Madras High Court
The Director General Of Police vs P.Marimuthu on 24 July, 2023
W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)Nos.431, 432, 434, 1385, 1386 of 2014 & 1182 of 2017
and
M.P.(MD)Nos.1, 2, 2, 3 & 3 of 2014
W.A.(MD)Nos.431 of 2014:
1.The Director General of Police,
Santhome, Chennai – 4.
2.The Superintendent of Police,
Theni District, Theni. ..Appellants
/Vs./
P.Marimuthu ...Respondent
PRAYER:- Writ Appeal - filed under Clause XV of Letters Patent Act, to
set aside the order dated 16.04.2013 passed in W.P.(MD)No.16771 of
2012 on the file of this Court and allow this writ appeal.
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W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
For Appellants : Mr.Veera Kathiravan
Additional Advocate General
Assisted by
Mr.V.R.Shanmuganathan
For Respondents : No appearance
COMMON JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
This common order is passed in appeals filed by the State
challenging two common orders, one dated 16.04.2013 (in the case of
two respondents) and the other, dated 26.03.2013 (in the case of four
respondents).
2. All writ petitioners were aspirants to the post of Grade-II
Police Constable. They were successful in the written examination as
well as physical test. Their applications had subsequently come to be
rejected on the ground that there had been suppression by the writ
petitioners / private respondents of their involvement in criminal cases.
The tabulation of relevant particulars in regard to each of the writ
petitioners is set out below:
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W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
Writ Appeal relating to Date of Nature of CC Nos Date of Date of Date of
Writ Petition registering Crime Judgment Application verification
of FIR
WA(MD)No.431/2014 Crime No. STC No. 02.11.2012 13.04.2012 09.11.2012
312/2011 219/2012
in
(147, 294(b),
WP(MD)No.
323, 506(i)
16771/2012
of IPC)
(P.Marimuthu)
WA(MD)No.432/2014 30.12.2008 Crime No. CC No. 12.01.2009 28.03.2012 09.11.2012
227/2008 11/2009
in
(341, 323 &
WP(MD)No.
506(ii) of
16753/2012
IPC)
(M.Sakthivel)
WA(MD)No.434/2014 27.05.2009 Crime No: STC No. 16.09.2009 28.03.2012 08.11.2012
115/2009 2570/2009
in
(341, 323 &
WP(MD)No.5011/2013
294 (b) of
(E.Vallanvan) IPC)
WA(MD)No.1385/2014 20.05.2010 Crime No. STC No. 25.10.2010 12.04.2012 20.11.2012
237/2010 1073/2010
in
(75 of
WP(MD)No.2504/2013
Tamilnadu
(M.Raju) City Police
Act)
WA(MD)No.1386/2014 31.07.2009 Crime No. CC No. 15.10.2012 09.04.2012 30.10.2012
284/2009 12 / 2011
in
(341, 323,
WP(MD)No.1250/2013
324 &
(R.Pravin Kumar) 506(ii) of
IPC)
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W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
WA(MD)No.1182/2017 15.05.2011 Crime No. CC No. 11.08.2011 09.04.2012 30.10.2012
284/2011 284 / 2011
in
(341, 294
WP(MD)No.5539/2013
(b), 323 &
(R.Reji) 506(ii) of
IPC & 4 of
Women
Harassment
Act)
3. The writ petitions came to be allowed and the writ
petitioners/respondents in writ appeals, were directed to be selected,
setting aside the orders of rejection. In accepting their pleas, the writ
Court rendered a caveat to the effect that that order was subject to the
decision of the Larger Bench, pending at that time in the case of Avtar
Singh Vs. Uinon of India and others [2016 (8) SCC 471]. It is against
those orders dated 16.04.2013 and 26.03.2013, that the State is in appeal
before us.
4. An order of interim protection has been granted in favour
of the State pending writ appeal. On 21.07.2016, three judges of the
Hon'ble Supreme Court decided the question referred, being the cleavage
of opinion between decisions of various High Courts on the impact of
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suppression of information or submission of false information in the
application form or verification form as to whether a candidate for
appointment in police services had been criminally prosecuted or
arrested, or as regards the pendency of the criminal case, upon his
candidature.
5. The question has been answered in the judgment in Avatar
Singh to the effect that information given to an employer by a candidate
must be true and must be no suppression or false mention of the required
information. The employer however has wide discretion to decide
whether the pendency of a criminal case or past criminal proceedings as
against that candidate may be condoned, and the application considered
on merits or whether the criminal antecedents would be fatal to the
application.
6. The relevant portion of the judgment in Avtar Singh
(Supra), is extracted below:
“38.We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view of the
aforesaid discussion, we summarise our conclusion thus:
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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.”
7. A full and true disclosure is thus non-negotiable to the
maintainability of an application by a candidate, that too, one filed by an
aspirant to a post in the uniformed services. This position is well settled.
At this juncture, we refer to the judgment of the Hon'ble Supreme Court
in Commissioner of Police and others vs. Sandeep Kumar [(2011) 4 SCC
644], relied upon by the respondent in one of the writ appeals. That
judgement has been rendered prior to the judgment in Avtar Singh.
8. In that matter, the Apex Court considered the case of a
candidate who had been implicated in criminal proceedings involving
Sections 325 and 34 of Indian Penal Code. The dispute related to that
candidate and his family members, and ultimately come to be
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compromised after filing of an FIR. The candidate had been acquitted
thereafter. While applying for the post of Head Constable (Ministerial),
the candidate chose not to disclose his involvement in the above crime
and his candidature had been rejected for want of full disclosure.
9. His case has been accepted by the Delhi High Court and the
State filed an appeal before the Supreme Court. While rejecting the
appeal, the Bench opined that the lapse on the part of the candidate could
be condoned, since it was minor in nature and not very grave such as
offences of murder, rape etc. The judgement draws an analogy from the
situation in Les Miserables where Jean Valjean was arrested for stealing
a loaf of bread out of sheer hunger.
10. The decision in re. Sandeep Kumar was relied upon by the
respondent in the case of Commissioner of Police vs. Rajkumar [Civil
Appeal No.4960 of 2021] and a note of caution was sounded by the
Bench in considering the cases of candidates who have suppressed
information in regard to criminal antecedents in their applications.
Paragraph 13 reads thus:
“30.The High Court’s approach, evident from its
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observations about the youth and age of the candidates, appears to
hint at the general acceptability of behaviour which involves petty
crime or misdemeanour. The impugned order indicates a broad
view, that such misdemeanour should not be taken seriously, given
the age of the youth and the rural setting. This court is of opinion
that such generalizations, leading to condonation of the offender’s
conduct, should not enter the judicial verdict and should be
avoided. Certain types of offences, like molestation of women, or
trespass and beating up, assault, causing hurt or grievous hurt,
(with or without use of weapons), of victims, in rural settings, can
also be indicative of caste or hierarchy-based behaviour. Each
case is to be scrutinized by the concerned public employer, through
its designated officials- more so, in the case of recruitment for the
police force, who are under a duty to maintain order, and tackle
lawlessness, since their ability to inspire public confidence is a
bulwark to society’s security.”
11. This decision is dated 25.08.2021 and applies the ratio put
in place in Avtar Singh. The Bench inter alia, refers to Standing Order
No.398 of 2010, issued by the Delhi Police. The Standing Order may be
usefully referred in this matter as well, as indicative of the approach to
be followed by all States/Union territories in such matters:
"STANDING ORDER NO. 398/2010 POLICY FOR DECIDING
CASES OF CANDIDATES PROVISIONALLY SELECTED IN
DELHI POLICE INVOLVED IN CRIMINAL CASES (FACING
TRIAL OR ACQUITTED).
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During the recruitments made in Delhi Police, several cases come
to light where candidates conceal the fact of their involvement in
criminal cases in the applita- tion Form/Attestation Form in the
hope that it may not come to light and disclo- sure by them at the
beginning of the recruitment process itself may debar them from
participating in the various recruitment tests. Also the
appointment if he/she has been acquitted but not honourably.
In order to formulate a comprehensive policy, the following rules
shall be applicable for all the recruitments conducted by Delhi
Police:-
1). xxx xxxxxx
2). xxx xxxxxx
3). If a candidate had disclosed his/her involvement and/or arrest
in criminal cases, complaint case, preventive proceedings etc. and
the case is pending investigation or pending trial, the candidature
will be kept in abeyance till the final decision of the case. After the
court' judgment, if the candidate is acquitted or dis- charged, the
case will be referred to the Screening Committee of the PHQ
comprising of Special Commissioner of Police/Administration,
Joint Commissioner of Police/Headquarters and Joint
Commissioner of Police/Vigilance to assess his/her suitability for
appointment in Delhi Police.
4) If a candidate had disclosed his/her involvement in criminal
case, complaint case, preventive proceedings etc. both in the
application form as well as in the attestation form but was
acquitted or discharged by the court, his/her case will be referred
to the Screening Committee of PHQ to assess his/her suitability
for appointment in Delhi Police.
5) xxx xxxxxx
6). Such candidates against whom charge-sheet in any criminal
case has been filed in the court and the charges fall in the
category of serious offences or moral turpitude, though later
acquitted or acquitted by extending benefit of doubt or the
witnesses have turned hostile due to fear of reprisal by the
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accused person, he/she will generally not be considered suitable
for government service. However, all such cases will be judged by
the Screening Committee of PHQ to assess their suit- ability for
the government job. The details of criminal cases which involve
moral turpitude may kindly be perused at Annexure 'A'.
7) Such cases in which a candidate had faced trial in any criminal
case which does not fall in the category of moral turpitude and is
subsequently acquitted by the court and he/she discloses about the
same in both application form as well as attestation form will be
judged by the Screening Committee to decide about his/her
suitability for the government job.
8) xxx xxxxxx
9). If any candidate is discharged by extending the benefit of
Probation of Offenders Act, 1958 this will also not be viewed
adversely by the department for his/her suitability for government
service."
12. No material is placed before us in regard to the existence
of a similar order by the Tamil Nadu Police and the Bench would urge
that such clarification be issued forthwith in Tamil Nadu as well, to
provide clarity to aspirants in this State.
13. The ratio of the judgment in Avtar Singh is being followed
consistently, most recently in Satish Chandra Yadav vs. Union of India
and others [2022 SCC online SC 1300], wherein certain principles have
been adumbrated as applicable to such litigation:
“90.In such circumstances, we undertook some exercise to
shortlist the broad principles of law which should be made
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applicable to the litigations of the present nature. The principles
are as follows:
a) Each case should be scrutinised thoroughly by the public
employer concerned, through its designated officials–more so, in
the case of recruitment for the police force, who are under a duty
to maintain order, and tackle lawlessness, since their ability to
inspire public confidence is a bulwark to society’s security. [See
Raj Kumar (supra)]
b) Even in a case where the employee has made declaration
truthfully and correctly of a concluded criminal case, the
employer still has the right to consider the antecedents, and
cannot be compelled to appoint the candidate. The acquittal in a
criminal case would not automatically entitle a candidate for
appointment to the post. It would be still open to the employer to
consider the antecedents and examine whether the candidate
concerned is suitable and fit for appointment to the post.
c) The suppression of material information and making a false
statement in the verification Form relating to arrest, prosecution,
conviction etc., has a clear bearing on the character, conduct
and antecedents of the employee. If it is found that the employee
had suppressed or given false information in regard to the
matters having a bearing on his fitness or suitability to the post,
he can be terminated from service.
d) The generalisations about the youth, career prospects and age
of the candidates leading to condonation of the offenders’
conduct, should not enter the judicial verdict and should be
avoided.
e) The Court should inquire whether the Authority concerned
whose action is being challenged acted mala fide.
f) Is there any element of bias in the decision of the Authority?
g) Whether the procedure of inquiry adopted by the Authority
concerned was fair and reasonable?”
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14. Hence it is clear that non-disclosure/suppression of
criminal antecedents on the part of an aspirant to uniformed service will,
generally be fatal to the consideration of his candidature. The governing
Rule in the State of Tamil Nadu is Rule 13 of the Special Rules for Tamil
Nadu Police Subordinate Service Rules, 1955, that reads thus:
“Rule 13 of Special Rules for TNPSS (For Taluk and
AR Candidates) 13. Qualifications:
No person shall be eligible for appointment to the service by
direct recruitment unless he satisfies the appointing authority
(a) that he is of sound health, active habits and free from any
bodily defect or nfirmity unfitting him for such service
(b) that his character and antecedents are such as to quality him
for such service (C) that such person does not have more than
one wife living of if such person is a Woman, that she is not
married to any person who has a wife living, and (d) that he
does not have knock knees or bow legs or flat feet.
(e) that he has not involved in any criminal case before Police
Verification clear She
Explanation (1): A person who is acquitted or discharged on the
benefit of doubt or due to the fact that the complainant turned
hostile shall be treated as a person involved in a criminal case.
Explanation (2): A person involved in criminal case at the time
of Police verification and 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
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case and he can claim right for appointment only by
participating in the next recruitment.””
15.A perusal of Rule 13 would show that it is absolute. Thus,
it is incumbent upon a candidate applying for a post in the Police force to
be be a clean-sheeter. However, over time, the position that has gained
ground since followed, is that even if a candidate might have criminal
antecedents, his candidature might be considered if he makes a full and
true disclosure about the same in his application and verification forms,
subject to the discretion of the employer. Such discretion is reserved for
the employer alone and the Court cannot step into that position. The
conduct of a candidate, to come clear with criminal antecedents, if any is
thus paramount to the consideration of his / her application.
16. In the present cases, it is an admitted position that the
respondents have suppressed their involvement in criminal cases at the
stage of application/verification. There is a distinction between the
relevant fields in the application and verification forms. Field No.29 in
the application form reads thus:
“29.ck; kPJ Fw;wtHf;F epYitapy; ,Uf;fpwjh?
Whether any criminal case is pending against you?
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29(a)Mk; vdpy;> tHf;F vz;> ehs;> fhty;
epiyaj;jpd; bgah;> tHf;fpd; jw;nghija epiyiaf;
Fwpg;gplt[k;”
Field No.15 in the Verification form reads thus:
“15.Have you ever been concerned in any
criminal case as defendant?
eP fphpkpdy; nfrpy; vg;bghHjhtJ
gpujpthjpahf rk;ge;jg;gl;lJz;lh?”
17.The verification is thus broader in approach and makes it
mandatory for the applicant to disclose ‘involvement’ in a criminal
matter, whereas, the requirement under the application form is specific to
the pendency of a criminal case at that relevant point in time. Thus,
while a candidate might get past scrutiny at the stage of application
stating that no criminal case was ‘pending’ at that time, he would have to
disclose any criminal antecedents in the Verification form. In all these
cases the disclosure in the verification forms is in the negative, though
admittedly, all the respondents had been involved in criminal cases in the
past.
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18. The orders passed by the Writ Court are set aside and these
Writ Appeals are allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
[A.S.M.J.,] & [R.V.J.,]
24.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
ta
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W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
ta
Common Judgment made in
W.A.(MD)Nos.431, 432, 434, 1385,
1386 of 2014 & 1182 of 2017
Dated:
24.07.2023
https://www.mhc.tn.gov.in/judis
