KAMAL NAYAN MISHRAversusSTATE OF M.P. & ORS.

                    [2009] 16 (ADDL.) S.C.R. 237


                       KAMAL NAYAN MISHRA                            A
                                   v.
                       STATE OF M.P. & ORS.
                   (Civil Appeal No. 8317 of 2009)
                         DECEMBER 7, 2009
                                                                     B
     [R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]
          SERVICE LAW:
>
           Termination of services of a confirmed employee for
      furnishing incorrect information in attestation form - Employeec
     appointed in service in 1980 - In 1989 prosecuted for
     offences punishable ulss 148, 3241149, 3261149 and 506 /PC,
     but acquitted - In 1994 employee required to fill in attestation
     form against column 12 whereof with regard to query about
     arrest ,prosecution, detention etc. he wrote 'NO' - On 7.3.2002, D
     employee abruptly dismissed from service for giving wrong
     information and concealment of facts in attestation form -
     High Court relying upon Ram Ratan Yadav's case*,
     dismissing writ petition of employee - Held: The ratio
     decidendi of Ram Ratan Yadav's case is, where an employee E
     (probationer) is required to give his personal data in an
     attestation form in connection with his appointment (either at
     the time of or thereafter), if it is found that the employee had
     suppressed or given false information in regard to matters
     which had a bearing on his fitness or suitability to the post,
-I                                                                    F
     he could be terminated from service during the period of
     probation without holding any inquiry - The said decision
     dealt with a probationer and not a holder of a civil post, and
     nowhere laid down a proposition that a confirmed employee
     holding a civil post under the State, could be terminated from
     service for furnishing information .in an attestation form, G
     without giving an opportunity to meet the charges against him
     - A confirmed government servant is the holder of a civil post
     entitled to the benefits of the safeguards provided by Article

                                  237                                H
    238    SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.


A 311 of the Constitution - If it is found that the government
  servant who is holder of a civil post, has given any false
  information during the course of employment, that will have
  to be treated as a misconduct, and punishment can be
  imposed only after subjecting him to appropriate disciplinary
B proceedings as per the relevant rules - The termination of the
  employee without an inquiry or hearing was illegal and invalid
  - There are clear indications that the employee was bona fide
  under the impression that he was required to give the
  particulars sought in column (12) of the form with reference
c to the date of his appointment - Further, the entire matter
  relates to an attestation form given in 1994 and employee has
  already been out of service for more than seven years on
  account of the illegal termination from service without inquiry
  - Therefore, interests of justice would be served if the
  employee is reinstated with continuity of service and other
0
  consequential benefits dispensing with any further disciplinary
  action, but he will not be entitled to any salary for the period
  from the date of his termination till date - Ordered accordingly
  - Constitution of India, 1950 - Article 311.

E        Moti Ram Deka vs. General Manager, N.E. Frontier
    Railway (1964) 5 SCR 683, relied on.

          *Kendriya Vidyalaya Sangthan vs . Ram Ratan Yadav
    2003(3) sec 437, distinguished.
F         Ajit Singh vs. State of Punjab 1983 (2) SCC 217,
    referred to.

                        Case Law Reference:

          2003(3) sec 437        distinguished         para 4
G
          1983 (2) sec 211       Referred to           para 7

          (1964) 5 SCR 683       relied on             para 11

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 8317 of 2009.
     KAMAL NAYAN MISHRA v. STATE OF M.P. & ORS.               239


        From the Judgment & Order dated 1.5.2008 of the High          A
    Court of Judicature at Jabalpur, Madhya Pradesh in Writ
    Appeal No. 378 of 2008.

          Ashok Kumar Gupta, (SCLSC) for the Appellant.

          Vikas Upadhyay, B.S. Banthia for the Respondents.           8

          The Order of the Court was delivered by

>                               ORDER

         R.V. RAVEENDRAN J. 1. Leave granted. Heard the               C
    parties.

          2. Appellant was appointed as a Peon in the Water
    Resources Department (Bansagar Project) in the State of
    Madhya Pradesh on 24. 7 .1980. Nearly a decade later, on          o
    22.8.1989, the appellant was charge-sheeted in a criminal case
    for the offences under sections 148, 324/149, 326/149 and 506
    IPC. He was acquitted by judgment dated 9.9.2004 passed by
    Judicial Magistrate First Class, Rewa, MP.

         3. In the year 1994, the appellant was required to submit    E
    an attestation form giving his personal data in regard to his
    educational qualifications, antecedents etc. He filled up and
    submitted the said form on 27 .10.1994. Column 12 of the said
    form relevant for our purpose contained three queries. The said
    queries and appellant's answers thereto are extracted below :     F

    SI.         Query                                      Answer
    No.


     12(a) Have you ever been arrested, prosecuted,         No        G
           kept under detention or bounded down/finde,
           convicted by a Court of law for any office of
                        ..
           debarred/disqualified by any public service
           commission, from appe-Jring at its
           examinations/selections or debarred from                   H
    240 Sl'.JPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A           taking any examination rusticated by any
            University or any other educational authority
            institution?

     12(b) Is any case pending against you in Court of            No
B          law, University of any other educational,
           authority/institution at the time of filling up this
           attestation form?

     12(c) If the answer to 12(a) or 12(b) is 'yes' full          No
c           particulars of the case, arrest detention, fine,
            conviction sentence etc, and <he nature of
            the case pending in the Court/University/
            Educational authority, etc. at the time of filling
            up this or should be given.
D
       The form also required the appellant to certify that the
  information given by him in the said form was correct and that
  if any information was found to be false or incomplete in any
  material resper.t, the appointing authority may terminate him
E from the service without giving notice or showing cause.

        4. The Chief Engineer, Bansagar Project (second
  respondent), referred the attestation form for verification of
  particulars. After such verification, the Deputy Inspector General
F of Police, Special Cell, Bhopal, by letter dated 14.7.1995
  informed the second respondent that appellant had furnished
  wrong information in regard to the queries in column 12 of the
  attestation form. On receipt of such report, no show cause
  notice or charge sheet was issued to the appellant. The
  appellant continued to work. Nearly seven years later, abruptly
G the second respondent issued an office order dated 7.3.2002
  terminating the services of appellant forthwith "for giving wrong
  information and concealment of facts in attestation form at the
  time of initial recruitment and therefore unfit for Government
  service". The appellant challenged his termination. A learned
H
          KAMAL NAVAN MISHRA v. STATE OF M.P. & ORS.                   241
                    [R.V. RAVEENDRAN, J.]
         Single Judge of the High Court dismissed the writ petition by        A
         order dated 11.10.2007, upholding the termination, relying upon
         the decision of this Court in Kendriya Vida/aya Sangthan v.
         Ram Ratan Yadav - 2003 (3) SCC 437. The writ appeal filed
         by the appellant was dismissed on 1.5.2008. Appellant has
         challenged the said order by this appeal by special leave.           B
               5. The appellant submitted that there was no intentional
    >    suppression or misrepresentation in the attestation form. He
         claims that he has only basic education, that he was given to
         understand that he should answer the queries in column No.12
         with reference to the position as on the date of his appointment
                                                                              c
         in the year 1980; that he therefore answered truthfully all the
         three queries in column 12 in the negative; and that he did not
         realise that clauses (b) and (c) of column 12 required him to
•
         state the particulars as on the date of filling up of attestation
         form. He also contended that being a regular confirmed               D
         employee, his services could not have been terminated without
         an enquiry under the relevant service rules, and the termination
         is violative of Article 311 of the Constitution of India. On the
         other hand, the respondents contend that the matter is squarely
         covered by the decision of this Court in Ram Ratan Yadav.            E
         The respondents contend that the said decision recognised the
         right of the employer to terminate any employee without an
         enquiry, if it is found that he had given false or incorrect
    ·J
         information in the personal attestation form. On the contentions
         urged, two questions arise for consideration:                        F

             (i) Whether the ratio decidendi of the decision in Ram
             Ratan Yadav apply to this case? Does it hold that state
             government could dismiss or remove the holder of a civil
             post, without any enquiry or opportunity to show cause,
                                                                              G
             once it is found that he has given incorrect/false information
             in the personal attestation form?

             (ii) Whether the termination of the appellant is valid?

                                                                              H
    242    SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.


A Re: Question (i)

       6. We may first refer to the context in which the issue was
  examined in Ram Ratan Yadav (supra). Yadav who possessed
  the degrees of BA, B.Ed. and M.Ed. was appointed as a
  Physical Education Teacher by the Kendriya Vidyalaya
B
  Sangathan vide the appointment order dated 16.12.1997.
  Clause (4) of the offer of appointment stated that he would be           ·:,__
  on a probation for a period of two years. Clause (8) of the offer
  of appointment required him to submit an attestation form, after
c duly filling it with the required particulars. Clause (9) of the offer
  of appointment provided that suppression of any iriformation will
  be considered a major offence for which the punishment may
  extend to dismissal from service.
                                                                           ~

       (6.1.) Yadav submitted an attestation form dated
D 26.6.1998, wherein he answered two of the queries thus:

          "12. Have you ever been prosecuted/kept under detention
          or bound down/fined, convicted by a court of law for any
          offence? - 'No';
E         13. Is any case pending against you in any court of law at
          the time of filling up this attestation form? - 'No'."

  On the said attestation form being referred for verification, it
  was found that the information furnished by him was false and
F that  a criminal case under section 323, 341, 294 and 506-B
  read with section 34 IPC was pending against him. He was
  therefore terminated from service, by the Sangathan, by
  memorandum dated 7/8.4.1999, as being unfit for employment.
  The Tribunal upheld the termination. The High Court set aside
G his termination on the ground that the criminal case against him
  was subsequently withdrawn by the Government and the
  offences alleged did not involve any moral turpitude so as to
  disqualify him for employment. The said decision was reversed
  by this Court. This Court held that the purpose of requiring an
  employee to furnish information under clauses 12 and 13 of the
H
 KAMAL NAVAN MISHRA v. STATE OF M.P. & ORS.                   243
           [R.V. RAVEENDRAN, J.]
attestation form was to assess his character and antecedents A
for continuation in service; that suppression of material
information and making a false statement in reply to queries
(12) and (13) had a clear bearing on the character, conduct and
antecedents of a person employed as a teacher in a school;
and therefore the employer was justified in terminating his B
service during the period of probation. This court did not accept
Yadav's claim that he did not understand the contents of the
questions which were in English, as it found that the Tribunal
had recorded a finding of fact, after examination of the record,
that Yadav was highly qualified and was aware of the c
significance and meaning of the said queries, and had
deliberately entered false responses. This court also pointed
out that neither the gravity of the criminal offence nor the ultimate
acquittal therein was relevant when considering whether a
probationer who suppresses a material fact (of his being
                                                                      0
involved in a criminal case, in the personal information furnished
to the employer}, is fit to be continued as a probationer.

     (6.2.) Therefore, the ratio decidendi of Ram Ratan Yadav
is, where an employee (probationer) is required to give his
personal data in an attestation form in connection with his           E
appointment (either at the time of or thereafter), if it is found
that the employee had suppressed or given false information
in regard to matters which had a bearing on his fitness or
suitability to the post, he could be terminated from service
during the period of probation without holding any inquiry. The       F
decision dealt with a probationer and not a holder of a civil post,
and nowhere laid down a proposition that a confirmed
employee holding a civil post under the State, could be
terminated from service for furnishing false information in an
attestation form, without giving an opportunity to meet the           G
charges against him.

Re: Question (ii}

     7. A confirmed government servant is the holder of a civil
                                                                      H
    244 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
                                                                        I .
                                                                               I
A post entitled to the benefits of the safeguards provided by
  Article 311 of the Constitution. On the other hand, a probationer
  does not have any substantive right to hold the post, and is not
  entitled to the protection under Article 311. A probationer's
  services can be dispensed with during the period of probation,
8 or at the end of the probation period, if his service is found to
  be unsatisfactory or if he is found to be unfit for appointment.
  In Ajit Singh vs. State of Punjab - 1983 (2) SCC 217, this                  •
                                                                              '·
  Court explained why termination of a probationer is permissible
  without an inquiry:
c       "If a servant could not be removed by way of punishment
        from service unless he is given an opportunity to meet the
        allegations if any against him which necessitates his
        removal from service, rules of natural justice postulate an
        enquiry into the allegations and proof thereof. This
D       developing master servant relationship puts the master on
        guard. In order that an incompetent or inefficient servant
        is not foisted upon him because the charge of
        incompetence or inefficiency is easy to make but difficult
        to prove, concept of prohibition was devised. To guard
E       against error of human judgment in selecting suitable
        personnel for service, the new recruit was put on test for a               r
        period before he is absorbed in servi~e or gets a right to
        the post. Period of probation gave a sort of locus
        pententiae to the employer to observe the work, ability,
F       efficiency, sincerity and compete.nee of the servant and if
        he is found not suitable for the post, the master reserved
        a right to dispense with his service without anything more
        during or at the end of the prescribed period which is styled
        as period of probation. Viewed from this aspect, the courts
G       held that termination of service of a probationer during or
        at the end of a period of probation will not ordinarily and
        by itself be a punishment because the servant so
        appointed has no right to continue to hold such a post any
        more than a servant employed on probation by a private
H
        employer is entitled to. (See Purshotam Lal Dhingra v.

                                                                               .,
       KAMAL NAYAN MISHRA v. STATE OF M.P. & ORS.                245
                 [R.V. RAVEENDRAN, J.]
          Union of India_- 1958 SCR 828). The period of probation       A
          therefore furnishes a valuable opportunity to the master to
          closely observe the work of the probationer and by the time
          the period of probation expires to make up his mind
          whether to retain the servant by absorbing him in regular
          service or dispense with his service."                        B

           8. Ram Ratan Yadav (supra) held that the services of a
     probationer who gave wrong information in regard to material
     particulars having a bearing on his fitness or suitability for
     appointment, can be terminated without giving any opportunity C
     to show cause against the proposed termination. But once a
     probationer is confirmed in the post, his position and status
     becomes different as he gets the protection of Article 311. If it
     is found that the government servant whc is holder of a civil post,
     has given any false information during the course of
     employment, that will have to be treated as a misconduct. and D
     punishment can be imposed only after subjecting him to an
     appropriate disciplinary proceedings as per the relevant
     service Rules.

            9. There are also several other features in this case which E
      distinguish it from Ram Ratan Yadav. First is that Ram Ratan
      Yadav related to an employee of Kendriya Vidyalaya
      Sangathan, who did not have the protection of Article 311 of
     the Constitution of India, whereas in this case we are
     concerned with a government servant protected by Article 311. F
     Second is that the attestation form in this case, was required
     to be furnished by the employee, not when he was appointed,
     but after fourteen years of service. The third is that while action
     was promptly taken against the probationer, in the case of Ram
     Ratan Yadav, within the period of probation, in this case even G
     after knowing that appellant had furnished wrong information,
"'   the respondents did not take any action for seven long years,
     which indicated that the department proceeded for a long time
     on the assumption that the wrong information did not call for
     any disciplinary or punitive action. The belated decision to H
    246   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A terminate him, seven years later was unjustified and violative
  of Article 311.

          10. If the 'appellant had been issued a charge sheet or a
    show cause notice he would have had an opportunity to explain
    the reason for answering the queries in column 12 in the manner
8
    he did. He could have explained that he did not understand the
    queries properly and that he was instructed to furnish the
    information as on the date of appointment. In fact his contention
    that he was required to answer the queries in column (12) with
    reference to the date of his appointment, finds support from the
C   termination order, which says that the appellant was terminated
    for giving wrong information and concealment of facts in the
    attestation form at the time of initial recruitment. This clearly
    implies that he was expected to reply the queries in column 12
    with reference to his initial appointment, even though clauses
D   12(b) and (c) of the form stated that the information should be
    as on the date of signing of the attestation form. The
    explanations given by the appellant, would have certainly made
    a difference to the finding on guilt and the punishment to be
    imposed. But he could not give the said explanations as there
E   was no show cause notice or enquiry. The termination order is
    also unsustainable, as the statement therein that the appellant
    had given wrong information and concealed the facts at the
    time of initial recruitment, is erroneous.
        11. The learned counsel for respondents drew our attention
F to the Instructions to the Employees in the preamble to the
  Attestaticin Form and the undertaking contained in the
  verification certificate by the employee at the end of the
  attestation form, which puts him on notice th<:t any false
  information could result in termination 0f his service without
G enquiry. It is contended that as thE attestation form stated that
  an employee could be terminated without notice, if he furnishes
  false information, the employee is estopped from objecting to
  termination without notice. The said contention may merit
  acceptance in the case of a probauoner, but not in the case of
H
      KAMAL NAYAN MISHRA v. STATE OF M.P. & ORS.                    247
                [R.V. RAVEENDRAN, J.]
     a confirmed government servant. No term in the attestation             A
     form, nor any consent given by a government servant, can take
     away the constitutional safeguard provided to a government
     servant under Article 311 of the Constitution. A seven Judge
     Bench of this Court held in Moti Ram Deka v. General
     Manager, N.E. Frontier Railway, [1964 (5) SCR 683], observed           B
     as follows while negativing a contention that a person who
     enters service by executing a contract containing a rule contrary
'    to Article 311, with open eyes, cannot be permitted to challenge
     the validity of the said rule or the contract:
          "In our opinion, this approach may be relevant in dealing         C
          with purely commercial cases governed by rules of
          contract; but it is wholly inappropriate in dealing with a case
          where the contract or the Rule is alleged to violate a
          constitutional guarantee afforded by Article
          311 (2); ............................... Let us then test this    D
          argument by reference to the provisions of Art. 311 (1 ). Art.
          311(1) provides that no person to whom the said article
          applies shall be dismissed or removed by an authority
          subordinate to that by which he was appointed. Can it be
          suggested that the Railway Administration can enter into          E
          a contract with its employees by which authority to dismiss
          or remove the employees can be delegated to persons
          other than those contemplated by Art. 311(1)? The answer
          to this question is obviously in the negative, and the same
          answer must be given to the contention that as a result of        F
          the contract which embodies the impugned Rules, the
          termination of the railway servant's services would not
          attract the provisions of Art. 311 (2), though, in law, it
          amounts to removal."
          12. We also find from an examination of the terms of the          G
    ~attestation form that termination without notice or inquiry was
     contemplated only in the context of furnishing false information
     in and around the time of the appointment. Note (1) of the
     preamble warns that "the furnishing of false information or
     suppression of any factual information in the attestation form         H
    248 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A would be a disqualification and is likely to render the candidate
    unfit for employment. Similarly the certificate at the end of the
    attestation form states that "I am not aware of any circumstances
    which might impair my fitness for employment under
    government. I agree that if the above information is found false
s   or incomplete in any material respect, the appointing authority
    will have a right to terminate my services without giving notice
    or showing cause." Be that as it may.
        13. The termination of appellant without an inquiry or
  hearing was illegal and invalid. In the normal course, we would
C have set aside the termination and directed reinstatement with
  consequential benefits, reserving liberty to the employer to
  initiate disciptinary proceedings. But the peculiar facts of this
  case require us to adopt a slightly difference approach to do
  complete justice between the parties. We have already pointed
D out that there are clear indications that the appellant was
  bonaflde under the impression that he was required to give the
  particulars sought in column (12) of the form with reference to
  the date of his appointment. Further, the entire matter relates
  to an attestation form given in 1994 and appellant has already
E been out of service for more than seven years on account of
  the illegal termination from service without inquiry on 7.3.2002.
  We are therefore of the view that interests of justice would be
  served if the appellant is reinstated with continuity of service
  and other consequential benefits, dispensing with any further •
F disciplinary action. The appellant will not entitled to any salary
  for the period 7.3.2002 till today.
       1'4. We accordingly allow this appeal, set aside the

                                                                        -
                                                                        •
  judgments of the learned Single Judge and the Division Bench.
  The writ petition filed by the appellant before the High Court is        t~ '
G allowed, setting aside the termination order dated 7.3.2002.          ', ,..}
                                                                        ;r
  Respondents are directed to reinstate the appellant with ..
  continuity of service and other consequential reliefs (except
  salary for the period 7.3.2002 till date).
H RP.                                              Appe8' allowed.