State Of Kerala, Represented By vs Vinod. R
2024 Latest Caselaw 32559 Ker

Kerala High Court

State Of Kerala, Represented By vs Vinod. R on 11 November, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

OP(KAT)No.384 of 2024
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                                                   2024:KER:84008

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

            THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

  MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946

                        OP(KAT) NO. 384 OF 2024

        AGAINST THE ORDER DATED 06.08.2024 IN OA NO.2309 OF 2023

OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONERS/RESPONDENTS 1 TO 4 IN O.A.:

    1       STATE OF KERALA, REPRESENTED BY
            THE SECRETARY TO GOVERNMENT,
            HOME DEPARTMENT,
            GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM,
            KERALA, PIN - 695001

    2       THE STATE POLICE CHIEF/DIRECTOR GENERAL OF POLICE,
            POLICE HEADQUARTERS,
            VAZHUTHACAUD, THIRUVANANTHAPURAM,
            KERALA, PIN - 695014

    3       THE COMMANDANT,
            OFFICE OF THE KERALA ARMED POLICE BATTALION V,
            KUTTIKANAM, IDUKKI, KERALA,
            PIN - 685531

    4       THE STATION HOUSE OFFICER,
            MALAYINKEEZHU POLICE STATION,
            NEYYAR DAM ROAD, MALAYINKEEZHU,
            THIRUVANANTHAPURAM,
            KERALA,
            PIN - 695571


            BY SR.GOVERNMENT PLEADER SMT.NISHA BOSE
 OP(KAT)No.384 of 2024
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                                                  2024:KER:84008

RESPONDENTS/APPLICANT IN O.A.:

            VINOD. R,
            AGED 31 YEARS
            S/O RAVI.K, RESIDENT OF VINOD BHAVAN, PLAVILA,
            CHOOZHATTUKOTTA, MALAYAM P.O, THIRUVANANTHAPURAM,
            KERALA, PIN - 695571


     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 11.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 OP(KAT)No.384 of 2024
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                                                               2024:KER:84008




                                 JUDGMENT

P.Krishna Kumar, J.

This original petition is preferred by the State

aggrieved by the order dated 6/8/2024 in

O.A.No.2309/2023 of the Kerala Administrative

Tribunal, in which the State was directed to appoint

the respondent herein as a Police Constable on a

provisional basis within two weeks, subject to the

outcome of a criminal case initiated against him.

2. In the original petition, the State contended

that, during the verification of the character and

antecedents of the respondent, the Additional

Director General of Police (Intelligence) found that

he is involved in Crime No. 208/2020, which is

registered alleging offences punishable under

Sections 354 (D)(1), 451 and 506(i) of the Indian

Penal Code, that the said case is pending before the

Judicial First Class Magistrate Court, Kattakkada and

thus the respondent is not suitable for the post of

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Police Constable.

3. The impugned order is challenged mainly on the

ground that the Tribunal exceeded its jurisdiction by

overlooking the statutory mandates and the legal

principles set forth by various precedents and in

particular, Rule 10(b)(iii) of Part II of the Kerala

State and Subordinate Service Rules, 1958 (for short,

"KS & SSR") which specifies that no person shall be

eligible for appointment to any service by direct

recruitment unless the Government is satisfied that

his character and antecedents are such as to qualify

him for such service. The finding of the Tribunal

that, if the said rule is read together with Section

86 of the Police Act, the respondent could be

appointed on provisional basis, is specifically

assailed in this original petition.

4. The basic substratum of the aforementioned

contentions of the State is the pendency of a

criminal case against the respondent herein, as

stated above. However, this court has quashed the

said proceedings as per order dated 11/11/2024 in

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Crl.M.C.No.2356/2022, on a finding that none of the

ingredients of the criminal offences alleged against

him are made out in the final report submitted by the

police.

5. Earlier, a Division Bench of this Court in

State of Kerala v. Durgadas (2023 (6) KHC 339) has

laid down that the Government must be satisfied with

the character and antecedents of a candidate before

appointing him in service, as provided in Rule 10(b)

(iii) of the KS&SSR, even in cases where Section 86

of the Kerala Police Act, 2011 is applicable. The

court held as follows:

"8. The Kerala Subordinate Service

Rules are general provisions governing

members of the State Subordinate Services.

The Kerala Police Act is a Special Statute

related to the Police force in the State.

Under Section 86(2) of the Kerala Police

Act, there is no bar even for a person

against whom criminal cases are pending for

an offence involving proclivity of violence

or moral turpitude, to get appointment

temporarily. The permanent appointment will

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be only after being acquitted. Thus, the

provisions of the Kerala Police Act do not

bar Durga Das claiming for selection and

permanent appointment in the light of his

acquittal. But that does not mean on such

acquittal, the candidate will have a free

walk to the post. The question then falls

is whether the character and antecedent do

required to be adverted for appointment in

public service, even after the acquittal,

we must say yes if law desires so, if such

appointment requires character

verification. The criminal case or such

other proceedings are all relevant factors

for objective enquiry not the factor

itself. It is to be noted that KS&SSR is a

general provision and still would govern

the candidates aspiring as a member of the

State and subordinate services. The

allegations in the criminal case can be

considered independently to assess the

character and integrity of a person. The

acquittal in a criminal case will not

automatically entail him for qualifying in

public service. This is the perplexed

question in this matter which requires

clarification on the law. In an enquiry

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related to character and integrity, what

matters for the Government, is the point to

be considered by us. The Government,

objectively is enquiring character and

antecedents to find whether such a person

can be appointed in any post in such

service. In that process, the criminal case

records including civil cases may be

relevant, if it reflects the character and

antecedents of such a person. The scope of

enquiry in such a situation is to find out

whether the allegations and materials would

qualify him to occupy the office in the

service or not. It is not the final outcome

of such a case that is decisive but the

relevant finding in such cases is material.

We have fashioned through judicial

language; the phrase, 'honourable

acquittal', to denote that the findings in

that are material or relevant in an

assessment of the character and

antecedents. In a criminal case, there may

be findings reflecting character but may be

short of a criminal offence for want of

elements constituting the offence. Still

that may be valid or relevant in assessing

the character of a person concerned though

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the ultimate outcome might have resulted in

acquittal. In that process of enquiry, what

concerns the Government is whether the

findings disclosed in the criminal

investigation or any other dispute are

having a ramification on the character of

the persons concerned. In that process, the

Government being an employer, is not

looking at the final outcome. No doubt, in

the final outcome, process results in

conviction, without much labour the

character can be assessed. But in a case,

where the person concerned is acquitted for

want of evidence the Government has to

conduct an enquiry as to whether the

materials as such (not the allegations

alone) reflect upon the character and

antecedents of the person. If the materials

including allegations as such do not

disclose anything tainted as to the

character of persons concerned, based on

the mere allegations in the prosecution

case, the Government cannot hold that the

character would disqualify him in the

service. In such a situation, the

Government will have to conduct an

independent enquiry to assess the character

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and antecedents of the person concerned

with reference to the incident which was

the subject matter of the criminal case.

The Government cannot merely restate the

allegations in the prosecution and hold

that the character is bad to make him

unsuitable for the post. Thus, we make it

clear that in criminal cases where the

prosecution cases end up in acquittal if

the Government cannot form an opinion based

on the prosecution allegations and other

materials including the finding entered by

the criminal court as to the character of

the person, the Government is bound to

conduct separate enquiry as to the

character antecedents of the person. Thus,

mere registration of the criminal case will

not enable the Government to disqualify

such a person from becoming a member of

service."

6. This court ordinarily quashes a criminal case

when it finds that the case records do not prima

facie reveal the offences alleged in the charge

sheet/complaint. However, while making an assessment

as contemplated under Rule 10(b)(iii) of KS & SSR,

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the competent authority may be required to consider

the same set of facts which resulted in the

registration of the criminal case which was quashed

by the court so as to get satisfied that the

character and antecedents of the candidate are such

as to qualify him for the service. While quashing a

criminal proceeding, the focus of the court will be

mainly on whether the alleged conduct of the accused

amounts to the criminal acts defined under the

relevant penal statute. Thus, the finding that the

acts of the accused fall short of the criminal

offences charged for want of essential elements

constituting the statutory offences, will not

foreclose the competent authority to arrive at an

independent finding while assessing the antecedents

of the candidate, even based on the same set of

facts. As this court has held in Durgadas's case

(supra), the authority has to form such an opinion

not by reproducing the allegations in the criminal

case, but by forming an opinion from the materials

gathered during the enquiry.

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7. In view of the above fact, the petitioner/State

is directed to take a fresh decision in the matter

within three months from the date of receipt of a

copy of this judgment, in the light of the above

discussion. The impugned order is modified to the

above extent.

The Original Petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

P. KRISHNA KUMAR JUDGE sv

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APPENDIX OF OP(KAT) 384/2024

PETITIONER'S ANNEXURES

Annexure A1 TRUE COPY OF ADVICE MEMO NO.IDE(1)346/2018 DATED 08/07/2020 OF THE DISTRICT OFFICER, KPSC, IDUKKI

Annexure A2 TRUE COPY OF LETTER NO.A2-11701/2020/KAP

-V DATED 01/10/2020 OF THE THIRD RESPONDENT

Annexure A3 TRUE COPY OF THE FIR

OF THE MALAYINKEEZHU POLICE STATION BEFORE THE JFMC, KATTAKADA

Annexure A4 TRUE COPY OF INTERIM ORDER DATED 29/01/2021 IN OA 2006/2020 OF THE HONOURABLE TRIBUNAL, THIRUVANANTHAPURAM

Annexure A5 TRUE COPY OF THE APPOINTMENT ORDER NO.A2-11701/2020/KAP-

                                               V DATED 19/02/2021 OF
                                               THE THIRD RESPONDENT

Annexure A6                                    TRUE COPY OF THE
                                               FINAL ORDER DATED
                                               24/02/2021 IN OA
                                               2006/2020 DATED
                                               19/02/2021 OF THE
                                               HONOURABLE KAT,
                                               THIRUVANANTHAPURAM

Annexure A7                                    TRUE COPY OF THE
                                               ORDER NO.BO
                                               NO.668/2021/KAP-V
                                               DATED 11/11/2021 OF



                                    2024:KER:84008

                             THE THIRD RESPONDENT

Annexure A8                  TRUE COPY OF THE
                             INTERIM ORDER DATED
                             07/04/2022 IN CRL MC
                             NO. 2356/2022 OF THE
                             HONOURABLE HIGH COURT
                             OF KERALA

Annexure A8(a)               TRUE COPY OF THE
                             INTERIM ORDER DATED
                             13/10/2023 IN CRL MC
                             NO. 2356/2022 OF THE
                             HONOURABLE HIGH COURT
                             OF KERALA

Annexure A9                  TRUE COPY OF THE
                             REPRESENTATION DATED
                             19/12/2023 SUBMITTED
                             BY THE APPLICANT
                             BEFORE THE FIRST
                             RESPONDENT

Annexure A10                 TRUE COPY OF THE G.O
                             (P) NO.112/2006/HOME
                             DATED 31/07/2006

Exhibit P1                   A TRUE COPY OF THE OA
                             2309/2023 ALONG WITH
                             ANNEXURES A1 TO A9

Exhibit P2                   TRUE COPY OF THE
                             REPLY STATEMENT FILED
                             ON BEHALF OF THE
                             FIRST RESPONDENT ON
                             01/03/2024

Exhibit P3                   TRUE COPY OF THE
                             ADDITIONAL REPLY
                             STATEMENT FILED ON
                             BEHALF OF THE FIRST
                             RESPONDENT ON
                             27/06/2024

Exhibit P4                   TRUE COPY OF THE
                             REJOINDER FILED BY
                             THE APPLICANT ON
                             27/06/2024 ALONG WITH



                                    2024:KER:84008

                             ANNEXURE A10

Exhibit P5                   TRUE COPY OF THE
                             IMPUGNED ORDER PASSED
                             BY THE KAT ON
                             06/08/2024