Chandrasekaran v. Director General of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.35545 of 2006Chandrasekaran.. Petitioner Vs.1.Director General of Police, Government Estate, Madras-600 002.2.Office of the Commandant, Tamil Nadu Special Police, IInd Battalion, Avadi, Madras-54.. RespondentsThis writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusdirecting the respondents to consider and re-appoint the applicantin any post in the Police department commensurate with hisqualification as the only legal heir of the deceased ConstableNarayanasami who expired on 10.10.1986 while in harness oncompassionate ground. For Petitioner: Mr.P.K.RajagopalFor Respondents: Mr.P.Gurunathan, GA- - - - ORDERThe petitioner filed O.A.No.601 of 1998, seeking to challengethe order, dated 4.5.94 rejecting his request for re-appointment.In view of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.35545 of2006. 2.The petitioner's father was appointed as a Police Constable.He died in harness on 10.10.1986. Thereafter, the petitionerrequested for a compassionate appointment on the ground of thedeath of his father. At that time, the petitioner did not have theminimum general educational qualification, i.e. a pass in the SSLCto get appointed to the post of Junior Assistant. The petitioner inorder to get that appointment corrected his mark sheets as if hehad passed the SSLC. Conceding the request of the petitioner, hewas appointed as a Junior Assistant in the office of the Tamil NaduSpecial Police, II Battalion at Avadi, by an order, dated 17.11.86.3.On coming to know about the forged document produced by thepetitioner, a criminal case was registered at the District CrimeBranch, St. Thomas Mount in Crime No.10/87. The petitioner wascharged under Sections 468 and 471 IPC. The Judicial Magistrate https://hcservices.ecourts.gov.in/hcservices/ Court, No.1, Poondamalli found the petitioner guilty of thecharges. Even when questioning under Section 313 Cr.P.C., thepetitioner had admitted his guilt and applied for leniency. Thelearned Magistrate, after holding the petitioner guilty, convictedthe petitioner, but however the petitioner was released underprobation for a period of one year under Section 4 of the Probationof Offenders Act, 1958. The trial court also observed that he canhave the benefit of Section 12 of the said Act. In the meanwhile,the petitioner was dismissed from service for having produced aforged certificate.4.The petitioner did not challenge the order of removal, butafter the judgment of the criminal court, he sent a representation,stating that since the criminal court had reduced him on probation,he can atleast be given an appointment commensurate with hiseducational qualification. It is this representation which wasrejected by the impugned order. 5.The Supreme Court has held that an appointment secured byfraud cannot be condoned. In this context, it is necessary to referto the judgment of the Supreme Court in A.P. Social WelfareResidential Educational Institutions v. Pindiga Sridhar reportedin (2007) 13 SCC 352 to show that an appointment obtained oncompassionate ground on false grounds was set aside by the court.It is necessary to refer to the following passage found in para 7of the said judgment, which is as follows:"7. ... These facts clearly disclose that theappointment on compassionate ground was secured byplaying fraud. Fraud cloaks everything. In such admittedfacts, there was no necessity of issuing show-causenotice to him. The view of the High Court thattermination suffers from the non-observance of theprinciples of natural justice is, therefore, clearlyerroneous. In our view, in the given facts of this case,no prejudice whatsoever has been caused to therespondent. The respondent could not have improved hiscase even if a show-cause notice was issued to him."6.Even while dealing with the removal of disqualificationfound under Section 12 in relation to a government servant governedby the protection given under Article 311(2), the Supreme Courthad an occasion to consider the said issue. It will be relevant torefer to the judgment of the Supreme Court in DivisionalPersonnel Officer, Southern Rly. v. T.R. Chellappan reported in(1976) 3 SCC 190. The relevant passages found in paragraphs 13 to20 may be usefully extracted below: "13. .... If Section 12 of the Probation ofOffenders Act completely wiped out the disqualificationcontained in Article 311(2) proviso (a) then it wouldhave become ultra vires as it would have come intodirect conflict with the provisions of the proviso (a)to Article 311(2). In our opinion, however, Section 12of the Act refers to only such disqualifications as areexpressly mentioned in other statutes regarding holdingof offices or standing for elections and so on. This https://hcservices.ecourts.gov.in/hcservices/ matter was considered by a number of High Courts andthere is a consensus of judicial opinion on this pointthat Section 12 of the Act is not an automaticdisqualification attached to the conviction itself.14. In R. Kumaraswami Aiyar v. Commissioner, MunicipalCouncil, Tiruvannamalai Rajagopala Ayyangar, J., as hethen was, observed as follows:If for instance the petitioner is dismissed fromservice because he has been found guilty of an offenceinvolving moral turpitude it cannot be said that he issuffering from a disqualification attaching to aconviction. What Section 12-A has in view is anautomatic disqualification flowing from a convictionand not an obliteration of the misconduct of theaccused. In my judgment the possibility of disciplinaryproceedings being taken against a person found guiltyis not a disqualification attaching to the convictionwithin the meaning of Section 12-A of the Probation ofOffenders Act.The same view was endorsed by the Full Bench of thePunjab and Haryana High Court in Om Prakash v.Director, Postal Services (Posts and Telegraphs Deptt.)Punjab Circle, Ambala where it was observed:“What Section 12 removes is a disqualificationattaching to a conviction. In my opinion, neitherliability to be departmentally punished for misconductis a disqualification, nor it attaches to theconviction. “Disqualification” in its ordinarydictionary meaning connotes something that disqualifiesor incapacitates. To disqualify a person for aparticular purpose means to deprive that person of thequalities or conditions necessary to make him fit forthat purpose.”It was further observed by the High Court:“The other reason why Section 12 of the Act does nothelp the petitioner is that the departmentalproceedings are not attached to the conviction of theoffence. Departmental proceedings are not taken becausethe man has been convicted. The proceedings aredirected against the original misconduct of thegovernment servant.... No part of Section 12 isintended to exonerate a government servant of hisliability to departmental punishment for misconduct.This provision does not afford immunity againstdisciplinary proceedings for the original misconduct.What forms basis of the punishment is the misconductand not the conviction.”15. A Full Bench of the Delhi High Court in Director ofPostal Services v. Daya Nand held the same view andobserved thus:“Firstly, the ordinary meaning of ‘qualification’ isthe possession of some merit or quality which makes the https://hcservices.ecourts.gov.in/hcservices/ possessors eligible to apply for or to get somebenefit. The word ‘disqualification’ used in Section 12has the opposite meaning. It imposes a disability onthe person to whom the disqualification is attached inapplying for or getting such benefit. Thedisqualification contemplated by Section 12 is,something attached to the conviction, namely, somethingwhich is a consequence or the result thereof. Instancesof such disqualification may be found in a statute,statutory rule or in administrative practice. UnderSection 108 of the Representation of People Act, 1951,a person is disqualified to be a member of Parliamentor State Legislature if he is convicted of certainoffences. It would also be an administrativeconsideration in entertaining applications for jobs orfor grant of licences to disfavour an applicant who isa convict. Such a disqualification is removed bySection 12. This meaning of disqualification does notinclude the reason by a hearing prior to punishment isdispensed with by proviso (a) to Article 311(2) of theConstitution. Secondly the object of Section 12 is toremove a disqualification attached to conviction. Itdoes not go beyond it.”16. The decision in R. Kumaraswami Aiyar case wasfollowed in a later case in Embaru v. Chairman, MadrasPort Trust.17. The Andhra Pradesh High Court in AkellaSatyanarayana Murthy v. Zonal Manager, Life InsuranceCorporation of India, Madras5 appears to have taken thesame view where it was observed thus:“…we are of the view that what Section 12 of theCentral Act has in view is an automaticdisqualification flowing from a conviction and not anobliteration of the misconduct of the officialconcerned. The disciplinary authority is not precludedfrom proceeding under Regulation 89(4).”18. The Madhya Pradesh High Court also took the sameview in Premkumar v. Union of India where it wasobserved:“We have heard the learned counsel at some length butwe find ourselves unable to agree with the abovecontention. The relevant words of the section are‘shall not suffer disqualification, if any, attachingto a conviction of an offence under such law’. Thewords can only be read so as to remove thedisqualification which under some law may attach to aperson on account of his conviction. For instance, if aperson is convicted of an offence, he is disqualifiedfrom standing for election to the Central or StateLegislatures. But if such a person is given benefitunder the Probation of Offenders Act, then by virtue ofSection 12 of that Act the disqualification for thatpurpose (standing for election) will stand removed.” https://hcservices.ecourts.gov.in/hcservices/

19. A Division Bench of the Delhi High Court in IqbalSingh v. Inspector General of Police, Delhi took acontrary view but that decision has been overruled by alater decision of the Full Bench of the same High Courtin Director of Postal Services v. Daya Nand to which wehave already referred to.20. Even the Rajasthan High Court in its judgmentconcerning Civil Appeal No. 891 of 1975 has endorsedthe view taken by the Madras High Court and followed bythe other High Courts. We find ourselves in completeagreement with the view taken by the Madras High Courtas referred to above and as endorsed by the Delhi,Rajasthan, Punjab, Andhra Pradesh and Madhya PradeshHigh Courts."7.In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Director General of Police, Government Estate, Madras-600 002.2.The Office of the Commandant, Tamil Nadu Special Police, IInd Battalion, Avadi, Madras-54W.P.NO.35545 of 2006GGK(CO)SRA(12/6/2009)