Allowed

Sanju.L. v. State of Kerala

Kerala HC4 Nov 2019OP(KAT)/2503/2013

Case brief

AI extract

What is this about?

The High Court held that a selected candidate for Police Constable cannot be denied training solely due to a pending criminal case. Directing the State Police Chief to decide on suitability within a month, the Court allowed training subject to final acquittal and clearance.

What did the court decide?

Directed the State Police Chief to decide on the petitioner's suitability for training by a reasoned order within one month.

Sanju.L. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

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OP(KAT).No.2503 OF 2013(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 1843/2012 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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SANJU.L. PLAVILA VEEDU, KUMBALAM P.O., MULAVANA VILLAGE, KUNDARA, KOLLAM DISTRICT.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT/S:

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1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 695 001.

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2 THE COMMANDANT KERALA ARMED POLICE BATTALION-IV MANGATTU PARAMBU, KANNUR-1.

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3 THE KERALA PUBLIC SERVICE COMMISSION REP. BY ITS SECRETARY, PATTOM PALACE, THIRUVANANTHAPURAM - 695 001.

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4 THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KASARAGODE P.O., KASARAGODE - 671 121.

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OTHER PRESENT:

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SR.GP SRI.ANTONY MUKKATH, SRI.P.C.SASIDHARAN,SC, PSC

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“ C.R”

K.VINOD CHANDRAN

V.G.ARUN, JJ.

OP(KAT).2503 of 2013

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Dated this the 4^th day of November, 2019

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JUDGMENT

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Vinod Chandran, J.

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The original petition is filed against the judgment of the Tribunal which rejected the claim of the applicant to send him for training for the purpose of appointment as Police Constable in the Kerala Armed Police Battalion-IV. The petitioner's claim was rejected for the reason that he was involved in a criminal case. The Tribunal relied on the decision in Anil Kumar A. v. State of

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Kerala and Others [2012(2) KHC 257 (DB)].

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In the aforesaid decision a Division Bench of this Court held that if a person is ultimately found guilty of the offence charged against him, it would definitely lead to his being disentitled for appointment to the Force. In such circumstances, since police training involves training in arms and ammunition it would result in a criminal imparted with such training being let loose into the society.

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The facts arising in the decision were prior to Section 86(2) of the Kerala Police Act, 2011 which was extracted by the

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Tribunal, which we also extract here under:

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“A person against whom a criminal case for an offence involving proclivity of violence or moral turpitude is pending before a Court of law shall be entitled to appear for recruitment, to get selected and to undergo training, but shall be entitled for permanent appointment only after being acquitted.”

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The Tribunal, however, felt that since the decision of the High Court is otherwise, there can be no direction issued to the applicant.

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The statutory provision clearly enables a person selected to be sent for training and the bar is only in the appointment being kept in abeyance till the criminal case is concluded. On conclusion of the case if the applicant is found guilty, then definitely there could be no appointment made.

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5 . We have looked at the Division Bench decision relied on by the Tribunal in Anil Kumar and the decision of the learned Single Judge reported in Suresh v. Public Service Commission [2008(2) KLT 441] , which was overruled by the Division Bench. Suresh (supra) considered, almost a similar situation, where the appointment of persons to various services though advised by the PSC, was interdicted by the Government for reason of pending criminal cases. The leading case, the facts of which were noticed by the learned Single Judge was an identical one, in

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OP(KAT).2503/13 4 which the petitioner sought for training as Police Constable (PC) pursuant to his appointment to the post of Driver/PC. The pending criminal case, which was alleged against the petitioner as the ground for refusing to deputing for training, was with respect to a motor vehicle accident.

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The Government specifically referred to Rule 10(b)(iii) of Part-II of K.S.&S.S.R to argue that the State Government is not obliged to make an appointment even after a due selection process, without verifying the character and antecedents of the candidate, as to whether he qualifies to be appointed to such service. Conceding such power, the learned Single Judge held that there could be no refusal to appoint merely on the fact of a pending criminal case. It was held that the pendency of a criminal case cannot be considered to be a totally irrelevant factor, when the Government considers, the character and antecedents of a candidate to verify whether he qualifies to the service to which he is sought to be appointed, under Rule 10(b) (iii). The learned Single Judge noticed Mansarudeen v. K.S.EB [1994(1)KLT 603] , in which a Division Bench held that mere pendency of a criminal case, arising from civil disputes is not a valid ground to hold that the candidate is disqualified for appointment to any service. Obviously the Court was of the opinion that the mere fact of a pending criminal case would not

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cast a slur on the character and antecedents of a person so as to disqualify him from any service under the Government. Christopher Jose v. State of Kerala [1999 (3) KLT 285] was referred to in support of the stand of the petitioner that mere pendency of a criminal case should not be treated as the sole factor to exclude a person from consideration for appointment. The decision in Balagopalan v. State of Kerala [1963 KLT 1167] , as placed by the learned Government Pleader was also relied on to find that though the satisfaction contemplated by Rule 10(b)(iii) is an objective satisfaction, the words “such service” conditions such satisfaction, insofar as the satisfaction to be entered, should be with reference to the requirement of the particular post, to which a person is to be appointed. Definitely a more thorough scrutiny should be made in the case of recruitment to a disciplined uniformed force like the Police.

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The learned Single Judge pointed out instances from the batch of writ petitions itself, which commends a consideration by the Government as to the offence alleged against a person. It was noticed that in one of the cases, the criminal case was one registered by the brother's wife under Section 498A I.P.C, a remote off shoot of matrimonial strife. A motor accident case or a criminal case emanating from a civil action are all instances in the same genre. The learned Single Judge hence held that the

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Government has the power coupled with an obligation under Rule 10(b)(iii) to satisfy itself of the character and antecedents of a candidate, which qualifies him for such service. A mere pendency of a criminal case cannot be a reason to arrive at a satisfaction, unless the Government has gone into the offence and considered the issue in the proper perspective. A pending criminal case cannot be ignored, but a consideration should be made, which should also be reflected in the order passed, refusing appointment to a post. It was also held that such an order can be passed only after issuing notice to the candidate and hearing him.

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On this aspect of pre-decisional hearing, a reference was made in a batch of writ petitions again seeking orders for appointment or despatch for training, especially in the Police Department from petitioner's who were involved in criminal cases. The Division Bench considered the issue again and overruled the judgment of the learned Single Judge in Anil Kumar (supra). When an appointment is made to the Police force, a disciplined force, the Division Bench held, the pendency of a criminal case assumes more significance. While Anil Kumar (supra) was pending on reference, the Division Bench itself had issued an order, directing consideration of the claims of candidates, who had completed the period of training and those

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who have been permitted to discharge duties and responsibilities in the service awaiting verification report as regards character and antecedents. A Committee was constituted consisting of the ADGP (Administration), ADGP (Intelligence) and DIG (Armed Police Battalion), who after verification made recommendations to the State Police Chief. The State Police Chief reported that the cases have been categorised into four; (i) those who have to be retrenched, (ii) those who have to be retained, (iii) those who are fit to be retained, if acquitted and (iv) those acquitted who are to

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be retained, but who could be retrenched, if suitability is adversely reported by ADGP(Intelligence). The Division Bench examining the individual facts found that some of the pending criminal cases were with respect to offences of kidnapping, causing loss to private property and offences under the Explosives Act as also charges of having outraged the modesty of women. It was held that:

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“7. We have looked into the list that is now before us. Those cases which have been identified as fit to be retained, if acquitted by Court, are cases where the concerned personnel are seen to have been charge sheeted for offences punishable under different provisions of the Indian Penal Code and also under different special laws. We see that persons, who are allegedly involved in offences of kidnapping, cause of loss to private property and in offences under the Explosives Act, Prevention of Damage to Public Property Act etc., are also included in the list of persons as fit to be retained if they would be acquitted by Court.

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We also see a case where the charge is of having outraged the modesty of a woman. Without going further into the different types of offences, we emphasise that it would not be in consonance with the duties, responsibilities and discipline of Police Force to permit any person to be admitted to duty or to training on a provisional basis subject to be cleared of the criminal charge not only by acquittal by Court but also by a later clearance by the Department. Even if one is acquitted, the question whether he is suitable to be in the Force is a matter that would again have to be considered notwithstanding the acquittal. This is why even the report goes to show that even as regards those who have been acquitted already, their continuance or retrenchment would depend on the suitability report by the ADGP(INT).(INT), that would be against the admission of such a candidate to the Force. We are of the firm view that it would not be in the interest of the State and the public interest, as also that of the Police Force to permit any person to join the Force or to discharge duties and responsibilities unless he is acquitted of the criminal charge and also is cleared as suitable for the purpose of entry into service and continuity in service even if acquitted by the criminal court.

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[underlining by us for emphasis]

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The Division Bench categorically found that it would not

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be advisable to issue interlocutory orders in writ jurisdiction commanding appointment or admission to the Police Force, for reason of the prerogative of the executive in terms of the statutory rules having priority in such matters, which is more so in case of a disciplined uniformed force. We fully agree with the above proposition. Considering the primordial requirement for a Nation and the State to have a disciplined uniformed force to

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maintain law and order, it was held that the consideration as to whether a person can be appointed in the Police Force has to be left to the hierarchy available in the police department under the control of the Director General of Police. The discretion of such hierarchial authorities to arrive at such a satisfaction on a case to case basis, was preserved by the following words in paragraph 6:

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“6. Also, as regards those who are acquitted but in relation to whom reports by ADGP(INT) are yet to come, it would only be in the best interest of the State to keep them away from the Force in terms of the earlier orders and ADGP(INT) can be required to expedite the question of reporting on the suitability of those candidates. It would not be in public interest to permit entry without the final word of clearance by the ADGP(INT). What if a person who is acquitted and permitted to join is found later, as unfit to continue, and the ADGP(INT) were to come out with a report recommending against the continuation of such person in the Service? This can never be, in public interest.

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Suresh (supra) was reversed only, insofar as it imposing a condition for a pre-decisional notice, which it was found the statutory provisions did not include, but specifically by implication intended exclusion. The discretion having been reserved to the hierarchical authorities to arrive at a satisfaction under Rule 10(b)(iii), we are also of the opinion that other requirements as pointed out by the learned Single Judge were not interfered with by the Division Bench. In this context, we also have to take note of Section 86(2) of the Kerala Police Act. This

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provision was not available for the periods under consideration before Court, either in Suresh or Anil Kumar . The said enactment was brought out in 2011 and there is no reference made to the said provision in either of the decisions, both of which considered issues prior to the enactment of 2011.

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It is in this perspective we have to look at the present case also keeping in mind the later enactment, Kerala Police Act, 2011 and Section 86(2) therein. Learned counsel for the petitioner has pointed out to us Exhibit P3 which is the report of the Sub Inspector of Police by which the applicant's name was included as Accused No. 21 much later to the registration of the FIR. It is also pointed out that though the report is dated 14.10.2010 the seal of the Magistrate's Court specifically indicates that the date on which it was filed in Court was 16.4.2012. We agree with the Tribunal that there is no ground of suppression as against the applicant. Going by Section 86(2) of the Kerala Police Act, there is a specific interdiction from appointment, if the candidate selected is not acquitted. However an applicant is entitled to be sent for training subject to the finalisation of the criminal case. We also got instructions from Registry that FIR No.1701/10 of the Kundara Police Station (Annexure A3) was numbered as C.C.No.341/16 of the JFCM-I, Kollam. The same is still pending and the next posting date is

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11.11.2019. We have seen from the FIR that the offence alleged against a number of accused was that they interfered with the discharge of duties of the police personnel deputed to maintain law and order at the time of a Church festival. There were many included by name in the FIR and others termed 'identifiable on sight' were later implicated. Hence harmoninsing the opinion exercised in Anil Kumar, with Section 86(2) we are of the opinion that deputation for training also should depend upon the opinion of the Government as to whether the offences alleged in the criminal case are by their very nature and gravity, so serious and gross as to cast a slur on the candidates character and antecedents; especially when the training tones up the physical capabilities equipping him to attack and to withstand, as also familiarizes a candidate with arms and ammunition.

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Considering the entire facts and circumstances, we are of the opinion that the petitioner cannot be kept away from training merely for reason of the pending criminal case. We hence direct the State Police Chief to decide on the petitioners suitability by a reasoned order after making sufficient enquiries about the criminal case pending as also the antecedents of the petitioner. An order shall be passed within a month from the date of receipt of certified copy of this judgment. If the State Police Chief or an officer or committee authorised by him, is satisfied

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that the petitioner can be sent for training, it shall be done along with the next batch of appointees. The petitioner shall be informed of the same and he shall present himself before the appropriate authority for examination of the physical attributes. We make it clear that his inclusion for training can only be if he satisfies the physical attributes required for a Police Constable as per the rules. But however, the age shall not be a consideration. The training shall be subject to the rule that appointment can be only after conclusion of the criminal case. The JFCM-1 Kollam shall take emergent steps to expedite the trial since such enmasse implications, which are often difficult of proof, cannot be reason for holding up a person's employment opportunity. We hasten to add, this is not an observation on the merit of the case, governing either the consideration directed above or the trial.

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The original petition is disposed of as above. Parties to suffer their respective costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

JUDGE

vgsx

OP(KAT).2503/13

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE TRUE COPY OF THE ADVISE MEMO NO.K GD-IV(2)/2303/07(164) DATED 18/1/2012 ISSUED BY THE P.S.C TO THE APPLICANT ANNEXURE A2 THE TRUE COPY OF THE COMMUNICATION NO.A2(A)20013/2011/KAP-IV DATED 10/2/2012 ISSUED BY THE 2ND RESPONDENT TO THE APPLICANT ANNEXURE A2 (A) THE TRUE ENGLISH TTRANSLATION OF ANNEXURE A2 ANNEXURE A3 THE TRUE COPY OF THE FIR AND FIS IN CRIME NO.1701/2010 OF KUNDARA POLICE STATION IN KOLLAM DISTRICT. ANNEXURE A3A THE TRUE ENGLISH TRANSLATION OF ANNEXURE A3 ANNEXURE A4 THE TRUE COPY OF THE REPRESENTATION DATED 21/4/2012 FILED BY THE APPLICANT BEFORE THE GOVERNMENT ANNEXURE A5 THE TRUE COPY OF THE JUDGMENT DATED 18/5/2012 IN OA NO.770/2012 OF THIS HON'BLE TRIBUNAL. ANNEXURE A6 THE TRUE COPY OF THE G..O. (RT)NO.2183/2012/HOME DATED 20/7/2012 ISSUED BY THE GOVERNMENT EXHIBIT P1 EXHIBIT P1: THE TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION NO.1843/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P2 EXHIBIT P2: THE TRUE COPY OF THE JUDGMENT IN O.A. NO.1843/2012 DATED 8/03/2013 OF THE KERALA ADMINISTRATIVE

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TRIBUNAL, THRIRUVANANTHAPURAM.

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EXHIBIT P3 EXHIBIT P3: THE TRUE COPY OF THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM DATED 16/04/2012.

Sanju.L. v. State of Kerala

Case brief

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Sanju.L. v. State of Kerala

Case brief

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