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Madhya Pradesh High Court · body

2016 DIGILAW 766 (MP)

Ravindra Kumar Pandoria v. State of M. P.

2016-09-01

SHEEL NAGU

body2016
ORDER : Sheel Nagu, J. The present petition filed under Article 226 of the Constitution of India, assailed the order dated 15-5-2014 contained in Annexure-P/1, by which the competent authority has declared the petitioner to be unfit for service in the police force on the ground of having been implicated in an offence involving moral turpitude. 2. The fact in nutshell, are that the petitioner was selected as police constable after being subjected to recruitment test in 2013. The petitioner pursuant thereto was appointed on the post of constable and posted at 29th Battalion Special Armed Force. It so happened that the employer while verifying the character antecedents of the petitioner found that an offence punishable under sections 452 and 326/34 of Indian Penal Code was registered as Crime No. 422/10 in which the petitioner had been acquitted by the judgment dated 12-7-2012 in Criminal Sessions Case No. 234/11, Anneuxre-P/7. 3. It is not disputed that the acquittal of the petitioner was rendered prior to his selection. 4. It is further not disputed that in the character antecedents form, the petitioner had disclosed the factum of being proceeded against in a criminal prosecution. Thus, there was no question of suppression of any material information. The employer after finding the aforesaid registration of criminal case which was treated by the employer to be involving moral turpitude, cancelled the candidature of the petitioner by order dated 9-12-2013 which was challenged in W.P. No. 702/2014, which came to be finally disposed of by order dated 26-3-2014, Annexure-P/2 in following terms :- 6. In the light of said judgment, this petition is disposed of by directing the respondents to consider the question of suitably of petitioner for appointment. The respondents, for this purpose, may constitute a Screening Committee. It will be open for the Screening Committee/department to accept or reject the candidature of the petitioner after due consideration of relevant aspects discussed in the judgment of Dilip Kumar Samadhiya (supra). Petitioner shall submit the representation along with the copy of this judgment before respondents. Respondents, in turn, shall consider the entitlement without getting prejudiced by impugned order and pass appropriate orders within 60 days. Outcome shall be communicated to the petitioner. 7. Petition is disposed of. 5. Petitioner shall submit the representation along with the copy of this judgment before respondents. Respondents, in turn, shall consider the entitlement without getting prejudiced by impugned order and pass appropriate orders within 60 days. Outcome shall be communicated to the petitioner. 7. Petition is disposed of. 5. After complying with the above said directions, the impugned order Annexure-P/1, dated 15-5-2014 was passed whereby it is held by the employer that though criminal prosecution against the petitioner culminated into acquittal but since acquittal was not clean and honourable on the ground of failure of the prosecution to establish the offence alleged and also that the offence alleged involves moral turpitude, the employer found the petitioner to be unfit for employment in police force. 6. Learned counsel for the petitioner has drawn attention of this Court to the findings recorded by the trial Court acquitting the petitioner to emphasise that in fact the acquittal was clean and honourable. It is contended by referring to para 7 of the impugned judgment that the complainant Harcharan (PW-1) has not supported the prosecution case by turning hostile. Further, reference is made to para 1 of the judgment of acquittal to contend that injured witness Subedar (PW-2) has denied that any house trespass took place and therefore it is contended by the learned counsel for the petitioner that the offence under section 452 of Indian Penal Code was clearly not proved. Learned counsel has further referred to para 9 of the judgment of acquittal to urge that there were two injuries sustained by the victim, the first was between the thumb and the forefinger of right hand which was incised in nature while the other was also incised injury on the frontal side of the skull. Both these injuries were found to be not grievous in nature. It is further pointed out that other injured Subedar (PW-2) also sustained two injuries, one was bruise on the left knee and the other was swelling on the right side of the back. 6.1 Further attention is invited to para 11 of the judgment of acquittal in which the Court has held that though there is medical evidence to establish sustenance of injuries as enumerated above, but there is total absence of any evidence that injuries were inflicted by the petitioner or other co-accused. 6.1 Further attention is invited to para 11 of the judgment of acquittal in which the Court has held that though there is medical evidence to establish sustenance of injuries as enumerated above, but there is total absence of any evidence that injuries were inflicted by the petitioner or other co-accused. 6.2 It is also contended that judgment of acquittal further discloses that no recovery of any weapon was made from petitioner who had been implicated with the aid of section 34 of Indian Penal Code. 6.3 The learned counsel for the petitioner assailing the impugned order contends that none of these aspects which were taken from the very reading of the order of acquittal and which clearly point towards acquittal being honourable, were taken into account by the employer while passing the impugned order. It is further contended that the impugned order was passed by wrongly treating the offence under sections 452 and 326 of Indian Penal Code, to be involving moral turpitude. 6.4 It is further submitted that the decision of Commissioner of Police, New Delhi v. Mehar Singh, reported in (2013) 7 SCC 685 persuaded the employer to take a view against the petitioner. 7. Learned counsel for the State on the other hand, supported the impugned order by contending that even if the petitioner had been acquitted but since the acquittal was on technical ground by giving benefit of doubt, the conduct of the petitioner can very well be looked into for cancelling his candidature for the service in a disciplined force. 8. The controversy involved herein is as to whether the petitioner in the given facts and circumstances where he had clearly disclosed the factum of having been proceeded against in a criminal prosecution, can still be found to be unfit for service in disciplined force. This issue is no more res integra and has been settled by the larger Bench decision of the Apex Court in Avtar Singh v. Union of India and others, SLP(C) No. 20525/2011, dated 21st July, 2016 [reported in 2016(4) M.P.L.J. (S.C.) 332], Certain guidelines have been laid down after considering various earlier decisions on the point including decisions pertaining to service in disciplined force, as under :- 30. We have noticed various decisions and tried to explain and reconcile them as far as possible. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarise our conclusion thus : (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. (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. (3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. (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 application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :- (a) 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. (b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. (c) 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. (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 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. 8.1 The case of the petitioner appears to fall within clause (5) of para 30 in which the larger Bench of the Apex Court lays down that in case the employee has made declaration truthfully of a concluded criminal case, even then the employer has the right to consider antecedents and employer cannot be compelled to appoint a candidate on the basis of above. 8.2 From bare perusal of the impugned order, it appears that the employer was persuaded to take a view against the petitioner for the following grounds:- (i) That acquittal of the petitioner of the offence under sections 452 and 326/34 of Indian Penal Code is not honourable and clean but by giving benefit of doubt. 8.2 From bare perusal of the impugned order, it appears that the employer was persuaded to take a view against the petitioner for the following grounds:- (i) That acquittal of the petitioner of the offence under sections 452 and 326/34 of Indian Penal Code is not honourable and clean but by giving benefit of doubt. (ii) That the offences punishable under sections 452 and 326/34 of Indian Penal Code, involve moral turpitude. (iii) That, the decision of the Apex Court in the case of Commissioner of Police, New Delhi v. Mehar Singh (supra) empowers the employer to reject candidature of an appointee for service in disciplined force even when the earlier prosecution ended in acquittal. 9. Before proceeding ahead, it would be appropriate to deal with the aspect as to whether the decision in the case of Commissioner of Police, New Delhi v. Mehar Singh (supra) which has been heavily relied upon by the employer still holds the field or not. 10. Though, the decision of Commissioner of Police, New Delhi v. Mehar Singh (supra) has not been referred to in the judgment of Avtar Singh (supra), but this Court while deciding W.P. No. 1016/09, Deepak Singh Tomar v. Union of India and others by judgment dated 9-8-2016 [reported in 2016(4) M.P.L.J. 635 ] has held that since the matters relating to service in disciplined force including police force have been considered on principle and cases of other services (besides disciplined service) have been taken into account in the case of Avtar Singh (supra) then all those non-referred cases of disciplined force involving same question are impliedly overruled by Avtar Singh (supra). Following findings in W.P. No. 1016/09 are reproduced below :- "Learned counsel for the Union of India, on the other hand relies upon the decisions in the cases of Devendra Kumar v. State of Uttaranchal and ors., reported in (2013) 9 SCC 363 , Commissioner of Police, New Delhi and anr. v. Mehar Singh with Commissioner of Police, New Delhi and anr. v. Shani Kumar, reported in (2013) 7 SCC 685 and State of M.P. and ors. v. Parvez Khan, reported in (2015) 2 SCC 591 and contends that the said three decisions of the Apex Court are specific on the point involved herein that suppression of material facts in the attestation form while considering appointment to disciplinary force. v. Shani Kumar, reported in (2013) 7 SCC 685 and State of M.P. and ors. v. Parvez Khan, reported in (2015) 2 SCC 591 and contends that the said three decisions of the Apex Court are specific on the point involved herein that suppression of material facts in the attestation form while considering appointment to disciplinary force. It is submitted that these three earlier decisions have not been considered by the Larger Bench of the Apex Court in Avtar Singh (supra). This Court has to first deal with the aspect as to whether the said three decisions cited by the learned Assistant Solicitor General which relate exclusively to the service in disciplined force, continue to hold the field even in the face of the Larger Bench decision in the case of Avtar Singh (supra). It is also relevant to mention here that the specific contention of the learned ASGI that the matters of employment in disciplined force have not been taken into account in Avtar Singh (supra) is required to be considered. In this regard perusal of the decision of Avtar Singh (supra) in particular Paras 11, 12, 15, 17, 18 and 19 reveal that the Apex Court has dealt with the matters of termination of appointment/candidature due to suppression of material information in the attestation form by the members of disciplined force in the cases of R. Radha Krishnan v. Director General of Police and ors., reported in (2008) 1 SCC 660 , Union of India and ors. v. Bipad Bhanjan Gayen, reported in (2008) 11 SCC 314 , Daya Shankar Yadav v. Union of India and ors., reported in (2010) 14 SCC 103 , State of W.B. and ors. v. SK. Nazrul Islam, reported in (2011) 10 SCC 184 , Commissioner of Police v. Sandeep Kumar, reported in (2011) 4 SCC 644 and Ram Kumar v. State of U.P., reported in (2011) 14 SCC 709 . Thus, the submission of the learned ASGI as mentioned above does not hold water. Considering the final guidelines laid down in para 30 of the Larger Bench decision, it is noticed that the law laid down which squarely applies to the factual matrix of the case herein is contained in para 30(4)(a) which is reproduced again for ready reference :- PARA-30 4. Considering the final guidelines laid down in para 30 of the Larger Bench decision, it is noticed that the law laid down which squarely applies to the factual matrix of the case herein is contained in para 30(4)(a) which is reproduced again for ready reference :- PARA-30 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 application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :- (a) 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. Consequently, it is evident that after taking into account various decisions including those of members of disciplined force, the Larger Bench of Apex Court has laid down that where it is found that there is suppression of information in a criminal case where acquittal or conviction has already been recorded and this fact comes to the knowledge of the employer later, then the appropriate recourse to be followed is that if the criminal case was of trivial nature and the same may not render the incumbent unsuitable for the post in question the employer may in its discretion, ignore such suppression of fact or false information by condoning the lapse. It is thus evident that since though the Larger Bench in Avtar Singh did not consider the earlier three decisions rendered by Benches of lesser composition, but the point of law in those three earlier decisions was duly considered in detail, this Court is compelled to infer that the earlier three Division Bench decision of the Apex Court are impliedly overruled by the Larger Bench comprising of three Hon'ble Judges of the Apex Court. 11. In view of above, it is explicitly clear that the decision of the Apex Court in the case of Commissioner of Police, New Delhi v. Mehar Singh (supra), does not hold the field any more in the face of larger Bench decision of the Apex Court in Avtar Singh (supra). 12. 11. In view of above, it is explicitly clear that the decision of the Apex Court in the case of Commissioner of Police, New Delhi v. Mehar Singh (supra), does not hold the field any more in the face of larger Bench decision of the Apex Court in Avtar Singh (supra). 12. Since in the larger Bench decision of the Apex Court in Avtar Singh case (supra) the employer has been given discretion to consider the suitability of the candidate who has been acquitted in criminal case prior to his selection for appointment and has made truthful declaration, this Court is left with no other option but to relegate the matter to employer for re-consideration. 13. However, before doing so, it would be appropriate to record findings as to whether the offence in question involves moral turpitude or not since from the impugned order the nature of the offence appears to be one of the major factors which has persuaded the mind of the employer to take a decision against the petitioner. 14. The meaning of the term ‘moral turpitude' as given in the Blacks Law Dictionary (8th End. 2004) is as follows : "Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offences involving moral turpitude - such as fraud or breach of trust Also termed moral depravity......" 14.1 The Apex Court had occasion to consider the scope of the term ‘moral turpitude" in Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 . Later, in Allahabad Bank and another v. Deepak Kumar Bhola, (1997) 4 SCC 1 , the Apex Court held that the offence involving ‘moral turpitude' depends upon the facts and circumstances of each case. It was categorically made clear that, one of the most serious offences involving ‘moral turpitude' would be, where a person employed in a Banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. 14.2 The Apex Court considered the meaning of the term moral turpitude' again, insofar as it related to the deeds/misdeeds committed by a Bank employee in Sushil Kumar Singhal v. Regional Manager, Punjab National Bank, (2010) 8 SCC 573 and held that the term ‘moral turpitude' means anything contrary to honesty, modesty or good morals and it needs vileness and depravity. 14.3 Thus, moral turpitude implies depravity and wickedness of character or immoral disposition of the person charged with the particular conduct. The offence pertaining to moral turpitude generally are offence in the nature of theft, aggravated forms of theft, offence against woman, offence relating to cheating and forgery, offence against the State or against public tranquility; or offence of very grave nature such as murder, culpable homicide not amounting to murder, offence against public justice, offence relating to sale of counterfeit Government stamp, offences affecting the Public Health/Safety, convenience, decency and morals, etc. 15. Pertinently one of the offences mentioned in the impugned order is under section 326 of Indian Penal Code which appears to be grave. The judgment of acquittal does not indicate that the injured sustained any grievous injury as defined in section 320 of Indian Penal Code. Thus, at best even if the offence is treated as proved, which in fact was not the case, the petitioner could be held guilty for an offence under section 323 of Indian Penal Code, of voluntarily causing minor hurt without any weapon as admittedly no recovery of any offending weapon was made from the petitioner. Causing of minor hurt, in the considered opinion of this Court, does not involve moral turpitude-as there is no depravity of character involved. 16. As regards offence of house trespass under section 452 of Indian Penal Code, the same was not found to be proved at all and it appears from the judgment of the trial Court that petitioner was acquitted honourably without even an iota of implicative evidence and therefore acquittal recorded on the ground of benefit of doubt in the judgment by the trial Court is a misnomer. This Court thus leaves the matter for the employer to be decided on the principles enunciated above after considering candidature of the petitioner afresh in terms of the directions passed below. 17. Accordingly, the present petition is allowed with following directions:- (i) The impugned order dated 15-5-2014 contained in Annexure-P/1 is set aside. This Court thus leaves the matter for the employer to be decided on the principles enunciated above after considering candidature of the petitioner afresh in terms of the directions passed below. 17. Accordingly, the present petition is allowed with following directions:- (i) The impugned order dated 15-5-2014 contained in Annexure-P/1 is set aside. (ii) The employer of respondent No. 4 shall reconsider candidature of the petitioner for appointment to the post of constable after taking into account the principles laid down in the case of Avtar Singh (supra) as well as the observations made by this Court and pass a speaking order as early as possible within period of 60 working days from the date of communication of the order of this Court passed today.