GOPALAN Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) MISREPRESENTING that he was not previously employed anywhere and making a false declaration to that effect, the petitioner joined the service of the State Bank of Travancore (Ist Respondent) as Cashier. Actually he was previously employed in the Posts and Telegraphs Department and while so employed he was under suspension during 30 71968 to 16-3-1969 in connection with Savings Bank fraud and temporary misappropriation of of Office cash. His service in that Department was terminated on 18-3-1969 under the central Civil Services (Temporary Service) Rules. Coming to know of his previous employment the 1st Respondent Bank asked the petitioner about it; and about his failure to produce a discharge Certificate from the previous employer as required by the conditions of appointment. He admitted his previous employment but did not offer any explanation regarding the non-disclosure of it nor any excuse for the false declaration that he was not previously employed anywhere. The Bank terminated his employment under Para. 522 (1) of the Sastri award, also known as the Bank Award. This termination is challenged in this writ petition.

(2.) PARA. 522 (1) of the Bank Award marked here as Ext. P7 so far as it is material for this case reads: "in cases not involving disciplinary action for misconduct and subject to clause (6) below, the employment of a permanent employee may be terminated by three months' notice or on payment of three months pay and allowances in lieu of notice. "

(3.) THE case on hand is one falling within the rule stated by Mathew J. of this Court (as he then was) in P. Kunhikrishnan v. State of kerala (1964 KLT. 1066= AIR. 1965 Kerala 149 ). THE learned judge said: "so, as the appointing authority was not satisfied about the character and antecedents of the petitioner, he was ineligible for being appointed to the service, which means that he had no qualification for being appointed to the service. THErefore Ext. P4 order can only mean that the government have finally decided that the petitioner was ineligible for appointment. It cannot therefore be said that the petitioner's service as Panchayat executive Officer was terminated by Ext. P4 as the appointment itself was void. " THE learned judge reiterated the same principle in O. P. No. 973 of 1968 as follows: "when a person who is ineligible for appointment to a post is appointed in ignorance of the fact that he is ineligible, the appointment is invalid. It was so held in Kunhikrishnan Nair v. State of Kerala 1964 KLT. 1066. THEre this Court followed the decision of the Court of Appeal in faramus v. Film Artistes' Association 1963 ALL. ER. 636 which was subsequently upheld by the House of Lords in Faramus v. Film Artistes Association. 1964 Apn cas. 925. Applying the reasoning in that case I think that since the petitioner did not possess one of the necessary qualifications for the post, he was not validly appointed to it. THE order of the Chairman in effect only declared that the petitioner was not validly appointed to the post and that he should be reverted. It was not an order cancelling a valid or even a voidable order; it was merely a declaration that there has been no appointment of the petitioner to the post. In the circumstances, I do not think that natural justice required that the petitioner should have been given an opportunity of being heard by the 1st or the 2nd respondent. I also do not think that in the circumstances there was any manifest injustice, so that interference under Art. 226 is required. " We are in respectful agreement with these principles stated above.