Allahabad High Court Lays Down Procedure & Standard Of Evidence For Enquiry Into Criminal Antecedents Of A Candidate During Selection Process

A Single Bench of Justice Ajay Bhanot has elucidated the type of materials that may be considered by such authority, the standard of proof, and other aggravating/ mitigating factors for the purpose.

The Bench has also made it clear that such inquiry is different from a trial/civil proceeding before a Court of law and hence, competent authority is not always bound by the findings of the court, nor is it invariably constrained by the opinion of the investigation officer.

The order comes in a writ petition filed by one Sanny Kumar, aggrieved by an order passed by the Superintendent of Police, Jalaun, cancelling his selection as Constable in the UP Police, in the backdrop of several criminal cases pending against him.

Arguments

The Petitioner submitted that he had truthfully declared details of all the criminal cases pending against him in the affidavit of verification.

He argued that he has not been chargesheeted in two cases, one of which he said is an offshoot of a matrimonial dispute of his brother. He further submitted that he was acquitted in one criminal case and in the absence of conviction by a court, appointment cannot be refused.

The Standing Counsel for the State of UP on the other hand submitted that the Petitioner was named in multiple criminal cases. He was not acquitted honourably by the trial court in the first case. He was named in the FIR lodged in the other cases including one for an act of moral turpitude.

It was submitted that the fact that the Investigation Officer did not chargesheet the Petitioner does not exonerate him, particularly, when trials are on foot.

Findings

At the outset, the Bench observed that the Police is a "disciplined force" which is charged with the duty to uphold the law and order in the State. Thus, personnel in uniform belonging to disciplined forces, are expected to bear impeccable character and possess unimpeachable integrity.

In this backdrop, it observed that it is essential to examine the suitability of candidates for appointment. An important factor for determination of such suitability is the role of "Criminal Antecedents".

Nature of the proceeding/Scope of Enquiry into suitability for appointment

"Determination of suitability of a candidate for appointment is an administrative decision which is part of the recruitment process. The process of evaluating suitability for appointment is not an adjudication of guilt or innocence as in a criminal case. Nor is it a quasi judicial process or a civil law proceeding."

Material for consideration by the authority

The Bench observed that the material available before an authority to determine the suitability of a candidate may be either reliable and conclusive, or credible but probative. However, both kinds of material are liable to be considered.

The Bench categorically held that material of probative value but credible worth is not to be discarded, and there is no impediment in its consideration.

"One such source is the record of criminal proceedings against the candidate. The full inventory of material before the authority includes the F.I.R., the evidence collected during the criminal investigation, chargesheet submitted in court, evidence emerging during the trial, the judgment rendered by a court of law. On the foot of such material, the competent authority can make its decision on the fitness of the candidate for appointment," it observed in the facts of the case.

Method of Evaluation of Material/ applicability of Standards of evidence

The High Court has held that a competent authority is not always bound by the findings of the court, nor is it invariably constrained by the opinion of the investigation officer. The reason for the same is as follows:

Criminal prosecution of an individual before the court of law is to bring an offender of criminal laws to justice, and to punish the guilty. The object of the competent authority in a recruitment process is only to determine the suitability of a candidate to hold a public post.

The order states,

"The purposes of a criminal investigation, criminal trial, civil proceeding, departmental enquiry, are distinct from the rationale behind the exercise of verification of criminal antecedents of a candidate for appointment in a recruitment process. The nature of rights engaged in the respective proceedings are also different. The lattermost proceeding is an executive function, while former proceedings are judicial and quasi judicial in nature respectively."

The Bench has also held that strict rules of evidence, i.e. proof of guilt of the accused beyond reasonable doubt, apply to criminal prosecution. The competent authority on the contrary is not constrained by any such standard of evidence.

It added that the rights of a government employee facing departmental proceedings are also significantly different from a candidate who is participating in a selection process. Thus, the evidentiary standard of preponderance of probability is not applicable to the proceedings which consider the suitability of a candidate before making the appointment.

"Acquittal by the criminal court happens when evidence is not sufficient to sustain a conviction. Failure to prove an offence before a court of law in a 12 criminal trial may not reduce the probative value of said evidence before the competent authority in a recruitment process. Such evidence when placed before the competent authority may constitute credible material of probative value to render a candidate unsuitable for appointment. The scope of discretion of the competent authority will also depend on the nature of findings of the court on the same evidence," the order stated.

This also implies that an acquittal in a criminal trial simplicitor will not lead to an automatic discharge in departmental proceedings [RP Kapur v. Union of India].

Procedure for enquiry

The Bench cautiously added that the conclusion of the competent authority is an estimation at best. Thus, it is the duty of an employer to evaluate the suitability of a candidate for appointment, paired with the right of the candidate for a fair consideration of his credentials.

Towards this end, the employer may allow a candidate to present material in his defence.

"The candidate can tender his defence to refute the aforesaid material and point out mitigating circumstances in his favour in the proceeding. When need arises fair and an impartial opportunity of hearing may be given to such candidate," the Bench observed.

Line of Enquiry- Aggravating Factors

While the standards of proof that are applicable in judicial proceedings are not applicable in the suitability test, the Bench observed that the competent authority should see that the material in the record strongly supports the inference of criminal traits, or a tendency of involvement in criminal offences, or to directly engage in criminal acts or vice and violence in the conduct, while rejecting a candidature.

It observed,

"Regard has to be paid by the competent authority to the gravity and heinous nature of offences or offences involving moral turpitude. Such cases may dissuade the competent from approving the candidate for appointment.

Multiplicity of criminal prosecutions is also a factor while considering the suitability of a candidate. Repetitive criminal acts may reinforce the inference of criminal traits or vice and violence in a candidate."

Line of Enquiry – Mitigating Factors

As stated above, the line of enquiry shall extend to the consideration of mitigating factors in each case. The Bench observed,

"Indiscretions of youth, and fallibility of human nature have to be accorded full weight. Fallibility of human nature is distinct from criminal traits in character. Depraved conduct is not youthful indiscretion. Trivial offences may often occur by human error and not perpetrated by a criminal mindset. Trivial offences may not invite invalidation of candidate. The competent authority has to determine where the threshold lies and draw the line in light of facts of each case."

The Bench also cautioned the competent authority to not neglect the "realities of social life" where filing of malicious cases and judicial delay is very much alive. It observed,

"The practice of falsely framing young members of a family in trivial offences especially in villages is not uncommon. Prosecution in these offences is easily initiated and cases remain pending indefinitely…The employer has to be alert to these realities and factor them in the decision in the facts of a case."

On the merits of the instant case, the Bench observed that the impugned order need not be interfered with for the following reasons:

• There is no procedural impropriety committed by the authority while passing the impugned order.
• The procedure adopted by the competent authority while passing the impugned order is compliant with principles of natural justice.
• The petitioner was not acquitted honourably by the trial court in the first case.
• the case was not an isolated one. The petitioner was an accused in the FIR in a grave offence involving moral turpitude and the trial is underway.
• Allegations of sexual offences against children are most serious and cannot be lightly dismissed by any employer. These facts are liable to be factored in the decision and were legitimately considered in the impugned order.

Case Title: Sanny Kumar v. State of UP & Ors.

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