Calcutta High Court (Appellete Side)
Vaskar Nayek vs The General Manager on 11 August, 2023
70
11.08.2023
Court No. 35
I.T (p.a)
WPA 8335 of 2022
Vaskar Nayek
Vs.
The General Manager, Allahabad Bank &
Ors.
Mr. Shyamal Kumar Das,
Mr. Prasanta Kumar Banerjee,
Ms. Indrani Nandi
... for the Petitioner
The writ petitioner is aggrieved with the
order of the respondent bank dated August 26,
2019 and has challenged the same in this case.
By dint of the order impugned, i.e, dated August 26, 2019, the Chief Manager and Disciplinary Authority/respondent no.3 has directed in a manner, as follows:-
"Be removed from service with
superannuation benefits, i.e. pension and/or
Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment".
The ground for such decision of respondent no.3 as stated in the said impugned order dated August 26, 2019 is of the writ petitioner having adopted unfair means and knowingly making false statement regarding 2 educational qualification at the time of his recruitment.
The factual matrix of the case may be stated in a nut-shell in the following manner:-
The respondent bank published notification in the well circulated vernacular, English and Hindi Newspapers for recruitment in the post of part time sweepers. 22 vacancies were declared. The petitioner applied in response to the same, by submitting in the prescribed form (annexure P-2). The writ petitioner was served with the letter dated August 24, 2015 to appear before the interview board on September 7, 2015 and was ultimately appointed in the said post with effect from October 1, 2015. The writ petitioner has declared his educational qualification to be "8th passed", in the prescribed form at the time of recruitment.
Subsequently the respondent bank initiated departmental inquiry against the writ petitioner on the ground that though being a qualified Madhyamik passed candidate, the writ petitioner willfully and intentionally made false declaration pertaining to his educational qualification in his application form and thus concealed the actual fact as regards his 3 educational qualification. It was found that the writ petitioner passed Madhyamik examination in 2013. In spite of that he declared his educational qualification to be "8th passed", at the time or recruitment in the year 2015. The authorities thus came to the finding that the writ petitioner knowingly made false statements regarding educational qualification and adopted unfair means in the process. Holding such conduct of the writ petitioner to be the misconduct within the purview of the conditions of employment applicable to him, the disciplinary authority imposed punishment of his removal from service.
Learned Advocate on his behalf has submitted that the writ petitioner is firstly aggrieved with the fact that the application form having not disqualified and deberred any higher educated candidate, he cannot be stated to have made any false statement, as regards his qualification. It has been urged, that the writ petitioner is a "Class 8" qualified candidate, is a fact, true and substantiated on the basis of the testimonials submitted by the petitioner, with the respondents. That being so, it has been stated that, the writ petitioner could not have been held to be penalized for any alleged unfair 4 means by knowingly suppressing his educational qualification.
By referring to the three Judges Bench decision of this Court reported in 2010 (3) Calcutta Law Times 232 (HC) (Rita Dutta & Ors. vs. Anjali Mahato & Ors), it has further been submitted that since no penal provision was prescribed in the notification itself by the respondent authority in case of any willful suppression of any of the eligibility criteria as mentioned therein, the respondent authority at a later stage could not have invoked the allegation of misconduct and imposed punishment on the present petitioner. Learned Advocate on behalf of the petitioner has prayed for setting aside of the impugned order of the respondent no.3 dated August 26, 2019.
No one has appeared for the respondents in this case. The record reveals that though the respondents were granted liberty to file affidavit- in-opposition within the period of six weeks from the dated July 5, 2022, no such affidavit is also filed.
On the premises as above, this Court takes up the matter for hearing and disposal in absence of respondents.
5
The writ petition deals with the question as to whether the respondent no.3 was justified in finding the writ petitioner to have intentionally suppressed his qualification and adopting unfair means to disclose relevant criteria of eligibility for appointment, which would be within the purview of misconduct under the service conditions governing the writ petitioner. The crux of the allegations against the petitioner is that in spite of the eligibility criteria being prescribed in the advertisement that the candidate should not be a Class 10/school final/Matriculation or equivalent qualified, the writ petitioner responded to the advertisement suppressing his actual qualification of "Class 10", which he has already completed, 2 years prior to the date of the advertisement.
The eligibility criteria fixed up in the concerned notification is nothing but some twisted words to virtually imply that a candidate must be class 8 qualified. Further the concerned notification does not provide for any penal consequences in case of any false declaration by any candidate, regarding any of the eligibility criteria.
6
In this case firstly it is seen that the declaration made by the writ petitioner cannot be said to an untrue and false declaration in view of fact that he fulfills the criteria, what the respondent authority have actual sought for. There is no challenge as to the genuineness of the testimonials produced by him before the disciplinary authority. Under such circumstances it cannot be held that the petitioner was actually a prohibited and disqualified candidate, who has procured some illicit advantage, on the basis of any false declaration made. In absence of any tangible material to show disqualification of the petitioner as regards the concerned post, the ratio of the decision as relied on by the petitioner squarely applies to the facts and circumstances of the instant case. This prompts the Court to hold that the finding of the respondent no.3 in the said impugned order regarding misconduct by the petitioner, by willfully suppressing any material fact while adopting an unfair means in the process of recruitment appears to be not tenable.
The impugned order dated August 26, 2019 of respondent no.3 is thus liable to be set aside.
7
Hence, the writ petition being W.P.A 8335 of 2022 is allowed. The impugned order of respondent no. 3 dated August 26, 2019 is set aside. The concerned respondent/s is/are directed to immediately reinstate the writ petitioner with all consequential benefits, including continuity of his service, with immediate effect.
Connected applications, if any, are disposed of.
Urgent photostate certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)