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2002 DIGILAW 392 (KER)

Raphy Xavier K. v. VS Union of India

2002-06-21

CYRIAC JOSEPH, K.THANKAPPAN

body2002
Judgment :- Cyriac Joseph, J. 1.The petitioner challenges Ext.P5 order passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.758/2000. The petitioner herein was the applicant in the said Original Application which was dismissed by the Tribunal as per Ext.P5 order. 2. As per Ext.P2 Memorandum dated 9.5.1997 the third respondent offered to the petitioner a temporary post of Assistant Lightkeeper (SS) in the Department of Lighthouses and Lightships. The terms of appointment were specifically stated in Ext.P2. As per clause 1 of Ext.P2 the petitioner would be on probation for a period of two years from the date of appointment, which could be extended or curtailed at the discretion of the competent authority. As per clause 6, if any declaration made or information furnished by the candidate proves to be false or if the candidate is found to have willfully suppressed any material information, he will be liable to be removed from service. As per clause 7, if the petitioner accepts the offer on the terms and conditions mentioned in Ext.P2 he should communicate his acceptance to the third respondent and report for duty on or before 30.5.1997. The petitioner accepted the offer contained in Ext.P2 and submitted the joining report on 17.5.1997. Copy of the joining report has been produced as Ext.P4. In Ext.P4 the petitioner stated that the terms and conditions laid down in Ext.P2 Memorandum were acceptable to him and accordingly he was reporting for duty. In Ext.P4 he also furnished the detailed information required in connection with his appointment. One such information required was whether there was any case pending against him in any court of law at the time of filling up the Attestation Form. To the said query, in column 12 (i) of the Attestation Form the petitioner answered ‘No’. As per column 12(1) if the answer to the above question was ‘Yes’, the petitioner was obliged to 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 the form. Since the answer to the query in column 12 (i) was ‘No’, the petitioner did not give any further particulars in column 12 (1). At the beginning of the Attestation Form there were the following warnings: “1. at the time of filling up the form. Since the answer to the query in column 12 (i) was ‘No’, the petitioner did not give any further particulars in column 12 (1). At the beginning of the Attestation Form there were the following warnings: “1. The furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification and is likely to render the candidate unfit for employment under the Government; 2. If detained, arrested, prosecuted, bound down, fined, convicted, debarred, acquitted etc. subsequent to the completion and submission of this from, the details should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form has been sent earlier, as the case may be failing which it will be deemed to be a suppression of factual information; 3. If the fact that false information has been sent or that there has been suppression of any factual information in the Attestation Form comes to notice at any time during the service of a person his services would be liable to be terminated”. Under column 12 in the Attestation Form there was the following Note: “i) Please also see the warning at the top of this attestation form; ii) Specific answer to each of the questions should be given by striking out ‘Yes’ or ‘No’ as the case may be.” At the end of the Attestation Form there is a certification by the candidate to the following effect: “I certify that the foregoing information is correct and complete to the best of my knowledge and belief. I am not aware of any circumstances which might impair my fitness for employment under Government.” 3. As per Officer Order dated 24.7.1997 of the third respondent the petitioner was appointed to the post of Assistant Lightkeeper (Senior Scale) on ad hoc basis with effect from 15.6.1997 on the terms and conditions communicated to him vide Memorandum No.5-E(2)/81 dated 9.5.1997 (Ext.P2) and accepted by him. Subsequently, as per Ext.P1 Office Order dated 12.5.2000 the petitioner’s services were terminated by the third respondent. In Ext.P1 it is stated that the petitioner while filling on the forms for verification of character and antecedents failed to give the correct information and that an adverse report has been received against him. Subsequently, as per Ext.P1 Office Order dated 12.5.2000 the petitioner’s services were terminated by the third respondent. In Ext.P1 it is stated that the petitioner while filling on the forms for verification of character and antecedents failed to give the correct information and that an adverse report has been received against him. Ext.P1 order was passed by the third respondent in exercise of his powers as disciplinary authority and as per the terms and conditions of the appointment order vide Memorandum dated 9.5.1997 (Ext.P2) and accepted by him. Challenging Ext.P1 Office Order dated 12.5.2000 the petitioner filed O.A.No.758/2000 before the Central Administrative Tribunal, Ernakulam Bench. The Tribunal found that at the time when the applicant filled up the Attestation Form there were two criminal cases pending against him. Before the Tribunal the applicant did not dispute the fact that at the time of filling up the Attestation Form two criminal cases were actually pending against him. The stand of the applicant was that since the complaints were frivolous, he did not expect any conviction and he was advised by local authorities that he need mention the case only if he was punished and hence he wrote ‘No’ against column 12(i) of the Attestation Form. The Tribunal held that in view of the categoric admission of the applicant himself that he wrote in the Attestation Form that no criminal case was pending when actually two criminal cases were pending against him, the failure to issue a notice to show cause prior to Ext.P1 order did not violate the principles of natural justice. The Tribunal was of the view that in terms of the conditions of appointment accepted by the petitioner, his services were liable to be terminated and that Ext.P1 order was legal and valid. Accordingly the Original Application was dismissed by the Tribunal as per Ext.P5 order. 4. Having heard learned counsel for the petitioner and having considered the materials placed on record, we do not find any illegality in the impugned order of the Tribunal. On the facts admitted by the petitioner before the Tribunal, the Tribunal was right in coming to the conclusion that in view of the conditions of appointment accepted by the petitioner, his services were liable to the terminated on the ground that he suppressed relevant information in the Attestation Form. On the facts admitted by the petitioner before the Tribunal, the Tribunal was right in coming to the conclusion that in view of the conditions of appointment accepted by the petitioner, his services were liable to the terminated on the ground that he suppressed relevant information in the Attestation Form. The Tribunal was also right in holding that in view of the admission of the petitioner that two criminal cases were actually pending against him at the relevant time, the petitioner could not have offered any valid explanation, even if a notice was issued to him before terminating his services as per Ext.P1 order. On the facts and circumstances of this case we are inclined to agree with the Tribunal that there was no violation of the principles of natural justice in this case. 5.Shri.K.B.Gangesh, learned counsel for the petitioner, relied on a judgment of the Supreme Court in Union of India v. Jayakumar Parida [(1996) 1 SCC 441]. In said case the respondent was appointed on 31.3.1989 as E.D. Branch Postmaster and he joined the post on 16.5.1989. His appointment was terminated on 25.2.1991. The Central Administrative Tribunal, Cuttak Bench set aside the order of termination on the ground that it did not contain any reason and that no opportunity was given to the respondent thereby violating the principles of natural justice. The question before the Tribunal was whether the termination of the respondent was in accordance with Rule 6 of the Posts and Telegraphs Extra-Departmental Agents (Conducts & Salaries) Rules, 1964 which provided that: “6.Termination of Service--The service of an employee who has not already rendered more than three years’ continuous service from the date of his appointment shall be liable to termination by the appointing authority at any time without notice.” It would appear that a complaint was laid against the respondent that he had produced a false income certificate before seeking appointment. The said income certificate was taken into account while appointing the respondent as Extra-Departmental Branch Postmaster. In the counter affidavit filed by the department before the Tribunal it was stated that action was initiated against the respondent on the basis of the report submitted against the respondent that he had produced false income certificate. The Supreme Court found that the false income certificate formed a foundation and not a motive for taking the impugned action. In the counter affidavit filed by the department before the Tribunal it was stated that action was initiated against the respondent on the basis of the report submitted against the respondent that he had produced false income certificate. The Supreme Court found that the false income certificate formed a foundation and not a motive for taking the impugned action. In that view of the matter the Supreme Court declined to interfere with the order of the Central Administrative Tribunal. In the same judgment the Supreme Court has observed that the requirement of issuing a notice before termination has to be examined in each case on its won facts. The facts of the case before the Supreme Court were different from the facts of this case. The petitioner was specifically warned against giving false information in the Attestation Form and against suppression of any material fact. He was also specifically warned that if any such false information was supplied or any material fact was suppressed, his service would be terminated. Being aware of the above stipulations and warnings, the petitioner chose to suppress the fact that two criminal cases were pending against him at the relevant time. In view of the above conduct of the petitioner, his services were liable to be terminated on the basis of the conditions of appointment which had been accepted by him. Hence, the above mentioned judgment of the Supreme Court cannot help the petitioner herein. 6. Learned counsel for the petitioner invited our attention to the judgment of a learned Single Judge of this court in Christopher Jose v. State of Kerala (1999 (3) KLT 285). In that case the petitioner before the court was advised by the Public Service Commission for recruitment as Police Constable in the Police Department. However, he was not called for training though other candidates advised by the Public service commission were called for training. Hence, he filed by the Original Petition for a writ of mandamus directing the respondents to admit the petitioner for training and also for a declaration that he was entitled to undergo training. The Department filed counter affidavit stating that the petitioner was involved in a criminal case, Crime No.314 of 1994 of Vallarada Police Station registered for the offences under Sections 143,147,148,149,435,427,324,326,332 and 307 IPC. The Department filed counter affidavit stating that the petitioner was involved in a criminal case, Crime No.314 of 1994 of Vallarada Police Station registered for the offences under Sections 143,147,148,149,435,427,324,326,332 and 307 IPC. After investigation the charge sheet was filed in court on 26.2.1998 and the case was pending trial before the judicial First Class Magistrate Court-III, Neyyattinkara. The above fact was suppressed by the petitioner in column 19(a) and (b) of the verification roll filled up by him on 26.9.1994. The learned Single Judge held as follows: “Denying appointment to a candidate selected for appointment by the Public Service Commission just because he was implicated in a criminal case, the result of which may either be conviction or acquittal, is certainly denial of his opportunity to enter in service when chances of getting employment is now a nightmare due to the risk of tough competition. If at last the victim is honourably acquitted, he will be languishing losing his hard earned chance of employment. If this is encouraged, naturally one who has enmity towards a person can destroy his future by implicating him in criminal offence as politically motivated gang atrocities are not rare in this State. In such situation, the police in their F.I.R. gives a vague report as so and so and thirty of forty others. These others can be conveniently filled with any name according to the whims and fancies of the investigating officer. The victim in the present case may be one such person whose destiny is in the doldrums. Ultimately, after training if he is found guilty, the petitioner can be dealt with as per law.” Firstly, it should be pointed out that the learned Single Judge has not considered the question whether the services of a person are liable to be terminated on the ground of suppression of facts in the Application form or Attestation form, when there is a specific warning that suppression of relevant materials would entail termination of service. Secondly, we do not agree with the view taken by the learned Single Judge in paragraph 6 of the judgment quoted above. It has also to be mentioned that against the above mentioned judgment of the learned Single Judge a Writ Appeal has been filed by the State and the judgment has been stayed by the Division Bench. Secondly, we do not agree with the view taken by the learned Single Judge in paragraph 6 of the judgment quoted above. It has also to be mentioned that against the above mentioned judgment of the learned Single Judge a Writ Appeal has been filed by the State and the judgment has been stayed by the Division Bench. In the above circumstances, we are not inclined to approve or follow the above mentioned judgment of the learned Single Judge. 7. In the light of the discussion above, there is no merit in the Original Petition and the Original Petition is dismissed.