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2016 DIGILAW 459 (CAL)

Sourabh Dutta v. State of West Bengal

2016-05-20

NISHITA MHATRE, TAPASH MOOKHERJEE

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Nishita Mhatre, J. 1. The petition has been filed against the decision of the West Bengal Administrative Tribunal by which the petitioner’s case for employment with the Kolkata Police has been dismissed. 2. The brief facts in this case are that the petitioner applied for recruitment to the post of ‘Sergeant’ with the Kolkata Police. He was duly selected. Thereafter he was required to fill in the Police Verification Roll which he did on 18th February, 2010. As no appointment letter was issued to the petitioner, he inquired about the fate of his selection by a letter dated 14th August, 2010 addressed to the Commissioner of Police. By a communication dated 9th September, 2010 the petitioner was informed that he could not be considered for appointment to the post of ‘Sergeant’ because of the pendency of a criminal case against him being Mograhat Police Station Case No.108 of 2009 under Sections 147/148/149/458/324/325/354/506 of the Indian Penal Code. 3. Being aggrieved by this decision of the police authorities, the petitioner preferred O.A 1232 of 2010. 4. The Tribunal has dismissed the Original Application on the ground that the Department could not be directed to issue an appointment letter when a criminal case was pending against the petitioner. Aggrieved by this decision the petitioner has preferred this writ petition. 5. Mr. Ghosh, the learned counsel appearing for the petitioner submits that the case against the petitioner will certainly end with acquittal because the charges levelled against him are false. He further submits that the petitioner should not be prevented from joining the police force when he has been found suitable otherwise. He submits that in the affidavit-in-opposition the respondents have taken a new stand inasmuch as they have stated that the petitioner’s candidature was rejected because he had failed to disclose in the Police Verification Roll filled by him the fact that a criminal case was pending. The learned counsel submits that the disclosure which was expected to be made by the candidate was whether he had been convicted by a court of any offence or charge sheeted by the police in connection with any criminal proceedings. The petitioner had disclosed ‘not known’ as yet. According to Mr. The learned counsel submits that the disclosure which was expected to be made by the candidate was whether he had been convicted by a court of any offence or charge sheeted by the police in connection with any criminal proceedings. The petitioner had disclosed ‘not known’ as yet. According to Mr. Ghosh, this was because at the time he submitted the form the charge sheet had not been submitted against the petitioner and, therefore, there was no suppression of any fact on the part of the petitioner. Mr. Ghosh then relies on the judgment of the Division Bench of this court in Niranjan Sengupta vs. State of West Bengal, reported in 2010(4)CHN (CAL) 98 in support of the submission that merely because a criminal case is pending against a candidate it does not disqualify him from being appointed to the post of ‘sergeant’. 6. Mr. Mazumder learned counsel appearing for the State on the other hand submits that it is true that the reason mentioned in the affidavit-in-opposition for rejecting the case of the petitioner is not reflected in the communication dated 9th September, 2010. He, however, submits that even going by that communication the petitioner is not entitled to any relief. He has relied upon a decision in the case of Animesh Roy vs. The State of West Bengal & Ors., in W.P.S.T 73 of 2013 decided on 16th May, 2013 and Partha Sarathi Sinha vs. The State of West Bengal & Ors., in W.P.S.T 106 of 2010 decided on 6th August, 2015 to which one of us (Mhatre, J.) was a party. He has also drawn our attention to the judgments of the Supreme Court in the case of Delhi Administration through its Chief Secretary & Ors. Vs. Sushil Kumar, reported in (1996)11 SCC 605 and State of Madhya Pradesh & Ors. Vs. Parvez Khan, reported in (2015)2 SCC 591 . According to Mr. Mazumder, these judgments leave no room for doubt as to whether a person against whom a criminal case is pending should be appointed in the police force. 7. It is well settled that the order passed refusing to grant the appointment cannot be supplemented by or supplanted by reasons in an affidavit. The order must stand or fall on its own steam and an affidavit filed by an officer much later cannot add to the reasons which have been mentioned in the order. 7. It is well settled that the order passed refusing to grant the appointment cannot be supplemented by or supplanted by reasons in an affidavit. The order must stand or fall on its own steam and an affidavit filed by an officer much later cannot add to the reasons which have been mentioned in the order. Therefore, the reason for rejecting the petitioner’s candidature mentioned in the affidavit-in-opposition namely, that he had suppressed information, cannot be accepted by us. We will only consider whether the reason mentioned in the communication dated 9th September, 2010 that his candidature was rejected because there was a criminal case pending against the petitioner is valid and sufficient for denying the petitioner employment with the police force. 8. It cannot be disputed that the police personnel are required to be of the highest moral fibre. An allegation against a candidate aspiring for a job with the police force can act to his disadvantage. Having a criminal case pending against the candidate would rightly deter the State from granting employment to such a person. It may be true that the charges are trumped up or they would end in an acquittal. However, that is not something which can be forseen by the State while rejecting the employment. Some of the charges against the petitioner here are serious and do involve moral turpitude. Therefore, it cannot be said that the respondents have acted unreasonably in denying employment to the petitioner. 9. The judgment in the case of Niranjan Sengupta (supra), in our opinion, does not reflect the correct position in law. The presumption that a person is innocent till he is proved guilty and convicted is no doubt a well settled statement of law. However, whether a person who has a criminal case pending against him is suitable for employment is the issue we are concerned with. Have the respondents acted so unreasonably for us to interfere with their decision to deny the petitioner employment? In our opinion, the answer to this question is in the negative. 10. In Sushil Kumar’s case (Supra), the Supreme Court dealt with a similar case where the candidate was found physically fit and was provisionally selected subject to the verification of his character and antecedents. On verification it was found that his antecedents were such that it was not desirable to appoint him as a Constable. 10. In Sushil Kumar’s case (Supra), the Supreme Court dealt with a similar case where the candidate was found physically fit and was provisionally selected subject to the verification of his character and antecedents. On verification it was found that his antecedents were such that it was not desirable to appoint him as a Constable. The Tribunal had noted that as the candidate in the case had been discharged and/or acquitted of the offences punishable under Section 304 IPC, under Section 324 read with Section 34 IPC he was entitled to be appointed. The Supreme Court has observed that what is relevant is the conduct and character of the candidate to be appointed in service. The result of the criminal case is not material. Therefore, the Supreme Court held that the appointing authority which focused on this aspect had not committed any error by finding such a candidate unsuitable for employment in the police force. 11. In Parvez Khan’s case (Supra) the Supreme Court dealt with a case where a person sought appointment on compassionate grounds in the police force, irrespective of his criminal antecedents. The candidate had been acquitted for want of evidence, the Supreme Court considered the case of Commissioner of Police vs. Mehar Singh, reported in (2013)7 SCC 685 where the court had observed that an acquittal based on benefit of doubt would not stand at par with a clean acquittal. Furthermore, the court while reiterating the earlier judgments held as follows: “From the above observations of this Court, it is clear that a candidate to be recruited to the police service must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was completely exonerated. Persons who are likely to erode the credibility of the police ought not to enter the police force. No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by the learned counsel for the respondent, ion the present case, the Superintendent of Police has gone into the matter. The Superintendent of Police is the appointing authority. No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by the learned counsel for the respondent, ion the present case, the Superintendent of Police has gone into the matter. The Superintendent of Police is the appointing authority. There is no allegation of mala fides against the person taking the said decision nor the decision is shown to be perverse or irrational. There is no material to show that the appellant was falsely implicated. Basis of impugned judgment is acquittal for want of evidence or discharge based on compounding.” 12. In the case of Animesh Roy (Supra) the same argument as is put forth by Mr. Ghosh now was made on behalf of the candidate before the court. The court observed that by granting employment to such a candidate would mean that it would have to disclose misplaced sympathy as the petitioner in that case had been charged under Sections 147/148/149/323/325 and 34 of the IPC. 13. In the case of Partha Sarathi Sinha again all these issues were considered and it was held that a person having criminal antecedents would not be fit to be appointed as the credibility of the police force could be affected. 14. In our opinion, the Tribunal has not erred in dismissing the original application. It cannot be said that the State has acted either harshly or unreasonably while rejecting the case of the petitioner to be appointed. As mentioned earlier a candidate who aspires for the recruitment in the police force must have a scrupulously clean record of antecedents. A black mark against such a candidate would hamper his chances for employment in the police force. It may be possible for such a candidate to get employment in some other place but when we are considering whether he is suitable to be appointed in the police force, we do not find that the State has acted arbitrarily, capriciously or whimsically by rejecting his candidature. 15. The petition is dismissed.