THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE MR.JUSTICE M.V. MURALIDARAN
W.A.No.332 of 2014
and M.P.No.1 of 2014
1. The Tamil Nadu Uniformed Services Recruitment Board Anna Salai, Chennai.
2. The Superintendent of Police The Tamil Nadu Special Police Youth Brigade Office of Superintendent of Police Ariyalur, Ariyalur District.
3. The Authorized Officer The Tamil Nadu Special Police Youth Brigade Office of Superintendent of Police Ariyalur, Ariyalur District. ...Appellants Vs Sivasakthi ...Respondent Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 14.02.2014 in W.P.No.4285 of 2014.
For Appellants : Mr.K.Venkatramani, Additional Advocate General Assisted by Mr.K.Dhananjayan, Special Government Pleader For Respondent : Mr.G.Jeremiah
J U D G M E N T
K.K.SASIDHARAN,J.
The respondent submitted application for appointment to the post of Youth Brigade in the Tamil Nadu Special Police Youth Brigade. Since appointment was not given to him, the respondent filed a writ petition in W.P.No.4285 of 2014 for issuance of a writ of mandamus directing the appellants to offer him appointment. Before the Writ Court, the appellants submitted that the respondent was involved in a criminal case and the same was not disclosed by him. The conviction of the respondent in a criminal case was taken as the reason for denying appointment to him.
2. The learned Single Judge found that the charge against the respondent was in respect of a petty offence and as such, opined that he should be considered for appointment to the post of Youth Brigade. Since a positive direction was given to the police to appoint the respondent, the State has come up with the intra Court Appeal.
SUBMISSION:
3. The learned Additional Advocate General contended that the respondent was not appointed on account of valid reasons. According to the learned Additional Advocate General, though there was a conviction, the respondent suppressed the material particulars regarding his involvement and ultimately, the fine paid by him. The learned Additional Advocate General further contended that after appointing to the post of Youth Brigade, the respondent would be considered for the post of Police Constable. Since the police force is a disciplined force, the learned Single Judge was not correct in directing the police to appoint the respondent as a Youth Brigade notwithstanding his conviction for a criminal offence.
4. The learned counsel for the respondent, while justifying the order passed by the learned Single Judge, contended that the case involving the respondent was registered at the instance of a Police Officer who was on duty. It was a petty case. Since the respondent was advised by his friends and well wishers that it would be better to pay fine, the respondent pleaded guilty. Since it was not a major offence, the factum of payment of fine was not disclosed. According to the learned counsel, unlike recruitment rules for appointment to the post of Police Constable, there was nothing in the Government Order in G.O.Ms.No.432 Home (Pol.XIV) Department dated 01 July 2013, debarring a candidate punished for petty offences from applying for appointment to the post of Youth Brigade.
DISCUSSION:
5. The Government issued an order in G.O.Ms.No.432 Home (Pol.XIV) Department dated 01 July 2013 making Rules for appointment to the post of Youth Brigade in Tamil Nadu Special Police.
6. The respondent, pursuant to the notification issued by the Tamil Nadu Uniformed Services Recruitment Board, submitted application to the post of Youth Brigade. The respondent was not given appointment presumably for the reasons that on enquiry it was found that he was involved in a criminal case, resulting in conviction and subsequent payment of fine. Since there was no communication from the Recruitment Board with regard to the selection or non selection of the respondent, he filed a writ petition in W.P.No.4285 of 2015.
7. Before the Writ Court, the appellants contended that the respondent was involved in a criminal case and ultimately he was punished. The factum of such punishment was not disclosed by him and the same resulted in his non-appointment.
8. The learned Single Judge arrived at a finding that the respondent involved in a petty case and was of the view that the appellants were not justified in denying him appointment. The learned Single Judge, therefore, issued a direction to the appellants to appoint the respondent forthwith.
9. The impugned order was passed on 14 February 2014. Subsequently, the Supreme Court considered the entire issue regarding suppression of material particulars/incorrect information submitted by the candidates for public appointment in Avatar Singh v. Union of India [2016 (8) SCC 471]. The Supreme Court on a careful consideration of the entire issue raised by the parties regarding the conviction in criminal offence and suppression of material particulars, summarised its finding in the following words:
"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 application/verification form and such fact later comes to knowledge of employer, any of the following recourses 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.
38.8. 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."
10. The Supreme Court made it very clear that in case the candidate was convicted and there was no disclosure of such conviction and sentence, it is for the employer to exercise the discretion and take a decision as to whether the candidate should be given employment. In view of the judgment in Avatar Singh v. Union of India (cited supra), we are not in a position to support the order passed by the learned Single Judge giving direction to the appellants to appoint the respondent forthwith.
11. The question as to whether the respondent should be appointed to the post of Youth Brigade notwithstanding his conviction and sentence in a criminal case, is essentially an issue to be decided by the appellants. We are, therefore, of the view that the order insofar as it gives direction to the appellants to appoint the respondent requires to be set aside.
DISPOSITION:
12. In the result, the impugned order dated 14 February 2014 in W.P.No.4285 of 2014 is set aside. We direct the Chairman, Tamil Nadu Uniformed Services Recruitment Board, Annai Salai, Chennai to consider the case of the respondent afresh. The complaint relating to STC No.692 of 2013 was preferred by a Police Officer. It was alleged that the respondent used certain abusive words in public and the same resulted in initiating a criminal case against him. It appears that the respondent had no idea as to whether he would be debarred subsequently, in case the offence is admitted. While considering the case of the respondent , the Chairman, Tamil Nadu Uniformed Services Recruitment Board, must take into account the age of the respondent at the time of his conviction, the circumstances under which he was convicted and all other relevant circumstances. Such exercise shall be completed within a period of four weeks from the date of receipt of a copy of this judgment.
K.K.SASIDHARAN,J.
&
M.V. MURALIDARAN.J
gms The intra Court Appeal is allowed to the extent indicated above. No costs.
(K.K.SASIDHARAN.,J.) (M.V.MURALIDARAN.,J.) 20 June 2017 gms To
1. The Tamil Nadu Uniformed Services Recruitment Board Anna Salai, Chennai.
2. The Superintendent of Police The Tamil Nadu Special Police Youth Brigade Office of Superintendent of Police Ariyalur, Ariyalur District.
3. The Authorized Officer The Tamil Nadu Special Police Youth Brigade Office of Superintendent of Police Ariyalur,
W.A.No.332 of 2014
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