Karnataka High Court
Sri Nanjappa S/O Mariyappa vs The Management Of Bmtc on 16 January, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NO.8587/2008 (L-TER)
BETWEEN:
Sri Nanjappa,
S/o. Mariyappa,
Aged about 53 years,
Residing at Vapasandra,
Jigani Post, Anekal Taluk,
Bangalore District.
... PETITIONER
(By Sri V.S. Naik, Adv.)
AND:
The Management of BMTC,
Central Offices,
K.H. Road, Shanthinagar,
Bangalore - 560 027.
Represented by its Managing Director.
... RESPONDENT
(By Smt. H.R. Renuka, Adv.)
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the order
dated 10.4.2006 passed by the III Addl. Labour Court,
Bangalore, in I.D.No.18/2001 and the award dated
8.10.2007 passed by the Labour Court, Bangalore, vide
Annexures -C and E respectively.
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This petition coming on for final hearing this day, the
Court made the following:
ORDER
In this writ petition, the petitioner has impugned an award dated 08.10.2007 in I.D.No.18/2001, passed by the learned Presiding Officer, III Addl. Labour Court, Bangalore, whereby, the Labour Court dismissed the dispute/claim statement filed under S.10 (4-A) of Industrial Disputes Act, 1947, (for short 'the Act'), with a prayer to set aside the order of dismissal dated 12.02.2001 and extend the consequential benefits.
2. Materials facts of the case are:
In response to advertisement No.2/85, the petitioner made an application dated 28.10.1985, for recruitment to the post of Junior Assistant in the respondent-corporation. In that application, the petitioner stated his date of birth as 06.03.1954 and declared that the information furnished by him in the application is correct and complete and if it is found any information furnished is untrue, he would be liable for dismissal from the service, apart from any 3 criminal action. Based on the particulars furnished in the said application, petitioner was interviewed, selected and was recruited as Junior Assistant in the respondent- corporation on 30.07.1988. Petitioner did not submit his SSLC marks card at the time of reporting to duty, despite instruction issued to produce the same, in connection with the opening of service register. Petitioner produced an affidavit dated 05.01.1992 swearing and declaring that his date of birth is 06.03.1954. However, he submitted marks certificate issued by the Board of Pre-University Education. Petitioner did not submit SSLC pass certificate, the basic record, with regard to qualification and date of birth, to ascertain truth with regard to his qualification and date of birth. Divisional Security Officer was directed to verify and submit a report. A verification report was submitted, which showed the date of birth of the petitioner is 06.03.1952. Having taken note of the mischief played in the matter of obtaining the appointment by the petitioner, though not eligible, by false declaration and his failure to submit the SSLC pass certificate, swearing to a false affidavit, the 4 respondent decided to hold a disciplinary enquiry. Articles of charge along with imputations, list of witnesses and list of documents, dated 28.04.1999 was issued. The petitioner submitted explanation, wherein, he did not state the reason for non-production of SSLC pass certificate. The disciplinary authority having found that it is necessary to proceed further, appointed an enquiry officer by an order dated 11.06.1999, to enquire into the articles of charge dated 28.04.1999. In the enquiry, petitioner engaged a co-worker as to represent him. After conclusion of the enquiry, a report dated 09.05.2000 was submitted, in which, it was held that the petitioner is guilty of the charge leveled against him. A show cause notice dated 11.05.2000, along copy of the enquiry report was served on the petitioner and he submitted a reply on 26.05.2000, maintaining that his date of birth is 06.03.1954 and not 06.03.1952. The disciplinary authority, upon consideration of the record, found the petitioner guilty of the charge leveled against him and as a result, passed an order dated 12.02.2001, dismissing the petitioner from the service. 5
The said order, when assailed before the Labour Court, the respondent filed a counter statement and contested the claim petition. Based on the pleadings, 4 issues were raised. On 26.12.2002, the petitioner through his advocate filed a memo, giving consent to mark the domestic enquiry papers filed by the management. Upon hearing on memo, the documents produced by the management were marked as Exs.M1 to M27. Considering an application filed by the petitioner, he was permitted to lead evidence. The petitioner got himself examined and marked the documents at Exs.W1 and W2. Considering the rival contentions, by an order dated 10.11.2004, it was held that the domestic enquiry conducted by the management against the workman is fair and legal. The petitioner led further evidence with regard to victimisation and marked Exs.W3 to W6. Considering the rival contentions and the record of the case, Labour Court passed the aforesaid award and dismissed the claim. Feeling aggrieved, workman has filed this writ petition.
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3. Sri V.S. Naik, the learned advocate for the petitioner contended as follows:-
i) Labour Court, on assumptions and presumptions has erred in holding that, if the SSLC marks card had been produced by the workman, the same would have gone against him and therefore, he did not produce the same.
Adverse inference drawn is unwarranted.
ii) Petitioner was appointed as a Junior Assistant on 30th July 1988 and was confirmed in service, upon satisfactory completion of service of probation with effect from 30.07.1990 and after more than 9 years from the date of confirmation, disciplinary proceeding was initiated and order of dismissal from the service was passed on 12.02.2001. The order of dismissal passed in the said background is unjust, arbitrary and illegal.
iii) The evidence on record was not correctly appreciated findings recorded in the impugned award is perverse and illegal.
4. Smt H.R. Renuka, learned advocate appearing for the respondent, on the other hand contended as follows:
i) Petitioner deliberately has failed to produce the best evidence. SSLC marks card was not produced, either 7 before the appointing authority or in the proceedings before the Labour Court, much less in this writ petition and hence, adverse inference has to be drawn against the petitioner.
ii) The enquiry record produced before the labour court was marked with consent. The disciplinary enquiry conducted was found to be fair and legal. No credible evidence was produced even before the Labour Court, in proof of the date of birth of the petitioner as 06.03.1954.
iii) The correct date of birth of the petitioner being 06.03.1952, on the date he submitted the application for appointment, he was over aged and thus, was ineligible to be appointed. Appointment having been obtained by furnishing false information, petitioner having submitted a false declaration, the petitioner's service was terminated, since there is violation of discipline and conduct rules of the corporation by the petitioner, who has committed fraud.
iv) There is detailed appreciation of oral and documentary evidence brought on record, by the Labour Court and its findings being just, the award passed is unassailable.
5. Perused the records. In view of the rival contentions, the point for determination is, whether the 8 order of dismissal from service passed against the petitioner is arbitrary and illegal?
6. Exs.M1 to M27 were marked by consent before the Labour Court. The school records Exs.M3 to M7 shows the date of birth of the petitioner is 06.03.1952. Ex.M9 is a show cause notice issued to the petitioner to produce his original SSLC marks card and transfer certificate. Ex.M10 is a representation submitted by the petitioner, wherein, he has stated that he studied in Anekal Taluk Jigani Rural Welfare School upto SSLC and that he has submitted an application to the Higher Education Board, to issue his SSLC marks card and sought time to produce the same. Since the original SSLC marks card and transfer certificate was not produced, an endorsement Ex.M11 was issued. The petitioner having produced PUC marks certificate, must have necessarily passed SSLC. Despite repeated opportunities granted, petitioner failed to produce the SSLC marks card. The said record, if had been produced, would have shown his correct date of birth. The petitioner 9 has withheld the best evidence i.e., SSLC marks card and hence adverse inference was rightly drawn against him.
7. If any candidate furnishes false or incomplete information or withholds or conceals any material information in the application for employment, such candidate will be debarred from securing the employment. An applicant, if has been appointed, the service is liable to be terminated for furnishing false information.
8. The petitioner having stated in his application for appointment as at Ex.M28, that his date of birth is 06.03.1954, has failed to produce any credible proof in support of the same. On the other hand, the school records marked as Exs.M3 to M7 would clearly show that the date of birth of the petitioner was 06.03.1952.
9. If the correct date of birth of the petitioner is taken into consideration, the petitioner was over aged and could not have got the appointment as Junior Assistant in the respondent-corporation. The petitioner by producing 10 fake record has misled the respondent in the matter of obtaining the appointment. The petitioner is not eligible for the appointment, on account of he being over aged. Even otherwise, the misconduct on the part of the petitioner, in respect of which the articles of charge was issued and disciplinary enquiry was held, has been established by brining on record credible evidence.
10. The findings recorded by the Labour Court is based on the documents marked by consent, i.e., Exs.M1 to M27 and there being no credible material brought on record by the petitioner in proof of his claim that his date of birth is 06.03.1954, the order of dismissal from service passed by the respondent is justified. Principles of acquiesance, delay or estoppel are not attracted, since the case is one of fraud committed by the petitioner against the respondent, to obtain appointment. There is correct appreciation of the record of the case by the Labour Court and hence, I do not find any justification to interfere with the impugned award and grant relief to the petitioner. 11
In the result, writ petition being devoid of merit is dismissed. However, the parties are directed to bear their respective costs.
Sd/-
JUDGE Ksj/-