Karnataka High Court
Shri V Ramachandrappa vs The Divisional Controller on 27 June, 2013
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF JUNE 2013
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
W.P.NO.6825/2013(L-KSRTC)
BETWEEN
SHRI V RAMACHANDRAPPA
S/O LATE VENKATARAYAPPA
AGED ABOUT 48 YEARS
RESIDING AT SOMESHWARA
GUDIBANDE TALUK
SOMENAHALLI HOBLI
CHIKKABALLAPUR DISTRICT ... PETITIONER
(BY SRI E R DIWAKAR FOR SRI SHANKARAPPA, ADV.,)
AND
THE DIVISIONAL CONTROLLER
AND DISCIPLINARY AUTHORITY
MANAGEMENT OF KSRTC
K H ROAD, SHANTHINAGAR
BENGALURU-560027 ... RESPONDENT
(BY SRI H R RENUKA, ADV.,)
THIS W.P. FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO I.D. NO. 24/2010 ON THE FILE OF THE
HON'BLE III ADDITIONAL LABOUR COURT, BANGALORE.
2
THIS W.P. COMING ON FOR PRELIMINARY HEARING in 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
PC:
This writ petition is directed against the order dated
7th May 2012 passed by the Labour Court, Bangalore in
I.D.No.24/2010 whereby, an application (dispute) filed by
the petitioner-workman under Section 10(4-A) of the
Industrial Disputes Act, 1947 (for short "the Act") has
been rejected . In that petition, the petitioner had raised a
challenged to the order dated 10-8-2010 passed by the
respondent-Corporation dismissing him from service.
2. The Labour Court framed the following issues for
consideration :
"1. Whether the second party management
proves that the domestic enquiry so conducted
against the first party workman was fair and
proper?
2. Whether the second party management
proves that order of dismissal of the first party
workman from service is sustainable, just and
proper?
3
3. Whether the first party applicant proves
that order of dismissal is perverse and bad in law,
and such the same is liable to be set aside?
4. To what reliefs the first party applicant is
entitled for?
5. What order and award?
ADDITIONAL ISSUE
1. Whether the first party applicant proves
that order of dismissal is non est for want of
approval by the court in ID.148/2005 pending on
the file of Industrial Tribunal, Bangalore?"
3. In the present writ petition, we are concerned
with the findings recorded by the Labour Court on Issue
Nos.2, 3 and the additional issue. Learned counsel for the
parties confined their arguments on these issues.
4. The questions that fall for my consideration,
as raised and argued by learned counsel for the parties,
are whether the action of dismissal of the petitioner from
service on the ground contemplated by Regulation 4(9) of
the Karnataka State Transport Corporation (Cadre &
Recruitment) Regulations, 1982 (for short "1982
4
Regulations") without approval as provided for in the
proviso to sub-section 2(b) of Section 33 of the Act is
legally sustainable and whether on the facts and
circumstances of the case, the order of
dismissal/termination of the petitioner could be termed as
perverse and bad in law.
5. The background facts leading to this writ petition,
in short, are as follows: The petitioner was appointed as a
driver by the respondent-Corporation in 1992, and since
then, till he was dismissed/terminated from services vide
order dated 10-8-2010, worked with the respondent-
Corporation. He came to be dismissed/terminated from
service on the allegations that for obtaining the
employment in 1992 he furnished false/wrong information
in the application and in support thereof relied upon a
fake/false and fabricated transfer certificate. It is not in
dispute that the order of dismissal was passed after
following the due procedure for imposing major penalties
5
provided for in the Karnataka State Road Transport
Corporation Service (Conduct & Discipline) Regulations,
1971 (for short "1971 Regulations").
5.1 The petitioner had called in question a legality of
the order dated 10-8-2010 by filing petition under Section
10 (4-A) of the Act before the Labour Court and prayed for
setting aside the order of dismissal and sought direction to
the respondent-Corporation to reinstate him into service
with full back-wages, continuity of service and
consequential benefits. The Labour Court rejected the
petition by order dated 7th May 2012, impugned in this writ
petition.
5.2 Further reference to the specific allegation
against the petitioner and the evidence led by the parties
would not be necessary, since the findings of fact recorded
by the Labour Court are not seriously disputed by the
petitioner. Learned counsel for the petitioner, as a matter
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of fact, focused his challenge on the questions of law, to
which I would like to deal with at this stage.
6. At the outset, my attention was invited to Section
33 of the Act, to contend that, even if it is assumed that
the allegations against the petitioner are correct, it was not
open to the respondent-Corporation to take action of
dismissal from service without approval as contemplated
by proviso to clause (b) of sub-section (1) of Section 33 of
the Act. It was submitted that though the alleged
misconduct was not connected with the dispute pending
between the Workers' Union/Federation (for short "the
Federation") and the respondent-Corporation, sub-section
(2) clearly provides the employer cannot take action of
discharge or dismissal without making an application to the
authority before which the dispute is pending for approval
of the action taken by the employer. In support of this
contention, learned counsel for the petitioner placed
reliance upon the judgment of the Supreme Court in Tata
7
Iron and Steel Limited Vs. Modak, 1964 (II) LLJ 128; Lord
Krishna Textile Mills Vs. Its workmen, AIR 1961 SC 860;
and P.D.Sharma Vs. State Bank of India, AIR 1968 SC 985.
My attention was also invited to the landmark judgment of
the Supreme Court in Jaipur Zila S.B.V. Bank Ltd. vs. Ram
Gopal Sharma 2002 (I) LLJ 834.
7. On the other hand, Smt. H.R.Renuka, learned
counsel for the respondent-Corporation vehemently
submitted that in the present case the provisions
contained in Section 33 of the Act have no application
since the action against the petitioner was taken for
committing fraud on the Corporation for securing the job of
driver in 1992. She submitted even if it is assumed that
the act of the petitioner also amounts to misconduct, the
said misconduct had no connection with his employment.
In other words, she submitted that the alleged misconduct
was not committed in the course of employment and
therefore, for taking permission contemplated by Section
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33 of the Act was not necessary. She submitted that the
action against the petitioner is taken under Regulation 4(9)
of the 1982 Regulations, for which, the approval
contemplated under Section 33 was not necessary.
8. It is not in dispute that an Industrial Dispute
bearing I.D.No.148/2005 was and is pending between the
KSRTC Staff and Workers Federation and the respondent-
Corporation before the Industrial Tribunal, Bangalore. The
dispute, referred to by the State Government for
adjudication of the issues, is regarding Charter of demands
submitted by the Federation. The impugned action of
dismissal/termination was initiated by issuing articles of
charge against the petitioner-workmen on 9-12-2004.
Enquiry was conducted and concluded on 13-10-2006 and
the disciplinary authority passed an order of dismissal on
10-8-2010.
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9. In this backdrop, it would be necessary to have a
glance at Section 33 of the Act. Section 33 of the Act
reads thus :
"33. Conditions of service, etc., to
remain unchanged under certain circumstances
during pendency of proceedings.-
(1) During the pendency of any
conciliation proceeding before a conciliation
officer or a Board or of any proceeding before
an arbitrator or a Labour Court or Tribunal or
National Tribunal in respect of an industrial
dispute, no employer shall,-
(a) in regard to any matter connected
with the dispute, alter, to the prejudice of the
workmen concerned in such dispute, the
conditions of service applicable to them
immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with
the dispute, discharge or punish whether by
dismissal or otherwise, any workman
concerned in such dispute,
Save with the express permission in
writing of the authority before which the
proceeding is pending.
(2) During the pendency of any such
proceeding in respect of an industrial dispute,
the employer may, in accordance with standing
orders applicable to a workman concerned in
such dispute or, where there are no such
standing orders, in accordance with the terms
of the contract, whether express or implied,
between him and the workman-
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(a) alter, in regard to any matter not
connected with the dispute, the conditions of
service applicable to that workman immediately
before the commencement of such proceeding;
or
(b) for any misconduct not connected
with the dispute, discharge or punish, whether
by dismissal or otherwise, that workman:
Provided that no such workman shall be
discharged or dismissed, unless he has been
paid wages for one month and an application
has been made by the employer to the
authority before which the proceeding is
pending for approval of the action taken by the
employer."
(3) xxx xxx xxx
(4) xxx xxx xxx
(5) xxx xxx xxx"
9.1. Sub-Section (1) of Section 33 states that during
the pendency of the proceedings contemplated by this
provision, in regard to "any matter connected with the
dispute" or for "any misconduct connected with the
dispute", no employer shall discharge or punish, whether
by dismissal or otherwise, any workman concerned in such
dispute, saved with the express permission in writing of
the authority before which the proceeding is pending.
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9.2. Sub-section (2) states that during pendency of
any such proceedings in respect of an industrial dispute
"for any misconduct" not connected with the dispute, the
employer shall not discharge or punish any workman
unless an application has been made by the employer to
the authority before which the proceeding is pending for
approval of action taken by the employer.
9.3. A conjoint reading of sub-section (1) and sub-
section (2) of Section 33 of the Act, shows that the
legislature has made significant and deliberate departure
in separating two classes of cases falling under these sub-
sections, requiring 'express previous permission' in writing
in sub-section (1) on one hand and ex-post facto 'approval'
in sub-section (2) on the other. The distinction between
two sub-sections is thus clear. Sub-section (1) deals with
"any misconduct connected with the dispute", while sub-
section (2) deals with "any misconduct not connected with
the dispute". In short, the action of discharge or dismissal
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cannot be taken for any misconduct connected with the
dispute against the workman by the employer without
express permission in writing of the authority before which
the proceedings contemplated under sub-section (1) of
Section 33 are pending or without making an application
for an action for any misconduct not connected with such
dispute, to such authority for approval of the action taken
by the employer as provided for in sub-section (2) of
Section 33 of the Act.
9.4. The object and reasons for inserting Section 33,
before its amendment in 1956 vide Industrial Disputes
(Amendment & Miscellaneous Provisions) Act, 1956, was to
protect the workman concerned in dispute which form the
subject matter of pending proceedings against
victimization by the employer on account of their having
raised industrial dispute or their continuing the pending
proceedings. Further, to ensure proceedings in connection
with industrial disputes already pending should be brought
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to an expeditious determination in a peaceful atmosphere
and that no employer should during pendency of those
proceedings, take any action of the kind mentioned in the
section which may give rise to fresh disputes likely to
further accelerate the already strained relationship
between the employer and the workman.
9.5 The Section was amended in 1956. The
provisions contained in Section 33, as it stood before the
amendment, was prohibiting during the pendency of
conciliation proceedings before a Tribunal for any change
being made in the conditions of service of, or any action
being taken against, the workmen concerned in the
dispute except with the previous written permission of the
authority concerned. It was found that the number of
applications for such permission were large and their
disposals used to take long time, and as a result thereof,
employers were not in a position to take action even in
obvious cases of misconduct and discipline unconnected
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with the dispute till long after the offence of misconduct
had been committed. It was, therefore, proposed to alter
the then existing Section 33 so as to provide that, where,
during the pendency of proceedings, an employer finds it
necessary to proceed against any workman in regard to
any matter unconnected with the dispute, he may do so in
accordance with the Standing Order applicable to the
workmen, but where the action taken involves discharge or
dismissal he would have to pay to the workman one
month's wages and simultaneously file an application
before the authority, before which the proceeding is
pending, for its approval of the action taken. Thus, the
protection on the lines of provisions as existed prior to
1956 was continued to be available to all workmen in
regard to any matter or misconduct not connected with the
dispute.
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10. At this stage, I would also like to take a close
look at 1971 Regulations. Part-III of 1971 Regulations deal
with disciplinary proceedings. Regulation 18 provides
nature of penalties consisting of minor penalties and major
penalties. Then the Regulations provide for procedure to
be followed for imposing major penalties in Regulation 23.
Regulation 23 provides that no order imposing any of the
penalties specified in clauses (ix) and (x) of Regulation 18
shall be made except after an enquiry, held, as far as may
be in the manner provided in the Regulations. Clause (ii)
of Regulation-23 states whenever disciplinary authority is
of the opinion that there are grounds for inquiring into the
truth of any imputation of "misconduct or misbehaviour"
against a Corporation servant it may itself inquire into or
appoint under this Regulation an Authority to inquire into
the truth thereof.
16
10.1 Part-II of 1971 Regulations provides for
provisions relating to conduct. Regulation-3 in part-II is
relevant which reads thus :
"3.General- (1) Every Corporation servant
shall at all times:-
(i) maintain absolute integrity;
(ii) maintain devotion to duty;
(iii) do nothing which is unbecoming of
a Corporation servant.
(2) (i) Every Corporation servant holding a
supervisory post shall take all possible steps to
ensure the integrity and devotion to duty of all
Corporation servants for the time being under his
control and authority.
(ii) No Corporation servant shall in the
performance of his official duties or in the exercise
of the powers conferred on him, act otherwise than
in his best judgment except when he is acting
under the direction of his official superior and shall
where he is acting under such direction, obtain the
direction in writing, wherever practicable, and
where it is not practicable to obtain the direction in
writing, he shall obtain written confirmation of the
direction as soon thereafter as possible.
Explanation- Nothing in clause-(ii) of Sub-
Regulation(2) shall be construed as empowering a
Corporation servant to evade his responsibilities by
seeking instructions from, or approval of a superior
Officer or Authority when such instructions are not
necessary under the scheme of distribution of
powers and responsibilities.
17
10.2 Regulation-4 in Part II provides that no
Corporation servants shall except the previous sanction of
the Corporation engage directly or indirectly in trade or
business or undertake any other employment. Regulation-
5 deals with insolvency or habitual indebtedness.
Regulation-6 puts restrictions on the Corporation servants
from engaging in any demonstration. Regulation-7
provides for restrictions on consumption of intoxicating
drinks or drugs. Regulation-8 provides that no Corporation
servant shall use his position or influence to secure
employment for any member of his family in any private
undertaking. Regulation-9 prohibits the Corporation
servant from taking part in politics and elections. Even the
remaining regulation Nos. 10 to 17 in this Part state about
the conduct and discipline which the Corporation servants
need to observe while in service. The last regulation-17
states that the servants are obligated to abide by all
Administrative Instructions.
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10.3 From the bare perusal of these provisions, it is
clear that 1971 Regulations deal with "conduct and
discipline" by the Corporation servants once having
entered the service. In other words, if "conduct" in the
course of discharge of their official duty or in the course of
their employment, is contrary or in breach of what is
provided in the regulations, in particular, Part-II thereof,
the action can be taken after following the due procedure
provided for/prescribed in Part-III of 1971 Regulations for
imposing minor or major penalties. In short, if the conduct
of the Corporation servant is in breach of or inconsistent
with the provisions relating to "conduct and discipline",
specified in Part-II of the Regulations in the course of the
discharge of his official duty, the Corporation can take
action under 1971 regulations. The 1971 regulations do
not state about their conduct before obtaining the
job/employment or their conduct for obtaining the job. If
the Corporation servant commits any misconduct such as
misrepresentation or supplying false information to obtain
19
job, the provisions contained in 1982 Regulations would be
attracted.
11. 1982 Regulations provide method of recruitment,
procedure for selection of candidates, eligibility criteria for
appointment including qualifications for appointments,
mode of selection, procedure for appointment, probation
period, training period, classification of posts, selection
authorities, etc. In the present petition, we are concerned
with Regulation 4 which provides for eligibility criteria and
disqualification for appointment. The action against the
respondent-workman is taken under Regulation 4(9).
Clause-9 reads thus:
"9. Any person who has given false or wrong
information in the application will be disqualified and
if appointed and found at a later date that he has
given false or wrong information his services shall
be terminated."
20
11.1 1982 Regulations do not provide any procedure
for taking action against an employee who, after
appointment, found to have given false or wrong
information for obtaining the employment. Since 1982
Regulations do not provide such procedure, learned
counsel for the Corporation submitted that in order to
observe the principles of natural justice, the Corporation
follow the same procedure provided for in 1971
Regulations for taking action of termination under
regulation 4(9) of the 1982 Regulations.
11.2 In the present case, insofar as the procedure
for holding an enquiry for giving false or wrong information
is concerned, it is not in dispute that the respondent-
workman was given fair and proper opportunity to meet
the allegation. The allegation of giving false/wrong
information and furnishing fake and fabricated transfer
certificate has been proved in the enquiry. From the
conduct of respondent-workman of giving false and wrong
21
information and submitting fake and fabricated document,
in my opinion, cannot be termed as misconduct,
contemplated by 1971 Regulations. The action taken
against respondent-workman, in any case, cannot be said
to be an action for conduct in breach of or inconsistent
with the provisions relating to the conduct and discipline
specified in Part-II of 1971 Regulations having been
committed in the course of discharge of his official duty or
in the course of his employment.
12. Keeping the obje+ctive of the provisions
contained in Section 33 of the Act, as it stands today, and
the scheme of the 1971 Regulations in the light of the
provisions contained in 1982 Regulations, if one looks at
the word "misconduct" used in Section 33 of the Act or in
1971 Regulations, it would, in my opinion, means the
misconduct committed by a workman in the course of
discharge of his official duty or in the course of his
employment.
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13. In the present case, it was argued that the
respondent-Corporation, in view of the fact that the
alleged misconduct was not connected with the dispute
pending between the Federation and the respondent-
Corporation, the Corporation ought to have made an
application for approval of the action of dismissal against
the petitioner and since it was not obtained the order is
bad in law.
14. The allegation against the petitioner was that he
furnished false/wrong information in the application made
by him for his appointment to the post of driver and he
relied upon false and fabricated transfer certificate. To
prove this allegation the Corporation examined school
Headmaster-Nagaraj and Divisional Security Inspector-
M.L.Jayakirthi. The Divisional Security Inspector was
appointed by the respondent-Corporation who held
preliminary enquiry through his security staff. The
security staff after having visited the school of which the
23
petitioner had produced transfer certificate verified the
record and collected relevant documents from the
Headmaster. Both these witnesses placed all the relevant
material on record to prove the allegation against the
petitioner. It would be relevant to reproduce the relevant
observation made by the Labour Court, after considering
the evidence on record, which read thus:-
"25. Having come to know that the first party applicant
has played fraud on the Corporation in getting
employment by producing a fake transfer certificate,
the management held preliminary enquiry through his
Security Staff who having visited the school verified the
records, collected the report from the school Head
Master as per Ex.M.2 and submitted a report to that
effect as per Ex.M.3 to the Divisional Security Inspector
and on the basis of Ex.M.2 and M.3 the Divisional
Security Inspector gave a report to the Divisional
Controller KSRTC as per Ex.M.4 and on the basis of
which the management initiated domestic enquiry
against the first party applicant. In the process of
preliminary enquiry the security staff also collected
Ex.M.6 from the school Head Master to show that
transfer certificate No.38/85-86 so mentioned on the
top of Ex.M.5 pertains to a student by name Chandra
Kumar who has taken admission in the said school
under admission No.25/84-55.
26. During the course of the domestic enquiry
the management examined the Head Master of the
school in question and he produced the original
admission register and also the Xerox copy of the same
and the Enquiry Officer having verified the original with
the Xerox copy, marked the Xerox copy in the enquiry
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at Ex.M.7, and before this court also through the
Enquiry Officer the management got it marked Ex.M.7.
27. The document at Ex.M.5 bares the
admission register number of the student as 19/70-71.
In the light of the said entry if Ex.M.7 is looked into
then it clearly goes to show that the entry bearing
registration No.19/70-71 stands in the name of one
L.Krishnappa having date of birth as 1-6-1964 and
Transfer Certificate with respect to him has been issued
under Transfer Certificate No.11/77-78. So in the light
of the admission register at Ex.M.7, if the Transfer
Certificate at Ex.M.5 is looked into, then it clearly goes
to show that the contents of Ex.M.5 are not correct
except the registration number. There is some
justification on the part of the management to contend
that Ex.M.5 is fake and concocted document since the
contents of Ex.M.5 do not tally with the information so
found at registration No.19/70-71 in the school
admission register at Ex.M.7.
28. In the light of the entries so found at Ex.M.6
issued by the school Head Master in the preliminary
enquiry, if the Transfer Certificate at Ex.M.5 so
produced by the first party applicant at the time of
getting employment in the Corporation, then it clearly
goes to show that Transfer Certificate No.38/85-86
pertains to a student by name Chandra Kumar who had
take admission in the said school during the year 1984
with admission No. 25/84-85, and as such on that
count also the contents of Ex.M.5 do not tally with any
of the contents of Ex.M.6.
29. Infact it was for the first party applicant to
examine Munivenkatappa the author of Ex.M.5 who has
issued the same with his signature, to make out a
positive case that only on the basis of the entries found
in the school register pertaining to the first party
applicant, Ex.M.5 has been issued. But the first party
applicant did not choose to examine the said
Munivenkatappa before the enquiry and also before this
court.
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30. So also nothing has been brought out in the
cross examination of the Head Master who has been
examined in the domestic enquiry to make out a
positive case that during the year 1985 and more
especially on 21-9-1985 the date on which Ex.M.5 is
alleged to have been issued by the said school, one
Munivenkatappa was the Head Master of the said
school. But to that effect nothing has been made out in
the cross. Under the circumstance I am convinced that
there is some justification on the part of the learned
counsel for the management to contend that on the
basis of Ex.M.6 and M.7, it can be safely held that
Ex.M.5 is a got up and concocted document.
31. The Enquiry Officer having gone into all
these aspects has come to the just conclusion to the
effect that on the basis of the fake Transfer Certificate
at Ex.M.5, the first party applicant got employment in
the second party Corporation, and the disciplinary
authority having verified the reports and records has
accepted the same and based the said report for
passing the impugned order."
15. I have also perused the articles of charge and
the documents produced on record to prove the allegations
against the petitioner. It is clear that the petitioner for
obtaining the job of driver had produced fake/false and
fabricated transfer certificate and thereby committed fraud
on the Corporation. For obtaining the job he virtually
cheated the Corporation by placing false and fabricated
documents so as to qualify for the said job. If the
26
petitioner had not produced the fake and fabricated
transfer certificate the concerned authorities of the
respondent-Corporation would not have appointed him as
a driver. In other words, it is clear that only because false
and fabricated documents were produced by the petitioner,
he was selected and appointed as a driver by the
respondent-Corporation.
16. It is against this backdrop, once again I would
like to have a glance at the provisions contained in Section
33 once again. Sub-section (1) as well as sub-section (2)
of Section 33 use the word "misconduct". Insofar as sub-
section (1) is concerned it states about "any misconduct
connected with the dispute" which obviously means the
misconduct committed by any workman in the course of
his employment. Sub-section (2) states about "any
misconduct not connected with the dispute." The
expression "any misconduct" is a wide term/expression
which covers the misconduct not connected with the
27
dispute between the Federation and the respondent-
Corporation. The expression "any misconduct" in sub-
section (2) (b) of Section 33 whether would cover the act
of the petitioner producing false and fabricated documents
for the purpose of obtaining employment is the question.
17. The Supreme Court in State of Punjab vs. Ram
Singh, AIR 1992 SC 2188, had an occasion to consider the
word "misconduct". The observations made by the
Supreme Court while considering the word 'misconduct',
would help us to understand what does the word
"misconduct" mean in the context of the provisions of 33
of the Act. The Supreme Court after looking into dictionary
meaning of the word "misconduct", in paragraph 5 of the
report observed thus :
"5. Thus it could be seen that the word
misconduct' though not capable of precise
definition, its reflection receive its connotation
from the context, the delinquency in its
performance and its effect on the discipline
and the nature of the duty. It may involve
28
moral turpitude, it must be improper or wrong
behaviour, unlawful behaviour, willful in
character; forbidden act, a transgression of
established and definite rule of action or code
of conduct but not mere error of judgment,
carelessness or negligence in performance of
the duty; the act complained of bears
forbidden quality or character. Its ambit has
to be construed with reference to the subject
matter and the context wherein the term
occurs, regard being had to the scope of the
statute and the public purpose it seeks to
serve. "
18. The word misconduct is not defined either in the
Act or in the Rules and is not capable of precise definition.
Though it is incapable of precise definition the word
"misconduct" on reflection receives its connotation from
the context. It is a relative term, which has to be
construed with reference to the subject matter and the
context wherein the term occurs, having regard to the
scope of the Act or statute which is being construed. In
other words, the word "misconduct" will have to be
understood and interpreted in the context of Section 33,
as it occurs therein, having regard to not only the scope of
29
the Act but also the objective for inserting such provisions
in the Act. The expression "any misconduct' employed in
sub-section (1) and sub-section (2), therefore, will have to
be read in the context of said provision or the Scheme of
Section 33 of the Act. The interpretation of the statute
must be such that it should advance the legislative intent
and serve the purpose for which it is made rather than to
frustrate it.
19. The proviso to Section 33(2) (b) on which heavy
reliance was placed on behalf of the petitioner in support
of the contentions urged, as can be seen from its very
unambiguous and clear language, is mandatory. The
proviso to Section 33(2)(b) contemplates three things
mentioned therein, namely, (i) dismissal or discharge; (ii)
payment of wages; and (iii) making of an application for
approval. The proviso to Section 33(2)(b) affords
protection to a workman to safeguard his interest and it is
a shield against victimization and unfair labour practice by
30
the employer during the pendency of industrial dispute
when the relationship between them are already strained.
An employer cannot be permitted to use the provision of
Section 33(2)(b) to ease out a workman without complying
with the conditions contained in the said proviso for any
alleged misconduct said to be unconnected with the
already pending industrial dispute. The protection afforded
to a workman under the said provision cannot be taken
away. If it is to held that an order of discharge or dismissal
passed by the employer without complying the
requirements of the said proviso is not void or inoperative,
the employer may with impunity discharge or dismiss a
workman. Where an application is made under Section 33
(2) (b) proviso, the authority before which proceeding for
approval of the action taken by the employer has to
examine whether the order of dismissal or discharge is
bonafide, whether it was by way of victimization or unfair
31
labour practice etc. (see Jaipur Zila S.B.V.Bank Ltd. v.
R.G.Sharma).
20. Having regard to the principle laid down by the
Supreme Court in Jaipur Zilla S.B.V. Bank and the
provisions contained in sub-section (2) of Section 33 of the
Act, in particular, the proviso thereof, it cannot be stated
that the impugned action against the petitioner under
Regulation 4(9) of 1982 Regulations was an act of
vicitmisation or unfair labour practice by the respondent-
Corporation during the pendency of the industrial dispute
bearing No.148 of 2005 between the Federation and
respondent-Corporation. The action of dismissal, which
was initiated in 2004 taken by the respondent-Corporation,
was not for any misconduct allegedly committed by him in
the course of employment but it was for committing fraud
on the Corporation for obtaining the employment as a
driver. The petitioner produced fake and bogus transfer
certificate and on the basis thereof, was appointed as
32
driver which fact cannot be treated as a misconduct
committed by him in the course of employment or the
misconduct contemplated by sub-section (2) of Section 33
of the Act. This view finds further support in view of the
clear finding of fact in respect of the transfer certificate,
recorded by the labour Court based on the evidence on
record. The judgment relied upon by the learned counsel
for the petitioner in my opinion, though the propositions
laid down by the Supreme Court are very clear, are of no
avail to the petitioner, in view of the peculiar facts and
circumstances of this case. The allegations against the
petitioner cannot be treated as a misconduct within the
meaning of word/expression "misconduct" or "any
misconduct" occurred in Section 33 of the Act.
21. Next, I would like to consider the challenge to
the order of dismissal. Learned counsel for the petitioner
placed heavy reliance upon an unreported judgment of this
Court dated 19th November 2009 in V.Krishna vs.
33
Bangalore Metropolitan Transport Corporation (Writ Appeal
No.1273/2009) to contend that the order, dismissing the
petitioner, is discriminatory. He submitted that other
employees who were also tried for the similar allegations
were not dismissed from service and they were given
either lesser punishment or allowed to retire compulsorily.
He submitted that having regard to the length of service of
the petitioner, he is entitled to leniency. According to
learned counsel for the petitioner, the disciplinary authority
ought to have given him option of compulsory retirement
before passing the order of dismissal. In support of his
contention he placed reliance upon the order passed by
this Court dated 24-2-2011 in Writ Petition
No.16564/2008. In that case, the learned single Judge
though did not entertain the challenge to the order of
dismissal passed by the disciplinary authority and the
Labour Court converted the order of dismissal into
compulsory retirement. The said order (dated 24-2-2011),
it was submitted, was passed by learned single Judge at
34
the time of preliminary hearing, without hearing the
respondent-Corporation, whereby the petition was
dismissed.
22. On the other hand learned counsel appearing for
the respondent-Corporation invited my attention to the
judgments of the Supreme Court to contend that under
any circumstances once having proved that employment
was obtained on the basis of false and fabricated
document no leniency of whatsoever nature can be shown
to such employee and only punishment that can be
imposed is an order of dismissal.
23. In this connection, I would like to refer to the
judgments of the Supreme Court to which my attention
was invited to, by learned counsel appearing for the
parties. The Supreme Court in Union of India vs.
V.M.Bhaskaran, 1996 SC 686, while considering almost
identical situation in paragraph-6 observed thus:
35
"6................Such orders of removal would
amount to recalling of fraudulently obtained
erroneous appointment orders which were avoided
by the employer-appellant after following the due
procedure of law and complying with the principles
of natural justice. Therefore, even independently
of Rule 3(1)(i) and (iii) of the Rules, such
fraudulently obtained appointment orders could be
legitimately treated as voidable at the option of the
employer and could be recalled by the employer
and in such cases merely because the respondent-
employees have continued in service for number of
years on the basis of such fraudulently obtained
employment orders cannot create any equity in
their favour or any estoppel against the employer.
In this connection we may usefully refer to a
decision of this Court in District Collector &
Chairman, Vizianagaram Social Welfare Residential
School Society, Vizianagaram M. Tripura Sundari
Devi, (1990) 3 SCC 655. In that case Sawant, J.
speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the concerned 36 candidate acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision if by committing fraud any employment is obtained such a fraudulent practice cannot be permitted to be countenanced by a Court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent- workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers started departmental proceedings year back in 1987 and these proceedings have dragged on for number of years. Earlier removal orders of the respondents were set aside by the Central Administrative Tribunal. Madras Bench and proceedings were remanded and after remand fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due 37 procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted."
(emphasis supplied) 23.1 In Bank of India and Avinash D Mandivikar 2005(7) SCC 690 in paragraph-6 observed thus :
"6. Respondent 1 employee obtained appointment in the service on the basis that he belonged to a Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to the Scheduled Tribe the very foundation of his appointment collapses and his appointment is no appointment in the eye of law. There is absolutely no justification for his claim in respect of the post he usurped, as the same was meant for a reserved candidate."
(emphasis supplied) 23.2 While dealing with similar submission, as made by learned counsel for the petitioner in the present case, that the petitioner has put in nearly two decade of service, the Supreme Court in R.V.Vishwanatha Pillai vs. State of Kerala, 2004 (2) SCC 105, in paragraph-19 observed thus: 38
"19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or 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 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 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 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 39 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) 23.3 Keeping in view the law laid down by the Supreme Court, I perused the judgment of this Court in V.Krishna (supra) on which heavy reliance was placed on behalf of the petitioner. Insofar this judgment is concerned, learned counsel for the respondent-Corporation at the outset, invited my attention to the order passed by the Supreme Court in a petition Special Leave to Appeal (Civil) Nos.28020/2010 dated 5-7-2012. The Special Leave petition was directed against the very same judgment of the Division Bench in Writ Appeal No.1273/2009 dated 19th November 2009. The Supreme Court though dismissed the S.L.P. clarified that said judgment may not be treated as precedent. The order of Supreme Court reads thus :
"After having heard learned counsel for the parties and after perusal of the impugned order passed by the Division Bench of the High Court, 40 we find no ground to interfere against the said order. Special leave petition is accordingly dismissed.
However, we clarify that it may not be treated as precedent."
23.4 In view thereof and in view of the law laid down by the Supreme Court in the judgments referred to herein above, in my opinion, the judgment in V.Krishna is of no avail to the petitioner. Even the order passed by the learned single Judge dated 24-2-2011 also is of no avail to the petitioner. The question raised, considered and dealt with in this judgment was not either raised or considered by the learned single Judge while disposing of writ petition vide order dated 24-2-2011 in Writ Petition No.16564/2008. Insofar as discrimination is concerned, this Court is informed that the Corporation, during last about 9-10 years, has not made any exception in taking action in such cases. In other words, they have not discriminated while taking action of dismissal. In any case, as held by the Supreme Court, no leniency can be shown 41 to a person who has obtained the employment by committing fraud on the Corporation and on the public at large.
24. In the present case, I am satisfied that the findings recorded by the enquiry officer on the point of fraud being committed by the petitioner on the Corporation and confirmed by the disciplinary authority and Labour Court deserve no interference. Exercise of discretion by the Labour Court under Section 11-A of the Act, in the facts of the present case, was unavailable and the Labour Court has rightly dismissed the application filed by the petitioner under Section 10 (4-A) of the Act. If any employment is obtained by committing fraud cannot be permitted to be countenanced by the Court of law. By mere passage of time a fraudulent practice would not get any sanctity. The concerned authority, in the present case, was right in taking the impugned action, having come to know about the fraud committed by the respondent-workman, in 42 obtaining employment as a driver, after holding a departmental enquiry. As observed by the Supreme court, if any lenient view is taken in favour of the respondent, then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present case cannot be permitted. A person like the respondent- workman does not deserve any sympathy. Equity jurisdiction cannot be exercised in the case of respondent who obtained the employment, on the basis of false and fabricated transfer certificate. In my opinion, equity or compassion cannot be allowed to bend the arms of law in a case where an individual has obtained an employment by practicing fraud.
25. If the petitioner had not produced false and fabricated documents at the time of his appointment perhaps that post would have gone to a person qualified for the said post. Thus, as observed by the Supreme Court in M.Bhaskaran, the petitioner has committed fraud 43 not only on the Corporation but on the public at large. Such practice cannot be encouraged by retaining a person like the petitioner in service. That would, in my opinion, send a wrong signal to the people at large, and perhaps may encourage to indulge in such a sharp practice. In the circumstances, the other limb of submission of learned counsel for the petitioner also deserves to be rejected.
26. In the result, the petition is dismissed. However, in view of the peculiar facts and circumstances of case, there shall be no order as to costs.
Sd/-
JUDGE Ia