Chattisgarh High Court
Chhattisgarh State Electricity ... vs Maniprakash Patel on 16 June, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 116 of 2022
Chhattisgarh State Electricity Generation Co. through S.E. (HR Deptt)
Ofice at Danganiya, PS Danganiya, Raipur, CG State.
---Appellant
Versus
1. Maniprakash Patel S/o Ganpat Lal Patel, Aged about 37 years, R/o
village Pandripani, PO Godhi, Balco, Korba District CG State.
2. Chhattisgarh State Electricity Holding Co. Through CE (HR), Danganiya,
PS. Danganiya, Raipur, CG State.
3. The Project Officer, 1X500 MW, Dr. Shyama Prasad Mukherjee Thermal
Power Station, Extension-III, Korba (West) PS Korba, District Korba, CG
State.
----Respondents
AND
WA No. 121 of 2022
Chhattisgarh State Power Holding Co. Ltd. Through Chief Engineer (HR
Deptt) Vidyut Sewa Bhawan, Danganiya, PS Danganiya, Raipur, CG State.
---Appellant
Versus
1. Chandrika Prasad Patel S/o Ganpat Lal Patel, Aged about 45 years, R/o
village Pandripani, PO Godhi, Balco, Korba District CG State.
2. Chhattisgarh State Power Generation Company Ltd. Through CE (HRD)
Shed No. 3, Office at Danganiya, PS. Danganiya, Raipur, CG State.
3. The Chief Engineer (Generation) Hasdeo Power Station, CSPGCS
Korba, West.
----Respondents
For Appellant : Mr. K.R.Nair and Dr. Veena
Nair, Advocates.
For Respondent No. 1 : Ms. Reena Singh, Advocate.
For Respondents No. 2&3 : None
Date of Hearing : 10.05.2022
Date of Judgment : 16.06.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Rajendra Chandra Singh Samant, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
Heard Mr. K.R.Nair and Dr. Veena Nair, learned counsel,
appearing for the appellants. Also heard Ms. Reena Singh, learned
counsel, appearing for the respondent No. 1 in both the writ appeals.
2. Writ Appeal No. 116/2022 is presented against an order dated
31.01.2022 passed by the learned Single Judge in WPS No. 5226/2012
and Writ Appeal No. 121/2022 is preferred against an order dated
31.01.2022 passed by the learned Single Judge in WPS No. 3757/2013.
3. The petitioner in both the writ petitions are brothers. The
subject matter in both the writ petitions emanates from appointment
orders issued to them. The petitioner in WPS No. 5226/2012 was not
allowed to join whereas the appointment of the petitioner in WPS No.
3757/2013 was cancelled after his joining. Since fundamentally common
issue is arising in both the cases, these appeals are being disposed of
by this common judgment.
4. Both the writ petitioners were appointed as Office Assistant
Grade III (for short, OA-III) on probation for a period of two years. The
petitioner in WPS No. 5226/2012 was not allowed to join as at the time of
joining, he had submitted an affidavit stating that he was convicted
alongwith others for the offences punishable under Sections 323/326/34
of the Indian Penal Code (for short, IPC) and was sentenced to undergo
rigorous imprisonment for one month with fine of Rs. 500/- for the
offence of Section 323/34 and to undergo rigorous imprisonment for two
years with fine of Rs. 5000/- for the offence of Section 326/34 of the IPC.
5. The petitioner in WPS No. 3757/2013 had also submitted a
similar affidavit.
6. Three brothers, namely, Mani Prakash Patel (petitioner in WPC
No. 5226/2012) Chandrika Prasad Patel (petitioner in WPC No.
3757/2013) and Om Kishore Patel, owned a plot of land at village
Pandripani. The land was acquired for the purpose of laying a pipe-line
for 2X250 MW Dr. Shyama Prasad Mukherjee Thermal Power Station,
Korba. It is the case of the petitioners that in view of the rehabilitation
policy of the State Government, the family members or the owners of the
land whose lands had been acquired, were entitled to employment in the
industry for the benefit of which the land was acquired.
7. (i) The case of the petitioner in WPS No. 5226/2012 is that
following that policy, an appointment order dated 10.10.2011 was issued
appointing him to the post of OA-III and posting him in the office of the
Chief Engineer (Human Resources) CSPGCL. Thereafter, the
respondent No. 2, vide order dated 24.10.2011 posted the petitioner in
the office of Project Manager, 1X500 MW, Korba (West), Extension
Project, Korba, and in compliance of the orders dated 10.10.2011 and
24.10.2011, the petitioner reported for joining in the office of respondent
No. 3 on 08.11.2011 and had submitted attestation form, declaration
form, affidavit as required for character verification, medical certificate
and other necessary documents. In the attestation form, he had
mentioned that he was convicted by order dated 25.03.2003 under
Sections 323/326/34 IPC and that an appeal, being Criminal Appeal No.
464/2003, is pending before this Court. By letter dated 15.11.2022, the
respondent No. 3 informed the petitioner that his joining cannot be
accepted and that necessary instructions had been sought for.
(ii) It is pleaded that his brother, namely, Chandrika Prasad Patel
(petitioner in WPS No. 3757/2013), who was also given similar
appointment by an order dated 31.07.2012, was posted in the office of
Chief Engineer (Production), Hasdeo Thermal Power Station, CGSPCL,
Korba West. He was subsequently posted by an order dated 14.08.2012
in the office of Superintending Engineer, Korba West. The joining report
of the brother was accepted and he was allowed to discharge his duties.
(iii) Prayer was made seeking a direction to the respondent
authorities to accept his joining and to allow him to work in the post of
OA-III as per the appointment order dated 10.10.2011 and to maintain
his seniority w.e.f. 08.11.2011.
8.(i) While the basic facts in WPS No.3757/2013 are as stated in
WPS No. 5226/2012, the case of the petitioner in WPS No. 3757/2013 is
that he had submitted joining letter on 13.08.2012 and in the attestation
form, which was submitted along with the medical certificate and other
necessary documents, he had stated about his conviction under
Sections 324/326/34 IPC. It is stated that he was allowed to join after he
had made full disclosure.
(ii) As his brother had filed writ petition being WPS No. 5226/2012,
as a counter-blast, a show cause notice dated 21.02.2013 was issued to
him asking for an explanation as to why his appointment to the post of
OA-III shall not be cancelled. He replied to the said show cause notice
on 27.02.2013 stating that he had not suppressed any fact regarding
registration of a criminal case and conviction therein. It is pleaded that
without considering the reply, the order dated 07.10.2013 was passed
cancelling his appointment to the post of OA-III.
(iii) It is in that background, prayer was made to set aside the order
dated 07.10.2013 and to reinstate him to the post of OA-III with all
consequential benefits.
9. In paragraph 2.1 of the reply affidavit filed in WPS No.
5226/2012, there is a categorical statement that the petitioner was
offered the post of OA-III on probation for a period of two years in lieu of
acquisition of land made for public purpose. In the said writ petition, a
stand is taken that the employer has a right to refuse joining of an
appointee because of his conviction in a criminal case and accordingly
joining report of the petitioner was rightly refused because of his
conviction. It is pleaded that no right had accrued to the petitioner for
allowing his brother to join mistakenly, for which show-cause notice was
already issued for cancellation of his appointment.
10. In the reply filed in WPS No. 3757/2013, it is stated that the
petitioner had manipulated the joining report in collaboration with the
dealing clerk, who did not bring to the notice of the authorities that the
appointee was convicted in a criminal case and was thus not entitled to
join as OA-III. When it came to the notice of the respondents that the
joining report of his brother, namely, Mani Prakash Patel (petitioner in
WPS No. 5226/2012) was refused, the appointment order of the
petitioner came to be cancelled after issuing a show cause notice and
inviting explanation. It is also stated that a letter was issued to the
concerned officer of the appellant for negligence in allowing the
petitioner to join duties with a warning that repetition of such incident in
future would entail disciplinary action against him.
11. The learned Single Judge, in WPS No. 5226/2012, held that the
petitioner had not suppressed any material fact and had truthfully
declared all relevant information. The learned Single Judge observed
that before refusing the petitioner to join, the respondent authorities
should have arrived at a conclusion that the petitioner was not a fit
person to be appointed, but no such exercise and/or assessment was
made by the respondent authorities. The learned Single Judge further
noted that the criminal appeal being Criminal Appeal No. 464/2003
preferred by the petitioner and his brothers had been allowed and they
had been acquitted of the charges by this Court on the ground that they
had exercised the right of private defence under Section 101 of the IPC
in connection with an incident that had occurred on 22.06.2000.
Accordingly, it was held that the petitioner cannot be termed as a
habitual offender or cannot be held to be unfit for his appointment in the
post of OA-III. In the light of the above discussion, the writ petition was
allowed and the respondent authorities were directed to allow joining of
the petitioner forthwith alongwith other benefits like seniority, if any, as
provided under the prevailing rules.
12. In WPS No. 3757/2013, a similar view as was taken in WPS
No.5226/2012 was taken and while allowing the writ petition, respondent
authorities were directed to reinstate the petitioner as OA-III forthwith
alongwith consequential benefits, if any, as provided under the rules.
13. The learned Single Judge, in both the cases, had relied on a
decision of the Hon'ble Supreme Court in Daya Shankar Yadav v.
Union of India & Others, reported in (2010) 14 SCC 103 and in Avtar
Singh v. Union of India & Others, reported in AIR 2016 SC 3598.
14. Mr. K.R.Nair, learned counsel for the appellants submits that as
at the relevant point of time when the petitioner in WPS No. 5226/2012
reported for duty, he was a convicted person, he was not eligible or
suitable for appointment to the post and in such circumstance, the
learned Single Judge committed illegality in holding that there was no
consideration by the appellants as to whether the petitioner was not a fit
person to be appointed inasmuch as any further deliberation would have
been a futile exercise. He submits that though the petitioner in WPS No.
3757/2013 was allowed to join, such joining came to be allowed because
of the negligence of the official concerned. He should also not have been
allowed to join because of his conviction and once the fact of his
conviction came to light, necessary steps were taken to cancel the
appointment on the ground of his conviction and the order of cancellation
was passed after giving opportunity of hearing to the petitioner. It is
submitted that, in any view of the matter, the direction of the learned
Single Judge to reinstate/appoint the petitioners with benefits like
seniority is wholly uncalled for.
15. Ms. Reena Singh, learned counsel, appearing for the
respondent No. 1-writ petitioners in both the cases, relies on the
judgment/order of the learned Single Judge. She further places reliance
on the decisions rendered by the Hon'ble Supreme Court in Umesh
Chandra Yadav v. The Inspector General & Chief Security
Commissioner, RPF, Northern Railway, New Delhi & Others,
reported in (2022) LiveLaw (SC) 300, Raj Narain v. Union of India &
Others, (Civil Appeal No. 3339/2019, decided on 01.04.2019), Babu Lal
v. State of Haryana, reported in 1991 CJ(SC) 58, and a decision
rendered by a learned Single Judge of this Court in Smt. Sadhna Bai v.
State of Chhattisgarh & Others (WP(S) No. 1762/2014, decided on
21.01.2016).
16. It is an undisputed fact that both the petitioners were offered
appointment in view of the rehabilitation policy of the State Government
as their land had been acquired for public purpose. It is also true that in
Sessions Trial No. 354/2000, by judgment dated 25.03.2003, they were
convicted for the offence punishable under Sections 323/34 IPC for one
month and for offence under Section 326/34 IPC for two years and that
their appeal against the said judgment of conviction and order of
sentence, was pending consideration before this Court. Thus, on the
date when the petitioner in WPS No. 5226/2012 was refused joining and
when the petitioner in WPS No. 3757/2013 was allowed to join, they
were convicted persons. While the petitioner in WPS No. 5226/2012 was
refused joining on the ground of being a convicted person, the stand of
the appellant is that the petitioner in WPS No. 3757/2013 was mistakenly
allowed to join because of the negligence of the officer concerned of the
appellant as the factum of his conviction was not brought to the notice of
the competent authority and later on, when this aspect came to the light,
after issuance of notice and inviting explanation, appointment was
cancelled.
17. The Hon'ble Supreme Court, in Daya Shankar Yadav (supra),
observed as under:
"15. When an employee or a prospective employee
declares in a verification form, answers to the queries
relating to character and antecedents, the verification
thereof can therefore lead to any of the following
consequences:
(a) If the declarant has answered the questions in the
affirmative and furnished the details of any criminal
case (wherein he was convicted or acquitted by giving
benefit of doubt for want of evidence), the employer
may refuse to offer him employment (or if already
employed on probation, discharge him from service), if
he is found to be unfit having regard to the nature and
gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the
criminal case disclosed by the declarant related to the
offences which were technical, or of a nature that would
not affect the declarant's fitness for employment , or
where the declarant had been honourably acquitted and
exonerated, the employer may ignore the fact that the
declarant had been prosecuted in a criminal case and
proceed to appoint him or continue him in employment."
18. A perusal of the above would go to show that an employer may
refuse to offer employment or if already employed on probation,
discharge him from service, if he was found to be unfit having regard to
the nature and gravity of the offence/crime in which he was involved.
19. In Avtar Singh (supra), at paragraphs 22 and 38, the Hon'ble
Supreme Court laid down as follows:
"22. ....... In case the employer comes to the conclusion
that suppression is immaterial and even if facts would
have been disclosed would not have affected adversely
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 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.
"38. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In
view of the aforesaid discussion, we summarise 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.
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, it 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 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.
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. "
20. Thus, it is seen that even if disclosure of involvement on
conviction in a criminal case has been made truthfully, the employer of
the person seeking appointment has the right to consider fitness for
appointment and while doing so, the effect of conviction and the nature
of offence have to be considered. The employer still has the right to
consider antecedents, and cannot be compelled to appoint the candidate
and where a conviction has been recorded in a case which is not trivial in
nature, employer may cancel candidature or terminate services of the
employee. Even if acquittal has been made, employer may consider
whether acquittal is honourable or was as a result of grant of benefit of
doubt on technical reasons. In case employer comes to the conclusion
that conviction or ground of acquittal in criminal case would not affect
fitness for appointment, he may be appointed or continued in service.
21. In Babu Lal (supra), the Hon'ble Supreme Cout held that a
person who was suspended on the ground of pendency of a criminal
proceeding, on being acquitted of the criminal charge is entitled to be
reinstated in service. His acquittal from the criminal charge does not
debar the authorities to initiate disciplinary proceedings and after giving
an opportunity of hearing to the employee pass an order of termination
on the basis of the terms and conditions of the order of appointment.
22. In Smt. Sadhna Bai (supra), the question that arose for
consideration was whether the State Government was justified in
impliedly excluding married daughter of the affected/displaced family
from consideration for employment under the Chhattisgarh State Model
Rehabilitation Policy, 2007, on the ground of her marriage. The aforesaid
judgment has no application in the facts of the present case.
23. In Raj Narain (supra), the appellant had questioned the legality
and validity of the judgment of the High Court by which payment of back
wages was restricted only to the period from the date of the order of his
acquittal till the date of his reinstatement. The Hon'ble Supreme Court,
while affirming the judgment of the High Court, had occasion to consider
its two earlier decisions in the cases of Ranchhodji Chaturji Thakore v.
Superintendent Engineer, Gujarat Electricity Board & Another ,
reported in (1996) 11 SCC 603, and Union of India & Others v. Jaipal
Singh, reported in (2004) 1 SCC 121. The Hon'ble Supreme Court
observed as follows:
"6. The decision of Ranchhodji Chaturji Thakore (supra)
was followed by this Court in Union of India and Others
v. Jaipal Singh (supra) to refuse back wages to an
employee who was initially convicted for an offence under
Section 302 read with Section 34 IPC and later acquitted
by the High Court in a criminal appeal. While refusing to
grant relief to the Petitioner therein, this Court held that
subsequent acquittal would not entitle an employee to
seek back wages. However, this Court was of the opinion
that if the prosecution is launched at the behest of the
department and the employee is acquitted, different
considerations may arise. The learned counsel for the
Appellant endeavored to distinguish the prosecution
launched by the police for involvement of an employee in
a criminal case and the criminal proceedings initiated at
the behest of the employer. The observation made in the
judgment in Union of India and Others v. Jaipal Singh
(supra) has to be understood in a manner in which the
department would become liable for back wages in the
event of a finding that the initiation of the criminal
proceedings was mala fide or with vexatious intent. In all
other cases, we do not see any difference between
initiation of the criminal proceedings by the department
vis-a-vis a criminal case lodged by the police. For
example, if an employee is involved in embezzlement of
funds or is found indulging in demand and acceptance of
illegal gratification, the employer cannot be mulcted with
full back wages on the acquittal of the person by a
criminal Court, unless it is found that the prosecution is
malicious."
24. In Umesh Chandra Yadav (supra), the Hon'ble Supreme Court
at paragraph 15 observed as under:
"15. This cannot be disputed that the candidate who
intend to participate in the selection process is required to
furnish correct information relating to his character and
antecedents in the verification/ attestation form before or
after his induction into service. At the same time, it is
also true that the person who has suppressed the material
information, cannot claim unfettered right of seeking
appointment or continuity in service but, at the same time,
he has a right not to be dealt with arbitrarily and power
has to be exercised in reasonable manner with
objectivity having due regard to the facts of case on hand.
The yardstick which has to be applied always depends
upon the nature of post, nature of duties, impact of
suppression on suitability has to be considered by the
competent authority considering post/nature of
duties/services and power has to be exercised on due
diligence of various aspects at the given time and no hard
and fast rule of thumb can be laid down in this regard."
25. Conviction in a case for the offences punishable under Section
323/326/34 IPC cannot be considered to be trivial in nature and
therefore, denial of joining or otherwise denial of appointment on the
ground of conviction may not be held to be unjustified. To that extent, we
are unable to concur with the finding of the learned Single Judge that no
assessment was made by the respondent authorities before refusing the
petitioner in WPS No. 5226/2012 to join and cancelling the appointment
of the petitioner in WPS No. 3757/2013 after the fact of his conviction
came to light. However, indisputably, both the petitioners were acquitted
by this Court by the judgment and order dated 10.01.2020. This Court,
while acquitting the petitioner, observed that causing injury in defending
right of own body and the body of any other person is exempted as per
Section 101 of IPC and therefore, no one can be convicted for acting in
self defence.
26. On acquittal of the petitioners on the ground, as noticed above,
whatever disability the petitioners had in securing public employment,
had ceased to exist. At the cost of repetition, it is to be remembered that
employment was offered to the petitioners as per the existing policy for
offering employment to the persons whose lands were acquired and
therefore, there cannot be any justification at this point of time for not
honouring the appointment orders given to the petitioners.
27. Accordingly, we hold that the petitioners shall be allowed to join
their duties within a period of 10 days from today. In the attending facts
and circumstances, we are of the opinion that the petitioners would be
entitled to all benefits from the date of their joining pursuant to the
present order.
28. The orders of the learned Single Judge are modified to that
extent. The writ appeals are allowed in part.
1 Sd/- Sd/-
(Arup Kumar Goswami) (Rajendra Chandra Singh Samant)
CHIEF JUSTICE JUDGE
Amit/Hem
