Mansarudeen vs Secretary, K.S.E.B. and Others

John Mathew, J.—The Appellant Petitioner filed the original petition under Article 226 of the Constitution of India to direct the Respondents to appoint him as Cashier in the service of the 1st Respondent, Kerala State Electricity Board, after quashing Ext. P-8 direction of the 3rd Respondent refusing to admit him to duty. The learned Single Judge dismissed the petition. This appeal is directed against that judgment.

The Petitioner is a Science Gradiuat belonging to Other Backward Community (Muslim). He was advised for recruitment as Junior Assistant/Cashier in the K.S.E.B. by the Kerala Public Service Commission. Copy of the advice dated 20th April 1992 is produced as Ext. P-1. Subsequent to the advice an order of appointment dated 29th June 1992 was issued to him, copy of which is marked as Ext. P-2. As per Ext. P-2 he was asked to report for duty before the Executive Engineer, Electrical Division, Thrissur West within 15 days of the receipt of the order. The Petitioner appeared before the Executive Engineer on 17th July 1992. As per Clause 7 of Ext. P-2 order he also produced security deposit receipt for Rs. 1,000. Copy of the receipt dated 17th July 1992 is marked as Ext- P-3. He had to fill up a pro forma before joining service. While filling the pro forma the Petitioner stated tliat he has been implicated in two criminal cases along with, other 1994(3)j '' Kerala Series Mansarudeen v. Secretary, K.S.E.B.-John Matfyew, J. close relatives. The numbers of the cases were also mentioned in the pro forma. The Executive Engineer by his letter dated 21st July 1992 (Ext. P-8) informed the Petitioner that he could not be admitted for duty in view of the pendency of the criminal cases. He was also informed that ''the matter has been taken up with the Deputy Chief Engineer, Electrical Circle, Thrissur, for further directions''. The Deputy Chief Engmeer in his turn requested for further instructions from the Chief Engineer by his letter dated 21st July 1992. Copy of that letter is produced as Ext. P-9. Thereafter the Petitioner was not informed about the decision of the Chief Engineer. The original petition was accordingly filed on 14th August 1992 for the above mentioned reliefs.

Under Rule 10(b)(iii) of the Kerala State and Subordinate Services Rules (K.S.S.S.R.) 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. These rules are applicable to the Electricity Board Service also. In this connection reference may also be made Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as ''C.C.A. Rules''. Under Rule 10 of the C.C.A. Rules the appointing authority may at any time place a Government servant under suspension where a case against him in respect of a criminal offence is under investigation or trial, among other grounds mentioned in that rule." Relying on this rule learned Standing Counsel for the K.S.E.B. contended that even in case the Petitioner is appointed he may be placed under suspension. We Will consider this contention after considering, the main point as to whether the Petitioner is entitled to join the service of the Respondents.

As it is no decision has been taken by any authority to the effect that the character and antecedents of the Petitioner are such as to disqualify him from service. Even without such a finding or order the Petitioner who was appointed as early as on 29th June 1992 is not being allowed to join service. Thus formore than one and half years he is denied empolyment on the ground that he is an accused in two criminal cases.

The background-under which these criminal cases arose has been explained by the Petitioner in the original petition. According to the Petitioner in the adjoining property owners of his uncle''s property were attempting to trespass into his property. Petitioner''s uncle had filed two suits, one suit which was filed in the Munsiff Court was transferred to the Sub Court and renumbered as O.S. No. 551 of 1991 and the other suit was O.S. No. 77 of 1990, for injunction restraining them from trespassing into his property. Interim injunction was ordered by the Civil Court. In violation of the injunction order the neighbours trespassed into the property and caused bodily injury to the Petitioner''s uncle, father and his close relatives about which criminal cases were registered against the neighbours at the instance of the Petitioner''s uncle and father. However, since the neighbours belonged to the ruling political party at that time, the police were sheildingi the wrong doers. So also at the instance of the neighbours criminal complaints were being filed against the members of the Petitioner''s family. Therefore the Petitioner''s uncle was forced to file O.P. No. 1928 of 1990 before this Court for getting police protection against these neighbours. This Court by Ext. P-7 judgment ordered police protection. In paragraph 5 of that judgment this Court found that even after injunction the neighbours were trying to trespass into the property and committing waste and that police protection was not forthcoming eventhough they prayed for the same. Therefore the allegation of the Petitioner is that, the two criminal cases pending against him are foisted by the police since they were unhappy about the judgment of this Court to grant police protection to the Petitioner''s family members. It is also alleged that the local Circle Inspector wanted Petitioner''s uncle to sell his property for a paltry sum to his neighbours. His refusal to accept that request further infuriated the police. We stated these facts only to explain the stand of the Petitioner. It may or may not be true. But the main aspect to be noticed is that according to the Petitioner he is not at all guilty and he is liable to be acquitted in the criminal case. As an example he produced Ext. P-6 judgment in Anr. criminal case against him and Ors. . In that judgment the Sessions Court, Kollam, acquitted the Petitioner and Ors. . In para 13 of that judgment the learned Sessions Judge noticed that there were several criminal and civil cases pending against the parties and that the chance of foisting a false case cannot be ruled out.

Then the question is whether there is any justification for the Respondents to ask the Petitioner to wait till the criminal cases are over. We are of the view that there is no such justification. Already about years is over. It is stated that one of the cases is being tried, but the other is not yet posted for trial. The denial of appointment to the Petitioner will seriously affect his prospects in service. Not only that he will not be getting his salary for these years. But his seniority and prospects of promotions will also be affected. We are not sure whether the validity of the list itself may not be cancelled or he may be denied employment due to overage. In any view of the case it cannot be disputed that if any of his tormentors want to deny him employment it can be very easily done by filing a fresh criminal complaint against him, even after the closing of the existing cases. It is a fundamental principle of criminal jurisprudence that every accused is presumed to be innocent till he is convicted. In R. P. Kapur Vs. Pratap Singh Kairon and Others, the Supreme Court held that if a first information report has been recorded against a Government servant that he has committed- a cognizable offence the truth of the same should be ascertained in an inquiry or trial by the criminal Court. Therefore the Supreme Court cautioned that in most cases it would be proper and reasonable for Government to await the result of the police investigation and where the investigation is followed by an inquiry or trail the result of the trial before- deciding to take any disciplinary action against any of its servants. However the Supreme Court also stated that there is no legal bar to the Government ordering a departmental, enquiry. Reference was made to State of Kerala v. K.A. Balan 1979 (1) S.L.R. 94 where this Court upheld the cancellation of appointment on the ground that the candidate''s character and antecedents were not found satisfactory. In that case the candidate had suppressed the fact that he was previously employed in the office of the Accountant General which appointment was terminated on the basis of participating in the activities prejudicial to the smooth and orderly running of the office. We do not think that the said judgment will be of any assistance in the present case since the facts in that case were entirely different from the present case.

In this case the order appointing the Petitioner (Ext. P-2) is already issued. However, he is not allowed to join the service. We have already held that the mere pendency of criminal cases like the cases against the Petitioner (cases arising from civil disputes) is not a valid ground to ''hold that the Petitioner''s character and antecedents disqualify him for appointment to any service. We respectfully adopt the reasoning of the Supreme Court in Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another,

Accordingly we direct the Respondents to appoint the Petitioner and permit him to join the service pursuant to Exts. P-1 and P-2 orders, within two weeks of receipt of a copy of this judgment. In case the Petitioner is acquitted, his appointment will be regularised from the date of advice as provided in Rule 27 of the K.S. and S.S.R. In case he is convicted and he is not filing any appeal, his, appointment shall be terminated immediately. In case he is convicted and he is filing sin appeal, the appointment shall continue till the appeal is disposed of. There will be a further direction that the Petitioner shall not. be suspended from service merely on the ground that criminal cases are pending against him. The judgment of the learned Single Judge is set aside and the original petition is allowed as above.

Writ appeal disposed of with the above directions Communicate a copy of the judgment to the Chief Engineer, Electrical, General, K.S.E.B., Trivandrum.

*A reproduction from ILR (Kerala Series).