Prasanth P. Nair v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938** ## **WP(C).No. 27301 of 2013 (K)** **----------------------------** ## **PETITIONER :** **---------------------** **PRASANTH P. NAIR, S/O. G. PRABHAKARAN NAIR, PRASANTH BHAVAN, KALIYICKAL VITHURA P.O., THIRUVANANTHAPURAM - 695 551, (MECHANIC GRADE II, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, CENTRAL DEPOT - REMOVED FROM SERVICE ON 29/06/2013.** ## **BY ADV. SRI.ANANDARAJAN.N** **RESPONDENT(S):** **---------------------------** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM - 695 023.** **2. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM - 695 023.** **3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM CENTRAL DEPOT, THIRUVANANTHAPURAM - 695 001** **R1 TO R3 BY SRI.GOPIKRISHNA NAMBIAR,SC ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 27301 of 2013 (K)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXHIBIT-P1TRUE COPY OF THE APPOINTMENT ORDER NO. PL4-00228/12 DATED 05/05/2012 IN RESPECT OF THE PETITIONER.** - **EXHIBIT-P2TRUE COPY OF THE LETTER NO. RIB (2) 8466/2010/GW DATED 24/02/2012 OF THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION** - **EXHIBIT-P3TRUE COPY OF THE MEMO NO. E3-3808/12/CL DATED 15/06/2012 OF THE ASSISTANT TRANSPORT OFFICER, THIRUVANANTHAPURAM CENTRAL.** - **EXHIBIT-P4TRUE COPY OF THE MEMO NO. E3-23/12/TVMCL DATED 25/10/2012 OF THE DIST TRANSPORT OFFICER.** - **EXHIBIT-P5TRUE COPY OF THE ATTESTATION FORM (ANNEXURE-I) CONTAINING THE VERIFICATION REPORT.** - **EXHIBIT-P6TRUE COPY OF THE MEMORANDUM NO. PL 17/02236/12 DATED 25/03/2013 OF THE GENERAL MANAGER, K.S.R.T.C.** - **EXHIBIT-P7TRUE COPY OF THE PROCEEDINGS NO. PL 17/02236/2012 DATED 19/06/2013 OF THE MANAGING DIRECTOR, K.S.R.T.C SIGNED BY THE CHAIRMAN AND MANAGING DIRECTOR, K.S.R.T.C, THE 2ND RESPONDENT.** - **EXHIBIT-P8TRUE COPY OF THE CHARGE SHEET NO. VLE 2/010197/2011 DATED 25/08/2012 SERVED ON K.HARIDASAN, DRIVER, PALAKKAD UNIT.** - **EXHIBIT-P9TRUE COPY OF THE MEMORANDUM NO. PL 14/044674/11 DATED 13/02/2012 OF THE 2ND RESPONDENT REINSTATING K. HARIDAS, DRIVER TO THE SERVICE AT PALAKKAD DEPOT.** - **EXHIBIT-P10- TRUE COPY OF THE REPRESENTATION DATED 25/08/2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT-P11TRUE COPY OF THE LETTER NO. APL/4759/13 DATED 01/10/2013 OF THE 2ND RESPONDENT REJECTING EXHIBIT-P11 REPRESENTATION OF THE PETITIONER.** **RESPONDENT(S)' EXHIBITS: ------------------------------------------** **/TRUE COPY/** **NIL** **P.A.TO JUDGE** **sts** ## **A.MUHAMED MUSTAQUE, J.** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C)No.27301 of 2013 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5[th] day of December, 2016** ## **JUDGMENT** The petitioner was appointed in KSRTC based on an appointment order dated 5.5.2012 and he jointed duty on 7.6.2012 . While he was working, he was removed from the service on the ground of fraud, in obtaining appointment. The reason is being that the petitioner suppressed the material facts as to the pendency of criminal case as against him in the application. Admittedly, the petitioner had answered ‘No’ in the Ext.P5 Attestation form as to the pendency of Crime No.14/2011 of Vithura Police Station under section 279, 337 and 338 of the Indian Penal Code. This case was registered against the petitioner alleging that, while he was driving a bus, an accident was occurred involving the bus and a bike and the persons on the bike sustained minor injuries due to the accident 2. It appears that Ext.P5 attestation form was sent for enquiry through Police. On such enquiry, it was found that the petitioner was involved in a crime. Accordingly, as per Ext.P7 order the petitioner was ordered to be removed from the service alleging suppression of material facts. It is to be noted that criminal proceedings against the petitioner is still pending before the court. The stand of the KSRTC is that since petitioner had suppressed about the material facts in the attestation form and obtained the ## **W.P.(c) No.27301 of 2013** ## **-:2:-** appointment by committing fraud, he is liable to be removed from the service. 3. Learned counsel for the KSRTC also pointed out that in Ext.P5 application itself it was mentioned, in case furnishing false information and suppression of any factual information would lead to the disqualification of the candidate from the employment. 4. Learned counsel for the petitioner on the other hand would argue that the offence committed by the petitioner, nonmentioning of the offence is not a fatal in as much as that could not have any bearing on the proposal to appoint the petitioner in the KSRTC. It is submitted that the offence is under 279, 337 and 338 of the Indian Penal Code. This offence cannot have any impact on the employment of the petitioner with the KSRTC. Therefore, there is no suppression of materials facts in a sense it would have influenced the decision making process of the employer for employing the petitioner. The learned counsel for the petitioner relies on the judgment of the Honourable Supreme Court in **Commissioner of Police vs.Sandeep Kumar** [2011 4 SCC 644] and also the in **Avtar Singh vs. Union India and other** [2016 (4) KHC 359 (SC)] and the Division Bench judgment of this court in W.A.NO.2072 of 2016. 5. It is axiom that a candidate while applying for appointment is bound to disclose all the facts that would influence the decision of the employer to give employment. In this case, as seen ## **W.P.(c) No.27301 of 2013** ## **-:3:-** from Ext.P5 application, candidates were directed to give information as to the pendency of any case registered with Police. The petitioner ticked the column stating that ‘No’, even though a criminal case is pending against him. It is mandatory in the Government service to obtain a certificate of antecedents in terms Part – II Rule X B III of the KSR . Part – II Rule XB III of the KSR reads as follows: “No person shall be eligible for appointment to any service by direct recruitment, unless (i) he satisfies the appointing authority that he is of sound health active habits and free from any bodily defect or infirmity rendering him unfit for such service, ii) ****** iii) the State Government are satisfied that his character and antecedents are such as to qualify him for such service: [Provided that, before the Government are satisfied of the character and antecedents of a person selected/advised for appointment by direct recruitment, the [Appointing Authority may appoint] him/her temporarily under clause (i) of sub-rule (a) of rule 9 of these rules subject to the condition that his/her appointment shall be terminated without notice if Government are not satisfied of his/her character and antecedents on subsequent verification and that he/she shall be eligible for appointment in regular service in accordance with the Rules only if his/her character and antecedents are found satisfactory on subsequent verification. Note (1) **** (2) The appointing Authorities shall get the necessary details for verification of character and antecedents of the candidates advised by the Commission from candidates themselves before they are allowed to join duty and the appointing authorities shall obtain the reports on the verification of character and antecedent of the ## **W.P.(c) No.27301 of 2013** ## **-:4:-** candidates so advised within a period not exceeding six months from the date of joining duty of the candidates. 6. Essentially, the column as referred above is to find out the character and antecedents of the candidates for service. The purpose of mentioning criminal case therefore has to be understood, whether such person is fit for service of the KSRTC. The fact remains that there is a criminal case and whether it is a material facts or not would depend upon the nature of criminal case. If such case would have influenced the decision of the employer, by commenting upon the character, certainly, it would constitute materials facts. The involvement in motor accident would not tell upon the character and antecedents of a prospective candidate. In that view of the matter, there is no element of fraud in not providing information, though it appears that it was mere indiscretion on the part of candidate who was aspiring for employment in Government service. It is quite human, a person may by chance of circumstances, remain imprudent, when it is required, though it is not required to be so. Even if the petitioner had disclosed the pendency of the criminal case as above, it would not have impacted upon the decision of appointment as it would show any adversities on the character and antecedents of the petitioner. Therefore, this court is of the view, non-disclosure of facts, that would not influence the decision for giving employment, is not fatal. In **Sandeep Kumar’s** case (supra), the Hon’ble Supreme Court in fact considered the cancellation of appointment of the Police ## **W.P.(c) No.27301 of 2013** ## **-:5:-** Constable, on a finding that he was involved in a criminal case, which was not mentioned in the application. In Paragraph 12 of the judgment of the Hon'ble Supreme Court in Sandeep Kumar’s case (supra) reads as follows: “It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.” In paragraph 26 of the judgment of the Hon’ble Supreme Court in Avtar Singh’s case (supra), it is held as follows: 26. “No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects. 27. Suppression of ‘material’ information presupposes that what is suppressed that ‘matters’ not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases. 28. What yardstick is to be applied has to be depend upon the nature o post, higher post would involve more rigorous criteria for all services, not only to iniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. 29. The MCCarthyism’ is anthithesis to constitutional goal, chance of reformation has to be afforded to yound offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for canceling candidature or discharging an employee from service. **W.P.(c) No.27301 of 2013** ## **-:6:-** The Division Bench of this Court in Paragraph 9 of the judgment in W.A.2072 of 2016, it is held as follows: “Since we find that the offences committed by the appellant as mentioned supra do not fall under the definition of ‘offence involving moral turpitude’, the contention of the respondent cannot be accepted. Section 10 of the Banking Regulation Act, 1949 clearly states that no banking company shall employ or continue the employment of any person, who has been convicted by a criminal court for an offence involving ‘moral turpitude’. Thus, if any person is involved in an offence involving ‘moral turpitude’, it is not open for the Bank to appoint him But, in the matter on hand, we find that the offence committed by the appellant may not be trivial in nature, but it will not come within the definition of ‘offence involving moral turpitude’.” In the light of the discussion as above, the impugned orders are set aside. Accordingly, the petitioner is directed to be reinstated in the service within a period of one month from the date of receipt of a copy of this judgment. It is made clear that the petitioner will not be entitled for any monetary benefits for the period he was kept out of service. However, the petitioner’s seniority has to be reckoned from the original date of appointment. The writ petition is disposed of as above. No costs. Sd/ ## **A.MUHAMED MUSTAQUE JUDGE** **jm/**