Madhya Pradesh High Court
Abhishek Dwivedi vs The State Of Madhya Pradesh on 27 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27 th OF MAY, 2024
WRIT PETITION No. 13684 of 2024
BETWEEN:-
ABHISHEK DWIVEDI S/O UMASHANKAR DWIVEDI,
AGED ABOUT 23 YEARS, OCCUPATION: NIL R/O WARD
NO.23 AMHIYA ROAD, AMHIYA DISTRICT REWA (M.P.)
.....PETITIONER
(BY SHRI ANKIT MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY MANTRALAYA,
VALLABH BHAWAN, BHOPAL (M.P.)
2. ASSISTANT INSPECTOR GENERAL OF POLICE
( R E C R U I T M E N T ) POLICE HEADQUARTER
BHOPAL (M.P.)
3. SUPERINTENDENT OF POLICE, SHAHDOL
DISTRICT SHAHDOL (M.P.)
.....RESPONDENTS
(BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed seeking the following reliefs :-
"a/ To direct the respondents to immediately issue letter of
appointment to the petitioner and grant him all consequential
benefits as to a seniority and monetary benefits.
b/ To pass such other orders as it may deem fit under the
circumstances of the case including orders as to the cost of this
writ petition."
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2. It is the case of petitioner that the advertisement for recruitment on the
post of Constable in the police department was published in December, 2020.
The petitioner had applied for the post of Constable in the recruitment process
of the Police Department. The petitioner was selected and posted in District
Shahdol. On 27.07.2023, the Superintendent of Police, Shahdol issued an order
observing that the petitioner is hereby declared unqualified for the said post as a
criminal case being Crime No.500 of 2019 for the offence punishable under
Sections 294, 323, 506/34 of the IPC and Section 3(1)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
registered against the petitioner and the same is pending against him. It is
pointed out that on 08.06.2019 an FIR under Sections 294, 323, 506, 34 of the
Indian Penal Code and Section 3(1)(v) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act was lodged against the petitioner. On
29.03.2023, the Trial Court in Special Case No.159 of 2019 convicted the
petitioner for the aforesaid offences and sentenced him till the rising of the
Court with fine of Rs.1,000/- with default stipulations.
3. The petitioner filed a criminal appeal against the order dated 29.03.2023
(Criminal Appeal No.5849 of 2023) before this Hon'ble Court. During the
pendency of appeal, the petitioner entered into compromise with the
complainant and thereby resolved their dispute amicably. On the basis of the
compromise, the Hon'ble Court passed an order dated 07.03.2024 whereby the
order of sentence dated 29.03.2023 was set aside and the petitioner was
acquitted of the above offences. Counsel for the petitioner has argued that
since the petitioner has been acquitted by this Court vide judgment dated
07.03.2024 passed in Criminal Appeal No.5849 of 2023, he is entitled to be
issued an appointment letter for the post of Constable in the Police Constable.
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In support of his submission, he has placed reliance upon the decision of the
Supreme Court in the case of Pramod Singh Kirar vs State of Madhya
Pradesh and others : Civil Appeal Nos. 8934-8935 of 2022 decided on
02.12.2022.
4. Per contra, the learned Government Advocate appearing for the State
opposed the prayer and submitted that the petitioner was acquitted on the
ground of compromise and as per Circular dated 24.07.2018, the offence under
Section 3(1)(v) of the SC/ST (Prevention of Atrocities) Act amounts to moral
turpitude, therefore, the petitioner is not entitled for recruitment in the police
department. Sub-rule (11) of Regulation 64 of the M.P. Police Regulation
stipulates that "In private life, he shall set an example of peaceful behaviour
and shall avoid all partisanship". Since the offence registered against the
petitioner involved moral turpitude, therefore, his case has rightly been rejected.
It is not an honourable acquittal. The acquittal is based upon a compromise
entered into between the parties. Further he has supported the impugned order
on the ground that it is the domain of the employer to consider the case of an
employee for appointment, if he or she is having any criminal antecedents. The
petitioner has submitted an affidavit in which he has stated that criminal case
being Crime No.500 of 2019 for the offence punishable under Sections 294,
323, 506/34 of the Indian Penal Code and Section 3(1)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
registered against the petitioner and the same is pending against him and the said
information was not given to the authorities by the petitioner at the time of filling
of the application form. He has relied upon the judgment passed by the Larger
Bench of the Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of
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India and others reported in (2016) 8 SCC 471 and has contended that if
after an employee is being acquitted of criminal charge, he does not have any
cogent right to seek appointment. It is the domain of the employer to consider
the candidature of the applicants like the petitioner. The employer cannot be
compelled to grant appointment to an employee. The employer has every right
to consider the candidature of the applicant and if found suitable the
appointment order can be issued. That is the sole discretion of the employer. It
is argued that the present case is a case of suppression and subsequent acquittal
is based upon compromise. There was no disclosure by the petitioner regarding
pendency of a criminal case in the application form. The employer is having
every right to select the best candidate from the list suitable for the job. It is
submitted that the respondents have rightly dealt with the case and has passed
the impugned order rejecting the claim of the petitioner, therefore, no case for
warranting interference is made out. He has prayed for dismissal of the writ
petition.
5. Heard the learned counsels for the parties and perused the record.
6. From the perusal of the record it is seen that the petitioner had applied for
the post of Constable in the recruitment process of the Police Department. The
petitioner was selected and posted in District Shahdol. On 27.07.2023, the
Superintendent of Police, Shahdol issued an order observing that the petitioner
is hereby declared unqualified for the said post as a criminal case being Crime
No.500 of 2019 for the offence punishable under Sections 294, 323, 506/34 of
the IPC and Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 was registered against the petitioner and the
same is pending against him. The petitioner has submitted an affidavit in which
he has stated that criminal case for the aforesaid offence was registered against
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the petitioner and the same is pending against him and due to inadvertence the
said information was not given to the authorities by the petitioner at the time of
filling of the application form. He has placed reliance upon the decision of the
Supreme Court in the case of Pramod Singh Kirar (supra). However, the
aforesaid judgment is on different footing, therefore, the said judgment is of no
help to the petitioner. In the case of State of Madhya Pradesh vs Parvez
Khan reported in (2015) 2 SCC 591, the Hon'ble Supreme Court has held that
candidate to be recruited to police service must be worthy of confidence of
utmost rectitude and must have impeccable character and integrity. Person
having criminal antecedents would not fit into said category since even if he is
acquitted or discharged, it cannot be presumed that he was completely
exonerated. Persons likely to erode credibility of police ought not to enter
police force. On facts held, in absence of any allegations of mala fides against
the SP who was the appointing authority, or any perversity or irrationality in his
decision finding respondent ineligible for compassionate appointment because
of his implication in two criminal cases impugned judgment directing
reconsideration of respondent's case is unsustainable. Refusal by competent
authority to recruit respondent on grounds of his criminal antecedents call for
no interference. The petitioner has suppressed the material information
regarding the registration of criminal case against him and second that he was
convicted by the learned Trial Court in a criminal case and is being acquitted
based upon the compromise by the Appellate Court. It is not a honourable
acquittal, therefore, the case of the petitioner is directly hit by the judgment
passed by the larger Bench of the Hon'ble Supreme Court in the case of Avtar
Singh (supra).
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7. The law with respect to the aforesaid effect is settled by the Hon'ble
Supreme Court in large number of cases including that of Avtar Singh Vs.
Union of India and others reported in (2016) 8 SCC 471 wherein, in para 38
the Hon'ble Supreme Court has held as under :-
"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 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.
3 8 . 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".
8. The aforesaid aspect of the case was further considered by a Full Bench
o f this Court in the case of Ashutosh Pawar Vs. High Court of M.P.
reported in 2018 (2) MPLJ wherein the Court has held as under :-
"32. ...... Decision of criminal case 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 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."
9. The aforesaid aspect was again considered by the Hon'ble Supreme Court
recently in the case of Union of India Vs. Methu Meda reported in (2022) 1
SCC 1 wherein the Hon'ble Supreme Court has considered the judgment
passed in the case of Avtar Singh (supra) and has held as under :-
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"17. The law with regard to the effect and consequence of the
acquittal, concealment of criminal case on appointments etc. has
been settled in the case of Avtar Singh (supra), wherein a three
Judge Bench of this Court decided, as thus:
"38. We have noticed various decisions and tried to explain and
reconcile them as far as possible. In view of the aforesaid
discussion, we summarize our conclusion thus:
3 8 .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.
3 8 . 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.
3 8 .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 a 3 case of clean acquittal, or
benefit of reasonable doubt has been given, the employer may
consider all relevant facts available as to antecedents, and
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may take appropriate decision as to the continuance of the
employee.
3 8 .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 4 person against whom multiple criminal
cases were pending may not be proper.
3 8 . 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.
3 8 .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.
3 8 .1 0 . For determining suppression or false information
attestation/verification form has to be specific, not vague. Only
s u c h 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 5 submitting false
information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or
suggestio falsi, knowledge of the fact must be attributable to him.
18. In view of the above, in the facts of the present case, as per
paras 38.3, 38.4.3 and 38.5, it is clear that the employer is
having right to consider the suitability of the candidate as per
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government orders/instructions/rules at the time of taking the
decision for induction of the candidate in employment."
From the analysis of the aforesaid judgments, it is clear that the employer is
having every right to consider the suitability of a candidate even after his/her
acquittal in a criminal case. The Hon'ble Supreme Court in the case of State of
Madhya Pradesh and Others vs Abhijit Singh Pawar : Civil Appeal
No.11356 of 2018 (Arising out of SLP (C) No.17404 of 2016) by judgment
dated 26.11.2018 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 autorickshaw which was following the
auto-rickshaw in which the prime accused, who was charged
under Section 376 IPC, was travelling with the prosecutrix in
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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.''
10. Thus, it is clear that mere acquittal of the candidate in a criminal case
does not automatically entitle him for the recruitment to the post of Constable in
the Police Department, still the authorities can consider the effect and
consequence of registration of the criminal case as well as acquittal. Petitioner
was convicted in the criminal case by the learned Trial Court and he was
acquitted by the Appellate Court on the basis of compromise. He has not
disclosed the fact of pendency of criminal case to the authorities at the time of
filling of application form. The candidature of the petitioner has been rejected
on the ground that offence under Section 3(1)(v) of the SC & ST (Prevention
of Atrocities) Act involves moral turpitude.
11. Thus, in view of the aforesaid pronouncement of law, this Court is of the
considered opinion that no illegality is committed by the authorities in holding
the petitioner ineligible for recruitment to the post of Constable in the Police
Department.
12. Consequently, the petition fails and is accordingly dismissed. No order
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as to costs.
(VISHAL MISHRA)
JUDGE
AM.
