of the matrimonial discord between the appellant‘s brother and his
wife does not affect her suitability to the selected post and
therefore, cannot be a ground for denying her the employment.
The respondent could not show anything to the contrary.
IN THE HIGH COURT OF DELHI AT NEW DELHI
LPA 736/2013 & CM 15769/2013
Date of decision : May 26, 2014
MS. NIDHI KAUSHIK ..... Appellant
Through : Ms. Jyoti Singh, Sr. Adv.
with Mr. Sachin Chauhan, Ms. Saahila
Lamba, Mr. Sameer Sharma, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE J.R. MIDHA
Read original judgment here;https://drive.google.com/file/d/0B5vWGtQ14k1BWWFkMkx0QjN5S1k/edit?usp=sharing
1. The appellant has challenged the judgment dated 4th
September, 2013 whereby the learned Single Judge dismissed her
writ petition. The appellant is seeking appointment to the post of
Supervisor Trainee (HR) in Bharat Heavy Electronics Ltd.
(―BHEL‖) by setting aside of the order of cancellation of the offer
of her appointment. Respondent nos.2 to 4 are the contesting
respondents and are hereinafter referred to as ―the respondents‖
instead of respondents no.2 to 4.
2. Factual matrix
2.1 The appellant, BBA from I.P. University and Chartered
Financial Analyst in ICFAI University, applied for the post of
Supervisor Trainee (HR) in BHEL and was selected on the basis of
performance in the written examination followed by the interview.
At the time of interview dated 18th
submitted the bio-data form. Para 12 of the said form is relevant
and reproduced hereunder:
“12.Whether involved in any Criminal case / Law suit at any time?
June, 2012, the appellant‘s
If yes, please give current status …………………………………”
2.2 On 3rd
of appointment to the appellant. The appellant was required to
submit the attestation form before the issuance of final offer of
appointment.
2.3 On 24th
attestation form in which, in reply to ‗Para 12(i)‘, she disclosed that
an application was pending under Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to in short as
―DV Act‖). The appellant attached the copy of the notice with the
attestation form. Relevant portion of the attestation form is
reproduced hereunder:
“12. (a) Have you ever been arrested? No
(b) Have you ever been prosecuted? No
(c) Have you ever been kept under detention? No
September, 2012, BHEL issued the provisional offer
September, 2012, the appellant submitted the
(d) Have you ever been bound down? No
(e) Have you ever been fined by a Court of Law? No
(f) Have you ever been convicted by a Court of
Law for any offence? No
(g) Have you ever been debarred from any
nomination or rusticated by any University or
any other educational authority institution? No
(h) Have you ever been debarred/disqualified by
any Public Service Commission Staff Selection
Commission for any of its examination selection? No
(i) Is any case pending against you in any Court of
law at the time of filling up this Attestation Form? Yes
(ii) If the answer to any of the above mentioned
questions is Yes, give full particulars of the case /
arrest/detention / fine/
conviction/sentence/punishment etc. and/or the
nature of the case pending in the
Court/University/Educational Authority etc. at the
time of filling up this form.
Complaint pending under Domestic Violence Act
(Brother and Sister in Law Matrimonial Dispute)
I here also attach a copy of Court Notice”
September, 2012, the appellant reported for joining
2.4 On 26th
but was not allowed to join and was told to furnish the copy of the
application under DV Act mentioned in her attestation form. On
28th
September, 2012, the appellant visited the office of the
respondents to submit the copy of the said application but the same
was not taken and she was told that these documents are not needed
anymore. The appellant sent an e-mail to the Manager (HR) on
28th
September, 2012 to place this fact on record. The copy of the
same has been filed along with the writ petition.
2.5 Vide letter dated 9th
provisional letter of appointment to the appellant on the ground
that she had suppressed the material fact of the pendency of case
under DV Act in the bio-data form dated 18th
letter dated 9th
“Ref.No.PA: HRM:101-05 Dated : 09.10.2012
Ms. Nidhi Kaushik
C-2/38A
Yamuna Vihar,
Delhi, Pin-110053
This has reference to Provision Offer of Appointment dated
rd
You submitted the attestation form on 24th
which you have indicated that there is a case pending
against you under Domestic Violence Act. It is noticed
that you had suppressed this material fact in the Bio-data
form, which you filled on 18th
interview.
In this connection your attention is invited to the clause
published on the Web site for recruitment which provides:
“In case it is detected at any stage of recruitment process
that the candidate has suppressed any material fact(s), the
candidature of such candidates is liable to be rejected.”
Accordingly your candidature is rejected and the
Provisional Offer of Appointment is hereby withdrawn and
cancelled.
October, 2012, BHEL cancelled the
October, 2012 is reproduced hereunder:
Sub: Provisional Offer of Appointment - Cancellation
Sept., 2012, for the post of Supervisor Trainee (HR).
June, 2012 at the time of
For & on behalf of BHEL
2.6 On 15th
departmental appeal against the order of cancellation of
appointment dated 9th
Managing Director of BHEL on various grounds inter alia:-
2.6.1 The proceedings under the DV Act arising out of
matrimonial discord between the appellant‘s brother and his wife
are civil in nature.
2.6.2 The appellant was not involved in any criminal case and
therefore, there is no concealment of any material fact in the bio-
data form dated 18th June, 2012.
2.6.3 The appellant bonafidely believed that no criminal case was
pending against her.
2.6.4 In any case, there is no intentional/deliberate concealment of
any material fact as the appellant voluntary disclosed the
information relating to the complaint under the DV Act in the
attestation form.
2.6.5 In Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC
644, the Supreme Court condoned the minor indiscretions and
granted relief to the candidate who had concealed the involvement
in a FIR whereas in the present case, no FIR had been registered
against the appellant.
2.7 Vide letter dated 5th
appeal of the appellant was rejected by the appellate authority of
BHEL. The rejection letter dated 5th
reproduced hereunder:
“Ref.No.PA:HRM:101-05 Dated : 05.12.2012
Ms. Nidhi Kaushik
C-2/38A
October, 2012, the appellant preferred a
October, 2012 before the Chairman and
December, 2012, the departmental
LPANo.736/2013 Page 5 of 159
Yamuna Vihar,
Delhi, Pin-110053
Sub: Appeal regarding your candidature for the post of
Supervisor Trainee (HR)
This has reference to your appeal dated nil to CMD, BHEL
regarding your candidature for the post of Supervisor
Trainee (HR).
Your appeal has been examined in detail by us. We regret
to inform you that our decision for cancellation of your
provisional offer of appointment for the aforementioned
post, communicated vide our letter Ref. No. PA:HRM:101-
05 dtd.09.10.2012, remains unchanged.
For & on behalf of BHEL
2.8 The appellant filed the writ petition bearing
W.P.(C)No.7457/2012 to challenge the cancellation of the
provisional offer of appointment on various grounds inter alia that
the proceedings under the DV Act arising out of matrimonial
discord between her brother and his wife are civil in nature, no
criminal case was pending against her and therefore, there was no
concealment in the bio-data form. The respondents contested the
writ petition on the ground that the appellant is involved in a
serious offence of domestic violence of attempt to murder her
sister-in-law and the proceedings under DV Act was a criminal
case in which the appellant was accused No.4.
2.9 The learned Single Judge accepted the respondent‘s
contention that the proceedings under Section 12 of the DV Act
was a criminal case which was concealed by the appellant and
therefore, the respondent was justified in cancelling the offer of
appointment. The relevant portion of the impugned judgment is
reproduced hereunder:-
“6. Also, I cannot agree with the argument
urged on behalf of the petitioner that on a
summons being issued in a Domestic Violence
Act, it cannot be said that a criminal case is not
pending and that unless cognizance is taken by
the Metropolitan Magistrate, a criminal case
cannot be said to have come into existence. This
argument is an unnecessarily strict reading of
the requirement of para 12 of the Bio-data form
because the expression „criminal case‟ used in
that paragraph is basically to ascertain any form
of criminal case including any summons being
issued in a complaint case against the candidate.
Therefore, I am unable to agree with the
argument that there is no requirement to furnish
any details of a criminal complaint case and the
requirement to submit such information would
only have been after cognizance was taken by
the Metropolitan Magistrate.”
Summary of Principles of law
19.
Nature of proceedings under DV Act
19.1. DV Act was enacted to provide a remedy in civil law for the
protection of woman from being victims of the domestic violence
as noted in the Statement of Object and Reasons.
19.2. The object of the DV Act appears to be that Section 498A
IPC dealing with the cruelty to the women is not an appropriate
remedy because with the arrest of the husband and his family
members, leads to such acrimony that it becomes difficult for the
parties to live together again. Secondly, there was no provision to
protect the women from further cruelty and to protect her being
outstayed from matrimonial home.
DV Act empowers the
Magistrate to pass a protection order and appoint a protection
officer to protect the women from further violence. The Magistrate
is also empowered to pass an injunction order to restrain the
women from being thrown out from her matrimonial home. The
Magistrate is also empowered to pass appropriate orders for
maintenance and compensation to the women.
In proceedings
under Section 12 of the DV Act, the Magistrate is empowered to
award the reliefs under Sections 8 to 23 of the Act. Since the
proceedings under Section 12 of the DV Act are civil in nature, it
does not aggravate the situation which happens with the arrest of
the husband and his family members under Section 498A IPC. The
breach of the protection order under Section 18 amounts to an
offence under Section 31 of the DV Act. However, if there is no
breach of the protection order under Section 18, the proceedings
remain civil in nature.
19.3. The proceedings under Sections 12 and 18 to 23 of DV Act
are purely civil in nature. The reliefs under Sections 18 to 22 of
the DV Act can be sought in the Civil Court, Family Court or
Criminal Court as they are civil in nature and have nothing to do
with the conviction for any offence as provided in Section 26(1) of
DV Act.
19.4. The Court dealing with proceedings under Sections 12, 18 to
23 can formulate its own procedure under Section 28(2) of the DV
Act. Thus, any departure from the provisions of Code of Criminal
Procedure does not vitiate the proceedings initiated under
Section 12.
19.5. There is no reference to the expression ―offence‖, ―crime‖
or the like in DV Act except Sections 5, 31, 32 and 34 of the DV
Act. Section 28 uses the word ―offence‖ only in respect of Section
31 and the word ―the proceedings‖ in respect of Sections 12 and 18
to 23 of the DV Act.
19.6. The opposite party in the proceedings under Section 12 of
the DV Act is specifically named as respondent and not an
accused. The respondent has been defined in Section 2(q) of the
DV Act.
19.7. ―Domestic violence‖ defined in Section 3 of the DV Act is
per se not an offence under the Act and no punishment has been
provided for the same.
19.8. The Act by itself does not make any act, omission or conduct
constituting violence, punishable with any imprisonment, fine or
other penalty. There can be no prosecution of a person under the
provisions of this Act, for committing acts of domestic violence, as
defined in Section 3 of the Act. No one can be punished under the
Act merely because he subjects a woman to violence or harasses,
harms or injures her or subjects her to any abuse whether physical,
sexual, verbal, emotional or economic. No one can be punished
under the provisions of the Act on account of his depriving a
woman of her right to reside in the shared household.
19.9. Section 31 of the Act provides for punishment only if a
person commits breach of protection order passed under Section 18
or an order of interim protection passed under Section 23 of the
Act. Thus, commission of acts of domestic violence by themselves
do not constitute any offence punishable under the Act and it is
only the breach of the order passed by the Magistrate either under
Section 18 or under Section 23 of the Act which has been made
punishable under Section 31 of the Act. No criminal liability is
thus incurred by a person under this Act merely on account of his
indulging into acts of domestic violence or depriving a woman
from use of the shared household. It is only the reach of the orders
passed under Sections 18 and 23 of the Act, which has been made
punishable.
19.10. The Court dealing with an application under Section 12 of
D.V. Act cannot take cognizance of any offence under IPC because
the proceedings under Section 12 of the D.V. Act are civil in nature
triable by a Civil Court, Criminal Court or Family Court. However,
in the event of breach of a protection order, a fresh criminal case
has to be instituted against the accused (either by an FIR or by a
criminal complaint before the Court) and in that criminal case, at
the stage of framing the charge, the Court is empowered to frame a
charge under IPC or any other law if the facts disclose the
commission of such offence. This fresh case under Section 31
would be a criminal case as the respondent would be accused of an
offence under Section 31 of the DV Act and it would be tried by
the Magistrate. This is clear from the reading of Section 31(2) and
(3) of D.V. Act.
19.11. Section 36 of the DV Act provides that the provisions of the
Act are in addition to and not in derogation of any other law. This
means that in addition to DV Act, various other provisions under
the general laws as well as specific statutes can be invoked by the
aggrieved person. Section 5(e) of the DV Act expressly provides
that the Magistrate upon receipt the complaint of domestic
violence, shall inform the aggrieved person of her right to file a
complaint under Section 498A of the Indian Penal Code wherever
relevant.
19.12. The relevant provisions of DV Act have been time and again
interpreted by the Supreme Court and the High Courts and the
consistent view has been taken that the proceedings under Section
12 of the DV Act are civil in nature.
Reference may be made to
Indra Sarma (supra), Varsha Kapoor (supra), Shambhu Prasad
Singh (supra), Sabana (supra), Bipin Prataprai Bhatt (supra),
Narendrakumar (supra), Naorem Shamungou Singh (supra) and
Vijaya Baskar (supra).
20.
“Criminal case” mentioned in the bio-data form
20.1. The term ―criminal case‖ used in the bio-data form means
―the proceedings in respect of an offence alleged to have been
committed by the candidate pending before a criminal court‖ as
used in Section 6(2)(f) of the Indian Passports Act, 1967.
20.2. The term ―offence‖ as defined in Section 2(n) Cr.P.C.,
Section 40 IPC and Section 3(38) of the General Clauses Act
means an act or omission punishable by any law.
21.
The validity of an order has to be judged by the reasons
stated in the order itself and can‟t be supplemented by
fresh reasons later on.
The validity of an order has to be judged by the reasons
stated in the order itself and not by anything else, otherwise an
order bad in the beginning, by the time it comes to the Court on
account of a challenge, get validated by additional grounds later
brought out.
An affidavit can‘t be relied upon to improve or
supplement an order. Reference may be made to the judgments of
the Supreme Court in Gordhandas Bhanji (supra), Mohinder
Singh Gill (supra), Pavanendra Narayan Verma (supra), East
Coast Railway (supra), Rashmi Metaliks Limited (supra), Dipak
Babaria (supra) and Kerala High Court in Kunjumon Thankappan
(supra).
22.
Recording of reasons
An administrative authority is required to record reasons as
held by Supreme Court in Cyril Lasrado (supra), Kranti Associates
(P) Ltd. (supra) and Ravi Yashwant Bhoir (supra).
23.
Tendency of implicating all family members of the
husband in matrimonial disputes.
In matrimonial disputes, the tendency of the wife is to
implicate all the family members of the husband including the
married brothers and sisters who are living separately from the
husband and exaggerated versions of the incident are reflected in a
large number of complaints. Experience shows that matrimonial
laws are being misused by the offending spouse by naming each
and every adult family member of spouse but when tempers cool
and good sense prevails, the exaggerated versions are withdrawn.
Reference may be made to the judgments of the Supreme Court in
Sheoraj Singh Ahlawat (supra), Geeta Mehrotra (supra) and
Preeti Gupta (supra).
24.
Consequences of refusing to follow well settled law
If an authority does not follow the well settled law, it shall
create confusion in the administration of justice and undermine the
law laid down by the constitutional Courts.
The consequence of
an authority not following the well settled law amounts to
contempt of Court as held by the Supreme Court in East India
Commercial Co. Ltd. (supra), Makhan Lal (supra), Baradakanta
Mishra (supra), M.P. Dwivedi (supra), T.N. Godavarman
Thirumulpad (supra), Maninderjit Singh Bitta (supra), Priya
Gupta (supra) and various High Courts in Hasmukhlal C. Shah
(supra), Secretary, Labour Social Welfare and Tribunal
Development Deptt. Sachivalaya (supra), C.T. Subbarayappa
(supra), Parmal Singh (supra), Ex-CT Nardev (supra) and Head of
Department, Air Force Station Amla.
25.
Findings
25.1. The proceedings under Section 12 of the DV Act filed by the
appellant‘s sister-in-law are civil in nature as held by the Supreme
Court and various High Courts in Indra Sarma (supra), Varsha
Kapoor (supra), Shambhu Prasad Singh (supra), Sabana (supra),
Bipin Prataprai Bhatt (supra), Narendrakumar (supra), Naorem
Shamungou Singh (supra) and Vijaya Baskar (supra).
25.2. The respondent has not controverted the provisions of the
DV Act as well as the judgments mentioned above.
The
respondent‘s contention that the provisions of the DV Act and the
judgments mentioned above are irrelevant is highly irresponsible.
If the respondent could not controvert the settled position of law
arising out of clear statutory provisions and the judgments, the
respondent should have fairly conceded instead of labeling the
submissions as irrelevant.
25.3. No criminal case was pending against the appellant at the
time of submitting the bio-data form as she was not an accused of
any offence in the proceedings under Section 12 of the DV Act and
the Court dealing with the application was not holding a trial of
any offence punishable by law.
25.4. The respondent‘s contention that the appellant is involved in
a serious offence of domestic violence relating to attempt to murder
under Section 307 IPC and the respondent is accused No.4 in the
criminal case is false. The respondent‘s submission is contrary to
law as well as facts on record.
25.5. The respondent has cancelled the appellant‘s provisional
appointment on the sole ground that she was involved in a criminal
case. However, at the time of hearing of this appeal, an additional
ground was raised.
Since the appellants provisional appointment
was cancelled on the sole ground that the proceedings under
Section 12 of the DV Act was a criminal case; the additional
ground raised by the respondent at this stage before us can‘t be
looked into in view of the principles laid down by the Supreme
Court in Gordhandas Bhanji (supra), Mohinder Singh Gill
(supra), Pavanendra Narayan Verma (supra), East Coast Railway
(supra), Rashmi Metaliks Limited (supra), Dipak Babaria (supra)
and Kerala High Court in Kunjumon Thankappan (supra).
25.6. An important requirement of a fair procedure is to consider
all the relevant material and give reasons for the decision. It is well
settled that even in administrative matters, the reasons are required
to be given by the administrative authority as held by the Supreme
Court in Cyril Lasrado (supra), Kranti Associates (P) Ltd. (supra)
and Ravi Yashwant Bhoir (supra). We do not find compliance of
the same in this case as no reasons have been given in the order as
to how the case under Section 12 of the DV Act is a criminal case.
25.7. Clause 12 of the bio-data form is ambiguous and confusing
because ̳law suit‘ is a complicated technical word for a candidate
who has not studied law and is not conversant with the legal
procedures in Court.
A person may confuse the term law suit
ejusdem generis with the preceding word, ̳criminal case‘. The
word law suit would certainly exclude many categories of
litigations such as writ petitions, appeals, applications, execution
petitions, revision petitions, review applications. Lastly, if the
respondents have chosen to use an undefined word they should
have defined the meaning in the bio-data form so that the candidate
knows its meaning but the difficulty is that the respondent
themselves do not know the meaning of the term law suit and
therefore, they have not made any submissions as to its meaning
before this Court.
The respondents are also not aware as to the
meaning of term ̳criminal case‘ used in clause 12 of the bio-data
form. The interpretation of the respondent is absolutely ambiguous
and contrary to the well settled law.
In view thereof, no adverse
view can be taken against the appellant. Considering that Clause
12 of the bio-data form is ambiguous and vague, and will lead to
hardship and mistakes, we hope that the respondent will use clear
and straight questions in future. The respondents may take note of
the attestation form of Indian Administrative Service and Indian
Judicial Service reproduced above.
25.8. In the bio-data form as well as the attestation form, the
respondents are seeking information about cases pending in Court.
The criminal law ordinarily sets into motion by registration of an
FIR with the police.
If the accused is arrested by the police, the
candidate has to furnish the information in clause (a) of the
attestation form. However, there can be cases where the accused
has not yet been arrested. Let us take the example of a candidate
against whom a complaint of serious offence of cheating and
forgery has been made to the police but FIR has not yet been
registered but the preliminary investigation has started and the
candidate is aware of it or FIR has been registered but the accused
has not been arrested or the accused is absconding or has taken
anticipatory bail. This fact is very material which effects his
character and suitability to the post but none of the questions in the
attestation form covers this situation and therefore, the candidate is
not bound to disclose the same. The respondents may therefore
consider incorporating the additional questions in the attestation
form: - ―Whether any complaint been made against you to the
police or has the police registered any FIR against you, in which
you are accused or suspected to be an accused of any offence
punishable by law?‖; ―Have you been declared proclaimed
offender by any Court?‖; and ―Whether you have taken
anticipatory bail from any Court.‖
25.9. The procedure adopted by the respondents for appointment
as well as cancellation of the provisional appointment of the
appellant and considerations of her appeal, was neither fair nor
reasonable.
25.10. The proceedings under Section 12 of the DV Act arising out
of the matrimonial discord between the appellant‘s brother and his
wife does not affect her suitability to the selected post and
therefore, cannot be a ground for denying her the employment.
The respondent could not show anything to the contrary.
25.11. The decision making process of the respondent at the stage
of cancellation of appointment dated 9th October, 2012 as well as
rejection of the appeal dated 5th December, 2012 is clearly deficient
inasmuch as the respondents were not clear as to the nature of
proceedings under the DV Act and they neither thought it proper to
look into the law or even seek legal opinion.
What is more
shocking is that even now the respondents are not clear about the
same. The respondents have taken a view that the proceedings
under Section 12 of the DV Act is a criminal case which is contrary
to the well settled law detailed above. That apart, the respondents
did not apply their mind to any of the relevant questions. The
respondent‘s Senior Manager (HR) in his note observed that the
proceedings under Section 12 of the DV Act is a criminal case
which was approved by all the officers up to the level of Director
(HR) without caring to look into the law or even seeking a legal
opinion in the matter.
25.12. The respondents have dared not to follow the well settled
law relating to the nature of proceedings under Section 12 of the
DV Act. Reference in this regard may be made to the provisions of
the DV Act and the catena of the judgments in which it is clearly
held that the proceedings under Section 12 of the DV Act are civil
in nature. The respondents did not controvert any of the provisions
or the judgments and termed them as irrelevant meaning thereby
that the binding law is irrelevant for them.
The respondents are
therefore liable for consequences laid down by the Supreme Court
in East India Commercial Co. Ltd. (supra), Makhan Lal (supra),
Baradakanta Mishra (supra), M.P. Dwivedi (supra), T.N.
Godavarman Thirumulpad (supra), Maninderjit Singh Bitta
(supra), Priya Gupta (supra) and various High Courts in
Hasmukhlal C. Shah (supra), Secretary, Labour Social Welfare
and Tribunal Development Deptt. Sachivalaya (supra), C.T.
Subbarayappa (supra), Parmal Singh (supra), Ex-CT Nardev
(supra) and Head of Department, Air Force Station Amla (supra).
25.13. The respondents have made false and misleading statements
on oath that proceedings under Section 12 of the DV Act is a
criminal case; the appellant was accused no.4 in the said criminal
case; the criminal case related to serious offence of domestic
violence of attempt to murder under Section 307 IPC; the appellant
admitted that a criminal case was pending against her in the
attestation form dated 24th September, 2012; and the appeal filed
by the appellant to the Chairman and Managing Director of the
respondent
corporation
considered
and
dismissed
after
deliberations by the CMD vide letter dated 5 th December, 2012. All
the aforesaid statements are absolutely false and incorrect. As
discussed above, domestic violence is not an offence under the DV
Act. Secondly, the proceedings under Sections 12 and 18 to 23 of
the DV Act are purely civil proceedings and therefore, no criminal
case was pending against the appellant. Thirdly, the appellant was
respondent no.4 and not accused no.4 as deposed by respondents in
their affidavit. Fourthly, the appellant never admitted the pendency
of a criminal case in the attestation form. Lastly, the appeal filed
by the appellant was dismissed by the same officers who had
cancelled the provisional appointment without even considering the
grounds raised by the appellant. The records do not show any
deliberation as the appeal was not even considered on merits. The
respondents are guilty of concealment of material facts from this
Court.
25.14. The respondents misled this Court and failed to disclose
material facts. The respondents stated before the Writ Court as well
as this Court that the appeal filed by the appellant before the
Chairman and Managing Director of the respondent corporation
was dismissed vide letter dated 5th December, 2012. Ordinarily,
the Courts believe the statements made on affidavit. Very often, the
Court do not even call for the record. This course is adopted on the
presumption that the government would present a true and faithful
account of the events.
However, this Court called upon the
respondents to produce the original records. On perusal of the said
records, it was noticed that the appeal filed by the appellant was
not dismissed by the Chairman and Managing Director of the
respondent corporation but by the same officers who had earlier
cancelled the provisional appointment of the appellant. As such,
the statement made by the respondent before the Writ Court as well
as before this Court is false and incorrect. The respondents had a
positive duty to disclose all relevant and material facts which they
failed.
25.15. The record produced by the respondents does not show any
deliberations made by the officers of the respondent as to what is
the nature of proceedings under DV Act i.e. whether civil or
criminal; and whether the proceedings under the DV Act would
affect the character and suitability of the appellant to the required
post. It appears that the officers had only the copy of the notice
received by the appellant which was attached to the attestation
form. The officers did not even consider it proper to call for the
copy of the application to find out the nature of the proceedings
against the appellant. The officers took the decision only on the
basis of the observations made by the Senior Manager (HR) in his
note dated 28th September, 2012 that though the proceedings are
quasi-civil in nature but the proceedings are conducted as criminal
cases and therefore, the appellant is involved in a criminal case.
This observation by itself is contrary to the well settled law and no
officer cared to look into it. The Executive (Law) as well as the
GM (HR-Law) who are expected to know the law did not care to
look into the nature of the proceedings under DV Act. It appears
that none of the officers were aware of the nature of proceedings
under DV Act and they also did not take care to either look into the
law themselves or seek legal opinion in the matter. As such, the
whole proceedings before taking the decision of cancellation of the
appointment have been conducted carelessly without looking into
the law and the observations of the Senior Manager (HR) that the
appellant was involved in criminal case is based on surmises and
conjectures. The decision making process of the respondent is
therefore, clearly deficient. The respondents were expected to first
take a correct view of the applicable law for which they had to
either look into the law themselves or if in doubt, they could have
taken a legal opinion. However, the officers neither knew the law
nor cared to look into the law nor thought it proper to seek a legal
opinion. A wrong view of the law was taken and then applied to
the case which was bound to lead to a wrong decision.
25.16. We are of the opinion that the respondents have failed to
discharge its duty to make a full and candid disclosure in the Court,
in this case. We would be failing in our duty if we did not place on
record the displeasure of the Court with regard to the conduct of
the respondent corporation. We deprecate the conduct adopted by
the respondents in an attempt to mislead the court
25.17. According to the Respondents, BHEL is a ̳maharatna‟
company of the Government and the management is very particular
not to employ any person with doubtful integrity and tainted
antecedents.
However, we are shocked and pained to note that in
resisting a small claim, the respondents have resorted to making
false and misleading statement on oath and have dared to refuse to
follow the law well settled by the Apex Court as well as by this
Court, which has pricked our conscience. The respondents have
failed in their duty to be fair and reasonable.
It appears that
something has gone seriously wrong in working of the Legal and
HR departments of the respondents. The respondents need to do
serious introspection.
25.18. The respondents have filed an affidavit dated 20th January,
2014 in which they have disclosed that initially 150 posts were
advertised but management subsequently reduced the number to
100. Out of 100 candidates, 94 candidates joined the training.
After the training, written test and interview only 88 persons were
found fit for absorption into service. In the synopsis dated 22 nd
April, 2014, it is stated that it is not practicable to train the
appellant. It is noted that vide order dated 3 rd December, 2012, the
learned Single Judge had directed the respondents to keep the one
post of Supervisor Trainee (HR) of general category vacant till the
next date of hearing. On the next date of hearing i.e. 15th April,
2013, counsel for respondents made a statement that in case the
petitioner‘s succeeds in the writ petition or there are any further
orders of the Court, the petitioner will be appointed by respondent
no.2. In view of the said statement, the learned Single Judge
vacated the interim order dated 3rd December, 2012. This Court is
of the view that in view of the statement made by respondents
before the Writ Court on 15th April, 2013, the respondents cannot
now refuse to appoint the appellant.
26.
Conclusion
26.1. In the facts and circumstances of this case, the appeal is
allowed and the impugned judgment dated 4 th September, 2013 is
set aside. The order of cancellation of the offer of appointment of
the appellant and the letter dated 5th December, 2012 dismissing
the appellant‘s appeal are hereby quashed. The provisional offer of
appointment of the appellant dated 3rd September, 2012 is restored.
The respondent BHEL shall complete all the formalities and issue
the final offer of appointment to the appellant within five days and
the appellant shall report for joining the respondent on 2nd June,
2014 at 10:00 am. The respondents shall pay a costs of Rs.50,000/-
to the appellant.
26.2. Next question arises as to what action should be taken
against the respondents with respect to the false statements made
on oath and refusal to follow the well settled law by the Apex
Court and this Court. It cannot be gainsaid that the judgments
mentioned above are binding on the respondents who could not
have bypassed or disregarded them except at the peril of contempt
of this Court. This cannot be said to be a mere lapse. It is a fit case
for ordering inquiry or initiating proceedings for contempt of court.
However, before taking further action in this matter, this Court
would like the Secretary, Ministry of Heavy Industries & Public
Enterprises and the CMD of BHEL to look into this matter and
consider the implication of the respondents‘ refusal to follow the
well-settled law, making false statements on oath, making wrong
submissions on facts and misleading this Court. The learned ASG
is requested to assist this Court in this matter.
27.
List on 30th May, 2014 for response from the Secretary,
Ministry of Heavy Industries & Public Enterprises and CMD of
BHEL. A senior officer from the office of Secretary, Ministry of
Heavy Industries & Public Enterprises shall remain present with
complete instructions.
The CMD of BHEL shall take an
independent view in the matter without the aid and advice of the
officers involved in taking decision of the cancellation of the
appellant‘s appointment/rejection of the appeal and shall depute a
senior officer with complete instructions to attend the Court.
28.
The Executive Director (HR & CC) of BHEL, who has filed
the affidavits containing false and misleading statements shall
remain personally present in Court on 30 th May, 2014 to show
cause why action be not taken against him. He shall also disclose
the names of other officers responsible for the lapses.
29.
Copy of this judgment be given dasti to the Standing
Counsel for Union of India, who shall have the same delivered to
the Secretary, Ministry of Heavy Industries & Public Enterprises
and CMD of BHEL without any delay. The Standing Counsel
shall also send a copy of this judgment to the Secretary (Law &
Justice) and U.P.S.C. for considering the suggestions of this Court
to incorporate additional questions in the attestation form for
appointments in government and statutory bodies.
30.
Copy of this judgment be also sent to the Registrar General
of this Court to consider the above suggestions.
31.
The original record of BHEL (two files) be returned back to
the respondents after retaining a photocopy of the same on record.
The record of the writ court as well as the LCR be returned back
forthwith.
32.
Considering the principles of law discussed in this judgment,
copy of this judgment be sent to the Principal District & Sessions
Judge and the Delhi Judicial Academy.
33.
Pending application is disposed of as infructuous.
J.R. MIDHA, J.
P.K. BHASIN, J.
MAY 26, 2014
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