At, High Court of Madhya Pradesh
By, THE HONOURABLE CHIEF JUSTICE MR. MOHAMMAD RAFIQ & THE HONOURABLE MR. JUSTICE VIJAY KUMAR SHUKLA
For the Appearing Parties: Anoop Nair, Advocate.
V.K. Shukla, J.1. The present intra court appeal is filed under Section 2(1) of M.P. Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 10-03-2021 passed in W.P. No.552/2020 (Jitendra Kumar Chandelkar Vs. M.P. Power Generating Co. Ltd. Satpura Thermal Powar Sarni, District Betul and others) passed by the learned Single Judge, whereby the writ petition filed by the respondent no.1 was allowed and the impugned order removing the petitioner from service for the reasons that he was not found suitable to serve the appellant department has been set aside and the writ petitioner has been directed to be taken back in service but shall not be entitled for any back wages for the period he remained out of service.2. The facts of the case are that the appellant had conducted a recruitment process for the post of Security Guard in their organization. The respondent no.1 was one of the candidate and after going through the selection process, a select list (Annexure P-2) was issued. The appellant after processing the documents of the respondent no.1 (writ petitioner) also sent his case for police verification and it was informed by the police authorities that two criminal cases having Crime No.90/09 under Sections 376(2)(n), 450 and 352 of IPC and another case having Crime No.101/2009 under Sections 306 and 34 were registered against the writ petitioner, in which he was acquitted. In the appointment order dated 10-07-2017, it was mentioned that the writ petitioner's character verification will be forwarded to the police authorities and if any adverse remark is present then the services of the respondent no.1/writ petitioner will be immediately terminated.3. Learned counsel for the appellants submitted that the Home Ministry introduced circular dated 24-07-2018 with regard to mandatory police verification of employees after their appointment. All the previous circulars with regard to police verification were set aside by the introduction of the said circular. As per Clause 6(1)(a) of the circular, it has been stated that if any appointee has faced any criminal trial with regard to offences involving moral turpitude, irrespective of the fact that the appointee has been acquitted in trial looking into the gravity of offences alleged to be committed, it would be decided whether the appointee is fit for service or not. It is submitted that after receipt of the police report from the police authorities, looking into the job profile of the respondent no.1, he was removed from service on the ground of unsuitability. The said order was challenged in the writ petition on the ground that he has been acquitted in both the cases, therefore, he cannot be said to be unfit for the Government service. The appellant submitted that as per police verification and the Government circular the employment of the writ petitioner with the appellant organization was not desirable.4. The learned Single Judge after hearing both the sides held that in both the criminal cases, the writ petitioner has been acquitted and the employer is required to consider various aspects given by the trial court and the learned Single Judge also relied on the judgment of Avtar Singh Vs. Union of India and others, (2016) 8 SCC 471 passed by the Supreme Court to hold that the dismissal of the respondent was wrong.5. In the present case, the writ petitioner has disclosed all the information regarding criminal cases faced by him. It is urged that the writ petitioner was honourably acquitted by the trial court, therefore the substratum of cause which led to registration of offence under moral turpitude has ceased to exist.6. Per contra, the learned counsel for the appellants submitted that high standard of conduct and discipline is expected from the applicant who is seeking appointment as Security Guard. It is contended that the writ petitioner faced two criminal trials; ST No.48/2010 under Sections 376(2)(g), 450 and 342 of IPC and S.T.No.186/2009 under Section 306 of IPC. Both the cases involved offences of moral turpitude, hence in view of circular dated 24-07-2018 which prescribes removal from service in case of adverse remarks in the police verification, services of the writ petitioner were rightly terminated. It is true that terms and conditions of the appointment of the writ petitioner provides that the appointment shall be subject to satisfactory verification of character and antecedents as per Rules and Regulations of the M.P. Power Generating Co. Ltd. ( for short "MPPGCL"). The candidates appointment will be terminated if any adverse information appears in the police verification by the police authorities.7. Learned counsel for the appellants heavily relied on the judgment passed in the case of Avtar Singh (Supra) and referring to para 38.5 of the said judgment submitted that the Apex Court has held that 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.8. The learned Single Judge has taken into consideration that while examining the antecedents of the applicant, the employer did not find any other criminal case registered against him except for two cases in which he was cleanly acquitted or any other complaint registered during his probation period. In ST No.48/2010 registered under Section 376(2)(g), 450 and 342 of IPC, the Court has not only rejected the story projected by the prosecutrix, but has further observed that the prosecutrix had previous enmity with the writ petitioner and it cannot be ruled out that the FIR against the writ petitioner was registered with an intent to pressurize him in a rape case filed by the daughter of co-accused Ramesh against the prosecutrix's son. In the same manner, in ST No.186/2009, the writ petitioner was acquitted of the offence punishable under Section 306 of the IPC as the prosecution has failed to establish its case. The employer while considering the suitability of candidate/employee has to take into consideration various aspects whether any material information was suppressed or false information was given by the candidate and in case he was acquitted of the offence, the nature of acquittal. In the present case, the employer has failed to consider the antecedents as per the law laid down in the case of Avtar Singh (supra) wherein it has been held t
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hat while considering the question whether an employee on probation can be discharged /refused appointment though he has been acquitted of the charges if his case was not pending when form was filled, has observed that in such matters employer is bound to consider the grounds of acquittal and various aspects, over all conduct of the employee during probation including the accusations which has been levelled.9. In view of the above, we do not perceive any illegality in the order passed by the learned Single Judge setting aside the impugned order of termination of the services of the writ petitioner for the reason that he was not found suitable to serve the appellant. Accordingly, the writ appeal is dismissed.