Shinod v. State Bank of India

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE7[TH]DAYOFNOVEMBER2023/16THKARTHIKA,1945 WP(C)NO.26682OF2022 ``` ## **`- PETITIONER :`** ``` SHINOD,AGED43YEARS S/O.RAVEENDRAN,RESIDINGATMADHAVAM,MANCODUP.O, CHITHARA,KOLLAM-691559. ``` ``` BYADVS. B.DEEPAK KARTHIKBHAVADASAN ``` ## **`- RESPONDENTS :`** - **`1 STATE BANK OF INDIA, REPRESENTED BY ITS GENERAL MANAGER, HR DEPARTMENT, LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM, PIN CODE - 695 012.`** - **`2 THE DGM, APPELLATE AUTHORITY/DISCIPLINARY AUTHORITY, STATE BANK OF INDIA, AO KOLLAM, STATE BANK BHAVAN 1ST FLOOR, TRIVANDRUM ROAD, KOLLAM, PIN CODE - 691 001.`** ## **`BY ADV P.RAMAKRISHNAN`** ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 07.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P.(C) No.26682 of 2022 2 ## **JUDGMENT** This petition is filed with a prayer to quash Ext. P5 order, by which the appointment of the petitioner as a Bank Guard in the service of the respondent Bank was terminated. ## 2. Short Facts are as under: a. The petitioner herein, having served in the Indian Army and after rendering unblemished service for years together, attained superannuation on 01.10.2014. b. The petitioner states that by Ext.P3 letter of appointment, he was appointed as a Bank Guard in the Subordinate Cadre in the 1st respondent Bank. The period of probation was six months, and from Ext.P4, it is evident that he was confirmed in the service of the Bank with effect from 24.09.2021. c. He states that while diligently serving as a Bank Guard in the Kadakkal Branch, he was summoned and served with a termination order dated 31.03.2022 (Ext.P5). d. The reason stated was that the police verification had disclosed that the petitioner was involved in three criminal cases and that he had suppressed the relevant information to the Bank at the time of the process leading to his appointment. e. The specific contention of the petitioner is that he was called upon to answer as to whether he was arrested, detained, or convicted in any case. According to him, he was either released on anticipatory bail or on bail by the police authorities and therefore, the petitioner bonafide believed that the answer W.P.(C) No.26682 of 2022 3 to the aforesaid query ought to be in the negative. f. The petitioner asserts that the crimes were registered against the petitioner as Crime No.258 of 2016, 214 of 2017 & 413 of 2018, all at Kadakkal Police Station. By Ext.P10 judgment dated 13.8.2021, the petitioner was acquitted of all charges in C.C.No.988 of 2017, which has arisen from Crime No.214 of 2017. Later, proceedings in Crime No.413 of 2018 were quashed by this Court by Ext.P11 order dated 28.01.2022. g. He also refers to Exts.P12 & P13 affidavits sworn by the injured witnesses in Crime No 413 of 2018 to substantiate that they do not have any subsisting grievance against the petitioner. h. Being aggrieved by the order of termination, he is stated to have preferred an appeal before the respondents. However, the second respondent by Ext.P14 order rejected his appeal. This has led the petitioner to approach this Court. 3. A counter affidavit has been filed on behalf of the respondents. After detailing the sequence of events, it is stated that in the appointment order issued to the petitioner, it was specifically stated that the appointment of the petitioner was subjected to a satisfactory report on his character and antecedents from the police authority. The petitioner was warned that if any false information was furnished or if any relevant facts have been concealed or suppressed, the appointment shall be invalid ab initio, and the petitioner shall render himself liable for appropriate action, including departmental actions for removal from service. He further stated that the petitioner was bound to sign an attestation form wherein the query was whether he had W.P.(C) No.26682 of 2022 4 ever been arrested or kept under detention or bound down/fined/convicted by a court of law. The petitioner had answered in the negative to the above query. Furthermore, he had given a declaration in the attestation form wherein he had stated that the information furnished by him was true and correct. 4. It is stated that at the time of the appointment of the petitioner, the Bank authorities had not received a verification report from the police authorities. It was only later that the District Police Chief, by order dated 25.10.2021, informed that the petitioner had been involved in three cases. It is further stated that the arrest was recorded by the police in Crime No.214 of 2017, and anticipatory bail was granted in Crime No.413 of 2018. 5. According to the respondents, the petitioner was well aware of his involvement in the criminal cases, and he has suppressed/concealed the above material aspects. It is stated that the assertion of the petitioner in the attestation, as well as the confirmation that he was not arrested, is clearly false. It further stated that as a Guard, the petitioner had an obligation to keep the branches of the Bank adequately protected against the threats of robbery. The action on the part of the petitioner in concealing the fact that the criminal case was pending against him casts a shadow on the integrity of the petitioner. The Bank is a public sector undertaking W.P.(C) No.26682 of 2022 5 dealing with the general public, their money, and valuables, and the Bank cannot retain any employee with the slightest element of doubt to continue in its service. The fact that the petitioner was acquitted and the proceedings quashed by this Court much after his appointment does not have any relevance, as the petitioner concealed/suppressed the facts in the attestation form. 6. Sri. Deepak, the learned counsel appearing for the petitioner, would submit that prior to confirmation, the Bank has received information from the police authorities that the petitioner was involved in criminal cases. He would point out that if that be the case, going by the law laid down in **Avtar Singh v. Union of India and Others** [(2016) 8 SCC 471], if the employee stands confirmed in service, then a departmental enquiry would be necessary before his service is terminated. It is urged that no such enquiry was carried out, and hence the termination is illegal. He would point out that the petitioner was implicated in the crimes based on a misconception of fact, and that is the reason why he was finally acquitted in one case and the proceedings quashed in the other. It is submitted that the letter from the District Police Chief was received on 25/10/2021, and in spite of the above, the Bank chose to confirm the petitioner in service on 21/2/2023. Finally, it is submitted that the various clauses in Ext.P6 are vague, and the same ought not to have been relied W.P.(C) No.26682 of 2022 6 upon to remove the petitioner from service. 7. Smt.Preethy Ramakrishnan, the learned counsel appearing for the Bank, opposed the submissions. It is submitted that the petitioner has submitted the application seeking an appointment as a Bank Guard. He had suppressed material facts and had failed to disclose his involvement in not less than three crimes. He signed a false attestation and submitted a declaration, which was also untrue. It was only after the appointment of the petitioner that the Bank received the detailed police verification report which disclosed that the petitioner was arrested in one crime. A Bank Guard is expected to be a person with integrity and honesty and a person with involvement in multiple crimes will not be suited for the post. As regards the contention of the petitioner that despite the adverse report from the Police, the petitioner was confirmed in service, it is submitted that the factum of the arrest of the petitioner was not revealed from the initial report. Furthermore, the report had come to the Regional Office and not to the Local head Office. Reliance is also placed on a decision of the Apex Court in **Devendra Kumar v. Uttaranchal and Others** [(2013) 9 SCC 363] and is argued that the suppression of involvement in a criminal case is material, and when the pendency of the case has been deliberately suppressed, no leniency can be shown to the petitioner. Profuse reliance is placed on the law laid down by the Apex Court in **State of Madhya** W.P.(C) No.26682 of 2022 7 **Pradesh v. Bhupendra Yadav** [2023 SCC Online SC 1181], **Rajasthan Rajya Vidyut Prasaran Nigam Limited and Another v. Anil Kanwariya** [2021 (10) SCC 136], **State of Kerala v. Hamil Raphael** [2014 (3) KLT 546], **Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav** [(2003) 3 SCC 437] and also the judgment rendered by the learned Single Judge of this Court in **Vinod v. Deputy General Manager** [Neutral Citation No.2021 KER 14784] to substantiate her contention. 8. I have considered the submissions advanced. 9. There is no dispute with regard to the fact that the petitioner had applied to the post of Bank Guard in a Public Sector Bank. In Exhibit P3 appointment letter issued to the petitioner, it is stated as follows in clause No.(2) :- “Please note that in the event of any of the information, declarations, certificates/testimonials being found incorrect/false or you have concealed or suppressed any material facts, the appointment shall be deemed invalid ab initio (emphasis supplied) and he/she will render himself/herself liable for appropriate action including department action, removal/dismissal from service.” 10. The petitioner was required to sign an attestation form. Clause 14 of the Attestation form signed by the petitioner reads as follows :- “14. Have you ever been arrested or kept under detention or bound down/fined/convicted by court of law for any offence, or debarred/disqualified by the Public Service Commission from appearing at W.P.(C) No.26682 of 2022 8 its examination selections or debarred from taking any examination or rusticated by authority/Institutions?” 11. The petitioner was in fact arrested for one crime and this fact is not disputed before this Court. 12. the petitioner had given the following declaration at the time of joining the service. “I certify, that the foregoing information is correct and complete to the best of my knowledge and belief …………….. I am not aware of any circumstances which might impair my fitness for employment in the Bank. I have/will have no objection to the Bank making enquires at any time (immediately/in the near future) regarding the statements made by me in the applications, in any manner they decide to do so inclusive of police enquiry into my antecedents.” 13. Admittedly the petitioner was involved in Crime No 258/2016 registered on 18/02/2016 under Section 427, 294, 323, 324 r/w Section 34 of the IPC, Crime No 214/2017 registered on 02/02/2017 registered under Sections 294, 341, 323, 324, 427 r/w Section 34 of the IPC, and Crime No 413 of 2018 registered on 04/03/2018 registered under Section 341, 294(b), 323, 324, 427, 308 r/w Section 34 of the IPC. The petition had been arrested in Crime No 214/2017 as well. It is idle for the petitioner to contend that as he was granted anticipatory bail, he cannot be said to have been arrested. It has been held by the Apex Court in **State of** W.P.(C) No.26682 of 2022 9 **Haryana and Others v. Dinesh Kumar[1]** and **State of Uttar Pradesh v. Deomen[2]** that the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody. Submission to custody by word of mouth or action by a person is sufficient. 14. **In Rajasthan Rajya Vidyut Prasaran Nigam Ltd. v. Anil Kanwariya,** [(2021) 10 SCC 136] **,** the Hon’ble Supreme Court had held that :- **14.** The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the 1 [(2008) 3 SCC 222] [AIR 1960 SC 1125] 2 W.P.(C) No.26682 of 2022 10 appointment and/or continue to be in service as a matter of right. 15. In **Devendra Kumar v. State of Uttaranchal,** [(2013) 9 SCC 363], the facts are almost identical. While joining the training, the employee was asked to submit an affidavit giving certain information, particularly whether he had ever been involved in any criminal case. The employee submitted an affidavit stating that he had never been involved in any criminal case. The employee completed his training satisfactorily, and it was at this time that the employer in pursuance of the process of character verification, came to know that the employee was in fact involved in a criminal case. It was found that the final report in that case had been submitted by the prosecution and accepted by the Judicial Magistrate concerned. On the basis of the same, the employee was discharged abruptly on the ground that since he was a temporary government servant, he could be removed from service without holding an enquiry. While rejecting the appeal, the Apex Court had held as under “12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In W.P.(C) No.26682 of 2022 11 that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged. 13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. ‘Fraud avoids all judicial acts, ecclesiastical or temporal.’ [Vide S.P. Chengalvaraya Naidu v. Jagannath [S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1] In Lazarus Estates Ltd. v. Beasley [Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702] the Court observed without equivocation that : (QB p. 712) ‘… No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.’ *** **** 18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran [Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100] this Court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, (1990) 3 SCC 655], observed as under : (M. Bhaskaran case [Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100] , SCC p. 104, para 6) If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer. *** W.P.(C) No.26682 of 2022 12 25. More so, if the initial action is not in consonance with law, the subsequent conduct of party cannot sanctify the same. Sublato — fundamento cadit opus a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum caprere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide Union of India v. Madan Lal Yadav [Union of India v. Madan Lal Yadav, (1996) 4 SCC 127] and Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224]. Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur).” 16. In **Jainendra Singh v. State of U.P.** , [(2012) 8 SCC 748], the Apex Court summarised the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of ## facts by candidates/appointees as under: “29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer. 29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted. 29.3. When appointment was procured by a person on the basis W.P.(C) No.26682 of 2022 13 of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry. 29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. 29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service. 29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service. 29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted. 29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post. 29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated. W.P.(C) No.26682 of 2022 14 29.10. The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.” 17.In the present case, it is evident that the criminal cases associated with the petitioner are not of a trivial nature. The petitioner aspired to assume the role of a guard within a public sector bank, a role that necessitates the highest standards of integrity and honesty. The bank cannot compromise the safety of its personnel and clientele. Furthermore, the petitioner's responsibilities would include the handling of arms and ammunition, making truthfulness and honesty even more critical attributes that he was expected to possess. The respondents have in the additional statement stated the reasons why they had issued the order of appointment despite the branch office having received the report. The report was vague and the details of the arrest were not mentioned. As held in paragraph 38.7 of Avtar Singh, in a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer can pass orders canceling candidature or terminating services as the appointment of a person against whom multiple criminal cases were pending may not be proper. W.P.(C) No.26682 of 2022 15 Having considered the entire facts and in the light of the principles laid down by the Apex Court, I am of the view that the petitioner has not made any case for interference. This writ petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ## **`SMA`** W.P.(C) No.26682 of 2022 16 ## **`APPENDIX OF WP(C) 26682/2022`** ## **`PETITIONER EXHIBITS :-`** |**`Exhibit `**|**`P1`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`UNITED`**<br>**`NATIONS`**<br>**`MEDAL`**| |---|---|---| |||**`DATED 18.12.2007.`**| |**`Exhibit `**|**`P2`**|**`THE TRUE COPY OF THE ASHOK CHAKRA PALTAN.`**| |**`Exhibit `**|**`P3`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`LETTER`**<br>**`OF`**| |||**`APPOINTMENT DATED 24.03.2021.`**| |**`Exhibit `**|**`P4`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`LETTER`**<br>**`OF`**| |||**`CONFIRMATION DATED 21.01.2022.`**| |**`Exhibit `**|**`P5`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`LETTER`**<br>**`DATED`**| |||**`01.04.2022`**<br>**`ALONG`**<br>**`WITH`**<br>**`THE`**<br>**`TERMINATION`**| |||**`ORDER.`**| |**`Exhibit `**|**`P6`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`THE`**<br>**`RELEVANT`**<br>**`PAGE`**<br>**`IN`**<br>**`THE`**| |||**`BANK ATTESTATION FORM.`**| |**`Exhibit `**|**`P7`**|**`THE TRUE COPY OF THE FIR NO.0258 OF 2016`**| |||**`OF KADAKKAL POLICE STATION.`**| |**`Exhibit `**|**`P8`**|**`THE TRUE COPY OF FIR NO.214 OF 2017 DATED`**| |||**`02.02.2017 OF KADAKKAL POLICE.`**| |**`Exhibit `**|**`P9`**|**`THE TRUE COPY OF FIR NO.413 OF 2018 DATED`**| |||**`04.03.2018 OF KADAKKAL POLICE.`**| |**`Exhibit `**|**`P10`**|**`JUDGEMENT DATED 13.08.2021 IN C.C NO.988`**| |||**`OF 2017.`**| |**`Exhibit `**|**`P11`**|**`THE`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`JUDGEMENT`**<br>**`DATED`**| |||**`28.01.2022 IN CR.M.C NO.4627 OF 2021.`**| |**`Exhibit `**|**`P12`**|**`AFFIDAVIT OF THE DE-FACTO COMPLAINANT IN`**| |||**`EXHIBIT P9.`**| W.P.(C) No.26682 of 2022 17 ``` ExhibitP13AFFIDAVITOFONEOFTHEWITNESSESIN EXHIBITP9. ``` ``` ExhibitP14ORDERDATED16.07.2022PASSEDBYTHE2ND RESPONDENTS. ``` ## **`RESPONDENT EXHIBITS :-`** ``` ExhibitR-1(a)TruecopyoftheAttestationFormdated 24/3/2021signedbythepetitioner ``` ``` ExhibitR-1(b) ``` - **`True copy of Report dated 25/10/2021 of the Deputy Superintendent of Police, District Special Branch, Kollam Rural for District Police Chief, Kollam Rural.`** - **`Exhibit R-1 (c) True copy of Report dated 19/3/2022 of the Deputy Superintendent of Police, District Special Branch, Kollam Rural, Kottarakkara for District Police Chief, Kollam Rural.`** ``` ExhibitR-1(d)TruecopyofJudgmentdated1/11/2019in WP(C)No.30746of2017. ```