Karnataka High Court
Sri Krishna vs Bengaluru Metropolitan Transport ... on 24 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 914
Bench: Ravi Malimath, M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 24TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT APPEAL No.94 OF 2015 (L-KSRTC)
BETWEEN:
SRI KRISHNA
SON OF SRI MUNIYAPPA,
AGED ABOUT 50 YEARS,
RESIDENT OF NO.435, PRASHANTHNAGAR,
1ST CROSS, DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
... APPELLANT
(BY SRI V.S. NAIK, ADVOCATE)
AND:
BENGALURU METROPOLITAN TRANSPORT
CORPORATION,
CENTRAL OFFICE, K.H.ROAD,
SHANTHINAGAR,
BENGALURU - 560 027
BY ITS CHIEF TRAFFIC MANAGER,
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REPRESENTED BY ITS
CHIEF LAW OFFICER.
... RESPONDENT
(BY SMT. H R RENUKA, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.13483 OF 2013 DATED 09.12.2014.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.12.2019 COMING ON
THIS DAY, M. NAGAPRASANNA J., PRONOUNCED THE
FOLLOWING:-
JUDGMENT
Aggrieved by the order of the learned Single Judge dated 9.12.2014 passed in Writ Petition No.13483 of 2013, by which the learned Single Judge has allowed the writ petition of the petitioner-Bangalore Metropolitan Transport Corporation and set aside the order of the Labour Court directing reinstatement, the respondent in the writ petition has preferred the instant writ appeal.
2. The parties will be referred to as per their ranking in the writ petition before the learned Single Judge.
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3. Brief facts of the case are as follows:
The respondent was appointed as a driver in the year 1992. It is his case that the petitioner-Corporation, after about 8 years of appointment, raked up the issue with regard to the genuineness of the transfer certificate that the respondent had produced at the time of his appointment to the post of driver. On the issue that the respondent had furnished a false transfer certificate, a charge sheet was issued to him, seeking his reply. The reply submitted by the respondent to the charge sheet was found to be unsatisfactory by the Disciplinary Authority. An Enquiry Officer was appointed to conduct a domestic enquiry, who after the enquiry held that the charges levelled against the respondent as proved. On the basis of the findings of the Enquiry Officer and after hearing the respondent, the petitioner-Corporation dismissed the respondent for the aforementioned misconduct by its order dated 21.9.2004.4
4. After about six years of the order of dismissal, the appropriate Government referred the matter to the Labour Court under Section 10(1)(c) and (d) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') in Reference No.39 of 2011. The respondent - workman contended that the domestic enquiry was held in violation of the principles of natural justice and the findings of the Enquiry Officer was perverse. Based upon the pleadings, the Labour Court framed an additional issue calling upon the petitioner-Corporation to prove that the domestic enquiry held against the respondent - workman was fair and proper. On the evidence and the documents produced, the Labour Court by its order dated 2.11.2011 held the enquiry to be fair and proper.
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5. On the issue of victimization and other incidental issues concerning proportionality of punishment, witnesses were examined in the enquiry and the documents were produced by the respondent- workman. The Corporation chose not to lead any evidence on the said allegation. The Labour Court answering the issue of delay in referring the dispute held that in terms of the judgment of the Hon'ble Supreme Court in case of NEDUNGADI BANK LIMITED VS. K.T. MADHAVAN KUTTI AND OTHERS reported in AIR 2000 SC 839 and other judgments, rejected the ground of the petitioner-Corporation that the reference should be rejected on the ground of delay.
6. The Labour Court further held that the order of dismissal passed against the respondent was shockingly disproportionate and discriminatory as in similar circumstances, in terms of Exs.W.5 to 9, the petitioner - 6 Corporation had imposed a lesser punishment to others while extreme penalty of dismissal from service against the respondent-workman. On accepting the plea of discrimination, holding the report of the Enquiry Officer as perverse, the Labour Court allowed the Reference No.39 of 2011 on 11.5.2012, which reads thus:
" Order Reference Under Section 10(1)(c) and (d) of the ID Act so referred to the Court by the Government in the matter of the first party applicant and the second party management named above, is allowed and thereby order dated 21.9.2004 passed by the second party management dismissing the first party workman from service is set aside and by virtue of the same management is directed to reinstate the first party workman into service within one month from the date on which the award becomes enforceable, with continuity of service only for the purpose of terminal benefits from the date of dismissal till the date of reinstatement, acting under 7 section 11-A of the ID Act punishment of dismissal is substituted by denying the backwages from the date of dismissal till one month after the date on which award becomes enforceable and 6 yearly increments are order to be withheld with cumulative effect. "
7. In terms of the afore-extracted award of the Labour Court, the respondent - workman was to be reinstated into service and the punishment of dismissal was substituted to six increments to be withheld with cumulative effect. Aggrieved by the award of the Labour Court, the Corporation filed Writ Petition No.13483 of 2013. The learned Single Judge by his order dated 9.12.2014 allowed the writ petition and set aside the award of the Labour Court and rejected the reference. While allowing the writ petition, the learned Single Judge followed two judgments of this Court in the case of PRABHULINGAPPA H.M. Vs. THE DIVISIONAL 8 CONTROLLER, K.S.R.T.C. reported in ILR 2011 KAR 4757 and R.M.NARAYANA Vs. BANGALORE METROPOLITAN TRANSPORT CORPORATION in W.A.No.18024/2011 D.D. 4.07.2013. The learned Single Judge was of the view that employment obtained by a fraudulent transfer certificate does not entitle the appointee to any discretion of the Labour Court under Section 11-A of the Act. Challenging the said order, the respondent-workman has preferred the instant writ appeal.
8. It is the contention of the respondent-workman that the petitioner-Corporation is discriminating in the matter of penalty as, in identical circumstances, the Corporation has imposed the penalty of stoppage of increments while the respondent was meted out with the extreme penalty of dismissal from service. The learned Counsel for the respondent - workman would place 9 reliance upon seven orders of punishment issued in identical cases of securing the employment on the basis of fraudulent Transfer Certificate which were concerning the drivers of the Corporation, which are as follows:
i) True copy of the punishment order in respect of Sri.Mahimanna, Driver, Badge No.2305, Nelamangala Depot, KSRTC, dated
09.07.2014 imposing the penalty of dismissal from service to stoppage of six increments with cumulative effect.
ii) True Copy of the punishment order in respect of Sri.K.Krishnadas, Driver, Badge No.1526, KSRTC, Mandya Division, dated 01.09.2001 imposing the penalty of reducing one increment with cumulative effect.
iii) True Copy of the punishment order in respect of Sri.Bettaiah, Driver, Badge No.4133, KSRTC, Mandya Division, dated 29.02.2008 imposing the penalty of 10 reducing two increments with cumulative effect.
iv) True Copy of the punishment order in respect of Sri.Hanumantharayappa, Driver, Badge No.7914, Depot No.8, BMTC, dated 16.03.2006 imposing penalty of imposing the penalty of dismissal from service to stoppage of six increments with cumulative effect, with no backwages but with continuity of service.
v) True Copy of the punishment order in respect of Sri.K.Khader Basha, Driver, Badge No.6449, Depot No.14, BMTC, dated 16.03.2006 imposing the penalty of dismissal from service to stoppage of eight increments with cumulative effect, with no backwages but with continuity of service.
vi) True Copy of the punishment order in respect of Sri.R.Balaram, Driver, Badge No.10771, Depot No.12, BMTC, dated 16.03.2006 imposing the penalty of 11 dismissal from service to stoppage of three increments with cumulative effect, with no backwages but with continuity of service.
vii) True Copy of the punishment order in respect of Sri.M.N.Nagaraj, Driver, Badge No.8818, Depot No.22, BMTC, dated 16.03.2006 imposing the penalty of dismissal from service and issuing him with a fresh appointment as a trainee-driver without any financial and service benefits for the services rendered in the Corporation earlier.
In support of his submission regarding the Corporation practicing discrimination, the learned Counsel for the respondent - workman seeks to place reliance on the judgment of the Hon'ble Supreme Court in the case of K.V.S. RAM VS. BANGALORE METROPOLITAN TRANSPORT CORPORATION reported in 2015-I LLJ- 257, wherein the Hon'ble Supreme Court, has dealt with 12 an identical circumstance of discrimination of imposition of penalty by the same Corporation.
9. Per Contra, the learned Counsel for the petitioner-Corporation has also placed a memo along with the statement of employees dismissed for producing false transfer certificate at the time of employment. It is her contention that the seven cases that the respondent's learned Counsel produced were only stray cases wherein lenience had been shown by the particular Disciplinary Authority. She would further submit that the particular Disciplinary Authority, who had shown lenience in favour of employee by imposing minor penalties for production of false transfer certificate, has in fact faced with disciplinary proceedings and is cautioned. The learned Counsel has further placed reliance upon several judgments of this Court concerning the very same misconduct and the 13 judgments passed after considering the judgments of the Hon'ble Supreme Court relied on by the learned Counsel for the respondent - workman. The judgments are as follows:
1. Writ Petition No.12873 of 2010 (Bangalore Metropolitan Transport Corporation Vs. R.M. Narayana);
2. Writ Appeal No.18024 of 2011 (R.M. Narayana Vs. Bangalore Metropolitan Transport Corporation);
3. Writ Appeal No.6910 of 2013 (Shri M. Hanumantha Vs. The Chief Traffic Manager).
Placing reliance on the aforementioned judgments, the learned Counsel would contend that the Corporation cannot term a blind eye to the nature of misconduct committed by the respondent, which was the production of false transfer certificate at the time of employment 14 which would amount to fraud on the Corporation. The learned Counsel would further submit that there cannot be negative equality in law.
10. We have heard Sri V.S. Naik, learned counsel for the appellant and Smt. H.R. Renuka, learned Counsel appearing for respondent herein.
11. We have given our anxious consideration to the submissions made by the learned Counsels for the parties and have perused the entire papers in terms of which, the following points would arise for our consideration:
1. Whether the action of the petitioner -
Corporation was discriminatory for imposing the lesser punishment to a few workmen and the extreme punishment of dismissal to the respondent-workman ?
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2. Whether the Labour Court was justified in allowing the reference and directing reinstatement by substituting the penalty of stoppage of 6 yearly increments with cumulative effect with that of dismissal from service ?
3. Whether the learned Single Judge was justified in interfering with the award in Reference with regard to the reinstatement ?
4. Whether the order of the learned Single Judge requires interference ?
12. Re. Point No.1:
The fact that is not disputed is that, the respondent-workman had produced a fake school transfer certificate in support of his employment. This is an admitted fact in every one of the proceedings. The domestic enquiry held by the petitioner-Corporation was proved that the respondent-workman had in fact produced a fake school transfer certificate in school 16 admission No.48/1970-71 which belongs to one Baba Fakruddin. There was no evidence produced by the respondent-workman in the domestic enquiry to prove the charge otherwise. Based upon the proved findings, the respondent-workman was dismissed from service.
In the challenge before the Labour Court on the preliminary issue with regard to fairness of the enquiry, the Labour Court held that the enquiry that was conducted against the respondent by the petitioner -
Corporation was fair and proper. Thus, all opportunities were given to the respondent to defend his case in the domestic enquiry .
13. While considering the issue with regard to the victimization, the Labour Court found that the order of the enquiry officer holding that the charges levelled against the respondent were perverse. The Labour Court also noticed the documents produced by the respondent - workman with regard to the lesser 17 punishment imposed upon identically charge sheeted drivers for having produced the false transfer certificate. This was the primary reason on which the Labour Court modified the award in terms of what is extracted hereinbefore by substituting the penalty of dismissal from service to that of withholding six yearly increments.
14. In the judgment relied on by the respondent - workman in the case of K.V.S. RAM VS. BANGALORE METROPOLITAN TRANSPORT CORPORATION reported in 2015-I LLJ-257, the Hon'ble Supreme Court at paragraph Nos.9, 10 and 15 has held as follows:
" 9. The appellant joined the services of the corporation in the year 1985. In the year 1990, charges were framed against the appellant alleging that he had secured appointment by 18 producing a false certificate and enquiry was initiated in the year 1992 and the Enquiry Officer submitted his report only in the year 2002, nearly twelve years after framing of charges.
Even though the Enquiry Officer submitted his report on 13.3.2002, order of dismissal from service was passed only on 1.10.2004. Enquiry report was thus submitted after a lapse of twelve years and there was a delay of twelve years in conducting and completing the enquiry. As pointed out by the Labour Court, there was no plausible explanation for such inordinate delay in completing the enquiry. The appellant continued in service from 1990 to 2004. Having allowed the appellant-workman to work for fourteen years, by the time punishment of dismissal from service was imposed on the appellant, the appellant had reached the age of forty five years. As observed by the Labour 19 Court, the appellant having crossed forty five years, he could not have sought for alternative employment. Further, as seen from Exs. W.5 to W.11, similarly placed workmen were ordered to be reinstated with lesser punishment of stoppage of few increments. While so, there is no reason as to why for the similar misconduct the appellant should be imposed harsh punishment of dismissal from service.
10. It is settled proposition of law that while considering the management's decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and 20 the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act.
15. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws.
While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment cannot be sustained."
21The law laid down by the Hon'ble Supreme Court as extracted hereinabove in the aforementioned judgment on which the respondent - workman placed reliance upon is on the facts of the case. The case before the Hon'ble Supreme Court was concerning the proceedings initiated against the workman which went on for a period of 14 years. Both on delay of initiation of enquiry and its completion, the Hon'ble Supreme Court took note of the fact that similarly situated employees had been issued with minor penalties. In the instant case, the charge sheet was issued against the respondent- workman after completion of eight years of service, alleging the production of a false transfer certificate at the time of entry into service, concerning the age of the respondent-workman. Thus, the judgment in case of K.V.S. Ram (Supra) relied on by the respondent- workman would be of no assistance to his case. 22
15. The facts before the Hon'ble Supreme Court were that there was delay of 12 years in conducting and completing the enquiry and there was no plausible explanation for such inordinate delay in completing the enquiry. The Hon'ble Supreme Court considered and upheld the order of the Labour Court directing reinstatement. The judgment of the Hon'ble Supreme Court which is rendered on the facts of that case, in our considered view, is inapplicable to the facts on hand.
16. As contended by the petitioner - Corporation, it is an undisputed fact that, the petitioner - Corporation has dismissed about 160 drivers, against all of whom, similar charges of production of fraudulent transfer certificate was made. We have considered the seven cases that were produced by the respondent-workman wherein the workmen therein were imposed the lesser punishment on identical misconduct of production of false transfer certificate. We have seen the list of 23 penalties imposed upon the employees who have produced false transfer certificate and perused each and every one of the orders produced. All of them are the penalty of dismissal from service. As stated by the petitioner-Corporation, all the 160 drivers were imposed with penalty of dismissal from service for the same misconduct of false transfer certificate at the time of the employment.
17. The cases that the respondent - workman relies on are to be considered in terms of the memo that is placed on record by the respondent - workman. The penalty imposed in the said cases as submitted by petitioner-Corporation at Sl.Nos.4, 5, 6 and 7, all appear to be passed by one Disciplinary Authority, who had let off those employees on the ground that they had entered service about 8 to 9 years ago and they had been working since then. Since the fact that the 24 Disciplinary Authority proceeded against the workmen is not disputed, the submission of the petitioner Corporation requires acceptance, more so, in the light of the fact that all the orders at Sl.Nos.4 to 7 are passed on the same day i.e., on 16.3.2006.
18. Insofar as the penalty imposed on one Mahimanna is concerned, who is at Sl. No.1, the appellate authority modified the penalty of dismissal from service to stoppage of six increments with cumulative effect. This was based upon the order passed by the Industrial Tribunal in I.D. No.90 of 2005 concerning the evidence of the Principal, Mahatma School, Palace Guttahalli, Bengaluru. The said proceedings in I.D. No.90 of 2005 were taken against one Sri R. Shekar, driver. It is found that Mahimanna was also a student of that school and his name was also found in the registry. Thus, the modification of penalty 25 that is made is based upon the findings in a Court of law.
19. Insofar as Sl.No.2 concerning one Sri K.Krishna Das, the appellate authority observed that the evidence and the documents in the file confirmed the charges against him, nonetheless, since the driver had joined service in the year 1989 and continued upto 2001, which service had been remishless without any accidents and had displayed good behaviour. Though the misconduct was proved, the order of dismissal was substituted to withheld one increment with cumulative effect.
20. Insofar as Sl.No.3 - Bettaiah is concerned, the Disciplinary Authority came to conclude that a minor penalty should be imposed upon him on the ground that the head master of the school has given a statement that Bettaiah had studied in their school and also 26 submitted a photocopy of the admission register. On this, the penalty of reduction of two increments with cumulative effect was passed upon Bettaiah.
21. Thus, even if the Corporation has passed the similar orders for identical misconduct of production of false transfer certificate, it appears that they were 7 stray cases in comparison to 160 drivers, who had been terminated for misconduct of production of false transfer certificate. We are unable to accede to the contention of the learned Counsel for the respondent - workman that the action of the Corporation is in violation of Article 14 of the Constitution of India, on the ground that the Corporation has practiced discrimination against the respondent insofar as it pertains to imposition of penalty. The facts of each case are different as narrated above.
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22. It is trite law that equality is a positive concept, there cannot be negative equality in law. Merely because in few cases, the Corporation has viewed the misconduct leniently, that would not give a right to delinquent to seek the similar orders by this Court. It would be apposite to refer to the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA VS. INTERNATIONAL TRADING CO. reported in (2003) 5 SCC 437, wherein at paragraph No.13, it is held as under:
"13. xxxxx A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in 28 short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. "
23. In terms of the afore-extracted judgment of the Hon'ble Supreme Court, it would be clear that the stray cases of imposition of minor penalty was an illegality by the petitioner-Corporation and that cannot be claimed by the respondent - workman invoking the principle of discrimination and parity in treatment insofar 29 as imposition of the penalty. This plea of the respondent-workman that the Corporation has practiced invidious discrimination in imposition of penalty cannot be accepted.
Hence, we find that the action of the petitioner - Corporation was not discriminatory in imposing lesser punishment against a few workmen and extreme punishment of dismissal against the respondent - workman.
Accordingly, point No.1 is answered against the respondent-workman.
24. Re. Point No.2:
The Labour Court after having held the enquiry to be fair and proper and notwithstanding the same, substituted the penalty of dismissal to that of stoppage of six yearly increments with cumulative effect with that of dismissal from service on the ground that it was shockingly disproportionate and it was discriminatory on 30 the part of the petitioner - Corporation having imposed the lesser punishments for the same misconduct on the similarly situated persons. It is the contention of the learned Counsel for the petitioner - Corporation that, the cases that respondent - workman relied on were the stray cases and the law that is laid down by this Court would be applicable to the fact situation, one of which also includes the judgment of the Hon'ble Supreme Court in case of K.V.S. Ram (Supra), reliance of which is placed by the respondent - workman. In this regard, it is necessary to consider the judgments relied on by the petitioner - Corporation in Writ Petition No.12873 of 2010 decided on 21.07.2011 (Bangalore Metropolitan Transport Corporation Vs. R.M. Narayana), wherein this Court has held at paragraph Nos.5 to 12 as follows:
"5. The answer to this question need not detain the Court for long. The observations of the Supreme Court in 31 'UNION OF INDIA & ORS. v. M.BHASKARAN & ORS reported in 1996(1) LLJ 781, in the circumstances, is apposite:
"When once fraud on the employer is detected, the appointment orders themselves are tainted and vitiated by fraud and acts of cheating on the part of the employees. 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 departmental enquiries and called upon to have their say and thereafter have been removed from service. Orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer after following the due process of law and complying with the principles of natural justice. Fraudulently obtained appointment orders could be legitimately 32 treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the 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 in favour of the employee".
6. Similar is the effect of the observations of the Apex Court, in the following opinions:
(i) 'KERALA SOLVENT EXTRACTIONS v.
A.UNNIKRISHNAN & ANR reported in
1994(2) LLJ 888.'
(ii) 'DISTRICT COLLECTOR & CHAIRMAN,
VIZIANAGARAM SOCIAL WELFARE
RESIDENTIAL SCHOOL SOCIETY & ANOTHER v. M.TRIPURA SUNDARI DEVI reported in 1990(3) SCC 655.
(iii) 'UNION OF INDIA v. A.NAGAMALLESHWAR RAO reported in 1998(1) SCC 700.33
(iv) 'UNITED INSURANCE CO. LTD. v. RAJENDRA SINGH & ORS reported in 2000(3) SCC 581.
7. A Division Bench of this Court in THE MANAGEMENT OF VISL v. B.VEERANNA GOWDA PATIL reported in ILR 2004 KAR 4399, following the aforesaid decisions of the Apex Court, declined to interfere in the matter of termination of service after a disciplinary proceeding, extending reasonable opportunity of hearing 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. In the factual matrix, the Labour Court's finding that there was no educational qualification for appointment to the post of Driver, is factually incorrect, since the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982 under the heading "traffic department" 34
prescribes educational qualification of 4th standard for appointment to the post of Driver Class-III. In other words, the Labour Court did surmise, conjecture and guess while drawing the inference in the absence of proved facts and therefore, there is no legitimacy to the inference and the conclusion.
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 favour of one person would not entitle another to claim benefits. This is the law laid 35 down by the Apex Court 'STATE OF BIHAR & ORS. v. KAMESHWAR PRASAD SINGH & ANR 2000(9) SCC 94.' and in the case of 'STATE OF UTTARANCHAL v. ALOK SHARMA & ORS reported in (2009)7 SCC 647.'
10. The Labour Court's observation that the workman had served the Corporation for 11 years and hence calls 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. reported in 2005 AIR SCW 4477 = (2005) 7 SCC 690, following its earlier observations in 'R.VISHWANATHA PILLAI v. STATE OF KERALA & ORS reported in 2004(2) SCC 105 (para 9).' 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) 36 "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 37 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 38 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 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."
11. In 'MAHINDRA & MAHINDRA LTD.
v. N.B.NARAWADE reported in 2005(3) SCC 134, 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 39 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 reported in 2008(1) SCC 224'.
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12. 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 particularly, since the appointment was based on a fraud played on the employer and therefore, to hold that the punishment of dismissal was disproportionate to the gravity 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 31.10.2009 of the Labour Court, Bangalore, in Ref. No. 60/2006 is quashed, insofar as it relates to exercise of power under sec.11A of the Act to interfere with the punishment and modify the order dated 11.08.2004 from dismissal to a minor punishment, and in all other respects remains unaltered. The reference is rejected. "
25. The order passed in the aforesaid writ petition was affirmed by the learned Division Bench in Writ 41 Appeal No.18024 of 2011 dated 04.07.2013, by the following order:
"5. On perusal of the records, we are of the considered view that no error committed by the learned single Judge which calls for any interference. The enquiry held against the appellant would show that he has submitted a false transfer certificate and that the job has been obtained by him on the basis of such false certificate. No falsity would be condoned which is apparent that the entire employment is based only on this certificate where the certificate is necessary only to ascertain his date of birth and where minimum qualification is required is wholly inconsequential. The fact remains that the appellant relied on the certificate in order to secure employment. The learned single Judge by relying on catena of decisions allowed the writ petition rejecting the reference. Considering the same, we are of the view that there is no error committed by the learned single Judge, which calls for interference. The order of the learned single Judge is just and proper. No employment 42 would be sustained on the basis of false certificate. Consequently, the writ appeal is dismissed."
Thus, the findings in Writ Petition No.12873 of 2010 was affirmed by the learned Division Bench in Writ Appeal No.18024 of 2011. The facts in the case on hand are also identical.
26. In yet another judgment in Writ Appeal No.6910 of 2013 decided on 09.03.2016, the learned Division Bench, after considering the judgments relied on by the respondent - Corporation therein, affirmed the order passed in writ petition on similar set of facts. The learned Division Bench at paragraph Nos.8 to 11 has held as follows:
"8. Mr.A.J.Srinivasan, learned advocate appearing in support of the writ appeal cites a decision of the Supreme Court 43 of India in the case of K.V.S.RAM - versus - BANGALORE METROPOLITAN TRANSPORT CORPORATION in CIVIL APPEAL No.412 of 2015, where the reinstatement was upheld by the Supreme Court of India.
9. K.V.S.Ram (supra) is distinguished. In this case, the service of the employee was terminated because he produced a false certificate. The matter was taken to the Labour Court. The Labour Court modified the sentence and directed reinstatement and, also, directed withholding of four annual increments of the employee concerned with cumulative effect. The award was challenged before the High Court and the High Court rejected the challenge. The Supreme Court of India held that the High Court could interfere with the award only if it was satisfied that the award was vitiated by any fundamental flaws.
10. Here, the Disciplinary Authority and the Labour Court were of the opinion that as the writ petitioner - appellant has 44 procured the employment on production of a false certificate, he was deserved to be dismissed.
11. We do not find that the award of the Labour Court is vitiated by any fundamental flaws, requiring interference. "
The law laid down in the aforementioned judgment of the learned Division Bench of this Court is applicable to the case on hand. The latest judgment of the Division Bench of this Court in Writ Appeal No.6910 of 2013 decided on 9.3.2016 distinguishes the same on the ground that, if the employment is secured by providing a false certificate he deserves to be dismissed. We are in respectful agreement with the judgment passed in Writ Appeal No.6910 of 2013.
27. Thus, the Labour Court invoking Section 11-A of the Act could not have interfered with the punishment 45 of dismissal from service by substituting it with the penalty of stoppage of six yearly increments with cumulative effect, as it was a clear case of submission of the false transfer certificate for the purpose of obtaining employment.
For the aforementioned reasons, we answer point No.2 against the respondent-workman.
28. Re. Point NO.3:
The learned Single Judge after noticing the fact that the employment by the respondent - workman was secured by playing fraud and also analyzing the facts of such circumstances that whether the discretion exercised by the Labour Court under Section 11-A of the Act was only available to certain factors being disproportionate to the gravity of misconduct so as to shock the conscience of the Court, held that discretion was unavailable to the Labour Court when an appointment is based on the fraud played on the 46 employer. The learned Single Judge relied on the judgments in the case of PRABHULINGAPPA H.M. Vs. THE DIVISIONAL CONTROLLER, K.S.R.T.C. reported in ILR 2011 KAR 4757 and R.M.NARAYANA Vs. BANGALORE METROPOLITAN TRANSPORT CORPORATION in Writ Appeal No.18024/2011 decided on 4.07.2013. We find no error warranting interference with the order of the learned Single Judge. We are of the considered view that the learned Single Judge was justified in interfering with the order passed by the Labour Court and setting aside the order directing reinstatement with consequential benefits and consequently, rejecting the Reference. Accordingly, we answer point No.3 against the respondent-workman.
29. Re. Point No.4:
In view of the law laid down by the learned Division Bench in the cases of R.M. Narayan and Hanumantha (Supra), wherein the judgment of the Hon'ble Supreme Court in case of K.V.S. Ram (Supra) 47 with regard to the transfer certificate was also considered and distinguished and in terms of the facts obtaining in the case on hand, which are of securing employment by playing fraud on the employer, we are of the view that the order of the learned Single Judge does not warrant any interference. Hence, we answer point No.4 against the respondent-workman.
30. For the aforementioned reasons, the writ appeal, being devoid of merit, is dismissed.
There shall be no order as to costs.
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JUDGE Sd/-
JUDGE Cs/-
CT:MJ