Madras High Court
S.Kirubakar vs The Director General Of Police on 21 March, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21..03..2014 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.5053 of 2014 and M.P.No.1 of 2014 and W.P.No.6484 of 2014 S.Kirubakar ... Petitioner in W.P.No.5053 of 2014 - Versus - 1.The Director General of Police, Dr.Radhakrishnan Salai, Mylapore, Chennai 600 004. 2.The Chairman, Uniform Services Selection Board, P.T.Lee Chengalvaraya Nayakkar Building, No.907, II Floor, Anna Salai, Chennai 600 002. 3.The Superintendent of Police, Nethimedu, Salem District 636 002. ... Respondents in W.P.No.5053 of 2014 Prayer in W.P.No.5053 of 2014:- Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus directing the respondents to consider the petitioner for appointment for the post of Constable in Tamil Nadu Special Police Youth Brigade without referring to FIR No.529 of 2013 on the file of Deevattipatti Police Station, which was subsequently closed as "Mistake of Fact". M.Damodharan ... Petitioner in W.P.N.6484 of 2014 - Versus - The State of Tamil Nadu, Rep. by the Commissioner, The office of the Commissioner of Police, Chennai Metropolitan Police, Vepery, Chennai 600 007. ... Respondent in W.P.No.6484 of 2014 Prayer in W.P.No.6484 of 2014:- Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus calling for the records of the impugned order dated 19.02.2014, passed by the respondent in Na.Ka.No.R&T(1)/150/93350/2013 and to quash the same as illegal and unconstitutional and consequently direct the respondent to re-appoint the petitioner in the Tamil Nadu Special Youth Police Force. For Petitioners : Mr.S.Anbazhagan for petitioner in W.P.No.5053 of 2014 : Mr.V.Vankatesh Kumar for petitioner in W.P.No.6484 of 2014 For Respondents : Mr.P.Sanjay Gandhi, Additional Government Pleader for sole respondent in W.P.No.5053 of 2014 and respondents 1 to 3 in W.P.No.6484 of 2014 COMMON ORDER
India lives in Villages said, Mahatma Gandhiji. The vast majority of the youth of this country from rural and poor family background continue to find it extremely difficult to compete for public employment with the youth who have urban and affluent family background. Most of the youth have an eye for small Government jobs, like elementary school teachers, police constables, office assistants, watchmen, masalchis, gardeners, etc. In this country, it is not uncommon, mostly in the case of poor, that trivial incidents are blown out of proportion and cases are registered by the police. In Lalita Kumari v. State of U.P. and others, 2013 (6) CTC 353, the Hon'ble Supreme Court has directed that in the event, the allegations in the information prima facie make out cognizable offences, the police officer has no option but to register a case as it is his statutory obligation. It also happens that fearing for action against them, the police officers simply register FIRs as and when any information is laid alleging commission of cognizable offences, dehors the fact as to whether the information is reliable or credible. It is an undeniable fact that in this country we find that the laws relating to dowry harassment and domestic violence are often misused by naming the entire family members as accused in FIRs. Disputes among family members, disputes among neighbours and domestic disputes among close relatives, which are purely either civil or trivial in nature, are given the colour of crimes, taken to the police stations and cases are registered. It is our experience that even cases where borrowers of money under promissory notes, for failure to repay the amount as promised, are booked under criminal law by the police for cheating falling under section 420 of IPC. A man can be booked for the offence of overspeeding a motor vehicle and he may even admit the offence. A man may be booked for parking his motor vehicle in a No Parking area inadvertently. In this scenario, Are we to say that the youth, who are involved in these kinds of cases, are to be shown the door when they seek public employment? Are we to say that they are criminals and so, unfit for public employment? Are we to say that these youth are of bad character compelling in public interest and for public good to be denied public service? After the concept of plea bargaining has gained statutory recognition under the criminal law, in large number of cases involving petty offences, the parties enter into plea bargaining and pay a paltry sum as fine. Are we to say that they are of bad characters disentitled for public employment? Statutorily, some offences are treated as compoundable going by the nature of the ofences. In the cases ended in compromise, Are we to say that the young men involved in the said cases are unfit for public employment? These are the vexed questions often knocking at the doors of the Higher Judiciary.
2. Life is so precious. The right to live a dignified life is a human right recognized as a fundamental right under Article 21 of the Constitution of India. Characterising these kinds of youth as unfit for public employment, it is often argued, would amount to stigmatising them thereby infringing upon their precious right to life. Is it only to speak from public platforms that correctional measures are to be taken to bring back the youth showing deviance to the mainstream of the society? The Executive has not declared it's policy to my knowledge on these cardinal questions of public importance. There is no policy document put in place so far. Post independence, on one occasion, in the All India Seminar on Correctional Service held in New Delhi in March 1969, it was deliberated to lay down guidelines pertaining to the problem of rehabilitation of ex-convicts with emphasis on the need for their employment under the Government. But, the outcome of the said seminar has not crystallised into any policy document. So long as such policy is not put in place, both by the Central Government and the respective State Government, litigations on these vexed questions will not vanish. Instead, it will be showing only increasing trend. In this situation often, it becomes necessary for courts to ponder over these questions. With regret and with great respect to the institution to which I am a part, I notice, the legal position is so fluid and answers to these questions could be, in very many cases, seen as Judge Centric. On the very same questions the petitioners are now before this court.
3. These are the cases of two poor men who have been deprived of employment as "members of the Youth Brigade" constituted under Section 3 of the Tamil Nadu Special Police Youth Brigade Act, 2013 on the ground that they were involved in criminal cases. Are we to agree with the respondents that these petitioners do not possess good character and so they are unfit to be appointed as Youth Brigades? With this prelude, let us go into the issues.
4. The Tamil Nadu Special Police Youth Brigade Act, 2013 [in short "the Youth Brigade Act"] was brought into force to provide for the constitution of a separate Special Police Youth Brigade in the State of Tamil Nadu to attend the peripheral works entrusted to trained Police personnel. As per Section 3 of the Youth Brigade Act, there shall be a separate Police Youth Brigade in the State of Tamil Nadu called the Tamil Nadu Special Police Youth Brigade. The terms and conditions of services of Youth Brigade shall be such as may be prescribed. Section 4 of Youth Brigade Act deals with the functions and duties of the Youth Brigade. They are, (a) to drive the vehicles of the police Department; (b) to deliver tapal and Data Entry; (c) to maintain, police quarters; and (d) to assist the police force in prevention of loss of life of accident victims.
5. The selection of the members of the Youth Brigade is dealt with in Section 6 of the Youth Brigade Act which states as follows:-
6. Selection of members of Youth Brigade - (1) The members of youth brigade shall be selected by the authorised officer referred to in section 5, in such manner as may be prescribed.
(2) No person shall be selected as a member of the youth brigade unless he possess such qualifications as may be prescribed.
(3) Every member of the youth brigade shall be paid such honorarium as may be prescribed.
[Emphasis supplied]
6. Section 12 of the Youth Brigade Act speaks of the power of the State Government to make rules for carrying out all or any of the purposes of the Youth Brigade Act. Sub-section (2) envisages that in particular and without prejudice to the generality of the foregoing power, such Rules may provide for all or any of the following matters, namely:-
(a) the terms and conditions of service of the members of the Tamil Nadu Special Police Youth Brigade under section 3;
(b) the manner in which a member of youth brigade shall be selected;
(c) the qualifications for selection as a member of youth brigade;
(d) the honorarium to be paid to a member of youth brigade;
(e) the authority to be prescribed under section 10;
(f) the areas of training and the duration of such training;
(g) any other matter which is required to be or may be prescribed.
[Emphasis supplied]
7. In exercise of the powers conferred under Section 12 of the Youth Brigade Act, the Government of Tamil Nadu has made the rules known as the "Tamil Nadu Special Police Youth Brigade Rules, 2013". [Hereinafter referred to as "the Youth Brigade Rules"]. Rule 3 speaks of the qualification for appointment to the Youth Brigade which reads as follows:-
3. Qualification for appointment to the Youth Brigade. No person shall be eligible for appointment as a member of the Youth Brigade, unless he
(a) has passed the 10th standard examination;
(b) is of good character and is physically fit;
(c) is a resident of Tamil Nadu; and
(d) has completed 18 years of age and has not completed 25 years of age as on 1st January of the year in which the selection for appointment is made:
Provided that for the appointment of a candidate who is a member of a Scheduled Caste / Scheduled Tribe, the upper age limit shall be 30 years:
Provided also that for the appointment of a candidate who is a member of a Backward Class or Most Backward Class or Denotified Communities, the upper age limit shall be 27 years.
[Emphasis supplied]
8. Rule 4 of the Youth Brigade Rules speaks of the method of selection which reads as follows:-
4. Method of Selection.(1) The members of the Youth Brigade shall be selected by the authorised officer concerned through an open advertisement to be notified by the authorised officer concerned.
(2) The members of the Youth Brigade shall be selected through an objective type of examination conducted by the Tamil Nadu Uniformed Services Recruitment Board in accordance with the syllabus and standard specified in Annexure I to these Rules.
(3) The short listed candidates based on their performance in the objective type examination will be called for Physical Measurement and Physical Endurance Test of a qualifying nature in the events specified in Annexure II to these rules.
(4) Every candidate must possess the following minimum standards of physical measurements:-
Measurement General /SC and ST Height 170 cms / 167 cms Chest 81 cm with expansion of 5 cm.
(5) The Communal reservation followed in appointments in the services under the State as per the law in force shall apply for appointment to the Youth Brigade.
(6) There shall be no special reservation such as ex-servicemen, differently abled persons, sports persons etc., for appointment to Youth Brigade.
9. So far as the Madras City is concerned, the Deputy Commissioner of Police is the authorised officer in terms of Section 5 of the Youth Brigade Act who is empowered to select a member of the Youth Brigade. As we have noticed in Rule 4 of the Youth Brigade Rules, the Tamil Nadu Uniformed Services Recruitment Board is the authority to select the candidates for appointment as members of the Youth Brigade.
10. The brief facts of the case in W.P.No.5053 of 2014 are as follows:- The Chairman, Tamil Nadu Uniformed Services Selection Board, Chennai, called for applications from the eligible candidates and conducted written examination. The petitioner in W.P.No.5053 of 2014 participated in the said examination. His Registration No. is 1402678. He secured more than the required cut off marks and, therefore, he was called for physical measurement and physical endurance test. The petitioner participated in the same and passed the said physical measurement and physical endurance test as well, but, he was not selected. The selected candidates were called to attend the training which commenced on 12.02.2014.
11. When the petitioner enquired about the same at the office of the respondent, he was informed that his candidature had been rejected because he was involved in a criminal case in Crime No.529 of 2013 on the file of Deevattipatti Police Station in Salem District. The details of the said case run as follows:-
12. The petitioner's father Sri.Sekar had made a complaint to the Sub Inspector of Police of Deevattipatti Police Station on 14.11.2013 alleging that on 09.10.2013, in a domestic quarrel between him and the petitioner, at about 06.30 p.m., the petitioner attacked him with iron rod and caused simple injuries [contusions]. But, he did not go either to a Doctor for treatment nor to the Police Station with a complaint forthwith. He had chosen to lay information after more than a month, that was, on 14.11.2013. The Sub Inspector of Police, acting on the said information, registered a case for alleged offences u/s.294(b) and 324 of IPC in Crime No.529 of 2013. The Inspector of Police took up the case for investigation, investigated the case thoroughly and ultimately he found that it was a false case. He, therefore, submitted a final report to the learned Judicial Magistrate, Omalur, under referred charge sheet No.4 of 2014 thereby reporting that the case had been referred to as "Mistake of Fact". The learned Judicial Magistrate, by order dated 04.02.2014, accepted the same and thus, the learned Magistrate closed the matter. The said judicial order passed by the learned Judicial Magistrate, Omalur, has become final as there was no further challenge made to the same by anybody. Thus the criminal case against the petitioner was once for all closed as false on 04.02.2014 itself.
13. According to the respondent, the petitioner was not selected because of his involvement in the above criminal case. Admittedly, as on the date when the petitioner submitted his application for the post, there had been no criminal case pending against him. Thus, according to the petitioner, there was no suppression of any fact on the part of the petitioner and that he does not suffer from any disqualification.
14. The brief facts of the case in W.P.No.6484 of 2014 are as follows:-
The petitioner participated in the above said examination. His Registration No. is 0102768. He had successfully emerged in the written examination. Thereafter, he participated in the further selection process. He was selected by the Tamil Nadu Uniformed Services Selection Board. Subsequently, the respondent herein, who is the authorised officer in terms of Section 6 of the Youth Brigade Act issued an appointment order to the petitioner by is proceedings in Na.Ka.No.150/93350/R&T(1)/2013 dated NilFeb,2014. Accordingly, he was undergoing training from 12.02.2014. While so, the respondent by his proceedings in Na.Ka.No.R&T(1)/150/9350/2013 dated Nil.02.2014 cancelled the appointment order issued to the petitioner on the ground that he was involved in a criminal case in Crime No.271 of 2009 on the file of Manali Pudhu Nagar Police Station registered for offences u/s.341, 294(b), 323 and 506(i) of IPC and he had suppressed the same.
15. The facts of the above criminal case run as follows:-
On 08.11.2009 at about 10.00 a.m., the de facto complainant one Sri.Prabakaran was intercepted by the petitioner, abused and attacked with hands on his face and also criminally intimidated. At about 10.00 p.m. Sri.Prabakaran laid information, upon which, the Sub Inspector of Police registered a case in Crime No.271 of 2009 for offence u/s.294(b), 323 and 506(i) of IPC. On completing the investigation, the Sub Inspector of Police, filed a final report against the petitioner before the learned Judicial Magistrate No.II, Ponneri and on transfer, the same was tried by the Special Judicial Magistrate No.II, Ponneri in C.C.No.4 of 2011. The petitioner denied the charges. During the course of trial, the de facto complainant Sri.Prabakaran and one Mahendiran deposed to the facts as projected by the prosecution. One Mrs.Jaya who was cited as an eye-witness turned hostile. As many as 7 witnesses were examined in toto. Finally, the learned Special Judicial Magistrate, by order dated 23.08.2011 acquitted the petitioner. The said order of acquittal has become final.
16. Now, it is stated in the impugned order that the petitioner has suppressed the above said case in the Application submitted by him in Col.No.10. It is further alleged that as per the Police Standing Order No.432 dated 01.07.2013, for appointment in the police department, a candidate should not have involved in any criminal case and further he should have good character and antecedents. It is further stated in the impugned order that in the event, the candidate had been acquitted on the ground of benefit of doubt or the witnesses had turned hostile, still, he is not eligible for appointment. The impugned order further refers to the order passed by this court in W.P.No.38296 of 2005 on 28.02.2008 wherein, this court has stated that in the event the involvement in the criminal case has been suppressed by the candidate in the application, the application should be summarily rejected. For these reasons, according to the respondent, the appointment order of the petitioner was cancelled by means of the impugned order. It is this order, which the petitioner in W.P.No.6484 of 2014 challenges in this writ petition.
17. I have heard the learned counsel for the petitioners and the learned Additional Government Pleader for the respondent(s) in both the writ petitions and I have also perused the records carefully. Since the issues involved in these writ petitions are common, they were heard together and they are disposed of by this common order.
18. The whole gamut of the argument of the Additional Government Pleader is that the Tamil Nadu Uniformed Special Police Force is a disciplined force to which persons involved in criminal cases cannot be appointed. According to him, Tamil Nadu Special Police Youth Brigade is part of Unformed Police Force.
19. At the out set, I find it difficult to accept the said contention of the learned Additional Government Pleader that the Tamil Nadu Special Police Youth Brigade is a police force. So far as the State of Tamil Nadu is concerned, there are two enactments known as "The Tamil Nadu District Police Act, 1859" and "The Chennai City Police Act, 1888" under which police force has been reorganised. According to these Acts, the State Police Force shall be an efficient instrument for the prevention and detection of crimes. The preamble to The Tamil Nadu District Police Act, 1859 reads as follows:-
"WHEREAS it is expedient to make the police-force throughout the State of Tamil Nadu a more efficient instrument for the prevention and detection of crime, and to re-organize the police force. The terms "Superior Police, Subordinate Police, and General Police District have been defined in Section 1 of the Tamil Nadu District Police Act, 1859 as follows:-
Superior Police. - The expression superior police shall mean the Director General of Police, Inspectors-General of Police, Deputy Inspectors General of Police, District Superintendents of Police, Assistant Superintendent of Police and Deputy Superintendents of Police;
Subordinate Police.- The expression subordinate police shall mean all Police-Officers of and below the rank of an Inspector;
General Police District.- The expression General Police District shall embrace all Districts to which the operation of this Act shall be extended;
The operation of the said Act has been notified to all the Districts through out the State of Tamil Nadu, except , the City of Madras.
20. So far as the City of Madras is concerned, it is governed by The Chennai City Police Act, 1888. As per Section 3 [Interpretation Clause of the Act], the City of Chennai means, the area declared by the State Government, by notification, to be the City of Chennai. Section 9 of the said Act speaks of Constitution of Police-force which reads as follows:-
9. Constitution of Police-force.- For the City of Chennai, there shall be a Police-force which shall consist of such number of officers and men and shall be otherwise constituted in such manner as shall, from time to time, be ordered by the State Government.
Subject to the provisions of this Act, the pay and all other conditions of service of the members of the subordinate rank of the Police-force shall be, as such as may be determined by the State Government by Rules either prospectively or retrospectively:
Provided that the Rules made under this Section, shall not have retrospective effect from a date earlier than the 20th day of October 1971.
21. From the preamble of these two enactments and the definitions of various terms as referred to above, it is crystal clear that police force in the State of Tamil Nadu including the City of Madras has been established as more efficient instrument for the prevention and detection of crimes. As defined in Section 1 of The Tamil Nadu District Police Act, 1859 and Section 9 of The Chennai City Police Act, the police shall include all persons appointed under these Acts. Of course, it is an inclusive definition. Therefore, those persons appointed outside the scope of these two enactments can also be termed as police provided they have power of prevention and detection of crimes. In simple terms, they should be vested with the powers of police.
22. A cursory look into Section 4 of the Youth Brigade Act would go to show that the functions and duties of the Youth Brigade shall be (a) to drive the vehicles of the police Department; (b) to deliver tapal and Data Entry; (c) to maintain, police quarters; and (d) to assist the police force in prevention of loss of life of accident victims. This would clearly go to show that there is no police power vested with the members of the Youth Brigade as envisaged in Tamil Nadu District Police Act and The Madras City Police Act. Therefore, it is crystal clear that the Youth Brigades appointed under the Youth Brigade Act cannot be termed as "Police force" as defined in Section 1 of the Tamil Nadu District Police Act.
23. Rule 6 of the Youth Brigade Rules would also make it undoubtedly clear that the Youth Brigade does not form part of the Tamil Nadu Police Force at all. The said rule reads as follows:-
6. Absorption in the Tamil Nadu Police Force. Members of the Youth Brigade who have completed one year of service in the Youth Brigade and who have successfully completed training in all the areas will be eligible to appear at a common state-level examination to be conducted by the Tamil Nadu Uniformed Services Recruitment Board, separately. Successful candidates who qualify in that examination will be absorbed in the Tamil Nadu Police Force, based on merits.
[Emphasis supplied]
24. A plain reading of the above rule would obviate doubt, if any, that the Youth Brigade does not form part of the Tamil Nadu Police Force at all as the Youth Brigades are only eligible for participating in the State level examination to get selected and and absorbed in the Tamil Nadu Police Force provided they have gained the required qualification as enumerated therein.
25. In view of the above clear provisions of the Youth Brigade Act and Youth Brigade Rules, the Tamil Nadu Special Police Youth Brigade is not a Police Force. So, I hold that the Tamil Nadu District Police Act and the Tamil Nadu City Police Act, Tamil Nadu Police Standing Orders, various Government Orders, Administrative instructions, Executive Orders, Rules, Regulations, Circulars , etc., in respect of Tamil Nadu Police Force shall not be applicable to the Tamil Nadu Special Police Youth Brigade, since the Tamil Nadu Special Police Youth Brigade is neither a police force nor it forms part of the Tamil Nadu Police Force.
26. The learned Additional Government Pleader would refer to a number of judgements, more particularly, the judgement of a Full Bench of this Court in Manikandan v. Chairman T.N.Uniformed Services Recruitment Board - 2008 (2) CTC 97 in an attempt to substantiate his contention that an individual who is involved in a criminal case as embodied in Rule 14 (b)(iv) of The Tamil Nadu Special Police Subordinate Service Rules and in terms of the explanation appended to the said rule is not eligible for appointment as Youth Brigade. Secondly, he would submit that suppression of involvement in a criminal case, in the application form, will also amount to suppression of a material fact and that by itself shall be a ground to reject the candidature.
27. In this regard, let us now have a look into the Full Bench Judgement of this Court in Manikandan's case cited supra. A learned single judge of this court [Hon'ble Mr.Justice P.Jyothimani] found two conflicting judgements of two Division Benches one in P.Virabhagu v. Union of India, 2005(1) CTC 429 and other in K.Ram Prasad v. State of Tamil Nadu, W.P.N.21671 of 2005 and W.A.No.1963 of 2005 decided on 06.12.2005. Therefore, the learned Judge referred the following questions to a larger Bench.
i. Whether the acquittal or discharge of a person in a criminal case on benefit of doubt would amount to a stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation-1 of the Tamil Nadu Special Police Subordinate Rules?
ii. Whether the non-disclosure of involvement in a criminal case, which has ultimately ended in acquittal, but in some cases disclosed after acquittal, can be a ground for disqualifying the persons concerned from entering into the Government service? That is how, the Full Bench was constituted by the then Hon'ble Chief Justice. In answer to the above reference, the Full Bench held as follows:-
(a) that by virtue of Explanation 1 to clause (iv) of Rule 14 (b) of the Tamilnadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified; and
(b) that the failure of a person to disclose in the application form, either his involvement in a criminal case or the pendency of a criminal case against him, would entitle the appointing authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case.
28. After the above judgement in Manikandan's case, a learned single judge of this court [Hon'ble Mr.Justice Vinod K.Sharma] in a batch of writ petitions reported in in M.Vijaya Baskar vs. The Superintendent of Police, Dharmapuri and another - CDJ 2013 MHC 1921, after having taken note of the judgements of the Hon'ble Supreme Court in Jainendra Singh vs. State of U.P. and others 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC); Commissioner of Police and others vs. Sandeep Kumar (2011) 4 MLJ 1006 (SC); Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav (2003) 3 SCC 437; Ram Kumar vs. State of U.P. and others, 2011 (6) Supreme 23 and few other judgements of this court, held that the decision of the Full Bench in Manikandan's case cited supra is in conflict with the law laid down by the Hon'ble Supreme Court in Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ 1006 (SC). Therefore, the learned Judge held that it will be totally arbitrary and unfair to deny employment to an young man, who has been found guilty of a very minor offence, for which imposition of fine was considered as adequate punishment. Thereafter, yet another judge [Hon'ble Mr.Justice D.Hariparanthaman] in M.Mahendiran vs. Superintendent of Police - (2013) 6 MLJ 109, took the same view following the decision in a similar in M.Vijaya Baskar vs. The Superintendent of Police, Dharmapuri and another - CDJ 2013 MHC 1921. Yet another learned Judge [Hon'ble Mr.Justice R.S.Ramanathan] again considered the above issue in the light of the judgement in W.P.(MD) No.474 of 2013 batch, decided on 26.03.2013 took the view that until a larger bench of the Supreme Court decides the issue in Jainendra Singh v. State of U.P. 2012 (2) LLN 497 (SC) : 2012(7) MLJ 65 (SC) the Full Bench judgement of this Court in Manikandan's case cited supra cannot hold the field. Accordingly,t h e learned Judge set aside the orders denying employment as police constables. Despite these three judgements, since Tamil Nadu Uniformed Services Recruitment Board repeatedly took the view rejecting the candidatures of the candidates quoting Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Rules in W.P.No.8345 of 2011 [J.Alex Ponseelan v. The Director General of Police, Tamil Nadu and others, 2013 (6) CTC 423] I referred the matter to the Hon'ble Chief Justice to consider whether to constitute a larger bench to answer the following questions:-
(i) Whether the law laid down by the Full Bench of this Court in Manikandan vs. Chairman, T.N.Uniformed Services Recruitment Board - 2008 (2) CTC 97 holds the field or it needs to be over-ruled?
(ii)Whether Rule 14(b)(iv) together with Explanations 1 and 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?
29. This court is informed that accordingly the Hon'ble Chief Justice constituted a larger Bench of five Judges sitting in Madurai Bench of this Court to decide the above two questions. The Full Bench by a majority of four Judges by order dated 27.02.2014 upheld the view taken by the Full Bench in Manikandan's case, whereas the minority view was taken by Hon'ble Mr.Justice S.Tamilvanan, who has held that the above rule violates Articles 14, 16 and 21 of the Constitution of India. In view of the majority order on reference in J.Alex Ponseelan v. The Director General of Police, Tamil Nadu, Chennai, confirming the view taken in Manikandan's case by the Full Bench of this Court, an individual who has been acquitted on benefit of doubt or discharged in a criminal case, can still be considered disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified and that the failure of the person to disclose in the application form either his involvement in the criminal case or pendency of the criminal case against him, would entitle the appointing authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case. It is on this case, the learned Additional Government Pleader places much reliance and contends that in the cases on hand, since the petitioners were involved in criminal cases, though in W.P.No.5053 of 2014, the case against the petitioner was referred as "mistake of fact" and though in W.P.No.6484 of 2014, the petitioner was acquitted, they are still disqualified for being appointed as Youth Brigades under the Tamil Nadu Special Police Youth Brigade Act, 2013 as per the law laid down by the larger Bench in J.Alex Ponseelan's case.
30. In my considered opinion, this argument is wholly baseless and unacceptable to the present cases. As I have already pointed out, the entire argument is founded on the mistaken impression that the Tamil Nadu Special Police Youth Brigade is a police force. But, it is not so. I have already concluded herein above that the Tamil Nadu Special Police Youth Brigade is not a police force as defined in Tamil Nadu District Police Act or in terms of the Tamil Nadu City Police Act. Therefore, Tamil Nadu Special Police Subordinate Services Rules, 1978 cannot be applied to the Tamil Nadu Special Police Youth Brigade which is a separate force constituted under the statute not for the purpose of policing. Since all the above judgements relied on by the learned Additional Government Pleader including J.Alex Ponseelan's case relate to a police force for whom the Tamil Nadu Special Police Subordinate Service Rules are applicable, these judgements, except on the aspect of concealment of a material fact are not applicable to the Tamil Nadu Special Police youth Brigades. Therefore, the argument of the learned Additional Government Pleader relying on Rule 14(b)(iv) of The Tamil Nadu Special Police Subordinate Rules that the petitioners are disqualified for being appointed as members of the youth police brigade cannot be accepted.
31. Now, we have to examine whether the petitioners suffer from any disqualification as envisaged under the Tamil Nadu Special Police Youth Brigade Act, 2013 and the Tamil Nadu Special Police Youth Brigade Rules, 2013. As we have already extracted , Section 6 of the Youth Brigade Act and Rule 7 of the Youth Brigade Rules are relevant for the said purpose. Section 6(2) states that no person shall be selected as a member of the youth brigade unless he possesses such qualifications as may be prescribed. Except this provision, there is no other provision in the Act which speaks of either qualification or disqualification. Therefore, we have to fall back only on Rule 3 of the Youth Brigade Rules which speaks of qualification. Precisely, Rule 3(b) mandates that the candidate is of good character and is physically fit. In other words, according to the said rule, if a person does not possess good character, he is disqualified for being appointed. It needs to be underscored that there is no rule analogous to Rule 14 (b)(iv) of the Tamil Nadu Special Police Subordinate Services Rules, 1978 in the Youth Brigade Rules. Therefore, mere involvement in a criminal case cannot ipso facto be a ground to disqualify a candidate in a mechanical fashion for being appointed as a member of the Tamil Nadu Special Police Youth Brigade as in the case of Tamil Nadu Police Force. However, as per Rule 3 while examining as to whether the candidate possesses good character, his involvement in the criminal case shall also be taken into account.
32. Now, for the purpose of assessing the character of an individual, the involvement in criminal cases can be classified broadly as under:-
(a) A criminal case is pending investigation against the candidate;
(b) A criminal case registered, investigated and referred to as "Mistake of Fact" and accepted by the court of competent jurisdiction;
(c) In the criminal case the accused has been discharged holding that there were no grounds to proceed further;
(d) In the criminal case the individual has been acquitted. Such acquittal may be due to the fact that witnesses have turned hostile or by giving benefit of doubt or honourably.
33. On this aspect, we may have a look into few judgements of the Hon'ble Supreme Court. In Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ 1006 (SC), the respondent therein had applied for the post of Head Constable governed by the Delhi Police Service. Admittedly, he was involved in a criminal case for offence u/s.325 r/w 34 of IPC. It was sequel to a family dispute. The accused therein reached a compromise with the victim party and the offence was compounded and as a result, he was acquitted. But, in the application which he made for the post of police constable, he mentioned "No" as against Col.No.12 of the application which reads as follows:-
"12 (a) Have you ever been arrested, prosecuted kept under detention or bound down/fined, convicted by a Court of law for any offence debarred/disqualified by any Public Service Commission from appearing at its examination/selection or debarred from any Examination, rusticated by any University or any other education authority/Institution.
A show cause notice was issued to him as to why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the above said criminal case and had made a wrong statement in his application. Accordingly, he submitted an explanation. Ultimately, he was rejected. After exhausting all remedies, he took up the matter to the Delhi High Court which in turn set aside the order of cancellation. The Commissioner of Police took up the matter to the Hon'ble Supreme Court.
34. In paragraphs 10 to 13 of the said judgement, the Hon'ble Supreme Court has held as follows:-
10. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
The modern approach should be to reform a person instead of branding him as a criminal all his life.
We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. [ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ]
12. In our opinion, we should display the same wisdom as displayed by Lord Denning.
As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
13. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
35. In yet another case in Ram Kumar v. State of U.P., 2011 (6) CTC 440, the Hon'ble Supreme Court had to examine the very same vexed issue. In that case, the appellant was appointed as a police constable and later on, the said appointment was cancelled for his act of concealment and suppression of fact about his involvement in the criminal case in the application form. In that case, the Hon'ble Supreme Court had to consider the rule relating to character of a candidate for appointment , analogous to Rule 3 (b) of the Tamil Nadu Special Police Youth Brigade Rules, 2013. The said rule of Government Uttar Pradesh reads as follows:-
"The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the Appointing Authority to satisfy itself on this point."
36. Having considered the above rule, in para 7 of the said judgement, the Hon'ble Supreme Court has made the following observation:-
"7. .......It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point. "
37. In that case , the appellant was prosecuted for offences u/s.324, 323 and 504 of IPC. He was later on acquitted by the criminal court. While considering the issue whether the involvement in the criminal case which ended in acquittal will amount to bad character, the Hon'ble Supreme Court in paras 10 and 11has held as follows:-
10. In Kendriya Vidayala Sangathan and others v. Ram Ratan Yadav (supra) relied on by the respondents, a criminal case had been registered under Sections 323, 341, 294, 506-B read with Section 34 IPC and was pending against the respondent in that case and the respondent had suppressed this material in the attestation form. The respondent, however, contended that the criminal case was subsequently withdrawn and the offences in which the respondent was alleged to have been involved were also not of serious nature. On these facts, this Court held that the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya and he could not be suitable for appointment as the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age and if the authorities had dismissed him from service for suppressing material information in the attestation form, the decision of the authorities could not be interfered with by the High Court. The facts of the case in Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav (supra) are therefore materially different from the facts of the present case and the decision does not squarely cover the case of the appellant as has been held by the High Court.
11. For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service.
38. Subsequently, the above cases were all cited before yet another Division Bench of the Supreme Court on the very same issue in Jainendra Singh vs. State of U.P. and others - 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC): 2012 (7) MLJ 68 SC. Since the said Division Bench noticed conflicting views taken on the issue of suppression of material facts among various judgements, the Division Bench thought it fit to refer the issue to a larger bench. In para 31 of the judgement, the Division Bench of the Hon'ble Supreme Court has narrated the various cardinal principles on the issues as follows:-
(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.
39. Very recently, yet another Division Bench of the Hon'ble Supreme Court in Commissioner of Police v. Mehar Singh, (2013) 7 SCC 685 had again considered the question of antecedents/character in terms of Delhi Police Rules. In that case, the respondent Mehar Singh had applied for the post of constable (male). Before that he was an accused in a criminal case registered for offences u/s.323, 341, 427 and 147 of IPC . On accepting the compounding petition in terms of Section 320 of Cr.P.C., the criminal court acquitted him from the charges under Section 323, 341 an 427 of IPC and acquitted him from the charge u/s.147 of IPC for want of evidence. Sri.Mehar Singh had disclosed in his application about the above criminal case that he was acquitted. He was provisionally selected subject to verification of character and antecedents. The Screening Committee in the circumstances did not recommend his case for appointment to the post of constable. Accordingly, his candidature was cancelled. This issue was examined by the Hon'ble Supreme Court. Before this Bench, the reference made in Jainendra Singh vs. State of U.P. And others - 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC) : 2012 (8) SCC 748 was cited. Irrespective of the said reference, in para 17 the Hon'ble Supreme Court held as follows:-
17. Before we deal with the rival submissions, it is necessary to refer to the judgment of this Court in Jainendra Singh v. State of Uttar Pradesh, (2012) 8 SCC 748. In that case the appellant had applied for the post of constable and was selected for the same. He had suppressed the fact that a criminal case was registered against him. Subsequently the said fact came to light and his appointment was terminated. Thereafter, he was acquitted in the criminal case. The question which fell for consideration of this Court was whether, after a person is appointed to a post in a disciplined force, it comes to light that he had suppressed the fact that he was involved in a criminal case his appointment can be terminated on the ground of suppression of material facts. Noticing conflicting decisions of this Court on this point and also the fact that different yardsticks are being applied in the matter of grant of relief, this Court formulated issues and referred them to a larger bench. Since all the formulated issues are premised on suppression of facts and since in this case there is no suppression of facts it is not necessary for us to defer the judgment of this case till the reference is answered by a larger Bench. Further holding that there was no suppression of facts by Mehar Singh and since the above reference in Jainendra Singh's case cited supra is only in respect of suppression of facts, the Hon'ble Supreme Court went on to examine the question whether the involvement of Mehar Singh in the above criminal case and his acquittal would amount to bad character and bad antecedent.
40. After having considered the relevant aspects, the Supreme Court held in para 23 to 26 as follows:-
23. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such persons involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force.
24. We find no substance in the contention that by cancelling the respondents 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, AIR 1964 SC 787 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 rbi v. Bhopal Singh Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619 where in somewhat similar fact situation, this Court upheld a banks 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 Code or the 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 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.
41. Ultimately, while considering the case of Mehar Singh in para 33 applying the above principle, the Hob'ble Supreme Court has held as follows:-
33. So far as respondent - Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that.
42. A Division Bench of Delhi High Court in Commissioner of Police v. Narender Kumar Singh [W.P.No.8499 of 2011 by order dated 13.02.2013] considered Mehar Singh's case and many other judgements cited supra. In paragraphs 30 & 31, the Delhi High Court has held as follows:-
30. The aforesaid view would hold good even when a person has to be considered for employment and pertaining to heinous offences even if the person has been acquitted, would not mean that the person is of good character. We highlight that a person being acquitted at a criminal trial may not necessarily mean that the person is innocent. It would only mean that the prosecution could not muster sufficient and credible evidence to sustain a conviction. In today"s environment where witnesses are suborned and hence turned hostile, one has to be careful. Thus, the fact of mere acquittal by itself may not be relevant and the background under which an acquittal took place may also become relevant for the reason we are not concerned with the consequence of a man being acquitted but are concerned on the subject of character verification. But at the same time the circumstance under which the complaint was made and who was the complainant becomes important, for the reason in India we find that disputes between neighbours relating to land are blown out of proportion in nearly every case and all adult members of the opposite family are roped in. In the field of domestic law, we find the dowry harassment laws being misused by the offending spouse naming each and every adult family member of her husband. Experience shows that when tempers cool and good sense prevails, the exaggerated versions are withdrawn. This is the fate suffered by Narender Kumar Singh who was named as an accused along with all his family members in FIR No.36/2010 filed by his estranged sister-in-law and unfortunately he was WP(C) 8499, 8142, 8807/2011 & 2069&5140/2012 Page 14 of 18 also named as an accused along with all other family members in FIR No.152A/2008 which pertained to a fight amongst neighbours and in which all his family members were named as accused. Both complaints were withdrawn upon a settlement. Similar is the fate of Hawa Singh. Even he was a victim of a trivial dispute involving neighbours. He and all male family members were named as accused. Tempers cooled. The dispute got settled. All were acquitted. The same is the fate of Pravesh Kumar and Praveen Kumar who were named as accused along with all other male family members in a petty dispute pertaining to land with neighbours.
31. We are not influenced by the fact that the said four young men were ultimately acquitted or discharged for the reason, the acquittal or discharge was the result of a compromise, but certainly would be influenced by the fact that the complaints would show trivial incidents being blown out of proportion, and this is at the core of what needs to be appreciated. If one can see through and find out that trivial incidents got exaggerated when quarrels took place amongst neighbours and the heat of the passion led to FIRs being registered, no criminality of a kind which justifies public employment being denied attaches to the stated wrong committed; assuming that the wrong was committed.
43. A complete survey of the above judgements would make it clear that there were two aspects dealt with in these judgements. The first one is suppression of the involvement of the candidate in a criminal case while submitting his application as against the column earmarked for the same and the other one is in respect of character of the candidate.
44. The question whether mere suppression of involvement in a criminal case in the application submitted will disqualify the candidate concerned is now under examination of a larger Bench on reference in Jainendra Singh vs. State of U.P. And others - 2012 (5) Supreme 215 : 2012 (3) LLN 497 (SC) before the Supreme Court. Therefore, this court cannot venture to answer the said question. At the same time, it needs to be seen that the petitioner in W.P.No.5053 of 2014 is not guilty of suppression of material fact relating to his involvement in the criminal case. There was no criminal case pending against him at all as on the date of his application. Admittedly, the written examination itself was held on 10.11.2013 whereas the FIR was registered only on 14.11.2013. Therefore, in Col.No.10, where it was asked as to whether had he ever been concerned in any criminal case as defendant, he answered in the negative. Admittedly, the criminal case came to be registered only on 14.11.2013. Therefore, the petitioner in W.P.No.5053 of 2014 has not suppressed any material fact relating to his character.
45. Now turning to W.P.No.6484 of 2014, he submitted Application on 24.09.2013. As against Col.No.10, where it was asked as to whether had he ever been concerned in any criminal case as defendant, he answered in the negative. But, the fact remains that a case in Crime No.271 of 2009 was registered on the file of Manali Pudhu Nagar Police Station and in conclusion of the same, a police report was filed against the petitioner before the learned Judicial Magistrate No.II, Ponneri. The same was thereafter, transferred to the file of the learned Special Judicial Magistrate No.II, Ponneri. As against the petitioner, charges were framed u/s.341, 294(b), 352 and 506(i) of IPC. The petitioner participated in the trial. The learned Special Judicial Magistrate, by order dated 23.08.2011 acquitted him of all the charges. Thus, the petitioner was well aware of the fact that he was an accused in the said criminal case. But, still, deliberately, he has suppressed the same in Col.No.10 of the application. Thus, the petitioner is guilty of suppression of a material fact and, therefore, as held in Mehar Singh's case, he is not eligible for appointment as Youth Brigade.
46. Turning to the second aspect as to whether the involvement of these petitioners in the criminal cases will tantamount to bad character in terms of Rule 6 of the Tamil Nadu Special Police Youth Brigade Rules, 2013, unfortunately, in the rules, there is no screening committee to examine each case to decide whether the involvement of an individual in a particular criminal case will amount to disqualification for being appointed as a member of the Youth Brigade. As has been held by the Hon'ble Supreme Court in Mehar Singh case, mere involvement in petty offences, like traffic offences, cannot be a ground to hold that the individual has bad character or bad antecedent so as to suffer disqualification. It all depends upon the nature and gravity of the offence for which the individual was prosecuted, either convicted or acquitted.
47. In Mehar Singh case, the Hon'ble Supreme Court has made reference to the case in Delhi Administration v. Sushi Kumar, (1996) 11 SCC 605. In that case, a candidate was prosecuted for offence U/s.324 and 304 of IPC. He was acquitted ultimately by the criminal court. While considering the case of Sushil Kumar [cited supra], in Mehar Singh's case, in para 29, the Hon'ble Supreme Court has held as follows:-
29. In this connection, we may usefully refer to Delhi Administration v. Sushil Kumar, (1996) 11 SCC 605. In that case, the respondent therein had appeared for recruitment as a constable in Delhi Police Services. He was selected provisionally, but, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of constable was not found desirable. Accordingly, his name was rejected. He approached the Tribunal. The Tribunal allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304, Section 324 read with Section 34 and Section 324 of the IPC, he cannot be denied the right of appointment to the post under the State. This Court disapproved of the Tribunals view. It was observed that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State. This Court observed that though the candidate was provisionally selected, the appointing authority found it not desirable to appoint him on account of his antecedent record and this view taken by the appointing authority in the background of the case cannot be said to be unwarranted. Whether the respondent was discharged or acquitted of the criminal offences, the same has nothing to do with the question as to whether he should be appointed to the post. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof.
48. In the cases on hand, in so far as W.P.No.5053 of 2014 is concerned, the dispute was between the father and the son. The father gave a complaint, case was registered, investigated and the same was found to be false. The said final report was also accepted by the criminal court by passing a judicial order. Therefore, mere registration of the above case against the petitioner about which even the petitioner had no knowledge cannot be a disqualification for him for being appointed as a member of Youth Brigade. I hold that he possesses good character and thus, he is qualified to be appointed as a Youth Brigade.
49. So far as the petitioner in W.P.No.6484 of 2014 is concerned the offences are u/s.341, 294(b), 323 and 506(i) of IPC. Two witnesses including the victim supported the case of the prosecution, but, the criminal court acquitted the petitioner. In para 7 of the judgement, the learned Magistrate held that there was a doubt in the mind of the court that the FIR contained false allegations. The court has further held that the evidence of P.W.2 Mahendiran did not implicate the petitioner in any manner in the crime. Thus, the court has acquitted the petitioner honourably. Though in para seven of the judgement the learned Magistrate has innocuously stated that the accused is acquitted by giving benefit of doubt , the language used in the judgement is not decisive as it is the substance of the judgement that matters.
50. Now, a perusal of the entire judgement of the criminal court would go to show that the petitioner in W.P.NO.6484 of 2014 was acquitted honourably. The allegations against the petitioner in the present case would not in any manner indicate that the petitioner has got bad character. According to the allegations, while there was a volley ball match going on, the petitioner came to the spot and during the course of the game, there were exchange of words, in which, it is alleged that he punched the victim on his face with hand. Going by the gravity of the allegations, I hold that this will not go to show that he has got bad character so as to deprive him of employment for ever. But, at the same time, since he is guilty of suppression of a material fact of his involvement in the criminal case, he is disqualified for appointment as Youth Brigade.
51. In view of all the above, I hold that the petitioner in W.P.No.5053 of 2014 is fully qualified and he does not suffer from any disqualification and, therefore, he is entitled to be appointed as a member of the Youth Brigade. But, the petitioner in W.P.No.6484 of 2014 is disqualified.
52. In the result, W.P.No.5053 of 2014: This writ petition is allowed and the 2nd respondent is directed to issue appointment order to the petitioner within a period of four weeks from the date of receipt of a copy of this order and depute him for training. No costs. Consequently, connected MP is closed.
53. W.P.No.6484 of 2014: This writ petition is dismissed. No costs.
21..03..2014 Index : Yes Internet : Yes kmk To 1.The Director General of Police, Dr.Radhakrishnan Salai, Mylapore, Chennai 600 004. 2.The Commissioner, Chennai Metropolitan Police, Vepery, Chennai 600 007.
3.The Chairman, Uniform Services Selection Board, P.T.Lee Chengalvaraya Nayakkar Building, No.907, II Floor, Anna Salai, Chennai 600 002.
4.The Superintendent of Police, Nethimedu, Salem District 636 002.
S.NAGAMUTHU.J., kmk PRE-DELIVERY COMMON ORDER in W.P.Nos.6484 & 5053 of 2014 21.03.2014