Anand Prakash Sharma vs District and Sessions Judge, Guna

Dipak Misra, J.

Invoking the jurisdiction of this Court under Clause 10 of the Letters Patent the appellant has called in question the defensibility of the order dated 28.08.1998 whereby, the learned Single Judge in a categorical unequivocal manner has shown his declination to refuse in the order of termination passed by the learned District Judge, Guna who vide Annexure A-7 dated 15.05.1995 terminated the services of the appellant who was appointed as a Lower Division Clerk in the office of the District Judge by virtue of the order of appointment dated 20.04.1995 contained in Annexure A/2.

The facts lie in a narrow compass. The petitioner, vide Annexure A-2 was appointed as Lower Division Clerk in the pay scale of Rs. 950-25-1000-30-1210-40-1530 on certain conditions. The conditions translated in Hindi would convey that the employee would be entitled to abandon his service on giving notice of one month or in lieu thereof to deposit the salary for one month and if the District Judge desires to terminate the services of the employee a month''s notice shall be given to the concerned employee or in lieu there of salary for one month shall be paid to employee. In addition to the aforesaid condition another significant condition was incorporated which would convey that if there would be violation of the aforesaid condition by the employee the same shall be recovered as if it is recoverable as land revenue. The other condition which finds mention in the letter of appointment are not pertinent inasmuch as Mr. Deoras, learned counsel has not adverted to the same.

The appellant in pursuance of the aforesaid order joined at his post in the forenoon on 22.04.1995. Thereafter, he was visited with the order of termination as per Annexure P-l. On a perusal of the aforesaid order it is clear as noon day that his services were terminated with immediate effect. That apart, it was mentioned therein that after obtainment of the approval from the High Court of Jabalpur, the appellant would be informed about his re-engagement.

Being aggrieved by the aforesaid order, the appellant knocked at the doors of this Court under Article 226 of the Constitution of India. Before the learned Single Judge, it was canvassed that the learned District Judge has issued a notice Annexure P-4 indicating that the petitioner was facing a criminal charge punishable for offences under Sections 506-B, 323, 352 and 504 read with Section 34 of I.PC. in criminal case no.563/94 in the Court of Chief Judicial Magistrate, 1st Class, Guna and he was asked to provide further information whether any other criminal case was pending against him. The appellant, as set forth, submitted a reply that no other criminal case was pending against him. It is relevant to state here that the appellant, as Mr. Deoras, learned Counsel would contend, out of anxiety filed an affidavit informing that four years back that the appellant has no complicity in the crime in question. When the matter stood thus, the order of termination visited the appellant. He submitted a representation to the Registrar General, High Court of M.P. Whether the representation has been responded or not is immaterial at this juncture. Before the learned Single Judge it was urged that the petitioner has been acquitted in the criminal case on 28.11.1995 as is perceptible as per Annexure A-9. The learned Single Judge came to hold that it was incumbent on the part of the appellant to disclose the pendency of criminal case. In addition, two other facets, namely, that if the High Court had not approved the order of appointment, continuance of the appellant by the District Judge was not possible and accordingly the District Judge had rightly terminated the services of the appellant; and that the condition incorporated in the order of appointment was not to be given any emphasis in the absence of approval of the High Court.

Mr. Deoras, learned counsel for the appellant has raised the following contentions:

(a) When there is no rule or proforma prescribed for giving the antecedents, it was extremely in a way well high impossible on the part of applicant to provide such data voluntarily.

(b) For employment in government service proforma has been provided, which are to be filled up by the applicants and such non filling up and such non providing of the requisite information would tantamount to misrepresentation as has been held by the Apex Court in the case of Kendriya Vidyalaya Sangathan and Others Vs. Ram Ratan Yadav, , but such being not the warrant in the proforma or any kind of requirement, it would be extremely unsound to hold that the appellant should have provided that information.

(c) The facts if appreciated in proper perspective would appear that the High Court possibly had not given approval because of the pendency of the criminal case and that is why the impunged order indicated that he would be engaged after obtaining approval of the High Court.

(d) The petitioner having being appointed by the District Judge on certain conditions, all such conditions are to be complied with and failure of compliance would entail in axing of the order of termination.

To bolster the aforesaid submission Mr. Deoras, learned Counsel has placed reliance on a two Judge Bench decision of the Apex Court rendered in the Case of Prabhudayal Birari Vs. M.P. Rajya Nagrik Aapurti Nigam Ltd., .

Mr. A.P. Shroti, learned counsel for the respondent per contra contended that the order of the Single Judge cannot be flawed in as much as the learned Judge has placed reliance on clause 4 of the order of appointment, which clearly lays a postulate that the appointment required approval of the High Court and if the High Court had not granted approval the petitioner had no right to raise the contention in respect of violation of other conditions. The conclusion of the learned single Judge that it was immaterial on the part of the writ petitioner to provide adequate information with regard to his involvement in the crime in question cannot be treated as far fetched, remote or unsound since, it was expected on the part of the Lower Division Clerk getting into nature of this job to provide the information. The non compliance of clause-1 of the appointment order, namely, no salary was paid for the month or no notice was given and order of termination was passed with immediate effect would not vitiate the order inasmuch as no right was ingrained by virtue of use of such clause. To bolster the aforesaid submission he has placed reliance on three Judge Bench decision rendered in the case of Oriental Insurance Co. Ltd. Vs. T. Mohammed Raisuli Hassan, .

To clear the maize, at the outset we may state that the pleading are not clear whether the approval by the High Court has been rejected or not. It is also not clear whether the District Judge anticipating the approval had issued the appointment. True it is, as per the clause (4) of the appointment letter payment of salary was dependant on the approval of the High Court. Why the approval has not been given is not clear. Mr. Deoras, learned Counsel appearing for the appellant would like us to appreciate the fact that the approval might have not been given because of the pendency of the criminal proceedings. We do not intend to dwell upon such facet in absence of exposition of facts in detail on that score.

The second aspect which we would like to deal is whether it was immaterial on the part of the appellant to state about the pendency of the criminal proceeding. Mr. Shroti, learned counsel appearing for the respondents fairly stated that no particular proforma was required to be filled up by the appellant. In the case of Ram Ratan Yadav (Supra) in paragraph 11 their Lordships expressed the view as under:

The requirement of filling columns 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filing and attestation of the form/Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.

After so stating their Lordships in paragraph 11 proceeded to hold as under:

The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information can not claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his service, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per column 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondents to continue in service or not. The High Court in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case has been subsequently withdrawn and that the offences, in which the respondents was alleged to have been involved, were also not of serous nature.

The present factual matrix has to be distinguished on the touchstone of the aforesaid decision. In the case at hand there was no proforma. Nothing was mentioned in the column which would have required the petitioner to fill up this kind of data.

In the absence of all these, in our considered opinion, to hold the same against the writ petitioner would be not in the propriety of things. It is noticeable that the petitioner was asked to state if any such criminal case was pending against him and he had stated that except the aforesaid criminal case nothing was pending against him. It is not the case of the respondents that the petitioner had suppressed at that juncture. The material suppression of facts which has a reflection of character has to borne out on record. In the absence of that nothing could be read into to disqualify or disentitle one.

In view of the aforesaid we are unable to concur with the finding of the learned Single Judge that the petitioner in all fairness should have stated about the pendency of the criminal case. That was not the requisite mandate and we accept that he would so indicate more so when the affidavit had been filed four years prior to the date of engagement, is more than expected from him. In any case that was not the legal requirement.

The significant aspect that requires to be considered is whether non compliance of the clause-1 contained in Annexure A-l, letter of appointment, would vitiate the order of termination. Mr. Shroti, learned counsel appearing for the respondents does not dispute that the caluse-1 had not been complied with by the District Judge, Guna but he contends that the same would not make any kind of impact to destroy the order of termination inasmuch as the clause has to be understood in the purposeful manner. Submission of Mr. Shroti is that the employee could abandon service by either giving one month''s notice or depositing one months salary. Similarly, the employer can terminate the services by giving one month''s notice and pay one month''s salary to the employee. Learned counsel has propounded that the aforesaid clause has to be read with conjunction with other issues. If there is violation of clause-1 by the employee the salary can be recovered as arrears of land revenue. There can be no scintilla of doubt that the term would mean the employee herein ana there is no room for any other kind of interpretation.

Mr. Deoras, learned counsel for the petitioner has commended us to the decision rendered in the case of Prabhudayal Birari (Supra) wherein similar conditions were mentioned as is demonstrable from para 12 of the said decision. In the said paragraph their Lordships have expressed the view as under:

As already noticed above, it is not disputed that the order of termination of services of the appellant was made without giving one month''s notice or one month''s salary. The order of termination of services of the appellant dated 11.05.1981 was served on the appellant on 08.06.1981 and made to be effective from 10.06.1981. The trial Court on the basis of the evidence, recorded finding that the order of termination of services was made in violation of the conditions mentioned in the order of termination of services was made in violation of the condition as mentioned in the order of appointment itself. As such the said order was void and illegal. Consequently, it granted decree in favour of the appellant. The first appellate Court did not consider the application made under Order 41 Rule 27. CPC under which rules governing the services of the appellant were sought to be produced to show that the respondent adopted the Rules of the State Government governing its employees. The learned District Judge refers to Smt. Kusum Gupta alias Kusum Bansal Vs. Haryana State Small Industries and Export Corpn., Chandigarh, but states that the said case did not help the appellant were sought to be produced to show that the respondent adopted the Rules of the State government governing its employees. The learned District Judge refers to Smt. Kusum Gupta alias Kusum Bansal Vs. Haryana State Small Industries and Export Corpn., Chandigarh, as there was no statutory restriction. Had he only considered the application made under Order 41 Rule 27. CPC perhaps the position would have been different. He relied on the Full Bench decision of the High Court and held that the discharged employee was only entitled to one month''s salary in lieu of notice. Unfortunately the learned single Judge did not consider the respective contentions of the parties touching the question of law but has simply referred to the judge moments in the case of Central Co-operative Bank Ltd. Vs. Shibbulal and Others, aforementioned and concluded that the lower appellate Court did not commit any mistake in reversing the judgment and decree passed by the trial Court. The learned Judge did not consider the effect of non-consideration of application made under Order 41 Rule 27 CPC by the first appellate Court without examining the facts of the case, he has simply stated that the case of Kusum Gupta aforementioned did not help the appellant. When admittedly the order of termination of services of the appellant was made in contravention of the specific condition mentioned in the very appointment order, in our view, the trial Court was right and justified in decreeing the suit of the appellant. As the application filed under Order 41, Rule 27 CPC was not considered by the first appellate Court, the case could have been remanded. But we do not propose to do so for two reasons (1) the order of termination of services is of the year 1981, and (2) admitted facts and circumstances of the case also do not warrant such a remand. The facts being almost identical, the judgment of this Court in the Case of Smt. Kusum Gupta alias Kusum Bansal Vs. Haryana State Small Industries and Export Corpn., Chandigarh, supports the appellant, having regard to the admitted facts and the circumstances of the case in hand. Further the learned counsel for the appellant has fairly submitted that the appellant would not insist for payment of back wages and he would be satisfied if he is reinstated in service.

We have reproduced the aforesaid paragraph to understand that their Lordships have referred to specific condition and the condition was issue of one months notice or one months salary in lieu of notice.

Mr. Shroti on the other hand to pyramid his proponment has heavily relied on the decision of T.Mohammed Raisuli Hassan (Supra) wherein the three judges Bench in paragraph 4 and 5 expressed the view as under:

Admittedly, there was no statutory rule requiring one month''s notice for termination by the appellant of the service of the respondent. It is only the term of appointment order, which stipulated for one month''s notice or one month''s salary in lieu thereof by either side to bring an end to the service of the respondent, which is made the basis for claiming invalidation of termination. The term contained in clause 10 of the appointment order reads :

This appointment is liable to be terminated at any time by giving one months notice, in writing, on either side, or a month''s salary in lieu of notice, without assigning any reason. Breach of this condition will entitle the company to recover from you one month''s salary in lieu of notice.

When the above term in the clause relating to the condition of service of the respondent with the appellant is seen as a whole, there is nothing to indicate or suggest, even remotely, that non-service of one month''s notice as a condition precedent for termination of the respondent''s service would result in vitiation or invalidation of termination if effected. On the contrary, the second part of the term contained in the clause, "breach of this condition of notice" makes it obvious that the same would be the consequence if there was a breach of condition on the part of the company in the matter of service of one month''s notice before termination of the respondent''s service. Hence, we are constrained to hold that the non-service of one month''s notice in writing by the appellant to the respondents before terminating the latter''s service did not invalidate or vitiate such termination. From this, it follows that courts below had misread the said clause, by which either party was required to serve notice for putting an end to service of the respondent and consequently committed an apparent error in taking the view that non-service of one month''s prior notice to the respondent had vitiated the termination of his service.

We have reproduced both the paragraphs to understand the tenor of the order of appointment and the view expressed by their Lordships. On interpretation of the same at this juncture it is appropriate to note that Mr. Deoras, learned counsel for the appellant submitted that the case of Prabhudayal (Supra) would be applicable to the case at hand. Mr. Shroti would submit that the decision rendered in the case of T.Mohammed Raisuli Hassan (Supra) being a three Judge Bench decision and a prior one, should be treated as a binding precedient. In the case at hand, we are not required to enter into that debate and do that exercise inasmuch as in the case of Prabhudayal (Supra) their Lordships had referred to the clause in paragraph 3 as well as 12. But no other clause has been referred to. On the contrary, in the case of T. Mohammed Raisuli Hassan (Supra) clause relating to the consequences have been stated and in fact the consequences has been taken note of by their Lordships in pragraph 5 of the decision. In our considered view that is the primary distinguishing factor. Once we are able to make the distinction we are not required to advert to the conception of precedence.

In view of the aforesaid, submission of Mr. Deoras on this core has left us unimpressed and we have no hesitation in repealing the aforesaid contention.

The matter does not rest here. The order of appointment did indicate about the approval of the High Court. The Learned District Judge while passing the order of termination also pointed out that if the approval would come the petitioner would be informed about his future engagement. Mr. Deoras would like us to appreciate the situation from a different angle. The pendency of the criminal case did not enable the petitioner/appellant to get the approval. In view of the fact we have recorded the finding that the appellant had not suppressed any fact whatsoever that being not the prerequisite, there should be reconsideration of his case by the Registrar General of the High Court. We may hasten to add that as the petitioner was appointed and had joined service with immense hope and harboring enormous aspiration. Non mentioning of the criminal case should not be a remora for considering his case. For this reason we are inclined to direct relaxation of age if need be. Appropriate order in this regard shall be passed by the Registrar General within a period of two months from the date of receipt of the order passed today.

L.P.A. is disposed of accordingly with no order as to costs.