Termination by bank
suneetha Jain
(Querist) 01 November 2017
This query is : Resolved
Sir, My Brother who was terminated by Public Sector Bank in May 2013 due to non disclosure of pending criminal case against him at the time of appointment (The case is closed in lok adalat in Jan 2013). So, we went to High Court. High Court relied on the Judgement of Supreme Court (Avtar Singh) and issued an order to set the termination order issued by Bank aside based on point (4) of Avtar Singh Case as case is Trivial and no conviction is there and asked the Bank to issue a fresh reasoned order by keeping in view of guidelines in Avtar Singh Case. The Avtar Singh Case Summary is as follows:
We have noticed various decisions and tried to explain andreconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(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 suppression or false mention of required information.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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 knowledge of employer, any of the following recourse appropriate to the case may be adopted: -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) 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 may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
Before a person is held guilty of suppressio veri or suggestion falsi, knowledge of the fact must be attributable to him.
But, Bank replied that as per Avtar Singh Case, Point (1) shows that non disclosure is a serious crime and hence, we are issuing that termination is valid.
Now, What should we do?? Even though High Court clearly set aside the termination order, Bank authorities did not set aside the termination order. Please advise us..
Sudhir Kumar, Advocate
(Expert) 02 November 2017
You have not disclosed :-
(1) what was the charge.
(2) whether this charge reflcted in Police verification.
(3) how bank knew about the charge.
(4) what was the length of service.
(5) whey he did not disclose the charge in verification papers.
finallly how the case is identical to Avtar Singh case and how it is different.
Ms.Usha Kapoor
(Expert) 02 November 2017
I agree with expert Sudhir Kumar. nothing more to add.
suneetha Jain
(Querist) 02 November 2017
1. The Charge is in 2009, my brother's marriage is fixed with a girl of political family. But, he did not like the marriage as he wants to marry another girl. As our family is adamant to the marriage with girl of political family, he went to father of girl from political family before the day of marriage and told him he will not marry. Aggrieved by this, they filed a criminal case on all our family that we have taken dowry before marriage and cheated them. We did not take dowry from them before marriage and even though they filed false case with out proofs, police filed a case because police and politics are one and the same. Later, the issue is settled by elders in the same year.
2. My brother joined the bank in Mar 2011 and police verification in Jul 2011 by bank revealed them pending case.
3. The bank came to know about pending case through police verification.
4. Mar 2011 to May 2013 is length of service (More than 2 months after probation period)
5. He did not disclose because the matter is settled way back in 2009; No summons received from 2009 till his joining the Bank,
Avtar Singh case is raised by Hon'ble High Court. So, Court felt that it is relating with him.
I think your doubts are cleared.
Sudhir Kumar, Advocate
(Expert) 02 November 2017
So your brother consciously hidden the act while reply to the question as to whether candidate has ever been prosecuted/arrested and whether any criminal case is pending ever registered.
He believed everybody around to be fool and never expected the police may be doing job diligently.
It is a mystery as to when a criminal case (non-compoundable ) is registered then who are "elders" to settle the case. You still have to disclose truth.
please also bear that the nature of allegation is such that it is not only criminal misconduct but also professional misconduct for govt servant (i.e. dowry demand). Anyway he was not in service at that time.
Sudhir Kumar, Advocate
(Expert) 02 November 2017
The bank has probably not allowed him to complete probation during pendancy of criminal case. In that matter their action is perfectly right and absolutely lenient to the candidate.
Sudhir Kumar, Advocate
(Expert) 02 November 2017
You are surprised why I call bank's action lenient.
They have terminated him and keeping him still eligible for any govt employment again including the post from which terminated in same bank.
On the contrary they had a harsher option. They could have initiated a disciplinary case. Kept him in service during the Inquiry. Then after inquiry dismiss him from service rendering him ineligible for any public employment. You can challenge the termination and if successful the bank may be compelled to do so.
Guest
(Expert) 02 November 2017
Ms.Usha Kapoor Mr.Sudhir Kumar had several times pointed out and even my self had requested you several times to mention Mr before the names Please. Hope you would understand atleast now.
Kumar Doab
(Expert) 02 November 2017
Your own very able Lawyer has handled the case aptly and HC has given you the relief.
What is the opinion of your own counsel for further action?
Kumar Doab
(Expert) 02 November 2017
The employee/citizen should consult before acting on his/her own. If OP had NO evidence the employee/citizen could have tried to get acquitted on merits.
If employee/citizen was unwilling to get married he could have discussed with family well in time and employee/citizen family could have called off the marriage with due preparation and care.
P. Venu
(Expert) 03 November 2017
What, exactly, is the alleged information which the employee is stated to have suppressed?
The bank is bound to implement the decision of the High Court, unless it is the aside by the Apex Court. But, what exactly is the order passed by the High Court? It appears that you have not disclosed the complete facts.
Kumar Doab
(Expert) 04 November 2017
The HC has decided the matter and provided relief after going thru contentions of employee, employer, facts case laws placed before court.
After HC has decided the matter and if the employer and IT’s attorney’s have not issued fresh reasoned order (in writing or in writing in reasonable time) the employee and lawyer of employee have to proceed to agitate a afresh.
Kumar Doab
(Expert) 04 November 2017
You have posted your version and it does not seem to be bad.
Since employer is unwilling what is the recourse and remedy suggested by your own counsel.
Guest
(Expert) 04 November 2017
Ms. Suneetha,
Your description lacks some clarity. On one hand you have stated, " matter is settled way back in 2009" while on the other you have merely stated, "No summons received from 2009 till his joining the Bank."
Mere non-receipt of summons is not the cause and mode of settlement of the case. If a criminal case was filed, there must have be some judgment in favour of your brother if the case was settled. That you have not mentioned.
Further, if the case was settled in 2009, there was no cause to mention the case to be pending in the court of law.
So, please reconcile with the position, what is the exact position.
However, if the termination was set aside by the HC, the bank was obliged to join back your brother on his post.
