Telangana High Court

Prasad K.S.N.V., vs State Bank Of India, on 20 January, 2023

Bench: Namavarapu Rajeshwar Rao

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                                                                 WP No. 6623 of 2018

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


                 WRIT PETITION No.6623 of 2018

ORDER:

This Writ Petition is filed for the following relief:

"...to set aside the impugned proceedings dt.30.10.2017 issued by the 1st respondent Bank as illegal, arbitrary and contrary to the spirit and object of the directions of this Court in W.P.No.17363 of 2013 dt.18.07.2017 and also contrary to the directions given by the Hon'ble Apex Court in Avtar Singh's Case reported in 2016-8-SCC-471, and consequently direct the respondents to reinstate the petitioner into service with all consequential benefits; by issuance of a Writ of Mandamus and pass..."

2. It is contended by the petitioner that he was

appointed by the respondent Bank as Probationary Officer vide

proceedings dt.22.02.2011 and assumed his duties from

01.03.2011. Pending his probation period, the petitioner was

issued a show cause notice vide proceedings dt.10.12.2012 as to

why his services should not be terminated on the ground that he

concealed the fact that he was involved in a criminal case at the

time of applying for the said employment. The petitioner

submitted his explanation dt.31.12.2012 stating that he thought

that the matter was settled in the year 2009 as the case was

compromised between the elders of both families before even

applying to the said post. However, the services of the petitioner 2 RRN, J WP No. 6623 of 2018

were terminated by the respondent Bank through proceedings

dt.03.05.2013 on the ground that before entering into service,

though a criminal case was pending against him, in his bio-

data-cum-attestation form, in columns No.20 and 21 stated NIL

in respect of as to whether any prosecution is pending or

whether he was convicted. The said termination order was

challenged by him by filing Writ Petition No.17363 of 2013

wherein this Court vide its order dt.18.07.2017 set aside the

impugned order dt.03.05.2013 and remitted the matter back to

the 1st respondent to reconsider the issue keeping in mind the

principles laid down in the judgment of the Hon'ble Supreme

Court in Avtar Singh (supra) and pass a fresh reasoned order

keeping in mind the judgment in Avtar Singh (supra) and

contentions raised by the petitioner in the Writ Petition and

explanation submitted by the petitioner.

2.1. It has been further contended by the petitioner that in

response to his representation dt.31.08.2017 seeking re-

consideration of his case for reinstatement in accordance with

the judgment of this Court in W.P.No.17363 of 2013 filed by

him, the respondent Bank on 30.10.2017 rejected his

representation vide impugned proceedings on the ground that 3 RRN, J WP No. 6623 of 2018

his case cannot be considered as per point No.1 under the

guidelines issued by the Hon'ble Apex Court in Avtar Singh's

case.1

2.2 It is further contended by the petitioner that he

submitted a representation on 31.08.2017 to the respondent

Bank along with a copy of the judgment and requested justice in

terms of the guidelines issued in Avtar Singh's case. But, the

respondent Bank through its proceedings dt.30.10.2017

reiterated its stand and communicated the decision to stick to

its earlier decision by stating that the representation of the

petitioner dt.31.08.2017 cannot be considered. The said

impugned proceedings dt.30.10.2017 is challenged in the

present Writ Petition. The respondent bank though noticed

that the criminal case was subsequently closed, but on the

ground that at the time of filling up the bio-data and attestation

form, the criminal case was still pending and that the petitioner

failed to disclose the pendency of the criminal case against him.

The details of the criminal case are as follows:

"Petitioner is already married to a girl of his choice long before his joining the respondent Bank and as the

2016(8)SCC471 4 RRN, J WP No. 6623 of 2018

same was not informed to his family members, unilaterally the family members arranged marriage with another girl. As the petitioner does not want the above mentioned situation to happen, he went and informed the other girl and her family that he is already married and therefore, aggrieved by the same, the disgruntled family filed a criminal case against him and all his family members under Dowry Prohibition Act and under sections 417 and 420 I.P.C. As a matter of fact, the petitioner going and telling the family members of the other girl itself would show that it does not come under Section 420 I.P.C. Further, Section 3 & 4 of Dowry Prohibition Act raised against him and his family members, at the time of framing of the charges were deleted, and therefore, it is left with Section 420 and 417 I.P.C. As the family of the other girl realized that there is no evidence and there is no necessity to unnecessarily harass the petitioner and his family members, they came forward for a settlement and the matter was settled amicably. As stated above elders settled the issue and later, closed before the Lok Adalat. These facts are expected to be looked into by the respondent Bank, but they failed to do so. Thus, there is a total lack of application of mind by the respondent Bank."

2.3 It is further contended by the petitioner that the Apex

Court advised the employers to look into all the 11 points in 5 RRN, J WP No. 6623 of 2018

Avtar Singh's case before taking any decision on the fate of an

employee who has not disclosed details of a pending criminal

case at the time of appointment. But, the respondent Bank took

into account only point No.1 in Avtar Singh's case and

deliberately neglected the remaining 10 points. He further

contended that even though he submitted the proof of

settlement in Lok Adalat to the respondent Bank on 07.02.2013,

it did not take any decision even after the completion of the

probation period by 01.03.2013, and because of the termination

order dt.03.05.2013, the petitioner could not get employment in

any Bank. Accordingly, prayed to allow the Writ Petition.

3. Counter filed by the respondent Bank contending that

the petitioner had secured employment in the respondent Bank

as a Probationary Officer by furnishing false information and by

suppressing mandatory information with regard to the pendency

of criminal case against him at the time of joining the service of

the respondent bank. In compliance with the order of this

Court, the respondent bank has considered the case of the

petitioner and subsequently, the representation of the petitioner

was rejected by the respondent bank on 30.10.2017 as per point

No.1 under the guidelines issued by the Apex Court in the case 6 RRN, J WP No. 6623 of 2018

of Avatar Singh. The terms of his confirmation in regular service

of the bank were subject to satisfactory reports from the law and

order authorities in regard to his character and antecedents.

3.1 It is further contended that the proceedings

dt.03.05.2013 terminating the appointment of the petitioner as a

Probationary Officer was issued based on such adverse reports

received from the District Collector, Visakhapatnam District and

also the police department, informing about the pendency of a

criminal case against the petitioner in Cr.No.241 of 2009 of P.S.

Anakapally, for the offences under Sections 417 and 420 r/w 34

IPC and also under Sections 3 & 4 of the Dowry Prohibition Act

and it was registered as C.C. No.623 of 2009 on the file of

Additional Judicial Magistrate of First Class, Anakapalli. The

petitioner had consciously and voluntarily suppressed the above

information relating to the pendency of a criminal case against

him while joining as Probationary Officer in SBI, and the

persons with such an adverse record and facing criminal

proceedings cannot be employed in the respondent Bank. The

petitioner has no ground to oppose or contest the above said

order of termination of the service as a Probationary Officer and

there is no substance in the contentions raised by the petitioner 7 RRN, J WP No. 6623 of 2018

that he was deemed to be in regular service automatically upon

the completion of the period of 2 years from the date of his

joining the services of the bank on 01.03.2011.

3.2 It is further contended by the respondent bank that a

reference made by the petitioner in regard to the closure of the

criminal case No.623 of 2009 in terms of the Award passed by

the Lok Adalat dt.29.01.2013 is of no help in his case as he

joined in the service of the bank in the year 2011 furnishing

false information and concealing material facts pertaining to the

pendency of a criminal case at the time of joining the service of

the respondent bank. The petitioner has not brought out any

ground against the order of rejection of the representation of the

petitioner and prayed to dismiss the Writ Petition.

4. Heard both sides. Perused the record.

5. This is the second round of litigation between the

parties arising out of the impugned order dt.03.05.2013 passed

by the respondent Bank in terminating the services of the

petitioner, pursuant to the directions of this Court in

W.P.No.17363 of 2013 wherein the respondent Bank was 8 RRN, J WP No. 6623 of 2018

directed to reconsider the case of the petitioner in terms of

Avtar Singh's case (supra).

6. It is necessary to extract the relevant portion of the

proceedings of Character and Antecedent Verification

dt.10.12.2012 of the 2nd respondent which reads as follows:

"02. At the time of applying for the post of Probationary Officer, you have concealed the fact that you have been involved in a Criminal Case, thereby stating false information in Item No. 20 and 21 of Candidate's Bio-data cum Attestation Form dated 25/10/2010.

06. Though you have agreed to abide by the rules of SBI Officer's Service Rules, 1992, vide your declaration Form A dated 01/03/2011, you have infringed Rule No. 14(1) r/w. Note 2 r/w under Chapter IV and Rule No.64(1) under Chapter XI of SBI Officer's Service Rules, 1992.

08. We also refer to your declaration in Bio-data form for recruitment of Probationary Officers dated 18.04.2010 which read as follows:-

"All the statements made in this application are true and if any of the particulars furnished by me are found to be incorrect or suppressed, my candidature is liable to be rejected at any stage of the selection process. Even though it is found after my appointment in the Bank that the particulars furnished by me are incorrect or have been suppressed, my services are liable to be terminated without any notice."

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                                                              WP No. 6623 of 2018

09. In the light of the above, Please submit your explanation as to why your services cannot be terminated vide SBI Officer's service rules 1992 Rule No:16(3)(1)for violation of SBI Officers Service Rules, 1992 Rule no:14(2), Rule No:64)2 and basing on the declarations made by you on the dates mentioned above."

Hence, it is clear from the above that the petitioner suppressed

material and crucial information which ought to have been

disclosed to the respondents Bank and the petitioner's

explanation was awaited for consideration.

7. It is further necessary to extract the relevant portion

of the Notice for Termination dt.03.05.2013 of the 1st respondent

which reads as follows:

"2. The allegations against you in the charge sheet filed in CC No.623/2009 includes (a) suppression of the fact that you have already married (b) you have taken a portion of advance dowry punishable under section 417, 420 r/w 34 I.P.C. You were asked to explain vide Letter No.HR/L&D/1244 dated 10.12.2012. In your explanation dated 31.12.2012 you have said that the case filed in the year 2009 was settled by the elders way back in the year before your applying for Bank's job. But it is revealed that CC No.623/2009 came up before Lok Adalat Bench at Anakapalle as CaseNo.13/2013 and a Compromise Award was passed on 29th January, 2013. Thus it is evident that the particulars furnished by you in the "Bio data-cum-attestation form" and in the explanation submitted by you are false and you have suppressed the material facts.

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                                                                 WP No. 6623 of 2018

8. It is clear from the above that the petitioner

suppressed the fact of pendency of the criminal case against him

and has taken a stand that he did not mention the same in the

declaration form as he was under the impression that the case

was settled in the presence of the elders of both families and the

same ended in compromise vide award dated 29.01.2013 of the

Lok Adalat Bench at Anakapalle. After the termination of the

petitioner from service, he challenged the said termination order

before this Court in W.P No. 17363 of 2013 and the same was

allowed, setting aside the termination order and the matter was

remitted back to the Bank for reconsideration in terms of Avtar

Singh's Case (supra).

9. It is now relevant to extract the relevant portion of the

impugned proceedings dt.30.10.2017 through which, the

petitioner's case was reconsidered pursuant to the orders of this

Court and was rejected, i.e the services of the petitioner were

terminated by the respondent Bank after duly considering the

law laid down in Avtar Singh's Case (supra), and the same

read as follows:

"...In obedience of compliance of the order of the High Court, your representation is carefully examined keeping in view of the laid down in 11 RRN, J WP No. 6623 of 2018

Avatar Singh case. In the case, the Hon'ble Supreme Court has made the following 4 broader guidelines:

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.

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. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

3)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 : - ...

The charge sheet filed against you as accused in Criminal Case No 623/2009 is not of trivial in nature. It is a case under Dowry Prohibition Act and Indian Penal Code. Further in your explanation dated 31.12.2012, you have wrongly stated that the case filed in the year 2009 was settled by the elders in the year before your applying for Bank's job. But it is revealed that the Criminal Case was pending at the time of submission of Bio data cum Attestation Form and pending up to the year 2013. Further in your letter dated 30.04.2013 you have voluntarily admitted that the criminal case was filed against you and the reasons assigned for non disclosure were that you were that you were under the Impression that the criminal case was already settled and due to Ignorance of legal matters. You have further admitted that case was sttled in Lok Adalat Bench at Anakapalle as Case No 13/2013 only on 29.01.2013. The said explanation is not convincing and you cannot plead ignorance of involvement in the criminal case."

10. As seen from the above, the 1st respondent Bank after

duly considering the guidelines framed in Avtar Singh's case

(supra) has clearly set out reasons for terminating the services of

the petitioner by reiterating their earlier stand as well.

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                                                              WP No. 6623 of 2018

11. The ratio in Avtar Singh's case and the guidelines

framed thereto are crucial to be analysed in determining the

present case. Some of the relevant portions of the decision are

as follows:

"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 employer come 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.

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                                                        WP No. 6623 of 2018

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.

38.4.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 : -

38.7.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.

38.10. 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 suppressioveri or suggestiofalsi, knowledge of the fact must be attributable to him.

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                                                                    WP No. 6623 of 2018

12. Now it is crucial to examine the nature of offence

involved by the petitioner, which no doubt, ended in acquittal by

way of Award being passed by the Lok Adalat Bench arising out

of compromise between the petitioner and the de-facto

complainant and whether such acquittal can confer any right on

the petitioner to be considered for reinstatement to his post

which he was holding with the respondents Bank, despite the

petitioner suppressing the fact of the pendency of the criminal

case.

13. This Court in W.P No. 250 of 2021 had an occasion in

dealing with a similar issue of what offences are trivial in nature

for the purpose of consideration into appointment in cases

where information as to involvement in criminal cases was

concerned and the court observed as follows:

"13.....The compoundable offences are less serious offences and are private in nature. Further the offences covered under Sub-Section (1) of Section 320 Cr.P.C are minor offences and trivial in nature and mostly having limited impact on the society. These offences do not require and permission of the Court for composition .

16. The petitioner herein was involved I offences under Sections 448, 427, 507 read with Section 34 IPC, which are covered under Section 320(1) Cr.P.C. The petitioner and the complainant have arrived at a settlement and compounded the offences ...."

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                                                                     WP No. 6623 of 2018

14. However, in the present case, the petitioner was

involved in the offence punishable under section 420 of the

Indian Penal Code, for which to be compounded, is provided

under section 320(2) of the Code of Criminal Procedure. It can

be concluded from the observation in the preceding paragraph,

the offence involved in by the petitioner is not trivial in nature,

which is rightly contended by the respondents. Further, the

post to which the petitioner was appointed is a higher post and

the respondents' view and decision in terminating the services of

the petitioner is well within their discretion and in terms of the

guidelines framed in Avtar Singh's case (supra).

15. The counsel for the respondents relied on the decision

of the Hon'ble Supreme Court in State of Rajasthan vs Chetan

Jeff2in which it was observed as follows:

"6.10 After reproducing and/or reconsidering para 38.5 of the decision in Avtar Singh (supra), in Abhijit Singh Pawar (supra), in para 13, this Court observed and held as under:

14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST.

Civil Appeal No. 3116 of 2022 decided on 11.05.2022.

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                                                                WP No. 6623 of 2018

Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."

16. As such, the respondents are not wrong in expecting

the petitioner to be truthful and transparent with the appointing

authorities when he was given a post of a higher level by not

suppressing material facts at any stage of his employment. The

respondents have kept in mind all the aspects necessary before

passing the impugned order through which the services of the

petitioner were terminated and this Court finds no irregularity

committed by the respondents. As such, the Writ Petition fails

being devoid of merit and is liable to be dismissed.

17. Accordingly, the Writ Petition is dismissed. No order

as to costs.

Miscellaneous petitions, if any, pending in this Writ