Govt May Conduct Own Enquiry To Determine Suitability Of Character For Public Employment Despite Acquittal In Criminal Case: Kerala High Court

Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen observed that the government cannot disqualify a candidate from acquiring an employment in public service merely because a criminal case was registered against him. It stated that the government can consider the allegations along with materials against the candidate in the criminal case independently to assess the character and integrity of the candidate to see whether he was suitable for entering the service or not.

“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.”

The respondent-Durgadas wanted to become a police constable in India Reserve Batalion. Despite clearing all written tests, the respondents denied appointment to him stating that he has criminal antecedents. His first wife had lodged a criminal case against him due to their matrimonial disputes. Denial of appointment was challenged before the Kerala Administrative Tribunal. The Tribunal passed an order in his favour and stated that he was eligible to be appointed as a police constable. Against this, the State preferred this appeal before the High Court.

The court found that the Tribunal had found nothing adverse regarding the character and antecedents of the respondent. It noted that the Tribunal had found nothing to suggest that the respondent was unsuitable to become a police constable, except a criminal case in which he was acquitted.

The Court relying upon Section 82(2) of the Kerala Police Act held that a person can be permanently appointed as a member of service on acquittal from a criminal case. However, it also noted that a person cannot freely acquire employment merely because he was acquitted from a criminal case, when his appointment requires character verification. It said the government in their enquiry can rely upon the criminal or civil cases pertaining to a candidate if such records reflects his character. The Court stated thus:

“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.”

The Court stated if the final outcome of a criminal case resulted in conviction, it will be easier for the government to ascertain the character and antecedents of a candidate. But if acquittal was for want of evidence, then the government can conduct an independent enquiry to assess whether there was relevant findings against reflect upon the character and antecedents of the person. It should not merely rely upon the prosecution allegations to disqualify a person from employment. The Court further stated that even in acquittals, the government can conduct enquiry if it was unable to form an opinion regarding the character of a 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.”

In the facts of the present case, the Court found that the report issued by the Additional Director of Police against the respondent was incorrect. It found that except the allegations made by the prosecution, there were absolutely no materials against the respondent to hold against his suitability to the post of police constable. The Court held that the government cannot assess the character of a person merely based on the allegations raised by the prosecution. The Court dismissed the original petition and stated that finding of the government against the respondent was unsustainable.

“Except the allegation of the prosecution, absolutely no materials were available to hold against the candidate Durga Das. It is not safe to assess the character based on the prosecution allegations alone. In such circumstances, the conclusion arrived at by the Government to hold against the candidature of Durga Das is erroneous and unsustainable…..The Government could not have concluded that the character is bad to disqualify him from becoming a member of the service without any materials, merely based on prosecution allegations.”

Counsel for the Petitioners: Additional Advocate General Asok M Cherian, Government Pleader T.S. Shyam Prasanth

Counsel for the respondents: Advocates Kaleeswaram Raj, Thulasi K. Raj and Varun C.Vijay

Citation: 2023 LiveLaw (Ker) 546

Case title: State of Kerala v Durgadas

Case number: OP(KAT) No. 267 of 2021

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