Madhya Pradesh High Court
Pankaj Singh Tomar vs The State Of Madhya Pradesh on 27 July, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others
Through Video Conferencing
Gwalior, Dated:27/07/2021
Shri G.S. Sharma, Advocate for petitioner.
Shri Deepak Khot, Government Advocate for
respondents/State.
This petition under Article 226 of the Constitution of India has been filed against the order dated 21/12/2017 passed by SP, Rail, Bhopal, by which the candidature of the petitioner for the post of Constable in the recruitment process held in the year 2016 has been rejected.
2. The necessary facts for disposal of the present petition in short are that in the year 2016 an advertisement was issued by the respondents for recruitment to the post of Constable in the Police Department. Written examination was conducted by MPPSC. The petitioner appeared in the written test and cleared the examination and accordingly, he was declared qualified for physical test. After completing all the formalities, the respondent no.3 issued the posting order of the petitioner and he was posted in the unit of SP, Railway, Bhopal.
3. It is submitted that on 25/10/2016 a criminal case was registered against the petitioner and other co-accused persons for offence under Sections 294, 323/34, 326/34 and 506 of IPC in Crime No.148/2016 at Police Station Mata Basaiya, District Morena. It is 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others submitted that the petitioner approached the SP, Morena for free and fair investigation and in exercise of powers under Section 36 of Cr.P.C. the Dy.SP, Morena conducted a parallel enquiry and came to a conclusion that the petitioner was not present on the spot. Accordingly, the charge-sheet was not filed against the petitioner. However, the Court below took cognizance against the petitioner under Section 190 of Cr.P.C. A letter dated 6/12/2017 was received by the petitioner, wherein it was directed that he has to appear on 8/12/2017 before the AIG, Special Branch, Security. The petitioner disclosed all the facts about the criminal case and also informed that he has been acquitted by the competent Court of jurisdiction vide judgment dated 12/9/2017. However, in spite of the acquittal of the petitioner, by the impugned order dated 21/12/2017 the candidature of the petitioner has been rejected on the ground that a criminal case was registered against him.
4. It is submitted by the counsel for the petitioner that mere registration of an offence would not deprive the person concerned from joining a government job. It is submitted that in the character verification form, the petitioner had specifically annexed the copy of that parallel enquiry done by Dy.SP. It is further submitted that in the affidavit it was also disclosed by the petitioner that one criminal case has been registered against him in Police Station Mata Basaiya, 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others District Morena and Dy.SP in a parallel enquiry has found that the petitioner is an innocent person.
5. It is further submitted that the Special Branch of Police Department in its verification report dated 15/12/2017 has wrongly pointed out that the petitioner has not disclosed about registration of criminal offence against him. It has also been wrongly mentioned that the offence under Section 326 of IPC involves moral turpitude and the acquittal of the petitioner cannot be said to be a clean/honourable acquittal. It is submitted that once in the character verification form the petitioner had disclosed about the enquiry report of the Dy.SP, then it cannot be said that there was any suppression by the petitioner.
6. The respondents filed their return and submitted that the suitability of a candidate is to be considered in the light of the duties attached to a particular post. The Police is a disciplined Force where the person should be of impeccable character without any criminal background. In the present case, a criminal offence was registered against the petitioner. Although in the character verification form he has mentioned about the enquiry report, but he did not disclose the details of the criminal case registered against him. On the contrary, in the police character verification form it was specifically mentioned that no offence has been registered against the petitioner in any 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others police station. It was also declared that at the time of filling up of character verification form no case was registered against him. It is further submitted that even if the judgment of acquittal relied upon by the petitioner is considered, then it is clear that the witnesses had turned hostile. The acquittal on the ground that the witnesses did not support the prosecution case cannot be said to be an honourable acquittal. It is clear from the judgment of acquittal itself that the injured Lokendra had sustained fracture of tibia and fibula bone. The allegations were that on 21/10/2016 when the complainant was about to fetch water, at that time Mahipal Singh and the petitioner also reached there and when the nephew of the complainant requested them to wait for some time, then Mahipal Singh and the petitioner started abusing Rahul. When it was objected by Rahul, then the petitioner and Mahipal Singh started assaulting him by means of Luhangi and when the complainant and Lokendra Singh reached there in order to save him, then the co-accused Vikas assaulted him by means of an axe and co-accused Rajiv assaulted him by means of a Lathi. The petitioner gave a Lathi blow on the right leg of injured Lokendra, which resulted in fracture of tibia and fibula bone. Thus, it is clear that the offence, which was committed by the petitioner, was a serious one. The petitioner has not given the details of the date of issuance of advertisement. The offence was committed after the 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others advertisement for recruitment to the post of Constable was already issued and thus, it is clear that the petitioner has no respect for the department also. It is further submitted that under Section 36 of Cr.P.C. senior police officer has a jurisdiction to issue a direction to the Investigating Officer, but cannot direct for a parallel enquiry without withdrawing the same from the Investigating Officer. The parallel enquiry report submitted by the Dy.SP, Morena dated 22/12/2016 was nothing but a report without jurisdiction and, therefore, the competent Court did not commit any mistake in taking cognizance against the petitioner. It is further submitted that the petitioner has deliberately not filed the copy of the order of the competent Court, by which an order of taking cognizance against the petitioner was passed.
7. Heard learned counsel for the parties.
8. This Court has already considered the allegations which were made against the petitioner in Crime No.148/2016 registered at Police Station Mata Basaiya, District Morena. According to the FIR, the petitioner had given a Lathi blow on the right leg of Lokendra and Lokendra had sustained fracture of tibia and fibula bone. From the judgment of acquittal dated 12/9/2017 (Annexure P/4), it is clear that the petitioner was acquitted on account of the fact that none of the witnesses had supported the prosecution case and they had turned 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others hostile. It is well established principle of law that acquittal on account of the fact that the witnesses have turned hostile cannot be said to be an honourable acquittal.
9. The Supreme Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471 has held as under:-
"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.
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 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others 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.
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 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
The Supreme Court in the case of State of Madhya Pradesh and Others vs. Abhijit Singh Pawar, passed in Civil Appeal No. 11356 of 2018 (Arising out of SLP (c) No.17404 of 2016) by judgment dtd. 26th November, 2018 has observed as under:-
''14. In Avtar Singh (supra), though this Court was principally concerned with the question as to non- disclosure or wrong disclosure of information, it was observed in paragraph 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.
15. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) of Cr.P.C., the law declared by this Court in Mehar Singh (supra), specially in paragraphs 34 and 35 completely concludes the issue.
Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.
16. The reliance placed by Mr. Dave, learned Amicus Curiae on the decision of this Court in Mohammed Imran (supra) is not quite correct and said decision cannot be of any assistance to the respondent. In para 5 of said decision, this Court had found that the only allegation against the appellant therein was that he was travelling in an auto-rickshaw which was following the auto-rickshaw 9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others in which the prime accused, who was charged under Section 376 IPC, was travelling with the prosecutrix in question and that all the accused were acquitted as the prosecutrix did not support the allegation. The decision in Mohammed Imran (supra) thus turned on individual facts and cannot in any way be said to have departed from the line of decisions rendered by this Court in Mehar Singh (supra), Parvez Khan (supra) and Pradeep Kumar (supra).
17. We must observe at this stage that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature of the respondent was in any way actuated by mala fides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss Writ Petition No.9412 of 2013 preferred by the respondent. No costs.'' The Supreme Court in the case of Mohammed Imran Vs. State of Maharashtra and others passed in C.A. No. 10571 of 2018, by order dated 12-10-2018 has held as under :-
''6.Employment opportunities is a scarce commodity in our country. Every advertisement invites a large number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that my apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective 10 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others of all considerations, albatross around the neck of the candidate, may not always constitute justice. Much will, however, depend on the fact situation of a case."
The Supreme Court in the case of Union of Territory, Chandigarh Administration and Ors. vs. Pradeep Kumar and Another, reported in (2018) 1 SCC 797 has held as under:-
''11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision.......
12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India and Others(2016) 8 SCC 471, three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), (SCC p. 508) ''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."
13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character.
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17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.
The Supreme Court in the case of The State of M.P. and others Vs. Bunty by order dated 14/3/2019 passed in Civil Appeal No.3046/2019 has held as under:-
"13. The law laid down in the aforesaid decisions makes it clear that in case of acquittal in a criminal case is based on the benefit of the 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."
The Full Bench of this Court in the case of Ashutosh Pawar vs. State of M.P. reported in 2018 (2) MPJR 178 has held as under:-
" Decision of Criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar vs. State of M.P.) is overruled. Another Division Bench judgment in W.A. No.367/2015 (Sandeep Pandey vs. State of M.P. and others) is also overruled. Jurisdiction of the High Court in a writ petition under Art. 226 of the Constitution of India is to examine the decision-making process than to act as Court of appeal to substitute its own decision. In appropriate case, if the Court finds decision- making process is arbitrary or illegal, the Court will direct the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own.
The expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity of a candidate who seeks appointment as Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any taint. The standard of conduct in the case of Judicial Officer is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well. The same must be in tune with the highest standard of propriety and probity."
10. Further, if the character verification form filled up by the petitioner is seen, then it is clear that he had given an incomplete and misleading information. In the character verification form, he did not 13 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others mention that any crime has been registered against him. Although in the column about details of acquittal, he has mentioned that an enquiry report is annexed. From the charge-sheet which has been filed by the petitioner alongwith his rejoinder, it is clear that the charge-sheet was prepared on 5/3/2017, whereas the character verification form was filled up by the petitioner on 14/2/2017. Although there was an enquiry report by the Dy.SP in favour of the petitioner, but it is merely mentioned in the enquiry report that the name of the petitioner is liable to be removed, however, a legal opinion should be taken. This enquiry report by itself does not mean that the name of the petitioner was deleted or the police had decided not to take any action against him and the removal of his name was ever upheld by the Court. On the contrary, it is clear that the charge- sheet was filed in the month of March, 2017, i.e. subsequent to filling up of character verification form and thereafter, the cognizance was taken against the petitioner. Furthermore, the Division Bench of this Court in the case of Sanjay Singh & Ors. v. State of M.P. & Ors. reported in 2006(2) MPLJ 324 has already held that a parallel enquiry under Section 36 of Cr.P.C. during pendency of the investigation is not permissible. Accordingly, in the light of the judgment passed by this Court in the case of Sanjay Singh (supra), it is held that the enquiry report submitted by Dy.SP, Morena on 14 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others 22/12/2016 was nothing but a waste piece of paper, which cannot be taken note of for any purpose. Even otherwise, it is clear from the enquiry report that the plea of alibi of the petitioner was accepted only on the ground that the petitioner is working in some Toll Booth at Gujarat and as per the attendance register, the petitioner was present on 21/10/2016 and 22/10/2016 and in support of the said contention, the attendance register and the attested copy of the roaster was sent to the office of Dy.SP, however, the CCTV footage of the close circuit cameras installed in the Toll Tax Booth was not made available on the pretext that the backup capacity of DVR is only 15 days. It is clear from the reasoning given by Dy.SP, Morena that neither any order of appointment was filed by the petitioner nor his salary slips were provided. Mere signature on the attendance register on a particular day would not ipso facto mean that the petitioner was present on his duty, specifically when the register can be manipulated on any subsequent date. Under these circumstances, the CCTV footage of the Toll Tax Booth was important and although the Manager of the concerning Toll Tax Booth has said that the backup storage of the DVR of the close circuit cameras installed in the booth had a capacity of 15 days, but there is nothing on record to show that the petitioner had ever tried to request his employer to save the CCTV footage, so that it can be utilized at a later stage.
15 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.10791/2018 Pankaj Singh Tomar Vs. The State of M.P. and others
11. Be that whatever it may.
12. The crux of the matter is that the enquiry report submitted by Dy.SP, Morena was not accepted by the trial court and cognizance was taken against him and ultimately the petitioner was acquitted because of the fact that the prosecution witnesses had not supported the prosecution case. Accordingly, in the light of the judgment passed by the Supreme Court in the case of Pradeep Kumar (supra), Full Bench of this Court in the case of Ashutosh Pawar (supra), this Court is of the considered opinion that it is for the respondents to consider the suitability of an employee and since the Police Department is a disciplined uniform Force, therefore, any person with dubious background may not be suitable for the said Force and the conclusion drawn by the respondents in this regard cannot be said to be bad in law because a Police Constable is required to involve in maintenance of law and order situation and if an employee has a criminal background, then his coming into association with criminals cannot be ruled out. Accordingly, no case is made out warranting interference.
13. The petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.07.30 17:12:15 +05'30'