Employer Not Compulsorily Required To Sack Employee For Suppression Of Pendency Of A Criminal Prosecution: Bombay High Court

Amisha Shrivastava

7 May 2023 5:38 AM GMT

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  • Employer Not Compulsorily Required To Sack Employee For Suppression Of Pendency Of A Criminal Prosecution: Bombay High Court

    The Bombay High Court recently clarified that an employer is not bound to terminate an employee who suppresses the fact about the pendency of a criminal case against him.A division bench of Justice Rohit B Deo and Justice Anil L Pansare said that suppression by a person on a higher post which may be sensitive in nature may be on a different pedestal than suppression by a Class IV employee who...

    The Bombay High Court recently clarified that an employer is not bound to terminate an employee who suppresses the fact about the pendency of a criminal case against him.

    A division bench of Justice Rohit B Deo and Justice Anil L Pansare said that suppression by a person on a higher post which may be sensitive in nature may be on a different pedestal than suppression by a Class IV employee who is not on a sensitive post.

    “... observations in paragraph 32 (of Avtar Singh v. Union of India) extracted supra, cannot be read or understood as laying down as an absolute proposition that the employer has no option but to terminate the employment, if the employee suppressed the pendency of a singular criminal prosecution. The decision will have to be taken by the employer on relevant considerations…Suppression by an aspirant to uniformed service or disciplined force or to higher post may conceivably stand on a different pedestal than a suppression by a Class IV employee, who is aspirant for a post which is not per se sensitive”, the court held.

    The court said that other factors such as the nature of accusation and appointment on compassionate ground can be taken into consideration while deciding whether or not to terminate the employee.

    Thus, the court directed Maharashtra State Electricity Distribution Company Limited (MSEDCL) to reconsider its decision to terminate a peon appointed on a compassionate basis, who suppressed a pending criminal case against him.

    The petitioner was appointed as a peon on compassionate ground due to the death of his father. The character and antecedents verification form attested with the appointment order had a specifical question as to whether any criminal prosecution is pending against the candidate.

    The appointment letter also included a warning that furnishing of false information or suppression of information would lead to disqualification and likely render the candidate unfit for employment.

    Under Clause 16 of the Classification and Recruitment Regulations, 2005, any candidate who knowingly gives false information or suppresses material information, which would ordinarily debar him from getting appointment, is liable to be dismissed from service.

    The petitioner did not fill the information in the verification form. When MSEDCL sought a police report as part of the character verification, it was revealed that the petitioner is an accused in a case.

    A show cause notice was served to the petitioner. The petitioner in his response said that he is not conversant in English and made an error. He also claimed that he is falsely implicated and only a small role is attributed to him as he meant to intervene in the incident to end the physical altercation.

    The court did not accept the justification that petitioner made an inadvertent error. The court also rejected the contention that the petitioner is only attributed a limited role in the case.

    The court relied on the judgement in Avtar Singh v. Union of India in which the Supreme Court held that non-disclosure of pending criminal case can be a ground for termination by itself and the employer’s ultimate action should be based on consideration of all relevant factors. Any employee who suppressed material information cannot claim unfettered right for continuity in service, but he has a right not to be dealt with arbitrarily, according to the Supreme Court.

    The court held that these observations of the SC do not lay down an absolute principle that the employer has to terminate the employee if he suppresses pendency of a singular criminal prosecution.

    The court said that in this case, certain special circumstances exist, and the employer could have considered them before deciding to terminate the employee. The court also emphasized that the employer has a choice in the matter and suppression may not result in termination of employment.

    The court directed MSEDCL to reconsider its decision. The petitioner is not entitled to reinstatement or any other relief till MSEDCL has taken a fresh look at the matter, the court said. However, if after reconsidering MSEDCL takes a favourable decision towards the petitioner, then that order will date back to the date of termination, the court held.

    Case no. – Writ Petition No. 4925 of 2019

    Case Title – Buddheshwar S/o Babulal Lilhare v. Maharashtra State Electricity Distribution Company and Ors

    Citation: 2023 LiveLaw (Bom) 239

    Click Here To Read/Download Judgment

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