Karnataka High Court
Sri Puttaswamy vs The Chief Traffic Manager on 2 January, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO. 822/2012 (L-KSRTC)
BETWEEN:
SRI PUTTASWAMY,
AGED ABOUT 46 YEARS,
S/O CHINNAVENKATA BOVI,
R/AT VODDARADODDI,
KABBAL POST, SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT.
... PETITIONER
(BY SRI. S.B. MUKKANNAPPA, ADVOCATE)
AND:
THE CHIEF TRAFFIC MANAGER,
B.M.T.C., CENTRAL OFFICE,
K.H. ROAD, SHANTHINAGAR,
BANGALORE-560027.
... RESPONDENT
(BY SMT. H.R. RENUKA, ADVOCATE)
****
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED AWARD DATED 4.10.2011 PASSED
BY THE 1ST ADDITIONAL LABOUR COURT AT BANGALORE,
IN I.D.NO.7/2006 VIDE ANNEXURE-M TO THE WRIT
PETITION, UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE.
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner who was appointed as Driver on Probationary basis in the respondent - Corporation is before this Court for a writ of certiorari to quash the Award dated 4.10.2011 made in I.D. No.7/2006.
2. It is the case of the petitioner that he was appointed as Trainee Driver in the respondent - Corporation on 28.7.2000. When he was working in the 13th Depot by holding the Badge No.10726, on the basis of the false and frivolous report of the Divisional Security Inspector, the respondent - Corporation initiated disciplinary proceedings and issued articles of charge dated 20.2.2003. The 3 charges leveled against the petitioner are that he has produced the bogus Transfer Certificate No.21/81-82 vide Register No.18/70-71 in the Corporation and secured employment for the post of the driver, which is a misconduct under Regulation 4(9) of the Karnataka State Road Transport Corporation Servants (C & R) Regulations, 1982.
3. The petitioner submitted his reply to the said articles of charge on 7.3.2003 and denied the charges levelled against him and contended that he has studied up to 4th Standard in the Government Higher Primary School, Kallahalli, Kanakapura taluk and the Transfer Certificate produced by him is a genuine and he has not produced any bogus certificate.
4. Not being satisfied with the reply submitted by the petitioner, the respondent - Corporation has ordered for an enquiry to be conducted on the alleged misconduct by 4 appointing a retired District Judge. The petitioner also participated in the enquiry proceedings. The Enquiry Officer after holding enquiry submitted report on 6.8.2003 holding that the petitioner is guilty of charge. The respondent - Corporation on the basis of the said report and considering the entire material on record by an order dated 12.3.2004 removed the petitioner from service. Being aggrieved by the said order, the petitioner filed claim petition under Section 10(4A) of the Industrial Disputes Act, 1947 ('I.D. Act' for short) for adjudication. The Labour Court considering the entire material on record by an order dated 17.5.2007 has answered the preliminary issue in the affirmative holding that the enquiry held was fair and proper and permission was given to the petitioner to adduce evidence regarding victimization and unfair labour practice.
5. Thereafter the Labour Court by an order dated 2.2.2009 held that the misconduct levelled against the 5 petitioner is proved. However the Labour Court on the ground of discrimination in imposing the punishment, by exercising the powers conferred under Section 11A of the I.D. Act has set aside the order of removal of the petitioner from service passed by the respondent - Corporation with a direction to reinstate the petitioner into service, without continuity of service and backwages by imposing penalty of withholding three increments for a period of three years. The petitioner being aggrieved by the Award of the Labour Court insofar as it relates to denial of the continuity of service and backwages and also imposition of punishment has filed Writ Petition No.37451/2009. Subsequently the very Award was challenged by the respondent - Corporation in Writ Petition No.38545/2009. This Court after hearing both the parties by an order dated 4.1.2011 allowed both the writ petitions and the Award dated 2.2.2009 was set aside and the matter was remanded to the Labour Court for fresh disposal in accordance with law. 6
6. In pursuance of the remand order, the Labour Court considering the entire material on record by the Award dated 4.10.2011 has rejected the petition filed by the petitioner under the provisions of Section 10(4A) r/w Section 2A of the I.D. Act. Hence the present writ petition is filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri S.B. Mukkannappa, learned counsel for the petitioner vehemently contended that the impugned Award passed by the Labour Court is contrary to the material on record; Non-examination of the Head Master of the Government Primary School and non-production of original Admission Register is fatal to the case of the respondent and consequently the charge that the petitioner has secured employment by producing Bogus Transfer Certificate has 7 not been proved. He further contended that when there is no allegation of tampering of the records by the petitioner, either by the Corporation or the Head Master or BEO or Deputy Director of Public Instructions, the petitioner cannot be punished. He further contended that admittedly no action was taken against the Head Master who has issued the Transfer Certificate in favour of the petitioner by the concerned Education Authorities. In the absence of the same, the order passed by the Disciplinary Authority removing the petitioner from service and the order of the Labour Court is contrary to the material on record. He also contended that even in the domestic enquiry, except internal correspondence between the institution and the Deputy Director of Public Instructions, Admission Register has not been produced. MW.3 who has given evidence before the Enquiry officer has not produced the Admission Register. The fact that one Mr. Durgegowda who was working as Head Master has issued the Transfer Certificate 8 to the petitioner and had made an entry in the Admission Register, is not in dispute. The only charge levelled against the petitioner is that Admission Register itself has been tampered. When the Admission Register has not been produced before the Court, the Labour Court was not justified in holding that the petitioner has produced the Bogus Transfer Certificate. He further contended that petitioner was appointed on 28.7.2000 and has been removed from service in the year 2004 after a lapse of four years. Therefore the very initiation of the disciplinary proceedings by the respondent authorities is vitiated. Hence he sought to set aside the impugned award passed by the Labour Court and reinstate the petitioner back into service, with continuity of service, by allowing the present writ petition. He further contended that in similar circumstances, the respondent - Corporation has imposed minor penalties instead of removal from service. Therefore he sought to allow the writ petition. 9
9. In support of his contentions, learned counsel for the petitioner sought to rely on the dictum of the Apex Court in the case of K.V.S. RAM .vs. BANGALORE METROPOLITAN TRANSPORT CORPORATION reported in (2015)12 SCC 39 to the effect that the powers to be exercised by this Court only when there is patent perversity in the orders of the Tribunal or Courts subordinate to it. He also brought to the notice of the Court the observations made by the Labour Court in the impugned Award at paragraphs 34 and 39. Therefore he sought to allow this writ petition.
10. Per contra, Smt. H.R. Renuka, learned counsel for the respondent sought to justify the impugned order passed by the Disciplinary Authority as well as the Award made by the Labour Court. She contended that this Court by an order dated 4.1.2011 in Writ Petition No.38545/2009 c/w W.P. No.37451/2009 remanded the matter to the Tribunal 10 only on the ground of non-consideration of the available documentary and oral evidence on record. The interim prayer sought in the present writ petition is to direct the respondent - Corporation to maintain status quo till disposal of the writ petition and the exparte interim order is granted by this Court on 12.1.2012 as prayed for. The interim order would always be subject to the result of the writ petition. Merely on the ground of exparte interim order was granted by this Court, the petition cannot be allowed. She further contended that the jurisdictional authority - BEO as well as the Deputy Director of the Public Instructions have held the enquiry and come to the conclusion that the Transfer Certificate issued by the then Head Master was a false certificate. Ex.M13 dated 4.8.2001 issued by the BEO and Ex.M10 dated 13.11.2002 issued by the Deputy Director of Public Instructions clearly depict the same. She also contended that Ex.M12 was tampered by 11 using whitener at Ex.M12(a). On these among other grounds, she sought to dismiss the writ petition.
11. Learned counsel for the respondent - Corporation relied upon the Judgment of the learned Single Judge of this Court in the case of SYED IRSHAD .vs. THE DIVISIONAL CONTROLLER made in Writ Petition No.55254/13 dated 4.11.2016 wherein this Court considering the law laid down in KVS Ram's case {(2015)12 SCC 39} held that KVS Ram's case has no application to the facts of the said case as there was delay of 12 years in completing the enquiry. In the circumstances, this Court did not interfere with the impugned Award passed by the Tribunal therein.
12. She also relied upon the three-Judge decision of the Hon'ble Supreme Court in the case of R. Vishwanatha Pillai .vs. State of Kerala reported in (2004)2 SCC 105 (paragraph-15) and held that where an appointment in a 12 service has been acquired by practicing fraud or deceit, such an appointment is no appointment in the eye of law and in such a situation, Article 311 of the Constitution is not attracted at all.
13. She also relied upon the judgment of the Hon'ble Supreme Court in the case of Khub Ram .vs. Dalbir Singh and others reported in (2015)8 SCC 368 with regard to fraud committed in obtaining appointment.
14. She also relied upon the judgment of the Division Bench of this Court in the case of M. Hanumanthappa .vs. The Chief Traffic Manager made in Writ Appeal No.6910/2013 to the effect that this Court could interfere with the award only if it was satisfied that the award was vitiatped by any fundamental flaws.
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15. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration in the present writ petition is:
"Whether the impugned Award passed by the Tribunal rejecting the reference under Section 10(4-A) r/w Section 2-A of the I.D. Act and confirming the order of removal passed by the Disciplinary Authority is just and proper in the facts and circumstances of the present case ?"
16. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis.
17. It is an undisputed fact that the petitioner was appointed as driver and he was removed from the service during the course of his probationary period, on the basis of the report submitted by the Divisional Security Inspector that the petitioner had produced a bogus Transfer Certificate and got appointment for the post of driver. The 14 enquiry was conducted and the Enquiry Officer after considering the entire material on record has held that the charges are proved. It is also not in dispute that earlier the Labour Court held that the disciplinary enquiry conducted was fair and proper and ultimately considering the entire material on record has set aside the order passed by the Disciplinary Authority and directed for reinstatement without backwages. It is also not in dispute that both the Corporation as well as the petitioner filed W.P. Nos.37451/2009 and 38545/2009 before this Court challenging the reinstatement and denial of backwages. This Court considering the entire material on record by an order dated 4.1.2011 remanded the matter to the Labour Court on the ground that the reasoning of the Labour Court that the petitioner has not examined Head Master - Durgegowda who issued the Transfer Certificate in question and therefore the Transfer Certificate is not forged, is contrary to the material on record. This Court further 15 observed that even in the absence of evidence of H.M. Durgegowda, there is relevant documentary and the oral evidence on record and the same has not been considered by the Labour Court; The non-consideration of the available documentary and oral evidence has resulted in failure of justice. Therefore writ petition was allowed and the matter was remanded to the Labour Court for fresh disposal in accordance with law.
18. It is the specific contention of the learned counsel for the petitioner that there was no fault on the part of the petitioner in respect of tampering the Transfer Certificate. There is no allegation made by either the Head Master or the BEO or the Deputy Director of Public Instructions against the petitioner. The certificate issued by the concerned Head Master is produced and got the appointment and petitioner has not suppressed any material facts nor created any documents and has not forged the documents as alleged. Ex.M4 dated 22.8.2000 16 issued by the Head Master, Kallahalli, Kanakapura is to the effect that T.C. No.21/81-82 {Admission No.18/1970-71} in respect of the petitioner was issued by the school authorities. Ex.M5 dated 24.8.2000 was issued by the Divisional Security Inspector, BMTC suspecting the truthfulness of the Transfer Certificate issued as per Ex.M4. Ex.M7 dated 23.3.2001 was issued by the Deputy Director of Public Instructions, Bangalore Rural to the Security Vigilance Officer of the Corporation to the effect that the statement made by the then Head Master is contrary to the material on record. Therefore he has directed the BEO to hold enquiry and submit the report. The BEO has conducted enquiry and submitted the report. As per the report, the BEO has recorded a statement of the previous and the present Head Masters. Ex.M13, the report submitted by the BEO on 4.8.2001 clearly indicates that by using whitener, the name of the petitioner was inserted and as per the Reserved TC book, in the year 1981-82 in the 17 said school only 13 Transfer Certificates were issued, but the Transfer Certificate issued in the name of the petitioner
- Puttaswamy was No.21/81-82 on 30.5.1981. Therefore it is a created Transfer Certificate issued for extraneous reasons by the then Head Master - Durgegowda and the said person is retired from service as Head Master.
19. The material on record clearly depicts that the in the domestic enquiry, the Corporation has examined one Sri T. Giriappa, First Division Assistant in the office of the Deputy Director of Public Instructions, Bengaluru as M.W.1, who has deposed to the effect that the Admission No.18/70-71 is issued showing the details of the petitioner as Date of Birth: 24.8.1964; Name: Puttaswamy son of Chinnavenkato Bovi, Caste: Bovi and the Date of issue of Transfer Certificate: 30.5.1981 by using white fluid and the same was sent to the Block Education Officer and the Deputy Director of Public Instructions as per Exs.M.10 and M.13 which clearly indicate that the Transfer Certificate 18 issued by the concerned authority was created and fake, but nothing has been elicited in his cross-examination by M.W.3 contrary to the material on record.
20. This Court while remanding the matter has directed the Labour Court to consider the entire material both oral and documentary evidence on record and pass appropriate award. The Labour Court in turn considering the entire material on record recorded a finding of fact that from the material placed on record produced by the respondent-Corporation, that it is established that though the Transfer Certificate was issued by the then Head Master of the school in question, the petitioner was not a student of the said school. At the same time the petitioner has also failed to prove that he was a student of the school in question and that the entry against Admission No.18/70-71 relates to him and that there is no manipulation. The Enquiry Officer has examined all these aspects while coming to the conclusion that the charges are proved. The 19 Disciplinary Authority has also examined the entire material and on independent appreciation of the legal evidence placed on record has come to the conclusion that the charges are proved and absolutely there is no circumstance to warrant inference in the conclusions arrived at by them. When once the misconduct is held to be proved, the next question that would arise is whether punishment imposed is proportionate? or Whether it is a fit case to interfere with under the provisions Section 11-A of the Industrial Disputes Act, 1947? The Tribunal has further held that securing employment with the help of a fake document is a serious misconduct. The charges leveled against the petitioner is not to the effect that he is not having any requisite qualification for the post to which he was appointed or for the purpose of ascertaining his date of birth. The charge leveled against him is very much clear that by producing a fake document, he has snatched employment and thereby has deceived the respondent-Corporation. Ultimately, it 20 was held that the documents relied upon by the workman as per Exs.W.1 to Ex.W.6 are entirely different and contrary to the facts and circumstances of the present case and hence, the industrial dispute raised by the petitioner was rejected.
21. Though the learned Counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of K.V.S. Ram -vs- Bangalore Metropolitan Transport Corporation reported in (2015) 12 SCC 39 with regard to interference of the High Court in respect of the order passed by the Tribunal, when there is patent perversity in orders of the Tribunal and Courts Subordinate to it or where there is gross and manifest failure of justice or principles of natural justice have been flouted.
22. It was a case wherein there was a delay of 12 years in completing the enquiry and that similarly situated workmen were reinstated with lesser punishment, without 21 back wages but with punishment directing without backwages but with punishment directing withholding of four annual increments with cumulative effect. Under those circumstances, the Hon'ble Supreme Court held that the High Court should not have interfered with the orders passed by the Labour Court.
23. In the present case, the petitioner was appointed on 28.7.2000 and immediately after coming to know the receipt of the report from the concerned Officer, Articles of Charges were issued on 20.2.2003, enquiry was completed, charges were proved and punishment of removing him from service was imposed on 12.3.2004 and absolutely, there is no delay on the part of the respondent in completing the enquiry against the petitioner. Therefore, the facts of the K.V.S.Ram's case are not applicable to the facts and circumstances of the present case.
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24. The material on record clearly discloses that the Enquiry Officer, Disciplinary Authority as well as the Labour Court considering the entire material on record have recorded a specific finding that the petitioner has obtained an appointment of driver by producing fake Transfer Certificate and the same was enquired into by the jurisdictional Educational Authorities - Block Education Officer and Deputy Director of Public Instructions as per Exs.M.10 and M.13 which clearly indicate that the Transfer Certificate issued by the concerned authority was created and fake and that the disputed entries are subsequently made and that since during the year 1981-82 only 13 Transfer Certificates have been issued, T.C.No.21/81-82 was not existing in the school as can be seen from Exs.M.4, 10 and 13.
25. The Hon'ble Supreme Court while considering the appointment obtained by fraud in the case of Khub Ram - 23 vs- Dalbir Singh and Others reported in (2015)8 SCC 368 has held as under:
"21. A disturbing feature of this case is that even after notice of the writ petition when the State of Haryana became aware that Khub Ram lacked essential qualification and his certificates were unreliable, it took no action to undo the ill effects of fraud by taking any action against Khub Ram. As a result Khub Ram continued in service for a number of years and also earned promotions. This was at the cost of claim of other genuine selected candidates whose cases could have been considered if action had been taken at appropriate time. In such a situation, although we have granted no relief to Mahavir Prasad by ordering for his appointment, we direct the State of Haryana to compensate Mahavir Prasad by paying him an amount of Rs.3,00,000/- (Rupees Three Lacs) within two months. A further amount of Rs.1,00,000/- (Rupees 24 one lac) should also be deposited by the State of Haryana with the Supreme Court Mediation Centre within the same time. The State of Haryana would be at liberty to fix responsibility as to who was at fault for not taking action in the matter after the deceitful acts came to its knowledge through filing of the writ petition in 1992, and if possible, to recover the aforesaid amount of Rs.4,00,000/- (Rupees Four Lacs) from the concerned persons, in accordance with law, if they are still in office."
26. The Hon'ble Supreme Court in the case of R. Vishwanatha Pillai v State of Kerala in 2004(2) SCC 105 at paragraph-15 has held as under:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong 25 to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the 26 Scrutiny Committee and upheld up to this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
27. This Court is aware of the fact that on 12.1.2012 this Court while issuing rule had directed the Corporation to 27 maintain status quo as on that date. It is well settled that any interim order passed by this Court is always subject to the result of the writ petition. Merely because the petitioner has been continued in service since 2010 till date, he is not entitled to any relief of equity since he has produced fake Transfer Certificate and in view of the dictum of the Hon'ble Supreme Court stated supra.
28. This Court is also aware of the fact that while exercising the powers under Articles 226 and 227 of the Constitution of India, the Courts must keep in view the goals set out in Preamble and in Part-IV of the Constitution while construing the social welfare legislation. The fact in the present case is that the very appointment is obtained by the petitioner by producing fake certificate depriving the appointment to another genuine person, who would have got employment in the Corporation amounting to cheating 28 of the Corporation as well as the person eligible to be appointed and also to the family of the petitioner.
29. The materials also clearly disclose that the enquiry conducted by the Enquiry Officer, Disciplinary Authority, Tribunal as well as the jurisdictional authorities especially the Block Education Officer, who is the jurisdictional authority to control all the Primary Educational Institutions with respect to issue of Admission numbers, Transfer Certificates and has submitted the report that the Transfer Certificate obtained by the petitioner is false and based on that false certificate, he has obtained the appointment. Therefore, no leniency can be shown to the petitioner in the facts and circumstances of the case.
30. The Labour Court considering the entire material on record has proceeded to reject the claim petition confirming the orders passed by the Disciplinary Authority which is based on both oral and documentary evidence on 29 record and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned award passed by the Labour Court in exercise of powers under the provisions of Articles 226 and 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
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