Karnataka High Court
Bangalore Metropolitan vs C K Jayarama on 21 July, 2011
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 21S? DAY OF JULY, 2011. | BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION No. 41258 OF 2010(L-KSRTC) mS BETWEEN : BANGALORE METROPOLITAN TRANSPORT CORPORATION... K H ROAD, BANGALORE |. BY ITS CHIEF TRAFFIC MANAGER ©. REP. BY ITS CHIEF LAW OFFICER. . sO _ a /,..PETITIONER (BY SMT. H R RENUKA, ADVOCATE) |» AND : oe C K JAYARAMA °-. S/O. KENCHEGOWDA AGE 51 YEARS. R/O. KAGGALIPURA GRA MA AND POST KANAKALAPURA MAIN ROAD: OPP.CGLLEGE, BANNERGHATTA ROAD "UTTARAHALLE HOBLI- _ BANGALORE NORTH TALUK BANG GALORE. , .. RESPONDENT (BY. SRI. MC PYATT, ADVOCATE} ; : THIS Writ PETITION IS FILED UNDER ARTICLES 226 AND 227 OF 'FHE, CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 25.12.2009 PASSED BY THE PRL.LABOUR a "COURT. BANGALORE IN REF.No.46/2007(ANNEXURE ~ E); AND in 06) Oren Le THIS PETITION COMING ON FOR PRL.HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: No ORDER
The pubic Road Transport Corporation aggrieved:
by the award dt. 23.12.2009 in Reference No.6 /2007 Bs of the Labour Court, Bangalore aliowing the reference made by the State Government ia , its" order te 19.10.2007 in exercise of jurisdiction under "Section 10(1}{c) of the Industrial Disputes Act 1947, for "short ID Act', setting aside the "order of di iismissal dt. 13.9.2004 of the-. "respondent driv er. anti directing his reinstatemer't by withhonding five annual increments with cumulative etleer as a ésoure of punishment, while, disentitling "him to: back wages, consequential benefits and granting © continuity of service, has presen ted this petition.
8. Respondent when appointed as a driver in the oo "Bangalore. Metropolitan Transport corporation on 20.7. 1992 produced a Transfer Certificate issued by the "Government Higher Secondary School, Konasandra, "Harohalli Hobli, Kanakapura Taluk certifying to be a student of that school, which on verification revealed was fabricated. The respondent having made a false.
representation, disciplinary proceeding was inflated by Inguiring authority, who "enacd ene . opportunity of hearing to the respondent and subi nitted a report dt. 2.9.2000 holding the. charge proved. The disciplinary authority by" ord ler. at, 13. 9g. 20 O04 dismissed the respondent from service leading te "initiation of conciliation proceeding funder "ID Act' which when failed, the State "government referred the points of reference. to - the "Labour. Court, Bangalore for adjudication. The ~ claim petition filed by the 'respondent, was resisted by filing counter statement of "he petttioner-corporation. In the premise of pleadings of the parties 'the Labour court framed an additional : issue over' the validity of the domestic enquiry. The _ petitioner entered trial and examined one witness as "MW: and marked 10 documents as Exs.M1] to M10, .-while the workman did not adduce evidence. The foe Labour court by order dt. 20.10.2009 answered issue No.1 in the affirmative holding the domestic enquiry.as.
fair and proper. Thereafterwards respondent ae --
3. The Labour court having a Samet on record, evidence both oral ond. dosumientary marshalled in the domestic enquiry 6 observed that the Head Master of the Government "Higher Secondary School, Konasandra, "Sanakapara T aluk, by _ letter Ex.M1 stated that oa transfer C Certificate, original and photocopy be Wana Na showing the name of the respondent. Cc K.Jayatania was fabricated and that Tt. iL. No. 1s/ 34- 85 related to one Lakshmamma, D/o i Nanjasheity and that t the respondent was not a student admitted iw. the 'said school as per records, accepted "that the same as credible evidence. Labour court further observed that the Head Master when examined a as a witness for the petitioner in the domestic enquiry ot testified on the basis of original records and in the cross-examination, it was elicited that the Transier jue te ~~ Cat Certificate produced by the respondent was signed by one Thammaiah, who was the previous Headmaster, and had retired. That Thammaiah was not examined by putforth his say in the domestic eqnuiry, . the «Labour Court held that the findings of the Enquiry Officcr and the Disciplinary Authority were not" perverse and the misconduct of fabrication of Transter Certificate was proved. Nevérthetess, the Labour Court having regard to the fact that respondent had worked for 12 years in the petitioner-corporation, coupled with the fact that in similar circuinstances the petitioner took a lenient view 'held 'that. the punishment of dismissal was grossly disproportionate 'to the misconduct proved and invoked extraordinary jurisdiction under Section 11-A of the Act , to modify the punishment of dismissal to reinstatement _ by withholding of five annual increments with curnulative effect as a measure of punishment by the 'award impugned.
64. Having heard the learned counsel for the parties, perused the pleadings and examined the awe ra, impugned, the following question arise ae s making: _ | "Whether in the facts and circums: 'ances Sof the case, the Labour Court .was nét justified in invoking Section 11-A of the Act to modi ify. the - punishment of dismissal dt 13.9 1.2004 to a lesser punishment and eniitling the. werkman to equitable consideration' and relief: as 'contended by the petitioner?
5. The answer to- this question need not detain the Court for long». The 'observations of the Supreme Court in 'UNION OF INDIA & ORS: M.BHASKARAN & ORS!.' in the circumstances, is apposite:
When once fraud on the employer is detected, the "appviniment. orders themselves are tainted and io " vitiated by fraud and acts of cheating on the part 'of the einployees. The appointment orders are liable 'to be recalled and voidable at the option of the employer concerned. Once the fraud of the "employees in getting such employment was detected. the employees were proceeded against in ' 199601) LLI 781 departmental enquiries and called upon to have their say and thereafter have been removed from. os service. Orders of removal would amount ton recalling of fraudulently obtained errorseous.. wo appointment orders which were avoided by. the , employer after following the due Precess - of Jaw a and complying with the principies: of 'natural i justice. Fraudulently | obtainec:, appointment :
orders could be legitimately treated as: voidable: at the option of the employ yer and could be 'reealied by the employer and. in such. cases merely because the employees have 'coniinued in service for number~ OF years on" the: basis of such fraudulent y. obtainea employment orders cannot create any equity in: their favour or any estoppel in: 'avour of the's employee"
6. Similar is whe effect of the observations of the Apex Court, in tixe following opinions:
°°. KERALA, SOLVENT -- EXTRACTIONS vy.
**ACUNNIKRISHNAN & ANR2.
(ii) "DISTRICT: COLLECTOR & CHAIRMAN, VIZIANAGARAM SOCIAL WELFARE RESIDENTIAL "SCHOOL SOCIETY & ANOTHER v. M.TRIPURA ~ . SUNDARI DEVI"
"<< "(iii) | 'UNION OF INDIA v. A.NAGAMALLESHWAR RAO* 2? 1994(2) LLI 888 2 a a * 190g.) SCO 700
(iv) "UNITED INSURANCE CO. LTD. v. RAJENDRA SINGH & ORSS.'
7. A Division Bench of this Court ain "THE _ MANAGEMENT OF VISL v. B.VEERANNA "GOWDA ~ PATIL®, following the aforesaid decision' 'of tlie Apex: :
Court, declined to interfere ir the maiter of cermination of service after a disciplinary. "proceediiig, extending reasonable opportunity of nearing and having found the workman to have obtained an appointment by fraudulent means. by producing forged document / academic. documents, "disentitling the workman. to equitable consideration or relief.
8. mn the factual matrix, the Labour Court's finding , that the respondent had served the Corporation for 12 years and vimilarly placed workmen when permitted to 'continue by: imposing minor punishment, would enure to - the | benefit of the workman, in my considered ~ opmion, is illegal and unsustainable. Article 14 of the .. Constitution of India provides for equality which is a * 200013) SCC 581 en 9 positive concept and cannot be enforced in a negative manner. Benefits extended to some persons in am, illegal or irregular manner, cannot be claimed ky others no passed in favour of one person wouid not entitle another to claim benefits. This is the lav. laid down by the Apex Court 'STATE OF BIHAR & ORS.v. KAMESHWAR PRASAD SINGH & ANR'." and in the case of 'STATE OF UTTARANCHAL v. ALOK SHARMA & ORS®. |
9. The" Labour . Court's 7 observation that the workman had served: the Corporation for 11 years and hence calls ; for" squitable ; consideration, is wholly misplaced and contrary to-the observations of the Apex "Court im. "BANK OF. INDIA & ANOTHER v. AVINASH 'D.MANDIVIKAR & ORS., following its earlier observations in 'R.VISHWANATHA PILLAI v. STATE OF oe KERALA &-ORS!0." which reads thus:
"= SFLR ILR 2004 KAR 4399 biel SCC 94 : 2008 AIR SCW 4477 = (2008) 7 SCC 690 390402) SCC 105 para 9 gy k By g oA Z G < Zz 4 Cc mm EONS 10 "A similar plea about long years of service was considered by this Court in 'R.VISHWANATHA: ~ PILLAI v. STATE OF KERALA & ORS(supra)}.. to be inconsequential. In para 19 it "was = observed:(SCC pp.116-17) --_ "19.Tt was then contended by. Shri Raniit Kumar, learned Senior. Counsel, for. the appellant that since the'. appellant has | rendered about 27 years' of serving, the order of dismissal be substituted | by. an.order of compulsory" retirement OF _removal from service to protect the, an "benefits of the appeliant. We a9-not find any substance in 'this subniission as well. ° The rights to salary, peti sion: and other service benefits are entirely statutory in, nature in public service.
The appellarit -obidined the appointment against a post meant for a reserved candidate : by producing a false caste certificate and by
- playing se ffaud. His appointment to the post ~ was void' and non est in the eye of the law. : The right to salary or pension after retirement flows from a valid and legal appointment. "The consequential right of pension and "monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the _ service by producing a false caste certificate. and obtained appointment for the post mearit for a Scheduled Caste, thus depriving: a ; genuine Scheduled Caste "candidate "of appointment to that post... does not Seng any sympathy or indulgence, of this C ourt. AS person who seeks. equity must' come with"
clean hands. He, who comes "6 the court with false claims, cannot. plead: equity nor would the court be justified. to exercise equity jurisdiction - ine his. favour. . 'A person who seeks equity: must act in a 'fair and equitable nranner: Equity Jurisdiction cannot be exercised in 1 the case of @_person who got the appointm ent Ort. athe. basis of a false caste certificate b a pla jing a fraud. No sympath ». and, equitable Cénsideration can come to_ his ™. rescue. We are of the view that equity or ~. compassion cannot be allowed to bend_the . arms of law_in a case where an individual acquired a status by practising fraud."
(Emphasis supplied)
10. In 'MAHINDRA & MAHINDRA LTD. vy. | N.B.NARAWADE!", the Apex Court observed thus: . | "90. It is no doubt true that after introduction oF . Section 11-A in the Industrial Disp Les, Act. Labour Court / Industrial Tribunal itr interfering - with the quantum of punishment 'awarded: by :
the management where the workman concerned - is found guilty of miscond uct. ~The. said area.of discretion has been. very well, defined by the various judgments | of this Coiirt referred to hereinabove: and it. is certainly not utilimited as has been observed by, the Division Bench of the High» Court. 7 Ti ae. disc retion which can be eX ercised. under Section li -A is available only on the existence of certain' factors like punishment being". disproportionate to the gravity of misconduct SO as' to disturb the conscience of the-.court, or 'ilié existence of any mitigating me, circtimstances which require the reduction of "the "senterice, or the past conduct of the | » workman which may persuade the Labour Court te reduce the punishment."
This observation was followed by the Apex Court in 'L&T KOMATSU LTD. v. N.UDAYAKUMAR!"'.
3900503) SCC 134
-
& i... ..13
11. The exercise of discretion by the Labour Court under Section 11-A of the Act was unavailable in the.
facts and circumstances of the case, more parsioulat.
the employer and therefore, to hold that the punishment of dismissal was disproportionate to the gravit ty. of misconduct held proved, so as to disturb the conscience of the Court, is perverse and illegal In the result; petition is allowed: 'The award dated 30/10/ 2009 af rine W [ Addl. Labour Court. Bangalore, in Ref. No.. 26/2006 rf re ashed, 'insofar as it relates to exercise of power sander sec] 11A of the Act to interfere with | the. punishment and modify the order dated | 16.08.2004 § from dismissal to a minor punishment, and in all other respects remains unaltered. The reference is rejected. a Sd/-
JUDGE 'In.
20080) SCC 224