Madras High Court
M. Sarathkumar vs The Member Secretary on 23 September, 2014
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23-09-2014
Coram
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
W.P. No. 17567 of 2013
and
M.P. No. 2 of 2013
M.P. No. 1 of 2014
M. Sarathkumar .. Petitioner
Versus
1. The Member Secretary
Tamil Nadu Uniformed Service Recruitment
Board
P.T. Lee Chengalvaraya Naicker Maaligai
No.807, Anna Salai
Chennai 600 002
2. The Superintendent of Police
Villupuram District
Villupuram
3. The Inspector of Police
Kedar Police Station
Kedar, Villupuram Taluk .. Respondents
Petition filed under Article 226 of The Constitution of India praying for issuing a Writ of Certiorarified Mandamus calling for the records of the second respondent in Na.Ka.A2/13000/2012 dated 22.12.2012 and quash the same and direct the second respondent to appoint the petitioner to the post of Police Constable Grade- II.
For Petitioner : Mr. N. Suresh
For Respondents : Mr. K.V. Dhanapalan
Additional Government Pleader
ORDER
The petitioner is an aspirant for selection and appointment to the post of Police Constable, Grade-II with the first respondent Board. The petitioner has come out successfully in the written examination conducted by the respondents and he was also provisionally selected for medical examination for being recruitted in the Armed Reserve Police in Tamil Nadu. On 21.08.2012, the petitioner attended the certificate verification, physical measurement test etc., and all the testimonials produced by him have been verified. While the petitioner was anticipating to get selected to the post of Police Constable Grade-II, the second respondent, by the impugned order dated 22.12.2012, rejected his candidature on the ground that he had suppressed his involvement in a criminal case at the time of applying for the post.
2. The learned counsel appearing for the petitioner would contend that the rejection of the petitioner's candidature is bad and it is not legally sustainable. According to the counsel for the petitioner, the petitioner had inadvertently omitted to mention about the petty case in which he involved and paid a fine of Rs.200/- before the learned Judicial Magistrate No.II, Villupuram and the respondents ought not to have relied on the same to reject his candidature. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in the case of (Commissioner of Police and others vs. Sandeep Kumar) reported in (2011) 4 MLJ 1006 wherein it was held that the minor indiscretions committed by the youth should be condoned instead of branding them as criminals for the rest of their life by depriving them employment opportunity.
3. According to the learned counsel for the petitioner, the case in which the petitioner involved himself is one under Gambling Act. The case in Crime No. 277 of 2011 was filed under Section 12 of the Tamil Nadu Gambling Act and it ended in payment of fine by the learned Judicial Magistrate No.II, Villupuram in S.T.C. No. 2669 of 2011. Therefore, such a minor offence committed by the petitioner need not be put against him to deny him employment opportunity. The petitioner did not deliberately suppress the information sought for by the respondent and the omission to indicate the criminal case is only an inadvertence. Merely because the petitioner suppressed the criminal case, that by itself should not be taken by the respondents to deny him employment opportunity.
4. The learned counsel for the petitioner also relied on the decision of the division bench of this Court in the case of (P. Virabhagu vs. The Union of India, rep. by the Secretary to Govrenment, Ministry of Health and Family Welfare Services, Nirman Bhavan, New Delhi and others) reported in 2005 1 CTC 429 wherein the Division Bench of this Court following the decision of the Honourable Supreme Court in Pawan Kumar vs. State of Haryana and another 1996 4 scc 17 held that since the offence committed by the petitioner is a petty one, it cannot stand in the way of getting a job, which would decide the fate of the individual, while the petitioner is otherwise eligible to the said post and got selected.
5. The respondents have filed M.P No. 1 of 2014 in WP No. 17567 of 2013 praying to vacate the interim order granted by this Court on 01.07.2013. Relying on the affidavit filed in support of the vacate stay petition, the learned Additional Government Pleader appearing for the respondents would contend that when the petitioner, knowing fully well about his involvement in the criminal case, had suppressed it when sought to be disclosed specifically, he cannot expect the respondents to select him for the post. In this context, the learned Additional Government Pleader would rely upon the Full Bench decision of this Court in the case of (Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and 2 others) reported in 2008 (2) CTC 97 wherein it was held that employer can prescribe any qualification for appointment and it includes prescription of disqualifications also. In Para Nos. 13 and 14, it was held as follows:-
"13. Persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in Criminal cases merely because they are acquitted later, especially, in the matter of selection to the Police Service of the State. The classification made between them, is not only reasonable but also has a nexus with the object sought to be achieved.
14. As a matter of fact, this Court as well as the Supreme Court, on a number of occasions, have upheld the decisions of the Government not to issue appointment orders to persons, who were involved in Criminal cases, despite having been acquitted subsequently....."
6. The learned Additional Government Pleader would further contend that as per G.O. Ms. No.101, Home (Police-9) Department dated 30.01.2013 and Rule 13 (b) of the Tamil Nadu Police Subordinate Service Rules, a candidate aspiring for recruitment to the post of Police Constable should not involve himself in any criminal case before police verification. As per explanation (1) to Rule 13 (b) (iv), a person who has been acquitted or discharged on benefit of doubt shall be treated as a person involved in the criminal case. Rule 13 (b) of the Tamil Nadu Police Subordinate Service Rules empowers the respondents to take note of such involvement of the petitioner and to deny him employment. When the petitioner suppressed the material particulars in the application form, it is a bar for his recruitment. In any event, as the petitioner involved himself in a criminal case, paid fine amount but suppressed such involvement in the application submitted by him for selection to the post of Police Constable, Grade-II, the learned Additional Government Pleader prayed for dismissal of the writ petition.
7. I heard the counsel for both sides and perused the materials placed on record. No doubt, the petitioner has been selected for the post of Grade II Police Constable. After his preliminary selection, on verification and or enquiry, it came to light that the petitioner suppressed his involvement in a criminal case. In the application form submitted by the petitioner, in the column specifically meant for disclosure of previous involvement in criminal cases, if any, the petitioner has simply stated as No. The petitioner was subjected to written examination, certificate verification etc., On coming to know that the petitioner involved himself in a case in Crime No. 277 of 2011 under Section 12 of the Tamil Nadu Gambling Act and it ended in payment of fine by the learned Judicial Magistrate No.II, Villupuram in S.T.C. No. 2669 of 2011, but suppressed the same, the second respondent rejected his candidature
8. The argument of the learned counsel for the petitioner is that the petitioner has committed a petty or minor offence and it cannot be put against him for selection to the post by relying on the decision of the Honourable Supreme Court in the case of (Commissioner of Police vs. Sandeep Kumar) reported in 2011 (6) MLJ 1006 (SC) mentioned supra.
9. In the decision of the Division Bench of this Court reported in (P. Virabhagu vs. The Union of India, rep. by the Secretary to Govrenment, Ministry of Health and Family Welfare Services, Nirman Bhavan, New Delhi and others) reported in 2005 1 CTC 429 this Court held that conviction on petty offence should not stand in the way of getting job. In this decision, the Division Bench of this Court relied on the earlier decision of the Honourable Supreme Court reported in Pavan Kumar vs. State of Haryana and another 1996 (4) SCC 17.
10. The learned Additional Government Pleader would contend Rule 14 (b) of the Tamil Nadu Special Police Subordinate Service Rules provides that if a person acquitted on benefit of doubt or discharged in a criminal case can still be considered as disqualified for selection to the police service of the State and it cannot be termed as illegal or unjustified. The failure of a person to disclose his involvement in criminal case, if any or the pendency of case against him would entitle the appointing authority to reject his candidature on the ground of concealment of material fact, irrespect of the ultimate outcome of the criminal case. This was also the view taken by the Full Bench of this Court in the case of J. Alex Ponseelan vs. The Director General of Police, Tamil Nadu, Chennai by which the Full Bench confirmed the view taken in the earlier decision of the Full Bench of this Court in Manikandan's case.
11. It is evident that as per Explanation (1) to Rule 14 (b) of the said Rules, if a person is acquitted on benefit of doubt, he shall be treated as person involved in a criminal case. As per explanation (2), if the Criminal case ended in honourable acquittal, it shall be treated as not involved in a criminal case and a candidate can claim right for appointment only by participating in the next recruitment. In this case, the petitioner was fully aware of his involvement in the criminal case and paid fine before the learned Judicial Magistrate No.II, Villupuram in S.T.C. No. 2669 of 2011. Such fine amount was paid by the petitioner on 02.10.2011. While so, during November 2012, the petitioner participated in the selection process, but he had chosen not to disclose such involvement in the criminal case. While so, Rule 14 (b) is a bar for the petitioner to get employed in the Uniformed Services for having suppressed his involvement in the criminal case.
12. In the decision rendered by this Court in WP No. 5053 and 6484 of 2014 dated 21.03.2014 (CDJ 2014 MHC 1092) in the case of S. Kirubakar and another vs. Director General of Police and others) this Court relied on the various decisions of the Honourable Supreme Court in para No.38 which can be usefully extracted hereunder:-
38. Subsequently, the above cases were all cited before yet another Division Bench of the Supreme Court on the very same issue in Jainendra Singh vs. State of U.P. and others - 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC): 2012 (7) MLJ 68 SC. Since the said Division Bench noticed conflicting views taken on the issue of suppression of material facts among various judgements, the Division Bench thought it fit to refer the issue to a larger bench. In para 31 of the judgement, the Division Bench of the Hon'ble Supreme Court has narrated the various cardinal principles on the issues as follows:-
(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.
39. Very recently, yet another Division Bench of the Hon'ble Supreme Court in Commissioner of Police v. Mehar Singh, (2013) 7 SCC 685 had again considered the question of antecedents/ character in terms of Delhi Police Rules. In that case, the respondent Mehar Singh had applied for the post of constable (male). Before that he was an accused in a criminal case registered for offences u/s.323, 341, 427 and 147 of IPC . On accepting the compounding petition in terms of Section 320 of Cr.P.C., the criminal court acquitted him from the charges under Section 323, 341 an 427 of IPC and acquitted him from the charge u/s.147 of IPC for want of evidence. Sri.Mehar Singh had disclosed in his application about the above criminal case that he was acquitted. He was provisionally selected subject to verification of character and antecedents. The Screening Committee in the circumstances did not recommend his case for appointment to the post of constable. Accordingly, his candidature was cancelled. This issue was examined by the Hon'ble Supreme Court. Before this Bench, the reference made in Jainendra Singh vs. State of U.P. And others - 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC) : 2012 (8) SCC 748 was cited. Irrespective of the said reference, in para 17 the Hon'ble Supreme Court held as follows:-
17. Before we deal with the rival submissions, it is necessary to refer to the judgment of this Court in Jainendra Singh v. State of Uttar Pradesh, (2012) 8 SCC 748. In that case the appellant had applied for the post of constable and was selected for the same. He had suppressed the fact that a criminal case was registered against him. Subsequently the said fact came to light and his appointment was terminated. Thereafter, he was acquitted in the criminal case. The question which fell for consideration of this Court was whether, after a person is appointed to a post in a disciplined force, it comes to light that he had suppressed the fact that he was involved in a criminal case his appointment can be terminated on the ground of suppression of material facts. Noticing conflicting decisions of this Court on this point and also the fact that different yardsticks are being applied in the matter of grant of relief, this Court formulated issues and referred them to a larger bench. Since all the formulated issues are premised on suppression of facts and since in this case there is no suppression of facts it is not necessary for us to defer the judgment of this case till the reference is answered by a larger Bench. Further holding that there was no suppression of facts by Mehar Singh and since the above reference in Jainendra Singh's case cited supra is only in respect of suppression of facts, the Hon'ble Supreme Court went on to examine the question whether the involvement of Mehar Singh in the above criminal case and his acquittal would amount to bad character and bad antecedent.
40. After having considered the relevant aspects, the Supreme Court held in para 23 to 26 as follows:-
23. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such persons involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force.
24. We find no substance in the contention that by cancelling the respondents candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental inquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical namely whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India, AIR 1964 SC 787 this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
25. The expression honourable acquittal was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in rbi v. Bhopal Singh Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619 where in somewhat similar fact situation, this Court upheld a banks action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions honourable acquittal, acquitted of blame and fully exonerated are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression honourably acquitted. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted.
13. Therefore, it is evident from the aforesaid decisions of the Honourable Supreme Court that a person, who suppressed his involvement in a criminal case is not entitled to claim any right for appointment or continuity in service. It was further held that it is well within the right of the respondents to cancel the candidature of a candidate if they finds justifiable reaasons to keep them out of the police force even if they are acquitted or discharged from the Criminal case. In this case, the petitioner has suppressed his involvement in a criminal case and it came to light only after the respondents conducted a discreet enquiry before appointing him to the post. On the basis of such enquiry, the respondents have refused to appoint the petitioner. The respondents are justified in denying employment to the petitioner especially when he suppressed his involvement in the criminal case despite being asked to disclose his involvement in criminal case, if any. In any event, in the light of the above decisions of this Court as well as the Honourable Supreme Court, I am of the view that the respondents are justified in denying appointment to the petitioner for having suppressed his involvement in the criminal case.
14. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
23-09-2014 rsh Index : Yes / No Internet : Yes / No To
1. The Member Secretary Tamil Nadu Uniformed Service Recruitment Board P.T. Lee Chengalvaraya Naicker Maaligai No.807, Anna Salai Chennai 600 002
2. The Superintendent of Police Villupuram District Villupuram
3. The Inspector of Police Kedar Police Station Kedar, Villupuram Taluk B. RAJENDRAN, J rsh WP No. 17567 of 2013 23-09-2014