Union Of India vs Ajay Kumar (2024:Rj-Jd:40773-Db)
2024 Latest Caselaw 8651 Raj

Rajasthan High Court - Jodhpur

Union Of India vs Ajay Kumar (2024:Rj-Jd:40773-Db) on 1 October, 2024

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2024:RJ-JD:40773-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Civil Writ Petition No. 12554/2024

1.       Union Of India, Through General Manager, North Western
         Railway, Headquarters Office, Jaipur.
2.       The Divisional Railway Manager, North Western Railway,
         D.R.M. Office, Jodhpur.
3.       The Chief Executive Officer, Divisional Railway Manager,
         North Western Railway, Jodhpur.
                                                                         ----Petitioners
                                         Versus
Ajay Kumar S/o Late Shri Rajendra Kumar, Aged About 28 Years,
Resident     Of    Plot     No.      R-65,      Subhash         Marg,    Santoshpura,
Masuriya, Jodhpur (Father Of The Applicant Shri Ajay Kumar was
working as Ambulance Driver at Railway Hospital).
                                                                        ----Respondent


For Petitioner(s)              :     Mr. Abhishek Sharma
For Respondent(s)              :     Mr. Anirudh Purohit



      HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

01/10/2024 Per, Kuldeep Mathur,J.

The instant writ petition is directed against the order dated

23.01.2024 passed by the learned Central Administrative Tribunal,

Jodhpur Bench (hereinafter referred to as 'the learned Tribunal') in

OA No.275/2018: "Ajay Kumar v. Union of India & Ors."., whereby,

the petitioner- Railways has been directed to consider the case of

the respondent for appointment on compassionate grounds on a

suitable post being dependent family member of a deceased

employee namely Rajendra Kumar.

[2024:RJ-JD:40773-DB] (2 of 8) [CW-12554/2024]

2. Facts of the case in brief are that the father of the

respondent (hereinafter, referred to as, 'deceased employee')

while working on the post of Ambulance Driver with petitioner-

Railways passed away on 09.08.2014. At the time of the demise,

the deceased employee was facing criminal trial for the offences

punishable under sections 420, 467, 468, 471 and 120-B of the

IPC in connection with FIR dated 08.08.2012. It is pertinent to

mention here that in the aforesaid criminal case, the respondent

and his mother were also made accused for the same offence. The

competent criminal court after conducting criminal trial against the

respondent and his mother vide judgment and order dated

17.02.2018 acquitted them from the charges by extending them

benefit of doubt. The application dated 19.09.2014 filed by the

mother of the respondent to the competent authority seeking

appointment of his son i.e., the respondent on compassionate

grounds came to be rejected vide communication dated

23.08.2018 on the ground that the acquittal of the respondent in

criminal case involving moral turpitude was not an honorable

acquittal.

3. Mr. Abhishek Sharma, learned counsel appearing on behalf of

the petitioner- Railways vehemently and fervently submitted that

the learned Tribunal while directing the competent authority of the

railway department to consider the case of the respondent for

appointment on compassionate ground failed to appreciate that

the FIR dated 08.08.2012 was lodged by the complainant-

Rajendera Kumar against the accused persons stating inter alia

that the accused persons allured job aspirants seeking

employment in the railways, to secure appointment in their favour

[2024:RJ-JD:40773-DB] (3 of 8) [CW-12554/2024]

and in order to deceive them, they not only got an application

form filled up but also conducted a dummy written and medical

examination. So much so, a forged appointment order for the post

of Ticket Checker was also issued in favour of the complainant. As

per the FIR, the written and medical examination was conducted

in the presence of respondent. Learned counsel contended that

looking to the seriousness of the allegations against the deceased

employee and the respondent, mere acquittal in the criminal case

would not automatically make the respondent entitled to

compassionate appointment. The competent authority of the

petitioner- Railways after considering all the relevant factors

relating to the antecedents of the respondent in its discretion has

rightly turned down the request made by the respondent to

provide him compassionate appointment in the railways. It was

urged that a perusal of the order dated 17.02.2018 passed by the

competent criminal court clearly shows that the respondent had

been acquitted on the basis of being extended the benefit of

doubt.

To buttress these submissions, reliance has been placed on

the following judgments:-

1. "Union of India & Ors. v. Methu Meda": (2022)1 SCC 1

2. "The State of Madhya Pradesh & Ors. v. Bhupendra

Yadav": 2023 AIR (SC) 4553.

4. Per contra, Mr. Anirudh Purohit, learned counsel for the

respondent, submitted that the learned Tribunal has rightly

allowed the Original Application No.275/2018 preferred by the

respondent. It was urged that the respondent was acquitted of all

the charges levelled against him by the competent criminal court.

[2024:RJ-JD:40773-DB] (4 of 8) [CW-12554/2024]

As a matter of fact, the order of the learned Tribunal dated

23.01.2024 would indicate that the learned Tribunal after going

through the entire order passed by the competent criminal court

opined that no incriminating evidence was produced against the

respondent before the competent criminal court and, therefore, in

the absence of any incriminating evidence, his request for

compassionate appointment should not have been turned down.

Learned counsel submitted that a well reasoned order passed by

the learned Tribunal does not call for any interference by this

Court. Learned counsel has placed reliance on the following

judgments:-

1. "Joginder Singh v. Union Territory of Chandigarh":

(2015)2 SCC 377.

2. "Ramlal v. State of Rajasthan & Ors.": (2024)1 SCC

175.

5. We have heard the arguments advanced by the learned

counsel for the parties at Bar and perused the record and the

relevant judgments cited before us.

6. The validity and propriety of the order dated 23.08.2018,

passed by the petitioner was assailed by the respondent before

the learned Tribunal. The order dated 23.08.2018 is reproduced

herein below for the sake of ready of reference:-

"Jherh eksguh nsoh ifRu Lo- Jh jktsUnz dqekj]¼jksxhokgu pkyd½ edku la-& ds &65] lqHkk'k ekxZ larks'kiqjk] elqfj;k] tks/kiqjA

fo'k;%& vuqdEik ds vk/kkj ij fu;qfDr &izdj.k Jh vt; dqekj iq= Jh jktsUnz dqekj dh vuqdEik fu;qfDr ds Øe esaA lanHkZ%& iz/kku dk;kZy; dk i=743E/R&T/CGA/JU/A/2015/5

[2024:RJ-JD:40773-DB] (5 of 8) [CW-12554/2024]

Dated-14.08.2018 vkids }kjk izLrqr vkosnu vuqlkj Jh vt; dqekj iq= Jh jktsUnz dqekj dks ekuuh; U;k;ky; }kjk lk{; ds vHkko esa cjh fd, tkus ij vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnu fn;k FkkA rnuqlkj vkidks lwfpr fd;k tkrk gS fd iz/kku dk;kZy; }kjk vkids vkosnu ij l{ke vf/kdkjh }kjk fof/kd jk; ysu ij fuEu vkns"k iznku fd, gSß As per legal opinion in the instant case, the acquittal given by the Hon'ble court cannot be said as honorable acquittal; since it is a case involving 'Moral Turpitude' as such compassionate appointment in the instant case in not justified."

7. The observations made by the learned Tribunal in para

nos.15 to 17 while allowing the Original Application filed by the

respondent read as under:-

"15. After perusal of the judgments relied upon by the learned counsel for the applicant, it appears that denial of appointment should not be arbitrary. In the present matter, we are not inclined to approve the action of the respondents in not giving compassionate appointment to the applicant on the ground that his acquittal was not honourable acquittal We note that the respondent authorities did not go through the incriminating evidence produced against the applicant during the criminal trial. In our view, the respondents should have gone through the adverse evidence available on record before rejecting out rightly the claim of the applicant on compassionate grounds. It is true that acquittal itself does not entitle any person for appointment on compassionate ground. In such cases, the respondents authority should consider the facts and circumstances wherein the applicant was made accused and thereafter acquitted from the offence after trial. In the absence of any incriminating evidence against the applicant, his claim should not be thrown out.

16. The learned counsel for the respondents failed to indicate any provision which make the applicant ineligible for consideration with a view to give him appointment on compassionate grounds without indicating the incriminating evidence found against the applicant during the trial.

17. In view of above the impugned communication dated 23.08.2018 (Annex.A/1) is not sustainable in the eyes of law. We, therefore, quash and set aside the

[2024:RJ-JD:40773-DB] (6 of 8) [CW-12554/2024]

impugned communication dated 23.08.2018 and, direct the respondents to consider the case of applicant for appointment on compassionate grounds while keeping the observations made by us in this order. This exercise should be completed within a period of six months from the date of receipt of a copy of this order."

8. There can be no quarrel on the issue that if a person is

acquitted by the competent criminal court from the charge levelled

against him/her involving moral turpitude by extending the benefit

of doubt or because the witnesses turned hostile, it would not

automatically entitle him/her for the employment in a government

job. The employer is having discretion to consider the candidature

of a candidate in terms of the circulars issued by the department

in this regard. In other words, if the employer after judicious

exercise of its discretion and after taking into consideration the

judgment passed by the competent criminal court and the other

relevant factors reaches to a conclusion that a candidate is

acquitted, apparently on the basis of being extended benefit of

doubt, can declare him unsuitable for appointment.

9. In the present case, a bare look at the order dated

23.01.2024 passed by the learned Tribunal indicates that after

going through the order of competent criminal Court, learned

Tribunal reached to a conclusion that no direct or circumstantial

evidence or incriminating material was produced before the

competent criminal court to establish that the respondent had

committed the alleged offences. Hon'ble Supreme Court in the

case of "Ramlal v. State of Rajasthan & Ors.": (2024)1 SCC 175

was pleased to observed that the expressions like "benefit of

doubt" and "honorably acquitted", used in judgments are not be

understood as magic incantations. The conclusion that the

[2024:RJ-JD:40773-DB] (7 of 8) [CW-12554/2024]

acquittal in the criminal proceedings was after consideration of the

prosecution witnesses and that the prosecution miserably failed to

prove the charge can only be arrived at after a reading of the

judgment in its entirety.

10. In the present case, this Court also finds that there is no

material available on record to show that the petitioner- Railways

has a right to deny employment to a candidate on mere filing of

FIR against him. The petitioner- Railways was required to examine

suitability of the respondent for compassionate appointment in

terms of the rules governing compassionate appointment and

various circulars issued by it in that regard.

11. This Court finds that the petitioner-Railways has denied

appointment to the respondent on the basis of legal opinion

obtained by the department which itself cannot be sufficient

ground to deny appointment to the respondent. The result of

criminal trial with reference to evidence, witnesses and

circumstances produced before the competent authority of the

petitioner should have been taken into consideration by the

Railways while exercising its discretion for assessing the

candidature of a candidate to be appointed in the department on

compassionate grounds. The employer is required to consider the

judgment passed by the competent criminal court in a rational

manner and independently applied its own mind to the judgment

in order to come to the conclusion as to whether the acquittal of

the candidate in the criminal case was honourable or not.

However, the competent authority of the Railways considered the

judgment passed by criminal Court in a perfunctory manner and

the conclusion arrived at by the competent authority of the

[2024:RJ-JD:40773-DB] (8 of 8) [CW-12554/2024]

petitioner is not cogent and lacks proper application of mind. The

decision of the petitioner-Railways to solely rely on the legal

opinion of the department for considering the candidature of the

respondent cannot be countenanced in law.

12. In wake of discussions made hereinabove, this Court finds

that the judgment dated 23.01.2024 impugned in the present writ

petition does not suffer from any illegality or perversity warranting

interference by this Court.

13. As a result thereof, the judgment 23.01.2024 passed by the

learned Central Administrative Tribunal, Jodhpur Bench

(hereinafter referred to as 'the learned Tribunal') in OA

No.275/2018: "Ajay Kumar v. Union of India & Ors." is upheld. 15.

The instant writ petition is dismissed. Parties are left to bear

their own costs.

(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J

72-himanshu/-

Powered by TCPDF (www.tcpdf.org)