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Bombay HC: Employer can cancel employment if material facts hidden at time of joining


The Bombay High Court has held that if a person withholds facts about his conviction in a criminal case from hisprospective employer, he cannot as a matter of right claim the job even though he may have been pardoned or released on bond of good conduct for the offence.
An employer, upon learning that the applicant for a job had suppressed information about his conviction in a criminal case involving moral turpitude, can cancel the appointment of such person to the post, observed justices BP Dharmadhikari and PB Varale in a recent order.
"Before issuing an appointment order, the employer has got more power and can control entry of any person in service. Use of that power by employer Bank in present facts is neither arbitrary nor perverse," the judges observed.
The bench was hearing a petition filed by Amit Mohod, a resident of Amravati, challenging the decision of Bank of India to cancel hiscandidature for a clerk's post under the provisions of Section 10(1)(b)(i) of Banking Regulations Act as he had suppressed information about his conviction in a theft case.
Mohod and his friend Rahul were found guilty of stealing a motorcycle in 2003. However, the court, instead of punishing them, released them under the Probation of Offenders Act on bond of good conduct.
The petitioner contended that the Competent Court had given him the benefit of the provisions of the Probation of Offenders Act, 1958, and in view of the provisions of Section 12 thereof, "he cannot be subjected to any disqualification on account of the said disqualification".
The Judges noted, "the petitioner aspired to serve a Bank where the service warrants a confidence of the employer. He has been convicted of theft. The provisions made in Banking Regulation Act, 1958, prohibits a Bank from employing such person."
"The petitioner's candidature for Clerk post has been cancelled. Thus, he was not issued and never issued any appointment order. He did not possess a right to post also."
Referring to a Supreme Court judgement, the High Court bench said that the apex court has held that a person who indulges in suppression of material facts and obtains employment, does not deserve public employment.
"In this case, the petitioner was under obligation to disclose all relevant information and not to suppress material facts. The nature of employment which he desired to enter expected more transparency from him in this respect. His conviction for an offence involving moral turpitude needed to be disclosed," the judges observed.
"It is crystal clear that he (petitioner) did not disclose it and the respondent (Bank) learnt about it only in exercise of verification undertaken routinely through police machinery," the judges remarked while dismissing the petition.
"The petitioner had not stepped into employment and had no right to post. His vested right has not been taken away. On the contrary, for deliberate suppression of material fact by him, his candidature itself has been cancelled."
AS Chandurkar, counsel for the petitioner, argued that Section 12 of the Probation of Offenders Act has overriding effect on other laws which envisage any disqualification on account of such conviction. The lawyer said that the bank had come out with a story of suppression of material information by the petitioner to seek the job. However, this is not the reason disclosed in the order of cancellation of his candidature. He further said this cannot be overlooked by the Court and such reason cannot be supplemented by filing an affidavit in reply.
The Bank's counsel, Rohit Deo and UA Gosavi however, argued that the conviction of the petitioner for an offence involving moral turpitude was not in dispute. Section 10 of Banking Regulations Act empowers the bank to cancel the candidature of a person who suppresses information about conviction in a case, they submitted.
They said Mohod was informed on March 24, 2011, that his selection was contingent upon police verification of his character and antecedents. His appointment and confirmation thereafter in the Bank was subject to satisfactory report from Police. Thus, when he did not disclose his conviction and his release on probation while securing the job, he could make a grievance about cancellation of his candidature.

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