Madras High Court
D.Srinivasan vs The Commandant on 2 March, 2022
W.P.No.9545 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM
The Hon'ble Mr. Justice V.PARTHIBAN
W.P.No.9545 of 2014
&
M.P.Nos.1 & 2 of 2014
D.Srinivasan ... Petitioner
Vs.
1.The Commandant,
Tamil Nadu Special Police XIII Battalion,
Veerapuram, Chennai - 55.
2.The Dy Inspector General of Police,
Armed Police, Chennai - 10.
3.The Director General of Police,
Tamil Nadu,
Mylapore, Chennai – 4. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorarified Mandamus calling for the records of
the respondents in connection with the impugned order passed by the first
respondent in PR No.18/2010, Rule 3(AA) dated 29.08.2011 and the
second respondent in RC No.C1/Appeal 01/2012 dated 28.02.2012 and
quash the same and direct the respondent to reinstate the petitioner into
service and grant him all consequential service and monetary benefits.
https://www.mhc.tn.gov.in/judis
1/36
W.P.No.9545 of 2014
For Petitioner .. Mr.V.Vijay Shankar
For Respondents .. Mr.L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
This writ petition has been filed to quash the impugned order, passed
by the first respondent, in PR No.18/2010, Rule 3(AA), dated 29.08.2011
and the second respondent, in RC No.C1/Appeal 01/2012, dated
28.02.2012 and direct the respondents to reinstate the petitioner into service
and grant him all consequential service and monetary benefits.
2. The petitioner was selected and appointed as Grade - II Police
Constable in TSP Battalion on 15.12.2008. He successfully completed his
probation and promoted as Nayak in the year 2010. He received more than
25 rewards for his meritorious service.
3. The petitioner while studying in school, a minor at that point of
time, was implicated in a criminal case in Crime No.140/2003, as a
consequence of a communal clash between two groups of school students in
his village. He was charge sheeted and shown as one of the accused, on the
file of Principal Sessions Judge, Ramanathapuram, in Special SC
No.257/09. The criminal case, however, eventually ended in acquittal, vide
judgment, dated 02.02.2012.
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
4. The petitioner was also implicated in an another criminal case in
Crime No.46 of 2008 in respect of boundary dispute with his paternal
uncle's son, who gave a false complaint against him. Even the said criminal
case ultimately ended in acquittal on 12.03.2011. While matters stood thus,
on the basis of complaint from vested interests, the petitioner was issued
with a charge memorandum, under Rule 3(b) of TNPSS (D&A) Rules, in
PR No.18/2010, dated 11.10.2010, containing two articles of charges. The
charges were that the petitioner suppressed and concealed the fact of his
involvement in the criminal case registered in Crime No.140/2003, under
Sections 147, 341, 323, 502 par r/w Sec.3(1) of SC/ST Act and he was in
judicial custody for about a month, thereby, he committed grave
misconduct. The second charge was that the petitioner was shown as
accused in Crime No.46/2009, registered, under Sections 294, 341, 324 and
307 IPC and he suppressed and deliberately failed to disclose the fact of his
involvement in the second criminal case at the time of his recruitment into
service and thereby, committed grave misconduct again.
5. On receipt of the charge memo, the petitioner submitted his
explanation denying the charges. In respect of the first charge, namely
involvement in the first criminal case (Crime No.140/2003), the petitioner
was a minor. As far as the second charge was concerned, he was falsely
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
implicated by his close relatives, due to personal animosity. However,
notwithstanding the above factual position an enquiry was conducted and
charges were held proved ultimately in the enquiry. A copy of the enquiry
report was forwarded to the petitioner and he submitted his representation
against the findings. But the disciplinary authority, however, did not accept
the legitimate explanation offered by the petitioner and agreeing with the
findings, imposed a penalty of dismissal from service, by an order, dated
29.08.2011.
6. As against the order of penalty of dismissal from service, the
petitioner preferred a statutory appeal before the second respondent on
26.09.2011. The Appellate authority, the second respondent herein without
considering various lacunae pointed out by the petitioner in the appeal, has
rejected the same by an order dated 28.02.2012. As against the rejection of
appeal, petitioner preferred a mercy petition on 30.03.2012 before the first
respondent, but the same did not evoke any response. Being aggrieved by
the order of dismissal and the confirmation of the same by the appellate
authority, the petitioner is before this Court.
7. Mr.V.Vijay Shankar, learned counsel appearing for the petitioner
would submit at the outset that the dismissal order passed against the
petitioner, in the facts and circumstances of the case is shockingly
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
disproportionate and cannot be countenanced both in law and on facts.
According to him, the first charge relating to Crime No.140 of 2003 was in
respect of a group clash when admittedly, the petitioner was a school
student. In any event, ultimately, after the trial, criminal case ended in
acquittal, on 02.02.2012. However, without waiting for the outcome of the
criminal trial and also without duly appreciating the fact that the petitioner
was a minor alleged to have been involved in a criminal case relating to the
clash between two groups of students, the disciplinary authority ordered
enquiry and proceeded with the same eventually resulting in the imposition
of penalty of dismissal from service. His non-disclosure of his involvement
in the first criminal case was due to his ignorance and as a matter of fact, he
was not even aware of the criminal case pending against him.
8. As far as second charge is concerned, the petitioner was acquitted
on 12.03.2011 (in Crime No.46 of 2019). Here, again, the petitioner was
implicated in a false case by his paternal uncle's son relating to a civil
dispute of sharing boundaries between the petitioner's family and his
paternal uncle's family. As it was a civil dispute being given a criminal
colour, the petitioner was under bonafide impression that it was not
relevant to disclose the information to the respondent. As a matter of fact,
the second crime case was registered after the petitioner submitted his
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
application for recruitment to the Police force. Therefore, there was no
occasion for him to disclose the same. According to the learned counsel,
however, the fact remained that in both the cases, the petitioner had been
acquitted and therefore, the non-disclosure of the information had become
immaterial.
9.The learned counsel would then submit that as far as the first
criminal case is concerned, in terms of the provisions of the Juvenile Justice
(Care and Protection of Children), Act 2015, all past records under Juvenile
Justice system should be erased except in special circumstances. Section 24
would also mandate that if a child who has committed an offence and has
been dealt with under the provisions of the Act shall not suffer
disqualification, if any, attached to conviction or an offence under such law.
10. The petitioner herein, as a matter of fact, was acquitted of the
charges and therefore, the question of suffering from any disqualification
did not arise at all. The provision of the Juvenile Justice Act, 2015 clearly
stipulate that past records must be erased and the child ought not to have
suffer from any disqualification. Further, the charge relating to the so called
commission of criminal office at the time when the petitioner was a juvenile
cannot be a legal basis for imposing the penalty of dismissal from service.
11. As far as the other charge in Crime No.46 of 2008 is concerned,
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
the said criminal case also ended in acquittal on 12.03.2011 and the
acquittal had become final. As stated above, even that charge was relating
to a boundary dispute between the petitioner and his family with their close
relatives and non-disclosure of the said criminal case could not have invited
an extreme penalty of dismissal from service.
12. According to the learned counsel, the Hon'ble Supreme Court as
well as this Court have held that public administration cannot practice
"McCarthyism" and also held even in the event of conviction in a case where
it was not disclosed by the person, in respect of a charge, which was not so
serious, the person cannot be stated to have attracted any disqualification for
seeking any employment in Police force or public service.
13. The learned counsel after referring to the Juvenile Justice (Case
and Protection of Children) Act,2015 has also referred to an order passed by
the Hon'ble Supreme Court, in UNION OF INDIA AND OTHERS Vs.
RAMESH BISHNOI (2019) 19 SCC 710. He would draw the attention of
this Court to paragraphs 7 to 9 of the above decision, which are extracted
hereunder:
7. In the present case, the complaint/FIR lodged against
the respondent was to the effect that when he was a minor, he
had teased a girl a few times and went to the extent of catching
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
hold of her hand. However, the girl and her parents finally
decided to pardon the respondent by not giving any evidence
against him, resulting in the acquittal of the respondent. In the
aforesaid facts, even if the aforesaid is found to be true, it
cannot be said that the respondent had committed such a
crime, which would be covered under the definition of moral
turpitude, specially when the respondent is said to have
committed the alleged offence when he was a minor.
8. From the facts, it is clear that at the time when the
charges were framed against the respondent, on 30.06.2009,
the respondent was well under the age of 18 years as his date
of birth is 05.09.1991. Firstly, it was not disputed that the
charges were never proved against the respondent as the girl
and her parents did not depose against the respondent,
resulting in his acquittal on 24.11.2011. Even if the allegations
were found to be true, then too the respondent could not have
been deprived of getting a job on the basis of such charges as
the same had been committed while the respondent was
juvenile. The thrust of the legislation, i.e. The Juvenile Justice
(Care and Protection of Children) Act, 2000 as well as The
Juvenile Justice (Care and Protection of Children) Act, 2015 is
that even if a juvenile is convicted, the same should be
obliterated, so that there is no stigma with regard to any crime
committed by such person as a juvenile. This is with the clear
object to reintegrate such juvenile back in the society as a
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
normal person, without any stigma. Section 3 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 lays down
guidelines for the Central Government, State Governments, the
Board and other agencies while implementing the provisions
of the said Act. In clause (xiv) of Section 3, it is clearly
provided as follows:
“3.(xiv) Principle of fresh start: All past records of any
child under the Juvenile Justice system should be erased
except in special circumstances.”
9.In the present case, it is an admitted fact that the
respondent was a minor when the charges had been framed
against him of offences under Sections 354, 447 and 509 of
IPC. It is also not disputed that he was acquitted of the
charges. However, even if he had been convicted, the same
could not have been held against him for getting a job, as
admittedly he was a minor when the alleged offences were
committed and the charges had been framed against him.
Section 3(xiv) provides for the same and the exception of
special circumstances does not apply to the facts of the present
case.”
14. In the above matter, Hon'ble Supreme Court has held that even in
the case of conviction of Juvenile, the same should be obliterated in terms of
provisions of the Juvenile Justice (Case and Protection of Children) Act,
2015. The Hon'ble Supreme Court has further held that the avowed object
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
of the legislation is to reintegrate such juvenile back in the society as a
normal person without any stigma. In this case, the first charge relate to the
involvement of the petitioner in a group clash when he was a minor and a
school student. The charges were therefore, cannot be stated to be one
relating to involvement in crime of moral turpitude or any other serious
offences. In any event, ultimately, the petitioner was acquitted of the charges
by the trial Court which had admittedly become final.
15. The learned counsel would then refer to AVTAR SINGH Vs.
UNION OF INDIA AND OTHERS (2016) 8 SCC 471. He would
particularly draw reference to paragraph Nos 37 and 38 which are re-
produced and relied upon by this Court in its decision rendered in
W.P.No.9552 of 2020 dated 9/10/2020, the same is referred to hereunder.
M.SRITHAR Vs. TAMIL NADU UNIFORMED SERVICES,
RECRUITMENT BOARD, rep. BY ITS SECRETARY, OLD
COMMISSIONER OF POLICE OFFICE CAMPUS, EGMORE, CHENNAI
600 008 AND ANOTHER (W.P.No.9552 of 2020 dated 09.10.2020). This
Court in similar circumstances has referred to the case of Avtar Singh and
its importance and salient observations. Paragraph Nos.9 to 19 of the
judgment is extracted hereunder:
9. He would further submit that the petitioner being
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
involved in serious offence of using criminal force was not
entitled to be considered for appointment in the Police Force. He
would submit that the candidates, who are seeking recruitment in
the Police Force, need to exhibit conduct and discipline of higher
degree. He would also submit that mere acquittal in the criminal
case on the basis of all the prosecution witnesses turning hostile
cannot be construed as acquittal on merits. As per Rule 14(b) of
Special Rules, any acquittal on the basis of witnesses turning
hostile would be considered as conviction and the said Rule being
upheld by this Court, the contention on behalf of the petitioner
that acquittal of the petitioner ought to have been taken into
consideration by the authority is without merits. Therefore, the
authority passed the order rejecting the candidature of the
petitioner in terms of the Rule position and also the decisions of
this Court rendered in such matters. Therefore, the writ petition is
without any merits and liable to be dismissed.
10. This Court has considered the submissions of Mr.N.
Balamuralikrishnan, learned counsel for the petitioner and Mr. V.
Kathirvelu, learned Special Government Pleader for the
respondents and also perused the materials placed on record.
11. There are two limbs of objections as disclosed in the
impugned order dated 13.03.2020 passed by the second
respondent. The first limb is the involvement of the petitioner in
the criminal case wherein, the petitioner was charged for offences
under Sections 147, 294(b), 352, 506(ii) of I.P.C., which
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
admittedly ended in acquittal vide criminal court's judgment
dated 17.03.2016. The authority cannot be found fault with,
atleast to the extent that as per the rule position, acquittal on the
basis of prosecution witnesses turning hostile is not an acquittal
on merits, but it is construed as one of conviction in terms of Rule
14(b) of Special Rules for Tamil Nadu Police Subordinate Service,
which Rule has been upheld by this Court.
12. However, while considering the acquittal vis-a-vis the
criminal offences charged against the petitioner, it is incumbent
upon the authority to see whether the petitioner was involved in a
serious crime and unfit to be recruited to the Police Force for all
times to come. As the facts of the criminal case would disclose, a
minor scuffle between the petitioner and others on one side and
complainant on the other side resulted in the registration of the
criminal case, which was tried by the Jurisdictional Criminal
Court. For whatever reasons, the criminal case ultimately ended
in a acquittal by judgment dated 17.03.2016 in C.C.NO. 218 of
2015. The authority while considering the said acquittal as one of
conviction ought to have also taken into consideration the nature
of offences alleged against the petitioner. When the authorities
vested with the discretionary power to assess the suitability of the
candidates, such exercise must be free from the vice of
stereotyped application of mind, reflecting callous, inflexibility
regardless of the facts and the circumstances of the case.
13. As far as the case on hand is concerned, the authority
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
sticking to Rule 14 is one aspect of the matter, which as stated
above, cannot be called into question. Nevertheless, by giving a
colour of conviction to such acquittal, on the basis of the above
rule, it is imperative that a decision is taken after judicious
exercise of the power of discretion with reference to the law laid
down by the Hon'ble Supreme Court of India on this aspect.
14. The Hon'ble Supreme Court of India by its all-
encompassing decision in the matter of Avtar Singh, has
enunciated detailed legal principles to be followed in such
matters. For better appreciation, paragraphs 29 to 38.11 of the
Hon'ble Supreme Court decision are extracted hereunder:
“29. The verification of antecedents is
necessary to find out fitness of incumbent, in the
process if a declarant is found to be of good
moral character on due verification of
antecedents, merely by suppression of
involvement in trivial offence which was not
pending on date of filling attestation form,
whether he may be deprived of employment?
There may be case of involving moral
turpitude/serious offence in which employee has
been acquitted but due to technical reasons or
giving benefit of doubt. There may be situation
when person has been convicted of an offence
before filling verification form or case is pending
and information regarding it has been
suppressed, whether employer should wait till
outcome of pending criminal case to take a
decision or in case when action has been
initiated there is already conclusion of criminal
case resulting in conviction/acquittal as the case
may be. The situation may arise for
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
consideration of various aspects in a case where
disclosure has been made truthfully of required
information, then also authority is required to
consider and verify fitness for appointment.
Similarly in case of suppression also, if in the
process of verification of information, certain
information comes to notice then also employer
is required to take a decision considering
various aspects before holding incumbent as
unfit. If on verification of antecedents a person is
found fit at the same time authority has to
consider effect of suppression of a fact that he
was tried for trivial offence which does not
render him unfit, what importance to be attached
to such non-disclosure. Can there be single
yardstick to deal with all kind of cases?
30. 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
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
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.
31. 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
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
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.
32. No doubt about it that once verification
form requires certain information to be
furnished, declarant is duty 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.
33. 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
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
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.
34. 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.
35. Suppression of ‘material’ information
presupposes that what is suppressed that
‘matters’ not every technical or 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.
36. 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
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
considered by concerned authorities considering
post/nature of duties/services and power has to
be exercised on due consideration of various
aspects.
37. 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.
38. 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:
38.1 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.
38.2 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.
38.4 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
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
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 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.
38.5 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.
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
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 person
against whom multiple criminal cases were
pending may not be proper.
38.8 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.
38.9 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.
38.10 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.
38.11 Before a person is held guilty of
suppressio veri or suggestio falsi, knowledge of
the fact must be attributable to him.”
15. The above ruling of the Hon'ble Supreme Court would
be a strong reminder and a legal mandate to the authorities as to
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
how they are to reconcile various contingencies that may arise for
their consideration. The Hon'ble Supreme Court of India, as held
above in one of the paragraphs, that even in a matter of
conviction, if it is trivial in nature, it is for the authority to ignore
the same and proceed further for consideration. The Hon'ble
Supreme Court has further held that even if a candidate involved
in a criminal case and if such involvement was not disclosed and
if the disclosure of the criminal offence otherwise would not have
been material as criminal offence itself was trivial in nature, the
non-disclosure of such involvement can be ignored and
overlooked.
16. The above ruling of the Hon'ble Supreme Court ought
to have been considered by the authority particularly with
reference to the second limb of objection, wherein, the authority
has held that the petitioner failed to disclose the involvement in
the criminal case before the recruitment.
17. Further, a learned Single Judge of this Court in the
case of M.Vijaya Baskar Vs. The Superintendent of Police,
Dharmapuri [reported in 2013 SCC Online Mad 1053] in similar
situation has held in paragraphs 24 to 27 as under:
“24. The question, whether a person, who was acquitted of
criminal charges prior to commencement of the selection process,
was considered by this Court in W.P.No.2100 of 2008
(Navaneethakrishnan V. The Secretary to Government), decided
on 12.02.2013 and this Court was pleased to lay down, that when
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
a person is acquitted of criminal charges prior to the selection
process had commenced, it cannot be said that any criminal case
is pending against the person or he is involved in any criminal
case.
25. The stands of the State Government as noticed above
was, that the petitioners were admittedly involved in the criminal
case, therefore, are not entitled to challenge the impugned orders
passed in consonance with the Rule 14 read with the explanation
added thereto, which was upheld by the Hon'ble Full Bench of
this Court.
26. Learned Additional Government Pleader vehemently
contended, that this Court held the amended Rule 14(b) of the
Special Rules for Tamil Nadu Police Subordinate Services Rules,
to be a valid piece of legislation, therefore action taken under
Rule 14(b) does not call for any interference by this Court in
exercise of writ jurisdiction.
27. On consideration, I find force in the contention raised
by the learned counsel for the petitioners. It would be seen, that
in all these case, the petitioners were acquitted in criminal cases
much before commencement of process of selection. Acquittal in
criminal cases means, that the charges framed against the
accused itself were bad, therefore, it cannot be said, that persons
were involved in any criminal case. Therefore, Rules 14(b) can
only be interpreted to mean, that in cases, which are pending at
the time of selection, and end in acquittal by giving benefit of
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
doubt, then a person can be denied the right of appointment by
considering him to be involved in criminal cases, but not in a
case, where much before the start of selection process, the person
is acquitted, even by giving benefit of doubt.”
18. The above decision of the learned Single Judge of this
Court is a pointer to the police administration, that
notwithstanding the Rule 14(b), if a person is acquitted much
prior to the recruitment process, in which a candidate concerned
has participated, failing to disclose the information of his
involvement in the criminal case would not attract Section 14(b).
If the said decision of this Court and the decision of the Hon'ble
Supreme Court in the case of Avtar Singh to be taken and applied
together, this Court has to come to a necessary conclusion that
firstly non-disclosure of involvement in the criminal case in a case
where, the candidate was acquitted prior to the recruitment would
not attract Section 14(b) of the Special Rules for the Tamil Nadu
Police Sub-ordinate Service. Secondly, even if the said rule is
applicable, ultimately disclosure of the same would not have
made any material difference, with reference to the nature of the
offence alleged against the candidate, such non-disclosure ought
to be ignored. Thirdly, even if a conviction is recorded,
ultimately, the authority within the domain of his discretion is
under a legal obligation to exercise the power of the discretion
fairly and judiciously, duly applying the principle of
circumstantial flexibility. As a corollary, the authority cannot
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
perfunctorily take refuge under the rigors of the rule, oblivious to
the spirit and the objective of the foundational basis for
introduction of the rule.
19. In the light of the above consideration, the rejection by
the authority on the basis of the relevant clauses of the
notification and the rule position did not meet the legal
requirement of fair play and good conscience in the discharge of
the discretion so vested. Mere discharge of the discretion
routinely with a wooden mind set would only result in travesty of
good administrative function and abdication of onerous
responsibility conferred on the authority.
16. In the above case, this Court has extracted the extensive ruling in
Avtar Singh's case and finally held that even non-disclosure of criminal
antecedents did not per se disqualify a person from being considered to
Police force in certain circumstances. According to the learned counsel from
the above case laws would be squarely applicable to the factual matrix of
this case. The impugned action of the respondents is therefore, liable to be
interfered with.
17. After notice, Mr.L.S.M.Hasan Fizal, learned Additional
Government Pleader, took notice and filed a counter affidavit. In the
counter affidavit, it has been repeatedly stated that, in view of the non-
disclosure of two criminal cases, a serious view was taken and charges were
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
framed against him. According to him, when the dismissal order was
passed on 29.08.2011, petitioner was still facing the criminal case. The
acquittal came only subsequently. According to the respondents, the
subsequent acquittal will not invalidate the decision taken by the authorities.
18. Counter affidavit would also state that, as per amendment made
to Rule 14(b) of the Special Rules for Tamil Nadu Police Subordinate
Service Rules, 1978, even acquittal on the basis of benefit of doubt, will be
construed as conviction and the same will operate as a disqualification for
recruitment to the Police force.
19. In view of the fact that the petitioner was involved in two criminal
cases, the petitioner himself by his own conduct invited disqualification. In
the counter affidavit it has been clearly emphasized that non-disclosure of
his involvement in two criminal cases amounted to serious mis-conduct
which cannot be condoned particularly in disciplined Police force.
Therefore, rightly, the petitioner was imposed with the penalty of dismissal
from service.
20. The learned Additional Government Pleader reiterated the above
position adopted by the respondents as reflected in the counter affidavit. He
particularly submitted that the petitioner having involved himself in two
criminal cases, and having chosen not to deliberately disclose the same,
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
cannot expect the authorities to act leniently. In the said circumstances,
imposition of penalty of dismissal from service is in order and cannot be
faulted with.
21. Heard the submissions of the learned counsel for the petitioner,
learned counsel for the respondents, perused the pleadings, materials and
case laws cited on behalf of the petitioner.
22. The facts stated above on behalf of the petitioner have not been
controverted and this Court therefore, need not needlessly traverse into the
same. The impugned punishment of dismissal from service is to be tested
on the touch stone of the case laws cited on behalf of the petitioner on the
subject matter, and also with reference to the provisions of the Juvenile
Justice Act, as it stood then, and the nature of offences alleged against the
petitioner and his ultimate acquittal by the criminal courts.
23. Admittedly, the petitioner was involved in two criminal cases.
One relating to Crime No.140 of 2003. When the said criminal case was
registered against the petitioner, he was a minor and therefore, he was
proceeded against under the Juvenile Justice (Care and Protection) Act,
2000. It was a case where there was a clash between two groups of School
students and the petitioner was found to be one of them involved in the
clash. The criminal case was registered and after a fullfledged trial, the
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
Principal Sessions Court, Ramanathapuram in Spl.S.C.No.259 of 2007 had
delivered judgment in acquitting the petitioner vide judgment dated
2/2/2012.
24. In regard to the above, departmental charge against the
petitioner, he did not disclose his involvement in the criminal case and
therefore, his acquittal in the case was immaterial. The non-disclosure of
this information itself was a serious act of misconduct, inviting
disqualification from continuing in Police force. This Court is unable to
appreciate the rigid stand of the Department in the teeth of the fact that the
petitioner was a School student and a minor when he was implicated in the
criminal case. Therefore, his non disclosure at the time of his recruitment to
the Police force ought not have been viewed too strictly and pedantically.
Even otherwise, the criminal case had ultimately ended in the acquittal and
he suffered no disqualification on this account. This apart, the petitioner
has a stronger case that even in the event of his conviction in criminal case,
it should be obliterated in terms of the provisions of the Juvenile Justice
(Care and Protection) Act, as held by the Hon'ble Supreme Court in a
decision rendered in the matter of UNION OF INDIA AND OTHERS Vs
RAMESH BISHNOI (2019) 19 SUPREME COURT CASES 710. The
crucial ruling of the Court has been extracted supra.
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
25. The learned counsel in this regard, has relied upon two
provisions of the Juvenile Justice Act, 2015 which are reproduced
hereunder:-
3 (xiv). All past records of any child under
the Juvenile Justice system should be erased
except in special circumstances.
24. Notwithstanding anything contained in
any other law for the time being in force, a child
who has committed an offence and has been dealt
with under the provisions of this Act shall not
suffer disqualification, if any, attached to a
conviction of an offence under such law.
26. The first provision mandates the erasing of the past records of
any child tried under Juvenile Justice system. As far as the second provision
is concerned, even the offence ended in conviction, such would not entail
any disqualification.
27. The reliance placed by the learned counsel on the Juvenile Justice
Act, 2015 may not be correct, as admittedly the relevant incident happened
much prior to the coming into force of the new Act. However, in the earlier
Juvenile Justice Act, 2000, a similar provision was provided for in Section
19 which reads as under.
"19. Notwithstanding anything contained in any
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
other law, a juvenile who has committed an offence and
has been dealt with under the provisions of this Act
shall not suffer disqualification, if any, attached to a
conviction of an offence under such law."
Therefore, the legal position remained the same under the earlier enactment.
28. In this case, first the petitioner was factually acquitted of the
criminal charge and therefore, his claim certainly stand on a better footing
than what is stated in the above provisions. Even otherwise, when the past
records are to be mandatorily erased, whether the Juvenile was convicted or
not is immaterial in the eye of law.
29. The learned counsel rightly relied upon the decision of the Hon'ble
Supreme Court in UNION OF INDIA AND OTHERS Vs. RAMESH
BISHNOI (2019) 19 SUPREME COURT CASES 710. In the extracted
observation, it is very clear that under the provisions of the Juvenile Justice
Act even after the Juvenile is convicted, the same should be obliterated, so
that there is no stigma with regard to any crime committed by such a person
as a Juvenile. By applying the ratio, the petitioner herein cannot stated to
have suffered any conviction as construed by the respondent.
30. The non disclosure of his involvement in the criminal case, when
he was a Juvenile cannot stated to have attracted Rule 14 (b) of the Special
Rules, for the simple reason that in the eye of law, it cannot be held that
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
there was any case pending against the petitioner under the Juvenile Justice
(Care and Protection of Children) Act. Therefore, proceeding against the
petitioner on the basis of the charge relating to non disclosure of the
criminal case in Crime No.140 of 2003 when he was a minor, was
misconceived and amounted to undermining the very object and the spirit of
the Act. Therefore, this Court is unable to countenance the charge framed
against the petitioner in respect of the non-disclosure of his involvement in
the criminal case in Crime No.140 of 2003 when he was a minor. This
Court is further unable to come to terms with the punishment of dismissal
from service imposed on the petitioner on that account.
31. As far as the second criminal case is concerned, again the
petitioner appeared to have been involved in a boundary dispute with his
close relatives, giving rise to Crime No.46 of 2008 under certain provisions
of the Indian Penal Code. This criminal case also ended in acquittal, vide,
criminal Court judgment, dated 12/3/2011. According to the learned
counsel for the petitioner that this case was registered after the petitioner
was recruited to the Police force and therefore, he had no occasion to inform
about his involvement at the time of his recruitment. Even assuming that it
was imperative on the part of the petitioner to inform his employer whenever
he was involved in any criminal case, this Court would have to examine
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
whether the non disclosure of the involvement in the second criminal case
could by itself invite a bar of continuance in Police force and invite extreme
penalty of dismissal from service or not?
32. In this connection, the learned counsel has relied upon the all
encompassing judgment of the Hon'ble Supreme Court reported in
AVATAR SINGH VS. UNION OF INDIA AND OTHERS (2016) 8 SCC-
471. The Hon'ble Supreme Court has summed up various contingencies
that may arise for consideration of the authorities in the matter concerning
involvement of candidates in criminal cases, in paragraphs 37 and 38.
the Hon'ble Supreme Court, particularly in paragraph 38.4.1 has observed
as to the non-disclosure as under:
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.
33. Following the same, this Court has also allowed a similar
challenge in W.P.No.9552 of 2020 vide its order dated 9/10/2020. The
ruling of this Court has also been extracted extensively supra, reproducing
the paragraphs 29 to 38 of the Avtar Singh case judgment. When a
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
discretion is vested in the authority to examine the nature of offences alleged
against a person and the nature of involvement of the person concerned,
such discretion has to be exercised and discharged by the officials with due
care and caution and with fair application of mind. Merely because it was
found that the person involved in a criminal case not disclosed the
information, such conduct by itself cannot result in serious repercussions,
leading to the imposition of penalty of dismissal from service.
34. When an extreme penalty of dismissal from service is inflicted on
an employee, it is all the more reason for the authority to take into
consideration the legal principles laid down on the subject matter by the
Courts. Though it is stated that the decision was taken to dismiss the
petitioner before the acquittal was recorded in both criminal cases, yet the
authorities could have waited for the result of the criminal case.
Unfortunately, the administration had needlessly rushed through and
expedited the disciplinary proceedings against the petitioner and imposed
the penalty of dismissal order on him. The respondents appeared to have
acted unfairly and unreasonably lacking in sense of equanimity and
judicious composure.
35. In fact, this Court has repeatedly held that the authorities must
abandon their sanctimonious and fastidious approach in dealing with such
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
matters, while taking decision adversely and irreversibly affecting the
person concerned. The penalty of dismissal from service in the facts and the
circumstances of the case in the opinion of this Court is shockingly
disproportionate and cannot be sustained in law.
36. This Court in the cumulative circumstances of the case finds that
the impugned orders cannot be countenanced both in law and on acts. Even
assuming that the petitioner had deliberately not disclosed the information
to the authorities concerned, at the risk of repetition it is to be stated that
the first involvement in the criminal case was when the petitioner was a
minor and therefore, the charge itself became a non est, in view of the
operation of the provisions of Juvenile Justice Act. In that view of the
matter, the first charge cannot give rise to any departmental proceedings at
all. As regards the second criminal case, it was a private dispute among the
close relatives and even the said criminal case eventually ended in acquittal.
Therefore, the non-disclosure of his involvement in that case cannot stated
to be very material, inviting disproportionate reaction from the department.
For all the above said reasons, this Court is convinced that the petitioner
has made out a strong case for the grant of relief as prayed for.
37. Accordingly, this writ petition is allowed. The impugned order
passed by the first respondent in PR No.18/2010, Rule 3(AA) dated
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
29.08.2011 and the second respondent in RC No.C1/Appeal 01/2012 dated
28.02.2012 are hereby set aside.
38. The respondents are directed to reinstate the petitioner in service
forthwith with all benefits on notional basis, like fixation of seniority,
promotion, calculation of pay and allowance.
39. However, it is directed that the petitioner is not entitled to
payment of arrears of salary and allowance during the period of his non-
employment till he is reinstated in service, as a measure of punishment for
non-disclosure of his involvement in the second criminal case during his
service in the department.
40. The respondent authorities are directed to pass appropriate orders
in this regard within a period of six weeks from the date of receipt of a copy
of this order. No costs. Consequently, the connected W.M.Ps are closed.
02.03.2022
Index:Yes/No
Internet:Yes
mvs.
Note: Issue order copy on 07.04.2022
To
1.The Commandant,
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
Tamil Nadu Special Police XIII Battalion,
Veerapuram, Chennai - 55.
2.The Dy Inspector General of Police,
Armed Police, Chennai - 10.
3.The Director General of Police,
Tamil Nadu,
Mylapore, Chennai - 4.
https://www.mhc.tn.gov.in/judis
W.P.No.9545 of 2014
V.PARTHIBAN,J.
mvs
W.P.No.9545 of 2014
and
M.P.Nos.1 & 2 of 2014
02.03.2022
https://www.mhc.tn.gov.in/judis
