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Gujarat High Court · body

2022 DIGILAW 1645 (GUJ)

Dilipbhai Manilal Patel v. State Bank Of India

2022-11-29

A.Y.KOGJE

body2022
JUDGMENT : 1. This petition under Article 226 of the Constitution of India was initially filed for quashing and setting aside the order of termination dated 20.05.1996, the order dated 26.02.2009 and also to quash and set aside the 18.12.2017 on the ground that the last order dated 18.12.2017, discharging the petitioner from service was not in consonance with the directions issued by this Court in a previous petition. Consequently, the petitioner also prayed for reinstatement into the service with all consequential benefits like continuity in service, promotion, full back-wages and all the benefits as if the petitioner had continued in service of the respondent-bank. 2. On account of development pending the petition, the petitioner has sought amendment of the prayer clause and by way of amending the petition, who had attained the age of superannuation on 02.06.2021, prayed for payment of gratuity, PPF, accumulated leave encashment as per rules and regulations and commutation of monetary benefits to which an employee of the respondent bank would be entitled upon retirement. The petitioner has also claimed that from the date of his discharge till the date of superannuation, the petitioner be treated as an employee and be paid all the salary and allowances with 9% interest. The case of the petitioner is that the petition who was appointed with the respondent-bank as Cashier-Cum-Clerk on 01.03.1986, prior thereto, a criminal case was registered against the petitioner for offence under Sections 324, 114 of the Indian Penal Code, which later on culminated in to conviction of the petitioner. On account of such conviction brought to the notice of the respondent-bank, the respondent-bank passed an order, terminating the service of the petitioner. Such order was passed on 20.05.1996. This order was subject matter of challenge in a petition being Special Civil Application No.9517 of 2009, which came to be disposed of by oral judgment dated 20.09.2017 by which the order of the respondent-bank was quashed and set aside and the matter was remanded back to the respondent-bank to re-examine the case of the petitioner in light of the observations made by this Court. 3. Learned advocate appearing for the petitioner submitted that the respondent-bank did undertake the procedure of rehearing the petitioner however, ultimate order passed by the Court was not in consonance with the directions given by this Court in its oral judgment dated 20.09.2017. 3. Learned advocate appearing for the petitioner submitted that the respondent-bank did undertake the procedure of rehearing the petitioner however, ultimate order passed by the Court was not in consonance with the directions given by this Court in its oral judgment dated 20.09.2017. It is submitted that the order impugned now before this Court is dated 18.12.2017, wherein the bank has invoked Section 10(1)(b)(i) of the Banking Regulation Act, 1949 (for short “the Act”) which, as submitted by learned advocate for the petitioner, was held to be an afterthought by this Court. Attention is drawn to observation made by this Court in para-21 of the oral judgment dated 20.09.2017 in Special Civil Application No.9517 of 2009, wherein the observation is made that the show-cause notice and the impugned order of discharge as well as the appellate order were silent about the suppression of registration of the offense and therefore, such contention raised in the aforesaid petition by the learned advocate for the respondent-bank was liable to be rejected. However, the respondent authority, while passing the impugned order in the year 2017, has once again invoked the same issue and on the basis of suppression of the conviction from the bank being an act of moral turpitude, passed the impugned order. 3.1 Learned advocate for the petitioner submitted that the petitioner had served the respondent-bank for a long period and during this time, there is nothing on record to indicate that there was any lapse in his duties or that he has conducted in a manner which would amount to an act against moral turpitude. The act, if any, which is alleged against the petitioner, cannot be termed to be an act of moral turpitude, but the act which is not within the scope of duty of the petitioner. The petitioner was involved in offense as per IPC Sections for act which is of personal/private nature, not relatable to the scope of his duty with the respondent-bank and hence, also the bank ought not to have passed the impugned order which is clearly an economic death of the petitioner after a long very service. The petitioner was involved in offense as per IPC Sections for act which is of personal/private nature, not relatable to the scope of his duty with the respondent-bank and hence, also the bank ought not to have passed the impugned order which is clearly an economic death of the petitioner after a long very service. 3.2 Learned advocate for the petitioner submitted that the action on the bank part of the bank was not initiated by the bank itself, but at the behest of the complainant of the criminal offense, but had malafide intention to damage the career of the petitioner so as to help him in his claim over the disputed land. 3.3 Learned advocate lastly submitted that the bank has not got any evidence to support their ground against the petitioner that the petitioner had actually suppressed any information from the bank as bank has failed to produce any documentary evidence of the relevant time i.e. to say the application form of the petitioner at the time of his first employment, which as alleged by the petitioner, did not disclose the fact of a criminal complaint against the petitioner. 4. Learned advocate appearing for the respondent-bank has opposed the petition by submitting that the direction of this Court in the previous petition was to re-examine the matter after giving an opportunity of hearing to the petitioner. Accordingly, the respondent-bank had given him the opportunity of hearing and re-examine the entire case of the petitioner. It is submitted that the respondent-bank had called upon the petitioner to give answers to the relevant questions, however, the petitioner on his own refused to answer to such questions by giving an excuse that such questions were beyond the scope of the inquiry. It is submitted that the officers of the respondent or any other duty bound to follow the judgments of Courts and there is no question of deferring from the view of the Courts in any view of the matter. It is denied that order that has been passed of terminating services of the petitioner is illegal as alleged. It is submitted that the officers of the respondent or any other duty bound to follow the judgments of Courts and there is no question of deferring from the view of the Courts in any view of the matter. It is denied that order that has been passed of terminating services of the petitioner is illegal as alleged. It is submitted that apart from other judgments of the Hon’ble Supreme Court as well as this Hon’ble Court, on which the reliance will be placed by the respondent, in the decision of the Hon’ble Supreme Court, reported in, AIR 2013 SC 3325 , it has been held that if an employment obtained by suppressing material facts at the time of appointment amongst to moral turpitude. It is further held that suppression of material information sought by employer or furnishing false information itself amongst to moral turpitude and is separate and distinct from involvement in criminal case. Where applicant gets office by misrepresenting facts or by playing fraud upon competent authority, such appointment order cannot be sustained in eyes of law. Information sought by employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality services becomes liable to be terminated, even if there had been no further trial or person concerned stood acquitted/discharge. It is further held that the case pending against the person might not involve moral turpitude but suppressing of this information itself, amounts to moral turpitude. When the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent Authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge, the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude. 4.1 It is further submitted that the petitioner was appointed on 01.03.1986. On 22.08.1985, a criminal complaint was lodged against him. In his application for appointment, he has not disclosed any information about criminal complaint lodged against him. Withholding such material information or making false representation itself amounts to moral turpitude. 4.1 It is further submitted that the petitioner was appointed on 01.03.1986. On 22.08.1985, a criminal complaint was lodged against him. In his application for appointment, he has not disclosed any information about criminal complaint lodged against him. The respondent bank was unaware of the criminal complaint and further proceedings including conviction of the petitioner by learned Judicial Magistrate First Class, Pardi, for offences under Section 326 and 114 of IPC and sentencing him for 1 year simple imprisonment with fine of Rs.1,500/- each and in default of payment of fine, to undergo 3 months simple imprisonment and also convicted for offence under Section 325 and 114 of IPC, imposing sentence of 9 months simple imprisonment with fine of Rs.1000/- and in default of payment of fine, to undergo under simple imprisonment for 2 months and for the offence Section 324 and 114 of IPC, imposing sentence of simple for a period of 6 months with fine of Rs.500/- and in default of payment of fine, to under go simple imprisonment for one month. The petitioner has suppressed initiation of criminal complaint and at the time of getting employment and even thereafter, the conviction by the learned Magistrate, the respondent bank came to know about this through outside third party about one year after the conviction by the learned Magistrate. 4.2 Learned advocate has relied upon decision of the Apex Court in case of Rajasthan Rajya Vidyut Prasaran Nigam Limited and Another v/s. Anil Kanwariya,reported in (2021) 10 SCC 136 and also the decision of the Apex Court in case of Satish Chandra Yadav v/s. Union of India and others in Civil Appeal No.6955 of 2022 dated 26.09.2022. 5. In rejoinder, learned advocate for the petitioner has submitted that the Court may call upon the respondent authorities and direct them to produce before this Court the declaration that has been made by the petitioner at the time of joining into the services and the contention taken of lodging of the FIR under Sections 324, 325 and 114 of IPC, which was registered against him. The petitioner to produce the very material before this Court that the respondent bank has called upon him of making a declaration about knowledge of having any criminal case pending against the petitioner. The petitioner to produce the very material before this Court that the respondent bank has called upon him of making a declaration about knowledge of having any criminal case pending against the petitioner. The petitioner also called upon the authority to show that anytime, anywhere and any such documents, which have been asked as and by way of declaration and/or any material in which the petitioner has been given wrong information and/or not disclosed about pendency of the case against the petitioner. However, about conviction, grant of probation and the order that has been passed by the appellate Court, the petitioner has brought to the notice of the authority that the petitioner has been given the benefit of Probation of Offenders Act by the Court on having been convicted of the offense that has been filed against the petitioner. 6. The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioner joined the bank as a Cashier-cum-Clerk on 01.03.1986. However; before joining the bank, a FIR came to be lodged against the petitioner on 22.05.1985 for the offences punishable under Sections 324, 325 and 114 of Indian Penal Code and Criminal Case was registered against the petitioner being No. 2174 of 1986 before learned Judicial Magistrate First Class, Pardi. The learned trial Court passed judgment and order dated 14.03.1995, imposing sentence for the offences as stated in the same. In view of the above, the respondent bank passed an order, dismissing the petitioner from the services of the bank on 20.05.1996 under the provisions of Rules as well as Banking Regulations Act after giving due show cause notice to the petitioner. The petitioner being aggrieved filed the appeal before the Appellate Court, who by judgment and order dated 25.09.2006, had been pleased to give the benefit under provisions of Section 4 of the Probation of Offender Act on condition of good behaviour for one year. It is submitted that in view of the order passed by this Court in earlier Special Civil Application No.9517 2009 dated 20.09.2017, the proceedings were taken to pass necessary order after re-examination the case of the petitioner by giving opportunity of personal hearing. It is submitted that in view of the order passed by this Court in earlier Special Civil Application No.9517 2009 dated 20.09.2017, the proceedings were taken to pass necessary order after re-examination the case of the petitioner by giving opportunity of personal hearing. The respondent No.2 has examined the case and after giving personal hearing as per the request of the petitioner on different passed an order on 18.12.2017, which is produced at pages 92 to 99 of the paper book. In the re-examination, it is found that the petitioner has failed to report to the bank about registration offence against him before joining bank, during the trial and on his conviction. It is well settled decision of the Courts including the Hon’ble Supreme Court that a case pending against the employee may or may not involve moral turpitude but suppressing of that information itself amongst to moral turpitude. Therefore, decision and action taken by the respondent is in accordance of the law based on the established facts and the petitioner is not entitled to the relief as prayed for in the petition and therefore, same deserves to be dismissed. At the time of applying for post and joining the service of the bank, candidate has to fill out necessary forms and declare amongst other things that criminal action is pending against such candidate. 7. The impugned order dated 18.12.2017 was passed by holding that the petitioner was discharged from service of the bank w.e.f. the order dated 20.05.1996 and such order was passed after re-examination of the termination order of the petitioner dated 20.09.2017 after directions were issued by this Court in Special Civil Application No.9517 of 2009. 8. From the record, it appears that the petitioner joined the bank as a Cashier cum Clerk on 01.03.1986 at our Bhuj Branch and thereafter transferred to Branch. Before joining the bank a FIR lodged against the petitioner on 22.05.1985 for the offences punishable under Sections 324, 325 and 114 of Indian Penal Code. For the said offences, a case was registered in the Court of Judicial Magistrate First Class at Pardi bearing registration No. 2174/1986. Hon’ble Judicial Magistrate First Class Pardi by Judgment dated 14.03.1995 convicted petitioner 8.1 The Court inflicted following sentence on petitioner:- (i) One year simple imprisonment and fine of Rs. For the said offences, a case was registered in the Court of Judicial Magistrate First Class at Pardi bearing registration No. 2174/1986. Hon’ble Judicial Magistrate First Class Pardi by Judgment dated 14.03.1995 convicted petitioner 8.1 The Court inflicted following sentence on petitioner:- (i) One year simple imprisonment and fine of Rs. 1500/- in default of the fine further imprisonment of 3 months for the offences punishable was 326 and 114 of IPC. (ii) Nine months simple imprisonment and fine of Rs 1000/-, in default of fine further imprisonment of 2 months for offences punishable under Sections 325 and 114 of the IPC. (iii) Six months simple imprisonment and fine of Rs 500-, in default of fine further imprisonment of one month for offences punishable ws 324 and 114of IPC. 8.3. The petitioner alongwith others had preferred a Criminal Appeal before the Additional Sessions Judge, Valsad. They had been released on bail and substantive sentence imposed by the learned Judicial Magistrate First Class, Pardi was suspended till final disposal of the appeal. 8.4 The aforesaid Criminal Appeal No. 23 of 2002 was decided by the Additional Sessions Judge, Second Fast Track Court, Valsad vide order dated 25.09.2006, whereby the Appellate Court had pleased to give benefit under provisions of Section 4 of the Probation of Offenders Act on condition of good behavior for one year. The Senior Police Sub Inspector, Pardi had issued Certificate of good behavior on 08/04/2008. The Bank dismissed the petitioner from the Bank’s Service under Section 10 (10(b) Sub-Clause (1) of the Banking Regulations Act, 1949 vide order dated 20.05.1996. 8.5 the petitioner challenged the aforesaid Order of dismissal by filling Special Civil Application No. 8115 of 1996 before this Court. The said petition was withdrawn by the petitioner for making representation to Bank. The petitioner in his representation dated 10.05.2008 had drawn the attention of the Bank on Additional Sessions Judge Court’s decision giving him benefit under Section 4 of the Probation of Offenders Act. The Bank rejected the request of the petitioner by its letter dated 20.02.2009 for reinstatement on the ground that since his conviction is maintained in appeal. 9. This Court in Special Civil Application No.9517 of 2009 has passed the detailed order and ultimately directed in paras-31 and 32 as under: “31. It is not the case of the respondents that previously also the petitioner was engaged in any offence or misconduct. 9. This Court in Special Civil Application No.9517 of 2009 has passed the detailed order and ultimately directed in paras-31 and 32 as under: “31. It is not the case of the respondents that previously also the petitioner was engaged in any offence or misconduct. The said aspect is also not considered by the Respondents before discharging him from service. 32. On the bedrock of the foregoing pronouncement of law and facts, in my considered opinion, the impugned orders are liable to be quashed and set aside, as the same suffers from non-application of mind on the aforementioned aspects. However, the matter is remanded to the respondent authorities to re-examine the case of the petitioner in light of the observations made by this Court. Necessary orders may be passed by the respondent authorities after giving an opportunity of hearing to the petitioner within a period of three months from today.” 10. The Court has also gone through the impugned order, wherein an opportunity of hearing was given to the petitioner and the proceedings which were conducted included the re-examination of the witnesses whose names are mentioned in the order itself. It is apparent that when the petitioner was put with the questions regarding lodgemnet of FIR, at the time prior to the joining the bank, as well as information given by the petitioner to the bank regarding his conviction, the petitioner has refused to answer by indicating that such questions were beyond the scope of the order passed by the Court in the previous petition. 11. In the opinion of the Court, when the matter was remanded back under the order as mentioned in preceding paras, the Court had directed for re-examining the issue as the impugned order therein had suffered from non-application of mind on certain aspects and the remand was for the purpose of authority to re-examine the case of the petitioner in light of the observations made by this Court. This cannot be understood circumscribe the scope of inquiry at the hands of the respondent employer and therefore, the relevant issue to which the petitioner was expected to answer regarding registration of the FIR and fact of conviction was the most relevant aspect for the public employment in the respondent-bank. This cannot be understood circumscribe the scope of inquiry at the hands of the respondent employer and therefore, the relevant issue to which the petitioner was expected to answer regarding registration of the FIR and fact of conviction was the most relevant aspect for the public employment in the respondent-bank. Section 10(1)(b)(i) of the provides for prohibition of employment and restrictions that no banking company shall employ or continue the employment of any person, who is or, who has been convicted by a criminal Court of an offense involving moral turpitude. In the opinion of the Court, as the fact involved indicates that the petitioner was involved in a criminal offense registered for offense under the IPC sections even at the time when the petitioner had appeared in recruitment process. The application form of the relevant time had indicated in its proforma disclosure of any criminal offense against the candidate which the Court has reason to believe was not disclosed by the petitioner at the relevant time, thereby leading to his selection. The second stage came when the petitioner was convicted by the trial Court for an offense under Section Section 326 and 114 of IPC and sentencing him for 1 year simple imprisonment with fine of Rs.1,500/- each and in default of payment of fine, to undergo 3 months simple imprisonment and also convicted for offence under Section 325 and 114 of IPC, imposing sentence of 9 months simple imprisonment with fine of Rs.1000/- and in default of payment of fine, to undergo under simple imprisonment for 2 months and for the offence Section 324 and 114 of IPC, imposing sentence of simple for a period of 6 months with fine of Rs.500/- and in default of payment of fine, to under go simple imprisonment for one month by the learned Judicial Magistrate First Class, Pardi in Criminal Case No.2174 of 1986. This also appears to have not been reported by the petitioner and thereafter, an appeal came to be preferred, wherein the petitioner was given the benefit of Section 4 of the Probation of Offender Act, which was also not reported by the petitioner till the application was received from third party by the bank regarding these proceedings. It was only thereafter, that the bank had initiated the proceedings against the petitioner on the basis of his conviction. 12. It was only thereafter, that the bank had initiated the proceedings against the petitioner on the basis of his conviction. 12. The Apex Court inc case of Rajasthan Rajya Vidyut Prasaran Nigam Limited (Supra) in paragraphs Nos.13, 14 and 15 has held as under:- “13. Even otherwise, subsequently getting the benefit of Section 12 of the Act 1958 shall not be helpful to the respondent inasmuch as the question is about filing a false declaration on 14.04.2015 that neither any criminal case is pending against him nor he has been convicted by any court of law, which was much prior to the order passed by the learned Sessions Court granting the benefit of Section 12 of the Act 1958. As observed hereinabove, even in case of subsequent acquittal, the employee once made a false declaration and/or suppressed the material fact of pending criminal case shall not be entitled to an appointment as a matter of right. 14. The issue/question may be considered from another angle, from the employer’s point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right. 15. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right. 15. In view of the afore-stated facts and circumstances of the case, both, the learned Division Bench as well as the learned Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.” 13. In a recent decision in case of Satish Chandra Yadav (Supra), the Supreme Court has held as under:- “67. Thus, this Court took the view that although employment opportunity is a scarce commodity in the present times being circumscribed within a limited vacancies yet by itself may not suffice to invoke sympathy for grant of relief where the credentials of a candidate may raise any question regarding his suitability, irrespective of eligibility. However, at the same time, this Court observed that there should not be any mechanical or rhetorical incantation of moral turpitude to deny appointment in a government service simplicitor which would depend on the facts of each case. The judicial philosophy flowing through the mind of the judges is that every individual deserves an opportunity to improve, learn from the past and move ahead in life for self-improvement. To make past conduct, irrespective of all considerations, may not always constitute justice. It would all depend on the fact situation of the given case. 68. The only reason to refer to and look into the various decisions rendered by this Court as above over a period of time is that the principles of law laid therein governing the subject are bit inconsistent. Even after, the larger Bench decision in the case of Avtar Singh (supra) different courts have enunciated different principles. 69. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. Even after, the larger Bench decision in the case of Avtar Singh (supra) different courts have enunciated different principles. 69. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows: a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials–more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society’s security. [See Raj Kumar (supra) b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post. c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service. d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders’ conduct, should not enter the judicial verdict and should be avoided. e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide. f) Is there any element of bias in the decision of the Authority? g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable? Scope of Appeal under Article 136 of the Constitution.” 14. In view of the aforesaid reasonings, the Court is not inclined to interfere with the decision of the respondent-bank and therefore, the petition deserves to be and the same is hereby dismissed. Rule is discharged.