Bombay High Court
Union Of India, Through The Secretary, ... vs Shri Ganesh Wasudeo Padhal And Another on 30 August, 2018
Bench: B.P. Dharmadhikari, M.G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2800 OF 2018
PETITIONERS :- 1. Union of India,
Through the Secretary,
Ministry of Defence, South Block
New Delhi-110 001
2. The Chairman /D.G.O.F.,
Ordnance Factory Board,
10-A S.K.Bose Road
Kolkata 700 001
3. The Senior General Manager,
Ordnance Factory, Chanda,
Chandrapur 44-2501 (MS)
...VERSUS...
RESPONDENTS :- 1. Ganesh Wasudeo Padhal
Age 29 years, Occup. Unemployed,
Residing at Singuji Ward,
Near Old Bank of India,
Tah-& At Post Bhadrawati,
Dist.Chandrapur- 442902
2. Rajesh Wasudeo Padhal
Age 26 years, Occup.Unemployed,
Residing at Zinguji Ward,
Near Old Bank of India,
Tah-& At Post Bhadrawati,
Dist.Chandrapur- 442902
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Mrs.Mugdha Chandurkar Counsel for the appellants.
Mr. M.G.Burde, Counsel for the respondents.
CORAM :B.P. DHARMADHIKARI &
M.G. GIRATKAR
, JJ.
DATED : 30.08.2018 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 2/16 O R A L J U D G M E N T (Per : M.G. GIRATKAR, J.)
1. By the present petition, the petitioners have challenged the order of Central Administrative Tribunal (herein after referred to as 'CAT') dated 7th August 2014, by which the petitioners are directed to issue appointment order to the respondents.
The fact in dispute in short are as under:-
2. The respondent nos.1 and 2 appeared in the examination for the post of Danger Building Worker (semi skilled) in Ordnance Factory, Chanda. In the written examination both the respondents secured merit position at Sr. No. 230 and 347 respectively out of 672 candidates. After the examination, respondents were directed to fill up the form in respect of pendencey of criminal cases etc. Both the respondents scratched the word 'Yes' in all the columns of the prescribed form and kept 'No' as it is. Respondents came to know about their mistake by not showing Criminal Case against them for the offences punishable under Sections 323, 447, 506 r/w 34 of the Indian Penal Code . It ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 3/16 was the case between in respect of family dispute, on the report lodged by their maternal uncle. Both the respondents with their father were prosecuted. In the Lok Adalat, the said matter was compromised. Accepting terms of compromise both the respondents came to be acquitted as per the provisions of Section 320 (8) of the Code of Criminal Procedure.
3. The respondents submitted their representation on 26.8.2012 to the petitioners, after realising their mistake that inadvertently they could not point out in the prescribed form that they were prosecuted and acquitted by the Competent Court. It was pointed out by both the respondents that they are from rural area and educated only up to 10th standard plus I.T.I. It was also pointed out that the prescribed form given to them was in English with only column Yes/No. They inadvertently scratched all the option of 'Yes' and kept open 'No' in all the columns.
4. On 26.8.2012 both the respondents pointed out their mistake and submitted that they were prosecuted and acquitted by the competent Court. Thereafter, on 5.1.2013 petitioners cancelled their selection for the post of Danger Building ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 4/16 Worker (semi skilled ), without considering their representations.
5. Both the respondents approached to the CAT challenging the order of petitioners by which the selection was cancelled. After hearing both the sides and after evaluation of the judgment of Apex Court the CAT recorded its findings that there is no dispute that both the respondents were prosecuted on the report of their maternal uncle. The matter was compromised and they were acquitted. They were acquitted long before the advertisement of the said posts. It was not their intention to suppress this fact from the employer (petitioners). It is observed in the judgment that the information supplied by the respondents might be incorrect, but never it was false leading to cancellation of selection by the petitioners. Therefore, the petitioners/employer were directed to issue appointment order to both the respondents for the post of Danger Building Worker (semi skilled) at Ordnance Factory, Chanda within a period of four weeks from the date of receipt of the order. It was also directed to report the compliance. The said order is under challenge in the present petition. ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 5/16
6. We have heard learned counsel for the petitioners Mrs. Chandurkar and learned counsel Shri.Burde for the respondents.
7. There is no dispute that issue involved in this petition is very short. Whether the suppression of fact in respect of the prosecution and acquittal of respondents is the material fact for the cancellation of selection of the respondents for the post of Danger Building Worker. There is no dispute that there was no any other case or offence pending against the respondents, when they appeared for the examination. There is no dispute that both the respondents were acquitted by the competent Court before they appeared for the examination. Both the respondents passed their respective examination and appeared in the merit list. When they were directed to fill up the form, inadvertently both the respondents not given information in respect of their prosecution and acquittal by the competent Court.
8. The learned counsel for the petitioner has pointed out that the suppression of material facts in respect of the prosecution amounts to cancellation of their selection and therefore, ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 6/16 petitioners have rightly cancelled their selection for the post of Danger Building Worker (semi skilled). In support of the submission, learned counsel Mrs. Chandurkar pointed out the decision in the case of Avtar Singh..Vrs..Union of India and others reported in (2016) 8 SCC 471 and Devendra Kumar..Vrs..State of Uttaranchal and others reported in (2013)9 SCC 363.
9. In the case of Devendra Kumar..Vrs..State of Uttaranchal and others (supra) it is held by the Division Bench of Apex Court that suppressing of information itself amounts to moral turpitude.
10. In the case of Avtar Singh..Vrs..Union of India and others (supra) the Hon'ble Apex Court three judges Bench has answered the reference and given finding in para no. 38.1 to 38.11 as under:-
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.::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 7/16
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 recourses 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 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 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 8/16 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.
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 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 9/16 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''.
11. On going through the recent decision of Hon'ble Apex Court, it is clear that judgment of Apex Court in case of Devendra Kumar..Vrs... State of Uttaranchal and ors (Supra) has not considered the material facts in dispute. In the case of Avtar Singh..Vrs..Union of India and others (supra) in paragraph No.29 and 30 the Hon'ble Supreme Court has held that it is the discretion of the employer to condone the minor lapses. The intention behind getting the material information from the employee is to know the employer about the character of the employee. Paragraph No.29 and 30 are reproduced as under:-
''29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 10/16 turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non- disclosure. Can there be single yardstick to deal with all kinds of cases?
30. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 11/16 employer comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post.
However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed, to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or of dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service''.
12. In the present case, both the respondents were not prosecuted for any heinous offences or offences of any moral ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 12/16 turpitude. They were already acquitted by the Competent Court. The main offence against them was under Section 323 of the Indian Penal Code. The offence under Section 323 of the Indian Penal Code itself is non cognizable offence. They were prosecuted for the offence punishable under Section 323 of the Indian Penal Code, which is the main offence alongwith the other offences punishable under Sections 447 and 506 of the Indian penal Code.
13. It was contended by both the respondents that there was a family dispute in the family. Their maternal uncle lodged the report. The family dispute was settled between them and matter was compromised in Lok Adalat. They were acquitted under Section 320(8) of the Code of Criminal Procedure. It is submitted by both the respondents that they were under the impression that they were already acquitted and therefore, there was no any need to supply the information . It was also submitted that they are just matriculated and not highly educated, therefore they only scratched word 'Yes' and kept 'No' in the prescribed form. The prescribed form filled by the respondents is reproduced as under:-
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''12(i) (a) Have you ever been arrested? No
(b) Have you ever been prosecuted? No
(c) Have you ever been kept under detention? No
(d) Have you ever been bound down? No
(e) Have you ever been fined by a court of Law?
(f) Have you ever been convicted by a Court of Law for any offence? No
(g) Have you been debarred from any examination or rusticated by any university or any other Educational Authority/ Institution?
No
(h) Have you ever been debarred /disqualified by any public Service Commission form appearing at its examination/selection? No
(i) Is any case pending against you in any Court of Law at the time of filling-up this Attestation Forms?
(j) Is any case pending against you in any University or any other Education Authority /Institution at the time of filling up this Attestation Form? No.''
14. From the judgment in the case of Avtar Singh..Vrs..Union of India and others(Supra), it is clear that the suppression of material facts lead to their cancellation, termination etc. but the suppression in respect of minor offences not sufficient for cancellation, termination of service by the employer, though it is the discretion of the employer but the discretion should be utilised judiciously.
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15. In the present case, both the respondents were prosecuted by the police on the report of their maternal uncle and offences were not so serious. In para No. 38.4.1 the Hon'ble Apex Court in the case of Avtar Singh..Vrs..Union of India and others (supra) it is held that :-
''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''.
16. In the present case, both the respondents were acquitted. Offences were not so major or not so heinous offences. Moreover, both the respondents pointed out the petitioner before the cancellation of selections that due to mistake they could not give information about the Criminal Case. Alongwith their representation dated 26.8.2012, they attached certified copy of the judgment of Judicial Magistrate First Class, Bhadrawati. It was not considered by the petitioners thereafter on 5.1.2013 they were informed about their cancellation of selection for the post of Danger Building Worker (semi skilled). ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 15/16
17. Though the judgment in the case of Devendra Kumar..Vrs..State of Uttaranchal and others (Supra) was not before the Apex Court for consideration in the case of Avtar Singh..Vrs..Union of India and others (Supra), but material issues in respect of supply of information at the time of joining the services, more particularly suppression of prosecution case considered by the larger Bench of Hon'ble Apex court by considering the various earlier judgments. The Hon'ble Apex Court has observed that the minor offences if later on come to the notice of employer that the employees were prosecuted for the same can be condoned. It is also observed that even though they were convicted for petty offences in such type of cases, it can be ignored. In the present case both the respondents was not convicted. They were already acquitted. There is no dispute that both the respondents are not highly educated they are matriculated with ITI.
18. The prescribed form supplied to them were in English they only scratched word 'Yes' and kept word 'No', this itself shows that inadvertently, they have not supplied information in respect of their prosecution and acquittal by the Competent Court. ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 22:57:55 ::: wp 2800-18 judg.- 16/16
19. Both the respondents were selected for the post of Danger Building Worker (semi skilled). The post was not so higher or having any responsible authority. In the cited judgment the Honble Apex Court in the case of Avtar Singh..Vrs..Union of India and others the Hon'ble Apex Court has held that employer has to consider the gravity of the offence in comparison to the post of the employee. Both the respondents were selected for the post of Danger Building Worker(semi skilled). Those posts are not having any responsible authority. Looking to the gravity of the offences alleged against them those offences were not so serious in respect of the posts for which they were selected.
20. The CAT has given correct findings. In view of the judgment of Hon'ble Apex Court in the case of Avtar Singh..Vrs..Union of India (supra) and others, we do not find any merit in the petition and accordingly, we dismiss the same.
JUDGE JUDGE
Kavita
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