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Pankaj Singh Tomar vs The State Of Madhya Pradesh on 27 July, 2021

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1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

Through Video Conferencing
Gwalior, Dated:27/07/2021

Shri G.S. Sharma, Advocate for petitioner.

Shri Deepak Khot, Government Advocate for

respondents/State.

This petition under Article 226 of the Constitution of India has

been filed against the order dated 21/12/2017 passed by SP, Rail,

Bhopal, by which the candidature of the petitioner for the post of

Constable in the recruitment process held in the year 2016 has been

rejected.

2. The necessary facts for disposal of the present petition in short

are that in the year 2016 an advertisement was issued by the

respondents for recruitment to the post of Constable in the Police

Department. Written examination was conducted by MPPSC. The

petitioner appeared in the written test and cleared the examination

and accordingly, he was declared qualified for physical test. After

completing all the formalities, the respondent no.3 issued the posting

order of the petitioner and he was posted in the unit of SP, Railway,

Bhopal.

3. It is submitted that on 25/10/2016 a criminal case was

registered against the petitioner and other co-accused persons for

offence under Sections 294, 323/34, 326/34 and 506 of IPC in Crime

No.148/2016 at Police Station Mata Basaiya, District Morena. It is
2 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

submitted that the petitioner approached the SP, Morena for free and

fair investigation and in exercise of powers under Section 36 of

Cr.P.C. the Dy.SP, Morena conducted a parallel enquiry and came to a

conclusion that the petitioner was not present on the spot.

Accordingly, the charge-sheet was not filed against the petitioner.

However, the Court below took cognizance against the petitioner

under Section 190 of Cr.P.C. A letter dated 6/12/2017 was received

by the petitioner, wherein it was directed that he has to appear on

8/12/2017 before the AIG, Special Branch, Security. The petitioner

disclosed all the facts about the criminal case and also informed that

he has been acquitted by the competent Court of jurisdiction vide

judgment dated 12/9/2017. However, in spite of the acquittal of the

petitioner, by the impugned order dated 21/12/2017 the candidature

of the petitioner has been rejected on the ground that a criminal case

was registered against him.

4. It is submitted by the counsel for the petitioner that mere

registration of an offence would not deprive the person concerned

from joining a government job. It is submitted that in the character

verification form, the petitioner had specifically annexed the copy of

that parallel enquiry done by Dy.SP. It is further submitted that in the

affidavit it was also disclosed by the petitioner that one criminal case

has been registered against him in Police Station Mata Basaiya,
3 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

District Morena and Dy.SP in a parallel enquiry has found that the

petitioner is an innocent person.

5. It is further submitted that the Special Branch of Police

Department in its verification report dated 15/12/2017 has wrongly

pointed out that the petitioner has not disclosed about registration of

criminal offence against him. It has also been wrongly mentioned that

the offence under Section 326 of IPC involves moral turpitude and

the acquittal of the petitioner cannot be said to be a clean/honourable

acquittal. It is submitted that once in the character verification form

the petitioner had disclosed about the enquiry report of the Dy.SP,

then it cannot be said that there was any suppression by the

petitioner.

6. The respondents filed their return and submitted that the

suitability of a candidate is to be considered in the light of the duties

attached to a particular post. The Police is a disciplined Force where

the person should be of impeccable character without any criminal

background. In the present case, a criminal offence was registered

against the petitioner. Although in the character verification form he

has mentioned about the enquiry report, but he did not disclose the

details of the criminal case registered against him. On the contrary, in

the police character verification form it was specifically mentioned

that no offence has been registered against the petitioner in any
4 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

police station. It was also declared that at the time of filling up of

character verification form no case was registered against him. It is

further submitted that even if the judgment of acquittal relied upon

by the petitioner is considered, then it is clear that the witnesses had

turned hostile. The acquittal on the ground that the witnesses did not

support the prosecution case cannot be said to be an honourable

acquittal. It is clear from the judgment of acquittal itself that the

injured Lokendra had sustained fracture of tibia and fibula bone. The

allegations were that on 21/10/2016 when the complainant was about

to fetch water, at that time Mahipal Singh and the petitioner also

reached there and when the nephew of the complainant requested

them to wait for some time, then Mahipal Singh and the petitioner

started abusing Rahul. When it was objected by Rahul, then the

petitioner and Mahipal Singh started assaulting him by means of

Luhangi and when the complainant and Lokendra Singh reached

there in order to save him, then the co-accused Vikas assaulted him

by means of an axe and co-accused Rajiv assaulted him by means of

a Lathi. The petitioner gave a Lathi blow on the right leg of injured

Lokendra, which resulted in fracture of tibia and fibula bone. Thus, it

is clear that the offence, which was committed by the petitioner, was

a serious one. The petitioner has not given the details of the date of

issuance of advertisement. The offence was committed after the
5 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

advertisement for recruitment to the post of Constable was already

issued and thus, it is clear that the petitioner has no respect for the

department also. It is further submitted that under Section 36 of

Cr.P.C. senior police officer has a jurisdiction to issue a direction to

the Investigating Officer, but cannot direct for a parallel enquiry

without withdrawing the same from the Investigating Officer. The

parallel enquiry report submitted by the Dy.SP, Morena dated

22/12/2016 was nothing but a report without jurisdiction and,

therefore, the competent Court did not commit any mistake in taking

cognizance against the petitioner. It is further submitted that the

petitioner has deliberately not filed the copy of the order of the

competent Court, by which an order of taking cognizance against the

petitioner was passed.

7. Heard learned counsel for the parties.

8. This Court has already considered the allegations which were

made against the petitioner in Crime No.148/2016 registered at

Police Station Mata Basaiya, District Morena. According to the FIR,

the petitioner had given a Lathi blow on the right leg of Lokendra

and Lokendra had sustained fracture of tibia and fibula bone. From

the judgment of acquittal dated 12/9/2017 (Annexure P/4), it is clear

that the petitioner was acquitted on account of the fact that none of

the witnesses had supported the prosecution case and they had turned
6 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

hostile. It is well established principle of law that acquittal on

account of the fact that the witnesses have turned hostile cannot be

said to be an honourable acquittal.

9. The Supreme Court in the case of Avtar Singh vs. Union of

India and Others, reported in (2016) 8 SCC 471 has held as under:-

“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 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
7 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

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
8 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

suppressio veri or suggestio falsi, knowledge of the fact
must be attributable to him.”

The Supreme Court in the case of State of Madhya Pradesh

and Others vs. Abhijit Singh Pawar, passed in Civil Appeal No.

11356 of 2018 (Arising out of SLP (c) No.17404 of 2016) by

judgment dtd. 26th November, 2018 has observed as under:-

”14. In Avtar Singh (supra), though this Court was
principally concerned with the question as to non-
disclosure or wrong disclosure of information, it was
observed in paragraph 38.5 that even in cases where a
truthful disclosure about a concluded case was made, the
employer would still have a right to consider antecedents
of the candidate and could not be compelled to appoint
such candidate.

15. In the present case, as on the date when the
respondent had applied, a criminal case was pending
against him. Compromise was entered into only after an
affidavit disclosing such pendency was filed. On the
issue of compounding of offences and the effect of
acquittal under
Section 320(8) of Cr.P.C., the law
declared by this Court in Mehar Singh (supra), specially
in paragraphs 34 and 35 completely concludes the issue.
Even after the disclosure is made by a candidate, the
employer would be well within his rights to consider the
antecedents and the suitability of the candidate. While so
considering, the employer can certainly take into account
the job profile for which the selection is undertaken, the
severity of the charges levelled against the candidate and
whether the acquittal in question was an honourable
acquittal or was merely on the ground of benefit of doubt
or as a result of composition.

16. The reliance placed by Mr. Dave, learned Amicus
Curiae on the decision of this Court in Mohammed Imran
(supra) is not quite correct and said decision cannot be of
any assistance to the respondent. In para 5 of said
decision, this Court had found that the only allegation
against the appellant therein was that he was travelling in
an auto-rickshaw which was following the auto-rickshaw
9 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

in which the prime accused, who was charged under
Section 376 IPC, was travelling with the prosecutrix in
question and that all the accused were acquitted as the
prosecutrix did not support the allegation. The decision
in Mohammed Imran (supra) thus turned on individual
facts and cannot in any way be said to have departed
from the line of decisions rendered by this Court in
Mehar Singh (supra), Parvez Khan (supra) and Pradeep
Kumar (supra).

17. We must observe at this stage that there is nothing on
record to suggest that the decision taken by the
concerned authorities in rejecting the candidature of the
respondent was in any way actuated by mala fides or
suffered on any other count. The decision on the question
of suitability of the respondent, in our considered view,
was absolutely correct and did not call for any
interference. We, therefore, allow this appeal, set aside
the decisions rendered by the Single Judge as well as by
the Division Bench and dismiss Writ Petition No.9412 of
2013 preferred by the respondent. No costs.”

The Supreme Court in the case of Mohammed Imran Vs.

State of Maharashtra and others passed in C.A. No. 10571 of

2018, by order dated 12-10-2018 has held as under :-

”6.Employment opportunities is a scarce commodity in
our country. Every advertisement invites a large
number of aspirants for limited number of vacancies.
But that may not suffice to invoke sympathy for grant
of relief where the credentials of the candidate may
raise serious questions regarding suitability,
irrespective of eligibility. Undoubtedly, judicial
service is very different from other services and the
yardstick of suitability that my apply to other services,
may not be the same for a judicial service. But there
cannot be any mechanical or rhetorical incantation of
moral turpitude, to deny appointment in judicial
service simplicitor. Much will depend on the facts of
a case. Every individual deserves an opportunity to
improve, learn from the past and move ahead in life by
self-improvement. To make past conduct, irrespective
10 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

of all considerations, albatross around the neck of the
candidate, may not always constitute justice. Much
will, however, depend on the fact situation of a case.”

The Supreme Court in the case of Union of Territory,

Chandigarh Administration and Ors. vs. Pradeep Kumar and

Another, reported in (2018) 1 SCC 797 has held as under:-

”11. Entering into the police service required a candidate
to be of good character, integrity and clean antecedents.
In Commissioner of Police, New Delhi and Another v.
Mehar Singh (2013) 7 SCC 685, the respondent was
acquitted based on the compromise. This Court held that
even though acquittal was based on compromise, it is still
open to the Screening Committee to examine the
suitability of the candidate and take a decision…….

12. While considering the question of suppression of
relevant information or false information in regard to
criminal prosecution, arrest or pendency of criminal
case(s) against the candidate, in
Avtar Singh v. Union of
India and Others(2016) 8 SCC 471, three-Judges Bench
of this Court summarized the conclusion in para (38). As
per the said decision in para (38.5), (SCC p. 508)
”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.”

13. It is thus well settled that acquittal in a criminal case
does not automatically entitle him for appointment to the
post. Still it is open to the employer to consider the
antecedents and examine whether he is suitable for
appointment to the post. From the observations of this
Court in Mehar Singh and Parvez Khan cases, it is clear
that a candidate to be recruited to the police service must
be of impeccable character and integrity. A person having
criminal antecedents will not fit in this category. Even if
he is acquitted or discharged, it cannot be presumed that
he was honourably acquitted/completely exonerated. The
decision of the Screening Committee must be taken as
final unless it is shown to be mala fide. The Screening
11 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

Committee also must be alive to the importance of the
trust repose in it and must examine the candidate with
utmost character.

* * *

17. In a catena of judgments, the importance of integrity
and high standard of conduct in police force has been
emphasized. As held in Mehar Singh case, the decision of
the Screening Committee must be taken as final unless it
is mala fide. In the case in hand, there is nothing to
suggest that the decision of the Screening Committee is
mala fide. The decision of the Screening Committee that
the respondents are not suitable for being appointed to
the post of Constable does not call for interference. The
Tribunal and the High Court, in our view, erred in setting
aside the decision of the Screening Committee and the
impugned judgment is liable to be set aside.

The Supreme Court in the case of The State of M.P. and

others Vs. Bunty by order dated 14/3/2019 passed in Civil Appeal

No.3046/2019 has held as under:-

“13. The law laid down in the aforesaid decisions
makes it clear that in case of acquittal in a criminal
case is based on the benefit of the doubt or any
other technical reason. The employer can take into
consideration all relevant facts to take an
appropriate decision as to the fitness of an
incumbent for appointment/continuance in service.
The decision taken by the Screening Committee in
the instant case could not have been faulted by the
Division Bench.”

The Full Bench of this Court in the case of Ashutosh Pawar

vs. State of M.P. reported in 2018 (2) MPJR 178 has held as under:-

” Decision of Criminal Court on the basis of
compromise or an acquittal cannot be treated that
the candidate possesses good character, which
may make him eligible, as the criminal
proceedings are with the view to find culpability
12 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

of commission of offence whereas the
appointment to the civil post is in view of his
suitability to the post. The test for each of them is
based upon different parameters and therefore,
acquittal in a criminal case is not a certificate of
good conduct to a candidate. The competent
Authority has to take a decision in respect of the
suitability of candidate to discharge the functions
of a civil post and that mere acquittal in a criminal
case would not be sufficient to infer that the
candidate possesses good character. Division
Bench judgment of this Court in
W.P.No.5887/2016 (
Arvind Gurjar vs. State of
M.P.) is overruled. Another Division Bench
judgment in W.A. No.367/2015 (
Sandeep Pandey
vs. State of M.P. and others) is also overruled.
Jurisdiction of the High Court in a writ petition
under
Art. 226 of the Constitution of India is to
examine the decision-making process than to act
as Court of appeal to substitute its own decision.
In appropriate case, if the Court finds decision-
making process is arbitrary or illegal, the Court
will direct the Authority for reconsideration rather
than to substitute the decision of the competent
Authority with that of its own.

The expectations from a Judicial Officer are
of much higher standard. There cannot be any
compromise in respect of rectitude, honesty and
integrity of a candidate who seeks appointment as
Civil Judge. The personal conduct of a candidate
to be appointed as Judicial Officer has to be free
from any taint. The standard of conduct in the case
of Judicial Officer is higher than that expected of
an ordinary citizen and also higher than that
expected of a professional in law as well. The
same must be in tune with the highest standard of
propriety and probity.”

10. Further, if the character verification form filled up by the

petitioner is seen, then it is clear that he had given an incomplete and

misleading information. In the character verification form, he did not
13 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

mention that any crime has been registered against him. Although in

the column about details of acquittal, he has mentioned that an

enquiry report is annexed. From the charge-sheet which has been

filed by the petitioner alongwith his rejoinder, it is clear that the

charge-sheet was prepared on 5/3/2017, whereas the character

verification form was filled up by the petitioner on 14/2/2017.

Although there was an enquiry report by the Dy.SP in favour of the

petitioner, but it is merely mentioned in the enquiry report that the

name of the petitioner is liable to be removed, however, a legal

opinion should be taken. This enquiry report by itself does not mean

that the name of the petitioner was deleted or the police had decided

not to take any action against him and the removal of his name was

ever upheld by the Court. On the contrary, it is clear that the charge-

sheet was filed in the month of March, 2017, i.e. subsequent to filling

up of character verification form and thereafter, the cognizance was

taken against the petitioner. Furthermore, the Division Bench of this

Court in the case of Sanjay Singh Ors. v. State of M.P. Ors.

reported in 2006(2) MPLJ 324 has already held that a parallel

enquiry under Section 36 of Cr.P.C. during pendency of the

investigation is not permissible. Accordingly, in the light of the

judgment passed by this Court in the case of Sanjay Singh (supra),

it is held that the enquiry report submitted by Dy.SP, Morena on
14 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

22/12/2016 was nothing but a waste piece of paper, which cannot be

taken note of for any purpose. Even otherwise, it is clear from the

enquiry report that the plea of alibi of the petitioner was accepted

only on the ground that the petitioner is working in some Toll Booth

at Gujarat and as per the attendance register, the petitioner was

present on 21/10/2016 and 22/10/2016 and in support of the said

contention, the attendance register and the attested copy of the roaster

was sent to the office of Dy.SP, however, the CCTV footage of the

close circuit cameras installed in the Toll Tax Booth was not made

available on the pretext that the backup capacity of DVR is only 15

days. It is clear from the reasoning given by Dy.SP, Morena that

neither any order of appointment was filed by the petitioner nor his

salary slips were provided. Mere signature on the attendance register

on a particular day would not ipso facto mean that the petitioner was

present on his duty, specifically when the register can be manipulated

on any subsequent date. Under these circumstances, the CCTV

footage of the Toll Tax Booth was important and although the

Manager of the concerning Toll Tax Booth has said that the backup

storage of the DVR of the close circuit cameras installed in the booth

had a capacity of 15 days, but there is nothing on record to show that

the petitioner had ever tried to request his employer to save the

CCTV footage, so that it can be utilized at a later stage.

15 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.10791/2018
Pankaj Singh Tomar Vs. The State of M.P. and others

11. Be that whatever it may.

12. The crux of the matter is that the enquiry report submitted by

Dy.SP, Morena was not accepted by the trial court and cognizance

was taken against him and ultimately the petitioner was acquitted

because of the fact that the prosecution witnesses had not supported

the prosecution case. Accordingly, in the light of the judgment passed

by the Supreme Court in the case of Pradeep Kumar (supra), Full

Bench of this Court in the case of Ashutosh Pawar (supra), this

Court is of the considered opinion that it is for the respondents to

consider the suitability of an employee and since the Police

Department is a disciplined uniform Force, therefore, any person with

dubious background may not be suitable for the said Force and the

conclusion drawn by the respondents in this regard cannot be said to

be bad in law because a Police Constable is required to involve in

maintenance of law and order situation and if an employee has a

criminal background, then his coming into association with criminals

cannot be ruled out. Accordingly, no case is made out warranting

interference.

13. The petition fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge
Arun*

ARUN KUMAR MISHRA
2021.07.30 17:12:15
+05’30’

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