Sunday 3 March 2013

Employer must be told about criminal past of employee


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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