Madras High Court
The Principal / Commandant vs M.Poovendra Raja on 28 April, 2021
W.A.No.168 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:28.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
W.A.No.168 of 2021
and C.M.P.No.809 of 2021
1.The Principal / Commandant
Ty.PRS.TSP III Battalion,
Veerapuram, Chennai 55.
2.The Additional Director General of Police,
Police Training College,
Ashok Nagar, Chennai 83.
....Appellants
Vs
M.Poovendra Raja ..Respondent
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent
against the order passed in W.P.No.6024/2018 dated 12.12.2019 passed
by this Court.
For Appellants : Mrs.A.Srijayanthi
Special Government Pleader
For Respondent : Mr.P.L.Thirumoorthy
https://www.mhc.tn.gov.in/judis/ 1
W.A.No.168 of 2021
JUDGMENT
[Order of the Court was made by M.SATHYANARAYANAN, J.]
The official respondents in W.P.No.6024 of 2018 are the
appellants.
2. The respondent herein filed the said Writ Petition praying for
issuance of Writ of Certiorarified Mandamus calling for the records
relating to the proceedings of the 1st appellant dated 06.01.2018 and
quash the same with consequential direction, directing the 1st respondent
to reinstate him as Grade II Constable with all consequential and
attendant service and monetary benefits.
3. The Writ Petition, after contest came to be allowed, vide
impugned order dated 12.12.2019 and challenging the same, the present
Writ Appeal is filed.
4. Facts leading to the present round of litigation have been
narrated in detail and in extenso in the impugned order and therefore, it is
W.A.No.168 of 2021
unnecessary to restate the fact once again for the sake of convenience,
except to cull out the facts necessary for the disposal of this appeal.
5. The respondent / writ petitioner was appointed as Youth Brigade
on 12.02.2014 based on the selection conducted by the Tamil Nadu
Uniform Service Recruitment Service Board (TNUSRB) and the
functions and duties of the Youth Brigade are to drive the vehicle of the
Police Department, to deliver Tapal and Data entry and to maintain police
quarters and to assist the Police force in prevention of loss of life of
accident of victims and the respondent / writ petitioner, while functioning
as Youth Brigade, said to have involved in criminal case in respect of the
alleged clash which took place on 09.01.2016 and when he tried to
intervene and pacify both parties, there was a quarrel between them and
however, he has been falsely implicated as accused no.2 and a criminal
case in Cr.No.71 of 2016, came to be registered on the file of J-7
Velacherry Police Station and after investigation, charge sheet was filed,
which was taken on file in C.C.No.2632 of 2016. It appears that the
matter has been compromised and therefore, all the material witnesses
have turned hostile, except the Investigating Officer. The Court of 18th
W.A.No.168 of 2021
Metropolitan Magistrate, Saidapet, Chennai 15, had tried the case in
Cr.No.2632 of 2016 and having taken note of the fact that the material
witnesses have turned hostile, found that a perusal of the contents of the
Charge Memo would disclose that on account of previous enmity, the
accused had attacked the defacto complainant and that no materials have
been made available to show that the threat of taking away the life has
also been made out and further found that the prosecution has failed to
prove the said allegations. The Trial Court had also taken note of the fact
that the accused as well as the injured has also compromised and also
submitted the Memo and that apart the prime witness namely the injured,
who was examined as P.W.1, did not support the case of the prosecution
and all the material witnesses have turned hostile and the Trial Court,
therefore, recorded the finding that the prosecution did not prove the
charges against the accused, even to a minimal extent and accordingly
acquitted all the accused for the alleged commission of offences under
Sections 294(b), 341 and 326 IPC.
6. The petitioner, at the time of submitting application for
recruitment to the post of Grade II Constable, had given the said details
W.A.No.168 of 2021
and after successfully completing the selection process, he was selected
to the post of Grade II Police Constable and he was appointed on
25.11.2017 and reported duty on 01.12.2017 and also undergone the
basic training. However to the shock and surprise, he was issued with a
show cause notice dated 05.01.2018, pointing out the said criminal
prosecution, for which, he has given a reply and vide proceedings dated
06.01.2018, an order of cancellation of his appointment to the post of
Grade II Police Constable, came to be passed and made a challenge to the
same, had also filed the Writ Petition and it was entertained. The
respondent has filed the counter affidavit and took a stand that while
verification of the records, it was found that the writ petitioner was
involved in the above said case and he came to be acquitted on the basis
of Compromise Memo and in terms of the rule position, he suffered
disqualification and as such the order of appointment came to be
cancelled rightly and prays for dismissal of the Writ Petition.
7. The learned Single Judge, having taken note of the judgment
rendered by the Hon'ble Supreme Court of India dated 12.10.2018 in
Civil Appeal No.10571 of 2018 (Mohammed Imran Vs. State of
W.A.No.168 of 2021
Maharastra and Others) as well as judgment rendered by the Hon'ble
First Bench of this Court dated 13.11.2019 in W.A.No.3877 of 2019
(C.Surendhar Vs. the Director General of Police, Dr.Radhakrishnan
Salai, Chennai and others) found that the allegations which were the
subject matter of criminal prosecution did not involve any moral
turpitude and the entire incident said to have happened at the heat of the
moment and that apart, the primary injured witness namely injured had
turned hostile and the learned Judge also taken note of the fact that in the
decision rendered by the Hon'ble Supreme Court of India in 2016 (8)
SCC 471 (Avatar Singh Vs. Union of India), especially paragraph
no.38.4.1, it has been held that the case is trivial in nature and that the
involvement pertains to petty offense and the employer can always
condone the lapse. The learned Judge, by taking into consideration the
cumulative facts and circumstances of the case held that the incident in
question had happened in a spur of the moment and it has not involved
moral turpitude or a pre-planned attack and further found that every
individual deserves an opportunity to improve, learn from past and move
ahead in life and by citing the said reasons has set aside the impugned
order and allowed the writ petition with consequential direction.
W.A.No.168 of 2021
8. The learned Special Government Pleader appearing for the
appellants / official respondents would submit that though the respondent
/ writ petitioner did disclose the fact of acquittal in the application, the
fact remains that the order of acquittal came to be passed on account of
compromise between the accused as well as the defacto complainant and
therefore, it cannot be considered as an honourable acquittal. It is the
further submission of the learned Special Government Pleader appearing
for the appellants / official respondents that since the petitioner is a part
of the Uniform Force, his conduct should be in board and in the light of
the fact that he has also prosecuted as accused no.2 for the commission of
serious offence under Section 326 of IPC also and taking into
consideration the rule position, the order cancelling his appointment was
rightly came to be passed. Alternatively, it is the submission of the
learned Special Government Pleader that assuming for the sake of
arguments that the impugned order of cancelling appointment deserves to
be set aside, the matter ought to have been remanded to the concerned
authority for fresh consideration and in the light of the above cited
reasons, prays for interference.
W.A.No.168 of 2021
9. Per contra, Mr.P.I.Thirumoorthy, learned counsel appearing for
the respondent / writ petitioner would submit that the performance of the
petitioner as a member of the Youth Brigade was price working and he
did not come to any adverse notice and he also participated in the
selection process for selection to the post of Grade II Police Constable
and he was come out successfully and even in the application, he has
disclosed the said fact of involvement in the criminal prosecution and
acquittal. The learned Judge, taken into consideration all the facts and
circumstances and also taken note of the above cited decisions, rightly
reached the conclusion to interfere with the order of punishment and also
assures that the performance and behaviour of the petitioner would be
above board and hence prays for dismissal of this Writ Appeal.
10. This Court has carefully considered the rival submissions and
also perused the materials placed before it.
11. A perusal of the judgment dated 19.10.2016, passed in
C.C.No.2632 of 2016, by the Court of 18th Metropolitan Magistrate,
W.A.No.168 of 2021
Saidapet, Chennai, would disclose among other things that there was a
compromise between the defacto complainant and the accused and at the
time of examination, the material witness, namely P.W.1 had turned
hostile and did not support the case of the prosecution at all and other
witnesses who were examined, corroborated the testimonies of P.W.1 and
also supported the case of the prosecution.
12. At this juncture, though the writ petitioner, who was arrayed as
A2 along with A1 were charged for the alleged commission of offences
under Sections 341, 294(b) and 326 IPC, a perusal of the judgment
especially the prosecution exhibits would disclose that not even wound
certificate has been marked.
13. The Trial Court in paragraph no.2 of the judgment has also
indicated the fact that the prosecution has miserably failed to establish as
to the attack inflicted by the accused upon the defacto complainant and
injured witness so also wielding threat of finishing him and therefore,
this Court is of the considered view that the Trial Court has also gone
into the merits of the prosecution case and rightly reached a conclusion
to acquit both of them under Section 241(1) IPC.
W.A.No.168 of 2021
14. Now coming to the impugned order, no doubt the person who
is a member of the Uniform service is expected to maintain discipline
and decorum at all times. It is also to be noted at this juncture that the
petitioner did disclose the fact of involvement in criminal case and
subsequently acquitted.
15. The above cited judgment would also disclose that the
involvement in a criminal case is not a total bar for employment, but it is
for the employer to find out the suitability. In the judgment relied on by
the learned Single Judge in 2018 (18)SCC 733 (State of Madhya
Pradesh and Others Vs. Abhijit Singh Pawar), it has been held that even
after disclosure is made by a candidate, employer would be well within
his rights to consider antecedents and suitability of candidate and while
so considering, employer can certainly take into account the job profile
for which selection is undertaken, severity of charges levelled against
candidate and whether acquittal in question was an honourable acquittal
or as merely on ground of benefit of doubt or as a result of composition,
it is a duty cast upon the employer to take a call. However in the
impugned order, instead of remanding the matter to the employer, the
W.A.No.168 of 2021
learned Judge has straight away allowed the Writ Petition and therefore
on that limited ground, the impugned order warrants interference.
16. In the result, the Writ Appeal is Partly Allowed and the
impugned order dated 12.12.2019 passed in W.P.No.6024 of 2018 is set
aside as well as the proceedings of the 1st appellant / 1st respondent dated
06.01.2018 and the matter is once again remanded to the 1 st respondent
for fresh consideration as to the suitability or otherwise of the respondent
/ writ petitioner to become a Grade II Police Constable and while doing
so, the 1st appellant / 1st respondent shall also take into consideration the
observations made in the judgment and complete the said exercise within
a period of twelve weeks from the date of receipt of a copy of this order /
uploading of the order in the Website and communicate the decision
taken to the respondent / writ petitioner. No costs. Consequently
connected miscellaneous petition is closed.
[M.S.N., J.,] [P.R.M., J]
28.04.2021
Index : No
Internet :Yes
sk
W.A.No.168 of 2021
M.SATHYANARAYANAN, J.,
and
P.RAJAMANICKAM, J.,
sk
W.A.No.168 of 2021
28.04.2021
https://www.mhc.tn.gov.in/judis/ 12
