Shameer Kunnathodi v. State Bank of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **WP(C).No. 7222 of 2009 (W)** ## **---------------------------** ## **PETITIONER :** **--------------------** **SHAMEER KUNNATHODI, S/O. MODIEEN KUTTY, RESIDING AT KUNNATHODI HOUSE, P.O. RANDATHANI KOTTAKKAL, MALAPPURAM DISTRICT CUSTOMER RELATION ASSISTANT S.B.I** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT(S) :** - **----------------------------** ## **1. STATE BANK OF INDIA,** **REPRESENTED BY GENERAL MANAGER, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM.** **2. ASSISTANT GENERAL MANAGER (HR), STATE BANK OF INDIA, LOCAL HEAD OFFICE,** **THAMBANOOR, THIRUVANANTHAPURAM** **3. ASSISTANT GENERAL MANAGER (ADMINISTRATION), STATE BANK OF INDIA, SHANMUGHAM ROAD ERNAKULAM.** **4. CHIEF MANGER, STATE BANK OF INDIA, TIRUR BRANCH,** **TIRUR.** **R1 TO R4 BY ADV. SRI.GEORGE THOMAS (MEVADA), SC, SBI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2013, THE COURT ON 08-01-2014 DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 7222 of 2009 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE COMMUNICATION DATED 5.9.2008. EXT.P2 COPY OF THE BIO-DATA CUM ATTESTATION FORM. EXT.P3 COPY OF THE SCAN REPORT DATED 8.8.2007. EXT.P4 COPY OF THE COMMUNICATION DATED 23.12.2008. EXT.P5 COPY OF THE REPLY DATED 4.1.2009. EXT.P6 COPY OF THE COMMUNICATION DATED 7.2.2009.** **RESPONDENT'S EXHIBITS : EXT.R1A : PHOTOCOPY OF THE LETTER. EXT.R1B PHOTOCOPY OF THE STATEMENT SUBMITTED BY THE PETITIONER. EXT.R1C PHOTOCOPY OF THE RESIGNATION LETTER. EXT.R1D PHOTOCOPY OF THE LETTER SUBMITTED BY THE PETITIONER WITHDRAWING HIS RESIGNATION. EXT.R1E PHOTOCOPY OF THE REPORT. EXT.R1F PHOTOCOPY OF THE SHOW CAUSE NOTICE. EXT.R1G PHOTOCOPY OF THE EXPLANATION. EXT.R1H PHOTOCOPY OF THE LETTER ISSUED BY THE APPOINTING AUTHORITY.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 7222 of 2009 -------------------------------------------------Dated this the 8[th] day of January, 2014** ## **J U D G M E N T** The short question, which arises for consideration in this writ petition, is whether the service of the petitioner could be terminated on the ground that the petitioner has misrepresented and suppressed his health condition in the declaration form submitted by the petitioner during his selection to the post of clerk in the respondent bank. 2. In response to the notification issued by the 1[st] respondent bank, the petitioner applied for the clerical post. After the written test and interview, he was appointed as Customer Relation Assistant in the clerical cadre as per order dated 05.09.2008. The petitioner submitted a declaration in a form issued by the bank at the time of final interview before the medical officer, wherein he has stated his health condition. The petitioner joined duty on 15.09.2008 and he was on probation period for a period of six months. Later, by notice dated 23.12.2008, W.P.(C) No. 7222 of 2009 ..2.. the petitioner was called upon to give explanation for having suppressed and misrepresented certain facts in the declaration. He gave a reply dated 04.01.2009. However, the respondent bank issued a termination order with effect from 11.03.2009 on the ground that he has misrepresented and suppressed his health condition in the declaration. The petitioner alleges that he has not suppressed and misrepresented any of the facts in the declaration and; therefore, the order of termination is illegal, arbitrary and inhuman. Thus, he has come up before this Court. 3. In the counter affidavit filed by the respondent bank, it is stated that the petitioner was required to submit a personal statement at the time of his interview. Ext.R1B is the copy of the statement so submitted by the petitioner. As the bank's authorized doctor certified that the petitioner is fit, he was allowed to join duty. After that, the petitioner reported at Tirur Branch on 16.10.2008. On 31.10.2008, the petitioner submitted a letter seeking permission to resign from the respondent W.P.(C) No. 7222 of 2009 **==> picture [19 x 8] intentionally omitted <==** bank due to personal reasons. Ext.R1C is the copy of the said letter. On 18.11.2008, the petitioner submitted another letter withdrawing his resignation. Ext.R1D is the copy of the same. Later, the medical report of the petitioner was subjected to detailed scrutiny by the bank and; the bank found that he had undergone a surgery in 2001. Therefore, the petitioner was requested to call on the bank's Senior Medical Officer at Ernakulam with full details of surgery. The bank's Medical Officer was also advised to have a thorough check-up of the petitioner to ensure that the candidate is in good mental and bodily health, is free from any physical defect, which is likely to interfere with the efficient performance of his duties in the bank and; whether he would be able to render uninterrupted service to the bank in his existing state of health. Accordingly, the petitioner was subjected to such medical examination. It was reported that the petitioner was still under medical treatment for his malignancy, which was located in the stomach. The Medical Officer inferred that his disease was still subsisting and the W.P.(C) No. 7222 of 2009 ..4.. treatment for the same is an ongoing and prolonged one. Ext.R1E is the copy of the medical report. On receipt of the same, the appointing authority issued show cause notice to the petitioner. He gave explanation. Ext.R1G is the copy of the explanation. Since the explanation was not at all convincing, the service of the petitioner was terminated by Ext.R1H. The respondent averred that although they have deepest sympathies for the petitioner and his state of ill health, that sympathy cannot justify the deliberate suppression of the petitioner in getting the employment in the bank, suppressing the details of his ill health. Thus, the respondent bank prayed for the dismissal of the writ petition. 4. I have heard the learned counsel for the petitioner and the learned senior counsel for the respondent bank. 5. Ext.R1B is the personal statement submitted by the petitioner. In Column No.A, the petitioner has deposed that he had gastric ulcer in the year 2001. In Column No.I, he had deposed that he had undergone a W.P.(C) No. 7222 of 2009 **==> picture [19 x 8] intentionally omitted <==** surgical procedure for gastric ulcer in 2001. The case of the respondent bank is that the petitioner has given an answer in the negative in Column No.J dealing with the question, “Is there any item in your medical history which you have not already mentioned?”. According to the respondent bank, their enquiries have revealed that he is still undergoing treatment for malignancy. But, when Ext.R1B read as a whole, it can be seen that his gastric ailment was revealed in Column Nos.A and I. Had the petitioner had an intention to perpetuate fraud, he could have put “No” against those columns also. It is true that utmost good faith is expected from a candidate, who approaches an institution like the respondent for a job. He is bound to furnish all the particulars asked for by the proposed employer. 6. Going by the counter affidavit of the respondent bank, it can be seen that their intention to have a thorough check-up, which can be done by the bank's senior medical officer, was to ascertain whether the petitioner in his existing state of health could render uninterrupted service W.P.(C) No. 7222 of 2009 **==> picture [19 x 8] intentionally omitted <==** to the bank and to ensure that he is in good mental and bodily health, which is likely to interfere with the efficient performance of his duties in the bank. In the report submitted by the medical officer, it is inferred that the petitioner's disease was still subsisting and the treatment for the same is an ongoing and prolonged one. He never reported that the petitioner is unfit to continue in the job. Of course, for effectively serving the respondent bank, good health of individual, i.e., who are fit mentally and bodily, is essential. The net conclusion, however, that can be drawn is that if the present health condition of the petitioner is conducive for his continuance in the respondent bank, he shall not be penalized for writing “No” against the Column No.J in the statement submitted by him. In this context, I would like to refer to a decision of the apext court in **Commissioner of Police & Others** v. **Sandeep Kumar** [2011 SCC (4) 644]. In that case, the respondent's candidature for the post of Head Constable was cancelled for having involved in a criminal case under Section 325 r/w Section 34 of the IPC when he was aged at W.P.(C) No. 7222 of 2009 **==> picture [19 x 8] intentionally omitted <==** about 20 years. The apex court observed that at that age, young people often commit indiscretions, and such indiscretions should be condoned rather than to brand them as criminals for the rest of their lives. Viewed in that profile, this Court is of the definite view that the termination of the petitioner's service from the respondent bank is disproportionate to the gravity of the so called suppression by the petitioner. At the same time, the petitioner will have to satisfy the respondent that he is fit to continue in the present job. On a specific query put by me during the course of argument, the learned counsel for the petitioner submitted that the petitioner is perfectly right at present. Therefore, this writ petition is allowed. Ext.P6 is quashed. The petitioner is directed to appear before a competent medical board constituted by the Superintendent of Medical College Hospital, Kozhikode for assessing whether he is suffering from any form of disease at present making him unfit to continue in the service of the W.P.(C) No. 7222 of 2009 ..8.. respondent bank. For this, the petitioner shall approach the Superintendent of Medical College Hospital, Kozhikode with a copy of this judgment within a period of one month from today and shall make an application for the same. In the event of making such an application, the Superintendent, Medical College Hospital, Kozhikode, shall get the petitioner examined by a competent medical board including an oncologist and shall report whether the petitioner is suffering from any form of disease at present making him unfit to continue in service of the respondent bank. The right of the petitioner to continue in service of the respondent bank shall be subject to the finding of the medical board constituted as above. Sd/- ## **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-