Orissa High Court
Binod Bisi vs Union Of India And Others .... Opp. ... on 19 November, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.27124 of 2024
Binod Bisi .... Petitioner
Ms. Madhumita Panda, Advocate
-versus-
Union of India and others .... Opp. Parties
Mr. Biswajit Maharana, CGC
CORAM:
JUSTICE S.K. SAHOO
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 19.11.2024
01. This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
Heard Ms. Madhumita Panda, learned counsel
for the petitioner and Mr. Biswajit Maharana, learned
counsel for the Union of India.
The petitioner Binod Bisi has filed this writ
petition challenging the order dated 16.08.2018
passed by the Senior Superintendent, RMS 'N'
Division, Cuttack under Annexure-6 and the order
dated 29.08.2024 passed by the learned Central
Administrative Tribunal, Cuttack Bench, Cuttack in
O.A. No.260/00408 of 2018 under Annexure-13 in
dismissing the Original Application.
It appears that the petitioner preferred the
Original Application before the learned Tribunal to set
aside the order of termination dated 16.08.2018 with
a further direction to the respondents to permit him
to continue the work till disposal of the Criminal
Appeal on provisional basis and also to set aside the
order dated 02.01.2023 passed by the
Superintendent, RMS 'N' Division, Cuttack.
The petitioner was arrayed as an accused
relating to an incident, which took place on
29.03.2000, for the offence punishable under section
302 of the Indian Penal Code (hereinafter 'I.P.C.')
along with other offences and he faced trial in the
Court of learned Addl. Sessions Judge, Sonepur in
Sessions Case No. 10/35 of 2000 along with twenty
eight accused persons on being charged under
sections 148, 341, 294,307, 302, 324, 325, 336,
427, 149 of I.P.C. and vide judgment and order
dated 13.02.2004 though the petitioner was
acquitted of other offences but he was found guilty
for the offences under sections 323/149, 324/149
and 325/149 of the I.P.C. and sentenced accordingly.
Against the said order of conviction and
sentence, the petitioner preferred CRLA No. 49 of
2004 before this Court. During pendency of the
appeal, the petitioner was appointed as Multi Task
Staff (M.T.S.) in the office of the Superintendent,
RMS 'N' Division, Cuttack vide appointment order
dated 14.03.2018 under Annexure-2 and in the
prescribed form submitted before the authority, the
petitioner did not mention that any criminal case has
been pending against him and much less, he has
been found guilty under sections 323/149, 324/149
and 325/149 of the I.P.C. by the learned trial Court.
The appeal preferred by the petitioner was decided
finally by this Court and vide judgment and order
dated 12.05.2022, this Court confirmed the
judgment and order passed by the learned trial Court
and dismissed the appeal. Thereafter, the petitioner
preferred Special Leave Petition before the Hon'ble
Supreme Court and on the basis of the same,
Criminal Appeal No.1802 of 2022 was registered and
the Hon'ble Supreme Court vide order dated
18.10.2022 also confirmed the conviction of the
petitioner for the aforesaid offences, however, so far
as the offence under section 325/149 of the I.P.C. is
concerned, taking into account his physical disability,
the Hon'ble Court reduced the sentence to the period
already undergone.
While the matter was sub-judice before this
Court, the petitioner received a show cause notice
dated 16.07.2018 from the authorities for
suppression of fact in the attestation form in relation
to his provisional appointment. The authorities have
mentioned therein that the petitioner has furnished
false information and there has been suppression of
factual information in the attestation form. On
receiving the show cause notice, the petitioner
furnished his reply and the authorities, after carefully
going through the show cause reply filed by the
petitioner dated 30.07.2018, held as per the
impugned order dated 16.08.2018 to be not
convincing and further held that the petitioner has
mentioned 'No' and 'NA' against all the sub-paras of
paragraph no.15 of the attestation form for which it
is proved that he knew everything while submitting
the attestation form and he has also given
undertaking in the attestation form that he was fully
aware that by providing false information or
suppressing material information while filing the
attestation form, the authorities have full right to
terminate his appointment letter and that he is liable
for appropriate criminal/civil action as a consequence
and the authorities were of the view that in view of
the warning section in the attestation form and
suppression of fact committed by the petitioner, he
deserves appropriate criminal/civil action and
accordingly, it was ordered that the provisional
appointment be terminated with immediate effect.
The petitioner challenged the said order before
the learned Central Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No.260/00408 of 2018 and
during pendency of the Original Application, not only
the judgment passed in the Criminal Appeal No. 49 of
2004 by this Court but also the order passed by the
Hon'ble Supreme Court in Criminal Appeal No. 1802
of 2022 were pronounced.
Learned Tribunal after considering the
submission made by the learned counsel for both the
parties and taking into account the Central Civil
Services (Temporary Services) Rules, 1965
(hereinafter the '1965 Rules') has been pleased to
hold that while submitting his application, the
criminal case was instituted and pending against the
petitioner. The petitioner was also arrested and
detained in judicial custody and he was released on
bail by the order of this Court and admittedly, he has
suppressed such fact while submitting the
application/attestation form which came to the notice
after police verification.
The learned Tribunal took into account the
judgment pronounced by this Court in CRLA No. 49
of 2004 dated 12.05.2022 so also the order passed
by the Hon'ble Supreme Court in Criminal Appeal
No.1802 of 2022 and has been pleased to hold that
the petitioner has himself admitted that he did not
disclose about his involvement in the criminal case in
the attestation form apprehending his automatic
disqualification and if the petitioner would not have
suppressed the same in his attestation form, he
might not have been selected and in his place,
another person could have taken the berth. The
learned Tribunal further held that the petitioner has
not come with clean hand and therefore, he is not
entitled to equity. The very approach and intention of
the petitioner is proved to be ulterior and therefore,
his termination from service is based on Rules after
giving him show cause notice and as per the
conditions stipulated in his offer of appointment and
thus, no lenient view was taken.
The main attack of Ms. Panda, learned counsel
for the petitioner is that the authorities have not
followed Rule 5 of the 1965 Rules. After going
through the said provision and the documents on
record, we find that the authorities have complied
with the provisions of the said Rule. The authorities
have issued the show cause notice and the petitioner
has filed his reply and after going through the same
carefully, particularly, in view of the admission of the
petitioner that he did not disclose in the attestation
form about his involvement in criminal case out of
fear for his automatic disqualification, the
termination letter was issued.
It is a well-known principle of law that, who
seeks equity from the Courts of extraordinary
jurisdiction, must come with clean hands and mind
and he must do equity. The legal maxim jure naturae
aequum est neminem cum alterius detrimento et
injuria fieri locupletiorem means that it is a law of
nature that one should not be enriched by causing
loss or injury to another. The Hon'ble Apex Court in
the case of V. Chandrasekaran -Vrs.-
Administrative Officer reported in (2012) 12
Supreme Court Cases 13 has held that whenever a
person approaches a Court of equity, in the exercise
of its extraordinary jurisdiction, it is expected that he
should approach the said Court not only with clean
hands but also with a clean mind, a clean heart and
clean objectives. Thus, he who seeks equity must do
equity.
Suppression of material information and
making a false statement has a clear bearing on the
character and antecedents of the employee in
relation to his continuance in service. A candidate
having suppressed the material information and/or
giving false information cannot claim right to
continuance in service.
The petitioner, in the case in hand, had the
knowledge that by suppressing the material fact, i.e.
his involvement and also, conviction in a criminal
case, he would end up getting an unjust benefit and
another deserving person might be deprived of his
just and legal right. Therefore, it is palpable that
despite knowing about the consequence of his act, he
proceeded on to conceal the fact which resulted in his
illegal selection.
Above all, a vital aspect which must be
adjudicated in the incumbent matter is that if it
comes to the knowledge of the employer that the
employee was involved/convicted in a criminal case
before being appointed and he has suppressed such
material fact at the time of such appointment, what
recourse is available with the employer and whether
it shall be entitled to terminate the employee from
service altogether. While deciding a similar matter,
the Hon'ble Supreme Court in the case of Avtar
Singh -Vrs.- Union of India, reported in (2016)
8 Supreme Court Cases 471 has given the
following guidelines to be considered by the
employers in such situations:
"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, 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 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."
[Emphasis supplied]
As has already been stated above, the
petitioner was involved in a criminal case involving
serious offences, including the one under section 302
of the I.P.C. Though he was acquitted for the offence
of murder, but he was found guilty under section
323/324/325/149 of the I.P.C. The aforesaid
offences are not petty or trivial in nature which can
be overlooked by an employer considering the same
as triviality and the same can also amount to moral
turpitude. Therefore, considering the guidelines
given by the Hon'ble Supreme Court in Avtar Singh
(supra), we can safely conclude that the employer
was at liberty to cancel the appointment of the
petitioner in lieu of suppression of such a vital and
material fact regarding his conviction in a matter
involving very grave offences.
We are of the humble view that the authorities
have rightly terminated the petitioner from service
and the learned Tribunal has discussed the
contentions raised by respective sides and has
passed the impugned order. We find that there is no
illegality or impropriety in the impugned order.
Thus, the writ petition being devoid of merit,
stands dismissed.
(S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
PKSahoo
Location: HIGH COURT OF ORISSA, CUTTACK
