ttm 1 wp2956-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2956 OF 2011 Amarchand Gangaram Khatik, ) Age: 25 years, Occupation: Service, ) Residing at: Chamana, Bavri ) Sadar Bazar, Shahpura, ) District Bhilwara, Rajasthan ) .. Petitioner Vs. 1. The Cotton Corporation of India ) 2. Chief General Manager, ) (Disciplinary Authority) ) 3. The Director (Marketing) ) Appellate Authority ) The Cotton Corporation of India Ltd., ) 4. The Managing Director, ) Reviewing Authority, ) The Cotton Corporation of India Ltd., ) All having their office at ) Kapas Bhavan, Plot No.3A, ) ttm 2 wp2956-11 P.O.No.60, Sector No.10, ) CBD Belapur, Navi Mumbai – 614 ) .. Respondents Mr.R.V.Desai, Senior Counsel with Mr. P.G.Kathane for the petitioner Mr.Ajay Khaire for the respondents CORAM : D.B.BHOSALE & K.K. TATED, JJ. DATE : 07th DECEMBER, 2011 ORAL JUDGMENT (PER K.K.TATED, J) : 1. Rule. By consent, matter is taken on board for final hearing at the stage of admission. 2. By this petition, under Article 226 of the Constitution of India, petitioner challenges the orders dated 13.08.2010, 12.11.2010 and 25.02.2011 passed by respondent nos.2 to 4 in appeal, revision. A few facts of the matter are as under: 3. The petitioner was appointed as Junior Assistant on 16.07.2008 in the establishment of respondent no.1 on probation of one year at the Head Office at Navi Mumbai. Pursuant to the said appointment, petitioner joined the office of respondent no.1 on 18.08.2008 and started working as Junior Assistant. As per ttm 3 wp2956-11 the terms and conditions of appointment, petitioner submitted the attestation form dated 04.08.2008 in which column No.12(I)(a)(b) and (f) are answered as under: “(a) Have you ever been arrested? Ans. No (b) Have you ever been prosecuted? Ans. No (f) Have you ever been convicted by a Court of Law for any offence? Ans. No” 4. After completion of one year, petitioner enquired with the office of the respondent in respect of his confirmation in service from time to time. The Deputy General Manager (HRD) by his letter dated 12.03.2010 informed the petitioner that the verification of his antecedents and character is under process and same will take some time. Instead of confirming the petitioner, the respondent issued a show cause notice dated 28.05.2010 to the petitioner calling upon him to explain as to why action should not be taken against him as he supplied false information in his attestation form in respect of column No.12(I)(a) (b) and (f) i.e. non disclosure of arrest and conviction in some criminal case. The ttm 4 wp2956-11 petitioner by his letter dated 10.06.2010 replied to the said show cause notice and pointed out to the respondent that he did not suppress any material information from the respondent. Without considering the petitioner’s reply, respondent no.2 Chief General Manager (Disciplinary Authority) issued an order dated 13.08.2010 dismissing the petitioner from services for non disclosure of correct information in respect of Column 12 (I)(a)(b) and (f) of attestation form dated 04.08.2008. Being aggrieved by the said order, petitioner preferred an appeal before the appellate authority as per Cotton Corporation of India (Employees Conduct, Discipline and Appeal) Rules, 1975. The Appellate Authority by order dated 12.11.2010 dismissed the petitioner’s appeal. 5. Being aggrieved by the order passed by appellate authority, the petitioner preferred reviewing before the Review Authority. The same was also rejected on 25.02.2011 and hence, the present petition. 6. The learned Senior Counsel appearing on behalf of the petitioner submits that the order dated 13.08.2010 passed by respondent no.2 and the order passed by Appellate Authority as well as Reviewing Authority is against justice, equity and good conscience and same is liable to be set aside. He submits that though the show cause notice was issued by respondent authority under Column 12 (I) (a),(b) and (f) of the attestation form, the Competent Authority passed the order ttm 5 wp2956-11 removing the petitioner from service on the ground of antecedents and character. He submits that at the time of filing attestation form, the petitioner disclosed all the facts in respect of pending criminal cases. He submitted that though the petitioner specifically stated in the said form that he was never arrested in any criminal proceeding and / or convicted by any court of law, he specifically disclosed the two cases in criminal court being case no.137 of 2002 and 277 of 2004. Therefore, there is no question of providing any false and / or incorrect information at the time of filing attestation form. He submits that the petitioner has never given any false information in the attestation form as the petitioner was never arrested by the Police. At the relevant time, the petitioner was college going student and the Sessions Court granted him Anticipatory Bail in criminal case registered by the police against him and thereafter, the police never arrested him. He submits that from the perusal of the attestation form, it is clear that the petitioner had no intention to provide false information because at Column No. 12(1) (j)(ii), the petitioner had disclosed the pending case against him and therefore, the contention of the learned Disciplinary Authority and the learned Appellate Authority that the petitioner had provided false information in attestation form cannot be sustained. He further submits that at the time of registration of both the cases against the petitioner, the petitioner was minor and therefore, he was granted benefit of section 3 of the Probation of Offenders Act. ttm 6 wp2956-11 In fact, the person who is granted the benefit of section 3 of the Probation of Offenders Act is not required to undergo any punishment. The probation period is not a sentence but is a corrective measure prescribed under the law as per the reformatory theory of punishment. However, this crucial aspect of the matter was not considered by the learned Disciplinary Authority and this led to the wrong finding that the petitioner hided the information and as such his services were liable to be terminated. 7. On the basis of the above submissions, the learned Senior Counsel appearing on behalf of the petitioner submits that the impugned order dated 13.08.2010 passed by respondent no.2 and order dated 12.11.2010 passed by the Appellate Authority and order dt.25.2.2011 passed by Reviewing Authority are liable to be set aside with a direction to the respondent to reinstate the petitioner with full back wages with the benefit of continuity in service. 8. On the other hand, the learned counsel for the respondent appearing on behalf of the respondent no.1 vehemently opposed the present petition. He submits that there is a concurrent finding of both the authorities below and therefore, there is no question of re-appreciating the evidence on record under Article 226 of the Constitution of India and therefore, the present petition is liable to be dismissed summarily with costs. ttm 7 wp2956-11 9. Respondent no.1 filed their affidavit in reply dt.9.8.2011. In the said reply, they contended that the petitioner provided false and incorrect information under Column 12(I)(a),(b) and (f) regarding his arrest and prosecution. Therefore, the action taken by the authority is absolutely according to law. In the circumstances, the respondent issued show cause notice to the petitioner and after considering the evidence on record, particularly, the information received from police authority, Bhilwada (Rajasthan), they dismissed the petitioner from service. 10. The learned counsel appearing on behalf of the respondent further submits that in the appointment letter, it was specifically stated in clause 1 that “You will be placed on probation for a period of one year from the date of appointment/joining, which may be extended or reduced at the discretion of the appointing authority at any time”. It was also made clear vide clause 10 as follows: “10. Your appointment/confirmation is subject to - (i) Verification of genuineness of your caste certificate from appropriate Authority (ii) Confirmation from the Competent Authority that your antecedents and character are satisfactory.” ttm 8 wp2956-11 11. The learned counsel for the respondent submits that from the letter received from the police authority, Bhilwada/Rajasthan, it is crystal clear that the petitioner’s character is not satisfactory. Therefore, the action taken by the authorities is according to law and the petition deserves to be dismissed with costs. 12. We have gone through the appointment letter issued by the respondent. A copy of attestation form, order dt.13.08.2010 issued by Chief General Manager (Disciplinary Authority), order dt.12.11.2010 passed by the appellate authority, order dated 25.2.2011 issued by the Reviewing Authority and other documents on record. One thing is clear that the respondent issued a show cause notice to the petitioner under Column No.12(I)(a)(b) and (f) for providing false and incorrect information regarding his arrest and prosecution. After going through the attestation form placed on record filed by the petitioner, it is crystal clear that the petitioner has disclosed in the said form, the criminal case numbers pending against him at the time of appointment. The criminal case no.137 of 2002 was under sections 143, 147, 148, 149, 308, 323, 379, 427 and 552 of the Indian Penal Code. At that time, the petitioner was 15 years of age. The said case was decided by the Sessions Court on 30.04.2002 and the court granted benefit of section 3 of the Probation of Offenders Act as the petitioner was a juvenille at that ttm 9 wp2956-11 time. The other criminal case number 227 of 2004 is pending, which is under section 143 and 283 of the Indian Penal Code i.e. between the private parties. 13. Considering the information disclosed by the petitioner in his attestation form, we do not find any substance in the submission made by the learned counsel for the respondent that the petitioner has suppressed the material facts. There is no question of re-appreciation of the evidence on the basis of which concurrent finding of facts of the Authorities is based, as the Authorities below failed to take into consideration the provisions of the Probation of Offenders Act, which vitiated their finding which is perverse on the facts and circumstances of the present case. The Apex Court recently in the matter of Commissioner of Police and Others vs. Sandeep Kumar reported in (2011) 4 SCC 644 held that the offence committed by the person of young age should not come in his future career. The approach should be to condone minor indiscretions made by the youth. Para 8 of the judgment reads thus: “8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age, young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, ttm 10 wp2956-11 our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.” 14. Considering the explanation given by the petitioner and the judgment of the Apex Court in the matter of Commissioner of Police and Others vs. Sandeep Kumar (Supra), we find that both the authorities erred in coming to the conclusion that the petitioner has submitted false and incorrect information at the time of his appointment in service. Not only that when the show cause notice was issued only for the suppression of facts under column 12(I)(a)(b) and (f), authority should not have considered the other grounds for upholding the order dt.13.08.2010 by which the petitioner was removed from the service. There is no question of considering the ground under clause 10 of the appointment letter as reproduced here in above to hold that the disciplinary authority found the petitioner unfit for employment on the basis of his character. 15. Considering the above mentioned facts and circumstances, we allow the petition as under: (a) The order dt.13.08.2010 passed by the Chief General Manager (Disciplinary Authority), the order dated 12.11.2010 passed by the Appellate Authority and the order dated 25.2.2011 passed by the Reviewing Authority are set aside. ttm 11 wp2956-11 (b) Respondents are directed to reinstate the petitioner as Junior Assistant immediately within one month from the receipt of copy of this order. Petitioner is not entitled to wages for this period i.e. from 29.5.2010 till reinstatement. If the respondent fails to reinstate the petitioner within one month from the receipt of copy of this order, the petitioner shall be entitled to full back wages from the date of termination till reinstatement. (c) Petitioner to be treated as continued in service for all other benefits. (d) Writ Petition is disposed of accordingly. (e) No order as to costs. (f) Rule discharged accordingly. (K.K. TATED, J.) (D.B. BHOSALE, J.)