Bombay High Court
Nitin S/O Anil Paroche vs The Bank Of India, Nagpur Through ... on 18 July, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3625 OF 2017
Nitin s/o Anil Paroche,
Aged about 34 years, Occ. - Nil,
R/o Quarter No.1/6, NPRI Complex,
South Ambazari Road, Gopal Nagar,
Nagpur. .... PETITIONER
VERSUS
The Bank of India,
Zonal Office, Nagpur Zone,
S.V. Patel Road, Kingsway, Post Box
No.4, Nagpur-440 001, through its
Zonal Manger. .... RESPONDENTS
______________________________________________________________
Shri Rohit Joshi, Advocate for the petitioner,
Shri Uday A. Gosavi, Advocate for the respondent.
______________________________________________________________
CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
DATED : 18-07-2017
ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)
1. Heard Advocate Shri Rohit Joshi for the petitioner and
Advocate Shri U.A. Gosavi for the respondent.
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2. Advocate Shri Rohit Joshi submits that as alleged offence
under Section 160 of the Indian Penal Code was not disclosed by the
petitioner in 2014 while applying for regular employment, by order
dated 17-06-2016, he has been discontinued by the respondent bank.
Advocate Shri Rohit Joshi is placing reliance upon the judgment of
Hon'ble Apex Court in the case of Avtar Singh v. Union of India and
Ors. reported in AIR 2016 SC 3598, particularly paragraph 30(4)(a),
to urge that employer Bank did not apply mind on relevant factors.
3. Advocate Shri U.A. Gosavi appearing for the respondent
states that before applying for employment, petitioner was specifically
cautioned that any suppression in this respect may result in
termination. This clause is also contained in his appointment order. He
is pointing out documents available on record to show that the
petitioner was all the while aware that he was in police custody, that
he was charge-sheeted and tried and has been released because of
failure of prosecution to procure of presence of witnesses under
Section 258 of the Criminal Procedure Code. Thus, all these facts
which are within his knowledge of the petitioner and therefore, should
have been disclosed while seeking employment, have been deliberately
suppressed. He further submits that in this situation, this Court should
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not interfere in the writ jurisdiction. He also adds that the petitioner
has remedy of raising industrial dispute. Lastly, he submits that in this
situation, the judgment mentioned supra, particularly paragraph 30(1)
and sub-paras 10 and 11 of paragraph 30 covers the controversy. He,
therefore, prays for dismissal of writ petition.
4. The petitioner admits that he had knowledge of
prosecution and he is discharged therefrom under Section 258 of the
Criminal Procedure Code. He has also accepted that it was not
disclosed by him to his employer. It appears that the petitioner was
working on daily wages with respondent bank as a Driver since April
2004. Thus after about ten years, an opportunity for getting regular
job became available and while filling in application therefor, he has
not made the relevant disclosures.
5. The application form requires candidate to fill in an
attestation form. Attestation form in its opening paragraph points out
that suppression or submission of false information in it may result in
candidate being declared unfit. Paragraph 12 of this attestation form
requires petitioner to disclose whether he was taken in police custody.
It also obliges him to disclose whether in prosecution instituted against
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him, he has been acquitted or punished.
6. Thus fact of acquittal as also punishment is required to be
disclosed by him before entering the employment and at the stage of
applying for job.
7. The petitioner who was charge-sheeted for an offence
punishable under Section 160 of the Indian Penal Code has been
exonerated on 21-3-2013. The exoneration is under Section 258 of the
Criminal Procedure Code and while filling in application form in 2014
he has not pointed out this event. In appointment order issued to him
on 11-12-2014 again the warnings and cautions on line mentioned
supra appear.
8. In this situation, only question before this Court is whether
the respondent bank could have taken recourse to termination in
present facts. The order of termination has been issued on
17-06-2016. It has been passed after giving petitioner a show cause
notice on 27-05-2016. It appears that after appointment and during
police verification this fact came to the knowledge of the respondent
bank.
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9. Perusal of judgment delivered by Larger Bench of the
Hon'ble Apex Court in the case of Avtar Singh vs. Union of India and
Ors. mentioned supra reveals that power and decision whether to
terminate or not needs to be reached and exercised with due
application of mind. The Hon'ble Apex Court in paragraph 30 has
accepted the obligation of employee to furnish true and correct
information to his employer. Here it is not in dispute that the
petitioner has not given correct information to the respondent bank.
However, perusal of principle laid down in Clause (a) of sub-paragraph
(4) of paragraph 30 reveals that when conviction is for a trivial
offence, such conviction should not render an incumbent unfit for post
in question and the employer may, in its discretion, ignore such
suppression of fact or false information by condoning the lapse.
10. In present facts, the commission of offence has not been
established and it was only a charge under Section 160 of the Indian
Penal Code against the petitioner. The alleged incident is dated
24-05-2006 and the petitioner was about 23 years old at that juncture.
In this situation, mere suppression of fact that he was charge-sheeted
for offence punishable under Section 160 of the Indian Penal Code is
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not sufficient to terminate his service. The petitioner may have
deliberately suppressed that fact in an anxiety to procure the job.
However, his suppression in this circumstance cannot prove fatal.
11. In this situation, we are inclined to intervene in extra
ordinary jurisdiction. Though it is correct that the petitioner may have
raised an industrial dispute also, we find that as none of the facts are in
dispute, the availability of forum under the Industrial Disputes Act
need not operate as bar here.
12. Accordingly, we quash and set side the order dated
17-06-2016 and reinstate the petitioner in service with continuity but
without back wages.
13. The writ petition is partly allowed and dispose it of.
JUDGE JUDGE
adgokar
