Madhya Pradesh High Court
The State Of Madhya Pradesh Thr vs Salman Mohammad on 20 December, 2016
1
WA.84/2016
State of M.P. & Ors.
Vs.
Salman Mohammad
20 .12.2016
Shri Praveen Newaskar, Govt. Advocate for the appellants
/ State.
Shri Prashant Sharma, Advocate for the respondent.
1. This intra court appeal under Section 2(i) of M.P. Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 17.12.2015 passed in WP No. 6336/2014 whereby the writ Court has disposed of the petition assailing cancellation of the selection of the petitioner / respondent herein to the post of Constable on the ground of petitioner being involved in offences punishable under Sections 147, 148, 294, 323, 324 and 506-B of IPC by holding that the cancellation of candidature was bad in view of earlier decision taken in similar circumstances by this Court on 05.08.2014 passed in WP No. 10342/ 2013 and directing for issuance of appointment order with all consequential benefits except backwages.
2. Bare facts necessary for decision of this Writ Appeal are that petitioner / respondent herein was selected for the post of Constable after undergoing the selection process conducted by the M.P. Professional Examination Board in 2013. Before appointment order could be issued the character verification disclosed registration of offence bearing Crime No. 118/2012 involving offences under Sections 147, 148, 294, 323, 324 and 506-B of IPC. Resultantly, the case was considered by the screening Committee which found the petitioner to be unfit to be appointed to police service, leading to issuance of order dated 2 WA.84/2016 20.08.2014 which came to be challenged in WP No. 6336/2014. 2.1 The petitioner in WP No. 6336/2014 contended that prior to the selection process the petitioner had been acquitted of the said offences. In respect of offence punishable under Section 324 IPC the petitioner was acquitted by judgment dated 13.12.2012 on merits whereas in regard to other offences the acquittal was based on compounding. The respondents while issuing the impugned order dated 20.08.2014 cancelled the candidature of the petitioner, relying upon the decision of the Apex Court in the case of Commissioner of Police, New Delhi and another Vs. Mehar Singh , (2013) 7 SCC 685. 2.2 Pertinently the present case does not appear to be a case of suppression of material information in the verification form and instead relates to the appointing authority finding the offence despite the same having ended in acquittal, to be grave and involving moral turpitude, thereby disentitling the petitioner to serve in the disciplined force.
2.3 The issue of rights and liabilities of appointing authority as well as candidate / appointee in all kinds of public services including disciplined force where the candidate has criminal antecedents, is no more res integra in view of the decision of the Apex Court in the case of Avtar Singh Vs. Union of India and Ors. [(2016) 8 SCC 471] the operative portion of which is reproduced below :-
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise 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 service must be true and there should be no suppression or false mention of required information.3 WA.84/2016
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 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.4 WA.84/2016
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 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."
3. This Court while dealing with the case of similar circumstances in WP No. 1016/2009 (Deepak Singh Tomar Vs. Union of India) has also held that certain earlier decisions of Apex Court which were not taken into account by the three Judges Bench decision in Avtar Singh's case are impliedly over- ruled as the principle of law has been considered in Avtar Singh and has been authoritatively laid down after reconciling all the earlier divergent views expressed by the Apex Court on the issue. For convenience and ready reference the relevant extract 5 WA.84/2016 of the decision of this Court in WP No. 1016/2009 is reproduced below :-
"It is also relevant to mention here that the specific contention of the learned ASGI that the matters of employment in armed force have not been taken into account in Avtar Singh (supra) is required to be considered.
In this regard perusal of the decision Avtar Singh(supra) in particular Para 11, 12, 15, 17, 18 and 19 reveal that the Apex Court has dealt with the matters of termination of appointment / candidature due to suppression of material information in the attestation form by the members disciplined force in the cases of R.Radha Krishnan Vs. Director General of Police and Ors. reported in (2008)1 SCC 660, Union of India and Ors. Vs. Bipad Bhanjan Gayen reported in (2008)11SCC 314, Daya Shankar Yadav Vs. Union of India and Ors. reported in (2010)14 SCC 103, State of West Bengal and Ors. Vs.SK. Nazrul Islam reported in (2011)10 SCC 184Commissioner of Police Vs. Sandeep Kumar reported in (2011) 4 SCC 644 and Ram Kumar Vs. State of U.P. reported in (2011)14 SCC 709.
Thus, the submission of the learned ASGI as mentioned above does not hold water.
Considering the final guidelines laid down by in para 13of the Larger Bench decision, it is noticed that the law laid down which squarely applies to the factual matrix of the case herein is contained in para 30(4)(a) which is reproduced again for ready reference:-
PARA-30
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 :-
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty 6 WA.84/2016 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.
Consequently, it is evident that after taking into account various decisions including those of members of disciplined force, the Larger Bench of Apex Court has laid down that where it is found that there is suppression of information in criminal case where acquittal or conviction has already been recorded and this fact comes to the knowledge of the employer later, then the appropriate recourse to be followed is that if the criminal case was of trivial nature and the same may not render the incumbent unsuitable for the post in question the employer may in its discretion, ignore such suppression of fact or false information by condoning the lapse.
It is thus evident that since though the Larger Bench in three decisions rendered by Benches of lesser composition, but the point of law in those three earlier decision was duly considered in detail, this Court is compelled to infer that the earlier three Division Bench decision of the Apex Court are impliedly over ruled by the Larger Bench comprising of three Hon'ble Judges of the Apex Court."
3.1 The above analysis leads to the only conclusion that the appointing authority is required to reconsider the entitlement of the petitioner to appoint on the post of constable by testing the same on the anvil of law laid down by the Apex Court. 3.2 At this juncture, it would be appropriate to deal with the aspect of offences in which petitioner was acquitted are grave enough or involve moral turpitude to restrict and foreclose the entry of citizens into the disciplined services. 3.3 In regard to involvement of element of moral turpitude this Court in WP No. 3719/2014(s) (Ravindra Kumar Pandoria Vs. State of M.P. & Ors. rendered on 01.09.2016 has held thus :-
"13. However, before doing so, it would be 7 WA.84/2016 appropriate to record findings as to whether the offence in question involves moral turpitude or not since from the impugned order the nature of the offence appears to be one of the major factors which has persuaded the mind of the employer to take a decision against the petitioner.
14. The meaning of the term 'moral turpitude' as given in the Blacks Law Dictionary (8th End. 2004) is as follows:
"Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offences involving moral turpitude - such as fraud or breach of trust........ Also termed moral depravity ............."
14.1 The Apex Court had occasion to consider the scope of the term 'moral turpitude' in Pawan Kumar Vs. State of Haryana [(1996) 4 SCC 17]. Later, in Allahabad Bank and another Vs. Deepak Kumar Bhola [(1997) 4 SCC 1], the Apex Court held that the offence involving 'moral turpitude' depends upon the facts and circumstances of each case. It was categorically made clear that, one of the most serious offences involving 'moral turpitude' would be, where a person employed in a Banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.
14.2 The Apex Court considered the meaning of the term 'moral turpitude' again, in so far as it related to the deeds/misdeeds committed by a Bank employee in Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank [(2010) 8 SCC 573) and held that the term 'moral turpitude' means anything contrary to honesty, modesty or good morals and it needs vileness and depravity.
14.3 Thus, moral turpitude implies depravity and wickedness of character or immoral disposition of the person charged with the particular conduct. The offence pertaining to moral turpitude generally are offence in the nature of theft, aggravated forms of theft, offence against woman, offence relating to cheating and forgery, offence against the State or against public tranquility; or offence of very grave nature such as murder, culpable homicide not amounting to murder, offence against public justice, offence relating to sale of counterfeit Government 8 WA.84/2016 stamp, offences affecting the Public Health,Safety, convenience, decency and morals, etc.
15. Pertinently one of the offences mentioned in the impugned order is under Section 326 of I.P.C. which appears to be grave. The judgment of acquittal does not indicate that the injured sustained any grievous injury as defined in section 320 of I.P.C. Thus, at best even if the offence is treated as proved, which in fact was not the case, the petitioner could be held guilty for an offence under section 323 of I.P.C., of voluntarily causing minor hurt without any weapon as admittedly no recovery of any offending weapon was made from the petitioner. Causing of minor hurt, in the considered opinion of this court, does not involve moral turpitude as there is no depravity of character involved."
3.4 In view of above discussion, it becomes evident that all the offences punishable under Sections 294, 323, 324, 506-B do not in the considered opinion of this Court involve the element of moral turpitude. There is no element of moral deprivation or erosion in the character of the accused which he may suffer on being prosecuted for the said offences.
3.5 The expression minor or grave offences is not defined in the Cr.P.C. or I.P.C but an indication though not exhaustive can be gathered from the offences enumerated in the Section 320 Cr.P.C which are compoundable with or without the permission of the Court. All these offences which are compoundable as per Section 320 Cr.P.C. do not involve the element of moral turpitude.
3.6 This Court, at this juncture, hastens to add that there are other non-compoundable offences not mentioned in Section 320 Cr.P.C which may not also involve the element of moral turpitude. Since this is not the issue involved herein, this court refrains from dwelling into it.
3.7 Offences alleged against the petitioner which ended in acquittal from compounding or otherwise did not involve moral 9 WA.84/2016 turpitude.
4. Based upon above analysis, this Court allows this appeal to the extent indicated below :-
(i) The impugned order passed by the writ Court only to the extent it directs the appointing authority to straightaway appoint the petitioner in service is set aside.
(ii) The respondent shall consider the claim of the petitioner for appointment on the post of constable on the anvil of law laid down by the Apex Court in the case of Avtar Singh (supra) and the discussion made above without being influenced by the petitioner having approached this Court and take a decision by speaking order within sixty (60) days from the date of communication of this order to the appointing authority.
No cost.
(Sheel Nagu) (S.K. Awasthi)
Judge Judge
sarathe/-