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Madhya Pradesh High Court · body

2009 DIGILAW 1029 (MP)

PRAFUL KASEKAR v. AIRPORT AUTHORITY OF INDIA

2009-08-26

A.K.SHRIVASTAVA

body2009
Judgment ( 1. ) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking the following reliefs : "in view of the facts and grounds mentioned hereinabove petitioner humbly and most respectfully prays that this Honble Court may kindly be pleased to set aside the impugned notice dated 6-9-2007 in its entirety and further direct the respondents to continue the petitioners services/training and further be pleased to direct the respondents to issue the certificate of petitioners training as per the offer of appointment in the interest of justice. This Honble Court may further be pleased to direct the respondents to give the petitioner all the benefits; monetary or others of the said training. Any other relief (s) to which petitioner is found entitled in the facts and circumstances of the case may also kindly be granted to the petitioner. " ( 2. ) THE contention of learned Counsel for petitioner is that he was appointed on the post of Junior Executive (ATC) vide Annexure P-1, dated 12-3-2007/12-2-2007. Thereafter, the petitioner gave his joining and was undergoing the requisite training organized by the respondents. Later on 6-9-2007 a notice to terminate the services of the petitioner was served on him by the respondents on the ground that he had supplied incorrect information and suppressed this fact that he was arrested in a criminal case on 17-8-2005. Hence, this petition has been filed by the petitioner assailing the impugned order (Annexure P-4), dated 6-9-2007. ( 3. ) BY inviting my attention to the attestation form (Annexure P-2) and particular Clause 13 (f) and (g) it has been contended by learned Counsel for petitioner that specifically petitioner submitted that a criminal case is pending against him and he also mentioned its case number. The contention of learned counsel is that a case under Sections 279 and 304-A of IPC is pending against petitioner as the motor vehicle accident took place by him while he was driving a motorcycle. The contention of learned Counsel is that had there been any intention of the petitioner to conceal the reality of his arrest he would not have mentioned that a case under Sections 279 and 304-A of IPC is pending against him. The contention of learned Counsel is that had there been any intention of the petitioner to conceal the reality of his arrest he would not have mentioned that a case under Sections 279 and 304-A of IPC is pending against him. According to the learned Counsel, the petitioner was under impression that the term arrest in attestation form (Annexure P-2) would mean to handcuff and putting in the lock-up, and, therefore, in the requisite Column No. 13 (1) (a)of attestation form (Annexure P-2) he has stated that he was never arrested. Thus, according to the learned Counsel since the act of petitioner is bona fide, therefore, the action of respondents terminating his services on this ground that he supplied incorrect information cannot be sustained and is arbitrary. In support of his contention learned counsel has placed heavy reliance on the decision of the Supreme Court in State of Haryana and others Vs. Dinesh Kumar, (2008) 3 SCC 222 . ( 4. ) PER contra Shri Anoop Nair, learned Counsel for respondents submitted that since the petitioner gave incorrect information in the attestation form, therefore, the action of respondents terminating his services cannot be said to be arbitrary. ( 5. ) HAVING heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed. ( 6. ) ON going through the attestation form (Annexure P-2), I find that specifically it has been disclosed by the petitioner that a case is pending against him under Sections 279 and 304-A of IPC. The matter would have been different if the petitioner would have suppressed this fact. Since he has already disclosed this fact in the attestation form that a case under Sections 279 and 304-A of IPC is pending against him, according to me, had there been any intention of the petitioner to suppress the reality he would not have mentioned all these facts about the pendency of the criminal case, and, therefore, in these circumstances, if he has stated in Column No. 13 (1) (a) of Annexure P-2 that he was never arrested, according to me, the action of the petitioner is bonafide for the simple reason that normally a layman would understand the meaning of word "arrest" only if one is taken into the custody. Since the petitioner was never sent to the custody, therefore, under the bona fide belief he stated that he was never arrested and hence, according to me, the action of petitioner is bona fide and he did not hide any fact. In this context, I may profitably placed reliance on the decision of Supreme Court in Dinesh Kumar (supra ). In Paras 31 and 32 of the said decision the Supreme Court has held thus:- "31. In our view, the reasoning given in Dinesh Kumars case in that context is a possible view and does not call for interference under article 136 of the Constitution. Conversely, the decision rendered in the writ petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in line with the decision in Dinesh Kumars case. When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately. The position would have been different, has the person concerned not been released on bail. We would, in the facts of these cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful misrepresentation and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the view taken by the High Court in Dinesh Kumars case. 32. Accordingly, although, we are of the view that the legal position as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in dinesh Kumars case and extend the same benefit to Lalit Kumar and Bhupinder also. " In the similar facts and circumstances, the Supreme Court held that when the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately. Thus, according to me, the decision of Dinesh Kumar (supra), is squarely applicable in the present factual scenario. ( 7. Thus, according to me, the decision of Dinesh Kumar (supra), is squarely applicable in the present factual scenario. ( 7. ) THE real aim of attestation form (Annexure P-2) of respondents is that an employer should know before taking a person in his employment that whether any criminal case is pending against him and whether he is having any criminal history. Since the petitioner did not suppress the material fact that a criminal case under Sections 279 and 304-A of IPC is pending against him, therefore, without understanding the scope of "arrest", if he has stated in the said format that he was never arrested, I am of the view that appointment of the petitioner cannot be cancelled. ( 8. ) FOR the reasons stated hereinabove this petition succeeds and is hereby allowed. The impugned order of termination issued by respondents annexure P-4, dated 6-9-2007 is hereby set aside and the respondents are hereby directed to reinstate the petitioner with 50% back wages. Looking to the facts and circumstances, the parties are directed to bear their own costs.