Madhya Pradesh High Court
Napees Mohammad vs Director General on 21 February, 2018
1
THE HIGH COURT OF MADHYA PRADESH
WA-428-2017
(NAPEES MOHAMMAD Versus DIRECTOR GENERAL )
Gwalior, Dated 21.02.2018
Shri Mahesh Goyal, learned counsel for the
appellant.
Shri Vivek Khedkar, learned Solicitor General for
the respondents.
With the consent of learned counsel for the parties, the matter is finally heard.
Appellant having participated in the process of recruitment for the post of Constable/GD in Central Industrial Security Force(CISF) in the Combined Recruitment notified through Staff Selection Commission, cleared its all stages, viz, Physical Test, Written Examination and Medical Test, was given the offer of appointment vide Communication dated 27/03/2012. On 04/04/2012, the Appellant was called upon to fill Attestation Form wherein paragraph 12(b) he was required to give the disclosure as to any criminal case against him in the past or in present. The petitioner concealed the fact of his being tried for the offences punishable under Sections 324, 323, and 504 IPC. That an explanation was sought from the Appellant by Commandant, CISF Unit VSSC, Thumba on 25/07/2013. The Appellant submitted his reply on 26/07/2013 wherein he admitted the fact of being prosecuted in the criminal case wherein he was 2 acquitted. It was further stated in reply that because of lack of knowledge of English, he could not understand the requirements (This statement of the Appellant is contrary to facts on record. The Attestation Form brought on the record of Writ Petition as Annexure P/2 is in bilingual, both in English and Hindi, and the petitioner has filled the entire form in Hindi). The Appointing Authority in exercise of powers vested under Proviso of Sub- Rule(2) of Rule 25 of Central Industrial Security Force Rules terminated the services of the Appellant vide order dated 31/08/2013. Whereagainst Appellant preferred an Appeal which was also dismissed on 17/10/2013. Representation preferred to the Director General/CISF was dismissed on 06/01/2014.
These orders of termination and its affirmation in Appeal came to be challenged by the Appellant in Writ Petition No.3660/2014, which was dismissed on 17/06/2016. Learned Single Judge held:
"This petition has been filed challenging the orders dated 31.08.2013 (Annexure P-3), 06.01.2014 (Annexure P-
7) whereby petitioner was terminated on account of suppression of information in the verification form, whereby, petitioner's representation was rejected through a speaking order. Respondents have drawn our attention to the decision rendered by this court in the W.A.No.130/2015, Vinod Kumar Tomar Vs. Union of India and others whereby the Division Bench of this 3 Court has held that the persons seeking appointment in the police force needs to demonstrate exemplary character and if any suppression is made then in view of the law laid down by the Supreme Court in the case of State of Madhya Pradesh and others Vs. Parvez Khan, 2015 (1) MPHT 1 (SC) and Mehar Singh Vs. Commissioner of Police, New Delhi and another Vs. Shani Kumar, 2013 (7) SCC 685 candidature is liable to be rejected immediately. There is no quarrel with this proposition and the law is well settled. It is directed that in view of the Division Bench decision of this Court and also the law laid down by the Supreme Court, the petitioner is not entitled to any relief and therefore, petition fails and is dismissed"
The said order was challenged in Writ Appeal No.252/2016 which was dismissed as withdrawn with the liberty to seek review of order dated 17/06/2016. The Review Petition filed by the Petitioner:R.P.368/2016 was dismissed on 03/07/2017.
Vide this Appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal), Adhiniyam 2005, Appellant seeks setting aside of these orders passed in Writ Petition No.3660/2014 R.P.No.368/2016 and the order of removal and a direction for reinstatement.
After hearing learned counsel for the parties at length and taking into the undisputed fact that the 4 petitioner concealed the fact of being prosecuted in a criminal case, we are of the considered opinion that the Appellant has been rightly non-suited.
It is held in Daya Shankar Yadav v. Union of India & Ors. (2010) 14 SCC 103 that:-
"16. Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college, etc.; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post.
In Devendra Kumar vs. State of Uttaranchal & Ors. (2013) 9 SCC 363, it is held:-
"24. In the instant case, the High Court has placed reliance on the Govt. Order dated 28-4-1958 relating to verification of the character of a Government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of 5 the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case
25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cedit opus - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Major General Madan Lal Yadav and Lily Thomas v. Union of India and others,). Nor can a person claim any right arising out of his own wrongdoing. (jus ex injuria non oritur).
26. The courts below have recorded a finding of fact that the appellant suppressed material information sought 6 by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case. In view of the above, the appeal is devoid of any merit and is accordingly dismissed."
Recently, in Civil Appeal No.67/2018 Union Territory, Chandigarh Administration & Others v. Pradeep Kumar and Another, decided on 08/01/2018, it is held by the Supreme Court:
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police and Another v. S. Samuthiram (2013) 1 SCC 598, in which this Court held as under:-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to 7 reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision.
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 8 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 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 view of the principle of law laid down by the Supreme Court qua non-disclosure of criminal cases in the Attestation Form which disentitles an incumbent for appointment in disciplined force, we are not inclined to interfere with the decisions in Writ Petition No.3660/2014.
Consequently, Appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
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Digitally signed by PAWAN KUMAR
Date: 2018.02.23 10:44:43 +05'30'