Madhya Pradesh High Court
Bhupendra Yadav vs The State Of Madhya Pradesh on 24 January, 2018
THE HIGH COURT OF MADHYA PRADESH
1
WA.46.2018
(Bhupendra Yadav Vs. State of Madhya Pradesh and others)
Gwalior, Dated : 24.01.2018
Shri S.K. Sharma, learned counsel for the
appellant.
Shri Raghvendra Dixit, learned Government
Advocate, for the respondent/State.
With consent of learned counsel for the parties, the matter is finally heard.
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 17.11.2017 passed in Writ Petition No.19621/2017.
Petitioner, having participated in the process of recruitment of Constable, cleared its all stages and finally was allotted the post of Constable in the unit under SP, Ujjain (M.P.). The candidature of the petitioner/appellant was, however, cancelled on the finding, based on the disclosure in the verification form, as to the petitioner being proceeded in a Criminal Case vide Crime No.64/2015 for the offences punishable under Sections 341, 354(?k), 323, 34 of IPC and under Sections 7/8 & 11(Mh)/12 of the Protection of Children From Sexual Offences Act (in short "POCSO Act"). Though the said case resulted in acquittal on account of the charges having not been found proved beyond reasonable doubt. The THE HIGH COURT OF MADHYA PRADESH 2 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) decision was communicated to the petitioner on 24.08.2017 whereagainst he filed the Writ Petition 19621/2017 wherein learned Single Judge vide impugned order dated 17.11.2017, affirming the order passed by the Superintendent of Police, Ujjain (M.P.), dismissed the writ petition filed by the petitioner.
Exception is taken to the verdict by the petitioner/appellant. It is urged that with the acquittal of petitioner, all the criminal charges levelled against him got washed of. It is urged that there is no previous history of petitioner being involved in any crime as would have led the employer draw a conclusive finding as to his antecedent being not germane to government job. It is urged that in this fact situation the Writ Court has erred in dismissing the petition preferred by the petitioner while affirming the reasoning given by the authority concerned.
Learned Government Advocate, on his turn, has supported the order passed by the Writ Court by placing reliance on the decision rendered by Hon'ble Apex Court in the case of "Avtar Singh Vs. Union of India and others [(2016) 8 SCC 471]" and in Union Territory, Chandigarh Administration and others Vs. Pradeep Kumar and another passed in Civil Appeal No.67/2018 (SC) vide Judgment dated 08 th THE HIGH COURT OF MADHYA PRADESH 3 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) January, 2018 and of our High Court in Ashutosh Pawar Vs. High Court of Madhya Pradesh & Another (Writ Petition No.5865/2016 Order dated 12.01.2018). It is urged that the petitioner though acquitted of the charges under Section 354D of IPC and under Section 11(d)/12 of the POCSO Act, 2012, it was still within the competence of the appointing authority to have taken into consideration the antecedents of the petitioner and it was because of his involvement in the crime of moral turpitude for which he was charged, the decision was taken to cancel the candidature and thus, it is urged that learned Single Judge has rightly dismissed the petition.
Considered the rival submissions In Avtar Singh (supra), it is held:
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. 38.2 While passing order of termination of services or cancellation of candidature for giving false information, THE HIGH COURT OF MADHYA PRADESH 4 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted :
38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may THE HIGH COURT OF MADHYA PRADESH 5 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) take appropriate decision as to the continuance of the employee. 38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9 In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
THE HIGH COURT OF MADHYA PRADESH 6 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) 38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
It is held by the Hon. Supreme Court in Pradeep Kumar and another (supra):
"13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of 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 honourably acquitted/completely exonerated. The decision of the Screening Committee THE HIGH COURT OF MADHYA PRADESH 7 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character."
In Ashutosh Pawar (supra), the law laid down is:-
"Decision of Criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar Vs. State of M.P.) is overruled. Another Division Bench judgment in W.A. No.367/2015 (Sandeep Pandey Vs. State of M.P. and others) is also overruled.
Jurisdiction of the High Court in a writ petition under Art.226 of the Constitution of India is to examine the decision-making process than to act as Court of appeal to substitute its own THE HIGH COURT OF MADHYA PRADESH 8 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) decision. In appropriate case, if the Court finds decision-making process is arbitrary or illegal, the Court will direct the Authority for consideration rather than to substitute the decision of the competent Authority with that of its own.
The expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity of a candidate who seeks appointment as Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any taint. The standard of conduct in the case of Judicial Officer is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well. The same must be in tune with the highest standard of propriety and probity."
In the case at hand, as evident, the petitioner fairly disclosed the fact about the criminal case wherein he was acquitted. This information apparently is the foundation for passing of the order dated 24.08.2017 which states:
dk;kZy; iqfyl v/kh{kd] ftyk mTTkSu e-iz- Øekad@iqv@mTTkSu@LFkk-@ih 3756,@17 fnukad 24@08@2017 izfr] HkwisUnz ;kno firk Jh dY;k.k flag ;kno fuŒ xzke iks- ikjlkSy ftyk v'kksduxj] eŒizŒ THE HIGH COURT OF MADHYA PRADESH 9 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) fo"k; %& pfj= lR;kiu esa v;ksX; ik;s tkus ds laca/k esaA lanHkZ %& iqfyl eq[;ky; dk i= Øa-
fo'kk@21@Ogj@2016&17¼,Q 515@17½ fnukad 09-08-17 &&00&& mijksDr fo"k; esa ys[k gS fd vkj{kd p;u ijh{kk 2016 esa vkidk p;u fd;k tkdj ftyk mTTkSu vkcaafVr fd;k x;k gSA vkidk pfj= lR;kiu djkrs vkids fo:) Fkkuk bZlkx<+ ftyk v'kksduxj esa iathc) vi-Øa- 64@15 /kkjk 341] 354¼?k½] 323] 34 Hkknfo ,oa 7@8 iksDlks ,DV esa /kkjk 354¼Mh½ Hkknfo ,oa 11¼Mh½@12 ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 esa vkjksi lansg ls ijs izekf.kr ugha ik;s tkus ij nks"keqDr fd;k x;k gSA /kkjk 7@8 iksDlks ,dV esa /kkjk 354¼Mh½ Hkknfo ,oa 11¼Mh½@12 ySafxd&vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 uSfrd v|ksiru dk gksus ls vkidks 'kkldh; lsok v;ksX; ik;k x;k gSA iqfyl v/kh{kd ftyk mTTkSu Evident it is from the order dated 24.08.2017 that except the antecedent forming subject matter of Crime No.64/2015, there is no other criminal case pending against the petitioner nor is it shown that he is involved in other case.
"Antecedent" as per Chambers 21st Century Dictionary means "an event or circumstance which precedes another". As per Black's Law THE HIGH COURT OF MADHYA PRADESH 10 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) Dictionary, it is an adjective which means "Earlier; preexisting; previous and when a word depicted quality or fact of going before."
In view whereof, as held by the Full Bench of our High Court in Ashutosh Pawar (supra), it was incumbent upon the competent authority to have examined the antecedents of the petitioner not only in the context of the crime registered vide Crime No.64/2015 but also it was required to cause a deeper probe as to the past of the petitioner, which as apparent from the order, has not been done. It is only on the basis of declaration given by the petitioner in his verification form as regard to registration of an offence vide Crime No.64/2015 wherein he was acquitted, a conclusion is arrived at by the Authority concerned that the petitioner's antecedent is not germane for he being appointed in the police force.
Learned Single Judge has, thus, erred in dismissing the petition while affirming the findings of the competent authority.
Consequently, order dated 17.11.2017 passed in Writ Petition No.19621/2017 is set aside. The order dated 24.08.2017 is also set aside. The matter is relegated to the competent authority to pass fresh order after considering the case of the petitioner in the light of the THE HIGH COURT OF MADHYA PRADESH 11 WA.46.2018 (Bhupendra Yadav Vs. State of Madhya Pradesh and others) observations made hereinabove. It is, however, made clear that this Court has not expressed any opinion on the merits of the matter.
Writ Appeal stands disposed of finally in above terms.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pd
PAWAN DHARKAR
2018.01.31
16:07:56 -08'00'