Madras High Court
Manikandan vs The State Of Tamil Nadu on 3 February, 2021
W.P.No.103 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.103 of 2021
and
WMP.NO.156 of 2021
Manikandan ... Petitioner
-vs-
1. The State of Tamil Nadu,
Rep. By its Member Secretary,
Tamil Nadu Uniformed Services
Recruitment Board,
No.8047, P.T.Lee Chengalvarayan
Naicker Maaligai, Anna Salai,
Chennai 600 002.
2. The Superintendent of Police,
District Police Office,
Salem District, Nethimedu,
Salem 632 002. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, praying
for the issuance of a Writ of Certiorarified Mandamus, to call for the
records made in C.No.A3/20868/2012 dated 29.10.2020 passed by the
second respondent herein and quash the same as illegal and direct the
respondent to appoint the petitioner as Grade II constable as directed by
this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of
justice.
For Petitioner : Mr.R.Sankarasubbu
For R1 : Mr.J.Pothiraj, Spl. Govt. Pleader
For R2 : Mr.V.Kathirvelu, Spl. Govt. Pleader
*****
1/8
https://www.mhc.tn.gov.in/judis/
W.P.No.103 of 2021
ORDER
The petitioner has come forward with the present writ petition, to
call for the records made in C.No.A3/20868/2012 dated 29.10.2020 passed
by the second respondent herein and quash the same as illegal and direct
the respondent to appoint the petitioner as Grade II constable as directed
by this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of
justice.
2. According to the petitioner, though a criminal case was registered
against him and a trial was conducted in C.C.No.1082 of 2011 on the file of
the Judicial Magistrate No.II, Sankagiri, he was honourably acquitted of all
charges. Since he was acquitted from the said criminal case honourably, he
did not disclose the factum of the criminal case at the time of application
to the post of Grade II constable. It is the further case of the petitioner that
to the shock and surprise, the 2nd respondent passed the impugned order,
refusing to consider the petitioner for appointment to the said post.
3. The respondents relied upon the judgments of the Hon'ble Supreme
Court in the case of State of Madhya Pradesh vs. Abhijit Singh Pawar
reported in 2018 (18) SCC 733 and also the yet another decision in
Avtar Singh Vs.Union of India and others, reported in 2016 (8 ) SCC 471
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W.P.No.103 of 2021
to contend that the petitioner is not entitled to the relief sought for. The
relevant paragraph of the judgment reported in 2016 (8 ) SCC 471 is
extracted hereunder:
“22. The employer is given ‘discretion’ to terminate or
otherwise to condone the omission. Even otherwise, once
employer has the power to take a decision when at the time of
filling verification form declarant has already been
convicted/acquitted, in such a case, it becomes obvious that
all the facts and attending circumstances, including impact of
suppression or false information are taken into consideration
while adjudging suitability of an incumbent for services in
question. In case the employer come to the conclusion that
suppression is immaterial and even if facts would have been
disclosed would not have affected adversely fitness of an
incumbent, for reasons to be recorded, it has power to
condone the lapse. However, while doing so employer has to
act prudently on due consideration of nature of post and
duties to be rendered. For higher officials/higher posts,
standard has to be very high and even slightest false
information or suppression may by itself render a person
unsuitable for the post. However same standard cannot be
applied to each and every post. In concluded criminal cases, it
has to be seen what has been suppressed is material fact and
would have rendered an incumbent unfit for appointment. An
employer would be justified in not appointing or if appointed
to terminate services of such incumbent on due consideration
of various aspects. Even if disclosure has been made truthfully
the employer has the right to consider fitness and while doing
so effect of conviction and background facts of case, nature of
offence etc. have to be considered. Even if acquittal has been
made, employer may consider nature of offence, whether
acquittal is honourable or giving benefit of doubt on technical
reasons and decline to appoint a person who is unfit or
dubious character. In case employer comes to conclusion that
conviction or ground of acquittal in criminal case would not
affect the fitness for employment incumbent may be
appointed or continued in service.”
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W.P.No.103 of 2021
4. Heard the learned counsel for the parties and perused the material
documents available on record, including the judgment cited by the
respondents.
5. It is no doubt true that the petitioner involved in a criminal case
and subsequently, he was honorably acquitted from the charges by the Trial
Court. This Court has also not lost sight of the proposition laid down by the
Supreme Court that even after disclosure of the criminal background, it is
for the employer to consider the nature of the offence, acquittal, etc., If
the acquittal is on the basis of benefit of doubt, certainly, the petitioner
has no case and he is unfit to get the appointment in the Police Department
due his dubious character. Similarly, if a person was acquitted based on the
compromise memo, then also no leniency can be shown to the petitioner, in
the light of various pronouncements of the Supreme Court and the employer
can straightaway reject the candidature.
6. Learned counsel for the petitioner, in support of his stand, drew
the attention of this Court to a judgment of this Court dated 11.01.2019
passed in W.P.No.7957 of 2013, annexed in the typeset of papers to argue
that since the petitioner had already been acquitted, that too honorably,
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W.P.No.103 of 2021
there is no need to mention the pendency of criminal case in the
application and therefore, the petitioner is entitled to appointment i terms
of the judgment of this Court dated 11.01.2019.
7. I find much force in the contention of the learned counsel for the
petitioner, inasmuch as a reading of the judgment of the Trial Court in
C.C.No.1082 of 2011 dated 12.01.2012 on the file of Judicial Magistrate II,
Sankagiri unfolds the fact that the petitioner was exonerated from the
criminal charges honorably and not on the ground of benefit of doubt and
therefore, the judgment of this Court passed in W.P.No.7959 of 2013 is
squarely applicable to the case of the petitioner herein. In the said
judgment, this Court had discussed all the aspects elaborately and given a
finding thereof. The relevant paragraphs of the judgment are extracted
hereunder:
“8. Application form has been filled by the petitioner.
Column No.29 A of the application form reads as under:-
“29. Whether any criminal case is pending
against you? Answer:- “No”.
9. Material on record further discloses that the petitioner
was acquitted, on 12/1/2012. On 16/4/2012, when he filled in
the application form, there was no criminal case pending
against the petitioner. Petitioner has therefore, not suppressed
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W.P.No.103 of 2021
any material fact. Column No.29 of the form does not require
the petitioner to disclose as to whether he was involved in any
criminal case. Had the application form stipulated that the
applicant must disclose as to whether he was involved in a
criminal case and if the petitioner had suppressed this, then the
situation would have been different.
10...
11. The trial Court, acquitted the petitioner because, the
prosecution examined only the Investigation Officer and was not
able to bring any other evidence. It can therefore be said that
there was no evidence against the petitioner other than the
testimony of the Investigation Officer and the acquittal cannot
be said to be on the basis of benefit of doubt. 12. Offence
under Section 294 (b) of the Indian Penal Code can be called as
a case, which is trivial in nature. Section 294 of the India Penal
Code reads as under:- "267 [294. Obscene acts and songs.—
Whoever, to the annoyance of others— (a) does any obscene act
in any public place, or (b) sings, recites or utters any obscene
song, ballad or words, in or near any public place, shall be
punished with imprisonment of either description for a term
which may extend to three months, or with fine, or with both.]"
In any case, he has been acquitted and he has not suppressed
any fact in the application. The petitioner had to only disclose
as to whether any criminal case is pending against him. 13. In
view of the facts and circumstances of the case, the petitioner
ought to have been selected and he should not have been
deprived of the appointment, as Grade 2 Constable. The writ
petition is allowed. Respondents are directed to appoint the
petitioner, in a vacancy, for the year 2019 – 2020. 14. The writ
petition is disposed of with the above directions. No costs.
Consequently, the connected Miscellaneous Petition is closed.”
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W.P.No.103 of 2021
8. According to the respondents, apart from this question, there is
yet another question in the application form, namely, “as to whether the
petitioner was involved any other criminal case” and those two questions
have got to be read together and not in isolation. The said submission
cannot be accepted, because in case of Hon'ble acquittal, there is no need
to disclose about the criminal case, in which the petitioner is said to have
involved. As stated supra, even in a case of acquittal on compromise, the
candidature need not be recruited, which is not the case herein. The
decisions of the Hon'ble Supreme Court (supra), relied upon by the
respondents have no relevancy to the present context.
9. In view of what is stated herein-above, this Court is of the view
that the petitioner is entitled to the relief and his case for appointment has
to be considered suitably. Accordingly, the Writ Petition is allowed and the
impugned ordered dated 29.10.2020 passed by the 2nd respondent, is set
aside. A direction is issued to the respondents to appoint the petitioner as
Grade-II Constable, in the light of the judgment of this Court in W.P.No.7957
of 2013 dated 11.01.2019 and the observations made herein-above, within a
period of 45 days from the date of receipt of copy of this order. However, it
is made clear that if, for any other reasons other than the non-disclosure of
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W.P.No.103 of 2021
S.VAIDYANATHAN, J
jrs/ar
criminal case, the petitioner is not found to be suitable, it is for the
concerned authority to decide the case in accordance with law. No costs.
Consequently, connected miscellaneous petition is closed.
03.02.2021
Index: Yes / No
Internet: Yes /No
jrs/ar
Note: Issue order copy on 04.03.2021
To:
1. The Member Secretary,
State of Tamil Nadu,
Tamil Nadu Uniformed Services Recruitment Board,
No.8047, P.T.Lee Chengalvarayan,
Naicker Maaligai, Anna Salai,
Chennai 600 002.
2. The Superintendent of Police,
District Police Office,
Salem District, Nethimedu,
Salem 632 002.
W.P. No.103 of 2021
https://www.mhc.tn.gov.in/judis/
