Madras High Court
V.Suresh vs The Principal/Commandant on 1 August, 2022
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P. No.3956 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2022
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P. No.3956 of 2018 and
W.M.P.No.4484 of 2018
V.Suresh ... Petitioner
Vs.
1.The Principal/Commandant,
Ty. PRS, TSP III Battalion,
Veerapuram, Chennai – 55.
2.The Additional Director General of Police,
Police Training College,
Ashok Nagar, Chennai – 83. ...
Respondents
PRAYER : Petition filed Under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records relating to the proceedings of the 1st respondent dated 06.01.2018
issued in C.No.D2/146/Ty, PRS – TSP III/2017 and quash the same and
consequently to direct the 1st respondent to reinstate the petitioner with all
attendant service and monetary benefits.
For Petitioner : Mr.P.I.Thirumoorthy
For Respondents : Mr.U.M.Ravichandran
Special Government Pleader
https://www.mhc.tn.gov.in/judis
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W.P. No.3956 of 2018
ORDER
The prayer sought for herein is for a writ of certiorarified mandamus calling for the records relating to the proceedings of the 1 st respondent dated 06.01.2018 issued in C.No.D2/146/Ty, PRS – TSP III/2017 and quash the same and consequently to direct the 1 st respondent to reinstate the petitioner with all attendant service and monetary benefits.
2. The petitioner was appointed as Youth Brigade on 12.02.2014 based on the selection conducted by TNUSRB Tamil Nadu Uniformed Services Recruitment Board and had completed one month training, the nature of the functions and duties of Youth Brigade are to drive the vehicle of the Police Department to deliver tapal and Data entry and to maintain police quarters and to assist the Police force in prevention of loss of life of accident of victims.
3. While the petitioner was functioning as Youth Brigade on 09.01.2016 a clash was occurred between some persons, hence the petitioner intervened and separated them from clash. Hence, there was a criminal case registered against the petitioner also according to him falsely therefore, he was suspended from service from that Youth https://www.mhc.tn.gov.in/judis 2/20 W.P. No.3956 of 2018 Brigade. Thereafter, the criminal case was conducted and the same was ended in acquittal by the judgment of the Metropolitan Magistrate concerned dated 19.10.2016.
4. Then an application was preferred by the petitioner to the Deputy Commissioner of Police (Administration) for posting on 20.10.2017, considering the said application dated 20.10.2017, the petitioner was taken back to duty. In the meanwhile, the petitioner also appeared before the State Level examination conducted on 13.11.2017 by the TNUSRB among eligible Youth Brigades for selection to the post of Grade II Constable.
5. Since the petitioner was selected to the said post of Grade II Constable, he was appointed so by the 1st respondent by order dated 25.11.2017 and he reported duty on 01.12.2017, from that date he had been undergoing basic training.
6. When he reported duty on 01.12.2017 before the Deputy Commandant, he voluntarily informed that he had involved in a minor criminal case and the same is ended in acquittal. Thereafter, he was https://www.mhc.tn.gov.in/judis 3/20 W.P. No.3956 of 2018 awarded the one month salary during the training period. However, suddenly the 1st respondent called the petitioner to his office and served a show cause dated 05.01.2018 and directed him to give reply the petitioner also gave reply. However, the 1st respondent on the next day vide his proceedings dated 06.01.2018 cancelled his appointment order. Aggrieved over the same, the present writ petition has been filed.
7. Heard Mr.P.I.Thirumoorthy, learned counsel for the petitioner who would submit that, the only reason cited by the respondents in the impugned order dated 06.01.2018 is that, the respondent has invoked Section 20(4)(i) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (in short 'the Act'), under which, no person shall be eligible for appointment to any service by direct recruitment unless he satisfied the appointing authority that his character and antecedents are such as to qualify him for such service.
8. For invoking the said provision, the respondents stated that the petitioner had involved in a criminal case though it has been acquitted honourably, they treated the said acquittal only on the basis of the compromise. Therefore, such kind of acquittal cannot be treated as a https://www.mhc.tn.gov.in/judis 4/20 W.P. No.3956 of 2018 clean acquittal and hence it can very well be construed that the antecedents is not to the satisfaction of the employer and by virtue of that invoking Section 20(4)(i) of the Act, they passed the impugned order cancelling the appointment order of the petitioner, therefore the learned counsel for the petitioner would submit that insofar as the acquittal made against the petitioner is a clear acquittal and if the order of the Criminal Court is looked into, that factor would be revealed. He would also submit that in the said criminal case, the petitioner and another Poovendra Raja had been implicated. Insofar as Poovendra Raja's case is concerned, he also has been selected and he had been appointed as Grade II Constable against him also such an order of cancellation of appointment order was made, as against which, the Poovendra Raja filed a writ petition before this Court and the said writ petition was allowed by the Writ Court by giving direction to appoint the said Poovendra Raja or reinstate him. However, as against which, when intra-Court appeal was filed before the Division Bench of this Court, the Division Bench in the order in W.A.No.168 of 2021 dated 28.04.2021 only has modified the order of the Writ Court stating that the Writ Court ought not to have issued a positive direction to reinstate petitioner therein i.e. Poovendra Raja, instead in the circumstances of the case, the request of the petitioner shall https://www.mhc.tn.gov.in/judis 5/20 W.P. No.3956 of 2018 be considered and an order to that effect shall he passed.
9. Pursuant to the said order passed by the Division Bench in Poovendra Raja's case, the respondent had passed an order once again rejecting the plea of the said Poovendra Raja by order dated 16.08.2021 which was also once again challenged before this Court by the said Poovendra Raja in W.P.No.21306 of 2021, where, the learned Judge of this Court having set aside the said order giving direction to reconsider it, accepting the said order, the respondent has passed an order on 08.07.2022 reinstating the said Poovendra Raja.
10. Since the petitioner also is similarly placed, the same relief for which the petitioner is entitled to, hence on that ground also, the learned counsel for the petitioner seeks indulgence of this Court against the impugned order.
11. Per contra, Mr.U.M.Ravichandran, learned Special Government Pleader appearing for the respondents would submit that, insofar as the invocation of Section 20(4)(i) of the Act is concerned, first of all, they must satisfy the employer i.e. his character and antecedents https://www.mhc.tn.gov.in/judis 6/20 W.P. No.3956 of 2018 are to qualify him for such service, otherwise no person shall be eligible for appointment to any service by direct recruitment. Here in the case in hand, insofar as his character and antecedents is concerned, he had involved in a criminal case and trial conducted which ultimately concluded by giving acquittal to the petitioner, where, it seems that there had been a compromise between the complainant and the accused person i.e., the petitioner and another that was also recorded by the learned Judge in the Criminal Court and ultimately the acquittal since has been given, it cannot be treated as a clean honourable acquittal and it is an acquittal either on technical ground or on the basis of benefit of doubt. Therefore, in this kind of case, it cannot be stated that the person who was not involved in a criminal case or his antecedent can be accepted for the purpose of public employment.
12. By making these submissions, the learned Special Government Pleader has relied upon a decision of the Hon'ble Supreme Court in the matter of Union of India and others Vs. Methu Meda in Civil Appeal No.6238 of 2021 dated 06.10.2021 and by relying upon the said decision, the learned Special Government Pleader would contend that, insofar as the decision to make as to whether the person who involved in https://www.mhc.tn.gov.in/judis 7/20 W.P. No.3956 of 2018 a criminal case even after acquittal would be entitled to or eligible to reinstatement or getting selection and appointment is ultimately the matter to be decided by the employer by using his discretion depending upon the facts and circumstances of the case and therefore, that kind of right conferred with the employer cannot be tinkered with by passing any orders stating that there must be a rigid rule to be followed, that wherever there is an acquittal in a criminal case, the person who involved in such criminal case would be treated as eligible person for appointment or reinstatement.
13. By making this submission, the learned Special Government Pleader would contend that the petitioner since has been acquitted only on the basis of compromise or benefit of doubt, such an acquittal cannot give any benefit to the petitioner, which is already decided in the Methu Meda case including the last one referred to above. The employer has taken a decision that, because of the antecedent on the part of the petitioner he is not entitled to get the job to be continued, therefore, his appointment has been cancelled through the impugned order, hence it is to be sustained, the learned Special Government Pleader contended.
14. I have considered the said rival submissions made by the https://www.mhc.tn.gov.in/judis 8/20 W.P. No.3956 of 2018 learned counsel appearing for the parties and have perused the materials placed before this Court.
15. Insofar as the acquittal registered by the Criminal Court is concerned, in order to understand the same, the relevant portion of the order passed by the Criminal Court is reproduced hereunder:
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tHf;F go rhl;rpak; mspf;fhky;. muRj;jug;g[f;F
ghjfkhft[k;. mth; vjphpfs; kPJ bfhLj;j g[fhiu
kWj;Jk; gpwH; rhl;rpahf khwp ,e;ePjpkd;wj;jpy;
rhl;rpak; mspj;Js;shh;/ mnjnghy; mrh2 kw;Wk;
mrh 3 rhl;rpfSk;. gpwH;rhl;rpahf khwp
ePjpkd;wj;jpy; rhl;rpak; mspj;Js;shh;fs;/ ,ju
rhl;rpfs; tprhupf;fg;glhky; tHf;if gjpt[ bra;j
mrh4 Md g[yzha;t[ mjpfhhp kl;Lk;
tprhupf;fg;gl;L muRj;jug;g[ tprhuiz Kof;fg;gl;lJ/ vdnt vjphpfs; kPjhd Fw;wr;rhl;Lfis rpwpjst[k;
muRj;jug;g[ bka;g;gpf;ftpy;iy/
vjphpfs; kPjhd Fw;wrhl;Lfis bghUj;J
ghprPypf;Fk; nghJ vjphpfs; Kd;tpnuhj fhuzkhf
thjpia jhf;fpdhh;fs; vd;gijnah. bfhiy kpul;ly;
bra;jhh;fs; vd;gijnah muRj;jug;g[
bka;gpf;ftpy;iy vjphpa[k;. fhak;gl;lth;fSk;
rkhjhdk; Mfp kD jhf;fy; bra;Js;shh;/ nkYk;
tprhupf;fgl;l mrh/1d; rhl;rpak; muRj;jug;g[
https://www.mhc.tn.gov.in/judis
9/20
W.P. No.3956 of 2018
ghjfkhf rhl;rpak; mspj;J gpwHrhl;rpfshf
khwptpl;lhh;/ vdnt vjphpfs; kPjhd Fw;wr;rhl;Lfis rpwpjst[k; muRj;jug;g[ bka;g;gpf;ftpy;iy/ ,Wjpahf vjphpfs; kPjhd 341. 294(gp). 326d;
fPH; vjphpfs; Fw;wthspfs; my;y vd;W jPhkhdpj;J. Vjphpfis F/tp/K/r/ gphpt[ 248 (1) d; fPH; tpLjiy bra;J jPh;g;gspf;fg;gLfpwJ/”
16. On perusal of the said finding given by the Criminal Court, it has been recorded that, the prosecution has not proved the case even to a smallest extent except the P.W.1 who was the Investigating Officer, P.W.2 and P.W.3 are other witnesses who have become hostile.
17. That apart, there has been a compromise memo filed both by the complainant and the accused persons.
18. Even the P.W.1 has not supported the case of the prosecution, therefore he had become hostile witness, these are all the factors that had been recorded by the learned Judge in the said judgment and ultimately he has given a finding that even to the smallest extent, the guilt of the petitioner who was the accused in the criminal case has not been proved by the prosecution. The word of 'benefit of doubt' even in favour of the https://www.mhc.tn.gov.in/judis 10/20 W.P. No.3956 of 2018 accused has not been recorded in the said judgment. Hence this Court feels that the said acquittal cannot be treated as an acquittal arising out of the benefit of doubt or mere compromise but based on the prosecution failure to prove the guilt on the part of the accused persons.
19. With the said facts in the background, if we look at the judgments especially the judgment of the Hon'ble Supreme Court in Methu Meda case of 6th October 2021 which has been relied upon heavily by the learned Special Government Pleader it was observed in the said case by the Hon'ble Supreme Court that, the nature of acquittal is necessary for core consideration. If acquittal is not honourable, the candidates are not suitable for government service and are to be avoided.
20. It has further been held in the said judgment, acquittal on technical ground in respect of the offences of heinous/serious nature, which is not a clean acquittal, the employer may have a right to consider all relevant facts available as to the antecedents, and may take appropriate decision as to the continuance of the employee. https://www.mhc.tn.gov.in/judis 11/20 W.P. No.3956 of 2018
21. In the said case, in fact it was a serious or heinous crime of abduction that was not proved beyond reasonable doubt, therefore either on technical ground or giving the benefit of doubt since the accused in that case was acquitted, the Hon'ble Supreme Court has taken a view that, such kind of persons may not be entitled for job in a government service that too in a disciplined force, that is a reason why in the said decision, the orders passed by the High Court concerned was set aside.
22. However, in the present facts of the case, first of all it is not a heinous crime as the alleged offences was punishable under Sections 341, 294(b) and 326 I.P.C.
23. Moreover, it is neither a technical acquittal nor an acquittal arising out of benefit of doubt, it is an acquittal otherwise honourable acquittal as the prosecution, according to the learned Judge of the Criminal Court, has failed even to prove the smallest extent, therefore the yardstick fixed that in case of acquittal on technical reasons or arising out of benefit of doubt, cannot be fixed in the present facts of the case. That apart, there is no heinous or serious crime in which the petitioner is allegedly involved, therefore the said decision in fact is supporting the https://www.mhc.tn.gov.in/judis 12/20 W.P. No.3956 of 2018 case of the petitioner and not the case of the respondent.
24. Coming to the co-accused in the said case along with the petitioner i.e. Poovandra Raja is concerned, he was also similarly placed and he has got acquitted in the same judgment and his appointment also was cancelled by the respondent Department, as against which, when he filed writ petition that was allowed by the Writ Court by order dated 12.12.2019 and that was modified by the order of the Division Bench dated 28.04.2021 in W.A.No.168 of 2021, where, the following orders have been passed by the Division Bench.
“16. In the result, the Writ Appeal is Partly Allowed and the impugned order dated 12.12.2019 passed in W.P.No.6024 of 2018 is set aside as well as the proceedings of the 1st appellant / 1st respondent dated 06.01.2018 and the matter is once again remanded to the 1st respondent for fresh consideration as to the suitability or otherwise of the respondent / writ petitioner to become a Grade II Police Constable and while doing so, the 1st appellant / 1st respondent shall also take into consideration the observations made in the judgment and complete the said exercise within a period of twelve weeks from the date of receipt of a copy of this order / uploading https://www.mhc.tn.gov.in/judis 13/20 W.P. No.3956 of 2018 of the order in the Website and communicate the decision taken to the respondent / writ petitioner. No costs. Consequently connected miscellaneous petition is closed.”
25. Pursuant to the said modified order passed by the Division Bench, once again the respondent passed a negative order i.e. rejecting the plea of the petitioner Poovendra Raja therein by order dated 16.08.2021, that was again impugned in the writ petition in W.P.No.21306 of 2021 filed by the said Poovendra Raja, where, a learned Judge of this Court by order dated 16.03.2022 has passed the following order:
“6. On perusal of the aforesaid impugned order passed by the 1st respondent dated 16.08.2021, there is no whisper about the observations made by the Division Bench of this Court vide judgment dated 28.04.2021 in W.A.No.168 of 2021. In the aforesaid judgment, it is clearly held in para 15 as follows:
“15. The above cited judgment would also disclose that the involvement in a criminal case is not a total bar for employment, but it is for the employer to find out the suitability. In the judgment relied on by the learned Single Judge in 2018 (18) SCC 733 (State of Madhya Pradesh and Others Vs. Abhijit Singh Pawar), it has been held that even after disclosure is made by a candidate, employer would be well within his rights to consider antecedents and suitability of candidate and while so considering, employer https://www.mhc.tn.gov.in/judis 14/20 W.P. No.3956 of 2018 can certainly take into account the job profile for which selection is undertaken, severity of charges levelled against candidate and whether acquittal in question was an honourable acquittal or as merely on ground of benefit of doubt or as a result of composition, it is a duty cast upon the employer to take a call. However in the impugned order, instead of remanding the matter to the employer, the learned Judge has straight away allowed the Writ Petition and therefore on that limited ground, the impugned order warrants interference.
In the light of the aforesaid observations and findings of the Division Bench of this Court, this Court has no hesitation to interfere with the impugned order passed by the 1st respondent and the same is liable to be quashed.
7. Accordingly, this Court is inclined to pass the following order:
i) The impugned order passed by the 1st respondent vide proceedings in Rc.No.A2/329/2020 dated 16.08.2021 is hereby quashed and the matter is remitted to the 1st respondent.
ii) After receipt of the same, the 1st respondent is directed to consider the petitioner-s claim afresh and pass appropriate orders, in the light of the judgment passed by the Division Bench of this Court in W.A.No.168 of 2021 dated 28.04.2021, as expeditiously as possible, more preferably, with a period of twelve weeks from the date of receipt of a copy of this order.
8. With the above direction, this Writ Petition stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.” https://www.mhc.tn.gov.in/judis 15/20 W.P. No.3956 of 2018
26. On perusal of these decisions, this Court feels that, since the petitioner also is similarly placed and since the said Poovendra Raja as well as the petitioner involved in the same case, where, they got an acquittal as stated supra and after having considered the said Poovendra Raja's case, this Court has given judgments on two times, first time even though the modified order was passed by the Division Bench that was not properly understood by the respondents, where, they passed a negative order, now that order also has been set aside by the recent order of the learned Single Judge in the second round in Poovendra Raja's case by order dated 16.03.2022, where, an order has been passed to reconsider the issue by setting aside the rejection order passed in his case.
27. The said view taken by this Court in the Poovendra Raja's case, in the considered opinion of this Court, squarely will apply to the present case of the petitioner, where, the petitioner as well as the said Poovendra Raja jointly had been arrayed as accused in the said criminal case. Therefore, the present reason stated by the respondent in the impugned order invoking Section 20(4)(i) of the Act, in the considered opinion of this Court, may not be justifiable.
https://www.mhc.tn.gov.in/judis 16/20 W.P. No.3956 of 2018
28. The reason being that the antecedent of the employee especially in the disciplined force is a must and in this regard, the employer has got further discretion to verify the antecedent of the person who wants to become a member of the disciplined force and that has been reiterated, enlarged and amplified in number of decisions by law Courts including cases referred to above.
29. There must be a dichotomy between the persons who involved in a criminal case got honourable acquittal and who recorded acquittal only on benefit of doubt or technical reason. Two persons got an acquittal either honourably or on technical reasons. If we take the dichotomy in proper sense, the cases of this nature as that of the petitioner would fall in the first category, for which, a relief can be given and that has been given in some cases as referred to above, especially the other person viz., Poovendra Raja. Therefore, this Court has no hesitation to hold that the impugned order would not stand in the legal scrutiny, hence it is liable to be interfered with.
30. In the result, the following orders are passed in this writ petition:
https://www.mhc.tn.gov.in/judis 17/20 W.P. No.3956 of 2018 That the impugned order is set aside and the respondents are directed to reinstate the petitioner. If at all there is any incomplete period of training, that shall also be provided to the petitioner. Insofar as the seniority and other service benefits or continuity of service is concerned, that can be considered from the date of appointment unmindful of the non-working period, however the petitioner is not entitled for any backwages for such non-working periods. The aforestated directions shall be complied with by the respondents within a period of four weeks from the date of receipt of a copy of this order.
31. With the above direction, this Writ Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
01.08.2022 Index : Yes / No Speaking Order : Yes / No Sgl https://www.mhc.tn.gov.in/judis 18/20 W.P. No.3956 of 2018 To
1.The Principal/Commandant, Ty. PRS, TSP III Battalion, Veerapuram, Chennai – 55.
2.The Additional Director General of Police, Police Training College, Ashok Nagar, Chennai – 83.
https://www.mhc.tn.gov.in/judis 19/20 W.P. No.3956 of 2018 R.SURESH KUMAR, J.
Sgl W.P. No.3956 of 2018 01.08.2022 https://www.mhc.tn.gov.in/judis 20/20