ORDER
Shanker Raju, Member (J)
1. By virtue of the present original application, appl icant, who is a Constable, has assailed an order passed by the respondents on re-consideration on 6.6.2005 declining him the offer of appointment to the post of Sub-Inspector Executive in Delhi Police.
2. Undisputed facts are that the applicant was enrolled as a Constable in Delhi Police on 15.3.1998. In the year 1994 he was falsely implicated, as alleged, in a criminal case pertaining to corruption charges vide FIR dated 13.7.1994. In Delhi Police, appointment to the post of Sub-Inspector (Executive) is governed by Rule 7 of the Delhi Police (Appointment and Recruitment), Rules, 1980 (hereinafter referred to as ‘Appointment Rules’) where out of 50% of promotion quota, 10% of posts shall have to be filled through Limited Departmental Competitive Examination to be held by SSC from amongst the Constables, Head Constables, Assistant Sub-Inspectors with minimum five years of service. Applicant, on notification of the posts of Sub-Inspector, applied for the same under departmental quota. However, by an order dated 26.11.1996 passed by the Commissioner of Police, applicant was informed that his case for issuance of appointment has been kept in abeyance till the f inalization of the criminal case pending before the competent Court of Criminal j urisdiction. By a judgment dated 14.5.2002, Court of Special Judge acquitted the applicant along with others from the criminal charges on benefit of doubt by holding that whether the visit of the applicant to the scene of occurrence was official has not been properly investigated. Applicant, on his acquittal, sought appointment and during this interregnum, he was reinstated in service without prejudice to the departmental action, vide order dated 26.2.2004. Thereafter by an order passed on 1.6.2004, in absence of material on record, no further departmental action had been taken against him under Rule 12 of the Appointment Rules ibid the period of suspension was treated as spent on duty for all purposes.
3. The respondents, by an order dated 27.9.2004, holding that on examination of the judgment of the Trial Court and having found his acquittal on benefit of doubt would not make him a good officer on higher post in Delhi Police, his candidature for the post of Sub-Inspector (Executive) has been cancelled.
4. The applicant assailed the above order in the Tribunal by filing O.A. No. 2443/2004. The Tribunal, by an order passed on 2.3.2005 holding that no reason or material had been shown in the order as to unfitness of the applicant for appointment, directed the respondents to re-consider the case of the applicant and to pass a reasoned order.
5. An order was passed on 6.6.2005, impugned in this O.A., holding that the applicant, who has to be entrusted with higher responsibilities in a higher rank in Delhi Police for the post of Sub-Inspector Executive is not fit to be appointed as his unethical and immoral conduct is reprehensible and not expected from an officer of Sub-Inspector level. Therefore, the respondents, not filing the applicant fit to be entrusted with higher responsibilities in a disciplined force like Delhi Police, did not offer him the appointment to the post of Sub-Inspector Executive.
6. Learned Counsel of the applicant states that as per Rule 12 of the Delhi Police
(Punishment and Appeal) Rules 1980 hereinafter referred to as ‘Punishment Rules’ on acquittal on benefit of doubt or otherwise on technical grounds, a departmental enquiry is not barred. Having taken a decision to hold an enquiry and thereafter order passed by the Deputy Commissioner of Police holding that there is no material in any manner connecting the applicant to the offence and acquittal being meritorious, respondents’ decision being held by one of theDCPs, another DCP, who also forms part of the Delhi Police, is estopped from taking a contrary view as to the character of the applicant as to non-holding of an enquiry. As a Constable when there is an indication of his being above board, his moral and character being designated as synonymous with his offence to hold the rank of Constable, the decision to cancel the candidature for the pose of Sub-Inspector Executive is an arbitrary exercise of discretion by quasi judicial authority, which is precluded in law.
7. Learned Counsel would contend that the decision of the High Court in Delhi in Mohan
Lal v. Union of India and Ors. 1981 (2) SLJ 489 clearly rules that acquittal on benefit of doubt is a clean acquittal and he placed reliance on the decision of the Tribunal in O.A. No. 2443/2004 where the concept of honourable acquittal has been explained. It is also stated that the situation has not improved. The reasons recorded in compliance of the above order by the Commissioner of Police are on suspicion and surmises as the acquittal even on benefit of doubt obliterates any stigma attached to the involvement in the criminal charges then holding contrary would amount to sit over the decision of a judicial forum by a quasi-judicial authority, which is not permissible in the wake of the fact that the decision of the Special Judge has not been challenged in appeal and the same has attained finality.
8. Learned Counsel would also contend, placing reliance on a decision of Punjab and Haryana High Court in Municipal Committee Jaituv. Gulab Singh 2003(3) SCT 1011, that acquittal would place an employee in same post before registration of a case and would obliterate any stigma attached to the involvement in a criminal case.
9. Learned Counsel would further contend that the observation of the Commissioner is based on extraneous matter, on personal knowledge andt/e hors the directions issued by the Tribunal earlier (supra). As the allegations, which could not be proved in the Court of law are admitted to be proved, despite filing of the departmental proceedings against the applicant.
10. Learned Counsel would contend that as per Rule 6 of the Appointment Rules ibid, a person who has been acquitted of the charges and is not convicted is not an impediment for appointment. It is not a disqualification. By resorting to Rule 25 of the Appointment Rules, it is stated that the only requirement is certification of a good moral character for appointment even to the rank of Sub-Inspector Executive in Delhi Police which applicant fulfils, hence, denial of appointment is de hors the rules.
11. Learned Counsel stated that the decision in DAD v. Sushil Kumar S.L.P. 5340/ 1996, would have no applicability in the present case where though the discretion is of the Appointing Authority but in the present case it has not been exercised judiciously.
12. On the other hand, Mr. Harvir Singh, learned Counsel of the respondents vehemently opposed the contentions.
13. A reliance has been placed by Mr. Harvir Singh on a decision of the Apex Court in Union of India and Ors. v. Shri Bihari Lai Sidhana JT 1997(4) SC 541 to contend that even after acquittal, it is open to the Competent Authority to take decision whether to take back an employee in service or not. Learned Counsel has also relied upon a decision of the High Court of Delhi in Surinder Kumar v. Govt. of NCT of Delhi and Ors. W.P. (C) 5191/2005 decided on 25.11,2005 wherein cancellation of candidature on suppression of information has been upheld.
14. Mr. Harvir Singh learned Counsel would further contend that the acquittal on benefit of doubt would not suo moto entitle the applicant to claim appointment. Though it is stated that the SSC has recommended the name of the applicant for appointment as Sub-Inspector Executive on the basis of examination of 1994 yet on direction of the Tribunal, the matter was reconsidered in the light of Sushil Kumar’s case (supra). The relevant factor is the conduct and character of a person to be appointed and as the applicant was found present at the spot and caught by CBI, he would on assignment of higher responsibility as Sub-Inspector Executive in a higher rank not be proved to be a good officer the discretion had been exercised judiciously by the Appointing Authority and the same does not warrant any interference.
15. We have carefully considered the rival contentions of the parties and perused the material on record.
16. In a recent decision by the Apex Court in Union of India v. Kali Dass Batish 2006 (SC) SLJ 16 : 2006(2) SLJ 201 (SC) where non-appointment as a Member Judicial in Central Administrative Tribunal was the grievance of the respondent. The Apex Court by holding that one who has been selected and placed in the select list is not vested with an indefeasible right to be appointed. Though this proposition is also laid down in a Constitution Bench of the Apex Court in Shankarsan Dash v. Union of India but it has also been held in that case that the decision of the Government should not be at the ipsi dixit and whims and fences and should not be actuated with mala fides or arbitrariness.
17. It is trite law that an Administrative Authority, while discharging the function of a quasi judicial authority, has to adhere to the Wednesbury principle of law of reasonableness and when vested with discretion, which has to discern between right and wrong a private information has no significance. The test of a reasonable common prudent man has to be laid down. In Union of India v. Kuldeep Singh , following is the observation of Apex Court:
In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one’s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reasons and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of this office ought to confine himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet.
18. In Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivali and Ors. a Division Bench of the Apex Court ruled that in administrative action power vested must be exercised in public interest, judiciously as also fairly in a reasonable manner. While applying the doctrine of justice in an administrative action, the Apex Court in Ganesh Santa Ram
Sirur v. State Bank of India and Anr. , held that even in an administrative order, judiciousness is an integral part.
19. In Bhavnagar Universtiy v. Palitana Sugar Mills (P) Ltd. and Ors. the Apex Court ruled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. In regard to policy decision and the decision making process, the following observation of the Apex Court in Onkar Lai Bajaj v. Union of India .
The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and has taken into consideration other matters, though on the face of it the decision may look legitimate but as a matter of fact the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.
20. What is discerned from the above ratio decidendi arrived at in the decision of the Apex Court, is that Govt. being a role model and as a welfare state while exercising discretion should act judiciously to ensure that the action is not vitiated by mala fides and there is no arbitrariness. A touchstone of common prudent man and its reasonableness is the test even applicable to the quasi judicial authorities. Though they are at liberty to record reasons but in ajudicial review, if the reasons are found against the rules and the action being mala fide, arbitrary and in violation of Constitution of India, that would not stand scrutiny of law.
21. Having this background of law, Rule 12 of the Punishment Rules, provides as under:
12. Action following judicial acquittal-When a police officer has been tried and acquitted by a Criminal Court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless:
(a) the criminal charge has failed on technical grounds, or
(b) in the opinion of the Court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or
(c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts unconnected with the chage before the Court which justify departmental proceedings on a different charge; or
(e) additional evidence for departmental proceedings is available.
22. Rules 5 and 6 of the Appointment Rules provide as under:
5. Recruitment-(a) Save in the case of Ministerial Cadre, Women Police and other specialized appointments, as hereinafter provided in these rules, direct recruitment to subordinate ranks executive of Delhi Police shall be made only at two levels viz- Sub-Inspector and Constables.
(b) In Rule 5 of the Delhi Police Appointment and Recruitment Rules 1980, hereinafter referred to as the “Principal Rules” for the existing Sub-rule (b) the following shall be substituted, “(b) Other things being equal, in the recruitment for various tests in Delhi Police, sons/daughters of serving/ retired/deceased Police personnel including the Class IV employees of Delhi Police shall be given preference over other candidates subject to their fulfilling the prescribed educational and physical standards and also subject to such appointment not exceeding 5% of the total number of vacancies in a year.
(c) Appointment to the force shall be subject to the orders, issued by the Govt. of India from time to time regarding special representation in the service for Schedule Castes, Scheduled Tribes, Ex-servicemen, Outstanding sportsmen, departmental candidates, etc.
(d) “Notwithstanding the above rules, the Commissioner of Police shall be the Competent Authority to appoint in relaxation of the procedure of recruitment through the Employment Exchange and without subjecting to competitive test, the sons/daughters of Delhi Police personnel who die in harness leaving their families in immediate need of assistance, in terms of the instructions issued by the Govt. of India. MHA regarding such compassionate appointments.
(e) (i) All direct appointments of employees shall be made initially on purely temporary basis. All employees appointed to the Delhi Police shall be on probation for a period of two years:
Provided that the Competent Authority may extend the period of probation but in no case shall be period of probation extend beyond three years in all.
(ii) The services of an employee appointed on probation are liable to be terminated without assigning any reasons.
(iii) After successful completion of period of probation, the employee shall be confirmee in the Delhi Police by the Competent Authority, subject to the availability of permanent post.
(f) All direct recruits Non-gazetted officers in Delhi Police shall, before appointment be required to execute a bond for the refund of capitation charges for the training imparted to them in full in lump sum if they leave without computing 5 years’ service from the date of appointment in the Delhi Police:
Provided that the said charges may not be recovered from those who leave the service of the Delhi Police to secure employment under a State Government/Central Government or a public sector undertaking.
Standing instruction for working out such charges for various courses shall be determined by the Commissioner of Police.
(g) All enrolled police officers shall have to taken an oath of allegiance to the Union of India and the Constitution.
(h) Notwithstanding anything contained in these Rules, where the Administrator/ Commissioner of Police is of opinion that it is necessary or expedient in the interest of work so to do, he may make appointments to all non-gazetted categories of both executive and ministerial cadres of Delhi Police on deputation basis by drawing suitable persons from any other force. Where such appointments are made by the Commissioner of Police, the same shall be report to the Administrator forthwith. Such appointments on deputation basis shall also be subject to orders issued by the Government of India/Delhi Administration from time to time governing the deputation of Government servants.
6. Ineligibility-(i) No person who is not a citizen of India shall except with the consent of the Central Government to be obtained in writing in advance, be appointed, enrolled or employed in Delhi Police.
(ii) No person, who has more than one wife living or who having a spouse living marries in any case in which such marriage is void by reason of its taking place during the life time of such spouse, shall be eligible for appointment, enrollment or employment in Delhi Police.
(iii) Every candidate shall make a declaration in form No. B about his material status before he is enlisted.
(iv) No person shall be appointed to any post in Delhi Police unless he has been certified on as physically fit for police service by form D and F by a medical authority to be appointed for the purpose by the Commissioner of Police.
23. Persual of the Rule 5 provides for recruitment even to the post of Sub-Inspector Executive in Delhi Police and as per Rule 6 ibid the only impediment in appointment ir. non-citizen; having two wives living and a physical unfit personnel. Rule 7 of the Rulcsibid provides for recruitment of Sub-Inspector and all other provisions of appointment rules are mutatis mutandis applicable to the aforesaid selection though conducted outside Delhi Police by SSC but the Appointing Authority is still the Deputy Commissioner of Police as per Rule 4 of the Rules ibid.
24. Rule 25 of the Appointment Rules provides as under:
25. Verification of character and antecedents-(i) Every candidate shall, before appointment, produce an attestation form, duly certified by two gazetted officers, testifying that the candidate bears a good moral character and they are not aware of anything adverse against him. The candidate may be provisionally enrolled pending verification of his character and antecedents which shall be done by making a reference to the concerned police station. Standing instructions in this regard laying down the procedure for getting such verifications shall be issued by the Commissioner of Police.
(2) An entry about the result of verification of character and antecedents shall be made in the service book/character role of the police officer concerned. The papers of such verification shall be filed with his Miscellaneous Personal File.
25. If one has regard to the above, before appointment as a pre-condition, testification of a candidate as having good moral character is the only requirement for his appointment to any rank including Sub-Inspector (Executive) in Delhi Police.
26. In Manager, Reserve Bank of India, Bangalore v. S. Mtini and Ors. 2OO5(1) SC SLJ 499 : 2005(2) SLJ 309 (SC) the Apex Court in a case of termination of a workman who had been acquitted of the charges on forging the papers and suppressing the information while seeking appointment observed on the issue of effect of judgment of acquittal as under:
11. The appellants’ contention as regard holding of interview of the respondents herein in December, 1982 and March 1987 is not denied or disputed. It is also further not in dispute that their education qualifications and other details were required to be verified. Institution of three criminal cases stands admitted. Before us a judgment passed in the criminal cases has been produced, from a perusal whereof it would appear that the contention raised by the respondents herein that they had never produced any transfer certificate at the time of interview was not raised. If the contention of the appellant as regard production of transfer certificate by the respondents at the time of their interview finds acceptance, then concededly the said certificate vis-a-vis the certificates produced by the respondent in the year 1987 are different in several respects, including the name of the father and name of the school, date of birth, etc. It is true that the certificates produced by them in 1987 were found to be genuine but the same by itself would not lead to a conclusion, as suggested by Mr. Phadke that the respondents themselves did not produce the said certificates before the interview board or the same were manufactured by the officers of the Reserve Bank of India.
12. It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of donbtper se would not be binding upon the employer. The employer had no occasion to initiate departmental proceedings against the respondents. They were not regularly employed. They, according to the appellant, filed forged and fabricated documents and as such were not found fit to be absorbed in regular service. The effect of a judgment of acquittal vis-a-vis the alleged misconduct on the part of the workmen fell for consideration before this Ccfurt in Bihari Lai Sidhana(supva) wherein it was held:
5. It is true that the respondent was acquitted by the Criminal Court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the Competent Authority to take decision whether the delinquent Government servant can be taken into service or disciplinary action should be taken under the Central Civil Services Classification, Control and Appeal Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary Government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only away of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of Government employee does not automatically the Government servant to reinstatement. As stated earlier, it would be open to the appropriate Competent Authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary Government servant, the power being available under Rule 5(1) of the Rules. It is always open to the Competent Authority to invoke the said power and terminate the services of the employees instead of conducting the enquiry or to continue in service a Government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriate of public money.
13. Recently in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. one of us, Santosh Hegde J. speaking for a 3-Judges Bench observed:
25. The next contention addressed on behalf of the respondents is that the Labour Court ought not to have brushed aside the finding of the Criminal Court which according to the learned single Judge “honourably” acquitted the accused workmen of the offence before it. We have been taken through the said judgment of the Criminal Court and we must record that there was such “honourable” acquittal by the Criminal Court. The acquittal by the Criminal Court was based on the fact that the prosecution did not produce sufficient material to establish its charge which is clear from the following observations found in the judgment of the Criminal Courts:
Absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charge under Sections 147, 353, 329 IPC.
26. Learned Counsel for the respondents in regard to the above contention (sic) on ajudgment of this Court in the case of Capt. M. Paul Anthony. In our opinion, even that case would not support the respondents herein because in the said case the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence, this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted that in that case the finding by the Tribunal was arrived at in anexparte departmental proceedings. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was di fferent from that led by the prosecution in the criminal case and the materials before the Criminal Court and the Labour Court were entirely different. Therefore it was open to the Labour Court to have come to an independent conclusion de hors the finding of the Criminal Court…”
It was observed:
From the above, it is seen that the approach and the objectives of the criminal proceedings and the disciplinary proceedings are altogether distinct and different. The observations therein indicate that the Labour Court is not bound by the findings of the Criminal Court.
14. Li Cholan Raodways Limited v. G. Thirugnanasambandam 2004(10) Scale 578 this Court held:
19. It is further triete that the standard of proof required in a domestic enquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former preponderance of probability would suffice; in the latter, ‘proof beyond all reasonable doubt’ is imperative.
15. The contention that the respondents had not produced such certificates or the same have been fabricated at the instance of some officers of the Reserve Bank of India, therefore, does not find our acceptance. It is rejected accordingly.
27. If one has regard to the above, basically what has been discerned is that this ratio was laid down in the wake of the fact that on acquittal being non-regular employee, there had been no occasion for the respondents to judge the veracity of the charges levelled therein on holding a disciplinary proceedings.
28. In Secretary Department of Home Secretary A.P. and Ors. v. B. Chinnam Naidu 2005(3) SC SLJ 269 : 2005(2) SLJ 233 (SC) in so far as appointment on acquittal is concerned the following observation has been made by the Apex Court:
10. The question whether he was a desirable person to be appointed in Government service was not the subject matter of adjudication and the Tribunal was not justified in recording any finding in that regard. Whether a person is fit to be appointed or not is a matter within the special domain of the Government. For denying somebody appointment after he is selected, though he has no right to be appointed, has to be governed by some statutory provisions. That was not the issue which was to be adjudicated in the present case. The only issue related to suppression of facts or misdeclaration.
29. If one has regard to the above, it is trite law that a person whether fit to be appointed or not is a matter within the domain of the Government and on selection the right of appointment has to be governed by statutory provisions.
30. A Division Bench of the Tribunal in Ram Pal and Ors. v. Commissioner of Police 2005(1) ATJ 201, while examining the issue of non-appointment to the post of Constable even on acquittal, taking into consideration the decision of the Apex Court in Delhi Administration through its Chief Secretary and Ors. v. Sushil Kumar , wherein it is held that even on acquittal from criminal offence, the relevant is the conduct or character of the candidate to be appointed and not the actual result thereof. The following are the observations of the Tribunal:
39. As referred to above, strong reliance is being placed on the decision of the Supreme Court in the case of Sushil Kumar (supra) and also the decision of the Kerala High Court in the case of K. Sadanandan v. The State of Kerala . Indeed, the decisions are binding which permit the authorities even after acquittal to make sure that the character and antecedents of the said person are such that he is not a fit person to be taken into service. The ratio decidendi of the decision, therefore, would be that the authorities can look into the facts about the conduct and character of a person to be appointed in service. The authority can focus on this aspect and will come to a conclusion that it is not desirable to appoint him in service.
40. But such a discretion necessarily has to be exercised in reasonable manner. Arbitrariness and reasonableness must be stated to be sworn enemies. Merely stating that because a person was involved in a criminal case and therefore even after acquittal he should not be taken in service would be indeed incorrect. We have one after the other files to see the reason that has prevailed with the respondents in rejecting the claim of the applicant. As referred to above and re-mentioned at the risk of the repetition, the respondents are not forthcoming with any other material to prompt this Tribunal to conclude that the applicants were not fit to be taken into service because of their character and antecedents. There has to be some such antecedents to come to such a conclusion. The same are not shown. The reasons given are not sustainable.
31. In the earlier decision rendered in the applicant’s earlier O.A. 2443/2004 (supra) on the matter of honourable acquittal on benefit of doubt, the following is the observation:
20. Great stress was laid on behalf of the respondents that the applicants had not earned an honourable acquittal. In the Code of Criminal Procedure, expression ‘honourable acquittal’ is an alien to the said procedure. We know from the decision of the Division Bench of the Madras High Court in the case of Union of India and Ors. v. Jayaram Damodhar Timid , wherein the Court held that there is no conception of the expression of ‘honourable acquittal’ in Criminal Procedure Code. The Court held:
(3)…In the first place, we are unable to understand the legal significance of an expression like “honourable acquittal’. Certainly, the Code of Criminal Procedure does not support this conception. The onus of establishing the guilt of accused is on the prosecution, and, if it failed to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
21. Same findings had been arrived at by the Punjab and Haryana High Court in the case of Jagmohan Lalv. State of Punjab and Ors. . It was held that:
…The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are ‘discharged’ or ‘acquitted’. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the Court the accused is acquitted.
22. The decision of the Bombay High Court in the case of Dattatraya Vasudeo
Kulkarni v. Director of Agriculture, Maharashtra and Ors. 1984(2) SLR 222 is also to the same effect.
23. From the aforesaid, it is clear that the concept of honourable acquittal is of no avail nor the Administrative Authorities can question the same once a person has been acquitted.
24. Once a person is acquitted, he is exonerated of the charge that has been framed against him. Acquittal for all practical purposes put to an end to the charge framed.
25. Stress in that even was laid on the fact that the acquittal was on benefit of doubt. They relied on the Supreme Court’s decision in the case of Vidya Charan Shukla v. Purshottam Lai Kaushik . While concerned with the acquittal and the disqualification under the Representation of People Act, 1951, the Supreme Court had occasioned to deal with the matter. It was held that an order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity.
26. It clearly shows that the expression ‘benefit of doubt’ has rooted deep into our jurisprudence because charge has to be proved beyond all reasonable doubts. It is the prosecution, which is required to prove its case beyond all reasonable doubts. When it is not established, the Court while, acquitting a person, using the expression benefit of doubt, cannot be taken to have recorded a finding of not honourable acquittal or honourable acquittal.
27. We are conscious of the fact that the Supreme Court, in the case of Delhi Administration Through its Chief Secretary and Ors. v. Sushil Kumar , had held:
3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6.9.1995 in O.A. No. 1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. 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 the local police. On verification it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18.12.1990 culminating in cancellation of his provisional selection, he filed O.A. in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. 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 focused this aspect and found it not desirable to appoint him to the service.
28. We do not dispute the said proposition, which in any case binds this Tribunal but following the ratio decidendiohhe said decision, the authorities can look into the fact about the conduct and person to be appointed. The authority can focus on this aspect and thereafter it can come to the conclusion as to if the desirability to appoint him in service or not.
29. But the said discretion has to be exercised in a reasonable manner. Merely stating that he was involved in a criminal case, therefore, after acquittal, in no circumstances, will not make him a good officer, cannot be taken as a cogent ground.
30. In the case of Sushil Kumar (supra), it had been directed that the relevant fact to be considered is the conduct and character of the candidate and not the result of acquittal. It is the antecedents of the candidates, which can be considered and in the peculiar facts, therefore, the Supreme Court had upheld the order of the department. In the present case, the concerned authority has not focused its attention on that. In the impugned order, no other reason has been pointed that there was material available to show the character and antecedents. There is no other material that the applicant, therefore, was not fit to be considered for service. The reasons cannot be sustained.
32. The above view signifies that the respondents having failed to record any material as to unfitness of the applicant to service, order had been quashed.
33. At the outset, the decision cited by the learned Counsel of the respondent in Bihari Lai Sidhana(supra) denying the ratio decidendi of the case which has to be derived not only merely reading the head note or the concluding para but is to be judged from the cause of action, matter in issue, reasoning and adjudication thereof which clearly makes it distinguishable as in that case the applicant’s termination under Rule 5(1) of the CCS (CCA) Rules 1965 being a temporary employee was upheld on suppression of information. When temporary Government servant has no right and in that context acquittal has not been found to be automatic to give the petitioner therein the right to be appointed in service. However, in the present case, applicant, who is already in service and is being selected as Sub-Inspector Executive in Delhi Police seeks appointment.
34. Another decision in Sushil Kumar’s case (supra) had also dealt with the issue of suppression of material information and as the issue, raised in the present O.A., even by remotest connection is not relevant. This decision would also be distinguishable and would not apply to the facts of the present case.
35. For entry into the Government service, pre-requisite condition, is that the person to be appointed should not be a criminal background and should have good moral character. Unbecoming Government servant has no place in the disciplined force like Army and Police. When it has to deal with the honorary responsibility of rooting out criminals and criminality from the Society, and officer from a criminal background would not be a fit person to be appointed. However, there are always two sides of a coin. In our judicial system to judge the criminality of a person, against whom an offence has been reported and registered is the criminal occurrence, faces a trial and then by virtue of the judgment once involvement is established or otherwise either entails acquittal for conviction and sentence thereof. In the entire Code of Criminal Procedure the acquittal is an acquittal on merit and the honourable acquittal has no concept. A person against whom charges are not established by the laid down prosecution evidence or represented by him through his defence cannot be said to be involved in any manner and on his acquittal this would give an effect which would not only obliterate one from the criminal charges but would also obliterate, from the point of view of any allegation levelled against him.
36. However, when a serving Government servant who faces trial is acquitted is not an end of the story. The employer is at its discretion to further probe the matter as in the departmental proceedings strict rules of evidence and procedural aspect of the criminal trial is not applicable. Here the preponderance or probability is the rule. This is with a view to judge the fitness of the applicant for further continuance in Government service. However, it is trite law that when there is a specific rule general rules have no application. In the matter of benefit of doubt, High Court of Delhi inMohan Lalv. Union of India (supra) has observed as under:
6. It is a mandatory requirement of F.R. 54(3) that period spent on suspension should be treated as a period spent on duty for all purposes when a delinquent servant is fully exonerated and his order of dismissal, removal or compulsory retirement is set aside. On plain reading, F.R. 54(3) is not applicable to the present case. The term “fully exonerated” is not defined or explained in the Fundamental Rules. Fundamental Rues 54(4) throws some light on the concept of full exoneration. The said rule provides that if a Government servant is exonerated for non-compliance with requirements of Clause (2) of Article 311 of the Constitution, the Government mentioned therein to be that if delinquent servant is exonerated merely for non-compliance of the technical procedural rules and is not exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on benefit of doubt, it cannot be said that he is acquittal for non-compliance with the technical Rules of procedure. Indeed, in criminal law an acquittal on benefit of doubt is a complete acquittal on merits. Reasoning of the D.I.G. is contrary to law. The State did not prefer an appeal against the order of acquittal by the Magistrate. Therefore, the judgment of acquittal has become final. It means that the acquittal on merits has become final. If it was a mere case of a doubt according to the strict requirement of rules in a criminal trial, the petitioner could have been proceeded against departmentally. Technical rules of evidence are not applicable to departmental proceedings. The petitioner was charged under Section 294 of the I.P.C. Indecent behaviour with a woman is certainly a conduct unbecoming of a Government Servant. But is appears that the respondents were convinced that there was no sufficient evidence to hold that the conduct of the petitioner was unbecoming of a Government Servant. By inference one can reach this conclusion, as no departmental proceeding was held against the petitioner. The impugned order was passed by DSP, within four months of his acquittal. The impugned order cannot be justified underF.R. 54(1)(2)(3) or (4)
37. Rule 12 of the Punishment Rules lays down a mechanism where even after acquittal from criminal charges a departmental enquiry is not prohibited and can be held when the criminal charge has failed on technical ground, when the prosecution witnesses have been won over, when the Trial Court has observed that offence was actually committed and that suspicion rested upon the police officer concerned and when the evidence in connection with the criminal case discloses facts unconnected with the charge before Court which justify departmental proceedings on a different charge or additional charge is available. The Competent Authority is the Disciplinary Authority to decide the applicability of Rule 12 on examining the decision of the Trial Court.
38. The applicant against whom the charges were that while posted at P.S. Dabri, one Nirmala Devi lodged a complaint who was a Drug Dealer for demanding bribe money by the police officials with a threat to implicate her falsely. A trap laid down resulted in registration of a case by CBI. However, the complainant has not come forth supporting the prosecution and when other witnesses and evidence have not established the ingredients of the offence against the accused person the same resulted in acquittal with the following observations:
24. It is pertinent to mention here that PWS, the SHO, had concerned that A.3 was an official, who had been posted only a few months prior to the date of the raid. He conceded that as a new incumbent, A3 was expected to acquaint himself with the local area and was supposed to take rounds with the beat constables. This necessarily will involve, in particular, involvement in watch over the known bad characters of the area, in which the complainant of this case would fall. P.W.5 was enable to confirm if A.6 had been assigned some warrants for execution and some applications for verifications, which had taken him to the area in question. P.W.8 conceded that amongst others a bunch of papers had been seized from the hands of A.6 at the time of his arrest. These bunch of papers, 69 in number, would include Court processes. No investigation has been done into this material, which seems to justify the presence of the A.6 in the locality. The investigating officer, P.W.9 when asked during his cross-examination sought to express lack of memory as to the nature of material that had been seized from the hands of A.6. It was pointedly suggested to him that A.3 had accompanied A.6 in the vicinity of the house of complainant for aforesaid purpose. Though the witness denied the suggestion, in the fact of recovery of such material from the hands of A.6 a doubt is raised that his visit to the locality might after all be connected to his official visit, in which respect proper investigation has not been done.
25. In above facts and circumstances, where the evidence of complainant about the demand before the FIR or during the trap is wholly contradictory to the prosecution case, it does not appear safe to rest a finding of guilty on the sole word of P.W.8, in as much as there is no corroboration available from the statements of independent witnesses P.W.2 and P.W.3, since all the other witnesses are formal in nature, the prosecution ought not succeed.
26. In the result, all accused are acquitted on benefit of doubts being extended to them. Their bail bounds are discharged.
39. If one has regard to the above, applicant, who was one of the police officials, his presence and visit to the locality and at place of complainant was found doubtful as to whether it was in connection with the official visit and in that conspectus a finding to the effect that no proper investigation has been carried out to find the same has been recorded. The acquittal though on benefit of doubt is a complete acquittal. In nutshell, what the Special Judge has found is no proof of ingredient of the offence of corruption of either demanding or accepting illegal gratification. Applicant, who had been acquitted, was re-instated back in service and at that time he was a Constable. The DCP, being the Appointing Authority, examined the above judgment of the Trial Court in context with Rule 12 of the Appointment Rules to find out whether any material existed which would make initiation of adepartmental enquiry on the charges. When all the conditions are satisfied as to the proviso of the rules above, the DCP by an order passed on 1.6.2004, observed as under:
The Hon’ble Court of Shri R.K. Gauba, Special Judge, Delhi vide judgment dated 14.5.2002 has acquitted all the above mentioned police personnel from the charge levelled against them by giving benefit of doubt on the grounds that the evidence of the complaint about the demand before the FIR or during the trap is wholly contradictory to the prosecution case. It does not appear safe to rest a finding of guilty on the sole word of PW-8 (Inspr. R.V.S. Tomar) in as much as there is no corroboration available from the statements of independent witnesses PW-2 Matwar Singh shadow witness and PW-3 Bhuwan Chand recovery witness. On obtaining areport from CBI authority, the Superintendent of Police/CBI/ACB vide his office letter No. DLI/AC/Cr/3/44/A/94/6062 dated 12.6.2002 and No. 2689 dated 24.3.2003 has intimated that the case has ended in acquittal and CBI does not intend to file an appeal against the judgment of the Hon’ble Court of Shri R.K. Gauba, Special Judge, Delhi dated 14.5.2002. In the meantime all the police personnel have been re-instated from suspension w.e.f. 26.2.2004 without prejudice to the departmental action pending against them and their suspension period will be decided later on vide order No. 3170-3200/HAP-II (SWD), dated 26.2.2004.
I have carefully gone through the judgment dated 14.5.2002 passed by the Hon’ble Court of Shri R.K. Gauba, Spl. Judge, Delhi and report in this regard received from CBI Authority, material available on record and in pursuance of provision contained in Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 as well as Circular issued by the Joint C.P. (Vigilance) Delhi vide No. 18639-18651/P.Cell (Vig.) P-Misc. dated 1.10.2002.1 have also heard all the above mentioned police personnel in O.R. I am of the view that no further departmental action is warranted in this case in the absence of any material on record.
40. If regard is made to the above, what is discerned is that no further departmental action has been warranted and the enquiry has been filed with treatment of suspension period as spent on duty because there was no material on record to indicate in any manner as to the involvement of the applicant in the aforesaid episode of alleged demand or acceptance of bribe money or even presence at the scene in the corruption case.
41. Having taken aforesaid decision, the decision of another DCP cancelling the candidature of the applicant for the post of Sub-Inspector Executive, only on the ground that he would not be proved to be a good officer to a higher post, which had already been dealt with by the Tribunal in the earlier O.A. (supra) holding the same without any material and not supported with reasons, has no legs to stand. In compliance of the above, the Commissioner of Police passed the following order:
The perusal of the judgment delivered by the Hon’ble Court of Shri R.K. Gauba, Special Judge, Delhi in case FIR No. RC-44 (A)/94 DLI under Section
120-B IPC and Section 7 of D.P. Act, 1988 dated 13.7.1994 CBI, Anti Corruption Branch, New Delhi reveals that all the police personnel including the applicant, have been acquitted from the charge levelled against them by giving them benefit of doubt. It is a matter of record that the applicant was very much present at the time of raid at the house of the complainant and was apprehended by CBI from the house of the complainant. He had no business to be present at the house of a known criminal and bootlegger. Beat patrolling does not require the staff to sit inside the houses of criminals. It shows his connivance with other accused and speaks about the moral turpitude of a prospective officer involved in a CBI case of this nature. An officer having such dubious character who has to work as Investigating Officer or as Division Officer and supervise the work of Assistant Sub-Inspectors, Head Constables and Constables his propensity to cause damage will be far more than as a Constable. Entrusting him with higher responsibilities will be fraught with grave risks, therefore he is not considered suitable for a higher rank in Delhi Police. The unethical and immoral conduct of the applicant is reprehensible and not expected an officer of Sub-Inspector level and thus not fit for being entrusted with higher responsibilities in disciplined force like Delhi Police.
In view of the above facts and circumstances of the case and the judgment of the Hon’ble Supreme Court of India dated 4.10.1996 in Civil Appeal No. 13231 of 1996 arising out of SLP (C) No. 5340 of 1996-DAD v. Sushil Kumar I do not find the applicant suitable for the post of SI (Exe.) in Deihi Police. Hence, I hereby decline him the offer of appointment to the post of SI (Exc.) in Delhi Police.
42. The reason came forth was the presence of the applicant, which made him unfit for higher rank in Delhi Police is based on a presumption. On his connivance with other accused and his doubtful and debious character with immoral turpitude as he was present at the house of the complainant, it has been presumed that if he is entrusted with higher responsibility, he would be a risk due to his unethical and immortal conduct which is not expected from an officer at the level of Sub-Inspector (Executive) in a disciplined force like the Delhi Police.
43. When discretion is vested with the authorities, it has to be exercised in a very judicious manner. Every administrative action has a sine quo non of fairness. Any action, which partakes character of an arbitrary and mala fide exercise of powers, is amenable to judicial review. In our judicial system, when a Special Judge in corruption case records finding acquitting the accused and then making an observation as to the doubt to the presence of an accused at the scene of occurrence and non-investigation before filing the charge-sheet, any observation made over and above the finding recorded by the Trial Court which is a very safe finding, legally sound based on adherence to the strict rules of procedure and evidence, this finding would in all events and situation would override and out weigh any finding recorded by the Competent Authority. The Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines , has clearly held that in the event disciplinary proceedings finding are recorded by the quasi-judicial authority, these have to give way to the judicial verdict.
44. In the above conspectus, the reasons recorded by the Competent Authority are found to be its personal reasons; on private information and on its ipsi dixit whereby it has been concluded that the applicant was present in the house of complainant at the time of raid, the aforesaid finding does not draw support from any material adduced or established by the Special Judge who even went on saying that the presence cannot be established and was not established. This is the only ground to deny the applicant his appointment to the post of Sub-Inspector (Executive) and to establish his unfitness. Unethical and immoral conduct is reprehensible and is an unbecoming for an appointment of a person in disciplined force like Delhi Police yet before accusation, there has to be a definite finding based on credible material. Mere suspicion and surmises would not be sufficient compliance and rather talks of arbitrariness in the action of the quasi-judicial authority. The Commissioner of Police has not at all applied his mind to the fact that once the applicant on acquittal as a Constable has not been proceeded against departmentally and when on examination of judgment of the Special Court no incriminating material has been found against him then assignment of more responsibility of higher rank would not transform this finding of no material into the suspicion of involvement of the applicant and towards his immoral conduct which would be prejudicial to his performance of duties on appointment as Sub-Inspector (Executive) in Delhi Police. If this reasoning is examined in a judicial review by applying the test of a common reasonable prudent man then if as a Constable the applicant has been found fit without any immoral conduct to be continued as a Constable then the same conduct forming impediment to his appointment to a higher rank merely because he has to supervise other officials and to undertake investigation cannot be a logical and rational conclusion as the Constable in the hierarchy of service even rises to the rank of Sub-Inspector where he has to undertake investigations and supervise the lower staff. If the stand of the respondents is taken as a gospel truth then would they dismiss the applicant or find him unfit when he reaches the rank of Sub-Inspector in Delhi Police. This clearly shows that as a quasi-judicial authority, the discretion to appoint the applicant has not been exercised in a judicious manner but on suspicious and surmises without any reasonableness.
45. In Chinnam Naidu ‘s case (supra), the Apex Court ruled that the Government holds special domain in the matter of appointment but a selectee has to be governed by same statutory provisions. Rule 6 of the Appointment Rules does not lay down any disqualification for non-appointment of Sub-Inspector Executive among the departmental quota for his involvement in which he has been acquitted subsequently. Rule 25 of the Rules ibid only speaks of qualification of antecedents certificate as good, which is present in the instant case where no other adverse material except the acquittal has been found against the applicant. In Government service though discretion is of the Appointing Authority even on selection of a person whether to appoint him or not, the Apex Court in State ofM.P. v. Ramashanker Raghuvanshi and Anr. 1983 (SCC) L & S 263 : 1983(1) SLJ 392 (SC), observed as under:
…Is Government service such a heaven that only angels should seek entry into it? We do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic right guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution. We think it offends the Fundamental Rights guaranteed by Article 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities considered likely to affect the integrity and efficiency of the individual’s service…
46. If one has regard to the above, the decision of Pawan Kumar v. State of Haryana to be seen , is relevant to be observed where it is reiterated that now it is high time for the machinery to take necessary steps to do away with the impediment of conviction in petty offences for appointment. With the change in society and employment in our country, it is high time for the Government to read the laws or rules which bar appointment even on acquittal or on a petty conviction.
47. However, the case of the applicant is on very high footing as he is acquitted of the offence and the discretion of the Appointing Authority having exercised in a non-judicious manner.
48. Decision in Sushil Kumar’s case (supra) has been rendered on account of suppression of material information when the petitioner therein was already acquitted. In the above background, the ratio observed was that though the petitioner was acquitted from the criminal offence, still the conduct or character is relevant and not the actual result but in that case the Appointing Authority has rightly focussed the above aspect and recorded finding of undesirable of the petitioner in Delhi Police. However, merely the case law has been mentioned in the impugned order would not partake the character of sacrosanct finding and its applicability of law in the present case when the finding recorded has neither focussed the true aspect of the matter and ratherde hors the finding of the Special Judge and is oblivious of exoneration of the applicant from the departmental charge by dropping the enquiry, the action taken is a misuse of power and an arbitrary exercise of the discretion, which cannot be countenanced in law.
49. In the result, as the applicant has been recommended for appointment as Sub-Inspector Executive by the Staff Selection Commission on selection and during the pendency of the O.A. one post of Sub-Inspector Executive had already been directed to be kept vacant, the Original Application is allowed and the impugned order is set aside. Respondents are directed to offer an appointment to the applicant to the post of Sub-Inspector Executive in Delhi Police and in that event he would be entitled to all the consequential benefits including seniority. No costs.