Kerala High Court
K.P. Sukumaran vs Union Of India (Uoi) And Ors. on 1 July, 1988
Equivalent citations: (1990)ILLJ326KER
JUDGMENT Bhaskaran Nambiar, J.
1. Is conviction under the Gambling Act a disqualification for appointment? Fertilisers and Chemicals, Travancore Ltd., (F.A.C.T.), Cochin Division, a public sector undertaking, thinks, it is; the petitioner-appellant thinks otherwise. That is how the matter has reached this Court.
2. In December, 1977, F.A.C.T. invited applications for the posts of Typist Clerks. The petitioner-appellant was an applicant. There was no prescribed form and the petitioner-appellant submitted an application in his own hand, stating his qualifications and experience and enclosing the relevant certificates. He sat for a written test, submitted to a typing test and faced an interview in May, 1979. In June 1979, the company informed the petitioner-appellant that they had the pleasure in offering him the appointment as Typist-Clerk. He was told that his appointment would be subject to the conditions that he was and continued to be medically fit and that he did not have more than one spouse living in which respect he was to furnish a declaration in the attached proforma. He was directed to report for duty at F.A.C.T. Cochin Division, Personnel Department, Ambalamedu, on 9th July 1979, failing which the offer of appointment would be treated as cancelled.
3. There is no dispute that the petitioner-appellant reported for duty on 9th July. In fact, he submitted the proforma described as an "attestation form" on 5th July with his signature, stating that he was "fined an amount of Rs. 50/-(Rupees fifty only) by the Court of Second Class Judicial Magistrate, Chittoor, on 11th September 1979 against the case filed by the S.I. of Police, Pudunagaram under Sections 7 and 8 of the K.G. Act" (Kerala Gambling Act). On 9th July 1979 he also filed the prescribed "application for employment form" handed over to him. Column 16 regarding previous arrest and previous conviction was left blank. He was not allowed to join duty and in October, 1979, he was informed thus (Ext.P2):
"On scrutiny of the "Attestation Form" second cited, it is noticed that you had been Convicted and sentenced to pay a fine of Rs. 50/- by the Second Class Judicial Magistrate, Chittoor, under Sections 7 and 8 of the Kerala Gambling Act. Since our recruitment rules does not permit to appoint a candidate with known record of conviction by a Court of Law, we have no other alternative but to revoke the offer of appointment given to you. Therefore, we hereby revoke the offer of appointment first cited with immediate effect."
4. He prayed for a reconsideration of the decision stating that the conviction was based on his plea of guilty, that the conviction was not for any offence involving moral turpitude and that an offence under the Kerala Gambling Act did not cast any stigma preventing an appointment being made. He also stressed that gambling at best was only a public nuisance and could not be equated with ordinary crimes against persons and property. He was informed in February 1980, that there were no reasons to review the earlier order. He seems to have made representations to the Ministry of Petroleum & Chemicals and also to the Prime Minister of India. He did not succeed and filed this writ petition on 9th March, 1981.
5. The learned single judge dismissed the writ petition stating thus:
"The only question therefore is whether denying employment to a candidate otherwise suitable for appointment, on grounds of conviction for gambling offences, is so arbitrary and unreasonable as to offend the equality provisions of the Constitution, Obviously, gambling offences form a specific or separate class; and it cannot be asserted that conviction for a gambling offence is totally irrelevant in the matter of assessing a person's suitability for employment. It is difficult to equate conviction for such an offence to a conviction under the Defence of India Rules during the Emergency for shouting slogans, And even if it is possible to think of different degrees of culpability under the Gambling Act, distinguishing one offence from another, the petitioner has not come forward to explain what exactly was the nature of the charge for which he was convicted. The plea of arbitrariness cannot, therefore, be upheld, on the materials made available".
"If the factum of conviction was never in dispute, and if the company's policy itself could not be condemned as arbitrary, issuing of a notice to the petitioner would have been an empty ritual. I do not think that in exercise of its discretion under Article 226, this Court should insist on such a formality."
"There is also another difficulty in the petitioner's way. Ext. P2 was issued in October, 1979. The petitioner seems to have objected to it only on 4th February 1980, and the objection itself was overruled, on 25th February 1980. The present Original Petition was filed more than a year thereafter. The petitioner has thus been not diligent. The Company has also a case that someone else had been appointed to the post long ago. To disturb him at this distance of time would be improper".
6. This appeal is filed against this judgment. The learned counsel for the petitioner, Shri Ram Kumar, submitted that after the petitioner complied with all the conditions prescribed in the offer of appointment dated 28th June 1979, and reported for duty on 9th July, 1979 as directed therein, the Company was not entitled to deny him appointment on the ground that he was convicted under the Gambling Act. The appointment having taken effect, he could only be removed from service and in the present case, as the offence for which he was convicted did not involve any moral turpitude he could not have been removed from service. Assuming his appointment did not take effect, it was submitted that the present conviction could not have been a legal ground to deny employment in the absence of any rules in this regard. He submits that if only the petitioner has been given an opportunity to state his case, it would have been possible for him to contend that a conviction for a minor offence under the Gambling Act on a plea of guilty was not so serious as to debar him from being appointed.
7. The learned counsel for the Company, Sri K.A. Nayar, submitted that the petitioner was not appointed and served with any appointment order and no question of his removal from service arose. It was also submitted that when the Company was alerted that the petitioner was convicted by a criminal court, it applied its mind to all relevant facts and decided not to appoint the petitioner in the best interests of the Company.
8. The learned counsel also brought to our notice the provisions in the Central Civil Services (Classification, Control and Appeal) Rules under which a conduct which has led to a conviction on a criminal charge is a ground for dismissing or removing a civil servant and the clarification issued by the Government when a person was convicted under the Prohibition, Gambling Act, etc., The point that was raised for clarification was:
"Whether the orders applicable in cases of officials guilty of offence under I.P.C. and I.P.O. Act, etc., connected with the official's work and conduct in the discharge of his official duties are also applicable for his conduct beyond duty hours for breaching of State Laws like Prohibition, Gambling Act".
The Government clarified thus:
" 'Criminal charges' used in provision (a) to Clause (2) of Article 311 of the Constitution includes conviction under any law which provides for punishment for a criminal offence, whether by fine or imprisonment. No distinction is made between crimes involving moral trupitude and other crimes, Conviction under Prohibition Law would, therefore, attract proviso (a) to Clause (2) of Article 311 of the Constitution. Further, departmental action can be taken against an official in addition to such action as may be taken against him under the Prohibition Law. This position is confirmed by the provision contained in Rule 22(a) of the C.C.S. (Conduct) Rules, 1964. It is true that there cannot be any violation of the Prohibition Law where there is no Prohibition but even in such area Government servants are required to observe the provisions of Clauses (b), (bb), (c) and (d) of Rule 22 of the C.C.S. (Conduct) Rules, 1964 and departmental action can be taken against them also for violation of any of those provisions.
It was already clarified that the quantum of punishment in the case of persons convicted of offences under the Prohibition Law is a matter to be determined by the competent authority on merits with reference to the relevant facts and circumstances of each case and the mere fact of conviction need not necessarily lead to the extreme penalty of dismissal/removal from service."
Shri Nayar also placed before us the relevant files.
9. F.A.C.T. is "State" under Article 12 of the Constitution vide Sophi v. F.A.C.T. 1984.KLT. 32. This is not disputed. If, therefore, the action of the Company is opposed to Article 14, this Court can interfere under Article 226 and grant appropriate relief. This again, is not doubted.
10. When the Company came to know after the petitioner's selection that he was convicted under the Gambling Act, they did not take any decision immediately but kept an open mind. Apart from taking legal advice, involving as it did, a policy decision, they also wrote to Bureau of Public Enterprises, thus;
"One of the candidates for a clerical post in our Company has furnished the information in his application that he was convicted and sentenced with fine of Rs. 50/- for some act of gambling some years ago. This conviction was under Sections 7 and 8 of the Kerala Gambling Act. The candidate was interviewed and was selected for appointment, subject to a decision being taken as to whether the conviction by fine for gambling could be considered as a disqualification in employment or not. Our own recruitment rules or Standing Orders applicable to workmen have not made any provision regarding such disqualification. We may mention that gambling within the premises of the establishment is a misconduct, under the standing orders. Conviction by the Court for an act involving moral turpitude (whether inside or outside the establishment) would also be a misconduct under the Standing Orders. As stated, recruitment rules are not clear on the subject. In view of the above situation, we thought of writing to you and seek your clarification as to whether such conviction by fine would or would not come in the way of a person getting employment in public sector undertakings. Since we have to take a decision about the applicant one way or the other, we shall appreciate your giving us your considered opinion in the matter at a very early date".
The Bureau of Public Enterprises informed "it would be for the individual enterprise to take a decision in such cases" and thereafter the Chief Personnel Manager noted thus:
"From vigilance angle, it has been considered that conviction under Kerala Gambling Act could be deemed to be disqualification for 'employment in FACT, since offences for breach of laws like prohibition, gambling, etc., are considered as punishable under Article 311 of the Constitution as well as CCA/CCS rules. It has been decided therefore, that a candidate with a known record of conviction need not be appointed to our rolls".
This was followed by the impugned order, revoking the order of appointment (Ext.P2).
11. From the above facts, it is not possible to agree that the petitioner was in fact, appointed and he was removed from service subsequently. An appointment order could be issued only after the company was satisfied about the candidate's antecedent conduct and behaviour. They took pains to consider all aspects when they were alerted that the petitioner was convicted by a Criminal Court earlier. They applied their mind and then decided to revoke the offer. They did not issue the formal appointment order; nor did they admit the petitioner to duty. The petitioner's case that he was already appointed cannot, therefore, stand.
12. The next question is whether a conviction under the Gambling Act, without anything more, cculd be a valid ground to refuse appointment. As contended by counsel, a conviction by court may raise eyebrows, but need not shut one's eyes to the gravity of the offence or the nature of conviction.
13. We are aware that under Article 311 of the Constitution "conduct" which had led to the conviction on a criminal charge can be a good ground for imposing a punishment of dismissal or removal. Chief Justice Chandrachud speaking for a Bench of three Judges of the Supreme Court in Shankar Dass v. Union of India (1985-II-LLJ-184) observed thus (p. 186):
"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly, and reasonably. Surely the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a non-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311(2) makes the provisions of that Article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly".
14. In Madhya Pradesh v. Raghuvanshi (1983-I-LLJ-299) the Supreme Court was considering the constitutionality of police verification regarding political antecedents of candidates seeking employment in public service. Justice Chinnappa Reddy observed thus (p.301):
"The whole idea of seeking a Police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association. It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment. But why seek a police report on the political faith of a candidate and act upon it".
15. In Tulsiram Patel's case (1985-II-LLJ-206) Justice Madon, speaking for the Constitution Bench, on Article 311(2) expressed thus (pp. 235-236):
"It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an enquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an enquiry. It is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily imposed upon the concerned government servant".
"Much as this may seem harsh and oppressive to a government servant, this Court must not forget that the object underlying the second proviso is public policy, public interest and public good and the Court must, therefore, repel the temptation to be carried away by feelings of consideration and sympathy for those government servants who have been dismissed, removed or reduced in rank by applying the second proviso. Sympathy and commisseration cannot be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a constitutional prohibition".
16. In Krishan Chander Nayar v. The Chairman, Central Tractor Organisation and Ore. Petition No. 107 of 1957 (the blue print of the judgment was made available to us), the Supreme Court was considering about a ban on employment of persons whose services were terminated earlier. The Supreme Court observed thus:
If the affidavit on behalf of the respondent had clearly indicated the nature of the ban and the justification therefor, the Court would have been in a better position in deciding the question whether or not the petitioner had any substantial grounds for complaining against the treatment meted out to him. A person who has once been employed under the Government, and whose services have been terminated by reason of his antecedents, may or may not stand on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable basis and must have some relation to his suitability for employment or appointment to an office. But an arbitrary imposition of a ban against the employment of a certain person under the Government would certainly amount to denial of right of equal opportunity of employment, guaranteed under Article 16(1) of the Constitution".
17. F.A.C.T., described as a "giant in the public sector" has grown into a large multi-product, multi-divisional corporation and claims to be "a legend of our times and a triumph of the public sector". Situated on the banks of Periyar and established in 1947 with only an ammonium plant, F.A.C.T. expanded in several stages and has now two manufacturing divisions at Udyogamandal and Ambalamedu, an Engineering, Contracting and Consulting Division (FEDO), a Fabrication Division (FEW) and is said to be posed for further expansion by putting up ammonium sulphate-Caprolactam project, marking its entry into petrochemicals. F.A.C.T. produces fertilisers and chemicals, ammonia, sulphuric acid, olem, phosphoric acid, ammonium chlorides, ammonium sulphate, super phosphate and Tactamfors 20-20-0-15. With its corporate objectives, "to be of service to the nation and to contribute effectively to its economic well being", "to improve productivity and maintain high standards of quality", "to develop, train and maintain a team of motivated and disciplined personnel with required skills and abilities", and "to project a favourable image of the company and its operations in the society in which it operates" this Company engages scientists, engineers technicians and support personnel. They are, therefore, obliged to engage these skilled workmen in departments and divisions where their qualifications, training and experience can be put to best use, to utilise the expertise available to the maximum efficiency and to maintain a better standard of performance at all levels in the entire organisation.
18. The first requirement to ensure qualitative efficiency is to streamline the recruitment policy. A public sector undertaking can set its own standard in formulating the principles for making selection. In these days of falling standards, the court cannot denounce any policy which aims to attain a level of excellence. Antecedent character and conduct are relevant grounds to be taken into consideration before appointment is made. A person who was convicted by a court of law does not stand on the same footing as a person who has no such record and the criterion employed for rejecting a candidate should necessarily have a reasonable relation regarding his suitability for employment. This criterion cannot be arbitrary. If a public sector undertaking refuses to employ a person convicted under the Gambling Act by a court of law, this court cannot compel the employer to make the appointment, for, the reasons advanced for rejection of his claim are germane to the maintenance of higher standards of discipline and efficiency in the establishment.
19. In the present case, the company considered the information furnished by the petitioner himself and rejected the petitioner's claim to be appointed on relevant reasonable grounds. They considered the gravity of the offence, the nature of the punishment and then decided to refuse employment to the petitioner. The company has not framed any rule imposing a general ban against employment of all persons convicted for any offence by any court. Guided as they were, by the policy to maintain a qualitative standard for recruitment, they considered the petitioner's case with reference to his conviction under the Gambling Act. The petitioner was convicted both under Sections 7 and 8 of the Kerala Gambling Act for opening etc., a common gambling house, and "for being found in a common gambling house". If this factor weighed with them to refuse employment, this court cannot hold that there was any violation of Article 14. No interference under Article 226 is called for.
20. The petitioner can only contend that his claim for appointment should be considered. That was done. He had no right to be appointed. There is thus no infraction of any fundamental right.
21. The petitioner's claim was rejected in 1979 and his representation for reconsideration was rejected on 25th February 1980. This writ petition filed on 9th March, 1981 is belated and is liable to be dismissed on that ground as well. The counter affidavit states that some other person has been appointed in place of the petitioner. That person is not on the party array. That appointment made in .1979 cannot be displaced behind his back, and at any rate, after 9 years.
22. For these reasons, we are satisfied that no case has been made for interference under Article 226 of the Constitution. The learned Single Judge is therefore right in dismissing the writ petition and accordingly, we dismiss the writ appeal; but without any costs.