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CASE NO.: Appeal (civil)  1844 of 2007

PETITIONER: Shiv Kant Yadav

RESPONDENT: Indian Oil Corporation and Ors

DATE OF JUDGMENT: 09/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.    1844        OF 2007 (Arising out of SLP (C) No. 3938 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is the order passed by a Division  Bench of the Allahabad High Court dismissing the Writ  Petition filed by Shiv Kant Yadav, the appellant herein.  

       Background facts in a nutshell are as follows:

       Indian Oil Corporation (in short the ’Corporation’) invited  applications from desirous persons by offering advertisements  through publication in newspapers to select suitable persons  and grant Letter of Intent (in short ’LOI’) to award dealership of  SKO/LDO at Jaleshar, Dist. Etah. Appellant and several  others applied for the same. The Selection Board scrutinized  the applications on 28th and 29th November, 2003. Names of  the applicants in order of preference were indicated in the  panel of selected candidates, on the basis of which the  Corporation proposed to award dealership. They are as follows:  (i) appellant- Shiv Kant Yadav; (ii) respondent No.4- Smt. Usha  Sharma and (iii) Hari Om Singh who was not impleaded in the  writ petition.  Usha and Hari Om Singh filed complaints inter- se between themselves against aforesaid selection contending  that candidates did not disclose the correct information in  their applications and, therefore, were not qualified to get  dealership. The Corporation held an enquiry on the basis of  the complaint made against the appellant and relying on the  report received after enquiry passed the order cancelling the  selection of the appellant. Consequently, the Head Office of the  Corporation directed the concerned authority to cancel the  selection of the appellant and to issue LOI in favour of  respondent No.4 after ensuring that there was no  complaint/court case pending against the proposed allottee.  

       The order was challenged by the appellant by filing a writ  petition.  

       Appellant in the Writ Petition took the stand that as per

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the enquiry report the total income of the appellant had been  fixed at Rs.1,64,000/- per annum vis-‘-vis  Rs.84,000/- as    disclosed in his application form. The discrepancy has no  bearing as the eligibility criteria was that the income should  not be above rupees two lakhs in the last financial year. The  complaint made by Hari Om Singh against Smt. Usha was  pending and no LOI could be issued without holding an  enquiry.         

       The Corporation took the stand that the Executive  Summary report discloses that incorrect information had been  given and it has been specifically made clear that any  concealment of facts/mis-information would result in rejection  of the application.  

       The decision not to allot the dealership to the appellant  was on account of the fact that he did not correctly disclose  the income and thus violated his own declaration in his  undertaking incorporated in the application.  

       With reference to the application form and the  undertaking the High Court held that it was obviously clear  that the income was not fully disclosed. The plea that the  income was less than rupees two lakhs, did not materially  affect the eligibility of the appellant was not accepted and  accordingly, the writ petition was dismissed.

       In support of the appeal, it is submitted that there was  no mens rea and mere mistake and unintended omission  cannot be a ground for cancellation. The income of S.K.  Fertilizers was not necessary to be disclosed. In the affidavit  before the Selection Board it was clearly stated that S.K.  Constructions may have come into existence in 2002-2003.  

       Learned counsel for the respondents on the other hand  supported the order saying that once there is suppression in  view of the undertaking the allotment was to be cancelled.  

The fact of making a wrong statement in the application  form and the effect of the undertaking though rendered in  different context in Kendriya Vidyalaya Sangathan and Ors. v.  Ram Ratan Yadav (2003 (3) SCC 437), State of A.P. and Anr. v.  T. Suryachandra Rao (2005 (6) SCC 149) and Bhaurao Dagdu  Paralkar v. State of Maharashtra and Ors. (2005 (7) SCC 605)  need to be noted.

       In Kendriya Vidyalaya’s case (supra) it was noted as  follows:

"11. It is not in dispute that a criminal case  registered under Sections 323, 341, 294, 506- B read with Section 34 IPC was pending on the  date when the respondent filled the attestation  form. Hence, the information given by the  respondent as against columns 12 and 13 as  "No" is plainly suppression of material  information and it is also a false statement.  Admittedly, the respondent is holder of BA,  BEd and MEd degrees. Assuming even his  medium of instruction was Hindi throughout,  no prudent man can accept that he did not  study English language at all at any stage of  his education. It is also not the case of the  respondent that he did not study English at  all. If he could understand columns 1-11

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correctly in the same attestation form, it is  difficult to accept his version that he could not  correctly understand the contents of columns  12 and 13. Even otherwise, if he could not  correctly understand certain English words, in  the ordinary course he could have certainly  taken the help of somebody. This being the  position, the Tribunal was right in rejecting the  contention of the respondent and the High  Court committed a manifest error in accepting  the contention that because the medium of  instruction of the respondent was Hindi, he  could not understand the contents of columns  12 and 13. It is not the case that columns 12  and 13  are left blank. The respondent could  not have said "No" as against columns 12 and  13 without understanding the contents.  Subsequent withdrawal of criminal case  registered against the respondent or the  nature of offences, in our opinion, were not  material. The requirement of filling columns 12  and 13 of the attestation form was for the  purpose of verification of character and  antecedents of the respondent as on the date  of filling and attestation of the form.  Suppression of material information and  making a false statement has a clear bearing  on the character and antecedents of the  respondent in relation to his continuance in  service.

12.      The object of requiring information in  columns 12 and 13 of the attestation form and  certification thereafter by the candidate was to  ascertain and verify the character and  antecedents to judge his suitability to continue  in  service. A candidate having suppressed  material information and/or giving false  information cannot claim right to continue in  service. The employer having regard to the  nature of the employment and all other  aspects had the discretion to terminate his  services, which is made expressly clear in para  9 of the offer of appointment. The purpose of  seeking information as per columns 12 and 13  was not to find out either the nature or gravity  of the offence or the result of a criminal case  ultimately. The information in the said  columns was sought with a view to judge the  character and antecedents of the respondent  to continue in service or not. The High Court,  in our view, has failed to see this aspect of the  matter. It went wrong in saying that the  criminal case had been subsequently  withdrawn and that the offences, in which the  respondent was alleged to have been involved,  were also not of serious nature. In the present  case the respondent was to serve as a Physical  Education Teacher in Kendriya Vidyalaya. The  character, conduct and antecedents of a  teacher will have some impact on the minds of  the students of impressionable age. The  appellants having considered all the aspects  passed the order of dismissal of the  respondent from service. The Tribunal after

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due consideration rightly recorded a finding of  fact in upholding the order of dismissal passed  by the appellants. The High Court was clearly  in error in upsetting the order of the Tribunal.  The High Court was again not right in taking  note of the withdrawal of the case by the State  Government and that the case was not of a  serious nature to set aside the order of the  Tribunal on that ground as well. The  respondent accepted the offer of appointment  subject to the terms and conditions mentioned  therein with his  eyes wide open. Para 9 of the  said memorandum extracted above in clear  terms kept the respondent informed that the  suppression of any information may lead to  dismissal from service. In the attestation form,  the respondent has certified that the  information given by him is correct and  complete to the best of his knowledge and  belief; if he could not understand the contents  of columns 12 and 13, he could not certify so.  Having certified that the information given by  him is correct and complete, his version  cannot be accepted. The order of termination  of services clearly shows that there has been  due consideration of various aspects. In this  view, the argument of the learned counsel for  the respondent that as per para 9 of the  memorandum, the termination of service was  not automatic, cannot be accepted."  

       It is to be noted that the enquiry report relates to S.K.  Fertilizers whereas the affidavit alleged to have been filed  where reference was made to S.K. Construction has no  relevance. It is not in dispute that in the affidavit the appellant  had stated about the inheritance of income yielding property.   In the report after taking note of the appellant’s stand it was  concluded as follows:

"Comments: Sh. Shiv Kant Yadav has admitted  through affidavit that he has inherited two  houses from his father, which is being used for  personal use only and as such there is no  income in the year 1999-2000 on this account  (Annex-c). He has also admitted to be the  owner of two shops which are currently not in  use and lying vacant. With regard to three  vacant shops, I do not agree since  all the nine  shops, which he has shown me at  the time of  my visit comes under the joint property and  since six shops have been given on rent,  automatically Sh Shiv Kant Yadav gets one  third share of the joint property. However,  complainant has produced a letter issued by  Nagar Panchayat Jaithra dated 26-03-04  (Annex-H) stating that Sh Shiv Kant Yadav,  s/o Veri Singh Yadav has Rs.14,000/- per  month towards rental from shops and  Rs.3,000/- per month towards rental from  house. Thus, the income for the year 1999- 2000  works out to be approximately  Rs.68,000/- towards his share from the joint  property. Enclosed annexures. The allegation  stands proved and the incomes from house  and shops have not been shown in the

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application."

       There was a requirement to disclose the true and correct  fact which does not appear to have been done.  

       The undertaking reads as follows:

"That I am fully aware that Indian Oil  Corporation (name of the Oil Company) under  its policy will not appoint me as their  dealer/distributor, if I am employed. I shall  have to resign from the service and produce  proof of acceptance of my resignation by my  employer to Indian Oil Corporation Ltd. (Name  of the Oil Company) before issuance of Letter  of Appointment for the  dealership/distributorship.

That if any information/declaration given by  me in my application or in any document  submitted by me in support of my application  for the award of SKO/LDO  dealership/distributorship or in this  undertaking shall be found to be untrue or  incorrect or false Indian Oil Corporation (name  of the Oil Company) would be within its rights  to withdraw the letter of intent/terminate the  dealership/distributorship (if already  appointed) and that, I would have no claim,  whatsoever, against Indian Oil Corporation  (name of the Oil Company) for such  withdrawal/termination."   

       In view of the undertaking that if any factual mis- statement or declaration is made that permits cancellation of  the allotment. The order of the High Court does not suffer from  any infirmity to warrant interference. The appeal is dismissed  with no order as to costs.