KAMAL NAYAN MISHRA v.

STATE OF M.P. & ORS. (Civil Appeal No. 8317 of 2009)

DECEMBER 7, 2009 [R.V. Raveendran and K.S. Radhakrishnan, JJ.]

[2009] 16 (ADDL.) S.C.R. 238

The following Order of the Court was delivered

O R D E R

R.V. RAVEENDRAN J. 1. Leave granted. Heard the 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 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 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 :

SI. No. Query Answer

12(a)  Have you ever been arrested, prosecuted, 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 appearing at its  

examinations/selections  or debarred from taking any examination rusticated  

by any University or any other educational authority  institution? No

12(b)  Is any case pending against you in Court of  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 particulars  of the case,  

arrest detention, fine, conviction sentence etc, and the nature of  the case  

pending in the Court/University/Educational authority, etc. at the time of filling  

up this or should be given. No

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 respect, the appointing authority may  

terminate him 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  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 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 Single  Judge of  the  High Court  dismissed the  writ  

petition by order dated 11.10.2007, upholding the termination, relying upon  

the  decision  of  this  Court  in  Kendriya  Vidalaya  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.

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 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 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.  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  

information in the personal attestation form. On the contentions urged, two  

questions arise for consideration:  

(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, 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?

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 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  duly filling it  with the required particulars.  

Clause  (9)  of  the  offer  of  appointment  provided  that  suppression  of  any  

information will be considered a major offence for which the punishment may  

extend to dismissal from service.

(6.1.) Yadav submitted an attestation form dated 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’;  

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 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  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 attestation form was to assess his  

character  and antecedents  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 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 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  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 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 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 charges against him.  

Re: Question (ii)

7. A confirmed government servant is the holder of a civil 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, 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  

an inquiry:

“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  

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  against  error  of  

human  judgment  in  selecting  suitable  personnel  for  service,  the  new  

recruit was put on test for a period before he is absorbed in service or  

gets  a  right  to  the  post.  Period  of  probation  gave  a  sort  of  locus  

pententiae to  the  employer  to  observe  the  work,  ability,  efficiency,  

sincerity and competence 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 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  employer  is  

entitled to. (See  Purshotam Lal Dhingra v. Union of India – 1958 SCR  

828). The period of probation 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.”

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  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 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  an  appropriate  

disciplinary proceedings as per the relevant service Rules.  

9. There are also several other features in this case which 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. 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  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 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 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 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 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 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  to  the  

Instructions to the Employees in the preamble to the Attestation Form and the  

undertaking contained in the verification certificate by the employee at the  

end  of  the  attestation  form,  which  puts  him  on  notice  that  any  false  

information  could  result  in  termination of  his  service  without  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 probationer, but not in the case of a  

confirmed  government  servant.  No  term  in  the  attestation  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 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  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 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 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 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 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 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 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 have set aside the termination  

and directed reinstatement with consequential  benefits,  reserving liberty to  

the employer to initiate disciplinary 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  out  that  there  are  clear  

indications that the appellant was bonafide 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  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 disciplinary action. The appellant will not entitled to any salary for the  

period 7.3.2002 till today.

14. 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 allowed, setting aside the termination order dated 7.3.2002.  

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).