Police, CISF-respondent No. 2. Since the said appeal/representation was initially not considered by respondent No. 2, therefore, CWP No. 17974 of 2008 was filed by the petitioner, wherein a direction was issued to respondent No. 2 vide order dated 17.10.2008 to consider and decide the appeal/representation by passing a speaking order. In compliance with the order passed by this Court, respondent No. 2 passed an order dated 12.01.2009 (Annexure P-9) rejecting the appeal/representation preferred by the petitioner on the ground that the petitioner is not found suitable to be a member of disciplined force owing to his facing a criminal charge of murder and being tried in a Court of law at the time when he was relieved from the training. This has led to the filing of the present writ petition, wherein the petitioner has challenged the orders dated 12.07.2007 (Annexure P-3), 02.11.2007 (Annexure P-5) and 12.01.2009 (Annexure P-9). Counsel for the petitioner submits that the case of the petitioner is that there is no allegation against the petitioner that he had either misinformed or withheld any information from the respondents. Nothing has been brought on record which would suggest that there is a rule debarring the petitioner for being appointed as a Constable in CISF merely because a criminal case is pending against him. A perusal of the judgment passed by the learned Additional Sessions Judge-I, Jind dated 26.04.2008 (Annexure P-7) proves beyond doubt that the petitioner was not at all involved in the commission of the crime. He submits that none of the witnesses either named the petitioner or attributed any act to him in the CWP No. 2522 of 2009 5 commission of the crime or in the conspiracy with which he was charged. He contends that it may be bad luck of the petitioner that a disclosure statement was made by one of the co-accused leading to the presentation of the supplementary challan against the petitioner which has been made the basis for not allowing him to continue as a Constable. He, however, submits that in the light of the peculiar facts and circumstances of the case, the claim of the petitioner is fully justified as nothing has been found against the petitioner which would either debar his appointment as a Constable with the CISF or would make him unfit or unsuitable for being appointed as a Constable. In support of this contention, he relies upon a judgment of this Court in the case of Parvesh vs. State of Haryana and others, 2009 (4) Law Herald (P&H) 2842, wherein this Court had, while considering the case of a Constable for appointment in Haryana Armed Police, dealt with similar facts and circumstances and had come to a conclusion that the petitioner would not be debarred from appointment to the post of Constable if no evidence comes against him and he is acquitted by the Criminal Court. In that case also, offence was under Section 307 IPC and the petitioner, in that case, was also tried only with the aid of Section 34 IPC as in the case of the petitioner in the present case. He, on this basis, prays for setting aside the impugned orders by allowing the present writ petition. On the other hand, counsel for the respondents has vehemently argued that a person, who is involved in a criminal case and that too in a murder case, cannot be appointed as a Constable in the CISF. She further submits that the relevant time for consideration of the appointment of the petitioner was the time of his initial training period. At that time, the criminal case was pending against the petitioner and the CWP No. 2522 of 2009 6 acquittal of the petitioner in the criminal case would not confer a right of appointment on the petitioner. She further states that it was not an appointment, which was given to the petitioner and he was, as yet, not enrolled as a Constable in the CISF but he was only given a provisional offer of appointment. This did not confer any right on him and, therefore, the impugned orders are fully justified and are in accordance with law. I have heard the counsel for the parties and have gone through the records of the case. The facts are not at all in dispute and, therefore, need not detain the further movement to the points involved in the case. The point, therefore, which requires to be decided is whether a person, who merely being involved in a criminal case, can be debarred from appointment to a public post where there are no specific Rules debarring such appointment? This Court, in the case of Parvesh (supra), has, while considering the aspect as to what would amount to moral turpitude in paras 10 and 11, held as follows:- “10. Generally speaking, moral turpitude has been defined as meaning an act of baseness, vileness or depravity in private and social duties which a man owes to his fellow men or society in general. This definition has been given by great many authorities and almost uniformly approved. Some time, the term is assigned as meaning anything done contrary to justice, honesty, principal or good morals or everything so done or anything so done knowingly. It is defined to mean baseness, depravity or wickedness, a shameful character, CWP No. 2522 of 2009 7 base or shameful act. As a legal term, it is defined as quality of a crime involving grave infringement of the moral sentiment of the community. However, it is noticeable that better reasoned views are quite in line with the definition that a man owes to fellow man etc. as noted above. It is a tautological expression. 11. Considerable difficulty is experienced in application of the term to facts in each case. Reason could be that the term does not refer to legal standards but largely refers to moral character and state of mind. There is no hard and fast rule as to what constitutes 'moral turpitude'. It often involves the question of intent. It signifies an inherent quality of baseness, vileness, depravity and, thus, an act inherent baseness etc. in private social or public duties which a man owes to his fellow being. Moral turpitude is not involved in every criminal act. Whether any particular conviction involves 'moral turpitude', may be a question of fact and frequently depending on surrounding circumstances. It is, thus, difficult to determine just what crimes do involve moral turpitude. There may be many reasons in this regard like concept of morals vary according to community or time etc. Some crimes, however, are of such a nature that these involve moral turpitude as a matter of law. Some crimes may be such that these do not involve moral turpitude. In between these two classes may be the cases where it would become a question of fact to be determined if these involve moral turpitude or not. In such cases attendant circumstances would furnish the best guide. CWP No. 2522 of 2009 8 Severity of the punishment imposed may not control the issue. There is a tendency to restrict the term to sexual crimes but the meaning certainly is much broader. Sexual crimes of course would fall within the scope of definition. Keeping in view the definition of the term, it may be possible to say that mere assault, causing hurt etc. does not or may not involve moral turpitude. Whether it does or does not would depend upon particular facts of each case/individual case. Thus, homicide may or may not involve moral turpitude depending upon the degree of the crime and so would be the position regarding attempted homidice.” Thereafter, on considering the judgments of the various Courts in para-16, it was observed by this Court as follows:- “16. It would have to be seen in this case if the conduct alleged was inherently base, vile, depraved or showing such tendency etc. or not. To say that a conduct alleging an attempt to murder would be an offence involving moral turpitude would amount to doing injustice to the term. This has to be seen and appreciated in the context and circumstances of the case to see if conduct was base, vile or deprave. To term the offence of attempt to murder as such, involving moral turpitude, would not be fair approach and cannot be so adopted. The facts of the case, thus, will have to be seen to find if the petitioner had been alleged to have depicted such characteristics to term that he was accused of an offence involving moral turpitude of which he has been acquitted.” CWP No. 2522 of 2009 9 The petitioner no doubt was involved in a criminal case and a trial was going on against him but it cannot be lost sight of the fact that allegations against the petitioner were not for having committed the substantive offence under Section 302 IPC but was being tried for the offence with the aid of Section 120-B and Section 34 IPC. A perusal of the judgment leaves no manner of doubt that the petitioner was not at all involved in either the commission of the crime or in the conspiracy, for which he was being tried. The petitioner was not named in the FIR and a supplementary challan was presented against him only because a co- accused had made a disclosure statement, in which he named the petitioner along with others. The clincher is the judgment of the learned Additional Sessions Judge-I, Jind with regard to the innocence of the petitioner. The relevant part whereof reads as follows: “16. xxx xxx xxx xxx xxx xxx xxx xxx The solitary witness PW/2 Satbir who is uncle of deceased is a procured witness. He was not injured although allegedly present. He was not with the deceased at PGIMS, Rohtak. Though he lifted the deceased but no blood stains were there on his clothes. When police reached PGIMS, Rohtak he was not available there. As per Ex. PQ i.e. post mortem report semi-digestive blood was present in the stomach of deceased but PW/2 Satbir deposed that they did not take anything after 11.00 A.M. on 07.08.2006. Therefore, also a doubt is raised in the version of the prosecution. There is also not even a whispering against the accused namely, Vinod, Kaptan, Joginder, Satish, Devener, Jitender, Sanjay CWP No. 2522 of 2009 10 and Vikas, therefore, they cannot be convicted for criminal conspiracy in the murder of Vinod. 17. As a result of my above discussion, the prosecution has miserably failed to prove its case against all the accused. So, all the accused are acquitted of the charges levelled against them. Accused Satyawan be released if not required in any other case. Bail bonds and surety bonds of the accused are discharged. File be consigned to the record room.” Now in these given circumstances, should the petitioner, who was in no manner involved in the commission of the crime and there being no allegations against him as such, be deprived of his right of appointment. No rule has been referred to in the written statement filed by the respondents which would state that merely because a person is involved in a criminal case would be enough to debar his appointment in the CISF. The only reason, which was assigned for relieving him from the Basic Training Course, was that an FIR was registered against him at Police Station Meham, District Rohtak and trial was going on against him. There is no consideration on the part of the respondents with regard to the conduct or involvement of the petitioner in the said offence, for which he was being tried. The respondents have simply cancelled the provisional offer of appointment given to the petitioner on the ground that he was involved in a criminal case. While applying the principles, as have been laid down in the above-mentioned judgment in the case of Parvesh (supra) and consideration of the judgment passed by the learned Additional Sessions Judge-I, Jind, it is apparent that the petitioner is being deprived of his right CWP No. 2522 of 2009 11 to appointment in a situation which is not his creation, which was not in his control and he has nothing to do with the same. He was not involved in the commission of the crime and, therefore, for no reason, he has been held guilty even before he has been heard on this aspect. Even the Appointing Authority and then the Appellate Authority did not apply its mind to the conduct or role of the petitioner in the alleged offence commited by him. It was all the more necessary when there was no statutory bar to appointment in case of registration or pendency of a criminal case against a recruit. Power and Authority has to be exercised in such a manner in the absence of a statutory bar which would pass the test of law. The basic principle is the principle of natural justice which mandates a right to be heard before an adverse order is passed which has civil consequences. This has been violated by the respondents. While depriving a person of his livelihood the authorities are required to be reasonable, conscious and just rather than arbitrary and inconsiderate. The impugned orders deserve to be set aside on the ground of non-consideration of facts and non-application of mind despite issuance of directions by this Court vide order dated 17.10.2008 in a writ petition preferred by the petitioner i.e. CWP No. 17974 of 2008, to consider and decide the Appeal/representation by passing a speaking order. The reason given for non-acceptance of the representation/appeal of the petitioner was that the criminal case was pending when he was given provisional offer of appointment and the order of acquittal dated 26.04.2008 came after a lapse of reasonable time whereas cancellation of provisional offer of appointment was dated 02.11.2007. The lapse of time in this case is not inordinate so as to deprive the petitioner even the right of consideration of his case on merits on the basis of his role and conduct in the alleged commission of the CWP No. 2522 of 2009 12 offence in the criminal case in the light of judgment of acquittal by the competent authority. That apart, there being no statutory bar nor any rule has been brought to the notice of the Court during the hearing of the case by the counsel despite seeking instructions from the official present in Court to assist her or has been referred to in the written statement filed by the respondents, debarring such appointment merely because of the pendency of a criminal case is arbitrary and leads to a conclusion that the impugned orders are not in accordance with law. There appears to be a logic on the part of the rule making authority in not incorporating a rule barring appointment merely on the basis of a criminal case being registered or a criminal trial going on against a recruit, as this rule, if incorporated, can be grossly misused. If any person out of jealously, animosity, rivalry, ill-will, malice or for any other mala-fide reason, wants to deprive a well deserved appointment to a person in the Force, has got to only initiate a criminal case either by lodging an FIR or a criminal complaint, thus causing an irreparable loss to such innocent person as he would be barred from being appointed. The respondent Authorities have totally overlooked this aspect and have failed to exercise powers conferred on it but have misdirected itself by exercising power which is not conferred on it by the statutory Rules. Even if such a Rule providing for blanket ban on appointment merely because of registration of a criminal case or pendency of a criminal case/trial without qualifying it with the nature of offence or the role of the recruit/employee, this Rule perse, would not stand the scrutiny and test of law and would thus be struck down by the Court. The prayer made in the present writ petition thus deserves to be accepted. CWP No. 2522 of 2009 13 Accordingly, the present writ petition is allowed and the impugned orders passed by the respondents dated 12.03.2007 (Annexure P-3), 02.11.2007 (Annexure P-5) and 12.01.2009 (Annexure P-9) are hereby set aside. The respondents are directed to consider the case of the petitioner for appointment to the post of Constable within a period of one month from the date of receipt of a certified copy of this order. The petitioner is further held entitled to all consequential benefits except back wages. ( AUGUSTINE GEORGE MASIH ) JUDGE February 18, 2010 pj Refer to Reporter...............Yes.