The employer is required to take a decision while considering various aspects before arriving at a conclusion that the employee was unfit for the post: Chhattisgarh High Court

1AFRHIGH COURT OF CHHATTISGARH BILASPUR WPS No. 37513Reserved on 13.01.2022Pronounced on 31.01.2022Chandrika Prasad Patel S o Ganpat Lal Patel aged about 32 years resident of village Pandripani P.O. Godhi P.S. Pandripani Korba District KorbaPetitioner Versus 1.Chhattisgarh State Power Holding Company Limited through theDeputy General Manager 2 Raipur(Chhattisgarh)2.Chhattisgarh State Power General Company Limited through the ChiefEngineer Shed No.3 Danganiya Raipur3.The Chief EngineerHasdev Thermal Power Station Chhattisgarh State Power General Company Limited Korbacancelling the appointmentorder of the petitioner and therefore the petitioner has been constrained tofile the instant petition seeking quashment of the alleged order is validly passed 6.Admittedly the land held by the petitioner was acquired by the 4respondent authorities under the Rehabilitation Policy and according to thesaid policy issued by the State Government if the land of the owners wasacquired for the public purpose then in the said eventuality the familymembers of the said land owners would be entitled to get an employment inthe Industry. In view of acquisition of petitioner s land an appointment orderdated 31.07.2012was issued by the respondent authoritiesappointing him as Office Assistant Grade III initially for the period of two yearsin the pay scale and as per the terms and conditions stipulated therein.7.According to condition No.4 of the aforesaid appointment order(Annexure P 2) the petitioner was required to furnish the Attestation Form Declaration Form Affidavits etc. at the time of his joining which are requiredfor ascertaining his character verification with a further stipulation that if hischaracter certificate is not found to be fit for his appointment in the Company then in the said event his appointment would be cancelled forthwith evenwithout issuing a prior notice for it.8.In pursuance of the aforesaid condition the petitioner at the time of hisjoining i.e. 13.08.2012 has submitted the Declaration Form along withaffidavit disclosing the fact with regard to the alleged offence punishable underSections 323 326 read with Section 34 of IPC whereby he was convictedvide judgment dated 25.03.2003 passed by the Additional Sessions Judge Korbain Sessions Trial No. 3500 and also regarding thependency of appeal preferred there against before the High Court which wasregistered as Criminal Appeal No. 4603 “Omkishore Patel & ors. Vs.State of Chhattisgarh”. It thus appears that the petitioner has disclosed allthe necessary information as required at the time of his joining and upon itsdue consideration the respondent authorities vide its order dated 14.08.2012(Annexure P 4) has posted the petitioner as such in the Office ofSuperintending Engineer Korbahowever appears to be issued after six months of his posting calling upon him as towhy his appointment order should not be withdrawn and cancelled forthwith ashe was found to be convicted with regard to the offence punishable under theaforesaid offences. In reply to the said show cause notice it is stated by thepetitioner that he has disclosed all the necessary information as required atthe time of his joining and therefore the alleged notice be dropped. However his appointment order has been cancelled vide order impugned dated07.10.2013owing to his conviction in the alleged crime.10.What is therefore reflected from the aforesaid facts that although thepetitioner was found to be convicted with regard to the offence punishableunder Sections 323 326 read with Section 34 of IPC vide judgment dated25.03.2003 in Sessions Trial No. 3500 and the appeal is pendingagainst it but the petitioner has in fact not suppressed any material fact in thisregard and instead has disclosed all that truthfully before the respondentauthorities. It therefore cannot be said that the petitioner in order to get anemployment illegally has suppressed any materials to the concernedauthorities. Be that as it may the respondent authorities even without arrivingat a conclusion that the petitioner was not a fit person for his appointment onthe post of Office Assistant Grade III yet the order impugned has beenpassed cancelling his appointment. It is however to be observed here thatthe purpose of seeking the information is to ascertain the character andantecedents of the candidate so as to assess the suitability for hisappointment in a particular post but I do not find any such assessment wasmade by the respondent authorities before cancellation of petitioner sappointment.11.In the matter of Daya Shankar Yadav vs. Union of India and others 6reported in14 SCC 103 it was observed by the Supreme Court at para15andwhich are relevant for the purpose read as under : “15.When an employee or a prospective employeedeclares in a verification form answers to the queries relating tocharacter and antecedents the verification thereof can thereforelead to any of the following consequences:(a) If the declarant has answered the questions inthe affirmative and furnished the details of any criminalcasethe employer mayrefuse to offer him employmentif he is found to beunfit having regard to the nature and gravity of theoffence crime in which he was involved(b) On the other hand if the employer finds that thecriminal case disclosed by the declarant related to theoffences which were technical or of a nature that wouldnot affect the declarant s fitness for employment or wherethe declarant had been honourably acquitted andexonerated the employer may ignore the fact that thedeclarant had been prosecuted in a criminal case andproceed to appoint him or continue him in employment.”(c)xxxxxxxxxxxxxxxxxxxxxxxx(d)xxxxxxxxxxxxxxxxxxxxxxxx 12.Similar is the view taken by the Supreme Court in the matter of AvtarSingh vs. Union of India and others reported in AIR 2016 SC 3598 whereinit has been observed at para 22 which reads as under : “22. …..................................... In case the employer cometo the conclusion that suppression is immaterial and even if factswould have been disclosed would not have affected adverselyfitness of an incumbent for reasons to be recorded it has powerto condone the lapse. However while doing so employer has toact prudently on due consideration of nature of post and duties tobe rendered. For higher officials higher posts standard has to bevery high and even slightest false information or suppression mayby itself render a person unsuitable for the post. However samestandard cannot be applied to each and every post. In concludedcriminal cases it has to be seen what has been suppressed ismaterial fact and would have rendered an incumbent unfit forappointment. An employer would be justified in not appointing orif appointed to terminate services of such incumbent on dueconsideration of various aspects. Even if disclosure has beenmade truthfully the employer has the right to consider fitness andwhile doing so effect of conviction and background facts of case nature of offence etc. have to be considered. Even if acquittalhas been made employer may consider nature of offence 7whether acquittal is honourable or giving benefit of doubt ontechnical reasons and decline to appoint a person who is unfit ordubious character. In case employer comes to conclusion thatconviction or ground of acquittal in criminal case would not affectthe fitness for employment incumbent may be appointed orcontinued in service.” 13.In view of the principles laid down in the above mentioned decisions itis thus evident that the employer is required to take a decision whileconsidering various aspects before arriving at a conclusion that the employeewas unfit for the post. However no effort as such was ever made by therespondent authorities before passing a cancellation order of the petitioner. 14.It is to be noted here further that the appeal being Criminal AppealNo.4603 preferred by the petitioner and his brothers against theirconviction for an offence punishable under Sections 323 326 read withSection 34 of IPC has been decided on 10.01.2020 whereby the petitionerand his brothers have been acquitted from the alleged charges as they havefound to be exercised the right of private defence under Section 101 of IPCwith regard to the incident occurred near the field of the petitioner on22.06.2000. The petitioner is therefore not found to be a habitual offender orcould be held to be unfit for his appointment on the post of Office AssistantGrade III.15.In view of the aforesaid background the petition is allowed and therespondent authorities are directed to reinstate the petitioner as OfficeAssistant Grade III forthwith alongwith the consequential benefits if any asprovided under the rules.No order as to costs.Sd JudgeAnjani 

Summary: The employer is required to take a decision while considering various aspects before arriving at a conclusion that the employee was unfit for the post has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE SANJAY S. AGARWAL in the case of Chandrika Prasad Patel v. Chhattisgarh State Power Holding Company Limited (Writ Petition Case No. 3757 of 2013).  Brief facts of the case are that the petitioner and his brothers, namely, Omprakash Patel and Mani Prakash Patel jointly owned a land at village Pandripani, which was acquired by the respondents Electricity Company under the Rehabilitation Policy of the Government for laying pipeline for 2 x 250 MW Dr. Shyama Prasad Mukherjee Thermal Power Station, Korba. It is pleaded that as per the said Rehabilitation Policy, the family members of owners of the land, whose land was acquired for the public purpose, are entitled for employment in the Industry and in view of the acquisition of the petitioner’s land, an appointment order dated 31.07.2012 was issued appointing the petitioner on the post of Office Assistant Grade-III. The petitioner in accordance with appointment order also submitted the Attestation Form, Declaration Form, affidavit required for Character Verification, Medical Certificate and other necessary documents disclosing the facts regarding pendency of criminal case against him, wherein it was informed by the petitioner specifically that in the year 2000, he was convicted for the crime registered against him by the police station Balco for commission of offence and against the order of conviction, Criminal Appeal is pending before the Hon’ble High Court. But the respondent authorities cancelled the order of appointed on the grounds of misstatement. The court stated that all the material facts have been disclosed by the petitioner therefore, cannot be said that the petitioner in order to get an employment illegally has suppressed any materials to the concerned authorities. The court noted that the purpose of seeking the information is to ascertain the character and antecedents of the candidate so as to assess the suitability for his appointment in a particular post, but such assessment was not made by the respondent authorities before cancellation of petitioner’s appointment. The same has been held in the case of Daya Shankar Yadav vs. Union of India and others and Avtar Singh vs. Union of India and others.  In view of this, the court directed to reinstate the petitioner as Office Assistant Grade-III forthwith along with the consequential benefits, if any, as provided under the rules. Judgement Reviewed by- Akshat Jaithlia