Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pankaj Shukla on 14 December, 2018
THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 1 Gwalior, Dated : 14.12.2018 Shri Harish Dixit, learned Government Advocate for the appellants. Shri Prashant Sharma, learned counsel for the respondent.
With the consent of learned counsel for the parties, the:
matter is finally heard. | This appeal under Section 2(1) of the Madhya Pradesh. Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam,. 2005 is directed against the order dated 24.07.2018, whereby learned Single Judge while setting aside the order dated 20.02.2017 has relegated the matter to the Competent Authority for reconsideration.
That by order dated 20.02.2017 the Competent Authority had rejected the candidature of the respondent (hereinafter referred to as "petitioner") for the post of Constable, because of the petitioner being proceeded against for the criminal charges under Sections 452, 324, 294, 323, 506-B/34 IPC in Criminal Case No.77/2010 and under Sections 327, 323, 294 and 506-B IPC in Criminal Case No.132/2012. Learned Single Judge on the findings that the petitioner since did not conceal the facts and THE HIGH COURT OF MADHYA PRADESH W.A.No. 1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 2 that he was acquitted in both the cases much prior to appointment, faulted with the respondents' verdict.
Exception is taken to the verdict in Writ Petition on the » anvil that it being the prerogative of the employer to adjudge the suitability of a candidature for the disciplined force; and the petitioner though was acquitted of the charges under Sections 327 and 452 IPC on being compromised and by giving benefit of doubt; however, since the charges relates to moral turpitude, | the Authorities were justified in holding that the petitioner does ; not possess unblemished character and is not suitable for :
appointment in disciplined forces. The appellant relies on the -- decision by Larger Bench in Ashutosh Pawar Vs, High Court of | Madhya Pradesh (W.P.No.5865/2016). And Division Bench Judgment in Ravindra Kushwaha Vs. State of Madhya Pracesh (W.P.No.6316/2016); Ashok Bhimte Vs. The State of Machya Pradesh (W.A.No.222/2017).
The petitioner on his turn supports the verdict by learned Single Judge. It is urged that the same is in consonance with the decision in Mohammed Imran Vs. State of Maharashtra: Civil Appeal No.10571 of 2018 (arising out of SLP (c) No.6599/2018) and Ramvaran Singh Gurjar Vs. State of M.P. & others :
THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 3 (W.A.No. 1257/2018).
Considered rival submissions.
The petitioner had earlier approached the High Court vide Writ Petition No.5984/2015 wherein the earlier order rejecting. petitioner's candidature was set aside on 27.06.2016. The order | was modified in Writ Appeal No.393/2016 which was disposed | of with the direction to the Competent Authority to consider the | Claim of the petitioner in obtaining fact situation.
On reconsideration following order came to be passed :
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The issue as to whether a decision of Criminal Court on the basis of compromise bears the testimony of an incumbent being of good character and the scope of High Court under Article 226 of the Constitution of India in such a matter came up THE HIGH COURT OF MADHYA PRADESH W.A.No. 1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) . 6 for consideration before Full Bench of own High Court in Writ Petition No.5865/2016, wherein following questions were dwelt upon:-
"1. Whether in all cases, where an FIR lodged against a person for minor offences has been quashed on the basis of a compromise arrived at between the parties or a person has been acquitted on account of a compromise between the parties, the character of the person applying for appointment thereafter, has to be treated as Good and such a person cannot be held _ ineligible for appointment under the Rules. of 1994 ?
2. Whether the High Court in exercise of its powers under Article 226 of the Constitution of India, can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person ?
3. Whether the High Court while allowing such a petition in exercise of its powers under Article 226 of the Constitution of India can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla} 7 were appointed and to grant him back dated seniority and all other benefits or whether the High Court Should simply remit the matter back to the authority for taking a decision in this regard ?
4. Whether the high standards of adjudging the good. character of a candidate for- appointment as a Judicial Officer, which has been adopted and followed by the State under the Rules of 1994 till the . decision in the case of Arvind Gurjar © (supra) were and are right and proper or whether in view of the decision in the case of Arvind Gurjar (supra), the same should be considered to be relaxed to the extent that in all cases the character of a person should be treated to be good where he has been acquitted for minor offences on the basis of a compromise?
5. Whether the decision in the case of Arvind Gurjar (supra) lays down the correct law ?
6. Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide ?
Dwelling on No.1, 4 and 5, it is held:
"32. Therefore, in respect of the Questions No.1, 4 and 5 we hold that 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 THE HIGH COURT OF MADHYA PRADESH W.A.No. 1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 8 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. In this view of the matter, we find that the judgment in Arvind Gurjar's case (supra) holding that it cannot be held that candidate does not have a good character, is not the correct enunciation of law. Consequently, the judgment in Arvind Gurjar's case (supra) is overruled.
In regard to questions No.2 and 3, it is held:-
"40. In view of the law laid down in above said judgments, there is no doubt that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court only examines the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. We find that the decision of the State Government holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged.
41. Even if the High Court finds that the decision of the State Government is suffering from some __ illegality, the jurisdiction of the High Court in a writ petition under Article 226 of the Constitution of India is to remit the matter to the THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 9 Authority for reconsideration rather than to Substitute the decision of the competent Authority with that of its own. The Supreme Court in a Judgment reported as (1994) 4 SCC 448 (State of Haryana vs. Naresh Kumar Bali) was examining a question: as to whether there could be a direction to appoint a Candidate, who sought appointment on compassionate ground.
The Supreme Court held as under:-
"16. With regard to. appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India_v. Asha Ramchhandra Ambekar ( 1994) 2 SCC 718. The same principle will Clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fail within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making Process and not against the decision itself: and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 14211) of the Constitution can be of no guidance on the scope of Article 226."
A Division Bench of this Court in Ashok Bhimte (Supra) while dwelling on the aspect as to the scope of exercise of THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 10 powers of judicial review, observed :
"We do not find that such judgment provides any assistance to the argument raised by the learned counsel for the appellant. The Screening Committee has considered the candidature of the appellant/petitioner and rejected the same for the reason that the appellant is not possessing impeccable character and is unfit for appointment to Police Department. In exercise of powers of judicial review, we do not find that such finding can be said to be unwarranted which may warrant interference in the present appeal."
In Mohammed Imran (supra) the candidature was turned down on the grounds of moral turpitude, which were found to be misplaced which led Hon'ble Court to remit the matter for reconsideration. Whereas, in the case at hand after remitting the matter the Scrutiny Committee reconsidered the petitioner's candidature and adjudged him non suitable. Similarly the case of Ramvaran Singh Gurjar (Supra) turns on its own fact and the principle of law laid down therein is not attracted in the present case.
In Commissioner of Police New Delhi and another Vs. Mehar Singh (2013) 7 SCC 685 it is held :
24. We find no substance in the contention that by cancelling the respondents' THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 11 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[ 11] 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 Management of THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukia) 12 Reserve Bank of India, New Delhi v. Bhopal Singh Panchal[12], where in somewhat similar fact situation, this Court upheld a bank's 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 Codeorthe 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.
26. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a= serious case involving moral turpitude is registered is discharged on technical grounds or is THE HIGH COURT OF MADHYA PRADESH W.A.No. 1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 13 acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it,
27. Against the above background, we shall now examine what is the nature of acquittal of the respondents. As per the complaint lodged by Ramji Lal, respondent Mehar Singh and others armed with iron chains, lathis, danda, stones etc. stopped a bus, rebuked the conductor of the bus as to how he dared to take the fare from one of their associates. Those who intervened were beaten-up. They received injuries. The miscreants broke the side window panes of the bus by throwing stones. The complainant was also injured. This incident is undoubtedly an incident affecting public order. The assault on the conductor was pre-planned and pre- meditated. The FIR was registered under Sections 143, 341, 323 and 427 of the IPC. The order dated 30/01/2009 passed by the Additional Chief Judicial Magistrate, Khetri snows that so far as _ offences under Sections 323, 341 and 427 of _ the IPC are concerned, the accused entered into a compromise with the complainant. Hence, learned Magistrate acquitted - respondent - Mehar Singh and others of the said offences. The order further indicates that so far as offence of rioting i.e. offence under Section 147 of the IPC is concerned, three main witnesses turned hostile. Learned Magistrate, therefore, acquitted all the accused of the said offence. This acquittal can never be described as an acquittal on merits after a THE HIGH COURT OF MADHYA PRADESH W.A.No.1761/2018 (State of Madhya Pradesh & others Vs. Pankaj Shukla) 14 full fledged trial. Respondent - Mehar Singh Cannot secure entry in the police force by portraying this acquittal as an honourable acquittal. Pertinently, there is no discussion on merits of the case in this order. Respondent - Mehar Singh has not been exonerated after evaluation of the evidence.
The impugned order when tested on the anvil of above analysis cannot be given the stamp of approval. Consequently, it is set aside. The order rejecting candidature of the respondent is upheld.
Appeal is disposed of finally in above terms. No costs.
1(Sanjay Yadav) (Rajeev Kufrar Shrivastava) Judge Judge bj/-
\. ALOK KUMAR * 2018.12.28 16:37:12 +05'30'