CASE NO.: Appeal (civil) 1844 of 2007 PETITIONER: Shiv Kant Yadav RESPONDENT: Indian Oil Corporation and Ors DATE OF JUDGMENT: 09/04/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1844 OF 2007
(Arising out of SLP (C) No. 3938 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is the order passed by a Division
Bench of the Allahabad High Court dismissing the Writ
Petition filed by Shiv Kant Yadav, the appellant herein.
Background facts in a nutshell are as follows:
Indian Oil Corporation (in short the ‘Corporation’) invited
applications from desirous persons by offering advertisements
through publication in newspapers to select suitable persons
and grant Letter of Intent (in short ‘LOI’) to award dealership of
SKO/LDO at Jaleshar, Dist. Etah. Appellant and several
others applied for the same. The Selection Board scrutinized
the applications on 28th and 29th November, 2003. Names of
the applicants in order of preference were indicated in the
panel of selected candidates, on the basis of which the
Corporation proposed to award dealership. They are as follows:
(i) appellant- Shiv Kant Yadav; (ii) respondent No.4- Smt. Usha
Sharma and (iii) Hari Om Singh who was not impleaded in the
writ petition. Usha and Hari Om Singh filed complaints inter-
se between themselves against aforesaid selection contending
that candidates did not disclose the correct information in
their applications and, therefore, were not qualified to get
dealership. The Corporation held an enquiry on the basis of
the complaint made against the appellant and relying on the
report received after enquiry passed the order cancelling the
selection of the appellant. Consequently, the Head Office of the
Corporation directed the concerned authority to cancel the
selection of the appellant and to issue LOI in favour of
respondent No.4 after ensuring that there was no
complaint/court case pending against the proposed allottee.
The order was challenged by the appellant by filing a writ
petition.
Appellant in the Writ Petition took the stand that as per
the enquiry report the total income of the appellant had been
fixed at Rs.1,64,000/- per annum vis-`-vis Rs.84,000/- as
disclosed in his application form. The discrepancy has no
bearing as the eligibility criteria was that the income should
not be above rupees two lakhs in the last financial year. The
complaint made by Hari Om Singh against Smt. Usha was
pending and no LOI could be issued without holding an
enquiry.
The Corporation took the stand that the Executive
Summary report discloses that incorrect information had been
given and it has been specifically made clear that any
concealment of facts/mis-information would result in rejection
of the application.
The decision not to allot the dealership to the appellant
was on account of the fact that he did not correctly disclose
the income and thus violated his own declaration in his
undertaking incorporated in the application.
With reference to the application form and the
undertaking the High Court held that it was obviously clear
that the income was not fully disclosed. The plea that the
income was less than rupees two lakhs, did not materially
affect the eligibility of the appellant was not accepted and
accordingly, the writ petition was dismissed.
In support of the appeal, it is submitted that there was
no mens rea and mere mistake and unintended omission
cannot be a ground for cancellation. The income of S.K.
Fertilizers was not necessary to be disclosed. In the affidavit
before the Selection Board it was clearly stated that S.K.
Constructions may have come into existence in 2002-2003.
Learned counsel for the respondents on the other hand
supported the order saying that once there is suppression in
view of the undertaking the allotment was to be cancelled.
The fact of making a wrong statement in the application
form and the effect of the undertaking though rendered in
different context in Kendriya Vidyalaya Sangathan and Ors. v.
Ram Ratan Yadav (2003 (3) SCC 437), State of A.P. and Anr. v.
T. Suryachandra Rao (2005 (6) SCC 149) and Bhaurao Dagdu
Paralkar v. State of Maharashtra and Ors. (2005 (7) SCC 605)
need to be noted.
In Kendriya Vidyalaya’s case (supra) it was noted as
follows:
“11. It is not in dispute that a criminal case
registered under Sections 323, 341, 294, 506-
B read with Section 34 IPC was pending on the
date when the respondent filled the attestation
form. Hence, the information given by the
respondent as against columns 12 and 13 as
“No” is plainly suppression of material
information and it is also a false statement.
Admittedly, the respondent is holder of BA,
BEd and MEd degrees. Assuming even his
medium of instruction was Hindi throughout,
no prudent man can accept that he did not
study English language at all at any stage of
his education. It is also not the case of the
respondent that he did not study English at
all. If he could understand columns 1-11
correctly in the same attestation form, it is
difficult to accept his version that he could not
correctly understand the contents of columns
12 and 13. Even otherwise, if he could not
correctly understand certain English words, in
the ordinary course he could have certainly
taken the help of somebody. This being the
position, the Tribunal was right in rejecting the
contention of the respondent and the High
Court committed a manifest error in accepting
the contention that because the medium of
instruction of the respondent was Hindi, he
could not understand the contents of columns
12 and 13. It is not the case that columns 12
and 13 are left blank. The respondent could
not have said “No” as against columns 12 and
13 without understanding the contents.
Subsequent withdrawal of criminal case
registered against the respondent or the
nature of offences, in our opinion, were not
material. 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 filling 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.
12. 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 cannot 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
services, which is made expressly clear in para
9 of the offer of appointment. The purpose of
seeking information as per columns 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 respondent
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 had been subsequently
withdrawn and that the offences, in which the
respondent was alleged to have been involved,
were also not of serious nature. In the present
case the respondent was to serve as a Physical
Education Teacher in Kendriya Vidyalaya. The
character, conduct and antecedents of a
teacher will have some impact on the minds of
the students of impressionable age. The
appellants having considered all the aspects
passed the order of dismissal of the
respondent from service. The Tribunal after
due consideration rightly recorded a finding of
fact in upholding the order of dismissal passed
by the appellants. The High Court was clearly
in error in upsetting the order of the Tribunal.
The High Court was again not right in taking
note of the withdrawal of the case by the State
Government and that the case was not of a
serious nature to set aside the order of the
Tribunal on that ground as well. The
respondent accepted the offer of appointment
subject to the terms and conditions mentioned
therein with his eyes wide open. Para 9 of the
said memorandum extracted above in clear
terms kept the respondent informed that the
suppression of any information may lead to
dismissal from service. In the attestation form,
the respondent has certified that the
information given by him is correct and
complete to the best of his knowledge and
belief; if he could not understand the contents
of columns 12 and 13, he could not certify so.
Having certified that the information given by
him is correct and complete, his version
cannot be accepted. The order of termination
of services clearly shows that there has been
due consideration of various aspects. In this
view, the argument of the learned counsel for
the respondent that as per para 9 of the
memorandum, the termination of service was
not automatic, cannot be accepted.”
It is to be noted that the enquiry report relates to S.K.
Fertilizers whereas the affidavit alleged to have been filed
where reference was made to S.K. Construction has no
relevance. It is not in dispute that in the affidavit the appellant
had stated about the inheritance of income yielding property.
In the report after taking note of the appellant’s stand it was
concluded as follows:
“Comments: Sh. Shiv Kant Yadav has admitted
through affidavit that he has inherited two
houses from his father, which is being used for
personal use only and as such there is no
income in the year 1999-2000 on this account
(Annex-c). He has also admitted to be the
owner of two shops which are currently not in
use and lying vacant. With regard to three
vacant shops, I do not agree since all the nine
shops, which he has shown me at the time of
my visit comes under the joint property and
since six shops have been given on rent,
automatically Sh Shiv Kant Yadav gets one
third share of the joint property. However,
complainant has produced a letter issued by
Nagar Panchayat Jaithra dated 26-03-04
(Annex-H) stating that Sh Shiv Kant Yadav,
s/o Veri Singh Yadav has Rs.14,000/- per
month towards rental from shops and
Rs.3,000/- per month towards rental from
house. Thus, the income for the year 1999-
2000 works out to be approximately
Rs.68,000/- towards his share from the joint
property. Enclosed annexures. The allegation
stands proved and the incomes from house
and shops have not been shown in the
application.”
There was a requirement to disclose the true and correct
fact which does not appear to have been done.
The undertaking reads as follows:
“That I am fully aware that Indian Oil
Corporation (name of the Oil Company) under
its policy will not appoint me as their
dealer/distributor, if I am employed. I shall
have to resign from the service and produce
proof of acceptance of my resignation by my
employer to Indian Oil Corporation Ltd. (Name
of the Oil Company) before issuance of Letter
of Appointment for the
dealership/distributorship.
That if any information/declaration given by
me in my application or in any document
submitted by me in support of my application
for the award of SKO/LDO
dealership/distributorship or in this
undertaking shall be found to be untrue or
incorrect or false Indian Oil Corporation (name
of the Oil Company) would be within its rights
to withdraw the letter of intent/terminate the
dealership/distributorship (if already
appointed) and that, I would have no claim,
whatsoever, against Indian Oil Corporation
(name of the Oil Company) for such
withdrawal/termination.”
In view of the undertaking that if any factual mis-
statement or declaration is made that permits cancellation of
the allotment. The order of the High Court does not suffer from
any infirmity to warrant interference. The appeal is dismissed
with no order as to costs.