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LPA/2471/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2471 of 2010
In
SPECIAL
CIVIL APPLICATION No. 6684 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
VIJAYBHAI
LAXMANBHAI DHAMA - Appellant(s)
Versus
GUJARAT
ENERGY TRANSMISSION CORPORATION LTD & 1 - Respondent(s)
=========================================
Appearance :
MR
AJAY L PANDAV for the Appellant.
MR SP HASURKAR for the
Respondents.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 17/03/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
This
Letters Patent Appeal has been filed challenging the order of the
learned Single Judge dated 23rd July, 2009 in Special Civil
Application No. 6684 of 2009, by which the learned Single Judge has
dismissed the petition filed by the petitioner.
2. The
petitioner was appointed as Vidyut Sahayak (Helper) with the
respondents, by order dated 3rd February, 2007 for a fixed period of
three years. Before the petitioner was appointed, a criminal case
under Sections 323, 326, 504, 506(2) and 114 of the Indian Penal Code
was lodged against the petitioner. He concealed this fact in the
application, which he made with the respondents, at the time of
appointment that he was involved in the criminal case. In the
appointment letter, in para-12, it was mentioned that if the
petitioner is found to have been convicted in any criminal case, then
his appointment would be cancelled. This criminal case was
compromised by the petitioner before Lok Adalat on 7th April, 2007
after he joined the service. He was found to be guilty under Bombay
Police Act and rest of the offences were compounded and he was
acquitted. This fact of pendency of criminal case came to light in
the police verification report as after the appointment of the
petitioner, the police verification was sought by the respondents.
3. Learned
counsel for the petitioner has placed reliance on the decision of the
Apex Court in the case of State
of Gujarat vs. Anand Acharya alias Bharat Kumar Sadhu, reported in
2007 AIR SCW 1542 and has urged that punishment of
dismissal from service is too harsh and since in that case,
punishment of removal was reduced to stoppage of two increments by
High Court and therefore, the Apex Court did not interfere. This
decision is of no help to the appellant in view of the fact that the
appellant was appointed only for a fixed period of three years. He
was neither a regular employee nor a permanent employee of the
respondents. A person, at the time of his appointment, is supposed to
make correct declaration about the fact as to whether a criminal case
is pending against him or not and whether he is convicted in a
criminal case or not. He should be fair to the employer. In our
opinion, non-disclosure of the fact that a criminal case was pending
against him amounts to misleading the employer and on his
misrepresentation, the respondents had appointed him. Had the fact
of criminal case pending against him been disclosed, the respondents
would not have appointed the appellant in service.
4. We
are further of the opinion that non-disclosure of the criminal
proceedings pending against an employee/appellant is a serious matter
which calls for his termination from service as he had obtained
obtained appointment fraudulently by making false representation.
5. Learned
counsel for the appellant then urged that the order dated 26th March,
2007 castes stigma on him as it is mentioned that his services are
terminated with effect from 26th February, 2007 in light of the
provisions of para-16 of GSO-07 due to his involvement in a criminal
case. In this regard, the appellant has placed reliance on two
decisions of the Apex Court in the cases of Kamal
Nayan Mishra vs. State of Madhya Pradesh and others reported in
(2010) 2 SCC 169 and Union of India and others vs. Mahaveer
C.Sanghvi, reported in (2010) 8 SCC 220.
6. Para-16
of General Standing Order No. 5 dated 24.9.1960 of Gujarat State
Electricity Board reads as under:
“Any
candidate who is found to have knowingly furnished any particulars
which are false or who have suppressed material, information of a
character which, if known, would ordinarily have debarred him from
obtaining employment in the service of the Board, is liable to be
disqualified and if appointed, to be removed from service.”
7. The
impugned order of termination mentions that the appellant has been
terminated in light of the provisions of para-16 of GSO-07 extracted
above, due to involvement in a criminal case. We are of the
considered opinion that the mention of GSO and involvement of the
appellant in a criminal case does not cast any stigma on the
appellant. The Apex Court decisions relied upon by the learned
counsel for the appellant do not help him as they were cases of
probationers, whereas the appellant was appointed for a fixed period
of three years only and his services have been terminated by only
mentioning the fact that he has concealed his involvement in a
criminal case. We do not find any illegality in the impugned order
dated 26th March, 2007 passed by the respondents as well as the
judgment dated 23rd July, 2009 passed by the learned Single Judge.
This Appeal fails and is accordingly dismissed. Notice is discharged.
The parties shall bear their own costs.
(V.M.Sahai,J)
(G.B.Shah,J)
***vcdarji
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