Summary
The Supreme Court set aside the termination of a probationary technician for declaring no pending criminal case when a non-cognizable report under Sections 323 and 504 IPC had been registered against him. Suppression presupposes knowledge; the employee proved by police certificates that he was never summoned, arrested or questioned, and the employer had treated the antecedent as automatically disqualifying without considering its nature, the post or his later deletion from the accused.
Issues
- Whether the writ petition challenging the termination was maintainable despite the remedy under the Industrial Disputes Act, 1947 and alleged disputed questions of fact.
- Whether an employee can be held to have suppressed or falsely declared a criminal antecedent of which he had no knowledge.
- Whether the termination, made without considering the nature of the antecedent and the post, was sustainable.
Provisions considered
- Remedy under the Act (no section specified), Industrial Disputes Act, 1947The employer argued the employee should have used the remedy under the Act. The Court held that an alternative remedy is not an absolute bar to writ jurisdiction, particularly where the legality of the termination order itself is challenged. (¶¶ 15, 18)
Held
- The existence of an alternative remedy, such as under the Industrial Disputes Act, does not absolutely bar writ jurisdiction, especially where the challenge is to the legality of the termination order itself. (¶ 18)
- Following Avtar Singh v. Union of India, termination is not an automatic consequence of a criminal antecedent; the employer must apply its mind to the form of suppression, the outcome of the case, the nature of the employment and offence and any special circumstances. (¶¶ 20, 21, 22, 23)
- Before terminating for suppression of criminal antecedents, the employer must undertake a two-pronged enquiry: first, whether there was in truth suppression or false information having regard to the candidate's knowledge at the time; second, whether, considering the type of suppression, the allegations, the gravity of the offence, the post and its duties, and the outcome of the proceedings, continuance in service is not feasible. A termination is sustainable only if both are undertaken. (¶ 24)
- Knowledge of a fact is a prerequisite for its non-disclosure; a candidate cannot be held to have suppressed or falsely declared a criminal antecedent that was not shown to be within his knowledge. The onus of establishing such ignorance lies on the candidate, and a bare plea without cogent material will not suffice. (¶¶ 31, 32)
- The employee discharged that onus through a police certificate of no adverse entry issued after the report was registered and a later certificate that he was never called, arrested or questioned and that his name was deleted for want of evidence; the employer's suggestion that he must have known because his parents were named was mere surmise. (¶¶ 26, 27, 28, 29, 30, 32)
- The employer also failed the second prong, having presumed the antecedent automatically disqualifying without findings on the offence, its bearing on the post or the subsequent deletion, so the termination was illegal and without application of mind. (¶¶ 33, 34)
Result
Appeal allowed; termination order set aside and the appellant directed to be reinstated forthwith with all consequential benefits, back wages limited to 50% payable within eight weeks, failing which interest at 6% per annum from the date due.