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2016 DIGILAW 792 (RAJ)

Shiv Lal Damor v. Ajmer Vidhyut Vitaran Nigam Ltd.

2016-05-31

G.R.MOOLCHANDANI, GOVIND MATHUR

body2016
JUDGMENT : Mathur, J. This intra court appeal is before us to examine correctness of the judgment dated December 2, 2015, passed by learned Single Bench in SB Civil Writ Petition No. 3647/2015. Precisely, the question deserves adjudication is that “whether the concealment of fact, said to be made by the appellant, while applying for appointment as Data Entry Operator, is so material and serious that even after serving for good 1½ years, demands his termination from service?” In short, facts of the case are that in pursuance to advertisement issued by the respondent electricity company, the appellant petitioner, a member of Scheduled Tribe belonging to remote tribal area of southern Rajasthan, submitted an application to be considered for his appointment as “Data Entry Operator”. On being selected, appointment was accorded to him vide order dated August 5, 2013. By a letter dated 2.2.2015, the appellant petitioner was called for to explain that why he be not terminated from service being failed to disclose the fact about his conviction for a criminal charge. Responding the same, the appellant urged that in the year 2008, on confession before a Permanent Lok Adalat, though a fine of Rs.500/- was saddled on him, but he was under impression that imposition of such fine is not a conviction, hence, details in this regard were not given. He further submitted that he was not knowing that an order passed on basis of his confession before Permanent Lok Adalat shall be treated as a conviction. The respondent employer vide order dated March 17, 2015 terminated the service of the appellant, hence, he preferred a petition for writ to challenge the same which came to be dismissed by learned Single Bench by relying upon the judgment of Hon'ble Supreme Court in Devendra Kumar v. State of Uttaranchal & Ors., reported in AIR 2013 SC 3325 . The respondent employer vide order dated March 17, 2015 terminated the service of the appellant, hence, he preferred a petition for writ to challenge the same which came to be dismissed by learned Single Bench by relying upon the judgment of Hon'ble Supreme Court in Devendra Kumar v. State of Uttaranchal & Ors., reported in AIR 2013 SC 3325 . Learned Single Bench, while dismissing the writ petition, observed and held as under:- “In view of the fact that in the judgment rendered by the Hon'ble Supreme Court in the case of Devendra Kumar (supra), the Hon'ble Supreme Court has held that candidate who suppressed the material information with regard to pendency of criminal case against him, is not entitled for appointment because purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of the case but to judge the character and antecedents of the job seeker or suitability to continue in service. In view of above, there is no strength in the argument of learned counsel for the petitioner that he was not sent to judicial custody and punished was only for a day. Hence, this writ petition is dismissed while following the judgment of Hon'ble Supreme Court in the case of Devendra Kumar (supra).” It shall be appropriate to notice here that the appellant before filing the writ petition obtained a certified copy of the order passed by the Permanent Lok Adalat recording his conviction and awarding sentence on basis of the confession. Hence, this writ petition is dismissed while following the judgment of Hon'ble Supreme Court in the case of Devendra Kumar (supra).” It shall be appropriate to notice here that the appellant before filing the writ petition obtained a certified copy of the order passed by the Permanent Lok Adalat recording his conviction and awarding sentence on basis of the confession. The order aforesaid dated March 15, 2008 reads as under:- ^^i=koyh eqy0 ds izk0 i= ij is'kh esa yh xbZA lgk;d yksd vfHk;kstd mifLFkrA eqyfte ij tekur e; odhy mifLFkrA eqyfte us yksd vnkyr dh Hkkouk ls izsfjr gksdj LosPNk ls vkjksi LohdkjksfDr dk izkFkZuk i= izLrqr fd;kA tqeZ LohdkjksfDr iw.kZ :i ls LosfPNd gSA vr% tqeZ LohdkjksfDr ds vk/kkj ij eqyfte dks vijk/k /kkjk 4@25 vkElZ ,DV esa nks"k fl} fd;k tkrk gSA mDr nks"k fl}h ds fy, ltk ds fcUnq ij lquk x;kA odhy eqyfte dk dFku gS fd eqyfte dk izFke vijk/k gS] xjhc [ksrhgj etnwj gS] iwoZ dk ltk;kc ugha gS rFkk yksd vnkyr dh Hkkouk ls tqeZ Lohdkj fd;k gSA vr% ujeh dk :[k viuk;k tkdj de ls de ltk ls nf.Mr fd;k tkosA fo}ku ,-ih-ih- us fojks/k fd;k rFkk fefuee ltk dk izko/kku gksuk crk;kA fefuee ltk fn;s tkus dk fuosnu fd;kA i=koyh dk voyksdu fd;kA i=koyh ij ,slk dksbZ vfHkys[k ugha gS] ftlls ;g lkfcr gks fd og iwoZ dk ltk;kc gksA mDr nks"kflf} ds fy;s eqyfte f'ko dqekj iq= y{e.k eh.kk dks :i;s ikap lkS ds vFkZn.M o Hkqxrh fnu ds lk/kkj.k dkjkokl dh ltk ls nf.Mr fd;k tkrk gSA vne vnk;xh tqekZuk eqyfte nks fnu dk dk lk/kkj.k dkjkokl dh ltk vfrfjDr HkqxrsxkA vFkZn.M dh jkf'k tek djkbZ xbZA jlhn tkjh gksA i=koyh QSly 'kqekj gksdj ckn iwfrZ nkf[ky nrj djkbZ tkosA eqyfte ds gktjh ckc~r tekur eqpyds fujLr fd;s tkrs gSA otg lcwr tIr ljdkj fd;k tkrk gS ftls ckn xqtjus e;kn vihy u"V fd;k tkosA** The document aforesaid is available on record as Anx.6 and from perusal of which it reveals that the same is an order proforma, having several blank spaces filled by hand written contents. The proforma order appears to have been adopted by the Permanent Lok Adalat to reduce recording of facts of each and every case with a view to dispose of higher number of cases. The proforma order appears to have been adopted by the Permanent Lok Adalat to reduce recording of facts of each and every case with a view to dispose of higher number of cases. In appeal, the argument advanced by learned counsel for the appellant is that the appellant petitioner was not aware about his conviction being made by Permanent Lok Adalat on his confession, therefore, he failed to mention the same in the application submitted to be considered for his appointment as Data Entry Operator. It is urged that the Permanent Lok Adalat decided the matter by imposing a fine of Rs.500/- and simple imprisonment till rising of the court, but the appellant was not aware about the second part of the sentence being never sent to prison. He was allowed to left the court premises immediately after depositing the fine. The appellant, as per learned counsel, was not at all intending to conceal any material fact from the respondent and whatever omission is there on his behalf, that is under innocence with no malicious intention. It is also stated that the appellant is coming from most backward and remote area of Rajasthan and he is a member of Scheduled Tribe community. He was not at all knowing that his confession before the Permanent Lok Adalat will be having the consequence of conviction, having effect even on his service. He, as a matter of fact, confessed before the Permanent Lok Adalat with a view to get rid from the agony of criminal case pending against him for a very minor act. It is pointed out that being a member of tribe the appellant during the days close to his marriage was carrying a 'katar' with him as a local tradition and that was treated as an offence under Section 4/25 of the Arms Act and for that he has been convicted. Per contra, as per learned counsel for the electricity company the issue in this petition for writ is not that what was the criminal act of the appellant petitioner, but the concealment made by him while applying for appointment to the post of Date Entry Operator. Per contra, as per learned counsel for the electricity company the issue in this petition for writ is not that what was the criminal act of the appellant petitioner, but the concealment made by him while applying for appointment to the post of Date Entry Operator. Learned Single Bench dismissed the writ petition relying upon the judgment of Hon'ble Supreme Court in the case of Devendra Kumar (supra), wherein the Apex Court held that suppression of material information sought by the employer or furnishing false information, itself amounts to moral turpitude and is separate and distinct from involvement in criminal case. As per learned counsel, the non-disclosure of conviction though based on his own confession before the Permanent Lok Adalat, is sufficient to discontinue the appellant petitioner from service and as such learned Single Bench rightly affirmed the action taken by the employer. Before coming to merits of the case it shall be appropriate to notice certain admitted facts- 1. the appellant petitioner is a member of Scheduled Tribe; 2. the appellant is a resident of a remote village in tribal sub plan area of Rajasthan; 3. a case was lodged against him alleging commission of an offence punishable under Section 4/25 of the Indian Arms Act; 4. the case was Magistrate triable and was pending trial before the court of Judicial Magistrate, First Class, Khairwara, the same was referred to the Permanent Lok Adalat on an application preferred by the appellant; 5. the Permanent Lok Adalat, on basis of the confession made by the appellant petitioner, recorded his conviction and awarded sentence of imprisonment till rising of the court with a fine of Rs.500/-; 6. the order passed by the Permanent Lok Adalat is not giving any facts of the case though mentioning that the accused is a poor agriculture labourer, instant one is his first crime, he has not been convicted earlier and confessed his crime with the spirit of Lok Adalat. The court also recorded that the fine was deposited and the sureties were discharged; and 7. the appellant petitioner while applying for appointment to the post of Date Entry Operator did not mention about his conviction under the order dated 15.3.2008 and that resulted into his termination from service. Learned Single Bench dismissed the writ petition by relying upon the judgment given by Hon'ble Supreme Court in the case of Devendra Kumar (supra). the appellant petitioner while applying for appointment to the post of Date Entry Operator did not mention about his conviction under the order dated 15.3.2008 and that resulted into his termination from service. Learned Single Bench dismissed the writ petition by relying upon the judgment given by Hon'ble Supreme Court in the case of Devendra Kumar (supra). In the case aforesaid, the Apex Court was dealing with a matter where the facts pertaining to involvement in a criminal case were not disclosed by a temporary government servant while seeking employment and that was found a deliberate material concealment of fact by Single Bench of the High Court of Uttarakhand and its Division Bench. The Apex Court refused to interfere with the findings arrived by the High Court by stating that “the courts below have recorded a finding of fact that the appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case”. In the instant matter no such finding has been recorded. As already stated, learned Single Bench just by relying upon the judgment given in the case of Devendra Kumar (supra) dismissed the writ petition without examining that whether non-disclosure of the fact was a deliberate concealment and further that was a material one. The Apex Court in the case of Commissioner of Police & Ors. v. Sandeep Kumar, reported in 2011 DNJ (SC) 710, examined the sazme issue in detail and while affirming the findings arrived by Delhi High Court held that approach of a court should be to reform a person instead of branding him as a criminal for his entire life. The court also observed that at the young age people often commit indiscretions, and such indiscretions can often be condoned. They are not expected to behave in as mature a minor as older people. Our approach, therefore, should be to condone minor indiscretions made by young people rather than to brand them as criminals for rest of their life. In the case in hand the appellant petitioner, at the time of incident for which he has been convicted, was of 23-24 years. While explaining the circumstances to the employer he pleaded his ignorance about conviction recorded by the Permanent Lok Adalat. In the case in hand the appellant petitioner, at the time of incident for which he has been convicted, was of 23-24 years. While explaining the circumstances to the employer he pleaded his ignorance about conviction recorded by the Permanent Lok Adalat. The appellant petitioner in quite specific terms stated that he was fined by the Permanent Lok Adalat and was allowed to move from the premises concerned immediately after depositing the fine, therefore, he was not aware about the conviction. In our opinion, the version extended by the appellant petitioner appears to be a bonafide one. True it is, he stated this fact on affidavit, but a person coming from a remote village belonging to Scheduled Tribe community may not be acquainted with actual niceties of the orders passed by the court, specially before a Lok Adalat, where the insistence of the courts remains mainly for disposal of a matter. Looking to this aspect, we are of considered opinion that the non-disclosure of the fact by the appellant petitioner does not appear to be a deliberate concealment and the employer has not taken in consideration this aspect of the facts while passing the order impugned, hence, erred while discontinuing the appellant petitioner from service, whose entire career including the service career of 1½ years is otherwise unblemished. Before parting with the case we would also like to mention that conviction of the appellant petitioner recorded by the Permanent Lok Adalat is also absolutely without jurisdiction. A Permanent Lok Adalat is required to act within the four corners of the jurisdiction given to it under Chapter VI-A of the Legal Services Authorities Act, 1987 (hereinafter referred to as 'the Act of 1987'). Essentially it is for pre-litigation, conciliation and settlement of the disputes and, therefore, a matter pending trial could have not been referred to it for adjudication. Beside the above, the offence punishable under Section 4/25 of the Arms Act, 1959 is not compoundable, therefore, as per proviso to sub-section (1) of Section 22-C of the Act of 1987 the Permanent Lok Adalat had no jurisdiction to adjudicate the offence in question. Beside the above, the offence punishable under Section 4/25 of the Arms Act, 1959 is not compoundable, therefore, as per proviso to sub-section (1) of Section 22-C of the Act of 1987 the Permanent Lok Adalat had no jurisdiction to adjudicate the offence in question. From perusal of the order passed by the Permanent Lok Adalat, it also appears that during pendency of the trial the application was preferred by the appellant petitioner for taking up the matter before Permanent Lok Adalat but that too, in our considered opinion, was wrong in view of the fact that any party to dispute, as per Section 22-C of the Act of 1987, can move such application before the dispute is brought to any court. In view of whatever stated above, this appeal deserves acceptance. Accordingly, the same is allowed. The order passed by learned Single Bench is set aside. The writ petition preferred by the appellant petitioner is allowed. The order dated 17.3.2015 passed by the Managing Director, Ajmer Vidhyut Vitaran Nigam Limited, Ajmer, terminating the appellant petitioner from service, as per para 16 of his appointment order, is set aside. The appellant petitioner is entitled to be reinstated in service with all consequential benefits. No order to costs.