Concealment of material facts at the time of seeking employment renders the contract of employment voidable, justifying termination of services.

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner seeks relief of setting aside of the order dated 9.10.2012 passed by the respondent No.2/BHEL. By the impugned order, the offer of appointment given to the petitioner for the post of Supervisor Trainee (HR) was recalled on the ground that the petitioner had concealed material facts at the time of seeking employment. This letter dated 9.10.2012 reads as under:-

“Ref. No.PA:HRM:101-05 Dated: 09.10.2012

Ms. Nidhi Kaushik

C-2/38A

Yamuna Vihar,

Delhi, Pin-110053

Sub: Provisional Offer of Appointment-Cancellation

This has reference to Provisional Offer of Appointment dated 3rd September, 2012, for the post of Supervisor Trainee (HR).

You submitted the attestation form on 24th Sept., 2012, in which you have indicated that there is case pending against you under Domestic Violence Act. It is noticed that you had suppressed this material fact in the Bio-data form, which you filled on 18th June, 2012 at the time of interview.

In this connection your attention is invited to the clause published on the Web site for recruitment which provides:

“ In case it is detected at any stage of recruitment process that the candidate has suppressed any material fact(s), the candidature of such candidates is liable to be rejected.”

Accordingly your candidature is rejected and the Provisional Offer of Appointment is hereby withdrawn and cancelled.

Yours faithfully,

For & on behalf of BHEL

(Radhika Jain)

Manager (HR)”

2. Counsel for the petitioner argues before me the following aspects:-

(i) Reply given in para 12 of the Bio data form was not incorrect because no criminal case was pending against the petitioner and against the petitioner only summons were issued by the Metropolitan Magistrate in a complaint case filed under the Domestic Violence Act, 2005 and therefore it cannot be said that a criminal case was pending.

(ii) Petitioner cannot be said to be guilty of concealment of facts inasmuch as even assuming there may have been concealment in the Bio-data form para 12, however when subsequently an attestation form was given, the case was disclosed by the petitioner.

3. In my opinion, the distinction which is sought to be drawn by the petitioner that because disclosure was made before actual appointment, the same is sufficient and it cannot be said that an earlier aspect of non-disclosure in terms of para 12 of the Bio-data would be relevant, is an argument which does not have substance. As stated by the respondents in their counter-affidavit, as per the general instructions issued in Clause 7 of the general instruction in the advertisement it was clearly stated that the candidate must give all particulars correctly and if subsequently it is found that the candidate has furnished incorrect/false statements, the candidature of the candidate is liable to be rejected. It is further clarified in the advertisement that if any of the shortcomings are detected even after the appointment the candidate?s services are liable for suitable action including termination and prosecution. The respondent Nos.2 to 4 in their counter- affidavit have rightly referred to Clauses 20 and 21 of the terms and conditions of the provisional offer of appointment in which it was stated that in case any wrong or incomplete or false information is being furnished and there has been suppression of facts, the services of the candidate will be terminated. The entire chain of documents being the advertisement and the terms and conditions given therein and the relevant conditions applicable for grant of appointment have necessarily to be read together and simply because there may be difference of dates cannot mean that those terms and conditions have to be read separately. In reality, all terms and conditions right till employment is given, forms part of the offer of contract of employment to be entered into and once there is found concealment of facts, such a contract having been entered into with misrepresentation or frau