The Director General of Police v. K.Muthueswaran,

JUDGMENT (Judgment of the Court was delivered by DR.ANITA SUMANTH, J.) The State has filed an appeal assailing the order passed by the learned Judge on 16.04.2013 allowing the writ petition filed by the sole respondent (hereinafter referred to as 'writ petitioner'/'respondent').

¶2We have heard the detailed submissions of Mr.Veerakathiravan, learned Additional Advocate General assisted by Mr.K.S.Selvaganesan, learned Additional Government Pleader for the State and Mr.R.Suriyanarayanan, learned counsel, for the respondent.

¶3The writ petitioner was an aspirant to the post of Police Constable Grade II. He made an application on 28.03.2012 in response to call for applications from the Tamil Nadu Uniformed Service Recruitment Board. He claims to have enrolled for free coaching class for the entrance test conducted by Superintendent of Police, Theni for preparation.

¶4The application filed by him contains a specific field/ column as to whether any criminal case was pending at that time as against him, and the exact language is as follows: "29.cd; kPJ Fw;w tHf;F epYitapy; ,Uf;fpwjh? Whether any criminal case is pending against you?" He answered in the negative.

¶5A verification was filled by him on 09.11.2012, which contains a field/column as to whether the applicant had ever been concerned in any criminal case as defendant. The field reads thus:

15.Have you ever been concerned criminal case as defendant? eP

fphpkpdy;

nfrpy;

vg;bghGjhtJ

gpujpthjpahf rk;ge;jg;gl;lJz;lh?

The Petitioner answered ',y;iy' (no).

¶6It is the writ petitioner's case that he had come to know that his father and grandfather had been engaged in a quarrel in May 2012. On a complaint filed by his grandfather in a Police Station in Kerala, his father was arrested, remanded to judicial custody and obtained bail.

¶7He claims to have heard that he would also be implicated and hence, by way of abundant caution, submitted a letter dated

20.06.2012 informing the Superintendent of Police that there was a possibility of him being implicated in a false case foisted on him, that he was unconnected with the incident and had been attending coaching classes at Theni then.

¶8The writ petitioner claims never to have been summoned for enquiry or arrested. He has not approached the Court seeking anticipatory bail. Relying on this, he states that he had been wholly unaware of the fact that he had been arrayed as an accused in that crime and had, hence, replied in the negative both in the application as well as verification forms.

¶9While this is so, an order had come to be passed on

06.12.2012 rejecting his candidature on the ground that there had been non-disclosure of criminal case in Crime No.527 of 2012 before Kumili Police Station and hence, his conduct was found to be unsatisfactory. He had challenged that order on the ground that he had been totally unaware of the criminal case and his disclosure was thus full and true.

¶10He claimed that it was only after receiving the impugned order that he had even known that he arrayed as first accused in C.C.No. 576 of 2012 on the file of the Judicial I Class Magistrate, Peermedu-II. He would claim that upon coming to know of the criminal case, he enquired with his father and was informed that there had been family feud in a property dispute, which had subsequently been compromised.

¶11He then approached the Kerala High Court in Crl.M.P.No. 3871 of 2012 along with his father and the Court, noting the compromise entered into by the parties, quashed the criminal case by order dated

17.12.2012. These are the submissions of the writ petitioner in paragraph No.9 of the affidavit filed in the writ petition, which is extracted below: "9.I submit that I am not aware of the pending of criminal case against me except knowing the incident stated supra and after seeing the impugned order only I came to understand that in the said criminal case in C.C.No.576 of 2012 on the file of the Judicial I Class Magistrate,II Peermedu I was also been arrayed as first accused. Then I enquired my father and he told me that said case has been given in a family feud in a property dispute and since it was cook-up case, a compromise was arrived by my father and my grandfather and taking steps to quash the same. Then on 17.12.2012 the said case has been quashed by the Hon'ble High Court of Kerala at Ernakulam in Crl.M.C.No.3871 of 2012 under Section 782 of IPC. At present no criminal case is pending against me."

¶12The learned Judge allowed the Writ Petition by way of a common order dated 16.04.2013, passed in several writ petitions. The discussion in regard to this petitioner is at paragraphs 26 to 33. The writ petition was allowed following the decision in W.P.(MD)No.474 of 2013, which had been decided on 26.03.2013.

¶13In that case, though an FIR had been filed as against those petitioners, their names had either been deleted while filing charge sheet or the cases were closed as mistake of fact. Hence, it was seen that they were not involved in the criminal cases as they had been exonerated from the charges after investigation. Following that decision, W.P.(MD)1519 of 2013 filed by the respondent was allowed.

¶14We find the facts arising in W.P.(MD).No.474 of 2013 to be distinguishable when compared with the facts arising in this case. Moreover, the judgment of the Hon'ble Supreme Court in the case of Avtar Singh vs. Union of India and others [(2016) AIR SCW 3598] has been rendered on 21.07.2016 and the ratio of the same would be applicable to this case.

¶15The Hon'ble Supreme Court has held therein at paragraph No.38 that a full and true disclosure must be made by aspirants to posts in public services especially Uniformed Services. Non-disclosure of criminal antecedents would be fatal to their applications. Having made such disclosure however, discretion is always vested in the employer to decide whether the indiscretion/pendency of criminal proceedings could be condoned and the applicant be admitted into service.

¶16Thus, the question that arises in this matter relates to (i) whether the writ petitioner was right in claiming ignorance of the criminal proceedings pending in his case at the time of verification and

(ii) whether the non-disclosure of criminal proceedings involving the petitioner would be fatal to the application. It is the writ petitioner's specific case that he was wholly unaware of the criminal case involving his father and grandfather as he had been issued no summon or any other notices from the department.

¶17He relies on letter dated 20.06.2012 and contents therein to state that even at that time, he had made a full disclosure before the authorities that there had been criminal proceedings involving his family and he only apprehended being drawn into the same. Had he intended to suppress the proceedings, there would have been no necessity, he would state, for him to have even written letter dated 20.06.2012 at all.

¶18He specifically relies on para 30 (8) of the judgment of the Hon'ble Supreme Court in Avtar Singh (supra), wherein the Bench had stated that if the candidate had been unaware of the pendency of a criminal case at the time of filling in the form, though it still it may have adverse impact, the appointing authority would take a decision after considering the seriousness of the crime.

¶19Thus, the respondent argues that the authority has erred in rejecting his candidature for want of a full disclosure. They ought to have instead appointed him as he was fully eligible, taking note of the fact that the charges in the criminal case had been trivial, had been compromised by his family and the case has been quashed by the Kerala High Court. He fully supports the order of the Writ Court in allowing the writ petition.

¶20The respondent would also rely on the judgment of the Hon'ble Supreme Court in Pavan Kumar vs. Union of India and another [Civil Appeal No.3574 of 2022, dated 02.05.2022], specifically para 13, to the effect that the discharge of a candidate from service cannot be arbitrary and the effect of suppression must be left to the employer to consider having regard to relevant circumstances.

¶21At para 17, the facts of that case were noted, where, though a criminal case had been registered, it had not been disclosed in the application. However, the complainant therein had filed an affidavit in that criminal case at the very threshold that the FIR had been registered on account of misunderstanding and that he did not wish to pursue his case any further, despite which, a charge sheet had been filed.

¶22On the first date of hearing, P.W.1 had not supported the case of the prosecution and that candidate had been acquitted. It was in the light of these facts that that writ petition had been allowed. The State relies, apart from the judgment in Avtar Singh, on the judgement in Satish Chandra Yadav vs. Union of India and others [2022 SCC online SC 1300].

¶23In the present case, what needs to be decided at the threshold is the veracity of the submission of the writ petitioner that he was wholly unaware of his implication in the FIR. Letter dated

20.06.2012 stands testimony to the fact that the petitioner was aware of not just the family dispute, but of the criminal case laid as against his father. The letter reads thus:- mDg;g[eh; " nf.Kj;jP];tud;> j/bg tp.Fz;Lkzp 13tJ thh;L ehl;lhz;ikfhuh; bjU cj;jkghisak; njdp khtl;lk;. bgWeh; cah;jpU. khtl;l fhty;Jiw fz;fhzpg;ghsh; mth;fs;> khtl;l fhty; mYtyfk;> njdp khtl;lk;. kjpg;gpw;Fhpa ma;ah tzf;fk;. ehd; fle;j 5 khjq;fshf nkny fz;l vdJ jha;khkd; tPl;oy; jq;fpapUe;J> nghyP]; ntiyapy; nrUtjw;F jq;fs; mYtyfj;jpy; fle;j 1½ khjq;fshf gapw;rp bgw;W tUfpnwd;. ,e;j epiyapy; vdJ je;ij Fz;Lkzp vd;gtUf;Fk;> jhj;jh tpUkhz;o kw;Wk; rpj;jg;gh KUfd; vd;gtUf;Fk; brhj;J jfuhW rk;ge;jkhf nfush khepyk;> ,Lf;fp khtl;lk;> Mztpyh];-y; fle;j

31.5.2012-k; njjp jfuhwpy; mojoahfp gPh;nkL fhty; epiyaj;jpy; vd; je;ij kPJk;> vd; kPJk; vdJ jhj;jh kw;Wk; rpj;jg;gh bgha; nf]; bfhLj;Js;shh;fs;. nkw;go g[fhhpd; nghpy; vdJ jei; j kPJ tHf;F gjpt[ bra;ag;gl;L jw;nghJ vdJ jei; j rpiwapy; cs;shh;. nkw;go egh;fs; vdJ thH;it rPuHpf;f ntz;o nkw;go jfuhwpd; nghJ ,y;yhj vd;ida[k; ntz;Lbkd;nw nf]; bfhLj;Js;shh;fs;. vdf;Fk;> nkw;go brhj;J jfuhwpy; Vw;gl;l gpur;ridf;Fk; vt;tpj rk;ge;jKkpy;iy. vdnt fUizkpf;f ?ah mth;fs; vdJ vjph;fhy ed;ikia fUjp nkw;go brhj;J jfuhwpdhy; Vw;gl;l gpur;ridahy; nkw;go vjphpfs; bfhLj;Js;s tHf;fpypUe;J epuguhjpahfpa vd;id tpLtpf;FkhW gzpt[ld; nfl;Lf;bfhs;fpnwd;. njjp : 20.06.2012 ,g;gof;F jq;fs; cz;ika[s;s (ifbahg;gk;) fle;j 5 khjq;fshf nkw;go Kfthpapy;jhd; vdJ jha;khkd; tPl;oy; jq;fpapUe;jjw;fhd rhl;rpfs; ------------------------- (rhl;rpfs; bgah;fs; (2))"

¶24The writ petitioner has been arrayed as first accused and his father as the second accused in the FIR. His father had approached the Kerala High Court and obtained bail. The bail application would have included a copy of FIR and we thus find it hard to believe that the writ petitioner was unaware of the contents of the FIR. It does not stand to reason that he had not been informed by his family that he had been arrayed as first accused in that FIR.

¶25That apart, even in letter dated 20.06.2012, he talks of the complaint filed by his relatives against his father and himself, urging that it was a false complaint.

¶26It would have been a different matter, had he not written on

20.06.2012 to the authorities in which case he could have, more credibly, pleaded total ignorance. This letter however, makes it clear that, as on that date, he was fully aware of the proceedings involving his father.

¶27That apart, he claims in para 9 of his writ affidavit to have come to know the existence of charge sheet in C.C.No.576 of 2012, only on receipt of order dated 06.12.2012 rejecting his application. However, Kerala High Court had passed an order in Crl.M.P.3871 of 2012 quashing the criminal complaint on 17.12.2012.

¶28The above time frame also throws some doubt on the Writ petitioner's version of events. If that version is to be believed, he has approached the Kerala High Court seeking quash of C.C.No.576 of 2012, only after receipt of order dated 06.12.2012.

¶29We had asked for some material in support of the position that the quash petition had indeed, been filed only after 06.12.2012 but no material has been so supplied. We are thus unable to subscribe to the view that the petitioner came to know of the criminal case only after receipt of order dated 06.12.2012, and reject the submissions on that score.

¶30What is conclusive against the case of the writ petitioner is the final report filed by the Additional Sub Inspector of Police, Kumily Police Station, Virumandi on 15.06.2012 before the jurisdictional Court. The final report is in Malayalam and we have obtained a translation in respect of that portion thereof relating to the first accused in FIR, who is the writ petitioner.

¶31The portion is extracted below: "Additional SI of Police, Kumily. ......... Report: ......... (Signature) Finny Vajheej Addl. S.I. OF Police Kumily.

31.0.2012"

¶32The FIR reveals an altercation between the writ petitioner and his father on the one side and their members on the other. The presence and participation of the writ petitioner in the incident leading to the complaint, FIR and subsequent proceedings is without question. Furthermore, the final report, extracted above, reveals that attempts were being made to trace the first accused that were futile as the report states that he was absconding.

¶33It is during this time that the writ petitioner / first accused in FIR states that he was undergoing training for the selection in the coaching centre in Theni. Thus, it is possible that the writ petitioner is using the coaching period as a cover to feign ignorance of the criminal proceedings against him.

¶34The disclosure of the criminal case pending against him in letter dated 20.06.2012 is, in our view, merely a clever move to make it appear that the petitioner was unaware of the police proceedings while he was, in fact, well aware of the same. Thus, there is no justification for the non-disclosure of this critical aspect in the application and verification filed on 09.11.2012.

¶35In the case of Satish Chandra Yadav vs. Union of India and others [2022 SCC online SC 1300], certain broad principles have been adumbrated as applicable to such cases and they are as follows: "90.In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made 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?"

¶36In light of the above discussion, the order of the Writ Court is reversed and this writ appeal allowed. No costs. Consequently, connected miscellaneous petition is closed. [A.S.M.J.,] & [R.V.J.,]

29.08.2023

NCC :Yes/No Index :Yes/No Internet :Yes

DR.ANITA SUMANTH, J. AND

R.VIJAYAKUMAR, J. ta W.A.(MD)No.433 of 2014 Dated:

29.08.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESEVED ON : 24.07.2023 DELIVERED ON : 29.08.2023 CORAM: THE HONOURABLE DR.JUSTICE ANITA SUMANTH AND THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR W.A.(MD)No.433 of 2014 and M.P.(MD)No.3 of 2014 1.Tamil Nadu Uniformed Service Recruitment Board, Represented by its Chairman, No.807, P.T.Lee, Chengalvaraya Naickar Maligai, 2nd Floor, Anna Salai, Chennai-002. 2.The Director General of Police, DGP Office, Chennai-4. 3.The Superintendent Police, District Police Office, Theni. ...Appellants /Vs./ K.Muthueswaran ...Respondent PRAYER:- Writ Appeal - filed under Clause 15 of Letters Patent Act, to set aside the order dated 16.04.2013 in W.P.(MD)No.1519 of 2013 on the file of this Court. For Appellants : Mr.Veera Kathiravan Additional Advocate General for Mr.K.S.Selvaganesan Additional Government Pleader For Respondent : Mr.R.Suriyanarayanan