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Gujarat High Court · body

2021 DIGILAW 764 (GUJ)

CHANDRESHBHAI RAMJIBHAI BAGTHARIYA v. CANARA BANK

2021-09-01

BHARGAV D.KARIA

body2021
JUDGMENT : Heard learned advocate Mr.Pratik Jasani for the petitioner and learned advocate Mr.Vishwas Shah for the respondent No.2. 2. By this petition, the petitioner has prayed for the following relief : “(A) YOUR LORDSHIPS be pleased to issue an appropriate writ order or direction, quashing and setting aside the impugned order passed by Respondent No.2 dated 18.11.2019 bearing No. AMOC/HRM/DAC/41/2019/ABH, in the interest of justice; (B) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay operation, execution and implementation of the impugned order passed by Respondent No.2 dated 18.11.2019 bearing No.AMOC/HRM/DAC/41/2019/ABH, and further be pleased to direct the respondents to permit the petitioner to report for duty uninfluenced by the impugned order of termination on such terms and conditions as may be deemed just and reasonable in the interest of justice; (C) YOUR LORDSHIPS be pleased to grant such other and further relief(s) as may be deemed fit in the interest of justice.” 3. The brief facts of the case are as under : 3.1 The petitioner was appointed on probation by the Deputy General Manager of respondent No.1 on the post of Probationary Clerk vide order dated 17th July, 2013 on certain terms and conditions. The probation period of the petitioner was for six months with a rider that the same can further be extended by three months. The petitioner had successfully completed the probation period and as the petitioner was meeting with all the requirements needed by the respondents, the petitioner was made permanent with basic pay of Rs.7200/- per month in the pay scale of 7200-400/3-8400-500/3-9900-600/4-12300- 700-7-17200-1300/1-18500-800/1-19300. 3.2 The petitioner has put in all efforts and has performed his duty diligently. It has been since years that the petitioner is working with the respondent No.2 at Gondal Branch and there has not been any complaint by any of the office bearers. 3.3 The respondent No.2 on 3rd July, 2019 intimated the Petitioner that they have received one complaint dated 27th May, 2019 wherein it has been informed that in past one FIR was registered against the petitioner. 3.3 The respondent No.2 on 3rd July, 2019 intimated the Petitioner that they have received one complaint dated 27th May, 2019 wherein it has been informed that in past one FIR was registered against the petitioner. The petitioner was thus asked to clarify on the said aspect and accordingly the petitioner on 15th July, 2019 gave appropriate clarification intimating that the petitioner was not involved in the said case and the petitioner has been wrongly framed for oblique reasons and the name of the petitioner was never been mentioned in the FIR. 3.4 In the reply dated 15th July, 2019 the petitioner pointed out that the petitioner has never been arrested by the Police and the petitioner has been enlarged on anticipatory bail by the competent court by specifically observing that the petitioner has played no direct or indirect role in commission of offence. 3.5 The respondent No.2 thereafter issued show cause notice dated 13th August, 2019 to the petitioner calling upon the petitioner to show cause as to why his services should not be terminated as the petitioner has not disclosed his antecedents as well as the fact that the Petitioner was earlier employed elsewhere. 3.6 Pursuant to the said show cause notice, the petitioner gave a detailed reply dated 20th August, 2019 pointing out the fact that the petitioner is not convicted and in the entire FIR name of the petitioner is not mentioned. As far as the previous employment is concerned, the petitioner pointed out that the petitioner was recruited on temporary basis and as the petitioner was not permanent, the same was not disclosed. The petitioner clarified that the petitioner has not furnished any false information or has suppressed any factual aspects intentionally. 3.7 The respondent No.2, without giving opportunity of hearing and without conducting any inquiry, and also without providing to the petitioner the documents relied upon, straightaway terminated the services of the petitioner vide impugned order dated 18th November, 2019 with immediate effect. 4. Learned advocate Mr.Jasani appearing for the petitioner submitted that the impugned order dated 18th November, 2019 passed by the respondent No.2 is in clear disregard to the decision of the Supreme Court rendered in case of Avtar Singh Vs. 4. Learned advocate Mr.Jasani appearing for the petitioner submitted that the impugned order dated 18th November, 2019 passed by the respondent No.2 is in clear disregard to the decision of the Supreme Court rendered in case of Avtar Singh Vs. Union of India, 2018 (1) SCC 268 because the termination of the petitioner from service on account of alleged suppression of facts as to involvement in a criminal case is without holding any departmental proceedings and without affording any opportunity as required under the law. 4.1 It was submitted that the service of the petitioner could not have been terminated without holding any departmental inquiry inasmuch as at no point of time, the respondent No.2 has parted with the report of the police, which is the basis of termination of service. It was submitted that there is a clear breach of principles of natural justice as no appropriate opportunity to defend the case and to brief the innocence was provided to the petitioner by the respondent. 4.2 It was further submitted that in view of the gross violation of principles of natural justice, this Court as well as the Apex Court in catena of decisions have held that an order passed in breach of principles of natural justice is required to be set aside as it curtails right of a citizen to make an effective representation defending himself. 4.3 It was also pointed out that while passing the impugned order, the respondent No.2 has not dealt with any of the contentions raised by the petitioner in his reply dated 20th August, 2019 to the show-cause notice and the reply is brushed aside by observing that the same is not found satisfactory. 4.4 It was pointed out that no reasons are assigned as to why the reply tendered by the petitioner is not found satisfactory. 4.5 It was also pointed out by the learned advocate Mr.Jasani that the name of the petitioner is not reflecting in the FIR and the petitioner has been enlarged on anticipatory bail by the competent Court with specific observation that the petitioner has not played any role as alleged in the FIR. It was also pointed out that the petitioner was not appointed on permanent basis with the previous employer and therefore, the same was not mentioned. It was also pointed out that the petitioner was not appointed on permanent basis with the previous employer and therefore, the same was not mentioned. 4.6 Learned advocate Mr.Jasani submitted that the respondent No.2 ought to have appreciated that the pendency of criminal case as well as alleged non-disclosure of the information about the previous employment no way makes the performance of the petitioner bad, as the petitioner was working with the respondent No.2 since 2013 and there has not been a single complaint against the petitioner by his colleagues or higher officers. 4.7 Learned advocate Mr.Jasani further submitted that though the respondent No.2 has relied on clause no.12 of the appointment order, but the condition no.8 is overlooked inasmuch as after considering the satisfactory report from the police, the petitioner was made permanent. It was therefore, submitted that the respondent No.2 has not even assigned any reason as to how a satisfactory report obtained in the year 2013 is inaccurate or improper which required reconsideration. 5. On the other hand, learned advocate Mr.Vishwas Shah, appearing for the respondent No.2, relied upon the following averments made in the affidavit-in-reply filed on behalf of the respondent No.2 : “5. I humbly submit that the Canara Bank is a Nationalised Bank and constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and having Branches all over the country. There are different categories of employees working in the Bank viz., Officers and Award Staff. The service conditions of the Award Staff i.e., workmen are governed by Canara Bank Service Code which is in consonance with Shastry Award, Desai Award and Bipartite Settlement entered into at the Industry level between Employees Unions and Indian Banks’ Association representing the Banks. Being a Public Sector Undertaking, Bank has got certain rules, norms in the matter of recruitment of personnel in each cadre. The recruitment is conducted by duly adhering to the said norms viz., the verification of educational qualifications, age, experience if any required, caste certificates if recruited for reserved categories, antecedents of the candidates etc. through a due process. Being a Public Sector Undertaking, Bank has got certain rules, norms in the matter of recruitment of personnel in each cadre. The recruitment is conducted by duly adhering to the said norms viz., the verification of educational qualifications, age, experience if any required, caste certificates if recruited for reserved categories, antecedents of the candidates etc. through a due process. Since it is a fact that it will take time for getting the confidential antecedents report of candidates, as such it is needless to mention that the appointment of such candidate will be subject to receipt of satisfactory antecedents report from the Competent Authorities and a clause to this effect is available in the appointment order. 6. I humbly submit that the petitioner Sri Chandreshbai Ramjibhai Bagthariya was issued with the Proceedings dated 17.07.2013 and joined the services of the respondent Bank on 29.07.2013 as Single Window Operator-A (SWOA) with Employee Staff No.89238 and he was posted to Gondal Branch of the respondent Bank wherein he was working from his date of appointment till the date of his termination. At the time of Appointment of an employee, he /she will be given an Attestation Form by the Bank which is to be filled in and the same contains informations regarding the personal details of the employee. The Attestation Form starts as follows: “Furnishing false information or suppression of any factual information in the Attestation Form would be disqualification and is likely to render the candidate unfit for appointment in the Bank. If the fact that false information has been furnished or there has been suppression of any factual information in the Attestation Form comes to notice any time during the service of a person, his / her services would be liable to be terminated.” With the above lines the Attestation Form starts and to the end of the Form there is a declaration of the employee which is as follows: “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 in the Bank. I am not aware of any circumstances which might impair my fitness for employment in the Bank. I have/will have no objection to the Bank making any enquiries at any time (immediately/in the near future) regarding the statements made by me in the application, in any manner they decide to do so inclusive of police enquiry into my antecedents.” The petitioner herein had also filled the said Attestation Form at the time of his joining the Bank on 29.07.2013. Among the various details in the Attestation Form, SI.No.12 contains a specific question which is as follows: “Have you ever been arrested, or kept under detention or bound down/fined/convicted by a court of law for any offence, or debarred / disqualified by the Public Service Commission from appearing at its examination or restricted by authority / institution? If the answer is “YES”, full particulars of the case detention, fine, conviction, sentence, etc should be given: It is humbly submitted that the petitioner herein has left the said column blank in the Attestation Form dated 29.07.2013. It is most humbly submitted that the employment of the Petitioner in the Bank is subject to the terms and conditions as set out in the Proceedings dated 17.07.2013. As per the Clause No.12 of the proceedings dated 17.07.2013 of the General Manager, “his/her confirmation in the services of the Bank is subject to satisfactory report from Police Authorities. In case of adverse/unsatisfactory Police Report, his / her services are liable to be terminated without notice.” 7. I humbly submit that the respondent Bank were in receipt of an email dated 12.12.2018 from one Smt Jayashree Gujarati alleging that the petitioner herein is involved in a Criminal Case which he has not revealed to the Bank. So also Bank was in receipt of an anonymous complaint alleging involvement of the petitioner herein in a Criminal Case. On receipt of the same, taking into account of the Report dated 04.10.2018 of the Office of the Superintendent of Police, Rajkot Rural Rajkot, informing that on verifying the record of Gondal City Police Station, there is no adverse report against the petitioner herein on police record, the respondent Bank had not taken any action against the petitioner at that point of time. In this regard, I humbly submit that the respondent Bank took up the matter with the Gondal Police Station, as the same is the native / residential place of the petitioner Sri Chandreshbai Ramjibhai Bagthariya. 8. I humbly submit that the respondent Bank was again in receipt of Complaint from Press Reporter, Times of India wherein there was detailed allegation against the involvement of the Petitioner herein in a Criminal Case and it was informed that the FIR is registered with the Morbi Police. On receipt of the said Complaint, the Respondent Bank has taken up the matter with the Morbi Police. Simultaneously Bank had also asked the Petitioner herein as to what he has to say in the matter. Vide the said reply dated 15.07.2019, the petitioner herein admitted for the first time to the respondent Bank that there is a case against him which is pending since 2011. 9. It is humbly submitted that Morbi Police vide letter dated 08.07.2019 informed that a Crime No.263/2011 has been registered against the petitioner herein under Section 419, 465, 467, 471, 114 of IPC on 30.12.2011 and it was further informed that the petitioner herein was arrested on 10.02.2012 at 7 pm and a Charge Sheet No:34/2012 was filed on 14.03.2012 which is pending. On getting information regarding the same from Morbi Police, the respondent Bank had issued show cause notice dated 13.08.2019 asking the petitioner to show cause why his services shall not be terminated in the light of the fact that he has suppressed from the Bank regarding the pendency of a Criminal Case against him as well as the arrest in the case. The petitioner vide his reply dated 20.08.2019 informed the Bank that he had obtained Anticipatory Bail Order dated 01.02.2012 from the Hon’ble Additional Sessions Judge, Morbi and he was never arrested in the matter. On a perusal of the Anticipatory Bail Order dated 01.02.2012, the respondent Bank understood that the Hon’ble Sessions Judge, Morbi had granted a conditional Anticipatory Bail stipulating that if there is an occasion of arrest of the Petitioner in Crime No.263/2011, then the Investigating Officer will release the petitioner on personal bond of Rs.10,000/- subject to the terms and conditions as narrated in the Order. As there was contradiction in the reply dated 20.08.2019 of the petitioner and the respondent Bank realized that the petitioner was trying to misinterpret the Order of the Hon’ble Sessions Court and trying to suppress the facts in the matter from the Bank, the Bank asked more details from the Morbi Police regarding the arrest of the petitioner to which the Morbi Police vide letter dated 06.10.2019 informed the Bank, interalia, that the petitioner herein was arrested on 10.02.2012 at 7pm and the enquiry officer has released him on personal bond of Rs.10,0000/-. On receiving the said information from the Morbi Police, the Competent Authority of the respondent Bank on analyzing the matter in its entirety observed that the petitioner herein though got sufficient opportunity to reveal the facts of his antecedents has deliberately suppressed the facts from the Bank. On taking into account the adverse Report / letter dated 08.07.2019 and 06.10.2019 of the Morbi Police in the matter of the petitioner and the fact that the petitioner was continuously suppressing the facts from the Bank regarding the pendency of his Criminal Case and his arrest in the matter, the Competent Authority invoking Clause 12 of the Appointment Order dated 17.07.2013, which says that in case of adverse antecedent report from the Police, his her services are liable to be Terminated without notice, Terminated the services of the Petitioner vide order dated 18.11.2019.” 5.1 Referring to the above averments, it was submitted that the facts stated on oath by the respondent No.2 are not in dispute and as such, the petitioner has been rightly terminated from service as the petitioner did not disclose the fact of criminal case against him in the attestation Form at the time of recruitment. It was therefore, submitted that as per the procedure adopted by the respondent No.2 Bank for non disclosure of the facts amount to gross misconduct and therefore, the petitioner has been rightly dismissed from service without notice. Reliance was also placed upon the averments made in the additional affidavit of the respondent No.2 filed on 29th January, 2021 placing on record the service regulations governing the case, pursuant to which action was taken against the petitioner. 6. Reliance was also placed upon the averments made in the additional affidavit of the respondent No.2 filed on 29th January, 2021 placing on record the service regulations governing the case, pursuant to which action was taken against the petitioner. 6. Having heard the learned advocates for the respective parties, it appears that the impugned order dated 18th November, 2019 is passed by the respondent No.2 without affording any opportunity of hearing to the petitioner resulting in the violation of the principles of natural justice. The respondent No.2 Bank also has not conducted any departmental inquiry with regard to the alleged non-disclosure made by the petitioner. 6.1 In similar circumstances, the Apex Court in the case of Avtar Singh (Supra), wherein the decision in case of Avtar Singh Vs. Union of India and Others, (2016) 8 SCC 471 was followed, which reads as under : “1. Leave granted. 2. This is a case in which the appellant was terminated from service on account of suppression of his involvement in a criminal case. He was enlisted for appointment in CRPF on 24.08.1994. He submitted a verification form on 9.12.1994. Column No.12 belonged to involvement in any criminal case. That was left unfilled. 3. On subsequent verification it was found that an FIR had been registered against him on 28.10.1992 under Sections 323, 324 read with Section 34 IPC. He was acquitted by judgment dated 2.5.1994. But, an appeal at the instance of the respondent(s) was pending when the termination took place. The High Court has upheld the termination. 4. In Avtar Singh v. Union of India and Others, reported in (2016) 8 SCC 471 , this Court has considered in detail as to the circumstances under which the stringent action could be taken and to what extent the employer can exercise its discretion. Relevant portion reads as follows:- “38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. 38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 38.3. 38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal 3 had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : 38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. 38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance 4 of the employee. 38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. 38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8. 38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the 5 seriousness of the crime. 38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. 38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. 38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.” 5. In view of the judgment in Avtar Singh (supra), operative portion of which we have extracted above, we direct the Appointing Authority to consider afresh the case of the appellant in the light of the law laid down by this Court and subsequent development pertaining to the order passed in appeal and pass appropriate orders thereon. 6. We make it clear that a speaking order will be passed. 7. In order to enable the Appointing Authority to pass orders, as above, we direct the appellant to file an appropriate representation before the Appointing Authority and the Appointing Authority will pass orders, in accordance with law, within four months from the date of receipt of a representation after affording an opportunity of hearing to the appellant.” 7. 7. In order to enable the Appointing Authority to pass orders, as above, we direct the appellant to file an appropriate representation before the Appointing Authority and the Appointing Authority will pass orders, in accordance with law, within four months from the date of receipt of a representation after affording an opportunity of hearing to the appellant.” 7. In view of the above dictum of law, without entering into the merits of the matter, in view of the judgment of Avtar Singh (Supra), the respondent No.2 is directed to consider afresh the case of the petitioner in light of the law laid down by the Apex Court and pass appropriate order after holding the departmental inquiry before passing the order of termination/removal /dismissal on the ground of submitting false information in the Form as the petitioner is confirmed in service. 8. In view of the foregoing reasons, the petition is partly allowed. The impugned order dated 18th November, 2019 passed by the respondent No.2 is hereby quashed and set aside and the matter is remanded back to the respondent No.2 to decide the same afresh de-novo in light of the law laid down by the Apex Court in case of Avtar Singh (Supra) and such exercise shall be completed within a period of six months from the date of receipt of the writ of this Court, after giving an opportunity of hearing to the petitioner to file an appropriate representation. 9. Rule is made absolute to the aforesaid extent. No order as to costs.