Rajasthan High Court - Jodhpur
Manoj Ahir vs Avvn Ltd. & Anr on 29 November, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5516 / 2017
Manoj Ahir S/o Shri Nand Lal Ahir, Aged About 25 Years, Resident
of 42, Village Jhadoli, P.O. Salawatia, Tehsil Bijoliyan, District
Bhilwara.
----Petitioner
Versus
1. Ajmer Vidhyat Vitran Nigam Limited, Vidhyut Bhawan,
Makarwali Road, Pancsheel Nagar, Ajmer, Through Its Managing
Director.
2. The Secretary (Admn.), Ajmer Vidhyut Vitran Nigam Limited,
Vidhyut Bhawan, Makarwali Road, Pancsheel Nagar, Ajmer.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Lokesh Mathur.
For Respondent(s) : Mr. Mrigraj Singh.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 29/11/2017 The petition comes up on application filed by the respondents seeking vacation of the interim order granted by this court on 16.05.2017.
With the consent of the parties, the matter has been finally heard.
This writ petition has been filed by the petitioner aggrieved against the order dated 02.05.2017 (Annex.-9), whereby the appointment offered to the petitioner has been cancelled/withdrawn.
The petitioner applied for the post of Assistant Engineer (Electrical) being eligible for the said post, stood successful in the competitive examination and was offered appointment as Assistant Engineer (Electrical) vide order dated 01.02.2017 as probation trainee for two years on a fixed remuneration of (2 of 6) [CW-5516/2017] Rs.22,180/-. The petitioner was required to produce relevant certificates for document verification and file an affidavit giving out details pertaining to any criminal case registered against the petitioner.
Apparently, the petitioner filed an affidavit (Annex.-R/2), inter alia, leaving the columns pertaining to his conviction in any criminal case blank. Whereafter, on police inquiry vide Annex.-7, the police reported that in case No.78/2012, the petitioner was imposed with a fine by the Court for offences under Sections 279, 337, 338 IPC, which case was decided on 01.06.2013.
When the petitioner was not permitted to join, he gave an explanation vide Annex.-8 and also made representations in this regard. The respondents by impugned order dated 02.05.2017 (Annex.-9), came to the following conclusion:-
"The complete case i.e. relevant documents available in case file as well personnel submission made by Sh. Manoj Ahir, examined by the Managing Director, AVVNL, Ajmer & observed that the act of the incumbent of concealing/ suppressing material facts about his conviction for securing appointment on any post of managerial cadre cannot be permitted to join the organization, even the candidate has been specifically asked to submit the complete details regarding his conviction/ non-conviction. Sh. Manoj Ahir has not come with clean hands and intentionally concealed/ suppressed the material facts desired by the Nigam to obtain employment. Therefore, the offer of appointment given to Sh. Manoj Ahir on the post of Asstt. Engineer (Electrical), is liable to be cancelled/ withdrawn. Therefore, as per condition no. 18 of appointment order dated 01.02.2017 and decision taken by the Managing Director, AVVNL, Ajmer the appointment offered to Sh. Manoj Ahir is hereby cancelled/ withdrawn with immediate effect."
Feeling aggrieved, the present writ petition has been filed.
(3 of 6) [CW-5516/2017] By an interim order dated 16.05.2017, one post of Assistant Engineer (Electrical) was directed to be kept vacant.
It is submitted by learned counsel for the petitioner that the respondents were not justified in withdrawing the appointment offer, inasmuch as, the offence, for which, fine of Rs.1,700/- was imposed on the petitioner had no relation whatsoever with the working of the petitioner. Further submissions were made that the respondents have passed the order mechanically without even examining and/or considering the plea raised by the petitioner in this regard.
It was submitted that this Court in Prayag Raj Gocher v. Rajasthan Rajya Vidyut Prasaran Nigam Limited & Anr.: SBCW No.2718/2016, decided on 21.04.2017 at Jaipur Bench in similar nature writ petition, after considering the law laid down by Hon'ble Supreme Court in the case of Avtar Singh v. Union of India & Ors.: AIR 2016 SC 3598, has directed the respondents to reconsider the case in light of the judgment of Hon'ble Supreme Court.
Reliance was also placed on judgment in Vijay Pal Yadav v. Jaipur City Transport Services Ltd. Jaipur & Anr.: SBCW No.18178/2013, decided on 02.02.2017.
Learned counsel for the respondent-Company supported the order impugned. It was submitted that a bare look at the affidavit (Annex.-R/2) filed by the petitioner would reveal that the petitioner had suppressed the fact of his conviction by a criminal court and such suppression itself is sufficient for coming to the conclusion that the petitioner was not fit for being offered (4 of 6) [CW-5516/2017] appointment on the post of Assistant Engineer (Electrical). Submissions were also made that the offence, for which, the petitioner has been convicted, cannot be said to be petty offence so as to ignore the same and, therefore, the order impugned passed by the respondents does not call for any interference.
Reliance was placed on Division Bench judgment in Vinod Kumar v. Ajmer Vidhyut Vitran Nigam Limited & Ors.: DBSAW No.1555/2014, decided on 18.03.2015.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
Insofar as the fact of non-disclosure of petitioner's conviction by the criminal court for offences under Sections 279, 337 and 338 IPC and imposing fine of Rs.1,700/- is concerned, a bare look at the affidavit (Annex.-R/2) filed by the respondents, it is apparent that the petitioner had left the said affidavit totally blank, neither indicating that he has not been convicted by any criminal court nor indicating the particulars of the case, wherein he was convicted.
Hon'ble Supreme Court in the case of Avtar Singh (supra), on reference being made to it, after dealing with the various judgments on the subject, inter alia, came to the following conclusion:-
"(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:-
(5 of 6) [CW-5516/2017]
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious 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 appropriate decision as to the continuance of the employee."
A coordinate Bench of this Court in Prayag Raj Gocher (supra), dealt with a case of similar nature, wherein the petitioner was tried for offences punishable under Sections 279 and 337 IPC read with Sections 184, 134(1), 187, 121, 146/196 of the Motor Vehicles Act, 1988 and was released on probation for a period of one year and was asked to deposit cost of Rs.5,000/- and after referring to the judgments in Kamal Singh Meena v. U.O.I.: 2016 (3) WLC (Raj.), 687 and in the case of Avtar Singh (Supra) directed for reconsidering the case in terms of the law laid down.
So far as the judgment in the case of Vinod Kumar (supra) relied on by the learned counsel for the respondents is concerned, the said judgment in the case of Vinod Kumar (supra) was delivered at the time when judgment of larger Bench on reference of Avtar Singh (supra), was not available.
In view of the fact situation in the present case, wherein the petitioner was convicted with fine of Rs. 1700/- for offence pertaining to a road accident and the petitioner gave out (6 of 6) [CW-5516/2017] explanation for not indicating the said aspect in the affidavit submitted for the purpose of character verification, the impugned order has been passed by the respondents mechanically, only on account of such suppression.
Hon'ble Supreme Court in the case of Avtar Singh (supra) has required the employer to come to a conclusion that the suppressed offence if disclosed would have rendered the incumbent unfit for the post in question and /or the case in which conviction has been recorded is not trivial in nature, before passing an order of cancellation of candidature or termination of services.
As the order impugned has apparently been passed mechanically withdrawing the offer of appointment made to the petitioner, the same cannot be sustained.
Consequently, the writ petition filed by the petitioner is allowed, the order dated 02.05.2017 (Annex.-9) passed by the respondents is set aside, the matter is remanded back to the authority to pass a fresh order keeping in view the observations made hereinbefore and law laid down by Hon'ble Supreme Court in the case of Avtar Singh (supra) and this Court in the case of Kamal Singh Meena (supra).
The requisite exercise would be completed by the respondents within a period of three weeks and consequences on passing of the fresh order would follow.
(ARUN BHANSALI)J. PKS-37