Supreme Court: In a case where an employee of the Rajasthan Rajya Vidyut Prasaran Nigam had suppressed the material facts of conviction in a case of trivial nature and penalty at the time of applying for the post, the bench of MR Shah* and AS Bopanna, JJ, has held that the reinstating such a person will be wholly untenable and unjustified as the question in such cases is of trust.
“The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case.”
- The respondent was appointed to the post of Technical Helper. The appointment of the respondent was subject to production of a character certification/verification report issued by the Superintendent of Police of the concerned District where he belongs.
- On 5.8.2013, he was convicted by the Trial Court for the offences under Sections 341 and 323 IPC, however, given the benefit under the Probation of Offenders Act, 1958.
- The respondent suppressed the material facts of conviction and penalty at the time of applying for the post in 2013 and also submitting a false declaration at the time of documents verification on 14.04.2015
- While giving the benefit of Act 1958, the respondent-employee was ordered to be released on probation for good conduct.
- Even subsequently such conviction of the respondent was confirmed, however, the Sessions Judge vide judgment dated 09.09.2015 granted the benefit of Section 12 of the Act 1958 to the respondent-employee which provides that a person shall not suffer disqualification attaching to the conviction.
- On 06.05.2016, the respondent was terminated from the services for non-disclosure of material facts.
Some important judgments on employer’s right to terminate employee for non-disclosure of material facts
Secretary, Department of Home Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746
When a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.
Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363
The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103
An employee can be discharged from service or a prospective employee may be refused employment on the ground of … suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).
Avtar Singh v. Union of India, (2016) 8 SCC 471
Even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.
The Court took note of the important fact that on the date of submitting an application and even at the time when declaration was filed on 14.04.2015, there was already an order of conviction against him. Even at the relevant time, the benefit of Section 12 of the Act 1958 was not granted to the respondent, which was given subsequently vide judgment of the Sessions Court dated 09.09.2015.
Further, from the judgment and order passed by the Sessions Court, it appeared that only submission on behalf of the respondent was with respect to granting the benefit of Section 12 of the Act 1958, hence, only with a view to get out of the disqualification of conviction, belatedly he preferred an appeal and obtained the order of granting the benefit of Section 12 of the Act 1958.
“Even otherwise, it is required to be noted that on getting the benefit of Section 12 of the Act 1958 subsequently by that itself the respondent 12 cannot get away of the allegations of suppression of material fact and filing a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law, which was filed on 14.04.2015.”
The Court held that if the correct facts would have been disclosed, the employer might not have appointed him. The question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee.
“The choice/option whether to continue or not to continue such an employee always must be given to the employer. (…) such an employee cannot claim the appointment and/or continue to be in service as a matter of right.”
The Court, hence, held that, both, the Division Bench as well as the Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.
[Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, 2021 SCC OnLine SC 739, decided on 17.09.2021]
Senior Advocate Dr. Manish Singhvi, for appellants
Advocate Navin Prakash, for respondent-employee
*Judgment by: Justice MR Shah