Rohit Singh Raghuwanshi vs The State Of Madhya Pradesh on 2 March, 2020

[Cites 9, Cited by 1]

Madhya Pradesh High Court

Rohit Singh Raghuwanshi vs The State Of Madhya Pradesh on 2 March, 2020

Equivalent citations: AIRONLINE 2020 MP 278

1. This Intra Court Appeal u/S. 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 18.11.2019 passed in W.P. No.4933/2017 by learned Single Judge while exercising writ jurisdiction u/Art. 226 of the Constitution dismissing the petition in question thereby upholding the impugned order Annexure P/1 dated 05.07.2017 which in turn had upheld cancellation of candidature of petitioner for appointment to the post of Platoon Commander in Police Department for which petitioner had been selected by recruitment held in 2014-15.

2. The impugned order of cancellation of candidature was passed after finding the petitioner involved in offence punishable u/S. 325 IPC which was treated to be an offence involving moral 2 WA-07-2020 turpitude despite the petitioner having been acquitted by way of compounding by order of learned trial Judge dated 17.08.2010.

3. Learned counsel for the rival parties are heard on the question of admission.

4. This is second round of litigation after the petitioner availed the first one in shape of WP 3879/16 which was disposed of vide order dated 17.04.2017 with direction to consider the representation made by the petitioner against cancellation of his candidature. The sole objection of employer to the candidature of petitioner was that offence punishable u/S.325 IPC involves moral turpitude, notwithstanding petitioner having been acquitted by way of compounding.

Thus the only question which begs for an answer in the present writ appeal is as to whether the offence punishable u/S.325 IPC is an offence involving moral turpitude or not ?

If the answer to this question is in the negative then whether this Court can issue direction of appropriate nature to the employer to reconsider the case of petitioner for appointment ?

5. Before adverting to the concept of moral turpitude and the repercussion of acquittal by compounding over claim for appointment, it would be appropriate to dwell upon the skeletal facts of the case which are as under:-

(i) After the petitioner was successful in the selection to the post of Platoon Commander in Police Department in the recruitment held in 2014 his antecedents as contained in verification form were 3 WA-07-2020 put to scrutiny. It was found that crime No.108/10 was registered at Police Station Cantt District Guna, arising out of incident dated

06.03.2010 which occurred at 11:00 am, against the petitioner and in which the State filed charge-sheet in the Court of competent criminal jurisdiction where rival parties compounded the offence and by order dated 17.08.2010 the petitioner was acquitted of the charge u/S. 325 IPC. Consequently, the candidature of petitioner suffered cancellation by order dated 12.04.2016 vide P/2 by holding that offence u/S.325 IPC involves moral turpitude and since requirements attached to the post of Platoon Commander in Police Department which is a uniformed service, are onerous and directly related to maintenance of law and order, the petitioner with his antecedents can not seek entry in the sensitive service i.e. police service.

6. The said decision of cancellation of candidature was reiterated by order dated 05.07.2017 P/1 which came to be challenged before the learned Single Judge unsuccessfully which brings the petitioner/appellant before us this WA.

7. Learned counsel for the appellant relying upon the decision of Apex Court in Ashutosh Pawar Vs. State of M.P. 2018 (2) MPJR 178 held that in the given facts and circumstances the employer cannot be divested of its right to consider the suitability of candidate to any post in disciplined service, notwithstanding the technical acquittal by way of compounding.

4 WA-07-2020 From a bare perusal of impugned orders vide P/1 and P/2, it is evident that the sole ground for declining relief sought was that the offence punishable u/S.325 IPC involves moral turpitude. 7.1 Taking up the core issue of moral turpitude, it is seen that the Apex Court in the case of State Bank of India and Others Vs. P. Soupramaniane, reported at 2019 SCC OnLine SC 608 has explained this concept, relevant extract of which is reproduced below:-

"9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause 10 Cristoval Silva - Trevina 241 & N Dec 687 (AG 2008) the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service."

8. Pertinently, distinction between technical and honourable acquittal is not recognized by criminal jurisprudence but this distinction assumes relevance when the claims arising out of service dispute are considered in juxtaposition to the criminal conduct of a candidate seeking entry in public employment.

9. The employer in public service is entitled to ensure that the person who seeks entry into public employment is not only qualified but is otherwise suitable for the requirements of the posts 5 WA-07-2020 concerned. Eligibility comprises of educational qualifications, experience, domicile etc. are invariably and expressly laid down in the statutes/rules governing the recruitment process. However, appointing authority still has discretion to choose the most suitable among the eligible candidates who otherwise have equal credentials as regards qualifications, experiences etc. Availability of this discretion to the appointing authority is necessary to ensure that no person of disrepute or unsuitable character, conduct or behaviour enters public service.

10. However, the field of this discretion available to appointing authority is though wide but is required to be exercised on well settled principles of law i.e. good conscious, fair play, non- discrimination and reasonableness to ensure that this wide discretionary power is not misused by the appointing authority. The Home Ministry of Govt. of M.P. on 05.06.2003 earmarked certain offences under the IPC and other penal enactments involving moral turpitude. This list of 2003 categorizes the offence u/S. 325 IPC as one involving moral turpitude. However, this list was superseded by subsequent list dated 24.07.2018 (Page No.159 of present writ appeal) where the offence punishable u/S. 325 IPC was dropped from the list of offences involving moral turpitude. 10.1 The said subsequent instructions of police headquarters are prospective in nature as rightly held by learned Single Judge and this would not benefit the petitioner as his recruitment and as well as consideration finding him unfit, both took place prior to issuance 6 WA-07-2020 of instructions of 2018.

11. It is very easy to categorize any person as a criminal merely because he is involved in an offence without ascertaining as to whether the implication was false or not and whether any allegation even if found to be true was of such grave nature which may reflect adversely upon the character, conduct or behaviour of the person. 11.1 It is common knowledge that instances of false implication are rapidly on the rise for the obvious reason of falling moral standards among the common man. Every FIR lodged is not a gospel truth. It may contain allegations which are false and are made merely to falsely implicate a person. Ruling out this possibility would be akin to turning a blind eye towards harsh realities of life. As such even an innocent person against whom a false FIR is lodged can unfortunately be branded as an accused/criminal. The Apex Court several decades ago in State of Madhya Pradesh Vs. Ramashanker Raghuvanshi & anr. AIR 1983 SC 374 observed that government service is not a haven where only angels can tread. Relevant extract of said judgment is reproduced below:-

3.............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 rights 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 Arts. 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to 7 WA-07-2020 affect the integrity and efficiency of the individual's service.

To hold otherwise would be to introduce 'McCarthysim' into India. 'McCarthyism' is obnoxious to the whole philosophy of our constitution. We do not want it.

11. Let us once more remind ourselves of what Gurudev Rabindranath Tagore said:

"Where the mind is without fear and the head is held high:

where knowledge is free;

          x      x       x       x       x       x      x

          x      x       x       x       x       x      x

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit:

Where the mind is led forward by thee into ever widening thought and action.................... let my country awake".

12. Thus what comes out loud and clear from the above discussion is that appointing authority while assessing suitability of a candidate to enter public employment has a heavy responsibility of considering lot many factors. Mere registration of offence which according to the appointing authority involves moral turpitude especially when the Court of competent jurisdiction has not pronounced judgment on merits, is not per se good enough to declare a candidate unfit for public employment. 12.1 Employer in discharge of this onerous responsibility is required to inter alia consider following factors:-

(i) The nature of allegations;

(ii) Overt act alleged against candidate;

(iii) Whether the allegations are solely against individual candidate or have been alleged with the aid of section 34/149 of IPC

(iv) The criminal antecedents of the candidate ;

8 WA-07-2020

(v) Overall reputation of the candidate in his locality/society etc.

13. The aforesaid factors are illustrative and not exhaustive. There can be other relevant factors which the Competent Authority can consider. The concern of this Court is that it is seen time and again that the appointing authorities are not discharging this onerous duty while considering candidature of persons seeking public employment. The appointing authority often adopts cursory and perfunctory approach. The appointing authority ought to remember that it is dealing with prospects of employment of a citizen of the country, which if not dealt with appropriately in accordance with the rule of law, can jeopardize the entire future of a candidate and render her/him demoralized.

14. Reverting to the factual matrix of this case, it is seen that after registration of offence u/S. 325, 323 of IPC on 28.03.2010 bearing crime No.108/2010 Police Station Cant District Guna, charge-sheet was filed by the prosecution before the Court of competent criminal jurisdiction which inter alia contained statement of injured Ashish recorded u/S. 161 CrPC which is reproduced below for ready reference and convenience:-

dFku vk'kh"k jtd S/o tloar flag jtd mez & 13 o"kZ R/o ckal [ksM+h] gfjuUnu dkWyksuh] xquk us iwNrkN ij crk;k dh eSa mijksDr irs ij jgrk gwa eSa vHkh 8oha esa i<+rk gwaA fna- 6@3@10 dks 9 WA-07-2020 djhcu 11 cts ckal [ksM+h esa jksfgr o nhid dk >xM+k gks jgk Fkk fd eSa chp cpko djus x;k rks jksfgr us ew>s iRFkj ij iVd fn;k ftlls esjs nkfgus gkFk dh dykbZ esa ewanh pksV vkbZ Fkh eSaus Fkkuk ij tkdj fjiksVZ dh Fkh rc esjk ftyk vLirky xquk esa MkWDVjh gqvk Fkk] esjs gkFk dh dykbZ dk ,Dl&js Hkh gqvk Fkk ckn esa MkWDVj lkgc us QzSDpj crkdj IykLVj fd;k gSA ;gh esjk dFku gSA The said injured Ashish was also subjected to x-ray and radio-

logical examination revealing fracture of one of the bones in the right wrist.

14.1 Statement of injured Ashish recorded u/S. 161 CrPC reveals that when argument and altercation between Rohit (appellant herein) and Deepak was taking place, the injured Ashish tried to intervene. At that time the appellant pushed Ashish away. Ashish fell down on the ground, sustaining minor injury which later turned out to be fracture of one of the bones of the wrist. 14.2 The aforesaid reveals that arguments and altercation took place between the appellant and one Deepak without use of any weapon and the injury suffered during this incident by the injured Ashish was not attributed to any intentional overt act of the appellant. The prosecution story, even if admitted to be true, is that the injury suffered by injured was never intended to be inflicted by the appellant. Thus there was neither any intention nor overt act on the part of appellant which can lead to even inference much less conclusion that the appellant had premeditated the causing of injury. The injury occurred on merely pushing the injured out of the 10 WA-07-2020 way to prevent him from intervening in the arguments and scuffle which was taking place between Rohit (appellant herein) and Deepak.

14.3 As such in the absence of any overt act or intention (mense rea) as is vivid from the prosecution story, the offence punishable u/S.325 IPC cannot be attributed to the petitioner. 14.4 The Court of competent criminal jurisdiction could not pronounce any authoritative verdict as the prosecution got truncated by the parties coming to terms by burying their hatchet by compounding the offence which led to acquittal u/S. 320 CrPC.

15. In view of above, the least that was required of the appointing authority was to look into the nature of allegation which the prosecution story, even if admitted to be true, revealed. When the prosecution story did not reveal any mense rea or even any kind of overt act on the part of petitioner for causing injury in question, the appointing authority could not have been held the appellant responsible for the said offence.

15.1 The element of moral turpitude is further not palpable from the prosecution story. An act which reflects moral degradation or casts shadow on the reputation or morality of a particular individual can be termed as one involving moral turpitude but not otherwise. A mere push given by the appellant to the injured which led to injured falling on the ground and while doing so hurting his wrist which turned out to be fracture of one of the small bones in the wrist joint can not in the wildest of dreams be termed as an act involving moral 11 WA-07-2020 turpitude.

16. In the conspectus of the above discussion, it is clear as daylight that the appointing authority has not properly exercised discretion vested in it while assessing the suitability of appellant for entering public employment. A sweeping statement has been made that the offence punishable u/S. 325 IPC involves moral turpitude, which in the considered opinion of this Court, is untenable especially in the absence of any finding or material on record to show that nature of allegations, overt act, antecedents of petitioner etc. were taken into account. At least the impugned orders Annexure P/1 and P/2 clearly reflect that consideration was lopsided and desperately wanting in required minimum standards expected of the Appointing Authority.

17. Consequently, this writ appeal is allowed in the following terms:-

(I) Impugned order dated 18.11.2019 passed in WP 4933/2017 is set-aside.

(II) Impugned orders dated 05.07.2017 Annexure P/1 and 11/12.04.2016 Anneuxre P/2 are quashed.

(III) The Competent Authority is directed to reconsider the case of petitioner/appellant by assessing suitability afresh for appointment on the post of Platoon Commander in Police Department by treating the offence punishable u/S. 325 IPC not to involve moral turpitude. (IV) It is open to the Competent Authority to consider all 12 WA-07-2020 other relevant factors in terms of order passed herein (supra) and thereafter take a final decision as to whether petitioner/appellant is fit or not by passing a speaking order within 60 days from the date of communication of this order.

(V) However in case petitioner/appellant is found unfit them speaking order be passed and communicated to the appellant.

(VI) Needless to emphasize that if petitioner/appellant is found suitable, the employer shall do the needful.

             (Sheel Nagu)               (Rajeev Kumar Shrivastava)
               Judge                              Judge
             02/03/2020                          02/03/2020

    ojha


YOGENDRA
OJHA
2020.03.04
10:23:16
+05'30'

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