Madras High Court
M.Arun Kumar vs ) The Director General Of Police
Author: M.S.Ramesh
Bench: M.S.Ramesh
W.P.(MD)No.8285 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 05.01.2021
DELIVERED ON: 19.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)No.8285 of 2020
and W.M.P.(MD) No.7682 of 2020
(Through Video Conference)
M.Arun Kumar ... Petitioner
Vs
1) The Director General of Police,
O/o Director General of Police,
Dr.Radhakrishnan Road, Mylapore,
Chennai 600 004
2) The Chairman,
Tamil Nadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Pantheon Road, Egmore,
Chennai 600 008
3) The Superintendent of Police,
O/o Superintendent of Police,
Ramanathapuram District. ... Respondents
1/20
http://www.judis.nic.in
W.P.(MD)No.8285 of 2020
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order in C.No.A3/32064/2017 dated
24.10.2019 on the file of the respondent No.3 and quash the same as
illegal and consequently to issue a direction, directing the respondent
No.3 to appoint the petitioner (Enrolment No.2805175) in the Post of
Grade II Police Constable in Tamil Nadu Special Police Youth Brigade,
within the time stipulated by this Court.
For Petitioner : Mr.K.Dinesh
For Mr.I.Pinaygash
For Respondent : Mr.K.Chellapandian,
Additional Advocate General
******
ORDER
In response to the Recruitment Notification called for the year 2017 for the post of Grade-II Constable in the Tamil Nadu Special Police Youth Brigade (TSPYB) by the Tamil Nadu Uniformed Services Recruitment Board (hereinafter referred to as 'TNUSRB'), the petitioner had applied for the said post. He was provisionally selected after clearing the written examination and thereafter, he had also passed the physical efficiency test and medical test on 02.08.2017. The certificate verification was also conducted on 02.08.2017. 2/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020
2. It is alleged that prior to making an application, the petitioner was implicated in a criminal case registered under section 12 of the Tamil Nadu Gaming Act, 1930 in Crime No.10 of 2016, which came to be closed by the learned Judicial Magistrate, Mudukulathur in C.C.No.109 of 2017 under section 468(ii) of Criminal Procedure Code (hereinafter referred as 'Cr.P.C') for non-filing of final report.
3. It is the case of the respondents that the petitioner has suppressed his involvement in the aforesaid criminal case in his application before the TNUSRB. Hence, his candidature was rejected for such suppression. Aggrieved against the rejection, the petitioner had filed a writ petition in W.P.(MD) No.20779 of 2017 and by an order dated 09.01.2018, this Court had set aside the rejection order and remanded back the matter for fresh consideration on the parameters laid down by the Hon'ble Apex Court in the case of Avtar Singh vs. Union of India reported in (2016) 8 SCC 471. On remand, the third respondent herein had once again rejected the petitioner's candidature on 24.10.2019 on the ground of 'concealment of material fact'. This rejection order is under challenge in the present writ petition.
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4. Mr.I.Pinaygash, learned counsel for the petitioner placed reliance on the decision of Avtar Singh's case, (cited supra) and submitted that the parameters laid down therein have not been followed by the third respondent herein while passing the impugned order and hence, the writ petition deserves to be allowed.
5. Per contra, Mr.K.Chellapandian, learned Additional Advocate General appearing for the respondents submitted that the petitioner had not only suppressed his involvement in a criminal case but had also falsely made a declaration that the particulars furnished in his application are true and correct. He further submitted that the third respondent had not only considered the decision rendered by the Hon'ble Supreme Court in Avtar Singh's case, (cited supra) but also had placed reliance on other decisions and had rightly come to the conclusion that the concealment of petitioner's involvement in the criminal case would disqualify him of consideration.
6. I have given careful consideration to the submissions made by the respective counsels and have perused the materials on record. 4/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020
7. The fact that the petitioner had concealed his implication in a criminal case at the time of making out his application, is not in dispute. The core question would be as to whether, even if such material facts are suppressed in the application, the petitioner could be entitled for favourable consideration?
8. When the petitioner's candidature was originally rejected on 24.10.2017, his challenge to the rejection was dealt with by this Court in its order dated 09.01.2018 passed in W.P.(MD) No.22516 of 2017. The Madras High Court was of the view that suppression of facts will not automatically disentitle a candidate for consideration but a reformative principle could be adopted and the lapse could be condoned. For such a finding, the Madras High Court had placed reliance of Avtar Singh's case, (cited supra) and thereby remanded back the matter to the third respondent. The relevant portion of the order reads thus:-
“.... In the present batch of cases, this Court finds that the orders denying the appointment by invoking the said rule have been passed in a stereo typed manner. The parameters laid down in Avtar 5/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 Singh Vs. Union of India and Others reported in 2016 (8) SCC 471 were not applied. The decision in Avtar Singh Vs. Union of India and Others was rendered on 21.07.2016. In none of the orders impugned in the present batch of writ petitions, the aforesaid decision of the Hon'ble Supreme Court has been referred to. As already pointed out, the Hon'ble Supreme Court specifically observed that even if there is suppression in the case of a deserving candidate, it is even open to the employer to apply the reformative principle and condone the lapse. Therefore, this Court is of the view that the order impugned in this writ petition will have to be set aside and the matter remitted to the file of the second respondent for fresh consideration.”
9. The aforesaid order was founded on the principles laid down in the Avtar Singh's case, (cited supra) and the parameters laid down therein by the Hon'ble Supreme Court are as hereunder:-
“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 6/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 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 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 recourse 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 7/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 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 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 8/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 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. 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.”
10. Apparently, the Madras High Court had taken into consideration the guideline laid down in paragraph 38.4.1, in particular, 9/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 and therefore, had directed the third respondent to reconsider the case of the petitioner. In this background, the third respondent while passing the impugned order, dated 24.10.2019 had referred to paragraph 38.1. alone and by placing reliance on Rules 13 & 14 in the Special Rules of Tamil Nadu Service Rules had once again rejected the petitioner's request. As such, the very purpose for which this Court had earlier remanded the matter back to the third respondent for reconsideration, was to explore the possibility of ignoring the suppression of facts by the petitioner in his application and condoning the lapses. This exercise has not been carried out by the third respondent in the impugned order.
11. On remand, the points for consideration which the third respondent ought to have considered by applying the guidelines in Avtar Singh's case (cited supra), are as follows:-
(a) Whether the criminal case in which the petitioner was implicated is trivial in nature or not?
(b) Whether the offence for which the petitioner was accused of, is a petty offence or not?
(c) Had the petitioner disclosed his implication in the criminal case, which came to be closed under Section 468
(ii) of Cr.P.C., would have rendered him unfit for the post 10/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 or not? and
(d) Whether the suppression of material facts or false information could be ignored and the lapse condoned?
12. The aforesaid points for consideration are some of the broad guidelines laid down by the Hon'ble Apex Court. In the present case, instead of addressing these points of consideration ,the third respondent had chosen to adopt paragraph 38.1. of Avtar Singh's case (cited supra) alone, which was not the intention of this Court, when the matter came to be remanded at the earlier point of time.
13. Having failed to do so, it would not now be appropriate to once again direct the third respondent to reconsider in these lines, but rather, this Court is of the view that such a task could be exercised by this Court itself.
14. The petitioner was arrayed as an accused in Crime No.10 of 2016 by the Keelathooval Police alleging that he had committed certain acts which are the offence punishable under Section 12 of the Tamil Nadu Gaming Act, 1930. Apart from the registration of the F.I.R., 11/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 investigation was not completed and the F.I.R itself came to be closed through orders of the learned Judicial Magistrate, Mudukulathur, passed under Section 468(ii) of Cr.P.C. The offence for which the petitioner was alleged to have committed, is punishable with imprisonment not exceeding three months or fine not exceeding Rs.100/- Such an offence can be termed as a petty offence by drawing analogy from section 206 of Cr.P.C as well as Section 2(45) of the Juvenile Justice (Care and Protection of Children) Act, 2015.
15. In identical circumstances, wherein candidates, who were similarly placed like the petitioner herein, had challenged their non- selection before this Court in a batch of writ petitions in W.P.(MD) Nos. 474 of 2013... etc, in the case of S.R.Sujith and others vs. the Director General of Police and Others, this Court had considered the offence under the Tamil Nadu Gaming Act to be a petty offence, the relevant portion of the said order reads as follows:-
“14. On going through the factual aspects of each case, the cases can be categorised as follows:-
1.Petitioners disclosing the involvement, either in the application or during police verification;12/20
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2.At the time of submitting application, no case was pending and the case was registered thereafter;
3.Though, the cases were registered, subsequently the names of the petitioners were omitted from the charge sheet or the cases were referred to as 'Mistake of Fact';
4.The petitioners involvement in petty offences like section 75 of the Tamil Nadu City Police Act and section 12 of the Tamil Nadu Gaming Act;
5.The petitioners were juvenile at the time of commission of the offence; and
6.The petitioners were initially acquitted by giving benefit of doubt, as the witnesses turned hostile and latter, in revision the petitioners were honourably acquitted and they have not mentioned about the criminal case, either in the application form or in the verification roll.
....
32.Further, there is a saying 'every saint had a past, every thief has a future. Further, the petitioners are involved in the offences under sections 323, 324, 506(i), 506(ii) & 325 IPC and such offences cannot be held to be serious and some of the petitioners were fined under the provisions of the Tamil Nadu City Police Act and the Tamil Nadu Gaming Act. The offences are only petty in 13/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 nature and as held by the Hon'ble Supreme Court, in the judgement reported in Pawan Kumar's case, those offences cannot be brought under 'Moral Turpitude' and when those offences cannot be brought under the caption 'Moral Turpitude', it cannot be advisable to hold that the suppression of those particulars in the application form a serious one.”
16. While making the aforesaid observations, the Madras High Court had placed reliance on the decision of the Hon'ble Supreme Court in Pawan Kumar vs. State of Haryana and others reported in AIR 1996 SC 3300 wherein it was held that conviction for moral turpitude is only a summary conviction and therefore should not be treated as a bar for entering or retention in Government Service. Such a finding was rendered in the following manner:
“14. Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people through out the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost along them being traffic, municipal and other petty offences under the Indian 14/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or in experienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.”
17. The decision rendered by this Court in S.R.Sujith's case (cited supra) was also followed by another learned Single Judge of the Madras High Court in the case of P.Mohan vs. Director General of Police and others in W.P.(MD) No.16771 of 2012 which also pertains to selection of Grade II Police Constables.
18. By applying the ratio laid down in the aforesaid decisions, there cannot be any iota of doubt that the offence in which the petitioner was alleged to have committed, is a petty offence. 15/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020
19. Apart from being a petty offence, the criminal case itself could be termed to be trivial in nature, for the reason that apart from naming the petitioner in the criminal case as an accused, the investigation was not completed and the case itself was closed under Section 468(ii) of Cr.P.C. for non-filing of the final report.
20. This leads to the next question as to whether such a trivial case for a petty offence would have rendered the petitioner unfit for the post? When the petitioner was alleged to have committed a petty offence under the Tamil Nadu Gaming Act, 1930, which came to be closed without conclusion of the investigation, the corollary that follows would be that the petitioner is deemed to be innocent. While that being so, it cannot be claimed that a mere implication of the petitioner in a criminal case for a petty offence, would render him unfit for the post.
21. It is no doubt true that in order to ignore the suppression of fact by the petitioner and condoning the lapse, the discretion is vested with the third respondent. The Hon'ble Supreme Court in Dinesh Kumar 16/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 Kashyap and others vs. South East Central Railway and others reported in (2019) 12 SCC 798, while dealing with the case relating to denial of appointment of candidates held that, the Courts normally would not interfere with the discretion of not to fill up the post, but further held that such a discretionary exercise by the Authorities, should not be arbitrary, capricious or whimsical.
22. However, such a discretion required to be exercised judiciously and in an impartial manner by applying the guideline stipulated in Avtar Singh's case (cited supra), which aspect was not exercised in the present case. As a matter of fact, the third respondent had totally ignored to even address these issues in the impugned order and therefore, this Court is of the view that the petitioner, who had passed the written examination as well as qualified himself in the physical efficiency test, as well as in the medical test, should not be deprived for selection.
23. In the light of the above observations, the impugned order dated 24.10.2019 is hereby quashed and consequently, there will be direction to the third respondent herein, to declare the petitioner of 17/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020 having been selected to the post of Grade-II Police Constable in the Tamil Nadu Special Police Youth Brigade (TSPYB) and issue appropriate appointment order, atleast within a period of four weeks from the date of receipt of a copy of this order.
24. Accordingly, the writ petition stands thus allowed. However, there shall be no order as to costs. Consequently, connected W.M.P.(MD) No.7682 of 2020 is closed.
19.01.2021
Note: Issue Order Copy on 20.01.2021
Index : Yes
Internet : Yes
sts
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate / litigant concerned. To:
1) The Director General of Police, O/o Director General of Police, Dr.Radhakrishnan Road, Mylapore, Chennai 600 004 18/20 http://www.judis.nic.in W.P.(MD)No.8285 of 2020
2) The Chairman, Tamil Nadu Uniformed Services Recruitment Board, Old Commissioner of Police Office Campus, Pantheon Road, Egmore, Chennai 600 008
3) The Superintendent of Police, O/o Superintendent of Police, Ramanathapuram District.19/20
http://www.judis.nic.in W.P.(MD)No.8285 of 2020 M.S.RAMESH, J., sts Order made in W.P.(MD)No.8285 of 2020 Dated:
19.01.2021 20/20 http://www.judis.nic.in