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The employer has the right to consider antecedents, and cannot be compelled to appoint the candidate: Sikkim High Court

If acquittal had already been recorded in a case involving moral turpitude or offence of heinous nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents and may take an appropriate decision as to the continuance of the employee. In a case where the employee has made a declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. The judgement was passed by the High Court of Sikkim in the case of Mr Tara Prasad Sharma vs. State of Sikkim & Ors. [WP(C) No.02 of 2019] by Single Bench consisting of Hon’ble Justice Jitendra Kumar Maheshwari.

The petitioner has filed this petition under Article 226 of the Constitution of India, challenging the resolution of Full Court of the High Court of Sikkim recommending to withdraw the appointment of the petitioner made by previous resolution of the Full Court on the post of Civil Judge-cum-Judicial Magistrate and to challenge the appointment of the respondent made in place of the petitioner based on the same resolution and on the same post, this petition has been filed.

The petitioner contended that he was acquitted from the charge levelled against him under Section 468 of the. On receiving the offer of appointment vide Memorandum, he submitted his attestation form specifying the details of the criminal case and its result. He has urged, it is not a case of concealment of material facts, as he has disclosed the details of the criminal case and its result of acquitting him in the attestation form. Being the candidate of merit as per the resolution of the Full Court. He had rightly been appointed by the State Government. Merely registering a criminal case in which he was acquitted by the Court, may not debar him from the appointment as Civil Judge, he contended.

Learned Counsel for the respondent has inter alia contended that it is a case in which petitioner was not acquitted honourably but acquitted giving the benefit of the doubt. After taking note of the same, the appointing authority has rightly exercised its discretion to discontinue the petitioner and to appoint Respondent on the said vacant post.

The court observed that “even acquittal of the petitioner giving the benefit of the doubt, in a case involving moral turpitude, is not sufficient to grant employment until he is acquitted clearly. The employer is having the right to consider all relevant facts available and as to antecedents and may take an appropriate decision as to the continuation of the employee in the employer looking to the standard of propriety and probity. The employer cannot be compelled to appoint the candidate for holding the civil post, if not acquitted clearly.”

While dismissing the petition the court held that “the mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on the total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond a reasonable doubt, that parameter having not been met, the benefit of the doubt has been granted to the accused.”

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