Karnataka High Court
B.M.Ramakrishna Since Dead By Lrs vs The Chief Traffic Manager on 2 January, 2017
Equivalent citations: 2017 LAB. I. C. 1720, 2017 (2) AKR 88 (2017) 4 KCCR 475, (2017) 4 KCCR 475
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.16515/2009 (L-KSRTC)
BETWEEN:
1. B.M. RAMAKRISHNA
SINCE DEAD, BY HIS LRS.
I.E., WIFE - SMT.KEMPAMMA
AGED ABOUT 36 YEARS
2. KUM. SHRUTHI
D/O. LATE B.M.RAMAKRISHNA
AGED ABOUT 17 YEARS
3. MASTER MONOJ KUMAR
S/O. LATE B.M.RAMAKRISHNA
AGED ABOUT 8 YEARS
ALL ARE RESIDING AT NO.32,
1ST CROSS, CHOLURUPALYA
MALLIGE THOTA
MAGADI ROAD,
BANGALORE - 560 023
SL.NOS.2 AND 3 ARE CHILDREN OF NATURAL
GUARDIAN SMT. KEMPAMMA
... PETITIONERS
(BY SRI LAKSHMAN RAO, ADV.)
AND:
THE CHIEF TRAFFIC MANAGER
BMTC
CENTRAL OFFICES
K.H.ROAD
2
SHANTHI NAGAR
BANGALORE - 560 027
... RESPONDENT
(BY SMT. H.R.RENUKA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED AWARD PASSED
BY THE COURT BELOW, VIDE I.D.NO.31/05, DATED
16.06.2007, AT ANNEXURE - C AND THE IMPUGNED
TERMINATION ORDER DATED 30.12.2004, VIDE
ANNEXURE - B ETC.
THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners who are the wife, daughter and son of the workmen by name B.M.Ramakrishna are before this Court seeking a writ of certiorari to quash the impugned award dated 16.06.2007 made in I.D.No.31/2005 on the file of the Labour Court, Bengaluru at Annexure 'C' and also to quash the termination order dated 30.12.2004 at Annexure 'B' and direct the respondent - Corporation to provide appointment on compassionate ground in lieu of premature death of her husband and also to pay the backwages from the date of dismissal to the date of the death of the deceased Ramakrishna.
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2. According to the petitioners, deceased B.M.Ramakrishna was appointed in the year 1993 as a driver and was placed on probation on 23.02.1996 and the said post came to be confirmed on 08.05.1998, after rendering service for more than 11 years. After lapse of 9 years, he was issued Articles of Charge dated 03.04.2002 alleging that the Transfer Certificate bearing No.46/71-72 vide registration No.76/66-67 was a bogus document. The deceased has filed objections to the said Articles of Charge. Not satisfied with the reply offered by the deceased workman, the respondent - Corporation initiated enquiry by appointing Enquiry Officer. The Enquiry Officer conducted the enquiry. The deceased had appeared for enquiry and the Enquiry Officer after holding detailed enquiry reported that the charge was proved. After issuing show cause notice to the workman, the respondent - Corporation by the impugned order dated 30.12.2014 removed the workman from the service.
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3. Aggrieved by the said order, the deceased has raised industrial dispute under Section 10 (4-A) of the Industrial Dispute Act, 1947. The Tribunal by holding preliminary enquiry, on 28.08.2006 held that the disciplinary enquiry of the workman was fair and proper. The tribunal while adjudicating the dispute between the parties, by the impugned order dated 16.06.2007, has dismissed the dispute. Hence, the present writ petition is filed by the legal representatives of the deceased.
4. I have heard the learned Counsel for the parties to the lis.
5. Sri Lakshman Rao, learned Counsel for the petitioners vehemently contended that the impugned award passed by the Labour Court is unjust and discriminating. He contended that the respondent - Corporation in the similar situation has retained the service of the workman by imposing minor punishment. The tribunal has not considered this aspect of the matter. The deceased was aged 44 years and he died due to heart ailment, after the award came to be passed. 5 The petitioners are the legal representatives of the deceased facing lot of financial trouble. Therefore, they are entitled to compassionate appointment as sought for. Further, he contended that the head master of the School where the workman studied was also cross- examined to prove the genuineness of the transfer certificate and it was not bogus as alleged by the respondent - Corporation. Therefore, he sought to set aside the impugned award passed by the Tribunal by allowing the writ petition.
6. Smt. H.R.Renuka, learned Counsel for the respondent - Corporation, sought to justify the impugned award passed by the tribunal and pointed out that as per Ex.M.13, admission register of one K. Puttaswamy, S/o.Kadamallaiah was of the year 1966-67 and the registration No.46/71-72 in the transfer certificate of the deceased B.M.Ramakrishna was not shown in the school records. It clearly indicated that the transfer certificate is a bogus document. The same is considered by the Enquiry Officer and Articles of Charge 6 is proved as per Annexure 'A' and the respondent - Corporation passed the impugned order at Annexure 'B' and removed the workman from service. The tribunal after considering the entire material on record, recorded the specific finding of the fact that the document produced is not the genuine document - Ex.M.13, it is a bogus document and hence, sought for the dismissal of the writ petition.
7. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused entire material on record carefully.
8. It is undisputed fact that the deceased B.M.Ramakrishna was appointed in the year 1996 and confirmed on 08.05.1998. During the course of his employment, after verification of the document, the Corporation came to know that the deceased has got the appointment as a driver by producing bogus transfer certificate. Based on such information, Articles of Charge was issued. The deceased workman filed objections. Not satisfied with the objections, the enquiry 7 was conducted. The deceased contested the enquiry. The Enquiry Officer after conducting enquiry submitted a report stating that the workman has produced a false transfer certificate and got the appointment. The same was confirmed by the disciplinary authority and held that he has created Ex.M.13 - transfer certificate, by which he has got the appointment. Therefore, he was removed from the service. It is also undisputed that the Corporation examined one Sri K. Gangaiah, the Head Master of the Government Kannada Boys Senior Primary School, Channapatna, where B.M.Ramakrishna, the workman who contend that he had studied in the said school, has made a categorical statement that he has not issued Ex.M.13 - transfer certificate. Nothing has been elicited in the cross-examination from the Head Master which would be helpful to the workman. The workman was not able to discard the said evidence. The tribunal considering the entire material on record, recorded the specific finding at para Nos.11 and 12, which reads as follows:
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"11. Much is said that an important answer have been elicited in the course of cross- examination of K.Gangaiah and they have not at all been considered by the enquiry officer, by the disciplinary authority and finally by the Appellate Authority. The contentions of the first party that the answers elicited in the course of cross-examination of K. Gangaiah have not at all been considered is not acceptable argument. I have gone through the cross-examination of K. Gangaiah. What K. Gangaiah said in the course of cross- examination is that he is not knowing who was the Head Master in the school in 1971-72. The copies of the transfer certificates for the year 1971-72 are not available in the school. They searched for them but they did not get. He has heard that there was a fire mishap in which certain original documents were destroyed. In view of the destructions of the certain records in the fire mishap it went not possible to produce the office copy of the transfer certificate concerning the year 1971- 72 particularly in respect of Ex.M.13. In view of non-availability of the office copy of the transfer certificate concerning Ex.M.13, he is not in a position to tell whether that transfer 9 certificate Ex.M.13 had really been issued from his school or not. Therefore, he is not in a position to tell anything about Ex.M.13. I did not find an answer, elicited as above in favour of the first party. The entire cross-examination is merely in respect of the office copy of Ex.M.13. Absolutely there is no cross- examination concerning the entries appearing in the school Admission register. If the name of the first party was appearing in the school Admission register to say that he was admitted to the school during 1966-67 then the matter would have stood on a different footing. K. Gangaiah produced the original register of admissions in which name of K.Puttaswamy S/o. Kadamallaiah is appearing at Sl.No.76 for the year 1966-67. As per Ex.M.13 the name of first party should have had appeared at Sl.No.76 but it is not appearing. This itself would indicate that the certificate as per Ex.M.13 is a bogus document. Inspite of the fact that first party has not got produced admission register maintained in the school in which he studied. Still in the course of cross-examination, it is said that he has produced copy of the admission register maintained by the school.10
Therefore it is rightly said that nothing is elicited in the course of cross-examination of K.Gangaiah in respect of the genuineness of the document Ex.M.13.
12. If school original admission register had been summoned from a school where he had studied and if the entry appearing in the school admission register happened to tally with transfer certificate Ex.M.13 then first party would have turned down to be a successful and credibility would have given to Ex.M.13. In view of he not getting school admission register relating to Ex.M.13 adverse inference is required to be drawn against him. That he did not get it produced because it goes against him. He did not get it because Ex.M.13 is a bogus document."
9. As per the regulation 4(9) of KSRTC (Cadre and Recruitment) Regulations 1982, provides that any person who has given a false / wrong information in the application will be disqualified and if appointed and found at a later date to have given false information, his services will be liable to be terminated. Therefore, the Tribunal has proceeded to dismiss the industrial dispute 11 confirming the order passed by the disciplinary authority.
10. Learned Counsel for the petitioner sought to set aside the impugned order of the disciplinary authority and also the award of the industrial tribunal on the ground that similarly situated person is imposed lesser punishment. The fact remains that, production of bogus certificate cannot be any similarity and it differs from case to case.
11. Learned Counsel for the respondent objected the statement made by the learned Counsel for the petitioner and relied on the order of this Court in W.P.No.33419/1998 DD on 13.08.2001 (Karnataka State Road Transport Corporation Vs. Sri Anthony Machado and Another), where the writ petition filed by the Corporation was allowed and set aside the order of the Labour Court after considering all the material on record and has come to the conclusion that that the certificate of similarly situated person / workman have got appointment on bogus transfer certificate. Therefore, 12 the order passed by the disciplinary authority was confirmed and the order dated 13.08.2001 reached finality. Therefore, the submission of the learned Counsel for the petitioner that the similarly situated person is given lesser punishment cannot be accepted.
12. This Court while considering the fact of production of bogus certificates / documents in the case of Bangalore Metropolitan Transport Corporation Vs. T. Rajappa made in W.P.No.12529/2010 DD on 22.06.2011, at para Nos.9 to 11, has held as under:
"9. So also the Labour Court's conclusion that in identical circumstances, similarly placed workmen when permitted to continue in service by imposing minor punishment, would enure to the benefit of the workman, in my considered opinion, is illegal and unsustainable. Article 14 of the Constitution of India provides for equality which is a positive concept and cannot be enforced in a negative manner. Benefits extended to some persons in an illegal or irregular manner, cannot be claimed by others on the plea of equality. Wrong order or judgment passed in 13 favour of one person would not entitle another to claim benefits. This is the law 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.'
10. The Labour Court's observation that the workman had served the Corporation for 12 years and hence cells for equitable consideration, is wholly misplaced and contrary to the observations of the Apex Court in 'BANK OF INDIA & ANOTHER v. AVINASH D. MANDIVIKAR & ORS., following its earlier observations in 'R. VISHWANATHA PILLAI v. STATE OF KERALA & ORS.' Which reads thus:
"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. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant 14 that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement of removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. 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 15 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 case certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case 16 of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration 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 practicing fraud."
(Emphasis supplied)
11. In 'MAHINDRA & MAHINDRA LTD. v.
N.B.NARAWADE', the Apex Court observed thus:
"20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court / Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined 17 by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-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 the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment."
This observation was followed by the Apex Court in 'L & T KOMATSU LTD. v. N. UDAYAKUMAR'.
13. In view of the aforesaid reasons, the impugned award passed by the tribunal is based on the legal evidence on record, which is in accordance with law. Petitioners have not made any ground to interfere with 18 the impugned award of the tribunal. Accordingly, writ petition is dismissed.
Sd/-
JUDGE nvj