(Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records made in C.No.A3/20868/2012 dated 29.10.2020 passed by the second respondent herein and quash the same as illegal and direct the respondent to appoint the petitioner as Grade II constable as directed by this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of justice.)The petitioner has come forward with the present writ petition, to call for the records made in C.No.A3/20868/2012 dated 29.10.2020 passed by the second respondent herein and quash the same as illegal and direct the respondent to appoint the petitioner as Grade II constable as directed by this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of justice.2. According to the petitioner, though a criminal case was registered against him and a trial was conducted in C.C.No.1082 of 2011 on the file of the Judicial Magistrate No.II, Sankagiri, he was honourably acquitted of all charges. Since he was acquitted from the said criminal case honourably, he did not disclose the factum of the criminal case at the time of application to the post of Grade II constable. It is the further case of the petitioner that to the shock and surprise, the 2nd respondent passed the impugned order, refusing to consider the petitioner for appointment to the said post.3. The respondents relied upon the judgments of the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Abhijit Singh Pawar reported in 2018 (18) SCC 733 and also the yet another decision in Avtar Singh Vs.Union of India and others, reported in 2016 (8 ) SCC 471 to contend that the petitioner is not entitled to the relief sought for. The relevant paragraph of the judgment reported in 2016 (8 ) SCC 471 is extracted hereunder:22. The employer is given ‘discretion’ to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.”4. Heard the learned counsel for the parties and perused the material documents available on record, including the judgment cited by the respondents.5. It is no doubt true that the petitioner involved in a criminal case and subsequently, he was honorably acquitted from the charges by the Trial Court. This Court has also not lost sight of the proposition laid down by the Supreme Court that even after disclosure of the criminal background, it is for the employer to consider the nature of the offence, acquittal, etc., If the acquittal is on the basis of benefit of doubt, certainly, the petitioner has no case and he is unfit to get the appointment in the Police Department due his dubious character. Similarly, if a person was acquitted based on the compromise memo, then also no leniency can be shown to the petitioner, in the light of various pronouncements of the Supreme Court and the employer can straightaway reject the candidature.6. Learned counsel for the petitioner, in support of his stand, drew the attention of this Court to a judgment of this Court dated 11.01.2019 passed in W.P.No.7957 of 2013, annexed in the typeset of papers to argue that since the petitioner had already been acquitted, that too honorably, there is no need to mention the pendency of criminal case in the application and therefore, the petitioner is entitled to appointment i terms of the judgment of this Court dated 11.01.2019.7. I find much force in the contention of the learned counsel for the petitioner, inasmuch as a reading of the judgment of the Trial Court in C.C.No.1082 of 2011 dated 12.01.2012 on the file of Judicial Magistrate II, Sankagiri unfolds the fact that the petitioner was exonerated from the criminal charges honorably and not on the ground of benefit of doubt and therefore, the judgment of this Court passed in W.P.No.7959 of 2013 is squarely applicable to the case of the petitioner herein. In the said judgment, this Court had discussed all the aspects elaborately and given a finding thereof. The relevant paragraphs of the judgment are extracted hereunder:8. Application form has been filled by the petitioner. Column No.29 A of the application form reads as under:~29. Whether any criminal case is pending against you? Answer:- “No”.9. Material on record further discloses that the petitioner was acquitted, on 12/1/2012. On 16/4/2012, when he filled in the application form, there was no criminal case pending against the petitioner. Petitioner has therefore, not suppressed any material fact. Column No.29 of the form does not require the petitioner to disclose as to whether he was involved in any criminal case. Had the application form stipulated that the applicant must disclose as to whether he was involved in a criminal case and if the petitioner had suppressed this, then the situation would have been different.10...11. The trial Court, acquitted the petitioner because, the prosecution examined only the Investigation Officer and was not able to bring any other evidence. It can therefore be said that there was no evidence against the petitioner other than the testimony of the Investigation Officer and the acquittal cannot be said to be on the basis of benefit of doubt. 12. Offence under Section 294 (b) of the Indian Penal Code can be called as a case, which is trivial in nature. Section 294 of the India Penal Code reads as under:- “267 [294. Obscene acts and songs.—Whoever, to the annoyance of others— (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]“ In any case, he has been acquitted and he has not suppressed any fact in the application. The petitioner had to only disclose as to whether any criminal case is pending against him. 13. In view of the facts and circumstances of the case, the petitioner ought to have been selected and he should not have been deprived of the appointment, as Grade 2 Constable. The writ petition is allowed. Respondents are directed to appoint the petitioner, in a vacancy, for the year 2019 – 2020. 14. The writ petition is disposed of with the above directions. No costs. Consequently, the connected Miscellaneous Petition is closed.”8. According to the respondents, apart from this question, there is yet another question in the application form, namely, “as to whether the petitioner was involved any other criminal case” and those two questions have got to be read together and not in isolation. The said submission cannot be accepted, because in case of Hon’ble acquittal, there is no need to disclose about the criminal case, in which the petitioner is said to have involved. As stated supra, even in a case of acquittal on compromise, the candidature need not be recruited, which is not the case herein. The decisions of the Hon’ble Su
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preme Court (supra), relied upon by the respondents have no relevancy to the present context.9. In view of what is stated herein-above, this Court is of the view that the petitioner is entitled to the relief and his case for appointment has to be considered suitably. Accordingly, the Writ Petition is allowed and the impugned ordered dated 29.10.2020 passed by the 2nd respondent, is set aside. A direction is issued to the respondents to appoint the petitioner as Grade-II Constable, in the light of the judgment of this Court in W.P.No.7957 of 2013 dated 11.01.2019 and the observations made herein-above, within a period of 45 days from the date of receipt of copy of this order. However, it is made clear that if, for any other reasons other than the non-disclosure of criminal case, the petitioner is not found to be suitable, it is for the concerned authority to decide the case in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.