The Competent Authority cannot discharge the Employee on the Sole ground of Non-Disclosure of Information: Calcutta High Court
Case title: Sankar Mandal Vs Union of India & Ors.
Case no.: WPA 3225 of 2016
Decision on: February 5th, 2024
Quoram: Justice Raja Basu Chowdhury
Facts of the case
The petitioner, Sankar Mondal had participated in a recruitment process for the post of Constable with reference to the Employment Notice issued by the Railway Protection Force. On successful completion of the same, he was called for training and was required to report to the SSB ATC Debandra nagar, Assam, along with other successful candidates. He was then posted at the 8th Battalion, Railway Protection Special Force CLW where he completed his further practical training. However, on 5th January, 2016, he was discharged from enlistment for the post of Constable, on the ground of false declaration or non-disclosure of a pending criminal case against him in the Attestation Form. The petitioner, through a writ petition challenged the order which forfeited his appointment.
Submissions on behalf of the Petitioners
The Counsel submitted that the respondents had mechanically dismissed the petitioner from service without considering the order of acquittal in the criminal case wherein he was a co-accused. Further, pointing out to the criminal proceedings against the petitioner, he submitted that the petitioner was only a co-accused in connection with a false complaint lodged against him relating to a dispute with his neighbor wherein the Judicial Magistrate held that the accused persons were not guilty of the charges levelled against them.
He contended that since the charges were trivial in nature, the discharge of service of the Petitioner on the basis of the same amounted to a violation of Articles 14 and 19(1)(g) of the Constitution of India. As such, he submitted that the charges of misrepresentation levelled against the petitioner, should be treated to be a mere omission and nothing more. The Counsel quoted various judgments to support his contentions and thus, prayed to allow the present petition and direct the respondents to reinstate the petitioner back in service by setting aside the order of discharge.
Submissions on behalf of the Respondents
The Counsel, on the contrary submitted that the Petitioner, on the date of filling up the Attestation Form was conscious and aware of a criminal proceeding was pending against him and as such he deliberately and willfully suppressed the fact. Further, he contended that the very act of suppression of criminal case pending against the Petitioner while filling up the Form amounted to furnishing false declaration and misrepresentation. He submitted that dishonesty should not be permitted to bear the fruit and benefit to those persons who have misrepresented themselves and relied on the case of Devendra Kumar v. State of Uttaranchal to support him contentions.
Further, by referring to Rule 52.2 and 67.2 of the Railway Protection Force Rules, 1987 and highlighting the power of the authorities to verify the petitioner’s candidature he submitted that there was no irregularity in carrying out the same. Furthermore, distinguishing the judgments relied on by opposite Counsel, he submitted that in none of the cases a person who is charged with a heinous or a serious offence has been let off. Therefore, the Counsel in the light of the judgment delivered in the case of Avtar Singh v. UOI & Ors submitted that the petitioner may also be remanded to the authorities for a decision in the matter.
Court’s Analysis and Judgement
The Court on brief perusal of the facts at hand and materials on record observed that an employer while passing an order of discharge from service for giving false information may take into consideration the criminal antecedents and has a right to consider continuance of such candidate. However, the employer cannot be compelled to appoint such a candidate with criminal antecedents. Further, Justice Raja Basu Chowdhury, quoted the precedence from various cases to adjudicate the matter.
Firstly, in the case of Pawan Kumar v. UOI & Anr, the Apex Court had categorically stated that mere suppression of material or false information in a given case does not authorize the employer to arbitrarily discharge/terminate the employee from service. Secondly, in the case of Mohammed Imran v. State of Maharashtra and Ors the Court reiterated the rulings of Avtar Singh case which held that that although empanelment creates no right to appointment, there cannot be any arbitrary denial after empanelment as well. Thirdly, relied on the case of Union of India & Ors v. Sri Sukdev Mondal which held that the Learned Single Judge had rightly directed reinstatement of the employee in service in the post of constable at the stage from where he was dismissed by his employer and had consequentially affirmed the said direction.
The Bench noted that the respondents had passed the order of discharge by overlooking the order of acquittal of the petitioner. It observed that apart from the failure of the petitioner to disclose the relevant information in the Attestation Form, there was no other conduct for which the Petitioner was discharged. Therefore, the court held that non-disclosure of information cannot form the sole ground for the competent authority to discharge the Petitioner by the stroke of a pen. The Court noted that the order of discharge cannot be sustained, although it is ultimately vested with the employer to decide the matter judiciously and thereby, directed the respondent no. 2, to review the aforesaid decision of discharge in the light of the observation made herein and to reinstate the petitioner.
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Judgement Reviewed by – Keerthi K
