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2020 DIGILAW 33 (MP)

Ravindra Kumar Pandoriya v. State of M. P.

2020-01-07

VISHAL MISHRA

body2020
ORDER Mishra J. -- 1. With the Consent of the parties, the matter is finally heard. 2. The present petition is being filed being aggrieved by the order dated 15.9.2016 passed by the respondents whereby the representation submitted by the petitioner has been rejected. 3. It is alleged by the counsel for the petitioner that the impugned order is total disregard to the order passed by the Court vide order dated 1.9.2016 passed in W.P. No. 3719/2014 (S) and the petitioner has been declared to be ineligible for recruitment in the police department. It is submitted that the inaction on part of the respondent No. 4 is not only arbitrary and malafide and appears to be an outcome of malafide but also contents in nature as he was well aware of passing of the order passed by this Court dated 1.9.2016 and despite of the fact that the Hon’ble High Court has categorically recorded the finding with respect to the fact that no offence containing in moral turpitude is made out against the petitioner has directed the authorities to reconsider the case of the petitioner for grant of appointment then also the respondent No.4 has rejected the representation of the petitioner holding that the offence under sections 452 and 323 of IPC are the offences falling under the definition of moral turpitude and are not offences of simple category. Therefore, on the recommendation of the committee the representation has been rejected. Learned counsel for the petitioner has stated that the petitioner has been acquitted of all the charges in the criminal case vide judgment of acquittal dated 12.7.2012. He has further drawn attention of this Court to the order dated 1.9.2016 passed in W.P. No. 3719/2014 (S) and has argued that the Hon’ble High Court has considered the aforesaid aspect in the case of Ravindra Kumar Pandoria v. State of M.P. & Others, and has held as under : “15. Pertinently one of the offences mentioned in the impugned order is under section 326 of I.P.C. 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 IPC.. Pertinently one of the offences mentioned in the impugned order is under section 326 of I.P.C. 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 IPC.. 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 offfence under section 323 of IPC., 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 more turpitude as there is no depravity of character involved. 16. As regards offence of house trespass under section 452 of IPC, 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 on 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. (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. No cost.” 4. It is stated that despite the specific finding being recorded by this Court in the earlier round of litigation that the petitioner has been acquitted and no offence of moral turpitude is made out against the petitioner then also the impugned order has been passed holding that the petitioner has been acquitted on the basis of a compromise in the matter vide judgment dated 12.7.2017. The same does not amount to the honourable acquittal and even the offence under sections 452 and 323 being offences of moral turpitude. The petitioner was not found fit for appointment to the post in the respondents’ department. He has further drawn attention of this Court to the reply submitted by the authorities. The reply submitted by the authorities on affidavit wherein they have categorically observed as under : “The candidature of the petitioner has been rejected for the reason of his involvement in the criminal case under sections 452, 294, 326/149 IPC. The offences under sections 452 and 326 has been considered as of moral turpitude in the light of the sensitive and disciplined character required for the police service. The petitioner was admittedly involved in the offence and as such he was found not suitable for the police service. The writ petition has no merit and liable to be dismissed.” 5. It is submitted that once the order dated 1.9.2016 passed by the respondents-authorities in W.P. No. 3719/2014(S) has attained finality and there is no challenge is made by the authorities to the aforesaid order then there is no occasion to the authorities to record such a finding giving on finding superseding the findings given by this Hon’ble the Court which amounts to contemptuous Act. He has relied upon the judgment passed by the Division Bench of this Court in the case of Anil Kumar Balmik v. State of M.P. & Ors. being W. A. No. 587/2018 judgment dated 4.5.2018, wherein the Division Bench of this Court considering the the judgment of the Full Bench in the case of Ashutosh Pawar v. High Court of Madhya Pradesh & Another being W.P. No. 5865/2016 decided on 12.1.2018 [Published in 2018(1) JLJ 169 ] has disposed of writ appeal with a direction to the authorities to consider the case of the petitioner. He has further relied upon the order passed by the Division Bench of this Court in the case Ravindra Kushwah v. The State of M.P. being W.A. No. 290/2018 order dated 20.4.2018, wherein the matter was relegated back to the competent authority to pass a fresh order after considering the case of the appellant afresh in the light of the observation made in that order. He has further relied upon the order passed by the Division Bench of this Court in the case of State of M.P. & Ors. v. Monu Raghuvanshi being W.A.No.168/2017 order dated 24.10.2017, and has prayed that the authorities be directed to issue appointment order to the petitioner as this Court has already held that no case of moral turpitude is made out against the petitioner. 6. Per contra, learned Govt. Advocate by filing reply has supported the impugned order and has submitted that the impugned order is just and proper and has been passed taking into consideration the judgment passed by the Hon’ble Supreme Court in the case of Commissioner of Police, New Delhi & another v. Mehar Singh with Commissioner of Police, New Delhi and another [ (2013)7 SCC 685 ] and considering the case of State of Madhya Pradesh and Ors. v. Parvez Khan reported in [ (2015)2 SCC 591 ]. It is further contended that in the order of acquittal was passed by the Court below in the criminal case the injuries are clearly mentioned, that the petitioner has been acquitted on the basis of benefit of doubt, does not mean that the petitioner has been honorably acquitted. He has further relied upon the judgment passed by the Hon’ble Supreme Court in the case of Avtar Singh v. Union of India & Others, [ (2016)8 SCC 471 ] and has relied on para 38 of the judgment which reads as under : “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. 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 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. 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. 38.7. 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.” 7. It is contended that it is right of employer to grant the appointment to the candidate like petitioner who was having criminal case registered against him and the authority cannot be compel to grant appointment. It is submitted that the candidate like the petitioner cannot be granted appointment owing to the criminal antecedents. Thus, the order impugned passed by the authorities is rightly being passed and the same does not call for any interference. The committee has reconsidered the entire case of the petitioner and has rejected the reconsideration of case of the petitioner in the light of the order passed by the writ Court and has rejected the representation of the petitioner. He has prayed for dismissal of the writ petition. 8. Heard the learned counsel for the parties and perused the record. 9. He has prayed for dismissal of the writ petition. 8. Heard the learned counsel for the parties and perused the record. 9. From the perusal of the record, it is seen that there is no dispute with respect to filing of the petition on the earlier round by the petitioner being W.P. No. 3719/2014 (S) which was finally decided by the order dated 1.9.2016. This Hon’ble Court in the earlier round of litigation in W.P.No.3719/2014 (Ravindra Kumar Pandoria v. State of Madhya Pradesh & Others) has recorded categorical finding (as pointed out herein above) and has remanded the matter to the respondent No. 4 for reconsideration. The respondents-authorities have in pursuance to the order passed by the Court to reconsider the case of the petitioner and has rejected the representation observing that the petitioner has been acquitted on the basis of compromise vide judgment of acquittal dated 12.7.2012. The judgment of acquittal dated 12.7.2012 is annexure P-4 which is seen by this Court wherein learned Session Court has acquitted the petitioner observing as under :- ß;fn Qfj;knh us U;kf;d lk{; esa izFke lwpuk fjiksVZ ds rF;ksa dks ifjofrZr dj fn;k gS] ,slh fLFkfr esa vfHk;kstu ekeyk vfo'oluh; gks tkrk gS ,oa izFke lwpuk fjiksVZ lkjoku lk{; ugha gSA fpfdRlh; lk{; Hkh lkjoku lk{; ugha gS dsoy iqf”Vnk;d lk{; gSA ek= fpfdRldh; lk{; ds vk/kkj ij nks"kflf) ugha dh tk ldhA vr% vfHk;qDrx.k dksd flag] jfo tkVo] jkegsr tkVo] panzHkku tkVo] Hkxoku flag ,oa gseUr tkVo ds fo:) Hkk-na-fo dh /kkjk 452] 326@149] dk vkjksi lk{; ds vHkko esa izekf.kr ugha ik;k tkrk gSA vr% vfHk;qDrx.k dks Hkk- na- fo- dh /kkjk 452] 326@34 ds vkjksi ds varxZr lk{; ds vHkko esa nks"keqDr fd;k tkrk gSA tekur eqpydk fujLr fd;s tkrs gSaA ** 10. Thus, it is seen that the petitioner has not been acquitted on the basis of compromise entered into between the parties. The judgment of acquittal passed by the trial Court has been considered by this Court in the earlier round of litigation and this Court has categorically observed that no offence of any moral turpitude is made out against the petitioner and a specific finding with respect to honorable acquittal of the petitioner was recorded by this Court. The order dated 1.9.2016 passed by this Court in W.P. No. 3719/2014 is not being put to challenge by the respondents-authorities at any point of time. The order dated 1.9.2016 passed by this Court in W.P. No. 3719/2014 is not being put to challenge by the respondents-authorities at any point of time. The same has attained finality. There was no occasion to the authorities to reject the application recording the finding that the offences under sections 452 and 323 of IPC are falling under the definition of moral turpitude and the fact that the petitioner was not honorably acquitted as recorded by this Court in the earlier round and the petitioner was not acquitted on the basis of compromise. The aforesaid findings are contrary to the findings given by this Court in the earlier round of litigation and amounts to superseding the order passed by this Court. In such circumstances, the order impugned is unsustainable and is hereby set aside. The matter is relegated back to the authorities to reconsider the candidature of the petitioner in terms of the order passed by this Court in W.P.No. 3719/2019 vide order dated 1.9.2016. The respondents authorities are having no right to deviate from the findings recorded by this Court in the earlier round of litigation. The aforesaid exercise of reconsideration of the candidature of the petitioner be completed within a period of two months from the date of receipt of the certified copy of this order. 11. Accordingly, the petition is disposed of in above terms.