Full Judgment
-:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MR. JUSTICE S.MANU MONDAY, THE 24TH DAY OF JUNE 2024 / 3RD ASHADHA, 1946 OP(KAT) NO. 1 OF 2024 AGAINST THE ORDER DATED 29.09.2023 IN OA NO.573 OF 2022 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/S:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA,, PIN - 695001 2 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA,, PIN - 695001 3 THE DIRECTOR OF SOCIAL JUSTICE, THE DIRECTOR OF SOCIAL JUSTICE, DIRECTORATE OF SOCIAL JUSTICE, VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA,, PIN - 4 THE ADDITIONAL DIRECTOR GENERAL OF POLICE (INTELLIGENCE), THIRUVANANTHAPURAM, KERALA,, PIN - 695033 5 THE SUPERINTENDENT, HOME FOR PHYSICALLY HANDICAPPED AND AGED, MAYITHARA, CHERTHALA, ALAPPUZHA, KERALA,, PIN - 688539 BY ADV SR.GOVERNMENT PLEADER SHRI A.J.VARGHESE
RESPONDENT/S: -:2:-
SHIBU.P, AGED 47 YEARS, S/O. PURUSHAN.S, NIGHT WATCHMAN, HOME FOR PHYSICALLY HANDICAPPED AND AGED, MAYITHARA, CHERTHALA, ALAPPUZHA - 688539,RESIDING AT PREETHIKULANGARA VELY, KALAVOOR.P.O, ALAPPUZHA, KERALA,PIN: 688522. BY ADVS. S. P. ARAVINDAKSHAN PILLAY N.SANTHA(S-176) V.VARGHESE(K/514/1996) PETER JOSE CHRISTO(K/1216/2004) S.A.ANAND(K/1216/2006) K.N.REMYA(K/712/2010) L.ANNAPOORNA(K/952/2013) VISHNU V.K.(K/001396/2018)
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 24.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-
JUDGMENT
Dated this the 24th day of June 2024 A.Muhamed Mustaque (J) INTRODUCTION: The State in this original petition questions an order of the Kerala Administrative Tribunal setting aside an order of termination of the respondent who was working as a night watchman in the Social Justice Department. The Tribunal by the impugned order, directed reinstatement and also to regularise his service with effect
from 11/11/2014. The respondent was terminated from the service after he joined service, based on a verification regarding his antecedents. It was found on such verification that the respondent was involved in a criminal case. -:4:- BRIEF FACTS:
2. The respondent, namely, Shibu P. was an accused along with 28 others in Sessions Case No.405/2004 on the file of the Additional
Sessions Court, Alappuzha. He was the fourteenth accused. It was alleged by the prosecution that Shibu, a member of the Bharatiya Mazdoor Sangh, nursing a grudge against one Rajappan,
who belonged to the Communist Party of India (Marxist), committed the murder of Rajappan. The prosecution case was that the accused person in the crime formed an unlawful assembly to commit the murder of Rajappan and PW2. The Sessions Judge, Alappuzha, vide judgment in Sessions Case No.405/2004, dated Court that the prosecution was unable to prove beyond doubt as to how the incident occurred and also involvement and participation of the accused persons in the crime. It was found that the accused persons have been falsely implicated on account of political rivalry. The State in appeal challenged the judgment of acquittal. This Court in Crl.A.No.2359/2009 affirmed the judgment of the -:5:- Sessions Judge and dismissed the appeal by judgment dated
3. Shibu meanwhile applied for the post of Attendant/Watchman in the Social Justice Department. The Kerala Public Service Commission selected him and advised him for appointment. Accordingly, the Social Justice Department appointed him as per proceedings dated 4/11/2014 subject to verification of antecedents.
4. While Shibu was appointed in service, the appeal against acquittal was pending in the High Court. Therefore, in the verification form, as against the column regarding the pendency of the criminal case, it was specifically mentioned by him case No.2359/2009 pending as an appeal before the High Court.
5. Shibu’s probation was not declared and service was not regularised. He raised several representations and written grievances. He received a show cause notice on 23/9/2021 stating that he was involved in a crime and, therefore, he is unfit to continue in public service. He gave a reply on 29/9/2021. It is apparent that show cause notice was issued pursuant to Shibu’s -:6:-
application before the Tribunal in O.A.No.1223/2021. The Tribunal in that Original Application directed the official respondents to pass appropriate orders in the light of the explanation offered by Shibu.
6. Thereafter, the Government passed Annexure A12 order in
compliance with the direction in the order passed in O.A.No.1223/2021, dated 4/3/2022. The Social Justice Department also passed a consequential Annexure A13 order. By these orders, Shibu’s service was terminated. These orders were
challenged by Shibu before the Tribunal in O.A.No.573/2022. BASIS OF DECISION BY THE TRIBUNAL:
7. The Tribunal placed reliance on Rule 3 of the Special Rules for the Kerala Last Grade Service. Rule 3 was amended with effect from 15/10/2017 giving effect to the application of Rule
10b(iii) of Part II, KS&SSR. The above Rule of KS&SSR prescribes that no person shall be eligible for appointment to any service by direct recruitment unless the State Government are satisfied that his character and antecedents are such as to qualify him for such service. The Tribunal, noting that the requirement for verification -:7:- of antecedents, if any, for appointment in last grade service came into force only with effect from 15/10/2017, deemed the termination illegal. CHALLENGE IN THIS ORIGINAL PETITION:
8. The learned Senior Government Pleader placing reliance on a Government order dated 14/12/2010 would argue that police verification is mandatory for all appointments, irrespective of cadre. The learned Senior Government Pleader further argued that Shibu failed to furnish all requirements in the verification form as to the pendency of the appeal. The learned Senior Government Pleader relied on the following judgments of the Apex Court in support of his argument: Avtar Singh v. Union of India and Others [(2016) 8 SCC 471] Union Territory, Chandigarh Administration and Others v. Pradeep Kumar and Another [(2018) 1 SCC 797]
Rajasthan Rajya Vidyut Prasaran Nigam Limited and Another v. Anil Kanwariya [(2021) 10 SCC 136] -:8:- State of Madhya Pradesh and Others v. Bhupendra Yadav [AIR 2023 SC 4553] DISCUSSION AND CONCLUSION:
9. It is to be noted that the appointment itself was made subject to verification of antecedents. Therefore, it is not open for Shibu, the respondent herein to contend that the Rules prevalent at
the time of appointment do not prescribe verification of antecedents. It is to be noted that in the absence of the Special Rules, executive orders govern the matter. The executive order would also authorise the Government to verify the antecedents. We, therefore, would not approve the reasoning of the Tribunal in the impugned order. Our question is whether the impugned orders are sustainable before the Tribunal or not. Since
the pleadings are on record, and arguments have been raised before us, we shall advert to the arguments raised on both sides.
10. It is to be noted that in Annexure A12 order, absolutely
no reasoning has been given by the Government to order
termination of Shibu except exhaustively quoting the judgment in Avtar Singh’s case (supra). The Government proceeded as though -:9:- a person involved in a criminal case cannot be appointed in public service. It is to be noted that there is a categorical finding by the Sessions Court that the accused persons were implicated due to
political animosity. No overt act has been proved against Shibu and others. They were found completely innocent of the imputation alleged against them by the prosecution. A person
cannot be said to be bad or having any disrepute merely because he was accused in a criminal case. A person's character cannot be assessed mainly based on prosecution allegations. There is no finding by any court to arrive at adverse conclusions about the character of Shibu.
11. This Court in State of Kerala and Others v. Durgadas and another [2023 (6) KHC 339] held as follows:
“The Government, objectively is enquiring character and antecedents to find whether such a person can be appointed in any post in such service. In that process, the criminal case records including civil cases may be relevant, if it reflects the character and antecedents of such a person. The scope of enquiry in such a situation is to find out whether the allegations and materials would qualify him to occupy the office in the service or not. It is not the final outcome of such a case that is decisive but the relevant finding in such cases is material. We have fashioned through judicial language; the phrase, ‘honourable acquittal’, to denote that the findings in that are material or relevant in an -:10:-
assessment of the character and antecedents. In a criminal case, there may be findings reflecting character but may be short of a criminal offence for want of elements constituting the offence. Still that may be valid or relevant in assessing the character of a person concerned though the ultimate outcome might have resulted in acquittal. In that process of enquiry, what concerns the Government is whether the findings disclosed in the criminal investigation or any other dispute are having a ramification on the character of the persons concerned. In that process, the Government being an employer, is not looking at the final outcome. No doubt, in the final outcome, process results in conviction, without much labour the character can be assessed. But in a case, where the person concerned is acquitted for want of evidence the Government has to conduct an enquiry as to whether the materials as such (not the allegations alone) reflect upon the character and antecedents of the person. If the materials including allegations as such do not disclose anything tainted as to the character of persons concerned, based on the mere allegations in the prosecution case, the Government cannot hold that the character would disqualify him in the service. In such a situation, the Government will have to conduct an independent enquiry to assess the character and antecedents of the person concerned with reference to the incident which was the subject matter of the criminal case. The Government cannot merely restate the allegations in the prosecution and hold that the character is bad to make him unsuitable for the post. Thus, we make it clear that in criminal cases where the prosecution cases end up in acquittal if the Government cannot form an opinion based on the prosecution allegations and other materials including the finding entered by the criminal court as to the character of the person, the Government is bound to conduct separate enquiry as to the character antecedents of the person. Thus, mere registration of the criminal case will not enable the Government to disqualify such a person from becoming a member of service.” -:11:-
12. The criminal case must disclose a character unsuitable for
the requirements of a public servant. In the absence of any materials to hold that the character of Shibu is bad or disrepute, merely based on the prosecution allegation, the Government could not have ordered termination of Shibu. This Court in Binnesh Babu v. State of Kerala and Another [2024 (3) KHC 364] at para.8 held as follows:
8. If criminal cases reveal a character unsuitable for the requirements of a
public servant, then the character revealed in those criminal cases becomes a relevant factor. The necessary traits required include personal integrity, adherence to the law, and competence in enforcing rules or laws. There must be a proximity of the history and considerations for keeping an individual in public service. The antecedents, as mentioned in the rule above, should be of a nature that gives room for the opinion that the individual's character has not improved or reformed while being considered for appointment in public service. The past shall hold him but shall not withhold his aspirations for improvement and progress. Society or the State should not harbor contempt for such a person solely because he was involved in any criminal case. The State's stance is to discourage individuals of ill repute who lack character from holding public service positions, but that does not mean a sinner's transgression should not contempt him indefinitely.”
13. The learned Government Pleader heavily placing reliance on Avatar Singh’s case (supra) argued that non furnishing of -:12:-
material information in the verification form amounts to suppression and, therefore, termination is justifiable. We are unable to accept this argument. The Government in the impugned
order did not state that the information furnished in the verification
form was insufficient nor there was a case that Shibu had suppressed any information. It is to be noted that Shibu specifically mentioned in the verification form, case No.2359/2009 and also mentioned that, in the appeal case Kerala High Court. Merely because it did not contain nomenclature of Crl.A., that does not mean it is suppression. It is to be noted that column itself refers to seeking information in regard to criminal cases. Any person with a little common sense can understand that the case number referred with reference to appeal in High Court, relates to Criminal Appeal as the column itself was with respect to seeking
information of criminal matters. Anyway, the Government has no case that Shibu has suppressed. Information about the case number itself is sufficient. In the absence of any adverse finding regarding character, based on the criminal offence, termination of Shibu is illegal. We, -:13:- therefore, affirm the order of the Tribunal for the reasons stated above. The original petition is dismissed. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- S.MANU, JUDGE ms -:14:- APPENDIX OF OP(KAT) 1/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF ORDER NO.E6-3676/14 DATED 04.11.2014 OF THE 2ND PETITIONER. Annexure A2 TRUE COPY OF THE VERIFICATION REPORT NO.DOA/2482/2016/ASS II DATED 30.03.2016 OF THE DISTRICT OFFICER, PSC, ALAPPUZHA. Annexure A3 TRUE COPY OF THE REPRESENTATION DATED 20.03.2018 FILED BY THE RESPONDENT BEFORE THE 2ND PETITIONER Annexure A4 TRUE COPY OF THE LETTER NO.E4-4753/18 DATED 30.06.2018 OF THE 2ND PETITIONER. Annexure A4(a) TRUE COPY OF THE JUDGMENT DATED 23.11.2007 IN SESSIONS CASE NO.405/2004 OF THE ADDL.SESSIONS JUDGE, ALAPPUZHA. Annexure A5 TRUE COPY OF THE JUDGMENT DATED 23.10.2019 OF THE HON'BLE HIGH COURT OF KERALA IN CRL.A.NO.2359/2019-D. Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 15.11.2019 FILED BY THE RESPONDENT BEFORE THE 2ND PETITIONER. Annexure A7 TRUE COPY OF THE SHOW CAUSE NO.SSB3/199/2021/HOME DATED 23.09.2021 OF THE 2ND PETITIONER Annexure A8 TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE 6TH RESPONDENT IN OA 1223 OF 2021. Annexure A9 TRUE COPY OF THE LETTER NO.H.P.H.71/14 DATED 24.09.2016 OF THE 5TH PETITIONER ALONG WITH ITS ENCLOSURE. Annexure A10 TRUE COPY OF THE REPLY 29.09.2021 FILED BY THE RESPONDENT TO ANNEXURE-A7 SHOW CAUSE NOTICE. -:15:- Annexure A11 TRUE COPY OF THE INTERIM ORDER DATED 04.03.2022 IN OA NO.1223/2021 OF THIS HON'BLE TRIBUNAL. Annexure A12 TRUE COPY OF THE G.O(RT)NO.814/2022/HOME DATED 23.03.2022. Annexure A13 TRUE COPY OF ORDER NO.SJD/101866/2019-E4 DATED 06.04.2022 ISSUED BY THE 3RD PETITIONER. Annexure R3(a) TRUE COPY OF THE G.O(RT)NO.814/2022/HOME DATED 23.03.2022. Annexure R3(b) TRUE COPY OF THE LETTER NO.3914/TDR/SB/2020A DATED 02.11.2020. Annexure R3(c) TRUE COPY OF THE ORDER NO.SJD/101866/2019-E4 DATED 06.04.2022. Annexure R2(a) TRUE COPY OF G.O(P)NO.40/2014/P&ARD DATED 05.12.2014. Exhibit P1 TRUE COPY OF THE O.A NO.573/2022 Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE THIRD PETITIONER ON 06.07.2022 Exhibit P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND PETITIONER ON 07.07.2022 Exhibit P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 26.10.2022 Exhibit P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE THIRD PETITIONER ON 15.02.2023 Exhibit P6 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE SECOND PETITIONER ON 26.04.2023 Exhibit P7 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 21.08.2023 Exhibit P8 EXHIBIT P8: TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT ON 07.09.2023 -:16:- Exhibit P9 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL ON 29.09.2023