Non disclosure of pending case at time of joining govt job
suneetha Jain
(Querist) 27 August 2021
This query is : Resolved
In Avtar Singh Vs Union of India Case, Hon'ble Supreme Court of India has given Judgment given on 21.07.2016. In that Judgment, 11 points are mentioned by Hon'ble Supreme Court regarding non disclosure of pending cases while applying for Govt Jobs. I would like to know the view of Hon'ble Supreme Court through you (experts) because point no 1 (38.1) says that the candidate should disclose the details of pending cases. But point no 4.1 (38.4.1) says that in case of trivial cases, even though the candidate did not disclose the details of pending cases, it can be condoned. I would like to know whether the judgment is in favor of employee or employer. Because, based on point no 1, Employer can terminate the employee in case of non disclosure of cases. Again based on point 4.1, Employee can have the right to get back his job in case of non disclosure of cases. Please clarify my doubt
Dr J C Vashista
(Expert) 28 August 2021
Can you post the judgment to find its ratio and comment.
However, you have already studied what is your opinion ?
suneetha Jain
(Querist) 28 August 2021
https://indiankanoon.org/doc/175903641/
suneetha Jain
(Querist) 28 August 2021
I have already expressed my opinion Dr Vashista Sir. But, I would like to have the opinion of Experts like you for better understanding of the above Judgement as I have noticed that Some wicked Employers are taking advantage of Point no 1 (38.1) . As a result, the motive of Hon'ble Supreme Court in helping the employees who have faced trivial cases is not fulfilled
K Rajasekharan
(Expert) 28 August 2021
The judgement is a balanced one. It is neither in favour of the employer nor in favour of the official. It keeps a fine balance in reconciling contrary decisions of various division benches, without favouring both. It upholds the rights and liabilities of them in an equitable manner.
It unequivocally says the official should not make a deliberate or intentional suppression of facts. But if some unintentional lapses happen that can be condoned after verifying the circumstances and finding the severity of the issue by the employer.
The judgement says all facts must be informed but it does not say a person who does not inform all fact should be terminated. If the suppression is of severe nature and deliberate, he must be terminated but if it is of insignificance or of a trivial nature such a mistake can be condoned.
T. Kalaiselvan, Advocate
(Expert) 28 August 2021
A proper interpretation of the referred judgment has been made by expert Mr. Rajasekharan along with his opinion, which are concurred herewith, hope you understand the situation and take decision.
P. Venu
(Expert) 28 August 2021
What is the context in which the query has been posted?
suneetha Jain
(Querist) 29 August 2021
Thank you K Rajasekharan Sir for your opinion. A person, who is a relative of mine joined Bank of Baroda (BOB) as PO but he did not disclose a pending false case related to his marriage (He informed his inability to marry a girl just 2 days before marriage to her parents to marry his girl friend as a result her parents filed false cases) because it was settled by elders some time back before his joining BOB. It came to his notice that case is pending only after his joining the Bank. Later, he got the case closed in Lok Adalat and submitted to BOB. But, BOB terminated him. So, he filed a WP in High Court and High Court clearly instructed the bank to set aside the termination order and issue a reasonable order based on the above mentioned case (Avtar Singh) But BOB did not set aside the termination order and informed him that based on Point 1 (38.1) of Avtar Singh case, BOB feels termiation is justified. So, he agian filed another WP in High Court. I am saying all these because, I feel that BOB (willfully )failed to understand the Judgement. Thats why I told that the motive of Supreme court is not understood by some employers willfullly. In the above case, case is settled in Lok Adalt itself shows that the case is trivial one (compoundable one)
P. Venu
(Expert) 30 August 2021
The clarification, as above, is short of material facts.
Admittedly, there was a criminal case but the candidate did not disclose it to the employer. What were the offences he was charged with?
What do you mean by "It came to his notice that case is pending only after his joining the Bank.". Please elaborate.
When did he join the BoB? When did he receive the summons for trial? When was the matter settled before the Lok Adalat?
"So, he filed a WP in High Court and High Court clearly instructed the bank to set aside the termination order and issue a reasonable order based on the above mentioned case" It is impossible that the High Court would have issued such a direction to the employer to set aside the termination order. The order would have been that the termination order would have been set aside and the employer would have been directed to reconsider the issue in the light of the ratio laid down by the Supreme Court in Avtar Singh case. Please verify.
The subjective opinion that the charges were false is not at all material to the issue, all the more so, when the matter was settled in the Lok Adalat and there has been no acquittal on merits.
K Rajasekharan
(Expert) 30 August 2021
Your explanation shows that the Bank is at fault and they ignored the spirit of the SC judgement.
When a High Court asks the Bank to reconsider a termination order and re-issue an appropriate order considering the proportionality of the offence, no institution usually issues a termination order, after considering the matter further. Here there is something peculiar has happened.
The Bank has in this case violated a Principle of Jurisprudence – the Doctrine of Proportionality. That means the proportion of punishment for an offence must be directly proportional to the gravity of the offence.
Then, it seems that the party can question that fresh order in question, again in the court, if it goes against the spirit of the SC judgement.
Your explanation altogether indicates that the lapses on the part of your friend is not so grave. The Bank should have closed the issue after giving him a negligible punishment, as is usually done in liberal government departments.
suneetha Jain
(Querist) 31 August 2021
Thank you Rajasekharan Sir for your valuable inputs
suneetha Jain
(Querist) 31 August 2021
Sri P Venu Sir! I am attaching herewith the final judgement words for your reference:
11. Having regard to the principles laid down above, and since the impugned order appears to have been passed without keeping in mind these principles, I deem it appropriate to set aside the impugned order dt.03-05-2013 and remit the matter back to the 1st respondent to reconsider the issue keeping in mind the principles laid down in the judgment of the Supreme Court in Avtar Singh (1 supra). The petitioner shall be entitled to place in writing, within two (02) weeks from the date of receipt of a copy of this order, his submissions on the issue. The 1st respondent shall then consider the same keeping in mind the judgment in Avtar Singh (1 supra) and pass a fresh reasoned order within two (02) months from the date of submission of petitioner’s representation as mentioned above. Even if petitioner does not submit any representation within time stipulated, the 1st respondent shall pass a fresh reasoned order keeping in mind the judgment in Avtar Singh (1 supra) and the contentions raised by petitioner in the Writ Petition and in the explanation submitted by petitioner, and communicate its decision to the petitioner within two (02) months.
12. The Writ Petition is allowed to the above extent. No costs
P. Venu
(Expert) 31 August 2021
"I deem it appropriate to set aside the impugned order dt.03-05-2013 and remit the matter back to the 1st respondent to reconsider the issue keeping in mind the principles laid down in the judgment of the Supreme Court in Avtar Singh (1 supra)"
That exactly was what I could gather - the High Courts direction was not to set aside the termination order, BUT the High Court had set aside the termination order and had remitted the issue to the competent authority with a direction to reconsider the same in the light of the Avtar Singh judgment. The petitioner was also given the liberty to make his submissions.
As such, the directions of the High Court could never be read as a diktat to take back the employee. All that was required of the competent authority was to take all the relevant aspects, including the points urged in the submissions, if any, made by the employee and to pass a speaking order setting out the reasons for the decision so arrived at.
You have not disclosed whether the employee had made any submission and also, the reasons relied on by the competent authority for its decision. Hence it is hasty to express any opinion except that citations are no magic wands. How far the ratio of a particular decision applies to the case in hand depends upon the facts and circumstances.
This is all the more so because not provided specific information as to the the offences as well the facts relating to your assertion that "It came to his notice that case is pending only after his joining the Bank.".
K Rajasekharan
(Expert) 31 August 2021
The High Court sets aside the termination order precisely because the order provides a harsher punishment, in violation of the basic tents of doctrine of proportionality, than what is actually required as per law of the land.
If the Bank comes out with a termination order again, it means that they have not understood neither the high court order or the Supreme Court order, in their right spirit.
Only an insignificant part of law can be understood by looking at it mechanically. But a significant part of it can be understood only by means of a wholistic look at it, probably in an intuitive way rather than in a technical manner. This is because what the law and the law court do is to find out justice, which essentially means what is right and what is not right.
Here, the Bank thinks that they can terminate a person selected on merit and capable of running it efficiently because of some insignificant lapse which is unconnected with the job he is going to perform in a new office environment. That is a sad story we see everywhere.
In some cases, the court ably interferes but in some other cases, it is not possible because there are enough judges who look at things in the manner the Bank does in this case.
suneetha Jain
(Querist) 01 September 2021
Thank you Rajasekharan Sir for your inputs.
suneetha Jain
(Querist) 01 September 2021
Thank you Venu Sir for your opinion
P. Venu
(Expert) 01 September 2021
It is an empty gesture to offer thanks instead of providing material facts to the issue! It serves no good to this platform or the employee concerned.
suneetha Jain
(Querist) 01 September 2021
Venu Sir! He was charged with IPC 417, 420 r/w 34 IPC. The case is filed in May 2009. The matter was settled among the elders in Aug 2009. He joined BOB on 01.03.2011. From Aug 2009 to Mar 2011, he did not receive any communication from Court regarding the above case of May 2009. So he thought that case is closed. He received summons from the Court only in Feb 2012. Then only he came to know that case is still live. He was served with show cause notice in Dec 2012. The matter was settled in Lok Adalat in Jan 2013. He was terminated in May 2013 inspite of submitting the Lok Adalat copy to BOB in Jan 2013. I hope that I have answered all your queries.
P. Venu
(Expert) 01 September 2021
"He received summons from the Court only in Feb 2012". If so, there is no question at all of any suppression of any information. And that was the point that should have been emphasized in reply to the show cause notice and subsequently pursued before the High Court. It is unfortunate that a confused approach has put your relative's career in jeopardy!
suneetha Jain
(Querist) 04 September 2021
Thank You for your inputs Venu Sir
