The Hon'ble Apex Court in the
said judgment relied upon its earlier judgment in the case of
Andhra Pradesh Public Service Commission vs. Koneti
Venkateswarulu, reported at (2005) 7 SCC 177 and found that a
person who indulges in such suppression and obtains
employment, does not deserve public employment. The
termination for withholding relevant informations while filling
in attestation form has been thus maintained by the Hon'ble
Apex Court. Mere fact that the respondent was subsequently
discharged from criminal case, is found not sufficient to absolve
him of his liability to have filled in attestation form correctly and
accurately. The petitioner before this Court was also under
obligation to disclose all relevant informations and not to
suppress material facts. The nature of employment which he
desired to enter expected more transparency from him in this
respect. His conviction for an offence involving moral turpitude
needed to be disclosed. It is crystal clear that he did not disclose
it and the respondents learnt about it only in exercise of
verification undertaken routinely through police machinery
Bombay High Court
NAGPUR BENCH
WRIT PETITION NO. 4702 OF 2012
Amit s/o Subhashrao Mohod,
Versus
1. The Bank of India
CORAM : B.P. DHARMADHIKARI &
P.B. VARALE, JJ.
DATE OF PRONOUNCEMENT : FEBRUARY 22, 2013.
JUDGMENT : (Per B.P. DHARMADHIKARI, J.)
Respondent No. 1 before this Court is a Nationalized
Bank and Respondent No. 2 is its Zonal Officer. Communication
dated 28.08.2012 issued by Respondent No. 2 to present
petitioner informing him that in view of the provisions of Section
10(1)(b)(i) of Banking Regulations Act, 1949, (hereinafter
referred to as 1949 Act) his candidature for the post of Clerical
cadre in Respondent No. 1 – Bank stood cancelled, has been
questioned by the petitioner in this petition under Article 226 of
the Constitution of India. The contention is, the Competent
Court has given him benefit of the provisions of the Probation of
Offenders Act, 1958 (hereinafter referred to as 1958 Act) and in
view of the provisions of Section 12 thereof, he cannot be
subjected to any disqualification on account of said
disqualification.
2. The judgment and order delivered by the Judicial
Magistrate First Class, Chandur Bazar, in Regular Criminal Case
No. 133 of 2003 on 06.02.2008 is not in dispute. The petitioner
Amit along with one Rahul were charged and the said Court
has found both of them guilty of an offence under Section 379
read with Section 34 of the Indian Penal Code. The prosecution
proved that on 27.05.2003 at about 1715 hrs. the petitioner and
other accused with common intention and dishonest intention
moved motor vehicle of the complainant without his consent.
The said Court instead of punishing them, used its powers under
Section 3(4) of 1958 Act, released them on entering a bond of
Rs.15,000/ each with surety to appear and receive sentence
when called upon to do so during a period of one year and in the
meantime to keep peace and be of good behaviour. The bond
was also to contain a condition that both accused shall be under
the supervision of District Probation Officer for a period of one
year amongst other conditions.
3. Shri Chandurkar, learned counsel for the petitioner in
this background submits that Section 12 of 1958 Act opens with
nonobstante clause and, therefore, it overrides all other laws
which envisage any disqualification on account of such
conviction. He has placed reliance upon the judgment of the
Hon'ble Apex Court in the case of Divisional Personnel Officer vs.
T.R. Chellappan, reported at (1976) 3 SCC 190, Union of India vs.
Bakshi Ram, reported at (1990) 2 SCC 426, for said purpose.
Without prejudice to these contentions, he has submitted that in
reply filed before this Court, the respondents have came up with
a story of suppression of material informations while seeking
employment. The learned counsel submits that as this is not the
reason disclosed in the order of termination/ cancellation of
candidature, the same cannot be looked into by this Court and
such reason cannot be supplemented by filing an affidavit in
reply. He is drawing support from the judgment of the Hon'ble
Apex Court in the case of Mohinder Singh Gill vs. Chief Election
Commissioner, reported at 1978 SC 851. As 1958 Act is later in
point of time, i.e. after 1949 Act, the 1958 Act has to prevail.
4. Shri Deo with Shri Gosavi, learned counsel for the
respondents oppose the petition. They rely upon the preliminary
submissions and submit that conviction for an offence involving
moral turpitude is not in dispute. The provisions of Section 10 of
1949 Act are very clear and hence the petition as filed is
misconceived. The petitioner was informed on 25.03.2011 that
his selection was contingent upon Police verification of his
character and antecedents. His appointment and confirmation
thereafter in the Bank was subject to receipt of satisfactory
report from the Police authorities. Thus, when the petitioner did
not disclose his conviction and the fact of his probation while
securing employment, he cannot make a grievance about
cancellation of his candidature. The learned counsel submits
that Section 12 of 1958 Act expressly refers to disqualification
attached to conviction of an offence “under such law” hence,
1949 Act is not envisaged therein. He has relied upon the
judgment in the case of Harichand vs. Director of School
Education, reported at AIR 1998 SC 788, for said purpose. In
addition, he also seeks to rely upon the judgment reported in the
case of Union of India vs. Bipad Bhanjan Gayen, reported at 2008
(11) SCC 314, to submit that in such circumstances, no
opportunity needed to be extended to the petitioner. He also
seeks to rely upon the judgment in the case of Kendriya
Vidyalaya Sangathan vs. Ram Ratan Yadav, reported at (2003) 3
SCC 437, to urge that the course adopted by the respondents is
proper and no interference is warranted. The judgment in the
case of Sushil Kumar Singhal vs. Punjab National Bank, reported
at (2010) 8 SCC 573, is also relied upon for the very same
purpose.
5, The relevant provisions need to be briefly quoted
before proceeding further. Section 10(1)(b)(i) of 1949 Act reads
as under :
“10. Prohibition of employment of managing
agents and restrictions on certain forms of
employment. (1) No banking company
(b) shall employ or continue the employment
of any person
(i) who is, or at any time has been,
adjudicated insolvent, or has suspended payment or
has compounded with his creditors, or who is, or has
been, convicted by a criminal Court of an offence
involving moral turpitude;”
Similarly, Section 12 of 1958 Act reads as under :
“12. Removal of disqualification attaching to
conviction – Notwithstanding anything contained in
any other law, a person found guilty of an offence and
dealt with under the provisions of section 3 or section 4
shall not suffer disqualification, if any, attaching to a
conviction of an offence under such law;
Provided that nothing in this section shall
apply to a person who, after his release under section 4,
is subsequently sentenced for the original offence.”
6. The perusal of judgment on which Shri Chandurkar,
learned counsel, has placed reliance in the case of Divisional
Personnel Officer vs. T.R. Chellappan, (supra) shows that there the
provisions of Article 311(2) proviso (a) of the Constitution of
India and Rule 14 of Railway Servants (Discipline and Appeal)
Rules, 1968, are looked into. The employee convicted by
criminal Court but released on probation had made the grievance
and in the background of challenge as raised, the Hon'ble Apex
Court noticed that ipso facto removal from the service cannot be
upheld. The Hon'ble Apex Court then noticed that the words in
Section 12 of 1958 Act, referred to two contingencies. The first
one is a disqualification resulting from conviction and that
disqualification must be provided by some law other than
Probation of Offenders Act. Section 12 does not contemplate
automatic disqualification attaching to a conviction and
obliteration of the criminal misconduct of the accused. The
consideration by the Hon'ble Apex Court in para 12 shows that
disqualification cannot be an automatic consequence of
misconduct, unless the statue so requires. It is observed that
proof of misconduct may or may not lead to disqualification as it
rested on facts and circumstances of a particular case and the
language of the statute. It is in this background that in para 15,
the Hon'ble Apex Court has noted a Full Bench view of the Delhi
High Court in the case of Director of Postal Services vs. Dayanand,
reported at 1972 Lab. I.C. 736. The said Full Bench has observed
that object of Section 12 of 1958 Act is to remove
disqualification attached to conviction and “it does not go
beyond it”. Important fact in this judgment is occupation of post
by the respondent and his removal therefrom.
7. In Union of India vs. Bakshi Ram, (supra), High Court
had relied upon provisions of Section 12 to set aside dismissal
and to direct reinstatement with all consequential benefits. High
Court had found that sole reason for dismissal of respondent
was, his conviction under Section 10(n) of Central Reserve Police
Force Act, 1949, and in view of Section 12 of Probation of
Offenders Act, 1958, there was no disqualification for him to
continue in service. The Hon'ble Apex Court has allowed the
appeal of Union of India and set aside the impugned order of
High Court. In para 13, it has observed that words “such law”
are used in the context of other law providing for disqualification
on account of conviction but then the Hon'ble Apex Court little
later in the very same para has observed thus :
“But that is not the same thing to state that the
person who has been dismissed from service in view of
his conviction is entitled to reinstatement upon getting
the benefit of probation of good conduct. Apparently,
such a view has no support by the terms of Section 12
and the order of the High Court cannot, therefore, be
sustained.”
The facts show that the respondent Bakshi Ram
was tried for an offence under Section 10(n) of Central Reserve
Police Force Act, 1949, and on 23.03.1971, he was sentenced to
four months' rigorous imprisonment. Because of this conviction
and sentence, he was proceeded departmentally and dismissed
from service. This disciplinary proceeding was during the
pendency of his appeal before the Sessions Judge. The Sessions
Judge upheld the conviction but released him under the
Probation of Offenders Act, 1958. It is in this background that
the Hon'ble Apex Court has looked into provisions of Section 12.
Thus, conviction and disciplinary action are found to be distinct
measures. The conviction under Section 10(n) leading to
dismissal and protection from disqualification under Section 12
of 1958 Act are thus found to be independent of each other. This
appears to be in consonance with the view expressed by the
Hon'ble three judges of the Hon'ble Apex Court in the case of
Divisional Personnel Officer vs. T.R. Chellappan, (supra).
8. We may straightway go to recent judgment in the
case of Sushil Kumar Singhal vs. Punjab National Bank, reported
at (2010) 8 SCC 573, where the provisions of Section 10(1)(b)
(i) of Banking Regulation Act, 1949 and Section 12 of Probation
of Offenders Act, 1958, are looked into. The Hon'ble Apex Court
has in para 22 extracted Section 10(1)(b)(i) of the 1949 Act and
then in para 28 applied the law. Conclusions reached by the
Hon'ble Apex Court shows that once a criminal Court grants a
delinquent employee benefit of the 1958 Act, its order does not
have any bearing so far as the service of such employee is
concerned. The word “disqualification” in Section 12 of 1958
Act is construed to mean that such a person does not stand
disqualified for the purposes of other Acts like Representation of
the People Act, 1950, etc. The conviction in a criminal case is
independent of his release on probation. Grant of benefit under
1958 Act only enables the delinquent to avoid sentence on
showing good conduct. In case of an employee who stands
convicted for an offence involving moral turpitude, it is his
misconduct that leads to his dismissal. The Hon'ble Apex Court,
therefore, dismissed the appeal of the employee.
9. Some arguments have been advanced before us about
the use of word “such” in Section 12 of 1958 Act. Section 12
which opens with nonobstante clause also employes word “any
other law”. It, therefore, stipulates that had a person been
subjected to any disqualification because of conviction for
committing an offence under law contemplated in Section 3 or 4
of 1958 Act, because of cognizance of such conviction in any
other law, that disqualification stands removed. Here, the
petitioner aspired to serve a Bank where the service warrants a
confidence of the employer. The petitioner has been convicted of
a theft. The provisions made in Banking Regulation Act, 1958,
prohibits a Bank from employing such person. The petitioner's
candidature for Clerk post has been cancelled. Thus, he was not
issued and never issued any appointment order. He did not
possess a right to post also. We, therefore, find that the matter
is governed squarely by the judgment of the Hon'ble Apex Court
in the case of Sushil Kumar Singhal vs. Punjab National Bank,
(supra).
10. The Hon'ble Apex Court in the case of Union of India
vs. Bipad Bhanjan Gayen, (supra) has noted that the respondent
employee before it was only a probationer and was sent for
training subject to verification of details given by him in his
attestation form. The order of learned Single Judge of High
Court and Division Bench of High Court setting aside his
termination on the ground of violation of principles of natural
justice were found unsustainable. The Hon'ble Apex Court in the
said judgment relied upon its earlier judgment in the case of
Andhra Pradesh Public Service Commission vs. Koneti
Venkateswarulu, reported at (2005) 7 SCC 177 and found that a
person who indulges in such suppression and obtains
employment, does not deserve public employment. The
termination for withholding relevant informations while filling
in attestation form has been thus maintained by the Hon'ble
Apex Court. Mere fact that the respondent was subsequently
discharged from criminal case, is found not sufficient to absolve
him of his liability to have filled in attestation form correctly and
accurately. The petitioner before this Court was also under
obligation to disclose all relevant informations and not to
suppress material facts. The nature of employment which he
desired to enter expected more transparency from him in this
respect. His conviction for an offence involving moral turpitude
needed to be disclosed. It is crystal clear that he did not disclose
it and the respondents learnt about it only in exercise of
verification undertaken routinely through police machinery.
Support sought to be taken from the judgment of the Hon'ble
Apex Court in the case of Mohinder Singh vs. Chief Election
Commissioner, (supra) in this respect is misconceived. The
petitioner had not stepped into employment and had no right to
post. His vested right has not been taken away. On the contrary,
for deliberate suppression of material fact by him, his
candidature itself has been cancelled. Before issuing an
appointment order, the employer has got more power and can
control entry of any person in service. Use of that power by
employer Bank in present facts is neither arbitrary nor perverse.
11. In this situation, no case is made out warranting
interference. Writ Petition is, therefore, dismissed. Rule
discharged. However, there shall be no order as to costs.
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