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2024 DIGILAW 1119 (GUJ)

Minaxiben Babulal Solanki v. Bank Of Baroda

2024-05-03

BIREN VAISHNAV, PRANAV TRIVEDI

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ORDER : (Biren Vaishnav, J.) 1. This appeal under Clause 15 of the Letters Patent has been filed challenging the oral judgement dated 13.02.2017. The appellant, who was the original petitioner, failed before the learned Single Judge, hence this appeal. 2. The appellant approached this Court for quashing and setting aside the order dated 22.09.2015 passed by the respondent – Bank of Baroda. By the order under challenge, the Bank withdrew the offer of appointment made to the appellant in view of the unsatisfactory antecedents that came to its notice. 3. Briefly stated, it is the case of the appellant that she was earlier employed by the Saurashtra Gramin Bank. During her probation she was transferred from one branch to the other, and therefore, she made an application on 23.04.2014, to the Chairman of the Bank stating that she was being harassed. The Bank sought details from the appellant. Allegations were made by the appellant of sexual harassment against an employee. An Internal Complaints Committee was constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013. The Committee then came to a conclusion that the complaint was without any basis. 3.1 A Show-cause notice was issued to the appellant asking her to show cause as to why action not be taken against her. After the show-cause notice was responded to, the Saurashtra Gramin Bank terminated the appellant’s appointment on 02.07.2014. 3.2 It appears that the present bank, i.e. the Bank of Baroda, invited applications for appointment. On 01.05.2015, the appellant was offered an appointment with the Bank in the Clerical Cadre. On 06.05.2015, she had filled in a form, where a declaration was given that she had left her earlier appointment with the Saurashtra Gramin Bank as a result of sexual harassment. 3.3 Having found that the declaration made in the Attestation Form was incorrect and that the appellant’s services were terminated by the previous employer, the respondent bank issued a show-cause notice asking her to show-cause as to why her appointment letter be not withdrawn or cancelled. 3.4 Ultimately, by the impugned order, the appointment of the appellant herein was withdrawn. On a challenge being made by the appellant herein before the learned Single Judge, the action of the bank of withdrawing the appointment was upheld, hence the appeal. 4. 3.4 Ultimately, by the impugned order, the appointment of the appellant herein was withdrawn. On a challenge being made by the appellant herein before the learned Single Judge, the action of the bank of withdrawing the appointment was upheld, hence the appeal. 4. Mr.P.T.Jasani, learned counsel appearing for the appellant would submit that the order of the learned Single Judge was misconceived. He would submit that the learned Single Judge failed to appreciate that the termination order of the previous employer was a subject matter of challenge in Special Civil Application No. 8385 of 2015, which petition was allowed on 12.08.2015 with a direction that it is open for the bank to hold an appropriate inquiry. Pursuant to the order, she was reinstated in service, and therefore, the learned Single Judge could not have dismissed the petition on the ground of antecedents being bad when the order itself was withdrawn. 4.1 Mr.Jasani, learned counsel, would therefore read the order of the learned Single Judge, especially paragraph 7 and 8 therefore to indicate that the observations made therein by the learned Single Judge was misconceived. 5. Mr.K.V.Gadhia, learned counsel appearing for the respondent – bank, would submit that the order of withdrawal of appointment was just and proper. In the submission of Mr.Gadhia, learned counsel, the appointment of the appellant with the respondent – bank never materialized and before she could join, having found that the information given in the Attestation Form was factually incorrect, the offer of appointment was withdrawn before she could join. 5.1 Mr.Gadhia, learned counsel, would invite the Court’s attention to the affidavit-in-reply filed before the learned Single Judge and submit that as per the Condition No.7 of the Appointment Letter, it was necessary for the appellant to submit an Experience Certificate as well as relieving letter which in the submission of Mr.Gadhia, the appellant did not. The order of termination being quashed subsequently by the judgement of 12.08.2015 was irrelevant, inasmuch as, this Court orally set aside the order with a further direction to hold an inquiry. 5.2 Mr.Gadhia, learned Counsel, would submit that after following the prescribed procedure and on inquiry, it was found by the Saurashtra Gramin Bank that the complaint of the appellant leveling allegations of sexual harassment were misconceived. The bank, therefore, terminated her services which were a subject matter of challenge. 5.2 Mr.Gadhia, learned Counsel, would submit that after following the prescribed procedure and on inquiry, it was found by the Saurashtra Gramin Bank that the complaint of the appellant leveling allegations of sexual harassment were misconceived. The bank, therefore, terminated her services which were a subject matter of challenge. On the order being set aside for an appropriate inquiry, a charge-sheet was issued and the appellant’s services were terminated which was a subject matter of challenge in the petition which came to be rejected. The aspect of termination from service by the previous employer in the submission of Mr.Gadhia, learned counsel, would have no bearing with the present controversy. 6. Having considered the submissions made by the learned counsels appearing for the respective parties, what is evident from the factual narration is that the appellant was initially appointed on probation with the Saurashtra Gramin Bank in the year 2013. On being transferred from Tarasimiya Branch, Bhavnagar, she requested for re-transfer. She also made allegations against the behaviour of one Office Assistant. Since the allegations involved allegations of sexual harassment, an Internal Complaints Committee was constituted, which found that the complaint of the appellant herein was false and baseless. Evidently based on this, a show-cause notice was issued and her services were terminated from the bank on 02.07.2014. Though the termination order was set aside subsequently in August 2015, prior to the withdrawal of the appointment in the present case, the real controversy that was at hand was that while filling the Attestation Form for securing employment in the present respondent’s bank, against the column “reasons for leaving”, she had stated that there was sexual harassment. In fact, from the chronology of events and dates and the material placed on record before the learned Single Judge, what is evident is that based on an application /complaint of sexual harassment lodged by the appellant, the bank having found the complaint being misconceived, terminated the services of the appellant. Obviously therefore, a misleading statement was made in the Attestation Form. 6.1 Even after the remand of the matter where the Court set aside the order of termination with a liberty to hold an inquiry, the services of the appellant were subsequently terminated and the subject matter of challenge to that termination too failed before this Court. Obviously therefore, a misleading statement was made in the Attestation Form. 6.1 Even after the remand of the matter where the Court set aside the order of termination with a liberty to hold an inquiry, the services of the appellant were subsequently terminated and the subject matter of challenge to that termination too failed before this Court. This aspect has not even been highlighted while filing an appeal before us, and therefore, there is more reason to believe that the bank in passing the order impugned in the petition withdrawing her appointment on the ground that her antecedents were not satisfactory cannot be faulted with. 6.2 The decision of the Hon’ble Supreme Court in the case of A.P. Public Service Commission Vs. Koneti Venkateswarulu., reported in (2005) 7 SCC 177 , when read, indicates that a person who indulges in such suppressio veri, does not deserve any mercy. It will be relevant to reproduce paragraphs 3,4,6 and 10 of the decision, which read as under: “3. On 2.7.1999 the appellant commission published an advertisement inviting applications for filling up various categories of posts including four posts of Women Child and Welfare Officers by direct recruitment from candidates belonging to Scheduled Tribes. The application form given out to the candidates, required by Column 11 and Annexure III, that the candidates should furnish full information with regard to their appointments in Government /private sectors, if any. The notification issued by the commission specifically informed the candidates that giving of any false/wrong information or suppression of material information would lead to cancellation of the candidature. The First Respondent was a candidate for the recruitment as he belongs to Scheduled Tribe. He filled up the application form, but left Column 11 pertaining to previous employment totally blank. He gave a declaration at the end of the application which stated: "I hereby declare that all statements made in this application are true and correct and I undertake to produce original documents at any moment of time, failing which my candidature could be cancelled." He also filled up Annexure III in which the declaration was as follows: "I hereby declare that I am not working in any Government Department/Quasi Government/Public Sector/Private Sector and that my maximum age does not exceed 35 years as on 1.7.1999. I further declare that the information furnished by me is true and correct and my candidature shall be cancelled at any stage if it is found in-correct." 4. The application of the First Respondent was accepted and he was allowed to take the written examination. The First Respondent passed the written examination and was called for interview. He was also selected in the interview. Before the First Respondent could be notified about the result, the appellant learnt that the First Respondent was employed and was working as a teacher, and that he had suppressed this information by deliberately not filling up Column 11. A show cause notice was issued to the First Respondent calling upon him to show cause why his candidature should not be cancelled. The First Respondent submitted an explanation to the show cause notice stating therein inter alia that he inadvertently filled up and signed Annexure III of the application form, which was not required to be filled up by him and, therefore, there was no suppression of material information. Annexure III was intended only for candidates seeking fee exemption for un-employed youth in the age group of 18-35. This was not applicable to the First Respondent as he belonged to Scheduled Tribe. The appellant commission cancelled the candidature of the First Respondent by taking the view that he had deliberately indulged in suppression of relevant information and that his explanation to the show cause notice was not satisfactory. XXX XXX XXX 6. The learned counsel for the appellant drew our attention to the photocopy of the application dated 24.7.1999 from which it is clearly seen that as against Column No. 11 the First Respondent has given no information whatsoever, leaving the column blank by drawing lines. He had put his signature and made declaration in the application which is earlier reproduced. The First Respondent also filled up Annexure III and made a declaration therein as reproduced earlier. Learned counsel for the appellant commission relied on the judgment of this Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav and contended that when information with regard to the antecedents of a candidate is called for, it is intended to verify and cross-check the information so that the suitability of the candidate for employment could be judged. Learned counsel for the appellant commission relied on the judgment of this Court in Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav and contended that when information with regard to the antecedents of a candidate is called for, it is intended to verify and cross-check the information so that the suitability of the candidate for employment could be judged. If the candidate indulges in suppresso veri and suggestio falsi, he proves himself unfit to be employed, all the more so, if he is to be employed in public employment. If the information as to the full particulars of employment was available with the commission, the commission could have checked the antecedents of the First Respondent with his employer and ascertained the suitability of the First Respondent for employment. In any event, it had been made clear to the candidates, both in the advertisement calling for applications as well as in the body of the application itself that furnishing of false information or its suppression was liable to result in cancellation of the candidature. The First Respondent, therefore, did not deserve any consideration and the High Court erred in interfering with the order of the Tribunal. XXX XXXX XXX 10. Considering that the First Respondent belongs to Scheduled Tribe, we refrain from imposing costs upon him, with the fond hope that the next time he applies for employment elsewhere, he will be more careful and forthright.” 6.3 It is in light of this fact that the learned Single Judge while dismissing the petition, held thus: “7. Having considered the rival contentions, this is a case where undisputedly before the petitioner could accept the order of appointment and resume her duties, the order came to be withdrawn and thus employer–employee relation had not come into existence. Question is not of termination of service, but of discretion of the employer to take in the employment the candidate otherwise found to be eligible for the post in question and has been selected. For the purpose of making an appointment, after recruitment, number of factors including suitability may fall in the scope of consideration. The employer when looking for the appointee, would certainly expect the best of the appointee and if the 'suitability' is the term of appointment, there is no reason why the employer cannot deny the appointment on that ground for bonafide reasons. 8. The employer when looking for the appointee, would certainly expect the best of the appointee and if the 'suitability' is the term of appointment, there is no reason why the employer cannot deny the appointment on that ground for bonafide reasons. 8. In Delhi Administration through its Chief Secretary & Ors. Vs. Sushil Kumar (supra), the candidate was charged with the offences punishable under Sections 304, 324 and 34 of the Indian Penal Code, but was eventually acquitted and was denied an appointment which denial was successfully challenged in Central Administrative Tribunal. The discharge /acquittal of the candidate weighed with the CAT to hold that the employee could not have been denied the right of appointment. The Apex Court examined the said issue and answered thus: “3. .... The question is: whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was physically found fit, Passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined forces The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service.” 7. Accordingly, we find no reason to entertain the present appeal and the same is accordingly dismissed.