Madhya Pradesh High Court
Laxmi Narayan Bajpai vs State Of M.P. And Ors. on 24 June, 2004
Equivalent citations: 2004(3)MPHT312
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. The petitioner, a Graduate and holder of a certificate in Draughtsman Trade from Industrial Training Institute, Rewa, appeared in the examination for appointment on the post of Draughtsman and was declared to have qualified. Ex-consequence, he was appointed as an Assistant Draughtsman in the Department of Water Resources (formerly known as the 'Irrigation Department') on 1-8-1980 as a daily wager. He continued as a Daily Wager till the first year of the last decade of the last millennium without any break in service. A certificate issued to that effect by the Executive Engineer has been brought on record as Annexure A-1.
2. According to the writ petitioner, on the basis of various circularsthat came into force as policy decisions by the State Government, his case wasconsidered for the purpose of regularisation and eventually on 16th April, 1990vide Annexure A-2, his services stood regularised. It is asserted that throughout the service career, the petitioner had an unblemished record and enjoyedthe confidence of his authorities and his work was absolutely satisfactory.While he was having this benefit on 28-8-1992, his services were terminatedon the foundation that his services were no longer required by the Department.It is urged that no show-cause notice was issued and the impugned order oftermination came to be passed in flagrant violation of the principles of naturaljustice. It is also the case of the petitioner that when juniors were retained andthe petitioner was asked to leave, the basic principle of first come, last go wasnot kept in mind. It is averred that the authorities could not have taken suchan action as it violates the M.P. Civil Service (Temporary & Quasi Permanent)Rules. As pleaded, a representation was submitted to the authority but thesame was not paid heed to and sphinx like silence was maintained by theauthorities. With this assertion, prayer has been made for quashment of theorder of termination and for issue of a writ of mandamus for his reinstatement.
A counter affidavit has been filed by the answering respondents, contending inter alia, that on the basis of circulars issued by the State Government from time to time, the Screening Committee considered the case of the petitioner for regularisation and for the purpose of the same, he was provided a form contained in Annexure R-1 to be filled in by him. In the column 12 (ka), the petitioner was required to give correct information regarding pendency of the criminal case or any criminal case lodged against him at any point of time. While filling up the said verification clause, the petitioner replied in the bald negative. On verification, it came to the knowledge of the authorities that the petitioner was involved in an offence punishable under Sections 395 and 397 of the Indian Penal Code in Criminal Case No. 106 of 1977. As the petitioner had suppressed the said information, the authorities terminated his services on the basis of the condition precedent enshrined in the form, which lays a postulate that in the event of finding that an incorrect information had been provided by the incumbent, he would be visited with the order of termination. This was also reiterated in the letter of appointment.
3. I have heard Mr. Dwivedi, learned Counsel for the petitioner and Mr. S.K. Yadav, learned Government Advocate. Though Mr. Dwivedi, learned Counsel for the petitioner initially submitted with regard to non-compliance of the principles of natural justice, eventually abandoned the same as he could realise the facts are tell tale and this Court can afford an opportunity of being heard and determine the matter. After abandoning the aforesaid submission, which was really feebly put, the learned Counsel propounded that the petitioner was under an erroneous impression and conceived a notion that as he was acquitted prior to his engagement as a daily wager on 18-5-1979, as per Annexure A-7, he could put forth the information in the negative. Developing the said submission, Mr. Dwivedi submitted that had the answer been in the positive, there would not have been any effect or impact as there could not have been any change in the scenario inasmuch as the acquittal in the criminal case had washed all the dirty linen against the petitioner and he could not have been punished for an act that had not been proved to be committed as the judgment on the criminal case clearly records. It is proponed by Mr. Dwivedi that the crime had been registered under Section 395/397, which may, on the first flush look loathsome, but on a proper scrutiny it is observable that the charge has to be on the path of declivity, for the inherent triviality of the allegations. Incrementing the said submission he has put forth that as an actual fact in an agitation by students, the petitioner was roped in alleging that all the accused had broken glass windows of a shop. The learned Counsel has demonstrated the said aspect from the judgment passed by the Criminal Court. It is urged by him that the ghost of the past should not haunt the torment the petitioner and follow like a shadow throughout life till the body pales into death.
4. Combating the aforesaid submission of Mr. Dwivedi, Mr. S.K. Yadav, learned Government Advocate submitted that the petitioner was required to fill up the form in appropriate manner as such was the mandate in the form and that having been violated, the order of termination can not be flawed. It is canvassed by him, the gravity of the charge or the inconsequentiality of the incident is of no concern but the conduct of the petitioner in suppressing the same has a tremendous effect in service jurisprudence, the significance of which can never be marginalised. To strengthen the aforesaid submission, the learned Government Advocate placed heavy reliance on the two Judge Bench decision rendered by the Apex Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav [(2003) 3 SCC 437].
5. At the very outset, it is condign to state that there is no factual dispute in the case at hand. The facts being admitted by the learned Counsel for the parties, what really arises for consideration is whether the answer in the bald negative would warrant an order of termination of the petitioner who had put in 12 years of service. In the case of Ram Ratan Yadav (supra), the employee had answered in the bald negative. He had approached the Central Administrative Tribunal and taken the plea that he had not understood the same as he was not well conversant with English language. The Tribunal did not interfere by observing that the Courts/Tribunals have not to pat a person on his shoulders in a case where he is making a false case to the authorities concerned for obtaining employment. The matter travelled to this Court and a Division Bench of this Court over- turned the order passed by the Tribunal on the ground that the medium of instruction in the State is Hindi and the offences in question did not involve moral turpitude disqualifying the petitioner from seeking employment. Assailing the order of reversal, the employer moved the Apex Court and Their Lordships in Paragraphs 11 and 12, the Apex Court stated as under :--
"11. It is not in dispute that a criminal case registered under Sections 323, 341, 294, 506B read with Section 34, IPC was pending on the date when the respondent filled the attestation form. Hence, the information given by the respondent as 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 B.A., 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 the contents of columns 12 and 13. Even otherwise, if 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 13 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.
12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information can not claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in Para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature of gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case, the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a Teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in up-setting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief, if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version can not be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned Counsel for the respondent that as per Para 9 of the memorandum, termination of service was not automatic, can not be accepted."
I have reproduced the aforesaid paragraphs to indicate that the law laid down in the case of Ram Ratan Yadav (supra) is distinguishable because of the obtaining factual matrix in the case at hand. In the present case, the petitioner was under the erroneous impression because of the order of acquittal in his favour. One thing what Their Lordships had observed is that the purpose of seeking information as per columns 12 and 13 was not to find out either the nature and gravity of the offence, or the ultimate result of the criminal case but to judge the character and antecedents of the employee to continue in service or not. Their Lordships have also expressed the view that the requirement was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. It is also noteworthy to state that Their Lordships have taken note of the factum of suppression of material information. In the case at hand, the petitioner had been acquitted even before he was appointed as a daily wager. H continued as a daily wager for 10 years and at that juncture, he was asked to fill up the form. The matter would have been different, had the petitioner entered into employment as a daily wager when the criminal case was pending. What might have been the disturbing antecedent in the year 1977 ceased to be one in 1979, there being an acquittal, a complete metamorphosis in the scenario. That apart, had the petitioner stated the aforesaid fact, it would not have affected his continuance in service. True it is, the petitioner should have, in all propriety, stated that he was proceeded against in a criminal case and eventually acquitted before he filed an application for the post of daily wager. This may be a non- mention of a fact but it would not tantamount to a plain suppression of material information to keep the authorities in total darkness and blindfold them to the antecedents of the petitioner to gain an advantage. Indubitably, the petitioner did not want to gain any advantage by such non-mention. Mr. S.K. Yadav, learned Counsel fairly acceded that had the said factum been mentioned, the Department could not have proceeded against him as there had been no stigma attached even before the point of entry in service. In view of the aforesaid, I am of the humble view that the law laid down in the case of Ram Ratan Yadav (supra) is distinguishable.
6. The controversy can be perceived from another angle. The circumstances are such, I am obliged to state that doctrine of proportionality would get attracted in the present case. True it is, the form itself lays a condition that the services can be dispensed with. The right is lawfully there with the employer but in a given case, the absoluteness of power need not be exercised by imposing the greatest punishment. A lesser one may suffice to sub-serve the cause of justice. An employee who has worked for long and has been regularised should not be thrown to the streets because of a past event which has become a non-event in a way. To think of him in the streets reminds one the profound poetic pronouncement of William Blake :
"A dog starv'd at his master's gate, Predict the ruin of the State ......"
I am conscious the aforesaid has been told in extremes but in essence it has a message to convey. Hence, I am disposed to think that the order of termination contained in Annexure A-4 is not justified and accordingly, the same stands quashed.
7. I have dealt with the aspect of proportionality for the sake of completeness. But the same need not be taken recourse to as the petitioner has suffered enough and I am inclined to direct only reinstatement without payment of back wages. The petitioner shall be taken back in service within two months, without back wages.
8. Consequently, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.