Madras High Court
B.Soundarrajan vs The State Of Tamil Nadu on 9 December, 2021
W.P.No.6558 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.6558 of 2014
and M.P.Nos.2 to 4 of 2014
B.Soundarrajan .. Petitioner
vs.
1.The State of Tamil Nadu,
Rep. By its Home Department,
Fort St.George,
Chennai-600 009.
2.The Director General of Police,
Office of the Director General of Police,
Chennai-600 004.
3.The Chairman,
The Tamil Nadu Uniformed Services
Recruitment Board.
No.807, P.T. Lee, Chengalvaraya Naicker Maaligai,
Anna Salai, Chennai-2.
4.The Superintendent of Police,
Office of the Superintendent of Police,
Dharmapuri District, Dharmapuri. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records connected with the impugned order in Na.Ka.No.A3/22978/2013
dated 08.02.2014, pending on the file of the 4th respondent and quash the
same as illegal, consequently directing the respondents to appoint the
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W.P.No.6558 of 2014
petitioner as Special Police Youth Brigade (Male) within the time stipulated
by this Court.
For Petitioner : Mr.G.Prabhakar
For Respondents : Mr.P.Anandakumar,
Government Advocate for R1 to R4
ORDER
The petitioner, challenging the impugned order of the fourth
respondent dated 08.02.2014 in and by which his candidature for
appointment to the post of Special Police Youth Brigade came to be rejected,
has filed the present writ petition.
2. The case of the petitioner is that initially in the year 2008, the
petitioner had participated in the recruitment process for selection to the post
of Police Constable and also got selected, however appointment was not
given to the petitioner on the ground that on verification, it was found that he
was implicated as one of the accused in a criminal case in Crime No.78/2008
on the file of the Kadathur Police Station for the offences under Sections 147,
148, 324, 323 and 506(ii) IPC. The said criminal case has culminated into
STC No.255/2009 on the file of the District Munsif cum Judicial Magistrate,
Pappireddipatti and after full fledged trial, the petitioner got honourable
acquittal, vide judgment dated 26.05.2009.
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W.P.No.6558 of 2014
3. In the year 2012, the petitioner once again participated in the
recruitment process and got selected for the post of Police Constable.
However, once again his appointment was rejected by citing the involvement
in the very same criminal case, despite that fact that he was acquitted
honourarily in the said case. Therefore, challenging his rejection of
appointment, the petitioner had filed W.P.No.16318 of 2012 before this Court
and this Court, by relying upon the Full Bench decision of this Court in
Manikandan v. T.N. Uniformed Services Recruitment Board reported in
2008 (2) CTC 97 and also Explanation 2 to Rule 14(b) of Tamil Nadu Special
Subordinate Service Rules, 1978, held that there was no infirmity in the
impugned order and therefore, dismissed the writ petition and however,
granted liberty to the petitioner by observing that the said order will not
preclude the petitioner from participating in the second selection in 2012.
4. Thereafter, in the year 2013, the petitioner participated in the
recruitment process for the post of Constable / Member in the Tamil Nadu
Special Police Youth Brigade and though he got selected, appointment order
was not given by citing the very same reason of his implication in the
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W.P.No.6558 of 2014
criminal case. Therefore, the petitioner had sent representations to the fourth
respondent on 05.02.2014 and 11.02.2014. However, the fourth respondent,
vide impugned order dated 08.02.2014, has rejected his candidature by citing
the involvement in criminal case. Challenging the same, the present writ
petition has been filed.
5. The learned counsel for the petitioner would submit that the
petitioner was implicated in the criminal case in the year 2008 and
subsequently after full fledged trial, got honourary acquittal from the
Criminal Case in the year 2009 and inspite of specific observation given by
this Court in W.P.No.16318 of 2012 granting liberty to the petitioner to
participate in the next selection process, the respondents had unjustly denied
appointment to the petitioner, even after clearance of the written examination
as well as Physical Endurance Test, in respect of subsequent two recruitment
processes in the year 2012 and 2013 by citing the very same reason of
implication in the criminal case and therefore, prays for interference.
6. Mr.P.Anandakumar, learned Government Advocate appearing for the
respondents has drawn the attention of this Court to the counter affidavit of
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W.P.No.6558 of 2014
the fourth respondent, wherein it has been stated that the petitioner had
appeared for selection to the post of Tamil Nadu Special Police Youth
Brigade in December, 2013 and during the initial process of written test, he
secured the requisite marks for his enrolment in Police force in the Provision
List and during police verification, he was found to have criminal
background and as per Rule 3(b) of the Tamil Nadu Police South Brigade
Rules, the candidate should have good character and according to norms
fixed for appointment as member in Police force, he should not have any
criminal background irrespective of whether he was convicted or acquitted
and his candidature was rightly rejected by the fourth respondent, vide
impugned order and therefore, prays for dismissal of this writ petition.
7. This Court has considered the submissions made and also perused
the materials placed before it.
8. It is an admitted fact that the petitioner had participated in the earlier
recruitment process for the post of Police Constable during 2008 as well as in
the year 2012 and he had successfully cleared the Written Examination and
Physical Endurance Test, however his candidature for appointment was
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W.P.No.6558 of 2014
rejected on both occasions on the ground that on police verification, it was
found that the petitioner was implicated in a criminal case. The fact remains
that the petitioner was implicated in the criminal case in Crime No.78/2008,
on the file of the Kadathur Police Station for the alleged commission of
offences under Sections 147, 148, 323, 324 and 506(ii) IPC and the said case
has culminated into STC.No.255 of 2019, on the file of the District Munsif
cum Judicial Magistrate, Pappireddipatti and after full fledged trial, the
petitioner got Honourary Acquittal, vide judgment dated 26.05.2009.
9. The petitioner, challenging the rejection of his candidature in the
year 2012, had filed W.P.No.16318 of 2012, wherein this Court, by placing
reliance upon the Full Bench decision of this Court in Manikandan v.
Chairman, T.N. Uniformed Services Recruitment Board reported in 2008
(2) CTC 97, wherein it was held that “if a person who is aspiring for police
selection, who was involved in a criminal case, need not be considered in
the first selection and if acquitted in the criminal case, he can be
considered in the next selection” and also Explanation (2) to Rule 14(b) of
Tamil Nadu Special Police Subordinate Service Rules, 1978, which says that
“a person involved in a criminal case at the time of police verification and
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W.P.No.6558 of 2014
the case yet to be disposed of and subsequently, ended in honourable
acquittal or treated as mistake of fact shall be treated as not involved in a
criminal case and he can claim right for appointment only by participating
in the next recruitment” has dismissed the writ petition by granting liberty
to the petitioner by observing that the said order will not preclude the
petitioner from participation in the second selection in 2012.
10. It is the contention of the petitioner that inspite of getting the
benefit of honourary acquittal in the criminal case as well as the specific
direction given by this Court in W.P.No.16318 of 2012 dated 04.07.2012, the
impugned order of the fourth respondent rejecting the candidature of the
petitioner to the post of Tamil Nadu Special Police Youth Brigade for the year
2013 on the very same ground of his implication in a criminal case, is totally
unsustainable.
11. The aforesaid contention of the learned counsel for the petitioner
merits acceptance for the reason that the Full Bench decision of this Court
(cited supra) as well as Explanation 2 to Rule (b) of the Tamil nadu Special
Police Subordinate Service Rules, 1978 quoted above clearly states that there
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W.P.No.6558 of 2014
is no impediment for the petitioner to participate and get selected in the
subsequent recruitment process, since the petitioner had already got himself
the benefit of honourary acquittal by the Criminal Court before participating
in the selection process for the post of Tamil Nadu Special Police Youth
Brigade.
12. At this juncture it is useful to refer to the decision of the Hon'ble
Supreme Court in Avtar Singh Vs. Union of India [2016 (8) SCC 471]
wherein it was held as follows:
“23. Coming to the question whether an employee on
probation can be discharged/refused appointment though he
has been acquitted of the charge/s, if his case was not pending
when form was filled, in such matters, employer is bound to
consider grounds of acquittal and various other aspects, overall
conduct of employee including the accusations which have
been levelled. If on verification, the antecedents are otherwise
also not found good, and in number of cases incumbent is
involved then notwithstanding acquittals in a case/cases, it
would be open to the employer to form opinion as to fitness on
the basis of material on record. In case offence is petty in
nature committed at young age, such as stealing a bread,
shouting of slogans or is such which does not involve moral
turpitude, cheating, misappropriation etc. or otherwise not a
serious or heinous offence and accused has been acquitted in
such a case when verification form is filled, employer may
ignore lapse of suppression or submitting false information in
appropriate cases on due consideration of various aspects.
24. No doubt about it that once verification form
requires certain information to be furnished, declarant is duty
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W.P.No.6558 of 2014
bound to furnish it correctly and any suppression of material
facts or submitting false information, may by itself lead to
termination of his services or cancellation of candidature in an
appropriate case. However, in a criminal case incumbent has
not been acquitted and case is pending trial, employer may well
be justified in not appointing such an incumbent or in
terminating the services as conviction ultimately may render
him unsuitable for job and employer is not supposed to wait till
outcome of criminal case. In such a case non disclosure or
submitting false information would assume significance and
that by itself may be ground for employer to cancel candidature
or to terminate services.
25. The fraud and misrepresentation vitiates a
transaction and in case employment has been obtained on the
basis of forged documents, as observed in M. Bhaskaran's case
(supra), it has also been observed in the reference order that if
an appointment was procured fraudulently, the incumbent may
be terminated without holding any inquiry, however we add a
rider that in case employee is confirmed, holding a civil post
and has protection of Article 311(2), due inquiry has to be held
before terminating the services. The case of obtaining
appointment on the basis of forged documents has the effect on
very eligibility of incumbent for the job in question, however,
verification of antecedents is different aspect as to his fitness
otherwise for the post in question. The fraudulently obtained
appointment orders are voidable at the option of employer,
however, question has to be determined in the light of the
discussion made in this order on impact of suppression or
submission of false information.
26. No doubt about it that verification of character and
antecedents is one of the important criteria to assess suitability
and it is open to employer to adjudge antecedents of the
incumbent, but ultimate action should be based upon objective
criteria on due consideration of all relevant
aspects.
27. Suppression of ?material? information presupposes
that what is suppressed that ?matters? not every technical or
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W.P.No.6558 of 2014
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 employee.
Though a person who has suppressed the material information
cannot claim unfettered right for appointment or continuity in
service but he has a right not to be dealt with arbitrarily and
exercise of power has to be in reasonable manner with
objectivity having due regard to facts of cases.
28. What yardstick is to be applied has to depend upon
the nature of post, higher post would involve more rigorous
criteria for all services, not only to uniformed service. For
lower posts which are not sensitive, nature of duties, impact of
suppression on suitability has to be considered by concerned
authorities considering post/nature of duties/services and
power has to be exercised on due consideration of various
aspects.
29. The 'McCarthyism' is antithesis to constitutional
goal, chance of reformation has to be afforded to young
offenders in suitable cases, interplay of reformative theory
cannot be ruled out in toto nor can be generally applied but is
one of the factors to be taken into consideration while
exercising the power for cancelling candidature or discharging
an employee from service.
30. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view of
aforesaid discussion, we summarize our conclusion thus:
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.
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.
In case there is suppression or false information of
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W.P.No.6558 of 2014
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 : ~
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.
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
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W.P.No.6558 of 2014
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.
We answer the reference accordingly. Let the matters be
placed before an appropriate Bench for consideration on
merits?
13. A Division Bench of this Court in the decision in
W.A(MD)No.3877 of 2019 dated 13.11.2019 has observed as hereunder:
“33. The question of merits in the present case, however,
takes a different turn inasmuch as the order impugned that
seeks to disqualify and make the appellant ineligible for
engagement, rests on the finding that the appellant had not been
honourably acquitted, and it was only a benefit of doubt on the
basis whereof the acquittal judgment was delivered in favour of
the appellant. The question is as to the interpretation of Rule
13(e) read with explanations and in our opinion, the crucial
word which has to be taken into consideration to be read with
the Explanation is “involvement”. The word “involvement”,
therefore, is the guiding factor inasmuch as the Rule clearly
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provides for a declaration by the candidate as to whether ?he
was involved in a criminal case or not”.
34. The next question is whether such involvement
would necessary lead to the conclusion for the Appointing
Authority to hold as to whether he should be selected and
appointed for the services or not. Involvement without
knowledge is also a factor that can eclipse any disadvantage or
prospective impediment in certain circumstances, as explained
by the Apex Court in the case of M.Manohar Reddy and
another vs. Union of India and others, reported in 2013 (3) SCC
99. Whether the fact or information unknowingly withheld is at
all a material fact, is a matter of assessment on the peculiarity
of the material and it-s impact to be judiciously and objectively
assessed by the employer without any prejudice or
preconceived notions to rule out any possibility of malice, or
pure subjectivity in the decision making process. It is here that
a play in the joints has to be given to the employer and unless
such a latitude is given, it will be injuncting the authority from
exercising its discretion to engage a person suitable for the
post. We, therefore, find that an assessment has to be made by
the Appointing Authority as to whether the involvement of a
candidate in a criminal case would ultimately lead to the
conclusion that his engagement would be detrimental for the
nature of the employment for which he is being engaged. This
may involve a bit of subjectivity, but the material on record has
to receive an objective consideration. The question as to
whether a person involved in a case of violating a mere traffic
rule or was involved in a heinous offence would obviously
weigh with the employer to assess as to whether his
engagement would otherwise be sustainable or be detrimental
for recruitment in a Uniformed Police Force or not. We,
therefore, leave that open to the authority concerned for an
independent assessment. But, on the facts of the present case,
we find that the authority has simply rested its decision on the
finding that the appointment did not deserve to be engaged on
account of not having been honourably acquitted. Whether the
fact of his involvement was such that this inference could be
justified does not appear to have been discussed in the
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W.P.No.6558 of 2014
impugned order. To this extent, we accept the argument of the
learned counsel for the appellant.
35. We, accordingly allow the appeal and set aside
the impugned judgment dated 27.04.2019 as well as the
impugned order dated 08.11.2018 with liberty to the Appointing
Authority to assess the candidature of the appellant in the light
of the observations made herein above and pass fresh order, as
expeditiously as possible, but not later than three months from
today.”
14. This Court also in an identical issue in W.P.(MD)Nos.15726 of
2021 dated 25.10.2021 [P.Ramki v. The Member Secretary, Tamil Nadu
Uniformed Services Recruitment Board, Chennai and Others], following
the aforesaid decision of the Hon'ble Apex Court in Avtar Singh's case (cited
supra) and the First Bench Judgment of this Court in W.A.(MD)No.3877 of
2019 dated 13.11.2019, had quashed the impugned orders and directed the
respondents to consider the claim of the petitioner's therein afresh.
15. In view of the aforesaid facts and the settled legal position, this
Court has no hesitation to hold that the impugned order of the fourth
respondent is liable to be set aside.
16. Accordingly, the impugned order of the fourth respondent in
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W.P.No.6558 of 2014
Na.Ka.No.A3/22978/2013 dated 08.02.2014 is set aside and the writ
petitioner is allowed and the matter is remitted back to the second respondent
to consider the matter afresh by taking note of the decisions cited supra and
pass orders, as expeditiously as possible, preferably within a period of 12
weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petitions are closed.
09.12.2021
Index : Yes / No
Internet : Yes / No
Jvm
To
The State of Tamil Nadu,
The Secretary to Government,
Revenue Department, Fort St.George,
Chennai-9.
D.KRISHNAKUMAR. J
https://www.mhc.tn.gov.in/judis
W.P.No.6558 of 2014
Jvm
W.P.No.6558 of 2014
09.12.2021
https://www.mhc.tn.gov.in/judis
