Gujarat High Court

Ram Kishan Khoiwal vs Cotton Corporation Of India ... on 27 February, 2023

Bench: Hemant M. Prachchhak

     C/LPA/1470/2018                              JUDGMENT DATED: 27/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1470 of 2018
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 16117 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                           RAM KISHAN KHOIWAL
                                  Versus
                   COTTON CORPORATION OF INDIA LIMITED.
================================================================
Appearance:
MR HARSHEEL D SHUKLA(6158) for the Appellant(s) No. 1
MR MEHUL M MEHTA(3416) for the Respondent(s) No. 1,2,3,4
================================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 27/02/2023

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

1. The appellant - original petitioner has filed present appeal

under Clause 15 of the Letters Patent against the impugned

judgment and order dated 21.06.2018 rendered by the learned

Single Judge in Special Civil Application No.16117 of 2016

whereby the learned Single Judge dismissed the petition filed by

the original petitioner.

2. Brief facts leading to the present appeal are as under:-

2.1 It is the case of the petitioner - appellant herein that the

respondent - Corporation issued public advertisement in the

newspaper for the post of Assistant Manager (Marketing).

Pursuant to the said advertisement, the appellant submitted

online application form for the post of Junior Cotton Purchaser. It

is stated that after following procedure, the appellant was

selected and issued appointment letter dated 03.03.2015 to join

the Corporation as a Junior Cotton Purchaser. It is stated that

thereafter, respondent - Corporation issued show-cause notice

dated 01.01.2016 to the petitioner - appellant herein alleging

that while submitting an application form, he did not disclose

correct facts and false information was supplied to the

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

respondent - Corporation. It is stated in the show-cause notice

that the certificate of experience supplied by the petitioner was

false and it was not found to be in conformity with the eligibility

criteria mentioned in the advertisement. It is alleged in the show-

cause notice that the petitioner has committed a serious

misconduct by indulging in fraudulent means to secure

employment in the Corporation and thereby, he himself has

rendered liable for summary termination of services from the

Corporation. The petitioner was therefore asked to send his reply

/ explanation. It is further the case of the petitioner that

thereafter, the petitioner submitted his explanation to the

respondent - Corporation in which he had pointed out the correct

facts and stated that he had provided the correct information

while submitting his application form and the experience

certificate. It is, therefore, urged for withdrawal of the show-

cause notice. It is further stated that thereafter, the respondent -

Corporation passed the impugned order dated 02.03.2016

whereby the services of the petitioner came to be terminated by

observing that the petitioner has furnished false experience

certificate for securing employment in CCI and therefore his

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

employment in the Corporation has become ab initio void and

hence, the service of the petitioner is terminated.

2.2 The petitioner, therefore, filed an appeal before the

Appellate Authority of the respondent - Corporation, however,

the Appellate Authority vide order dated 18.04.2016 dismissed

the appeal preferred by the petitioner. Thereafter, the petitioner

filed review application which came to be rejected by the

Chairman - Cum - Managing Director vide order dated

19.07.2016 and hence, the petitioner preferred the captioned

petition before this Court. It is stated that the learned Single

Judge, while passing the impugned judgment and order

dismissed the petition filed by the petitioner and, therefore, the

petitioner has preferred the present Letters Patent Appeal under

Clause 15 of the Letters Patent.

3. Heard Mr.Harsheel Shukla, learned advocate appearing for

the appellant and Mr.Mehul Mehta, learned advocate appearing

for the respondent.

4. Mr.Shukla, learned advocate appearing for the appellant, at

the outset, has referred to the advertisement issued by the

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

respondent - Corporation inviting application for the post of

Junior Cotton Purchaser. It is submitted by learned advocate for

the appellant that as per the said advertisement, the

qualification and experience for the said post were specifically

stated in the advertisement itself. It is pointed out from the

advertisement that the concerned candidates should provide

post qualification experience of minimum one year of dealing in

any Agriculture Commodities in organization / enterprise.

Learned advocate for the appellant has submitted that the

petitioner was possessing requisite qualification and he was also

having requisite qualification experience of minimum one year of

dealing in any Agriculture Commodities in reputed organization

and, therefore, the petitioner supplied necessary information in

the application form itself and the experience certificates were

also annexed with the application form. Learned advocate for the

appellant has referred to the experience certificate issued by

Himmatnagar Cooperative Agriculture Produce Processing and

Sale Society Limited and has submitted that in the said

certificate, it is stated that the petitioner was working as

Supervisor from 01.11.2010 to 30.05.2013 and the petitioner

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

successfully managed all roles of cotton procurement activities

such as purchase, selection grading, processing, marketing,

billing, storage and delivery and the work done by him during

such period is found satisfactory. Learned advocate for the

appellant, at this stage, has referred to the statement given by

the concerned office bearer of the aforesaid society on

19.10.2015. Learned advocate for the appellant has also referred

to the affidavit filed by Shaileshbhai Amrutbhai Patel, who issued

the said certificate. It is pointed out by the learned advocate that

the said affidavit is filed by the aforesaid person as per the

interim order dated 04.10.2017 passed during the pendency of

the petition before the learned Single Judge. While referring to

the aforesaid affidavit and the statement, it is submitted by the

learned advocate for the appellant that from the affidavit filed by

the said person, it is revealed that in fact, the petitioner had

worked with the aforesaid society for a particular period and,

therefore, the petitioner was having requisite experience as per

the advertisement issued by the respondent - Corporation.

4.1 Mr.Shukla, learned advocate appearing for the appellant

has further submitted that the respondent - Corporation, while

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

passing the order of termination, has recorded findings that the

petitioner has furnished false experience certificate for securing

employment in CCI and, therefore, his employment in the

Corporation has become ab initio void. Learned advocate for the

appellant has submitted that the impugned order passed by the

respondent - Corporation is stigmatic order and, therefore, the

respondent - Corporation was required to conduct the

departmental inquiry against the petitioner. Learned advocate

for the appellant has submitted that in the present case, without

holding full-fledged departmental inquiry, the service of the

petitioner came to be terminated and, therefore, the learned

Single Judge ought to have quashed and set aside the order of

termination. Learned advocate for the appellant has, therefore,

urged that the impugned judgment and order passed by the

learned Single Jude be quashed and set aside.

4.2 Mr.Shukla, learned advocate for the appellant has placed

reliance upon the decision of the Hon'ble Supreme Court in the

case of D.K.Yadav Vs. M. A. Industries Limited reported in

(1993) 3 SCC 259. Learned advocate has more particularly

placed reliance upon the observations made by the Hon'ble

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

Supreme Court in paragraphs no.11 to 16 of the said decision.

Learned advocate for the appellant has, therefore, urged that the

impugned judgment and order passed by the learned Single

Judge be quashed and set aside and this Court may issue

appropriate direction to the respondent - Corporation to

reinstate the petitioner in service after quashing and setting

aside the order of termination and direct the Corporation to grant

all the benefits to the petitioner.

5. On the other hand, Mr.Mehta, learned advocate appearing

for the respondent - Corporation has opposed this appeal.

Learned advocate for the respondent has referred to the

reasoning recorded by the learned Single Judge and submitted

that the learned Single Judge has not committed any error while

dismissing the petition filed by the appellant - petitioner and,

therefore, this Court may not interfere with the impugned

judgment and order passed by the learned Single Judge.

5.1 Mr.Mehta, learned advocate appearing for the respondent

has further submitted that Clause 14 of the advertisement itself

provides that if the information furnished by the candidate in any

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

part of online application is found to be false or incomplete, the

candidature / appointment of the candidate can be revoked /

terminated at any stage of recruitment process or after

recruitment or joining. Learned advocate for the respondent has

thereafter referred to Clause 22 and 23 of the said

advertisement. Learned advocate for the respondent has

submitted that the petitioner provided wrong information while

submitting application form by stating that he was getting

Rs.96,000/- by way of salary. At this stage, learned advocate for

the respondent has referred to the certificate issued by the

concerned society in favour of the petitioner and has submitted

that the petitioner was working as Supervisor in the said Society

for a particular period. The said certificate is produced at page

No.32 of the compilation.

5.2 At this stage, learned advocate for the respondent has

referred to the statement dated 19.10.2015 given by

Shaileshbhai Amrutbhai Patel, the person who had issued

certificate to the petitioner on behalf of the aforesaid society.

Learned advocate for the respondent has also referred to the

affidavit filed by the said person on 03.07.2017. It is submitted

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

that in the said affidavit and in the statement, the concerned

person has stated that the petitioner was attending / visiting to

the said society as a trainee. Learned advocate for the

respondent has urged that in the certificate it is stated that the

petitioner was working as Supervisor whereas in the affidavit the

aforesaid person has stated that the petitioner was working as

trainee and thus, wrong information was supplied to the

respondent - Corporation. Learned advocate for the respondent

has therefore submitted that when the respondent - Corporation

has terminated the service of the petitioner after giving an

opportunity of hearing to the petitioner, after issuing the show-

cause notice and after considering the reply / explanation given

by the petitioner, no error is committed by the respondent while

passing the order of termination. Learned advocate for the

respondent has therefore urged that the learned Single Judge

has not committed any error while dismissing the petition filed

by the petitioner.

5.3 Mr.Mehta, learned advocate for the respondent has at this

stage referred to the order dated 22.11.2021 passed in Civil

Appeal No.6985 of 2021, the copy of which is produced on

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

record. It is submitted that in similar type of case of the

Corporation, the Hon'ble Supreme Court has observed that when

there is fraudulent conduct on the part of the concerned

candidate at the time of submitting information to the

Corporation, it is not necessary to initiate departmental

proceedings. Learned advocate for the respondent has submitted

that the issue involved in the present appeal is squarely covered

by the aforesaid decision of the Hon'ble Supreme Court. Learned

advocate for the respondent has, therefore, urged that this

appeal may not be entertained and the same may be dismissed.

6. We have considered the submissions canvassed by learned

advocates for both the sides. We have also perused the

materials placed on record and the decisions upon which the

reliance is placed. At the outset, we would like to refer relevant

clause of the advertisement which provides the qualification and

experience for the post of Junior Cotton Purchaser as under:-

"Qualification and Experience:

B.Sc (Agri.) from any recognized University with an aggregate of 50% marks, (45% marks in case of SC/ST/PH candidates). Post Qualification Experience of minimum one year of dealing in any Agriculture Commodities in reputed organization / enterprise.

OR

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

Science Graduate / Graduate in any science stream or any other science equivalent degree (where Science Background upto HSC level is a pre-requisite) from any recognized University with an aggregate of 50% marks (45% marks in case of SC / ST / PH candidates). Post Qualification Experience of minimum one year of dealing in any Agriculture Commodities in reputed organization / enterprise"

7. Clause 14 and 23 of the advertisement provide as under:-

"14. If the information furnished by the candidate in any part of online application is found to be false or incomplete or is not found to be in conformity with eligibility criteria mentioned in the advertisement, the candidature / appointment will be considered as revoked / terminated at any stage of recruitment process or after recruitment or joining, without any reference given to the candidate.

23. Candidates need not submit / send at any address, application printouts or any certificates or copies thereof at the time of ON-LINE application (No OFF-LINE / hard copy of application will be accepted). Their candidature will be considered on the basis of the information furnished in the ON-LINE application. If at any stage, it is found that any information furnished in the ON-LINE application is false / incorrect or if according to the Management / Selection Committee, the candidate does not satisfy the eligibility criteria, his / her candidature / appointment will be cancelled / terminated."

8. From clause 14 of the advertisement, it is very clear that if

the information furnished by the candidate in any part of online

application is found false / incomplete, the candidature /

appointment will be considered as revoked / terminated at any

stage of recruitment process or after recruitment or joining

without any reference given to the candidate. Further, it reveals

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

from clause 23 that the candidature / appointment will be

considered on the basis of the information furnished in online

application and if at any stage it is found that any information

furnished in online application is false / incorrect or if according

to the Management / Selection Committee, the candidate does

not satisfy the eligibility criteria, his / her candidature /

appointment will be cancelled or terminated.

9. Keeping in view of the aforesaid important clauses of the

advertisement itself, the certificates and the information

provided by the petitioner are required to be examined. While

submitting the application form, the petitioner has stated as

under:-


THE       TEMP.         8000   8000 96000 Cotton Dealing 01-01- 30-05- 2
HIMATNAG SUPERV                           Industry in     2010 2013 Years

AGRI.                                                                  Month
PRODUCE                                                                s
PROCE &
SALE
SOCIETY

10. Further, the appellant - petitioner produced certificate

issued by the Himmatnagar Cooperative Agriculture Produce

Processing and Sale Society Limited. The said certificate provides

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

as under:

"This is to certify that Mr.Ramkishan Khoiwal, Address Near Chamna Bawri, Sardar Bazar, Shahpura, Bhyilwara - 311 404 was working as Supervisor from the year 01-11-2010 to 30-05-2013. He successfully manages all roles of cotton procurement activities, such as purchase, selection grading, processing, marketing, billing, storage and delivery. The work done by him during the above period is found satisfactory."

11. In the statement at page No.53 as well as in the affidavit at

page No.63, said person has, on the contrary, stated that the

petitioner was attending the said society by way of trainee and

no salary was paid to him.

12. Thus, from the aforesaid facts and circumstances of the

case, it is clear that the petitioner has submitted wrong

information to the respondent - Corporation while submitting the

application form that he was getting Rs.96,000/- by way of salary

and he was working as Supervisor in the aforesaid society. On

the contrary, from the aforesaid affidavit filed by the concerned

authorized signatory, it is clear that the petitioner was working

as trainee and was not getting any salary.

13. At this stage, once again this Court would like to refer

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

relevant Clauses 14 and 23 of the advertisement. It is specific

clause of the advertisement that if false or incomplete

information is supplied while submitting online application, then,

the candidature / appointment is liable to be cancelled /

terminated.

14. In the present case, after the petitioner was appointed

pursuant to the aforesaid advertisement and the information

supplied by the petitioner, the respondent - Corporation got

information during inquiry that the information supplied by the

petitioner was incorrect and the certificate of experience given

by the petitioner is also not correct and, therefore, the show-

cause notice came to be issued to the petitioner and he was

asked to give his explanation and after considering the

explanation / reply given by the petitioner, the respondent -

Corporation passed the order of termination. In the order of

termination itself, the respondent - Corporation has stated about

the incorrect and false information and the certificate of

experience supplied by the petitioner. The said order is not

interfered with by the Appellate Authority as well as Review

Authority.

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

15. We have perused the reasoning given by the learned Single

Judge. The learned Single Judge has referred to the decisions

rendered by the Hon'ble Supreme Court in the case of Devendra

Kumar Vs. State of Uttaranchal and others reported in

(2013) 9 SCC 263 wherein the Hon'ble Supreme Court has

observed in paragraph no.12 as under:-

"12. The issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged..."

Further observed that :

"It is settled proposition of law that where an applicant gets an order by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal."

16. In the case of The Cotton Corporation of India Ltd Vs.

Vignesh S. rendered in Civil Appeal No.6985 of 2021, the

Hon'ble Supreme Court has observed:-

C/LPA/1470/2018 JUDGMENT DATED: 27/02/2023

"In the present case, the advertisement had clearly indicated the eligibility condition which contemplated work experience of a specified duration. The inquiries conducted by the appellant revealed that the certificate issued in favour of the respondent was completely incorrect and false.

The basic condition of eligibility itself was thus not complied with and the invalidity went to the root of the matter. It is not a case of any conduct on part of the employee after he was appointed, but the invalidity was pertaining to the very entitlement and candidature of the respondent.

It is not even suggested that the respondent was having any documentary evidence to support his case that he had the requisite work experience for more than a year. The documents could have been in the nature of credit of the amounts towards salary into his bank account, deductions made by the requisite authorities towards his provident fund dues or any such documents. None of those documents were even referred to in the response filed on behalf of the respondent.