ARUN Vs. DISTRICT & SESSIONS JUDGE

JUDGEMENT

(1.) THIS writ petition came up for hearing in the morning when a request was made by the learned counsel for the petitioner for adjournment to file the rejoinder affidavit. The counter affidavit was filed way back in January, 2013 (i.e as many as six months back), and therefore, request for filing rejoinder was declined. The request for passover was however acceded to. On the second call, during the course of hearing I told the counsel for the petitioner that whatever is the rejoinder with him, he may give the same to the Court, however, this rejoinder has not been given to the Court. Counsel for the petitioner thereafter more or less concluded his arguments because the issue in the present case which was argued on behalf of the petitioner is that the petitioner was appointed on probation, that probation period came to an end, and the petitioner therefore should be taken as having been confirmed to his appointment by being co-related to the original date, however, none of these arguments have any merit because the defence of the respondent/District & Sessions Judge, Delhi is that the issue is not of entitlement of confirmation after probation but invalidity of original appointment because the petitioner had concealed the fact that, at the time he joined the service, an FIR was registered against him, and though the petitioner as per the affidavit which was required to be filed and filed with respondent should state whether any FIR is registered or any criminal case is pending, yet the petitioner gave an affidavit that no FIR is registered and no criminal case is pending. This is specifically stated by the respondent in the counter affidavit and Ms. Avnish Ahlawat, counsel for the respondent has also shown to me the original notarised affidavit given by the petitioner dated 15.6.2010, which records that the petitioner is not involved in any kind of criminal activity and no criminal case has been registered or pending trial in any court of law against the petitioner in Delhi or any part of the country since his birth till the date of the affidavit.

(2.) THEREFORE , the issue is not of confirmation of the petitioner after completing probation in the post but of invalidity of appointment because if the appointment is obtained by misrepresenting a fact, then, the contract of employment was voidable at the option of the respondent. Section 17 of the Contract Act, 1872 defines fraud and Section 18 defines misrepresentation. Concealment of a fact falls under both. Once the contract of employment is obtained by fraud or misrepresentation, then, as per Section 19 of the Contract Act, the contract is voidable at the option of the party against whom fraud or misrepresentation is committed. Respondent/District & Sessions Judge was thus entitled to and hence rescinded the contract thereby terminating the employment of the petitioner.

(3.) IT may be noted that the petitioner when called personally by the District & Sessions Judge to explain the factual position, he himself gave the judgement as passed by the Court of Ms. Ankita Sharma, Judicial Magistrate, First Class, Sonepat, Haryana and by which judgement the petitioner had been acquitted. This judgement, however, fortifies the fact that the petitioner took employment when there was an FIR No.197/2008 dated 4.9.2008 registered against the petitioner under Sections 323/325 read with Section 34 IPC. It is, therefore, clear that the petitioner had not only concealed the material facts but also had given a false affidavit that there is no criminal case pending, which is pending against the petitioner.