IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT APPEAL NO.3030 OF 2013 (S-DIS) BETWEEN SRI MAHADEVA AGED ABOUT 30 YEARS S/O LATE SRI S SIDDAIAH PRESENTLY WORKING AS MAINTAINER, BMECLO AND M WING, BAIYAPPANAHALLI, BANGALORE-560 038.
... APPELLANT (BY SRI VIVEK S REDDY, SENIOR COUNSEL FOR SRI K N SUBBA REDDY, ADVOCATE ) AND 1. THE MANAGING DIRECTOR BANGALORE METRO RAIL CORPORATION LTD BMTC COMPLEX, III FLOOR K H ROAD, SHANTHINAGAR BANGALORE 560027 2. THE COMPANY SECRETARY & GENERAL MANAGER BANGALORE METRO RAIL CORPORATION LTD BMTC COMPLEX, III FLOOR K H ROAD, SHANTHINAGAR BANGALORE 560 027 ... RESPONDENTS (BY SRI N N HARISH, ADVOCATE) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.1013/13 DATED 8/02/2013.
THIS WRIT APPEAL COMING ON FOR FINAL HEARING THIS DAY, DEVDAS J, DELIVERED THE FOLLOWING:
JUDGMENT The appellant was appointed to the post of Maintainer (ET/EM/L&E/RS) on 27.01.2012, by the respondent-Company. The appellant was issued with a show cause notice dated 27.11.2012 on the ground that he had furnished false information in the application form which he had filled up during the appointment.
2. The sum and substance of the allegation against the appellant is that he was required to furnish information as to whether he had been arrested, prosecuted, kept under suspension, fined and convicted by any Court of law for any offences, as required in Column No.10 (a) of the attestation form, which has been produced as Annexure ‘A’ along with the writ appeal papers. The respondents, after verification from the jurisdictional Police Station, seems to have found that the petitioner-appellant was involved in Crime No.119/2003 wherein an FIR came to be registered on 05.06.2003. The appellant herein was arrayed as accused No.7 in the list of accused. It is on the basis of such information, the show cause notice was issued and after giving an opportunity to the appellant to explain as to why he did not inform the respondents about his involvement in the criminal case as was required in the attestation form, the respondent passed an order removing the petitioner-appellant from service. Questioning the same, the petitioner approached this Court in W.P.No.1013/2013. The learned Single Judge, by order dated 08.02.2013 dismissed the petition. Being aggrieved, the petitioner is before this Court in this writ appeal.
3. Sri Vivek S.Reddy, learned Senior Counsel appearing for the appellant submits that the respondents have not taken into consideration the reply given by the appellant, wherein he had in fact admitted that an FIR was registered against him. However, he had explained to the respondents that it was an issue concerning the family, more so, with respect to his brother wherein the complainant had alleged that his brother had promised to marry her and there was an incident wherein the complainant later admitted that the appellant was in fact not involved in the altercation and therefore the name of the appellant was dropped from the list of accused in the chargesheet. All these have happened far before the application was made by the appellant to the respondents. The application was made in the year 2010, while the name of the petitioner was dropped from the chargesheet on 26.08.2003.
4. The learned Senior Counsel further places reliance on a judgment of the Hon'ble Supreme Court of India in the case of Avtar Singh Vs. Union of India and Others reported in (2016) 8 SCC 471, to buttress his contention that the Hon'ble Supreme Court, after considering various judgments, has put in a nutshell the yardstick that is required to be considered by the employers, in such situations. The learned Senior Counsel therefore submits that the Hon'ble Supreme Court, has categorically held that even if a person is convicted, it is required of the employer to consider the facts and circumstances under which the order of conviction was passed and whether the conviction will have any bearing on the employment of the person who seeks employment.
5. Sri N.N.Harish, learned Counsel appearing for the respondents, would however submit that the respondents have initiated the action against the appellant on the basis of the fact that the petitioner had not disclosed the information which was specifically sought in the attestation form. Therefore, it is the contention of the learned Counsel for the respondents that the respondent is duty bound to initiate action against the appellant for non-disclosure of the information which is specifically required to be done in terms of the attestation form.
6. We have heard the learned Counsels and perused the writ papers.
7. What is noticeable is that the Hon'ble Supreme Court, while laying down the yardstick has, in fact, gone to the extent of holding that in case there is suppression or false information of involvement in a criminal case where conviction or acquittal has already been recorded before filing of the application/verification form and such fact later comes to the knowledge of the employer, any of the following recourses appropriate to the case may be adopted.
8. One of the recourses that has been advised is that if the person is involved in a trivial case in the nature in which conviction or acquittal had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. It has been further held that if acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, may take appropriate decision as to the continuance of the employee. Therefore, the Hon'ble Supreme Court has considered the issue from all possible perspective and even in a case where conviction has been recorded by a criminal court, a duty is cast on the employer to use its discretion and find out whether the conviction is of a nature that will come in the course of employment. On the other hand, even if there is acquittal recorded by a criminal court, the employer is duty bound to look into the facts of the case and the nature of the allegation and thereafter take a decision.
9. In the present case, the appellant has in fact given a reply to the show cause notice which was issued by the respondents and brought to the notice of the respondents that the incident was in fact an incident involving the appellant’s brother and the appellant who was then studying in the I.T.I. course then, has been dropped from the list of accused, on the statement made by the complainant herself. That being the case, the respondents should have considered the reply in all its perspective and when discretion was invested in the respondents to take a decision after considering the reply given by the appellant, the respondent was required to use such discretion. The appellant has not been convicted and in fact the name of the appellant was dropped from the list of accused even before the matter went for trial.
10. Therefore, in the light of the authoritative decision of the Hon'ble Supreme Court in the case of Avtar (supra), we are of the considered opinion that the decision of the respondents in terminating the services of the appellant, is contrary to the settled principles of law. Therefore, we proceed to pass the following:
ORDER 1. The Writ Appeals are allowed.
2. The Writ Petition is also allowed and the impugned order of termination dated 12.12.2012 passed by the second respondent is hereby quashed and set aside.
3. The respondents are hereby directed to reinstate the appellant within a period of four weeks from today.
I.A.No.1/2016 does not survive for consideration and accordingly stands disposed of.
SD/- JUDGE SD/- JUDGE JT/-