THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.25211 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, declaring Memo Rc.No.89/R&T/Rect.1/2020 dated 02.07.2020 issued by the second respondent/Chairman, State Level Police Recruitment Board, Andhra Pradesh, holding the acquittal of the petitioner's case as clean acquittal as arbitrary, illegal, contrary to law and consequently set-aside the same.
The factual matrix of the writ petition is as follows: In pursuance of the Notification vide Rc.No.165/R&T /Genl.1/2008 dated 06.06.2008 issued by the second respondent, inviting applications from the eligible candidates for selection and appointment to the post of Stipendiary Cadet Trainee - RSI (AR), the petitioner submitted an application. Due to lack of knowledge, the petitioner has not mentioned with regard to false criminal case filed against him in Column No.16, even though the said criminal case was ended in acquittal after issuance of the notification.
It is contended that the petitioner was falsely implicated in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station for the alleged offence punishable under Section 419 of Indian Penal Code (for short 'I.P.C') and Section 3 of A.P. Public Examination (Prevention of Mal-Practice and Unfair) Act, 1997 (for short 'the Act'). After completion of investigation, charge sheet was filed and the same was registered MSM,J WP.No.25211 of 2020 2 as C.C.No.454 of 2007. The petitioner was tried for the offences punishable under Section 419 I.P.C and Section 3 of the Act by the learned Judicial First Class Magistrate (henceforth 'Additional Junior Civil Judge, Markapuram', as it is mentioned in the order in C.C.No.454 of 2007). After full-fledged trial, the petitioner was found not guilty for various charges and acquitted under Section 248(1) Cr.P.C vide calendar and judgment dated 26.08.2009. After disposal of C.C.No.454 of 2007, the petitioner attended for preliminary selection conducted by the State Level Police Recruitment Board on 10.08.2009 and qualified. The petitioner appeared for Physical Measurement Test on 15.07.2010 and also appeared for Written Test on 13.08.2011 and 14.08.2011. In the month of December, 2011, the petitioner was selected for the post of Stipendiary Cadet Trainee - RSI (AR) (men).
While the matter stood thus, the second respondent/ Chairman, State Level Police Recruitment Board issued Memo dated 18.02.2012 cancelling the provisional selection list of the petitioner on the ground that he involved in a criminal case alleging an offence of moral turpitude. Thereupon, the petitioner filed O.A.No.2553 of 2012 before the A.P. Administrative Tribunal assailing the Memorandum issued by the second respondent vide Memo Rc.No.876/R&T/Gen.1/2011 dated 18.02.2012 cancelling his provisional selection. The said O.A. was allowed by the Tribunal, setting-aside the memo dated 12.08.2013. Aggrieved by the order passed by the Tribunal in O.A.No.2553 of 2012 dated 12.08.2013, Respondent Nos. 1 to 4 filed W.P.No.3639 of 2014. This Court disposed of W.P.No.3639 of 2014 following the orders MSM,J WP.No.25211 of 2020 3 passed in W.P.No.34535 of 2014 dated 23.01.2020 granting liberty to make representation to the second respondent and the second respondent was also directed to pass orders within three months from the date of receipt of such representation. Without considering the detailed representation submitted by the petitioner, enclosing the documents in proper perspective and without exercising discretion in the facts and circumstances of the case and keeping in view of the principles laid down by the Supreme Court, passed order ignoring the representation of this petitioner vide Memo Rc.No.89/R&T/Rect.1/2020 dated 02.07.2020.
It is the specific contention of this petitioner that, when the petitioner was acquitted honourably, finding him not guilty is sufficient to conclude that the petitioner is not guilty for offence involving on any moral turpitude. In fact, the Additional Judicial Civil Judge, Markapuram, acquitted this petitioner vide calendar and judgment dated 26.04.2009 in C.C.No.454 of 2007 and concluded as follows:
"11. In view of the above discussion this Court felt that as the prosecution failed to prove the guilt of the accused as well as their commission of offence and their identity as well as arrest of A.1 by P.W.4 on production of P.W. creates a reasonable doubt on the evidence of prosecution as well as there are discrepancies in the evidence of P.Ws.1 to 4, the accused are entitled for benefit of doubt. Thus, the prosecution has failed to establish its case against the accused for the offences with which they are charged. The point is answered in the negative.
12. In the result, Accused A.1 & A.2 are found not guilty of the offence u/s 419 IPC and Section 3 of A.P. Public Examination (Prevention of Malpractices) Act, 1997 and accordingly they are acquitted u/s 248(1) Cr.P.C. Their bail bonds shall stand cancelled."
MSM,J WP.No.25211 of 2020 4 Based on the findings extracted above, the petitioner contended that he attended for preliminary selection only after finding him not guilty by the criminal court. Therefore, the Tribunal in O.A.No.2553 of 2012 arrived at the conclusion that the order cancelling the provisional selection of this petitioner as illegal and the operative portion of the order is as follows:
"Following the above decisions of the Tribunal, Hon'ble High Court and also Hon'ble Supreme Court, the OA is allowed and the impugned orders dated 18.02.2012 in Rc.No.876/R&T/ Gen.1/2011 are set aside directing the respondents to appoint the applicant as Stipendiary Cadet Training (RSI) (AR) and send him for training"
One Maria Das filed O.A.No.1568 of 2014 before the Tribunal and the Tribunal allowed the said O.A. vide order 04.03.2014.
Aggrieved by the same, the respondents therein filed W.P.No.34535 of 2014 before the High Court. Division Bench of the High Court disposed of the writ petition on 23.01.2020. Since the issue involved in W.P.No.34535 of 2014 and W.P.No.3639 of 2014 are identical, the Division Bench disposed of W.P.No.3639 of 2014 on 27.01.2020, the operative portion of the order is as follows:
"2. Following the said order and for the reasons recorded therein, the present Writ Petition is disposed of, with a liberty to the 1st respondent herein to make a representation, within a period of one month from the date of receipt of a copy of this Order, and if any such representation is made, the authorities are directed to consider the same and pass appropriate orders/take appropriate action in terms of the guidelines laid down in the Judgments of the Hon'ble Apex Court in Avtar Singh v. Union of India and others and H.Abdul Sajid v. State Level Police Recruitment Board and others, without reference to the order impugned in the Original Application. The 1st respondent herein shall also enclose copies of the said Judgments referred to above and rendered by the Hon'ble Apex Court and also the Judgment of the Full Bench of this Court referred in B.Rama Krishna Yadav and others Vs the Superintendent of Police and others. This exercise shall be done and completed within a period of three (3) months from the date of submission of the said representation by the 1st respondent. It is needless to observe that appropriate orders shall be passed after giving opportunity of hearing to the parties. There shall be no order as to costs of the Writ Petition."
MSM,J WP.No.25211 of 2020 5 In pursuance of the direction of the Division Bench of this Court in W.P.No.3639 of 2014 dated 27.01.2020, the petitioner made a representation to the respondents, but it was not considered by the respondents and issued the order impugned in the writ petition without considering the plea of this petitioner in proper perspective.
It is further contended that, when the petitioner was found not guilty and acquitted honourably, the petitioner is entitled to be reinstated and that would not amount to guilty of moral turpitude placed reliance on the decisions of the Supreme Court in Deputy Inspector General of Police v. S. Samuthiram1, Commissioner of Police v. Sandeep Kumar2 and D. Mahadevan v. The Director General of Police3 demonstrating the words 'honourable acquittal'. On the basis of the principles laid down by the Apex Court in the judgments referred supra, it is contended that this petitioner was honourably acquitted and the alleged failure to disclose the involvement of this petitioner in a crime is not a ground to reject his selection.
The petitioner contended that, the expression 'moral turpitude' is not capable of precise definition in Pawan Kumar v. State of Haryana4 . Even if the principle laid down in the above judgment is applied, the acquittal of this petitioner for the offences punishable under Section 419 of I.P.C and Section 3 of the Act is 1 2013 (1) SCC 598 2 (2011) 4 SCC 644 3 (2008) 4 MLJ 88 4 (1996) 4 SCC 17 MSM,J WP.No.25211 of 2020 6 in accordance with law. However, the second respondent without considering the effect of acquittal of this petitioner and the effect of alleged non-disclosure of information about his involvement in a crime, passed the order illegally and contrary to law, which deprived this petitioner from securing public employment and thereby, it is violative of Articles 14, 16 and 21 of the Constitution of India and requested to issue a direction as claimed.
Learned Government Pleader for Services-II filed counter affidavit, admitting about application made by this petitioner, his participation in the selection process for appointment as Stipendiary Cadet Trainee - RSI (AR), issue of order of cancellation of appointment and challenge thereto by the Tribunal in O.A.No.2553 of 2012 and the order passed by the Tribunal. The respondents admitted about filing of W.P.No.3639 of 2014 dated 27.01.2020, it's disposal by the Division Bench of this Court with a direction to make representation before the second respondent for consideration of the candidature of this petitioner for being appointed as Stipendiary Cadet Trainee - RSI (AR) and issue of impugned order.
The specific contention raised before this Court is that, after provisional selection during antecedents verification, it was found that the petitioner had involved in criminal case, Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station for the offences punishable under Section 419 I.P.C and Section 3 of the Act. The said criminal case ended in acquittal vide calendar and judgment in C.C.No.454 of 2007 dated 26.04.2009 by MSM,J WP.No.25211 of 2020 7 the Additional Junior Civil Judge, Markapuram, since the candidate had involved in criminal case, his provisional list was cancelled by the second respondent/Chairman, State Level Police Recruitment Board vide Memo impugned Rc.No.89/R&T/ Rect.1/2020 dated 02.07.2020 as per Rule 3(G)(vi) of A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 issued in G.O.Ms.No.315 Home (Police-C) Department dated 13.10.1999 read with G.O.Ms.No.97 Home (Legal-II) Department dated 01.05.2006.
The specific contention of this petitioner is that, in pursuance of the direction issued by the Division Bench of this Court in W.P.No.3639 of 2014 dated 27.01.2020, representation submitted by this petitioner was received, considered and rejected by the second respondent without passing speaking order in Rc.No.89/R&T/Rect.1/2020 dated 02.07.2020, recording the following findings:
1. He was involved in an offence involving moral turpitude. As per para 38.4.3 in Avatar Singh case "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."
In the trial court judgment, the Hon'ble Judge has given benefit of doubt to the candidates and it is not the case of clean acquittal and therefore the candidature of Sri I. Ashok Reddy, is rejected.
2. As per Rule 3(G)(vi) of A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 issued in G.O.Ms.No.315 Home (Police-C) Department dated 13.10.1999 read with G.O.Ms.No.97 Home (Legal-II) Department dated 01.05.2006, where the person is involved in an offence involving moral turpitude, he is considered to be disqualified.
Thus, a detailed reasoned order was passed by the second respondent rejecting the candidature of this petitioner, holding the cancellation of the provisional selection. It is also contended that MSM,J WP.No.25211 of 2020 8 the petitioner is involved in malpractice in the public examinations, as the petitioner herein was found impersonating one person Mr. Yelchuri Srikanth in III Year Mathematics Paper of Acharya Nagarjuna University Degree Examination, on 02.08.2007, he was red-handedly caught involved in malpractices. On report of the invigilator, a criminal case was registered against this petitioner at Markapur Town Police Station, Prakasam District and later, investigated into and filed final report and that, after full-fledged trial, the petitioner was found not guilty extending benefit of doubt. Therefore, it is contended by the learned Government Pleader for Services-I, that the act of this petitioner would amount to moral turpitude and by applying the guidelines laid down in Avtar Singh v. Union of India and others (referred supra) and H.Abdul Sajid v. State Level Police Recruitment Board and others (referred supra), request of this petitioner was rejected and thus, there is absolutely no illegality in the order impugned in the writ petition and requested to dismiss the writ petition.
During hearing, Sri M. Naga Raghu, learned counsel for the petitioner contended that, when this petitioner was not guilty and acquitted honourably, failure to disclose such involvement in a crime and pendency of calendar case is not a ground to reject his candidature for selection and thereby, cancellation is illegal.
Learned counsel for the petitioner also further gone to the extent of submitting the meaning of honourable acquittal referring to various judgments and also meaning of moral turpitude in the judgments referred above. On the strength of those principles, MSM,J WP.No.25211 of 2020 9 learned counsel for the petitioner contended that, when the petitioner was found not guilty and acquitted for the offences punishable under Section 419 I.P.C and Section 3 of the Act, i.e. impersonation in the public examination for Yelchuri Srikanth, does not amount to moral turpitude, as defined in Pawan Kumar v. State of Haryana (referred supra). Even according to the principle laid down in Avtar Singh v. Union of India and others (referred supra), the petitioner is entitled to be appointed as Reserve Sub-Inspector setting-aside the order. But the second respondent did not consider the effect of orders and law laid down by the Apex Court and this Court in various judgments referred supra and rejected the representation, passing the impugned order and thereby the same is illegal, arbitrary and liable to be set-aside.
Sri N. Aswartha Narayana Learned Government Pleader for Services-I would contend that, suppression of a material fact, in the application form i.e. non-disclosure of involvement of this petitioner in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Town Police Station, its trial in C.C.No.454 of 2007 on the file of learned Additional Junior Civil Judge, Markapuram, for the offences punishable under Section 419 I.P.C and Section 3 of the Act, is a matter of serious concern, since the petitioner is an aspirant for appointment in a disciplined police force in the State, the degree of fairness and behaviour is higher in the police department than any other department. When the police himself is guilty of an offence involving in moral turpitude, more particularly, impersonating in public examination, he is not supposed to be appointed as Stipendiary Cadet Trainee - RSI (AR) MSM,J WP.No.25211 of 2020 10 and only by applying the principle laid down by the Apex Court in Avtar Singh v. Union of India and others (referred supra), representation of this petitioner was rejected by the second respondent and thereby, there is no illegality or irregularity to declare the same as violative of Articles 14 and 21 of the Constitution of India and requested to dismiss the writ petition.
In view of the argument, the point to be answered by this Court upon considering the material on record is as follows: Whether the petitioner suppressed the material information in Column No. 16 of the application form and whether the offences allegedly committed by this petitioner in C.C.No.454 of 2007 are an involvement in moral turpitude. If not, whether acquittal of this petitioner is honourable acquittal. If so, whether rejection of the representation of this petitioner by the second respondent by impugned order is in accordance with law. If not, liable to be set-aside and issue a direction to appoint this petitioner as Reserve Sub-Inspector?
P O I N T:
Undisputedly, the petitioner made an application in pursuance of the Notification dated 06.06.2008 issued by the respondent, inviting applications from the eligible candidates for selection and appointment to the post of Stipendiary Cadet Trainee
- RSI (AR). The petitioner submitted an application specifically mentioning in Column No.16 of the application that he did not have any criminal record. The petitioner did not disclose the details of his involvement in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station and trial in C.C.No.454 MSM,J WP.No.25211 of 2020 11 of 2007 on the file of learned Additional Junior Civil Judge, Markapuram, for the offences punishable under Section 419 I.P.C and Section 3 of the Act.
Whether such non-disclosure amounts to suppression of material fact which disentitled the petitioner to claim appointment to the post of Stipendiary Cadet Trainee - RSI (AR) needs to be examined by this Court.
The petitioner did not disclose the information in Column No.16 of the application. It is silent as to whether the petitioner discloses the information in the attestation forms submitted by this petitioner of his provisional selection for antecedent enquiry about his involvement in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Town Police Station, filing of final report and registration of the same as C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram, trial of the case by the Additional Junior Civil Judge, Markapuram and his acquittal.
Undisputedly, the petitioner suppressed or failed to disclose the information regarding his involvement in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station and facing trial in C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram, for various offences referred supra. The notification was issued on 06.06.2008 and Crime No.132 of 2007 was registered against this petitioner on 02.08.2007. Thus, by the date of submitting application by this petitioner, he is already arrayed as accused in Crime No.132 of MSM,J WP.No.25211 of 2020 12 2007 and facing trial in C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram. But, obviously for reasons known to the petitioner, the said information was not disclosed in the application itself. The involvement of this petitioner was detected for the first time only during antecedent verification based on the attestation form submitted by this petitioner of his provisional selection. On the ground of suppression of material fact, more particularly, involved by this petitioner in crime, his provisional selection was cancelled. The basis for cancellation of selection is the principle laid down by the Apex Court in Avtar Singh v. Union of India and others (referred supra) and H.Abdul Sajid v. State Level Police Recruitment Board and others (referred supra).
In Avtar Singh v. Union of India and others (referred supra), the Apex Court laid down the following guidelines:
"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.
(1) 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. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(2) 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 : -
(3) 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.
MSM,J WP.No.25211 of 2020 13 (4) 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 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."
In H.Abdul Sajid v. State Level Police Recruitment Board and others (referred supra), the Apex Court reiterated the principle laid down earlier by the Apex Court in Avtar Singh v. Union of India and others (referred supra).
MSM,J WP.No.25211 of 2020 14 It is clear from the guidelines laid down by the Apex Court that the second respondent is required to pass appropriate order considering the guidelines. However, in the recent judgment, the Apex Court in The State Of Odisha vs Gobinda Behera5, wherein the Apex Court considered the principle laid down in Avtar Singh v. Union of India and others (referred supra) and held that, when the respondent was seeking public employment in the State police service, his duties, on appointment to the service, would be of a responsible character, bearing intrinsically on the maintenance of law and order and with consequences for personal liberty of citizens. To expect that an applicant for such a position would be truthful in the disclosure of information sought about the antecedents is a justifiable basis for assessment of personality and character. The employer can legitimately conclude that a person who has suppressed material facts does not deserve to be in its employment.
In the facts of the above judgment, the case against the respondents therein i.e applicant cannot be regarded as being trivial in nature. That apart, it is evident that, despite being involved in a criminal case, the respondents suppressed those facts from the authorities while competing for the Stipendiary Cadet Trainee - RSI (AR) post. The criminal case was acquitted by exercising jurisdiction under Section 482 Cr.P.C on the basis of compromise between the parties, after the order of discharge. 5 Civil Appeal No 893 of 2020 dated 31.01.2020 MSM,J WP.No.25211 of 2020 15 Hence, the view which has been taken by the High Court is appealable in rejecting the application.
In the present case, the petitioner is aspirant of Stipendiary Cadet Trainee - RSI (AR), which is a disciplined force. Admittedly, the petitioner did not disclose the information about registration of Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station against him and arraying him as accused in C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram. If, the principle laid down in The State Of Odisha v. Gobinda Behera (referred supra) is applied to the present facts of the case, the petitioner is disentitled to claim any relief in this petition.
In Avtar Singh v. Union of India and others (referred supra), the entire law on this issue was considered while referring the earlier judgment of the Apex Court in the case of Jainendra Singh versus State of Uttar Pradesh & Ors6 has referred the matter to the Larger Bench, when faced with the divergent views on the issue, and the matter was placed before the Hon'ble Three Judges in the above noted case and the reference reads as under:-
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an ( Satish Kumar vs. UOI & Ors.) issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel 6 2012(8) S.C.C. 748 MSM,J WP.No.25211 of 2020 16 against the employer. 29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents, the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5. Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.' Only after analyzing the observations made therein and the other material, the Apex Court in Avtar Singh v. Union of India and others (referred supra), laid down the above guidelines. Considering those guidelines, the Apex Court in The State Of Odisha vs Gobinda Behera (referred supra) held that the petitioner is not entitled to claim the said relief.
In Devendra Kumar versus State of Uttaranchal & Ors7, the Apex Court has considered the similar proposition with regard to a candidate who had applied for the post of constable in state of Uttaranchal and did not disclose pendency of criminal case and also filed affidavit stating contrary and subsequently when it was found that he had involved in a criminal case, the department cancelled his appointment as he had suppressed the material fact that he was involved in a criminal case involving moral turpitude. 7 2013(9) S.C.C. Page 363 MSM,J WP.No.25211 of 2020 17 The Court did not find any ground for sympathy with him and after analyzing law on the subject recorded its finding in para 26 which reads as under:
"The courts below have recorded a finding of fact that the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case. In view of the above, the appeal is devoid of merit and is accordingly dismissed."
In the light of the above judicial pronouncements, it can safely be concluded that if an aspirant applies for employment and furnishes incorrect information or suppresses material information, which is required for verification of antecedents, then he can be non-suited to claim appointment. 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 an employee. Therefore, a single yardstick cannot be taken as a measure to deal with all cases. But suppression of an information and not filling up the requisite columns which are mandatory, rendered an aspirant to declare him unfit for the post whether his offence is minor or major which will be decided after the decision by the criminal court.
Thus, it is clear from the law laid down by the Apex Court in the judgments referred above, the very failure to disclose information amounts to suppression of material fact and that itself is sufficient to conclude that the petitioner is guilty of moral MSM,J WP.No.25211 of 2020 18 turpitude to cancel the petitioner's selection in the provisional selection list.
One of the contentions of the learned Government Pleader for Services-I is that, in the notification itself, certain conditions were mentioned. Clause 3(G) of G.O.Ms.No.97 Home (Legal-II) Department dated 01.05.2006 deals with disqualification for appointment of candidates falling under the following categories and it reads as follows:
The candidates falling under the following categories shall be disqualified for appointment, under these Rules.
(i) Suppression of material facts (either in the application form or in the attestation form)
(ii) If the candidate himself or through his relatives or friends or any other has canvassed or endeavoured to enlist extraneous support whether from official or non-official sources for his candidature.
(iii) A person (a) who has entered into or contracted marriage with a person having a spouse living, or (b) who, having a spouse living, has entered into or contracted a marriage with any other person. Provided that the State Government may, if satisfied that such marriage is permissible under the personal law applicable to such person, exempt any person from the operation of this rule.
(iv) A person who has been dismissed from the services of a State or Central Government or from the service of any Central or State Government undertaking or local body or other authority.
(v) A person who has been convicted for any offence in any court of law.
(vi) A person who is involved in an offence involving moral turpitude."
Admittedly, the petitioner did not disclose necessary information about his involvement in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station and arraying as an accused in C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram for the offences punishable under Section 419 I.P.C and Section 3 of the Act. C.C.No.454 of 2007 was ended in acquittal by the Judicial Magistrate of First Class, after participation in the selection process. Therefore, when such a material fact regarding MSM,J WP.No.25211 of 2020 19 involvement in a criminal case is suppressed, he is disqualified for appointment in terms of Clause 3(G)(i) of G.O.Ms.No.97 Home (Legal-II) Department dated 01.05.2006. Accordingly, the point is answered in favour of the respondents and against the petitioner.
One of the major contention of the learned counsel for the petitioner is that, when the petitioner was unemployed and the alleged impersonation of Mr. Yelchuri Srikanth in III Year Mathematics Paper of Acharya Nagarjuna University Degree Examination, on 02.08.2007, does not amount to moral turpitude and relied on the judgment of the Apex Court in Pawan Kumar v. State of Haryana (referred supra), wherein the Apex Court considered the concept of 'moral turpitude' and candidly held that, "Moral Turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.
The expression "moral turpitude" is not defined in statutes. However, in some government orders and in judgments, some indications/illustrations of its meaning are given. The expression 'offence involving moral turpitude' is frequently used to denote a disqualification for holding a public office, whether elected or otherwise. Moral turpitude is an act or behaviour that gravely violates the sentiment or accepted standard of community, or a quality of dishonesty, or other immorality that is determined by a court of law to be present in the commission of a criminal offence.
In Wikipedia, the free encyclopedia, "moral turpitude" is defined as "Moral Turpitude is the gross disregarding MSM,J WP.No.25211 of 2020 20 of moral standards expected of a human being while doing some activity or crime. Eg. Raping in front of the parents." The interpretation of moral turpitude also had been referred to and under the category Crimes Committed Against Person, Family Relationship, and Sexual Morality it was shown Bigamy; Contributing to the delinquency of a minor; Gross indecency; Interest (if the result of an improper sexual relationship); Kidnapping; Lewdness; Manslaughter - Voluntary, Involuntary, where the statute requires proof of recklessness; Mayhem; Murder; Pandering: Prostitution; Rape (including "Statutory rape" by virtue of the victim's age); Sodomy.
Likewise in the said Dictionary, the word 'Turpitude' is defined that, Inherent baseness, vileness, or depravity.
The test which should ordinarily be applied and which should in most cases be sufficient for judging whether a certain offence does or does not involve moral turpitude appears to be 1) whether the act leading to a conviction was such as could shock the moral conscience of society in general, 2) whether the motive which led to the act was a base one and whether account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
"Moral turpitude" is a phrase which can hardly be accurately defined. It can have various shades of meaning in the various sets of circumstances. The concept of moral turpitude escapes from precise definition, but has been MSM,J WP.No.25211 of 2020 21 described as an act of baseness, vileness or depravity in private and social duties which a man owes to fellow men and to the society in general. In criminal law, the expression moral turpitude is used to describe the conduct that is considered contrary to community standards of justice, honesty and good morals. The expression moral turpitude can also be described as the criminal behaviour that is inherently bad, which is known as "malum in se" in contrast to the behaviour that is bad merely because it is forbidden in law, known as "malum prohibitum."
In Pawan Kumar v. State of Haryana, the Supreme Court held that, "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.
In Sushi Kumar Singhal v. Punjab National Bank, the Supreme Court held that, "...it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities."
In Baleshwar Singh v. District Magistrate and Collector8, the Allahabad High Court held that, "The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person 8 AIR 1959 All 71 MSM,J WP.No.25211 of 2020 22 charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If, therefore, the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man."
Therefore, involvement of the petitioner in Crime No.132 of 2007 on the file of Station House Officer, Markapuram Police Station which is registered as C.C.No.454 of 2007 on the file of Additional Junior Civil Judge, Markapuram, for impersonating Mr. Yelchuri Srikanth in III Year Mathematics Paper of Acharya Nagarjuna University Degree Examination, on 02.08.2007, strictly amounts to involvement in case of moral turpitude.
It is contended by the learned counsel for the petitioner that, when the petitioner was found guilty and acquitted honourably, cancellation of his appointment is a grave illegality. The petitioner extracted the finding of the Additional Junior Civil Judge, Markapuram in C.C.No.454 of 2007. In paragraph No.9, the Additional Junior Civil Judge, Markapuram recorded the facts leading to lodging a report against this petitioner and ultimately in Paragraph Nos. 11 & 12, specific finding is recorded and the same is extracted hereunder:
MSM,J WP.No.25211 of 2020 23 "11. In view of the above discussion this Court felt that as the prosecution failed to prove the guilt of the accused as well as their commission of offence and their identity as well as arrest of A.1 by P.W.4 on production of P.W. creates a reasonable doubt on the evidence of prosecution as well as there are discrepancies in the evidence of P.Ws.1 to 4, the accused are entitled for benefit of doubt. Thus, the prosecution has failed to establish its case against the accused for the offences with which they are charged. The point is answered in the negative.
12. In the result, Accused A.1 & A.2 are found not guilty of the offence u/s 419 IPC and Section 3 of A.P. Public Examination (Prevention of Malpractices) Act, 1997 and accordingly they are acquitted u/s 248(1) Cr.P.C. Their bail bonds shall stand cancelled."
As seen from Paragraph No.11 recorded by the Magistrate, based on benefit of doubt, the petitioner was acquitted and such acquittal does not amount to honourable acquittal.
The term "Honorable acquittal" is nowhere defined under our laws and it is the invention of Indian judiciary. The factum of acquittal and the distinction between 'honorable acquittal' and 'acquittal on benefit of doubt', has been explained by the Division Bench of Madras High Court in W.A.No.1287 of 2008, dated 02.09.2009.
........In the absence of any definition in the code of Criminal Procedure, it is very difficult to define what is the meaning of the words "honourable acquittal". Again it depends upon the facts and circumstances of each case. The Court could reasonably presume that if an accused is acquitted or discharged because of some technicality not having been complied with or on the ground that though there is some evidence against him, he must be acquitted by giving the benefit of doubt, it may not amount to an honourable acquittal. On the other hand, if an accused is acquitted after full consideration of evidence because the prosecution witnesses are disbelieved and the prosecution has miserably failed to prove the charges, it would amount to an honourable acquittal. In the event the Court while acquitting an accused neither say that the case against him is false nor does it say that the accused has been acquitted on the ground of benefit of doubt, then the acquittal may be honourable acquittal or acquittal of all blame." The Supreme Court in Deputy Inspector of Police and ors Vs. S. Samuthiram (referred supra) had the opportunity to MSM,J WP.No.25211 of 2020 24 discuss in brief about the "Honorable acquittal". The conclusion in said Judgement inter alia reads as follows:
".... The meaning of the expression 'honourable acquittal' came up for consideration before this. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted"
There exists a thin line between "acquittal" and "Honorable acquittal". Thus, from the findings of the courts extracted above, it can be apparently inferred that if an accused is acquitted not because of the fact that he is innocent but owing to the failure on the part of prosecution to prove the guilt with sufficient evidence, it would not be considered as Honorable acquittal. In other words, if an accused is acquitted by extending the benefit of doubt, then it would not amount to Honorable acquittal. But, on the other hand if an accused is acquitted after giving full consideration to the evidence placed on record and if the court is of the opinion that prima facie no case is made out against the accused, it may very well come within the ambit of the term "Honorable acquittal".
Indisputably, this Court has gone through the law laid down by the Courts and found the following judgments to find out the meaning of 'honourable acquittal' and whether acquittal of an accused extending the benefit of doubt amounts to honourable acquittal when the witness turned hostile or did not support the case of prosecution.
MSM,J WP.No.25211 of 2020 25 In Yogendra Singh v. State of Rajasthan9, the Division Bench of the Rajasthan High Court while dismissing the special appeal of the petitioner therein at the admission stage observed that in view of the law laid down by the Supreme Court in Delhi Administration v. Sushil Kumar10 held that concealment of the fact of conviction is a good ground for not offering the post of Constable irrespective of the fact whether such conviction or acquittal amounts to moral turpitude or not."
Learned counsel for the petitioner has extracted several judgments in the affidavit itself to distinguish honourable acquittal and acquittal extending benefit of doubt. He also relied on judgment of the Apex Court in Deputy Inspector General of Police v. S. Samuthiram (referred supra), wherein the Apex Court held as follows:
"The meaning of the expression 'honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal11. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
Learned counsel for the petitioner relied on the judgment of the Apex Court in Commissioner of Police v. Sandeep Kumar12 9 Civil Special Appeal (Writ) No. 425/98 decided on 14.09.1999 10 1997 (5) SCC 159 11 (1994) 1 SCC 541 12 (2011) 4 SCC 644 MSM,J WP.No.25211 of 2020 26 where the respondent Sandeep Kumar's candidature for the post of Head Constable had been cancelled on ground that he had concealed his involvement in a criminal case under Sections 325 I.P.C when he was aged about 20 years. In those circumstances, the Supreme Court held as follows:
"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 been 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.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 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."
Similarly, the Madras High Court in D. Mahadevan v. The Director General of Police13 held that, if acquittal of any accused is honourable acquittal, then he shall not be debarred from any Government job on basis of previous involvement in crime.
On the strength of those principles, learned counsel for the petitioner contended that when the petitioner is not guilty and acquitted honourably, cancellation of provisional selection is illegal.
In view of the law laid down by various Courts and even applying the principle laid down by the Apex Court in Deputy 13 (2008) 4 MLJ 88 MSM,J WP.No.25211 of 2020 27 Inspector General of Police v. S. Samuthiram (referred supra), mere acquittal is not sufficient to reinstate an employee or appoint any person in any public employment and it must be honourably. But, when the witness has turned hostile and did not support the prosecution case, the Court came to conclusion that the accused is entitled for benefit of doubt and acquitted the accused, extending benefit of doubt, which cannot be said to be honourable acquittal, in view of the law laid down by various Courts in the judgments referred supra.
Turning to the facts of the present case, the petitioner was charged for the offences punishable under Section 419 I.P.C and Section 3 of the Act. On account of failure to prove the case of the prosecution, beyond reasonable doubt, the Additional Junior Civil Judge, Markapuram concluded that this petitioner is entitled for benefit of doubt and acquitted the accused for the offences, extending benefit of doubt in Paragraph No.11 of the judgment in C.C.No.454 of 2007. Therefore, such acquittal of this petitioner in C.C.No.454 of 2007 by the Additional Junior Civil Judge, Markapuram cannot be said to be an honourable acquittal and it is only based on benefit of doubt.
Learned counsel for the petitioner further placed reliance on the judgment of the Division Bench of this Court in The Chairman, State Level Police Recruitment Board v. B. Lokeswaraiah14, wherein the Division Bench, considered the issue of involvement of the petitioner in a crime involving moral 14 W.P.No.1817 of 2015 dated 12.03.2015 MSM,J WP.No.25211 of 2020 28 turpitude and held in favour of the petitioner therein. Though, I am one of the Member in the Division Bench, but, in view of the law declared by the Apex Court in Avtar Singh v. Union of India and others (referred supra) and in The State Of Odisha v. Gobinda Behera (referred supra), it is difficult to apply the same principle to the present facts of the case.
After analyzing the entire law referred above, it is clear that the members of police force have to maintain highest degree of discipline being a law enforcing agency. But here, the petitioner himself is involved in offences punishable under Section 419 I.P.C and Section 3 of the Act and impersonated Mr. Yelchuri Srikanth in III Year Mathematics Paper of Acharya Nagarjuna University Degree Examination, on 02.08.2007. Such act of this petitioner would seriously impede the faith in the public examination system and he is responsible for securing marks by the original student Yelchuri Srikanth by illegal methods, in case, if he is allowed to write the examination by impersonating him. But, due to detection by the invigilator, such illegality is prevented.
When the malafides of the petitioner is apparent due to his involvement in such offences, though acquitted by extending benefit of doubt, he is not suitable for being appointed as Stipendiary Cadet Trainee - RSI (AR), since his duty is to detect and curb such illegalities in the future in case he is appointed. But, when the petitioner himself is accused of such offences, he is not expected to detect such offences and conduct investigation MSM,J WP.No.25211 of 2020 29 fairly, thereby, cancellation of provisional selection of this petitioner cannot be said to be an illegality.
In view of my foregoing discussion, I find that the petitioner who suppressed the material information in the application form, though disclosed in attestation form placed on record by the learned Government Pleader for Services-I disclosing his involvement and reporting acquittal by Court, it is sufficient to conclude that the petitioner intentionally suppressed a material fact which is mandatory. If, such disclosure is made at the time of scrutiny of his application, the competent authority would have taken a decision by that stage itself. But, because of suppression of material fact, the petitioner was allowed to participate in the examination and further process of recruitment. This itself indicates the malafide intention of this petitioner to secure employment by suppressing material fact, thereby, he is disentitled to claim any relief in the writ petition. Consequently, the writ petition is liable to be dismissed.
In the result, writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:26.03.2021 SP