Madhya Pradesh High Court
Sanjay Richharia vs Director, Indian Oil Corporation Ltd. ... on 12 May, 2003
Equivalent citations: 2004(1)CTLJ240(MP)
Author: Shantanu Kemkar
Bench: Shantanu Kemkar
JUDGMENT Bhawani Singh, C.J.
1. This Letters Patent Appeal arises out of order dated 22.10.2001 passed by Single Judge in W.P. No. 3836 of 2001.
2. Pursuant to advertisement published by the Director, Indian Oil Corporation Limited and the Chairman, Dealers Selection Board, Jabalpur (respondents 1 and 2), appellant submitted an application on 14.06.1998 for dealership of Indian Oil Corporation Retail Outlet for Bada-Malehara (Chhatarpur). He stated, inter alia, that he possessed all requisite qualifications required by respondent 1/2, received call-letter for attending the interview and appeared before respondent 2. Merit list of three candidates, namely, Shri Sanjay Richharia (petitioner), Shri Veer Singh (respondent 3) and Mrs. Jyotsana Agarwal, was prepared.
3. Pursuant to a complaint against appellant, enquiry was initiated. Appellant was asked to be present at Hotel Clark Khajuraho on 14.01.2000. Complainant alleged that appellant gave false affidavit and suppressed information with regard to criminal cases pending against him. Accordingly, appellant appeared before the investigator and stated that complaint against him had no substance and was absolutely false. He also submitted copies of judgments whereby he had been acquitted in all the criminal cases mentioned in the complaint. He did not suppress anything nor furnished wrong information to the authorities. No criminal case was pending against him nor was he convicted in any economic offence or any offence involving moral turpitude. Failing to receive response for some time, appellant came to know that his candidature had been cancelled and allotment of retail outlet dealership had been made in favour of respondent 3. This decision, appellant alleges, is completely arbitrary and politically motivated, particularly when the appellant had furnished judgments of acquittal in the criminal cases referred to in the complaint. This had been done on the recommendation of respondent 4 who recommended allotment of dealership in favour of person belonging to his constituency which qualification respondent 3 possessed out of the selected candidates. Precisely, submission is that the information in the affidavit pertains to criminal cases involving moral turpitude and/or economic offence. The cases against the appellant did not belong to these categories. Therefore, the cases against the appellant were neither serious nor of nature stipulated. Moreover, non-disclosure was not intentional. Allotments have been made to persons in the past against whom criminal cases were pending, for instance, allotment of retail outlet dealership dated 08.01.1994 to Shri Manoj Jain, of Liquid Petroleum Gas. The appellant did not furnish false affidavit since there was no case pending against him involving moral turpitude and/or economic offence. With regard to the cases pending against him, the appellant explained to the investigator that all of them had ended in acquittals, when he cannot be disqualified for employment, he cannot be disqualified for allotment of dealership since question of employment is involved in the allotment also.
4. Respondents submit that information required to be conveyed to the authorities by way of affidavit is not only in respect of offence involve moral turpitude/economic offence but also in respect of other offences. The candidature of appellant was cancelled because he concealed the material fact in respect of criminal cases pending against him, which means affidavit should not only give information with regard to offence involving moral turpitude/economic offence but also in respect of criminal cases of any nature pending against the person concerned.
5. Single Judge dismissed the petition on the ground that the appellant did not furnish information with respect to criminal cases pending against him at the time of submitting the application, suppressed material information, therefore, authorities were justified in not allotting the dealership, meaning thereby there is requirement to give information with regard to other offences also.
6. Shri N.C. Jain, Senior Advocate reiterates that requirement is to furnish information with regard to offence involving moral turpitude or economic offence. Appellant did not commit such offences, therefore, it was not essential to make mention of the three criminal cases pending against him. However, he had been acquitted in these cases on 11.06.1999, 31.08.1999 and 15.11.1999. Impact of these acquittals has not been considered by Single Judge for deciding the petition, therefore, immense prejudice to the appellant. The .interpretation given to the clause is patently erroneous. Suppression should be 'wilful', therefore, allotment should not have been cancelled. Even otherwise, by the time, the equiry was conducted, the appellant had been acquitted in all the three cases. Consequently, disqualication stood removed and allotment could be made. In support of these submissions, reliance is placed on three decisions of Apex Court in Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547 and Regional Manager, Bank of Baroda v. Presiding Officer, C.G.I.T., AIR 1999 SC 912 and two decisions of this Court in Ramratan Yadav v. K.V. Sangathan, 2001(1) MPLJ 205 and Jagdish Ram v. State of M.P., 2001(1) MPLJ 366.
7. In Vidya Charan Shukla's case (supra), Apex Court said :
"(27) Before examining the facts and ratio of Mani Lal's case, AIR 1971 SC 330, it will be worthwhile to notice here a general principle of criminal law bearing on this issue. This principle as reiterated by this Court in Dilip Kumar Sharma's case, (at page 289)=AIR 1976 SC 133 (ibid) is as follows :
" 'An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction (for the offence) was quashed by the High Court (in appeal)....' it killed the conviction not then, but performed the formal obsequies of the order which had died at birth"."
In Regional Manager, Bank of Baroda's case (supra), Apex Court said :
"(9) The facts which are well established on record and which have weighed with us for coming to the aforesaid conclusion may now be noted. It is true that the respondent made a wrong statement while reply to query No. 27 of the application form that he had not been prosecuted at any time. It is equally true that the Labour Court itself found that giving a false statement should not be deemed to be such a grave misconduct, which may be visited with extreme punishment of termination from service. However, it had also to be noted that the appellant-Management while issuing show cause notice for the first time on 26.02.1980 has in terms noted in the said notice that not only the criminal proceedings were pending but had ultimately ended in conviction of the respondent. The appellant itself thought it fit to await the decision of the criminal case before taking any precipitate action against the respondent for his misconduct. Thus, according to the respondent, this suppression was not so grave as to immediately require the appellant to remove the respondent from service. On the contrary in its wisdom, the appellant thought it fit to await the decision of the criminal proceedings. This may be presumably so because the charge against the respondent was that he was alleged to have involved himself in an offence under Section 307 of the Indian Panel Code. It was not an offence involving cheating or misappropriation which would have a direct impact on the decision of the appointing Bank whether to employ such a person at all. We may not delve further into the liberal approach of the appellant itself when it did not think it fit to immediately take action against the respondent but wait till the decision of the criminal case. Be that as it may, once the Sessions Court convicted the respondent, the appellant issued the impugned notice dated 26.02.1980. It can, therefore, be safely presumed that if the Sessions Court itself had acquitted the respondent, the appellant would not have decided to terminate his services on this ground. So far as the notice dated 26.02.1980 is concerned, in the reply to the said show cause notice filed by the respondent, he had mentioned that an appeal was pending in the High Court against the said conviction. In that view of the matter, once the High Court ultimately acquitted the respondent for any reason with which strictly we are not concerned, the net result that follows is by the time the Labour Court decided the matter respondent was already acquitted and hence there remained no real occasion for the appellant to pursue the termination order. Consequently, that was a sufficient ground for not visiting the respondent with the extreme punishment of termination of service. But even that apart, though the conviction was rendered by the Sessions Court 20.02.1979, the show cause notice for the first time was issued by the appellant after one year i.e. on 26.02.1980 and thereafter the termination order was passed on 18.04.1983. That itself by the passage of time created a situation wherein the original suppression of involvement of the respondent in the prosecution for an offence under Section 307 of the Indian Penal Code did not remain so pernicious a misconduct on his part as to visit him with the grave punishment of termination from service on these peculiar facts of the case and especially when the Labour Court also did not Award any back wages to the respondent from 1983 till respondent's reinstatement by its order dated 29.09.1995 and one month thereafter and when the High Court also did not think it fit to interfere under Article 226 of the Constitution of India on the peculiar facts of this case. In our opinion, interest of justice will be served by maintaining the order passed by the Labour Court and as confirmed by the High Court subject to a light modification that the respondent may be treated to be fresh recruit from that date and will be entitled to be placed at the bottom of the revised scale of pay for Clerks and will also be entitled to other allowances which were available in the cadre of Clerks in the Bank's service. The respondent will be entitled to back wages with effect from 01.11.1995 i.e., from the date when the Labour Court awarded the reinstatement of the respondent. It also directed that the appellant Bank will work out appropriate back wages payable to the respondent from 01.11.1995 in the time scale of Clerks as available from 01.01.1988 treating his services to be continuous from that date and accordingly working out of his salary and emoluments on notional basis with usual increments from 01.01.1998 and actual arrears of pay and other permissible emoluments from 01.11.1995 till reinstatement of the respondent by the appellant. All such arrears will be paid to the respondent within a period of four weeks from 01.03.1999. The respondent who is present before us takes notice of this order and his counsel on his instructions states that the respondent will report for duty pursuant to the present order before the Regional Manager, Bank of Baroda, Northern Zone, Meerut on 01.03.1999. Learned counsel for the appellant agrees to the said course being adopted. The appeal will stand dismissed subject to the aforesaid modifications. I.A. No. 2 for passing order under Section 17B of the Industrial Disputes Act will not survive in view of the present order. We make it clear this order of ours is rendered on the peculiar facts and circumstances of the case as mentioned earlier and will not be treated as a precedent in future. There would be no order as to cost."
Further, in Ramratan Yadav's case (supra), this Court in paragraphs 3, 4, 5 and 7 said :
"(3) After the appointment in the Kendriya Vidyalaya as Physical Education Teacher, the petitioner was called upon to fill in an attestation form. In column 12(i), the petitioner mentioned 'No' instead of making mention of a pending criminal case against him in the Court of law. Petitioner did not mention about this fact as he did not understand the meaning of 'prosecution' or 'conviction' since his education was in Hindi. Therefore, petitioner submits that non-mention of pending persecution was absolutely bonafide and for the stated reasons, otherwise he had no intention to deceive respondents for obtaining service.
(4) Petitioner explains that there was unrest at Raipur Square (Jabalpur) where people were ventilating their grievances against the State Authorities qua non-grant of earthquake relief fund. Petitioner was a by stander, but was roped in by some of his friends who formed part of the mob. Suddenly, petitioner came to know that a case under Sections 323/341/294/506B read with Section 34, Indian Penel Code had been registered against him also. The case has since been withdrawn by the State Government, which means, it was realized by the State Government that persecution of persons involved in that incident was not desirable since they were ventilating their genuine grievances. This fact displays the bona-fides of the petitioner and supports his grievance that he had no intention to participate in this agitation in which he was taken by his friends.
(5) Respondents thought that the petitioner made suppression of this fact in the attestation form and terminated his service through memo dated 07/08.04.1999 (Annexure P-4). Tribunal has rejected the case holding that the defence taken by the petitioner could not be accepted since it did not inspire confidence, therefore, the employment secured by making false statement could be terminated. Learned counsel for the petitioner submitted that decision of the Tribunal is liable to be set aside since it did not appreciate the controversy properly, legally and in consonance with the principles of justice. Genuine defence put up by the petitioner has been rejected without justification. Assuming the petitioner was party to the agitation relating to which a criminal case was initiated against him and others, the same did not involve moral turpitude, therefore, serious view of the same ought not to have been taken. Petitioner was able to secure service with great difficulty and he could do so by securing proper merit in the selection.
(7) Having considered the aforesaid submissions of learned counsel for parties, we are of the opinion that this writ petition deserves to be allowed.
Non-mention of pending criminal case in Column 12(i) of the attestation form can be for the reasons stated by the petitioner; more so when the criminal case in which the petitioner was involved, has been withdrawn by the State Government. That means, the case was not serious and involvement of agitators in it was found for justification, otherwise the case against them would not have been withdrawn. That apart it did not involve moral turpitude disqualifying the petitioner from seeking the employment."
And in the case of Jagdish Ram Sita Ram Sahu (supra), it is said in para 4 that :
"(4) After taking into consideration the facts of the cases against the petitioner and the judgments of acquittal passed we are of opinion that the services of petitioner should not have been terminated. Once the petitioner was acquitted, no further information was required. Moreover, the cases do not involve moral turpitude disentitling him from employment. Similar situation arose in W.P. No. 4191/1999, Ramratan Yadav v. Kendriya Vidyalaya Sangathan and others, decided on 25.07.2000. After considering the matter, following Apex Court judgment reported in 1999 AIR SCW 474, Regional Manager, Bank of Baroda v. Presiding Officer, Central Government Industrial Tribunal and another, the petition was allowed and respondents were directed to employ the petitioner from the date of initial appointment with consequential benefits. Present being the similar case, therefore, writ petition is allowed. Order of State Administrative Tribunal dated 25.03.2000 is set aside. Respondents are directed to employ the petitioner against post he was holding before termination from same date with consequential benefits."
Besides, one more decision of High Court of Gauhati in the case of Har Kumar Das v. Bharat Petroleum Corporation Limited and others, AIR 2000 Gau. 123, is brought to our notice.
8. Shri Virendra Verma, learned counsel appearing for respondent 2 submitted that appellant did not make mention of the three criminal cases pending against him in which charges have been framed, therefore, he suppressed material information in the form/affidavit since he ought to have given information about other criminal offences besides offences involving moral turpitude/economic offences. Shri R.N. Singh, learned Senior Advocate appearing for respondent 1, submitted that question for consideration is whether the appellant was eligible on the date of application. Three criminal cases were pending against him when he applied on 14.06.1998 pursuant to advertisement dated 31.12.1997. Interviews were held on 16.03.1999. Complaint was made by Rajesh Agarwal, husband of Mr. Jyotsana Agarwal on 07.04.1999 to the Oil Ministry that the appellant concealed information with regard to three criminal cases pending against him. These criminal cases were (T) No. 159/96 under Sections 147/332/350/420 Indian Penal Code decided on 15.11.1999, (2) No. 326/98 under Sections 294/325/506B Indian Panel Code decided on 11.06.1999 and (3) No. 101/96 under Sections 147/323/149/307/149 Indian Penal Code decided on 31.08.1999. Therefore, all these cases were pending on the date of application for selection. Accordingly, there could be no allotment in favour of the appellant. Consequently, allotment in favour of respondent 3 is justified. Reliance is placed on Apex Court decision in Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav, (2003) 3 SCC 437 and this Court decision in Arun Dixit v. Chairman and M.D., B.P.C.L., 2002(2) MPLJ 125. In K.V.S. v. Ram Ratan Yadav (supra), the Apex Court said in paragraph 11 that :
"(11) It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506B read with Section 34, Indian Penal Code was pending on the date when the respondent filed the attestation form. Hence, the information given by the respondent is against columns 12 and 13 as "No" is plainly suppression of material information and it is also a false statement. Admittedly, the respondent is holder of BA, B.Ed and M.Ed degrees. Assuming even his medium of instruction was Hindi throughout, no prudent man can accept that he did not study English language at all at any stage of his education. It is also not the case of the respondent that he did not study English at all. If he could understand Columns 1-11 correctly in the same attestation form, it is difficult to accept his version that he could not correctly understand certain English words, in the ordinary course he could have certainly taken the help of somebody. This being the position, the Tribunal was right in rejecting the contention of the respondent and the High Court committed a manifest error in accepting the contention that because the medium of instruction of the respondent was Hindi he could not understand the contents of Columns 12 and 13. It is not the case that Columns 12 and 13 are left blank. The respondent could not have said "No" as against Columns 12 and 13 without understanding the contents. Subsequent withdrawal of criminal case registered against the respondent or the nature of offences, in our opinion, were not material. The requirement of filling Columns 12 and 23 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service."
Similarly, this Court said in the case of Arun Dixit (supra), in para 11 that :
"(11) Mere perusal of aforequoted clause would show that it provides for a disqualification. In other words, it is in the nature of disqualification for a candidate. It says that in case, if it is found that candidate who has applied for dealership is convicted for a criminal offence involving moral turpitude or is convicted for any economic offence, or against the said candidate even a charge of any criminal or economic offence involving moral turpitude have been framed by any criminal Court, then such candidate would be disqualified and ineligible to apply. The clause further says that if after a grant of dealership the company comes to know that any candidate has suppressed such information from the company at the time of grant, then the dealership granted to him will be cancelled. The candidates coming from freedom struggle category is kept as an exception."
9. Before adverting to the crucial question involved for determination in this case, it is necessary to make mention of eligibility criteria for award of dealership/distributorship under open category. Clause 11 of the criteria envisages that :
"Conviction :
Candidates convicted for any criminal offence involving moral turpitude and/or economic offence (other than Freedom Struggle) and those against whom charges have been framed by the Court (other than Freedom Struggle) would not be eligible for dealership/distributorship and if such a person is allotted the dealership/distributorship by suppression of information, it will be cancelled."
Further, Clause 20 requires information to be furnished. It reads as under :
"Have you ever been convicted or, are there any proceedings pending against you in a Court of law for any criminal offence involving moral turpitude and/or economic offence (other than freedom struggle) or are there any charges framed by the Court against you ? If so, please give details thereof. If not please attach affidavit as per appendix 'A'."
Clause 7 of Appendix-A1 reads thus :
"That there are no charges framed against me by any Court of Law (other than freedom struggle), and/or I have never been convicted for any criminal offence involving moral turpitude and/or economic offence (other than freedom struggle) punishable under law."
10. Advertisement dated December 31, 1997, published from Satna in daily Nav-Swadesh provides in Clause 5 that :
os mEehnokj tks fdlh izekf.kd nks"k@vkijkf/kd xfrfof/k;ksa esa layXu gksa ;k fdlh uSfrd Hkz"Vkpkj@vkfFkZd vijk/k dk eqdnek@Lora=rk laxzke lsukuh ds vykok@muds fo:) py jgk gks vkosnu ;ksX; ugha gSaA Affidavit dated 14.06.1998 furnished by the petitioner records in paragraph 7 that :
fd esjs fo:) fdlh Hkh dkuwuh U;k;ky;@Lora=rk vkanksyu dks NksM+dj@us dksbZ vkjksi ugha yxk;s gS vkSj@;k ;g fd eq>s fdlh Hkh vkijkf/kd ekeys esa vfHk;qDr ugha Bgjk;k x;k gS ftlesa pfj= guu vkSj@;k vkfFkZd vijk/k@Lora=rk laxzke dks NksM+dj@'kkfey gS tks dkuwuh rkSj ij naMuh;
gSA Section-1--ELIGIBILITY CRITERIA FOR DEALERS/DISTRIBUTORS, ETC. of the Guidelines of the Indian Oil Corporation defines 'Conviction' in Clause I.I (ii) to mean 'conviction of a person for any criminal offence involving moral turpitude/been framed by the Court or charge-sheet has been filed' (other than freedom struggle)'. Clause 1.3 deals with disqualification. It envisages inter-alia that the candidate will be disqualified for the dealership/distributorship if he/she............. (vi) convicted by Court of law. ........ (xi) guilty of wilfully giving wrong information."
11. Giving description of all the essentials relevant to the controversy, we advert to the question posed for our consideration. Careful reading of the matter demonstrates that the appellant committed wilful suppression of information with regard to three criminal cases pending against him. The relevant date is the last date for submission of application in the advertisement. Candidate should be eligible on this date, therefore, contention that by the time enquiry was lodged against the appellant, he had been acquitted in the criminal cases cannot be accepted. The appellant knew very well that he had been charged in the three criminal cases. He did not make mention of that while submitting the application. Submission that he was required to furnish information with respect to offences involving moral turpitude/economic offences cannot be accepted if the relevant criteria is properly scrutinized. Requirement is those candidates who have been convicted for an criminal offence involving moral turpitude and/or economic offence (other than freedom struggle) and those candidates against whom charges have been framed by the Court (other than freedom struggle) would not be eligible for dealership/distributorship. In case of suppression, allotment is liable to be cancelled. Clause 11 of eligibility criteria speaks of two kinds of candidates, namely, those who have been convicted and those against whom charges have been framed by Court. In case allotment has been made by suppression of information, the same is liable to be cancelled. Clause 20 makes the position more clear and requires the candidate to state whether he has ever been convicted or, whether there are any proceedings pending against him in a Court of law for criminal offence involving moral turpitude and/or economic offence (other than freedom struggle), or, whether any charges had been framed by the Court against him ? If so, details thereof have to be given, otherwise file affidavit. Clause 7 of Appendix A-1 also envisages the two categories, namely, no charges are framed against the candidate by any Court of law, other than freedom struggle, and/or no conviction for any criminal offence involving the moral turpitude and/or economic offence (other than freedom struggle) punishable in law. Therefore, it is rightly submitted that candidate has to furnish information not only with respect to criminal offence involving moral turpitude and/or economic offence (other than freedom struggle) but also with respect to other criminal offences he is charged by the Criminal Court.
12. Conjoint reading of the above quoted clauses clearly stipulate that candidate is required to convey information to the authorities not only in respect of offence involving moral turpitude/economic offence but also in respect of other offence. He has to mention whether proceedings are pending against him, whether charge has been framed with respect to offence involving moral turpitude/economic offence and other offence. The eligibility is divided in two parts by 'or', therefore, the clauses are to be read disjunctively, rightly so interpreted by learned single Judge. This is the intention of eligibility criteria of respondents 1 and 2, so should be, otherwise a candidate proceeded against/tried/convicted may plead for allotment of dealership as against other candidates/individuals who are or have been maintaining clean and upright conduct, character and integrity, stating that offence against him did not involve moral turpitude and/or economic offence. Moral turpitude is anything done contrary to the justice, honesty, principle or good morals or depravity in the private and social duties which a man owes to his fellow men or to society in general, conduct which is inherently base, vile or depraved. Three criminal cases were pending against the appellant pointing out his participation. Intentionally, he avoided giving information of these three criminal cases with which he was charged. There is clear suppression of information, which has resulted in the cancellation of his candidature for dealership and he would not derive any benefit out of the acquittals in the three cases. The Apex Court decision in Ram Ratan Yadav's case (supra), is squarely applicable in this case. Therefore, suppression of information should result in the cancellation of his candidature for dealership.
13. No other point was urged.
14. Therefore, what emerges out of the aforesaid discussion is that the learned Single Judge has examined the matter quite comprehensively leaving no scope for interference. Consequently, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.