Karnataka High Court
Sri Santosh Shetty vs The Union Of India on 18 April, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.5849 OF 2018(S-DE)
BETWEEN:
SRI. SANTOSH SHETTY
S/O SRI. DATTATREYA SHETTY
AGED ABOUT 35 YEARS,
R/AT F.A.NO.490,
H.A.L. QUARTERS,
L.B.SHASTRINAGAR,
BENGALURU - 560 017.
...PETITIONER
(BY SRI. S.P. SHANKAR, SENIOR ADVOCATE FOR
SRI. KESHAVAMURTHY H.B., ADVOCATE)
AND:
1. THE UNION OF INDIA
DEPARTMENT OF DEFENCE PRODUCTION,
NO.104, SOUTH BLOCK,
NEW DELHI - 110
REP. BY ITS SECRETARY.
2. HINDUSTAN AERONAUTICS LIMITED
AIRCRAFT RESEARCH DESIGN CENTRE
DESIGN COMPLEX,
MARATHAHALLI POST,
BENGALURU - 560 037.
REP. BY ITS DEPUTY GENERAL MANAGER.
2
3. THE GENERAL MANAGER
HINDUSTAN AERONATICS LIMITED,
AIRCRAFT RESEARCH DESIGN CENTRE,
DESIGN COMPLEX,
MARATHAHALLI POST,
BENGALURU - 560 037.
4. THE GENERAL MANGER
FACILITY MANAGEMENT DIVISION
HINDUSTAN AERONAUTICS LIMITED
BENGALURU - 560 017.
....RESPONDENTS
(BY SRI. VENKATA SATHYANARAYANA, CGC FOR R1;
SRI. SRIRANGA S., SENIOR ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER OF DISMISSAL OF PETITIONER FROM SERVICE
DATED 04TH OCTOBER, 2017 ISSUED BY RESPONDENT NO.2
VIDE ANNEXURE-S AND CONFIRMATION OF ORDER OR
PUNISHMENT OF DISMISSAL FROM SERVICE DATED 17TH
JANUARY, 2018 VIDE ANNEXURE-W AND TO REINSTATE THE
PETITIONER IN INDUSTRIAL RELATION AND LEGAL SECTION
WITH SALARY ARREARS, CONTINUITY IN SERVICE AND ALL
CONSEQUENTIAL BENEFITS; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
In this writ petition, petitioner is assailing the order of dismissal dated 04th October, 2017 (Annexure-S) issued by the respondent No.2; and order of confirmation of dismissal dated 17th January, 2018 (Annexure-W); inter-alia sought for reinstatement of the petitioner into service.
2. The relevant facts for the adjudication of this petition are that the respondent-Hindustan Aeronautics Limited (for short, hereinafter referred to as 'HAL') has issued notification dated 09th September, 2009 (Annexure- A), inviting applications for several posts including for the post of Administration/Office/Commercial Trainee with qualification of University degree (i.e. BA., BSc, BBM etc) + Computer Knowledge). Pursuant to the same, the petitioner applied for the post of Administration/Office/Commercial Trainee, and was selected as per Provisional offer of Appointment letter dated 25th February, 2013 (Annexure-B). In terms of the 4 appointment made thereunder, the petitioner appointed to the post of Administration/Office/Commercial Trainee (C-5) in Aircraft Research & Design Centre, Design complex, HAL, Bengaluru dated 21st August, 2013 (Annexure-D). After completion of the probationary period, appointment of the petitioner was confirmed on 16th November, 2015 (Annexure-F). During the year 2016, the respondent-HAL has modified its Recruitment Rules. Thereafter, the respondent-HAL initiated Departmental Enquiry against the petitioner on the ground that, the petitioner though possessed higher qualification, has not disclosed the same at the time of appointment and accordingly, issued charge- sheet dated 14th March, 2016 (Annexure-H) stating that, the petitioner has suppressed his higher qualification during the recruitment process. Pursuant to the same, the petitioner has participated during the enquiry and the Enquiry Officer held that the charges leveled against the petitioner were proved as per enquiry report dated 05th 5 January, 2017 (Annexure-R). Thereafter, the petitioner made reply to the enquiry report to the Disciplinary Authority and on consideration of the same, the Disciplinary Authority has passed an order of punishment-dismissal of the petitioner dated 04th October, 2017 (Annexure-S) without notice or any compensation in lieu of notice under Order 27(a)(vi) of the Certified standing order of the respondent-HAL. The petitioner made appeal to the Appellate Authority and the Appellate Authority after the considering the same, by order dated 17th January, 2018, (Annexure-W) confirmed the order of the Disciplinary Authority. Being aggrieved by the same, the petitioner has presented this writ petition.
3. Heard Sri S.P. Shankar, learned Senior counsel on behalf of Sri. Keshavamurthy H.B., appearing for the petitioner; Sri. Venkat Sathyanarayana, learned Central Government Counsel appearing for the respondent No.1; 6 and Sri. Sriranga S., learned Senior Counsel on behalf of Sri. Sumana Naganand, appearing for respondents 2 to 4.
4. Sri. S.P. Shankar, learned Senior Counsel appearing for the petitioner contended that the petitioner has been appointed for the post of Administration/Office/Commercial Trainee based on the eligibility criteria mentioned in the Notification. The specific contention of the learned Senior Counsel is that the Notification was unconditional and did not insist to indicate all qualification possessed by the candidate and therefore, the petitioner has not mentioned the higher qualification that he had while making application to the respondent- HAL. The petitioner has not made any false declaration in Bio-Data and the respondent No.2 issued the charge sheet willfully making false allegation against the petitioner raising dispute about qualification. Accordingly, he sought for interference of this Court. He further contended that the petitioner has not committed any misconduct while 7 seeking incorporation of the additional qualification as the petitioner had met the eligibility criteria as mentioned in the advertisement. Therefore, he pleaded that there is no breach of standing order/rules/any law applicable to the respondent-HAL. He further contended that the enquiry conducted by the respondent-HAL is contrary to the standing orders of the respondent-HAL and therefore, sought for setting aside the impugned orders of the respondent-HAL. He referred to the Standing Orders produced at Annexure-J, particularly, clause 25(35) and argued that there is no false declaration made by the petitioner regarding his age, qualification and experience or physical fitness to the respondent-HAL. To buttress his contentions, Sri. S.P. Shankar, learned Senior Counsel appearing for the petitioner relied upon the judgment of Hon'ble Apex Court in the case of K. MANJUSREE vs. STATE OF ANDHRA PRADESH AND ANOTHER reported in AIR 2008 SC 1470 and argued that the respondent-HAL 8 cannot alter the rules of the game after appointing the petitioner to the post advertised. In this aspect, he referred to the modified recruitment rules 2013 dated 04th February, 2016 (Annexure-G) and argued that there is no misconduct on the part of the petitioner. Nextly, Sri. S.P. Shankar, learned Senior Counsel appearing for the petitioner has relied upon the judgment of Hon'ble Apex Court in the case of RANJIT THAKUR vs. UNION OF INDIA AND OTHERS reported in AIR 1987 SC 2386 and argued that the imposition of punishment, removing the petitioner from the service is disproportionate to the allegation made against the petitioner and he further contended that the irrationality and perversity on the part of the respondent-HAL are liable to be interfered with by exercising the judicial review. Emphasizing on these aspects Sri. S.P. Shankar, learned Senior Counsel relied upon the judgment of Hon'ble Apex Court in the case of OM KUMAR AND OTHERS vs. UNION OF INDIA reported in 9 (2001)2 SCC 386. Elaborating his submission on the point of application of wednesbury rules to the facts on hand, it is submitted that removal of the petitioner from service is contrary to rules. He further argued that possessing higher qualification is not a ground to remove the petitioner from the service and it is a discretion to be exercised by the respondent-HAL and in this regard, he referred to the judgment of Hon'ble Apex Court in the case of PUNEETH SHARMA AND OTHERS vs. HIMACHAL PRADESH STATE ELECTRICITY BOARD LIMITED AND ANOTHER made in Civil Appeal No.1318-22 of 2021 disposed of on 07th April, 2021 and accordingly sought for interference of this Court.
5. Per contra, Sri. Sriranga S., learned Senior Counsel appearing for respondents 2 to 4-HAL invited the attention of Court to the application made by the petitioner along with Bio-Data produced at page No.94 of the writ petition, particularly, with regard to Clause 14 and argued that the petitioner had declared that he did not possess any 10 other qualification nor pursuing any other course and therefore, he contended that the petitioner has committed a misconduct by suppressing the true factual aspect that he had a qualification of LLB and LLM. Sri. Sriranga S., learned Senior Counsel invited the attention of Court to Admit card for written test issued by the respondent-HAL produced at page No.97 of the writ petition and contended that Clause 4 to the Admit card stipulates that the candidates possessing qualification higher than the qualification prescribed for the post are not eligible to appear for the written test. In addition to this, he referred to the undertaking made by the petitioner, wherein the petitioner has declared that he has not acquired any higher qualification and accordingly, he submitted that the petitioner has committed misconduct by willfully making false declaration regarding his qualification. He also contended that the entire departmental proceedings have been conducted by following the principles of natural justice and the standard of proof in a disciplinary 11 proceedings is preponderance of probabilities and therefore, argued that this Court is having limited jurisdiction to interfere with the finding recorded by the disciplinary authority and as such, sought for dismissal of the writ petition. To buttress his arguments, Sri. Sriranga S., learned Senior Counsel relied upon the following judgments:
1) CENTRAL INDUSTRIAL SECURITY FORCE AND OTHERS vs. ABRAR ALI reported in (2017)4 SCC 507;
2) UNION OF INDIA AND OTHERS vs. V.P. GUNASEKARAN reported in (2015)2 SCC 610;
3) KERALA SOLVENT EXTRACTIONS LTD. vs. A. UNNIKRISHNAN AND ANOTHER reported in (2006)13 SCC 619;
4) AVTAR SINGH vs. UNION OF INDIA AND OTHERS reported in (2016)8 SCC 471;
5) CHIEF MANAGER, PUNJAB NATIONAL BANK AND ANOTHER vs. ANIT KUMAR DAS reported in 2020 SCC OnLine SC 897.12
6. Insofar as the contention regarding proportionality of punishment, Sri. Sriranga S., learned Senior Counsel referred to the following judgments:
1) ADMINISTRATOR, UNION TERITTORY OF DADRA AND NAGAR HAVELI vs. GULABHIA M. LAD reported in (2010)5 SCC 775;
2) K. SIPPE GOWDA vs. HIGH COURT OF KARNATAKA AND OTHERS made in Writ Appeal No.4203 of 2011 disposed of on 17th August, 2021.
7. In the light of the submission made by learned counsel appearing for the parties, I have carefully examined the Notification dated 09th September, 2009 (Annexure-A) whereby, the respondent-HAL invited applications from eligible candidates for various posts including the post of Administration/Office/Commercial Trainee. The relevant qualification for Administration/Office/Commercial Trainee is, having University Degree (i.e., BA, BSc., BBM etc) + Computer Knowledge. The petitioner was appointed as per provisional offer of appointment dated 25th February, 2013 13 (Annexure-B). As per letter dated 16th November, 2015 (Annexure-F), the respondent-HAL has issued order of confirmation of appointment in the post of Assistant-B (Admin) (Scale C-5) in Human Resource Department. On perusal of Admit card dated 31st December, 2012 for written Test, wherein clause 4 reads as under:
"Candidate possessing qualification higher than the qualification prescribed for the post are not eligible to appear for the written test"
8. Pursuant to the same, the petitioner has filed undertaking dated 20th January, 2013 particularly at Paragraph 3, which reads as under:
"3. I declare that the information i.e., Name, Date of Birth, Educational Qualification, Percentage of Marks in the qualifying examination, Category, Experience etc., provided by me in the application for the above post is true to the best of my knowledge and belief. I also declare/confirm that I have not acquired higher qualification such as Diploma/Graduation in Engineering/Post Graduate Degree etc., I understand that furnishing of false information or suppression of factual information would be a disqualification of my candidature 14 and if at any stage of verification it is found that I do not meet with any of the notified criteria I am liable for termination of appointment in HAL."
9. Perusal of the Bio-Data furnished by the petitioner would indicate that the petitioner has passed SSLC in the year 1999, PUC in the year 2001, BA (Karnataka University) in 2004 as per the Bio-Data dated 21st August, 2013. As per Appendix-G (Page No.110) of the writ petition, the petitioner made a representation to the respondent-HAL stating that he possessed the qualification of Post Graduate Diploma in Human Resource Management at Bangalore University during the year 2010-11, LLB at Karnataka University in 2008-09 and LLM at Kuvempu University in 2014-15 and requested the respondent-HAL to incorporate the above qualifications in his personal records. Having considered the same, respondent-HAL had come to a conclusion that the petitioner has falsely declared in the Bio-Data as well as the declaration (undertaking) that, he did not possess any other qualification. Clause 25(35) of 15 the Standing orders of the respondent establishment reads as under:
"25(35) Willfully making false declaration regarding age, qualification and experience in the application for appointment, or when Physical fitness examination record is being made or at any other time."
10. Taking into consideration the aforementioned Rules of the Standing order, the respondent-HAL issued charge sheet dated 14th March, 2016 (Annexure-H) alleging that the petitioner has concealed the higher qualification that he had possessed, at the time of recruitment and as well as during employment with the respondent-HAL. Pursuant to the same, the respondent-HAL has ordered for Departmental enquiry as per Annexure-K to the writ petition. The Enquiry Officer, after considering the material on record, arrived at a conclusion that the charges leveled against the petitioner are proved as per the Enquiry Report dated 05th January, 2017 (Annexure-R). Thereafter, second Show-cause Notice was issued to the petitioner by the 16 Disciplinary Authority on 19th January, 2017 (Annexure-Q). After considering the reply made by the petitioner, the Disciplinary Authority, by its order dated 04th October, 2017 (Annexure-S) imposed punishment of "Dismissal without Notice or any compensation in lieu of Notice" under Order 27(a)(vi) of the certified standing order. The petitioner has filed appeal against the order of Dismissal as per Annexure- U and the appellate authority, after considering the material on record, by its order dated 17th January, 2018 (Annexure- W), confirmed the order passed by the Disciplinary Authority. In the backdrop of these aspects, the two-fold submission made by learned Senior Counsel appearing for the petitioner that the entire finding recorded by the Enquiry Officer is contrary to law and the imposition of punishment is disproportionate to the charges leveled against the petitioner. Perusal of the writ papers would indicate that the petitioner has not alleged anything about the violation of principles of natural justice by the Enquiry 17 Officer during disciplinary proceedings. Fair opportunity has been extended to the petitioner. The petitioner has falsely stated in the Bio-Data and in the undertaking, duly signed by him at the time of written test that he did not possess any other qualification. It is to be noted that, looking into the qualification specified at Sl. No.7 of the Notification dated 09th September, 2009 (Annexure-A), the petitioner has passed the LLB in the year 2008-09, completed Post Graduate Diploma in Human Resource Management in the year 2010-11 and Passed LLM in the year 2014-15. Undoubtedly, the petitioner possessed LLB qualification prior to the date of submission of his Bio-Data i.e., on 15th September, 2009. Possessed Post Graduate Diploma in Human Resource Development in the year 2010- 11, which was prior to the date of signing the Admit card and undertaking given by the petitioner at the time of written test on 20th January, 2013. Pursued the LLM course at the time of working in respondent-HAL and therefore, the 18 petitioner has suppressed these aspects acquiring higher qualification at every stage of recruitment and hence, I am of the view that the petitioner has not made out a case for interference in this writ petition. Though the learned Senior Counsel appearing for the petitioner referring to the judgments contended that acquiring the higher qualification possessed by the petitioner cannot be treated as a disqualification to the post for securing employment in terms of the advertisement as well as the application of wednesbury principle to the facts on record, I do not find any merit in the submission made by learned Senior Counsel appearing for the petitioner in the facts and circumstances of the case narrated above. It is well settled principle in law that the scope of the judicial review with regard to findings of disciplinary authority is very limited and in this regard Hon'ble Apex Court in the case of CENTRAL INDUSTRIAL SECURITY FORCE AND OTHERS vs. ABRAR ALI (supra) at paragraph 13 to 16 held as under: 19
"13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of 20 natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C.Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana, and High Court of Judicature at Bombay v. Shashikant S. Patil."
15. In Union of India & Ors. v. P. Gunasekaran this Court held as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person
13.could ever have arrived at such conclusion;21
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
16. We are in agreement with the findings and conclusion of the Disciplinary Authority as confirmed by the Appellate Authority and Revisional Authority on Charge No. 1. Indiscipline on the part of a member of an Armed Force has to be viewed seriously. It is clear that the Respondent had intentionally disobeyed the orders of his superiors and deserted the Force for a period of 5 days. Such desertion is an act of gross misconduct and the Respondent deserves to be punished suitably." 22
11. In the case of KERALA SOLVENT EXTRACTIONS LTD. vs. A. UNNIKRISHNAN AND ANOTHER (supra) at paragraphs 3, 5 and 10 reads as under:
"3. The appellants challenges the order dated 4thy June, 1993 passed by the High Court of Kerala at Ernakulam in Writ Appeal No. 269 of 1993. The proceedings relate to the empanelling of 'badli' workmen. One of the conditions for eligibility for appointment was that the educational qualification of the candidates should not be more than the 8th Standard. Respondent produced a certificate issued by the School authorities to the effect that he had passed the 7th Standard on 15.5. 1974. The purpose of this was to show that his qualifications were not more than the 8th Standard. He, accordingly, succeeded in having himself empanelled as a 'badli' workman. On receiving certain complaints that the respondent had secured employment by suppression of truth and by false representation, the appellant issued a show-cause notice to the respondent asking as to why action should not be taken against him under the standing orders. In reply the respondent admitted that he had completed 10th Standard and pleaded for sympathy. On 3.3.1989, the appellant terminated the services of the respondent for fraudulent misrepresentation.
4. XXXX 23
5. In the appellant's writ petition preferred against the award, the learned Single Judge of the High Court rightly disapproved the above view of the Labour Court and said:
...Workers were expected to give correct information as to their qualification. They failed to do so. They were in fact over qualified and therefore ineligible to apply for the job. It has been stated that applications received from some overqualified candidates were rejected. The petitioner as also the workers are bound by the terms of Ext. PI which had to be given effect to. Over qualification is certainly, in the circumstances, a disqualification, which aspect the first respondent failed to grasp. Ext. P10 in these cases is unsustainable and is accordingly set aside.
6. XXXX
7. XXXX
8. XXXX
9. XXXX
10. We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate 24 logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
12. In the case of CHIEF MANAGER, PUNJAB NATIONAL BANK AND ANOTHER vs. ANIT KUMAR DAS (supra) at paragraph 22 and 23 reads has under:
"22. Even on the ground that respondent - original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent - original writ petitioner to discharge his duties as a Peon. In the application/biodata, the respondent original writ petitioner did not mention that he was a graduate. Very cleverly he suppressed the material fact and declared his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter when scrutiny of the documents was going on and when the respondent - original writ petitioner produced a graduation certificate, at that time, the bank came to 25 know that he was a graduate and therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to have allowed the writ petition when it was a clear case of suppression of material fact by the original writ petitioner. An employee is expected to give a correct information as to his qualification. The original writ petitioner failed to do so. He was in fact overqualified and therefore ineligible to apply for the job. In fact, by such conduct on the part of the respondent -original writ petitioner, one another righteous candidate has suffered for his mischievous act. As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false statement has a clear bearing on the character and antecedents of the employee in relation to his continuance in service. A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service. Thus, on the ground of suppression of material information and the facts and as the respondent - original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement which was as per Circular letter No. 25 of 2008 dated 06.11.2008, the bank rightly cancelled his candidature and rightly did not permit him to resume his duty.26
23. On reading the judgment and order passed by the learned single Judge it appears that the learned single Judge has not at all considered the aforesaid aspect of suppression of material fact and information. So far as the impugned order passed by the Division Bench of the High Court, as such it is a non-speaking and unreasoned order, without even stating any facts."
13. Applying the above principles laid down by the Hon'ble Apex Court to the facts on record, the petitioner made a fraudulent representation prior to securing employmen with the respondent-HAL, which is evident from the undertaking given by the petitioner.
14. In the case of AVTAR SINGH vs. UNION OF INDIA AND OTHERS (supra) Paragraph 35 to 38.11 reads as under:
35. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in 27 service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
36.. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
37. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.28
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. 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 :-
38.4.1. 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.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. 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 29 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.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.30
38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed.
If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
15. It is also relevant to cite the judgment of Hon'ble Apex Court in the case of CHAIRMAN & MANGING DIRECTOR, V.S.P. AND OTHERS vs. GOPARAJU SRI PRABHAKARA HARI BABU reported in (2008)5 SCC 569, wherein in at paragraph 18 to 21 reads as under: 31
"18. It was observed that judicial admissions can be made the foundation of the rights of the parties.
19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings.
20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others; State of Bihar & Ors. v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Ameerbi & Ors; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors; and Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi]
21. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."32
16. The Division Bench of this Court in the case of K. SIPPE GOWDA (supra) at paragraph 9 and 10 reads as under:
"9. We have considered the rival submission made on both sides and have perused the record. Before proceeding further, we may refer to the well settled principles with regard to scope of judicial review of interference with the disciplinary proceeding. In 'STATE OF ANDHRA PRADESH ORS VS. S. SREE RAMA RAO', AIR 1963 SC 1723 it was held that high court in a proceeding under Article 226 of the Constitution of India does not sit as a court of appeal over the decision of the authorities holding a departmental enquiry. It is only concerned to determine whether the enquiry. It is only concerned to determine whether the enquiry held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice have been followed. It has also been held where there is some evidence which the authority entrusted with the duty of holding an enquiry has accepted and which may support the conclusion. It is not the function of the high court to review the evidence and to arrive at an independent finding on the evidence. Similar view was reiterated in 'B.C CHATURVEDI VS. UNION OF INDIA AND ORS.,' (1995) 6 scc 749. In 'HIGH COURT OF JUDICATURE AT BOMBAY THROUGH ITS REGISTRAR VS. SHASHIKANTH S. 33 PATIL AND ANOTHER,' (2000) 1 SCC 416, it was held that interference with the decision of the departmental authorities is permitted if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations providing the mode of departmental enquiry. [Also See: PRAVIN KUMAR VS. UNION OF INDIA, (2020) 9 SCC 471].
10. In 'STATE BANK OF BIKANER AND JAIPUR VS. NEMICHAN NALWAYA,' (2011) 4 SCC 584, it has been held that no interference shall be made in a disciplinary proceeding on the ground that another view is possible on the basis of material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of evidence and reliable nature of evidence will not be a ground for interfering with findings. In 'STATE OF BIHAR VS. PHULPARI,' (2020) 2 SCC 130, it has been held that standard of proof in the criminal proceeding and the departmental enquiry is different. In criminal case, the standard of proof is beyond reasonable doubt, whereas in the departmental enquiry the charges have to be proved on the basis of preponderance of probabilities.
17. Following the aforementioned judgments relating to the issue involved in this writ petition, it is made clear that the petitioner has suppressed the higher qualification possessed by him at the time of making application with 34 Bio-Data and in that view of the matter as respondent-HAL has proved the charges leveled against the petitioner. Suffice to say that this Court is having limited jurisdiction to interfere with the punishment imposed by the respondent- HAL after evaluation of the arguments advanced by learned counsel appearing for the parties and in the light of the law declared by Hon'ble Apex Court in the case of STATE OF KARNATAKA AND ANOTHER vs. UMESH reported in (2022)6 SCC 563. Therefore, I do not find any merit in the writ petition, accordingly, writ petition fails.
SD/-
JUDGE ARK