Viswanathan K.C. v. D. Pappachan, District Judge, Ernakulam (Disciplinary Authority) & Registrar, Subordinate Judiciary, High Court of Kerala; The High Court of Kerala represented by the Registrar General

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ASHOK MENON** **FRIDAY, THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940** **R.P.No.107 of 2019 IN W.A.95/2013** **AGAINST THE JUDGMENT IN WA.NO.95/2013 DATED 01.03.2013 OF HIGH COURT OF KERALA.** ## **REVIEW PETITIONER/APPELLANT:** **VISWANATHAN K.C., AGED 57 YEARS, S/O.NALINAKSHA MENON, CHUKKUNGAL HOUSE, THURUTHISSERY, MALKKAD P.O., ERNAKULAM DISTRICT-683589. (LOWER DIVISION CLERK, MUNSIFF COURT, ALUVA, (NOW UNDER ORDERS OF DISMISSAL)** ## **BY ADV. SRI.S.RAMESH** ## **RESPONDENTS/RESPONDENTS:** **1 SRI.D. PAPPACHAN, DISTRICT JUDGE, ERNAKULAM-682031 (DISCIPLINARY AUTHORITY). 2 REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, (APPELLATE AUTHORITY) -682031.** **3 THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, ERNAKULAM-682031.** **R1 BY SENIOR GOVERNMENT PELEADER SRI.RENIL ANTO. R2 & R3 BY ADV. SRI.B.UNNIKRISHNA KAIMAL** **THIS REVIEW PETITION HAVING COME UP FOR ORDERS ON 01.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **- 2 -** **RP.107 of 2019 in W.A.95 of 2013** **K.Vinod Chandran & Ashok Menon, JJ. -------------------------------------------R.P.No.107 of 2019 in W.A.No.95 of 2013 C.M.Appln.No.1 of 2019 in R.P.No.107 of 2019 --------------------------------------------** **Dated, this the 01[st] day of March, 2019. ORDER** ## **Vinod Chandran, J.** **The review petition has been filed with a delay of 2086 days. We have heard Sri.S.Ramesh appearing for the review petitioner and Sri.B.Unnikrishna Kaimal for respondents 2 and 3 and the learned Senior Government Pleader for the 1[st] respondent. Respondents 2 and 3 have filed an objection to the delay petition. We are of the opinion that the delay and the merits of the matter can be considered together, since in explanation of the delay the review petitioner projects the subsequent events and the proceedings he took to remove the so-called slur against his being appointed to a civil employment.** **2. The admitted facts are that the petitioner was appointed as a Peon in the Irrigation Department in the year 1992 and obtained an inter-departmental transfer to the Judicial Department in 1993. He was promoted to the post of Lower Division Clerk when, on the basis of a complaint received by the Registrar General of the High** **RP.107 of 2019 in W.A.95 of 2013** ## **- 3 -** **Court of Kerala, disciplinary proceedings were initiated against the appellant for not having disclosed the fact that he was dismissed from the Indian Army as a consequence of his having deserted the service. He was also categorised as unfit for civil employment. None of these were disclosed at the time of his being considered for appointment either in his application or before the Kerala Public Service Commission [for brevity “KPSC”], where he appeared for the interview. The disciplinary proceedings ended in a finding of guilt and he was dismissed from the civil service on the basis of the findings in the disciplinary proceedings. A writ petition was filed against the order passed, which was dismissed by a learned Single Judge. An appeal filed before this Court was also dismissed, in which all contentions raised against the dismissal, including the procedural irregularities alleged against the disciplinary proceedings, were considered and negatived by a Division Bench of this Court. The explanation for the delay occasioned and the grounds for filing a review petition are all based on subsequent events.** **3. While the disciplinary proceedings were pending, the review petitioner had approached this Court with a writ petition seeking consideration by the Armed** **RP.107 of 2019 in W.A.95 of 2013** ## **- 4 -** **Forces as to his eligibility for civil employment. The writ petition was disposed of by Exhibit P3 produced in the writ petition, directing consideration of the issue. The same was considered and rejected by an order dated 02.06.2008. This order was challenged before the Armed Forces Tribunal, Regional Bench, Kochi [for brevity “AFT”] in which Annexure A1 order was passed on 25.07.2013; after the dismissal of the Writ Appeal. Therein, the AFT considered the judgment of the Uttarakhand High Court in** _**Govind Nath v. State of Uttarakhand and Others**_ **[** _**W.P. No.1126 of 2004**_ **] to find that dismissal from Armed Services and appointment in civil service has different connotations and import and there could be very diverse factors which need to be considered. The mere fact that one person was dismissed from Armed Service would not mean that he is unfit for appointment in civil service. A re-consideration was directed.** **4. Re-consideration was carried out and Annexure A2 is said to have been issued. Annexure A2 is dated 13.03.2014, wherein under the Medical Record after the entry 'Unfit for DSC' it is stated “Fit for Civil Employment”. In fact, the endorsement made therein only certifies the medical condition of the review petitioner to be fit for civil employment. Even otherwise, taking it as** **RP.107 of 2019 in - 5 - W.A.95 of 2013** **the earlier condition having been removed by the Army, we do not think that it would have any relevance as far as the disciplinary proceedings initiated against the review petitioner and the subsequent dismissal from civil service; which was for the reason of non-disclosure of relevant factors in the application made before the KPSC.** **5. Pausing here for a moment, we notice that in explanation of the delay it is submitted that after Annexure A2 was issued to the review petitioner, he had approached this Court with a writ petition which was dismissed as per Annexure A3 on 03.11.2016. A Writ Appeal was filed from the aforesaid case, which was also dismissed by Annexure A4 dated 13.07.2018. It is after such dismissal that now the above review petition has been filed on 21.12.2018, seeking review of the earlier judgment passed, which confirmed the dismissal from civil service. We do not think that the review petitioner has satisfactorily explained the delay, especially since the subsequent writ petition and appeal, based on a correction made in his certificate of service with the Army, cannot be considered as sufficient explanation for delay when the judgment under review itself was in force. At best the petitioner can only be said to have taken recourse before the wrong forum being** **- 6 -** **RP.107 of 2019 in W.A.95 of 2013** **so wrongly advised.** **6. Be that as it may, we do not think that the subsequent events or the correction made in Annexure A2, the Combined Certificate of Discharge and Recommendation for Civil Employment issued by Army AD Centre, would, in any event, confer valid ground for review of the judgment itself especially looking at the contours of review, as has** **been laid down in** _**State of West Bengal v. Kamal Sengupta,**_ **[(2008) 8 SCC 612]. There is no error apparent on the face of the record and there is nothing produced, which by employment of due diligence could not have been produced when the appeal was heard and decided; which also could have resulted in a different finding being rendered.** **7. Yet again, we reiterate at the risk of repetition that the ground of non-disclosure on which the dismissal was effected, remains as such even now. As is seen from the records, the charge itself against the review petitioner was that he had not disclosed the factum of dismissal from the Armed Services in his application. There was a contention raised that he himself was not aware of his discharge based on a Certificate of Service issued subsequent to his appointment. The said contentions** **RP.107 of 2019 in - 7 - W.A.95 of 2013** **were negatived by the Division Bench after elaborate consideration.** **8. The brief facts necessary, which led to the dismissal of the review petitioner from Armed Forces services, are that he was enrolled on 24.09.1982 and after serving the force for 2 years and 31 days, he proceeded on leave and failed to rejoin duty. After about 1½ years of desertion, he was arrested by the local police and transported to the Artillery Unit at Pathancode, where Court-Martial proceedings were initiated against him and he was convicted and sentenced to imprisonment for three months. Having suffered the imprisonment in Gurdaspur Central Jail, he was dismissed from service and it was later on in 1987 that he applied to the post of Peon as per the notification of the KPSC. There was also a contention raised that the original application was not forthcoming at the time of enquiry, i.e., after 20 years of appointment.** **9. The learned Single Judge obtained a proforma of the application form from the Standing Counsel for the KPSC; specific columns of which were extracted in the judgment. The queries an applicant was called upon to answer were (i) whether the applicant was working under the State Or Central Government or in a Semi Governmental** **RP.107 of 2019 in - 8 - W.A.95 of 2013** **Organisation or Corporation, (ii) whether the applicant was or has been dismissed from any such organisation and (iii) whether the applicant suffered from any disqualification from applying to the KPSC. If the review petitioner had made the disclosure of dismissal from the Army, definitely he would not have been found suitable for employment in civil service. The learned Single Judge also referred to the petitioners contention of his not being aware of the discharge from Army; which was held to be contradictory and mutually destructive. If he had not been aware of his discharge, then he should have disclosed his employment and applied through the employer; the Army.** **10. The non-disclosure in the application form had led to his dismissal from service, which has been confirmed by this Court. His suitability for civil employment as subsequently found by the Army would not at all change the situation insofar as his dismissal was not on account of his unsuitability, but on account of the non-disclosure of a relevant fact at the time of his appointment. In fact, if the review petitioner had disclosed the factum of his dis-honourable discharge from the Army and the KPSC had rejected his candidature finding him to be unsuitable; then at that point he could have approached the Army** **RP.107 of 2019 in W.A.95 of 2013** ## **- 9 -** **Headquarters and got a certification of his suitability for civil service. Even then, we are of the opinion that it does not lie in the mouth of the Army Headquarters to say as to whether he is suitable for civil employment or not. It is for the civil authorities to decide upon whether the discharge would render an applicant unsuitable for public employment. These are all not very relevant aspects as of now, since 20 years had elapsed after his appointment and a complaint was raised of his discharge from the Army for reason of desertion, which fact had not been disclosed by the review petitioner in his application or at the time of his appointment to the civil post.** **11. The learned Counsel for the review petitioner has also relied on a judgment of the Hon'ble Supreme Court** _**Avtar Singh v**_ **.** _**Union of India & Ors**_ **. [** _**(2016) 8 SCC 471**_ **], which, again, is on the power conferred on the employer, the civil authority, to decide on the course to be adopted in case of non-disclosure of facts relevant to the appointment to a service and the discretion to decide whether a particular act of indiscretion which led to a criminal complaint, is serious enough to render a person unsuitable for employment or not. After referring to a catena of decisions on the aspect of cancellation of** **RP.107 of 2019 in - 10 - W.A.95 of 2013** **candidature or termination of appointment due to non-disclosure of relevant material, the Court held so in paragraph 32:** **“32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty-bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non-disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services”.** **Relevant also are the following conclusions as applicable to the facts of this case:** **“38.1. Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no** **RP.107 of 2019 in - 11 - W.A.95 of 2013** **suppression or false mention of required information.** - **38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.** - **38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to the knowledge of employer, any of the following recourses appropriate to the case may be adopted:** - **38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.** - **38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.** **38.11. Before a person is held guilty of** _**suppressio veri**_ **or** _**suggestio falsi**_ **, knowledge of the fact must be attributable to him”.** **- 12 -** **RP.107 of 2019 in W.A.95 of 2013** **12. In the present case, no information was given to the employer as to the conviction for reason of deserting the service of the Armed Forces and the sentence undergone. There was no special circumstance to be taken note of in the instant case, which could offer mitigation to the employee. The employer had resorted to disciplinary proceedings only on such disclosure of relevant materials having come to its notice after the review petitioner was continued in service for a long period. The case in which the review petitioner was convicted was not trivial on any account, since it was a charge of desertion from the Armed Forces. It cannot also be said that the review petitioner was not aware of the disqualification, since he had suffered imprisonment on account of the Court-Martial proceedings. The specific particulars required at the time of appointment was also regarding an earlier employment in a State or Central Government or a semi-Governmental organization as also the consequent dismissal from such employment. A dismissal definitely was a disqualification for considering the candidature and the non-disclosure clothes the employer with the power to terminate the services.** **RP.107 of 2019 in W.A.95 of 2013** ## **- 13 -** **13. In the appeal also this Court was looking at whether the non-disclosure is, of a relevant fact, which could have rendered the applicant unsuitable for appointment and could result in his dismissal from civil employment; which he obtained by suppressing that relevant fact. Having found the non-disclosure to be of conviction in an offence of desertion from Armed services, for which the punishment of dismissal was awarded. This Court upheld the dismissal from the civil service. We are of the opinion that the subsequent change made by the Army Headquarters in the service book does not merit his re-entry into civil service. We, hence, find the delay to be unexplained as also the review petition to be devoid of any merit.** **The delay condonation application as also the review petition are, hence, dismissed.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/ASHOK MENON JUDGE** **RP.107 of 2019 in - 14 - W.A.95 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 25.7.2013 IN O.A.NO.172/2012 OF THE HON'BLE ARMED FORCES TRIBUNAL. ANNEXURE A2 TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 13.3.2014 ISSUED TO THE REVIEW PETITIONER BY THE ARMY DEFENCE CENTRE. ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 3.11.2016 IN W.P.(C) NO.19238/2014 OF THIS HON'BLE COURT. ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 13.7.2018 IN W.A.NO.106/2017 OF THIS HON'BLE COURT.** ## **Vku/-** **[ true copy ]**