Patna High Court
Indian Oil Corporation Limited And Ors. vs Neel Kamal Chanchal on 19 March, 2007
Equivalent citations: 2007(2)BLJR2289
Author: Rekha Kumari
Bench: Aftab Alam, Rekha Kumari
JUDGMENT Rekha Kumari, J.
Page 2290
1. This appeal is directed against the order dated 24.8.2004 passed in C.W.J.C. No. 3136 of 2003 by a learned Single Judge of this Court whereby the writ petition of the petitioner respondent has been allowed. The Appellant-respondent has filed the above writ petition for quashing the letter dated 12.3.2003 (Annexure-1 of the writ petition) issued by the appellant wherein the appellant's offer letter dated 18.1.2003 (Annexure-4 of the writ petition) to the respondent to the post of Operator-D Trainee (Power and Utility) was cancelled and withdrawn.
2. The admitted facts in this case are that the Indian Oil Corporation Limited (IOC)-appellant wanted to appoint some Operators-D grade (Power and Utility) in Barauni Refinery in the pay scale of Rs. 5400-10850 for which they require trainees who were to be appointed against the vacant posts after successful completion of six months training. The appellant, hence, notified about it to the employment exchange. The names of the respondent and several other candidates were sent. The respondent appeared at a written examination. He passed the same. He was called for interview by letter dated 16.12.2002. He attended the interview. At the time of interview he was required to fill up a declaration form. There was specific question therein as to whether the candidate had ever been arrested, prosecuted, kept under detention or fined, convicted by any court of law etc. The petitioner answered it as 'No'. There was also a column at the end meant for additional information, if any, but the respondent did not mention anything in this column. He participated in the interview and was selected for the appointment as a Trainee. The offer letter was issued to him to join the post of Operator-D Trainee on a consolidated stipend of Rs. 2500/- per month. The respondent reported to join on 17.2.2003. At the time of joining he was required to fill up certain forms including attestation form (Annexure-B to the counter affidavit of the writ petition). In that form there was a column as to whether any case was pending against the candidate in any court of law at the time of interview. The respondent filled up the column, as 'Yes'. The respondent along with others joined the post on 17.2.2003. They were directed to report to S.T.R.M. for undergoing six months' training. On 13.3.2003 he was handed over Annexure-1 by which the offer letter (Annexure-4 to the writ petition) was cancelled and withdrawn.
3. The grievance of the petitioner respondent in the writ petition was that the action of the appellant IOC was arbitrary, illegal; and that as no notice to show cause and no opportunity of hearing was provided to the petitioner-respondent before passing the order, the action of the I.O.C. is violative of the provisions of the Constitution and that once the offer was accepted, it could not have been cancelled or withdrawn.
4. The I.O.C. in its counter affidavit filed in the writ petition, submitted that the offer letter was provisional and was subject to character and antecedent being found satisfactory. On the date of joining itself, the petitioner-respondent submitted the attestation form from which it came to notice that a criminal case was pending against him. So in order to avoid delay and mitigate the hardship of the candidate, Page 2291 his joining was not accepted but he was provisionally allowed along with other candidates to report to S.T.R.M. for further instruction till the final decision was taken in his case. The petitioner respondent thereafter was called on various occasions to clarify further about the criminal case and for not disclosing the same in the declaration form, but he never replied to the questions. So as his antecedent was not found satisfactory and he did not satisfy the condition/norm of the offer letter, the offer letter was cancelled and withdrawn. No notice to show cause was required as the provision of Article 311(2) of the Constitution is not applicable in such case.
5. The learned Single Judge after hearing the parties, held that the I.O.C. did not pass any order of termination and after accepting the joining of the petitioner-respondent, it could not withdraw the offer of appointment, and as such the order of the I.O.C. was bad. He accordingly, quashed the order of the I.O.C. (Annexure-1) and allowed the writ petition. Hence, the appellant filed this Letters Patent Appeal.
6. Learned Counsel for both the parties were heard.
7. Learned Counsel for the appellant submitted that as the respondent suppressed a material information in the declaration as to whether he was prosecuted for any offence, he was guilty of suppressio vari and suggestio falsi vitiating the whole process of recruitment and thus, did not deserve any employment and the appellant was within its competence to cancel the offer of appointment.
8. In support of his submission he relied on the decision of the Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav and the case of A.P. Service Committee v. Koneti Venkateshwarulu 2005 Lab.I.C., 361.
9. He further submitted that the offer to the post of Trainee (Annexure-4) was subject to character and antecedent being found satisfactory. The government of India has also fixed criteria that any person falling in any of the following categories may be considered un-desirable for employment under government, and the criteria are applicable in a public sector undertaking also. The criteria are that "those against whom there is substantial evidence for participation in or association with any subversive or criminal activity, or such activities as may render them undesirable for public employment or are considered likely to affect their integrity and efficiency in service." Admittedly there was a criminal case pending against him in which he had been chargesheeted, affecting his character and antecedent and suitability for the post. So, he did not fulfil one of the conditions of offer and, therefore, the appellant was within its competence to cancel the offer.
10. He also contended that as the respondent did not disclose in the declaration form that he was prosecuted for any offence, so he was allowed to join the training. On the date of joining for the first time, in the attestation form he disclosed that a criminal case was pending against him. As per practice, procedure and the guidelines of the Company, in order to avoid delay whenever a group of candidates report for joining, some actions such as checking of original documents, attestation form etc., preparation of joining order, order providing accommodation, gate pass etc. and other actions are taken up simultaneously. So, though in the joining order, his name was included and he was given gate pass and arrangement for his accommodation was made and he was allowed to report to the S.T.R.M. for further instruction on detection of the criminal antecedent, immediately action was taken and Annexure-C Page 2292 series would show that he was stopped from doing any work from the next day and in spite of sufficient opportunity, when he did not clarify his position regarding criminal case as also non disclosure of the same in the declaration form, the offer of appointment was cancelled and withdrawn.
11. He contended that the offer letter would show that it was provisional. The joining order also does not show that the joining was accepted. The facts mentioned above, on the other hand, show that the joining was not acted upon. So, in the circumstances of the case, it cannot be said that the offer was accepted.
12. He further submitted that the cancellation or withdrawal of the offer of appointment does not cast any stigma and is also not a punishment. So, no notice or opportunity of hearing was required in this case. He relied on the decision of the Supreme Court in the case of Union of India v. Ratipal Saroj and Anr. 1998 Lab.I.C. 964 in this connection.
13. Learned Counsel for the respondent, on the other hand, submitted that as the offer of appointment was accepted, it could not have been withdrawn and, therefore, the order of the learned Single Judge was legal. He further submitted that mere pendency of a criminal case cannot be a bar to selection and appointment of a candidate to a post. In support of his submission he relied on a Division Bench decision of this Court in the case of Santosh Kumar Jha v. Union of India and Ors. 2002 (1) B.L.J., 249.
14. It is not in dispute that in the declaration form, there is a column in which an enquiry has been made from the candidate, as to whether he had ever been arrested, prosecuted, kept under detention or fined by the court of law for any other offence, and the respondent answered it as 'No'. The attestation form, however, shows that therein the respondent in a query as to whether there was any criminal case pending against him at the time of filling up the form, he answered it in the 'affirmative'. The contention of the learned Counsel for the appellant, hence, is that the respondent suppressed a material information that he was prosecuted for any offence.
The respondent, in reply to the counter affidavit of the appellant to the writ petition, explained that on account of misunderstanding he had answered the question in 'negative' in the declaration form. The explanation appears to be un-tenable. The attestation form shows that there are separate independent columns therein seeking information regarding arrest, prosecution though in answer to the information as to whether any case was pending against him in any court of law, he replied it in affirmative in the column wherein it is mentioned as to whether he has ever been prosecuted, he again answered it in negative. Hence, it appears that he actually was not knowing the meaning of 'prosecution' otherwise there was no reason as to why in both the forms regarding prosecution he would give a negative answer admitting in the attestation form that a criminal case is pending against him.
15. The respondent, therefore, did not deliberately suppress the material information. So, the above, decisions of the Supreme Court relied upon by the learned Counsel for the respondent in this connection, wherein it has been held that a candidate having suppressed material information and/or giving false information cannot claim right to continue in service, are not applicable in this case.
16. The object of enquiry in various columns of the declaration form and attestation form, however, is to ascertain the character and antecedent of the candidate to Page 2293 judge his suitability to enter into or continue in service. The guidelines, as stated by the learned Counsel for the appellant, in his above submission and noted in paragraph 26 of the counter affidavit filed in the writ petition, also shows that such candidate against whom there is substantive evidence of criminal activity may be considered as un-desirable in public appointment. The offer of appointment also recites that the offer is subject to character and antecedent being found satisfactory and admittedly the criminal case being G. R. Case No. 971/99 under Sections 147, 148, 323, 324, 307, 447, 374 of the Indian Penal Code was pending against the respondent in which charge-sheet had already been submitted. There was, hence, reason for the IOC to hold the respondent suitable for the post.
17. Therefore, it is clear that though the respondent cannot be said to have deliberately suppressed any material information, the offer of appointment vide Annexure-4 to the writ petition, was liable to be cancelled, one of the preconditions mentioned therein being not fulfilled.
18. In the Division Bench decision of this Court relied on by the learned Counsel for the respondent, it has, of course, been held that mere pendency of a criminal case cannot be a bar to selection and appointment to a government post but that decision is not applicable to the facts of this case. In this case the offer of appointment was subject to character and antecedent being satisfactory, and according to the guidelines, a candidate who has been chargesheeted was not desirable for appointment. The decision of the Division Bench, hence, is of no help to the respondent. As against this, from the decision of the Supreme Court in the case of Dr. J. Shashidhara Prasad v. Governor of Karnataka and Anr. , it appears that the appellant in that case was appointed Vice Chancellor, but on the next day the appointment was cancelled on the ground that a criminal case was pending against him and the Chancellor did not find it desirable to appoint the appellant as the Vice Chancellor. The order of cancellation was challenged in a writ petition which was dismissed by the High Court. The Supreme Court also did not interfere with the order. So, in view of this decision also it cannot be held in this case that the pendency of a criminal case is no bar to the appointment of the respondent.
19. The learned Single Judge, as already mentioned, has allowed the writ petition of the petitioner respondent on the ground that after accepting the joining, the offer of appointment could not have been withdrawn. But admittedly on the date of joining i.e. 17.2.2003 the attestation form was submitted and the case of the appellant not controverted is that during scrutiny of the attestation form it was detected that the respondent had criminal antecedent and without any loss of time, from the next day i.e. 18.2.2003 the respondent was stopped from doing any work (annexure-C series). The offer was also provisional and subject to scrutiny of facts touching the character and antecedent. In such special circumstances there appears substance in the submission of the learned Counsel for the appellant that the joining of the respondent cannot be held to have become effective and that the offer could be rescinded.
20. On the point as to whether there was any violation of Article 311(2) of the Constitution of India, the respondent had to undergo training for six months and on satisfactory completion of the training he was to be put on probation for six months. Therefore, the respondent was not even a Probationer at the time of cancellation of the letter of offer. Even in the case of a Probationer, it is well settled that his services Page 2294 can be terminated without giving opportunity of hearing unless the order is stigmatic. In this case, the order of cancellation (Annexure-1) shows that, as from the attestation and other documents filed by the respondent, it was found that he was chargesheeted in a criminal case, the appointment offer was cancelled and withdrawn. The order of cancellation and withdrawal, hence, does not cast any stigma nor it is by way of punishment. So no show cause or opportunity of hearing was necessary in the case and there has been no violation of Article 311(2) of the Constitution in this case. This view finds support from the decision of the Supreme Court in the case of Rampati Saroj and another (Supra) relied on by the appellant.
21. In the result, this appeal is allowed and the impugned order of the learned Single Judge is set aside.