Madras High Court
V.Subramania Siva vs The Member Secretary on 27 July, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.19105 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.19105 of 2020
V.Subramania Siva .. Petitioner
vs.
1.The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board,
No.807, P.T. Lee Chengalvarayan Naicker Maaligai,
Anna Salai, Chennai-600 002.
2.The Director General of Police,
Office of the Director General of Police,
Chennai.
3.The Superintendent of Police,
District Police Office,
Villupuram. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records of the 3rd respondent passed in C.No.A2/10200/2019 dated
23.03.2020 and quash the same and further direct the 3rd respondent to
consider to appoint the petitioner in the post of Grade II Police Constable for
2019 based on his qualifications.
For Petitioner : Mr.V.Prakash, Senior Counsel
for Mr.M.Karthikeyan
https://www.mhc.tn.gov.in/judis
1
W.P.No.19105 of 2020
For Respondents : Mr.P.Kumaresan,
Additional Advocate General
assisted by Mrs.Sowmi Dattan for R1
Mr.T.Chezhiyan,
Additional Govt. Pleader for R2 and R3
ORDER
The petitioner, challenging the impugned order of rejection dated 23.03.2020 passed by the third respondent, has filed the present writ petition.
2. The petitioner applied for the post of Grade II Police Constable in pursuant to Notification No.1/2019 dated 06.03.2019 and participated in the selection process and qualified in the written examination and Physical Endurance Test and he got provisionally selected for the said post. However, to his shock and surprise, the third respondent has passed the impugned order of rejection dated 23.03.2020 on the ground that the petitioner had involved in a criminal case in Crime No.537 of 2019 for the offences under Sections 147, 148, 294(b), 323 and 324 IPC. Challenging the same, the petitioner has filed the instant writ petition.
3.The learned Senior Counsel for the petitioner submits that the petitioner was acquitted in the criminal case, vide judgment dated 27.02.2020 in C.C.No.7/2020 on the file of the learned Judicial Magistrate, Vanur and https://www.mhc.tn.gov.in/judis 2 W.P.No.19105 of 2020 therefore, there is no legal impediment for the respondents to consider the request of the petitioner for appointment to the post of Grade II Police Constable.
4. Mr.P.Kumaresan, learned Additional Advocate General for the respondents submits that at the time of submitting the application, the petitioner was involved in the criminal case and thereafter he got acquittal in the criminal case on 27.02.2020 and the judgment of acquittal has been passed only on benefit of doubt and therefore, the respondents have rightly rejected the case of the petitioner for appointment to the post of Grade II Police Constable for the year 2019.
5. This Court has considered the submissions made and also perused the materials available on record.
6. Admittedly, the petitioner applied for the post of Grade II Police Constable in pursuant to the recruitment notification dated 01/2019 dated 06.03.2019 and he got qualified in the written examination and Physical Endurance Test. At the time of submitting the application the petitioner was https://www.mhc.tn.gov.in/judis 3 W.P.No.19105 of 2020 involved in a criminal case and on that ground, the respondents have rejected the appointment of the petitioner. According to the petitioner, the aforesaid criminal case has ended in acquittal and therefore, there is no legal embargo to consider the petitioner name for selection to the post of Grade II PS. However, it is the stand of the respondents that subsequent acquittal in the criminal case on the ground of benefit of doubt cannot be a ground to claim appointment and in the light of Rule 14(2) Sub Rule (b)(iv) of the Special Rules for the Tamil Nadu Special Police Subordinate Service Rules, 1978, the application of the petitioner could be considered only in the next recruitment process.
7. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court in Avtar Singh Vs. Union of India [2016 (8) SCC 471], wherein it was held as follows:
“23.Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge/s, if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the https://www.mhc.tn.gov.in/judis 4 W.P.No.19105 of 2020 basis of material on record. In case offence is petty in nature committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.
24. No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case.
However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.
25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
26. No doubt about it that verification of character and https://www.mhc.tn.gov.in/judis 5 W.P.No.19105 of 2020 antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
27. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
29. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
30. 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:
(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.
(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 https://www.mhc.tn.gov.in/judis 6 W.P.No.19105 of 2020 any, while giving such information. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(3) 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 : ~ (4) 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.
Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 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.
(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.
(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.
(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 https://www.mhc.tn.gov.in/judis 7 W.P.No.19105 of 2020 were pending may not be proper.
(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.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits.”
8. The Hon'ble Supreme Court in yet another case in State of Madhya Pradesh and Bunty [(2020) 17 SCC 654] has observed as under:
“11. That apart, when we consider the decision of the three-Judge Bench of this Court in Avtar Singh [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] the Court observed : (SCC p. 507, para 38) “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 https://www.mhc.tn.gov.in/judis 8 W.P.No.19105 of 2020 consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.”
12.In Pradeep Kumar[State (UT of Chandigarh) v.
Pradeep Kumar, (2018) 1 SCC 797 : (2018) 1 SCC (Cri) 504 :
(2018) 1 SCC (L&S) 149] this Court has observed : (SCC pp.
807-808, para 15) “15. From the above details, we find that the Screening Committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took the decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per Guideline 2(A)(b) and object of such screening is to ensure that only persons with impeccable character enter police force. While so, the court cannot substitute its views for the decision of the Screening Committee.”
13.The law laid down in the aforesaid decisions makes it clear that in case acquittal in a criminal case is based on the benefit of doubt or any other technical reason, the employer can take into consideration all relevant facts to take an appropriate decision as to the fitness of an incumbent for appointment/continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench.” (emphasis supplied)
9. The decisions cited supra lays down the principle that the employer https://www.mhc.tn.gov.in/judis 9 W.P.No.19105 of 2020 may consider all relevant facts available as to the antecedents and may take appropriate decision as to the continuance of the employee and in the case on hand, the respondent has taken into consideration all the relevant factors and rightly rejected the case of the petitioner. Therefore, the relief sought for by the petitioner cannot be granted. If otherwise eligible, he can be considered for next selection as per Rule 14(2) Sub Rule (b)(iv) of the Special Rules for Tamil Nadu Special Subordinate Service Rules, 1978.
10. Accordingly, The Writ Petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is also dismissed.
27.07.2022
Index : Yes / No
Internet : Yes / No
Jvm
To
1.The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board, No.807, P.T. Lee Chengalvarayan Naicker Maaligai, Anna Salai, Chennai-600 002.
2.The Director General of Police, Office of the Director General of Police, Chennai.
3.The Superintendent of Police, District Police Office, Villupuram.
https://www.mhc.tn.gov.in/judis 10 W.P.No.19105 of 2020 D.KRISHNAKUMAR, J.
Jvm https://www.mhc.tn.gov.in/judis 11 W.P.No.19105 of 2020 W.P.No.19105 of 2020 27.07.2022 https://www.mhc.tn.gov.in/judis 12