Madras High Court
K.Sathyaseelan vs Tamil Nadu Uniformed Services ... on 26 February, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.02.2013 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2068 of 2013 and M.P.No.1 of 2013 K.Sathyaseelan .. Petitioner Vs. 1.Tamil Nadu Uniformed Services Recruitment Board, rep by its Member Secretary, No.807,P.T.Lee Chengalvarayan Naicker Maaligai, Anna Salai, Chennai-600 002. 2.The Superintendent of Police, District Police Office, Dharmapurai District, Dharmapuri. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the concerned records from the second respondent, quash the order of the second respondent dated 08.01.2013 bearing Na.Ka.No.13100/2012/A3 and consequently direct the respondents to consider the petitioner for appointment to the post of Grade II Constable for the year 2012. For Petitioner : Mr.Balan Haridas For Respondents : Mr.V.Subbiah, Spl.G.P. - - - - ORDER
This writ petition is filed by the petitioner seeking to challenge an order passed by the second respondent Superintendent of Police, Dharmapuri, dated 08.01.2013, wherein and by which the petitioner was denied appointment for the post of Grade-II Police Constable. This was on the ground that at the time of filling up the Verification Roll, the petitioner gave false answers with a view to divert the attention of the authorities in finding out the truth.
2.It is seen from the records that the petitioner had applied for the post of Grade-II Police Constable, for which recruitment was done by the first respondent. He came out successful in the written test and other tests relating to Physical Efficiency test and medical test. Thereafter, when the antecedent and character was sought to be verified, a Verification Roll was given to him. The petitioner in his own handwriting filled up the verification roll. As against column Nos.15,16 and 18, the petitioner gave the following answers which reads as follows :
VERNACULAR (TAMIL) PORTION DELETED
3.It was thereafter, they have verified the details given by the petitioner. It was found that the petitioner was involved in a criminal case in Crime No.12/ 2010 registered by the All Women Police Station, Harur for the offence under Section498-A IPC and Section 4 of Dowry Prohibition Act. The Inspector of Police, Morappur Police Station, Harur Sub division sent a report stating that a criminal case was registered against the petitioner under Section 498A IPC read with Section 4 of the Dowry Prohibition Act. After trial was conducted by the Judicial Magistrate, Harur, on 20.1.2011, the petitioner was acquitted under Section 248(1) Cr.P.C. A copy of the judgment is also forwarded. It is under these circumstances, since the petitioner had suppressed the said information, as per Explanation-1 to Rule 14(b), the petitioner was denied appointment. It is necessary to reproduce the rule 14(b) in its entirety, which reads as follows :
"14(b). No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority,-
(i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and
(ii) that his character and antecedents are such as to qualify him for such service; and
(iii) that such a person does not have more than one wife living;
(iv) That he has not involved in any criminal case before police verification.
Explanation (1): A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a criminal case.
Explanation (2): A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment."
4.The contention raised by the petitioner was that a criminal case was given by none other than his wife. When she was examined as P.W.1, she denied the contents of the complaint as well as the signature marked in Ex.P.1, dated 13.4.2010. She also stated that she was not harassed by her husband, i.e., the petitioner and he never demanded any dowry. The petitioner's wife by name Rajalakshmi was treated as hostile by the prosecution. Similarly, P.W.2 to P.W.7 have also turned hostile and no cross examination was done by the prosecution. The trial court held that after examination of the wife, father-in-law and mother-in-law of the petitioner, it was found that the husband and wife were living amicably and they never wanted to pursue the case. It is under these circumstances, the acquittal was made.
5.The contention of the petitioner was that he was married to his wife Rajalakshmi on 11.4.2008. Based on domestic quarrel, she gave a complaint against him as if he had demanded dowry. It was based upon the same, a criminal case in Crime No.12/2010 was registered. It was tried as C.C.No.223/2010. Even during trial, the domestic quarrel ended and they started living happily together. They have got two children born out of their wedlock. He was acquitted on 20.1.2011. The application for the post of the Constable was sent in the year 2012. As there was no case pending, he did not mention about the pendency of the criminal case. He came from a poor family. He has got a bachelor degree in Tamil literature and also had Diploma in Teacher Education. He belonged to schedule caste community. He was only doing coolie work and did not get any other job. Since he was acquitted in the criminal proceedings well before the application, that is the reason why he did not disclose the earlier criminal case. The petitioner had secured 60 marks in the written examination and 9 marks in the physical efficiency test and altogether he had secured 69 marks. He has come well within the cut off marks meant for scheduled caste community.
6.In the present case, the petitioner, subsequent to the complaint and even before trial, had started living with his wife and also gave birth two children. He was also acquitted by the criminal court since there was no evidence found against him. As he was acquitted and living with his wife, he may be under bonafide impression that he did not suffer from any criminal case and the complaint under Section 498A IPC was well within the family members. It also provides for compounding of the offence. The petitioner may be under a bonafide impression that he need not have mentioned about his involvement in the criminal case, since the complainant herself was his wife and she had started living with him. If at this stage the petitioner is punished by denying his employment, it will only add further misery to his family life.
7.In this context, it is necessary to refer to a judgment of the Supreme Court in State of Haryana v. Dinesh Kumar reported in (2008) 3 SCC 222, where a person did not disclose his arrest in the attestation form when he went for selection. Because of his non disclosure when he was denied appointment, the defence taken by that person was since he was granted bail, he was under the bonafide impression that there was no arrest. The Supreme Court in paragraphs 31 and 33 had observed as follows :
"31.In our view, the reasoning given in Dinesh Kumar's case in that context is a possible view and does not call for interference under Article 136 of the Constitution. Conversely, the decision rendered in the writ petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in line with the decision in Dinesh Kumar's case. When the question as to what constitutes arrest has for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the court and being granted bail immediately. The position would have been different, had the person concerned not been released on bail. We would, in the facts of these cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful misrepresentation and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the view taken by the High Court in Dinesh Kumar's case.
33. In the result, the civil appeal arising out of SLP (C) No. 1840 of 2007 is dismissed, while the civil appeal arising out of SLP (C) No. 14939 of 2007 is allowed. The judgment of the High Court dated 22-9-2005, impugned in the said appeal, is set aside and the respondents concerned are directed to take steps to issue appointment letters to the appellants in the said appeals subject to fulfilment of other conditions by them. It is also made clear that the appellants will be deemed to have been appointed as Constable-Drivers with effect from the date persons lower in merit to them were appointed. However, while they will be entitled to the notional benefits of such continuous appointment, they will be entitled to salary only from the date of this judgment on the basis of such notional benefits."
8.It is also necessary to refer to a judgment of the Supreme Court in Commissioner of Police v. Sandeep Kumar reported in 2011 AIR SCW 3601 = (2011) 4 SCC 644 and in paragraphs 5,8,11 and 12, the Supreme Court had observed as follows :
"5.On 2-8-2001 a show-cause notice was issued to him asking the respondent to show cause why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application form. The respondent submitted his reply on 17-8-2001 and an additional reply but the authorities were not satisfied with the same and on 29-5-2003 cancelled his candidature.
8.We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. 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 be 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.
11.As already observed above, youth often commits indiscretions, which are often condoned.
12.It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. 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."
9.It is further necessary to refer to a subsequent judgment of the Supreme Court in Ram Kumar Vs. State of U.P. and others reported in AIR 2011 SC 2903 and in paragraph 9 it was observed as follows :
"9..... but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the pro forma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment."
10.Therefore, it has to be seen in the context of the above judgments, whether the petitioner's not mentioning in the attestation form is so serious that he should be denied an employment? Certainly, the case of the petitioner do not come under Rule 14(b) as explanation-1 will not apply since the wife herself, who was the defacto complainant did not support the complaint. Mere suppression of the information by itself will not result in the petitioner being denied employment as held by the Supreme Court in the decisions cited surpa.
11.Further the Supreme Court itself had struck a note of caution with reference to complaints regarding offence under Section 498A IPC as increasingly false complaints were given to settle scores among family members and that such complaints should be taken only on clear verification of facts. The Supreme Court in Preeti Gupta v. State of Jharkhand reported in (2010) 7 SCC 667 in paragraphs 30 to 38 had observed as follows :
"30.It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.
31. The courts are receiving a large number of cases emanating from Section 498-A of the Penal Code which reads as under:
498-A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.For the purposes of this section, cruelty means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.
33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinised with great care and circumspection.
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful.
37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.
38.We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law and Justice to take appropriate steps in the larger interest of the society." (Emphasis added)
12.In view of the above, since the respondents have not applied their mind on the criminal case which had already come to an end even before the recruitment process was started, the impugned order passed by the Superintendent of Police cannot be justified and hence it has to be set aside. The respondents are hereby directed to grant an appointment order to the petitioner to the post of Grade II Police Constable within a period of three weeks from the date of receipt of copy of this order. Accordingly, the writ petition will stand allowed. No costs. Consequently connected miscellaneous petition stands closed.
vvk 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 Superintendent of Police, District Police Office, Dharmapurai District, Dharmapuri