Madras High Court
M. Karnan vs The Presiding Officer on 9 June, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 9..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 8446, 13715, 15727 of 1997 and 3779 of 1998 W.P. Nos. 8446 & 15727 of 1997: M. Karnan .. Petitioner in W.P. No. 8446 of 1997 R2 in W.P. No. 15727 of 1997 vs. 1. The Presiding Officer Labour Court, Madurai 2. The Management Pandian Roadways Corporation Bye-pass Road Madurai .. R2 in W.P. No. 8446 of 1997 & Petitioner in W.P. No. 15727 of 1997 Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records from the file of the first respondent in I.D. No. 682 of 1990 and quash the Award dated 23.9.1996. W.P. No. 13715 of 1997: The Management Pandian Roadways Corporation Bye-pass Road Madurai .. Petitioner vs. 1. The Presiding Officer Labour Court Madurai 2. V. Ramamoorty .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records in I.D. No. 300 of 1991 and quash the Award. W.P. No.3779 of 1998: I. Jusudoss .. Petitioner vs. 1. The Presiding Officer Labour Court Madurai 2. The Management Pandian Roadways Corporation Bye-pass Road Madurai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records from the file of the first respondent in I.D. No. 319 of 1991 and quash the Award dated 16.7.1997. For Workmen : Mr. D. Hariparanthaman for Mr. D. Saravanan For Management : Mr. R.P. Kabilan C O M M O N O R D E R
Heard the arguments of the learned counsel for the parties and perused the records.
2. In all these four writ petitions, the Management is the Pandian Roadways Corporation, which is a State owned Undertaking. In W.P. Nos. 8446 and 15727 of 1997, the wrokman is one Karnan. In W.P. No. 13715 of 1997, the workman is one Ramamoorthy and in W.P. No. 3779 of 1998, the workman is one Jesudoss.
3. Since all these writ petitions arise out of similar question dealt with by the first respondent Labour Court at Madurai and raise a common question of law, they were heard together and disposed of by a common order.
4. Nature of relief granted by the Labour Court:-
4.1. W.P. No. 8446 of 1997 is filed by the workman Karnan against the Award dated 23.9.1996 passed in I.D. No. 682 of 1990 in so far as it declined the relief of reinstatement and granted Rs.25,000/- as compensation in lieu of reinstatement.
4.2. W.P. No. 15727 of 1997 is filed by the Management against that portion of the Award dated 23.9.1996 passed in I.D. No. 682 of 1990 granting compensation in respect of the workman Karnan.
4.3. W.P. No. 13715 of 1997 is filed by the Management against the Award dated 31.10.1996 passed in I.D. No. 300 of 1991 in ordering reinstatement of the workman Ramamoorthy with 50% of the backwages.
4.4. W.P. No. 3779 of 1998 is filed by the workman Jesudoss against the Award dated 16.7.1997 passed in I.D. No. 319 of 1991 in dismissing the I.D. without any relief.
5. W.P. No. 15727 of 1997, interim stay was granted on 23.10.1997 for a period of 12 weeks in W.M.P. 24930 of 1997. The said stay petition was dismissed on 27.8.2003. In W.P. No. 13715 of 1997, by an order dated 08.9.1997, interim stay was granted directing the Management to deposit 50% of the Award amount within a period of twelve weeks from the date of receipt of a copy of this order in a Fixed Deposit for a initial period of three years and renewable thereon to the credit of I.D. No. 300 of 1991. On 02.7.1998, the condition was modified wherein the workman Ramamoorthy was allowed to withdraw interest on the Fixed Deposit every three months and also the Management was directed to pay the workman the last drawn wages from 03.9.1997 in terms of Section 17B of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'] pending disposal of the writ petition.
6. Genesis of the case of each workman:-
In order to appreciate the legal question involved in these writ petitions, it is necessary to refer to the following facts:-
6.1. The case of Karnan:-
(a) The workman Karnan was appointed as a Driver in the year 1986 on his name being sponsored by the Employment Exchange. In the communication date 20.11.1985 marked as Ex. M.28 sent by the Employment Exchange, serial No. 202 refers to his name and the endorsement reads as follows:202
T.409/82 1.2.82 M. Karnan S/o Mookkasamy Thevar Valanthoor Usilampatti Tk.
14/05/1957 BC VIIIth Std.
He was suspended from service on 18.8.1989 and a charge-memo dated 01.9.1989 was given to him stating that he had obtained the post of Driver without fulfilling the minimum qualification of 8th Standard. An enquiry was held in which the charges were proved. He was terminated by an order dated 05.01.1990. Thereafter, he raised a dispute which finally resulted in the Labour Court taking up the dispute as I.D. No. 682 of 1990.
(b) Before the Labour Court, a preliminary issue was raised regarding the validity of the enquiry conducted against the workman. The Labour Court held by its preliminary order dated 03.12.1993 that the enquiry conducted against the workman was not proper. Thereafter, the parties let in evidence before the Labour Court. The workman examined himself as W.W.1 and on behalf of the Management, two witnesses were examined as M.W.1 and M.W.2. On the side of the Management, 29 documents were filed and they were marked as Exs. M.1 to M.29. Before the Labour Court Ex. M. 29, the appointment order dated 25.3.1987 was filed in which it was stated as follows:
"If and when any information furnished by him in his application regarding his qualification, previous experience, etc., is found to be incorrect or not true, he will be liable for dismissal and such further action as is deemed fit."
(c) Ex. M.22 is a Mercy Petition sent by the workman stating that he was suffering from acute poverty without employment and in order to join duty, he has given a false educational certificate and he regrets for his conduct and also pleaded for leniency. The Labour Court held that giving a false certificate and joining duty is certainly a misconduct enumerated under 16(5) and 16(9) of the Certified Stating Orders of the Pandian Roadways Corporation Ltd. wherein it is clearly stated as follows:
"16.5. Theft, fraud or dishonesty in connection with the company's business or property or a theft of another employee's property within the establishment."
16.9. Habitual breach or gross and / or deliberate violation of any Standing Orders of any law applicable to the establishment or of any rules made thereunder."
(d) Hence, the Labour Court found that the dismissal was justified in terms of the Standing Orders. But considering the fact that the workman had worked for four years, it granted Rs.25,000/- as compensation in lieu of reinstatement by its Award dated 23.9.1996. Aggrieved by this Award, both the workman and the Management have filed the two writ petitions, viz., W.P. Nos. 8446 and 15727 of 1997.
6.2. The case of Ramamoorthy:-
(a) The name of Ramamoorthy, the workman in W.P. No. 13715 of 1997, was sponsored by the Employment Exchange. At the time of joining service, he gave an educational certificate stating that he had passed 8th Std. and produced a Certificate from the Hindu Aided Higher Elementary School at Chinnamangulam. When it was verified with the District Educational Officer, the Management was informed that from 1960-1962, it was only a Higher Elementary School but in 1976, when the workman claimed to have studied 8th Std, such a class was not available in the school and, therefore, it was a false certificate. On the basis of the same, he was suspended w.e.f. 14.7.1990 and a charge-memo dated 24.7.1990 was given to him. Thereafter, he submitted his explanation on 18.8.1990 and after conducting an enquiry, a second show cause notice was given to him on 24.9.1990 for which he gave an explanation on 05.10.1990 and he was dismissed from service by an order dated 31.12.1990. Thereafter, he raised a dispute before the Government Labour Officer and finally, the matter was taken up by the first respondent Labour Court in I.D. No. 300 of 1991 and issued notice to the Management.
(b) Before the Labour Court, the workman examined himself as W.W.1 whereas on the side of the Management, three witnesses were examined as M.W.1 to M.W.3. On the side of the workman, he filed a copy of the Certified Standing Orders and on the side of the Management, 27 documents were filed and they were marked as Exs. M.1 to M.27. The Labour Court referred to Exs. M.21 and M.27, requisitions made to the Employment Exchange asked for sponsorship of candidates for the post of Drivers with 8th Std. pass. Thereafter, the Labour Court held that either in the Certified Standing Orders or under the Motor Vehicles Act, there is no requirement for passing 8th Std. to hold the post of Driver. It also held that it cannot be a misconduct in terms of the Standing Orders. It further held that one Pandi, who was also working similarly and was dismissed from service by Ex. M.22 was subsequently taken on service as a temporary workman the terms of Settlement under Section 18(1) of the I.D. Act marked as Ex. M.24. Therefore, there has been no dismissal given to any person in violation of the so-called qualification. It also held that even assuming that the charge of giving a false certificate is proved, the Management could have imposed a lesser punishment and instead of finding it out at the time of appointment, raising the issue after such a long period is not allowed as they are estopped from doing so. It also held that for giving a false certificate, the said charge cannot be framed under the Standing Orders and in view of the matter, he was directed to be reinstated with 50% of the backwages.
6.3. The case of Jesudoss:-
(a) The workman Jesudoss was sponsored by the Employment Exchange and when reported for interview on 14.12.1985, he claimed that he had passed 8th Std. and he was given employment and on 27.4.1987, he was made permanent. When he was asked to give his educational certificate, he said that he had misplaced the same. He also stated that when he went to his old school and asked the Headmaster for the certificate, he refused to give a new one. As his reply was suspicious, a letter was addressed to the Headmaster of the Venkateswara Vidyasala, Thirumangalam Taluk, Madurai District. The Headmaster replied stating that the workman had not studied in that school and the school was having only up to 6th Std. When the workman was confronted with this information, he stated that he had studied only upto 7th Std. and he did not study in the Venkateswara Vidyasala, Thirumangalam, Madurai District. Therefore, he was charge-sheeted by a charge-memo dated 23.1.1987. Subsequently, an enquiry was conducted and he was dismissed from service w.e.f. 25.11.1987 finding that he had not passed 8th Std. He raised a dispute before the first respondent Labour Court and the same was taken on file as I.D. No. 319 of 1991.
(b) Before the Labour Court, no oral evidence was let in by both sides. On the side of the workman, only the Certified Standing Orders were marked and on the side of the Management, 25 documents were filed and they were marked as Exs. M.1 to M.25. The requisition made by the Management to the District Employment Exchange was marked as Ex. M.16 and the list of names sponsored by the Employment Exchange was marked as Ex. M.17. The attestation form given by the workman was marked as Ex. M.19 and the confirmation letter dated 29.4.1987 was marked as Ex. M.20. The Labour Court rejected the contention made by the workman that the misconduct committed by him will not come under 16(5) and 16(9) of the Standing Orders. It held that the workman had submitted a false educational certificate and since the Headmaster of the School had replied that the School was not having 8th Std. and the letter filed in the enquiry can be accepted as a material evidence. It also held that the workman did not have the minimum qualification for holding the post of Driver. The case of Pandi, relied on by filing Exs. M.21 to M.25 cannot alter the case of this workman and it was not commenting upon those exhibits in this case. Once it is held to be misconduct and the charges have been proved, it held that the punishment of dismissal was proportionate and dismissed the I.D.
7. Arguments advanced on behalf of the workmen:-
7.1. Mr. D. Hariparanthaman, learned counsel appearing for the workmen made the following submissions:-
(a) There is no qualification of 8th Std. pass required for the post of Driver as it is not prescribed either in the Certified Standing Orders or under the Motor Vehicles Rules do not prescribe the same as a pre-condition.
(b) Once it is not prescribed as a misconduct under the Standing Orders, no enquiry into the so-called misconduct is permissible.
(c) Proper procedure was not followed in finding the workmen guilty.
(d) He pleaded for leniency in respect of the workmen for they had worked number of years and prayed for their reinstatement with backwages.
(e) In the case of Pandi, though he was dismissed from service for a similar charge, was subsequently restored to duty and documents have been filed for which the employer has no clear answer and it is a clear case of discrimination.
8. What is the qualification for the post of Driver?
8.1. The Certified Standing Orders do not prescribe qualifications for any post. Reference to the Motor Vehicles Act to look for educational qualifications is meaningless. Therefore, it will have to be seen as to whether the employer has prescribed 8th Std. pass as a qualification.
8.2. In the counter statement filed in all the Industrial Disputes, the Transport Corporation had pleaded that the pass in 8th Std. is a prevailing requirement for appointment for the post of Driver. Therefore, when they made the requisition to the Employment Exchange, they had prescribed the following requirements:
(i) Height 160 cm.
(ii) Should have passed VIII standard
(iii) Eighteen months should have lapsed after his taking heavy vehicle driving licence.
Consequently, the Employment Exchange forwarded the list of names of candidates marked as Ex. M.28 dated 20.11.1985 in Karnan's case. It is clearly shown that only names of candidates, who have passed VIII Std. and above alone were forwarded. The statement made in the counter statement regarding the requirement was not denied by filing any joinder.
8.3. Further, in the case of workman Karnan, he had pleaded for leniency for giving a false certificate as per Ex. M.22 dated 10.5.1995. It was clearly indicated that VIII Std. pass was the prevailing rule for appointment to the post of Driver and it is an essential requirement. The workmen have also submitted educational certificates showing that they had passed 8th Std.
9. Whether the minimum educational qualification prescribed is authorised by law?
9.1. The learned counsel for the petitioners thereafter contended that having passed in the VIII Standard is not a qualification prescribed under the Standing Orders and undoubtedly, all the petitioners are in possession of a Driving Licence which alone is an essential qualification for a Driver. They have also gained sufficient experience over the last few years.
9.2. It is not for this Court to go into as to what is the essential qualification. In fact, it is for the employer to prescribe qualification for any post for which they require candidates. In the present case, the Board of Directors have made Service Rules and also Board Resolutions prescribing VIII Standard as the minimum qualification. Even when requisitions were sent to the respective Employment Exchanges, these qualifications were indicated and it is only because the petitioners have claimed to have such qualification, their names were sponsored. It is only because of requirement of such educational qualification, the petitioners have allegedly produced bogus educational certificates.
9.3. The Supreme Court vide its decision in J. Ranga Swamy v. Government of Andhra Pradesh [1990 (1) SCC 288] has held that it is not for the Court to consider the relevance of qualifications prescribed for various posts.
9.4. In fact, more or less, in an identical circumstance, the Supreme Court had dealt with the case of recruitment of Drivers by the State of Punjab vide its decision in Bashir Ahmed v. State of Punjab [(1996) 8 SCC 697]. The relevant passage found in paragraph 3 of the said judgment may be usefully extracted:
Para 3: "The learned counsel for the appellants has strenuously contended that this Court in B.N. Saxena v. New Delhi Municipal Committee read down the rule holding that after the initial appointments experience gained for a considerable length of time is itself a qualification for promotion and, therefore, requirement of further qualification was bad in law. He also relied upon another judgment in State of U.P. v. J.P. Chaurasia. Relying thereon, it is contended that the rule prescribing educational qualifications as one of the qualifications for direct recruitment must be read down. So read down, since the appellants have the necessary experience, it must be construed to be a qualification for recruitment. The view taken by the High Court and recruitment authority is bad in law. We find no force in that contention. It is seen that for direct recruitment as a driver, the rules prescribe two qualifications, namely, light vehicle driving licence and knowledge of Punjabi language up to middle standard. The Rules also prescribe promotion of 10% drivers from the lower rank of cleaner. Therein, it is provided that apart from the qualifications prescribed for direct recruitment, the cleaner also must have an experience of a minimum period of 4 years. We are not concerned with regard to the promotion from the cadre of cleaners to the post of driver within the quota of 10%. Therefore, the question of reading down the rule does not arise. We are concerned with the direct recruitment only. The Government in the Rule have prescribed driving licence and also knowledge of Punjabi language up to middle standard to be the qualifications. Therefore, anyone who possesses those qualifications has to be considered for recruitment. Since, admittedly, the appellants are not fulfilling the said criteria, the dismissal of the writ petition cannot be said to be illegal."
[Emphasis added]
10. Whether non-mentioning of the misconduct in the Standing Orders will help the case of the workmen?
10.1. With reference to the argument advanced by the learned counsel for the workmen that it is not a misconduct, is only stated to be rejected. In respect of the conduct of any workman, there are two types of situations. One is the conduct before entering into service and the second is the conduct which are defined as misconduct after entering into service. Therefore, the judgment relied on by the Labour Court relating to Glaxo Laboratories Ltd. v. Presiding Officer [1984 (1) SCC 1] will have no relevance.
10.2. In fact, the Supreme Court in the judgment in Bharat Petroleum Corporation Ltd. v. T.K. Raju [(2006) 3 SCC 143] dealt with Glaxo Laboratories Ltd. case (cited supra) and distinguished the same. The relevant passages found in paragraphs 10 to 13 of the judgment may be usefully extracted below:-
Para 10: ".... Glaxo was also rendered in the fact-situation obtaining therein. It is not in dispute that misconduct is a generic term.
Para 11: "In State of Punjab v. Ram Singh Ex-Constable it was stated: (SCC pp. 57-58, para 5) 5. Misconduct has been defined in Blacks Law Dictionary, 6th Edn. at p. 999 thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness. Misconduct in office has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. Para 12: "In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd Edn. at p. 3026, the term misconduct has been defined as under:
The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and 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. Misconduct literally means wrong conduct or improper conduct. Para 13: "On more than one occasion, different courts have taken pains to explain that Kalra does not lay down any inflexible rule. (See Probodh Kumar Bhowmick v. University of Calcutta, Tara Chand v. Union of India, Secy. to Govt. v. A.C.J. Britto and Noratanmal Chouraria v. M.R. Murli.)"
10.3. Long ago, the Supreme Court in W.M. Agnani v. Badri Das and others [(1963) 1 LLJ 684] held in paragraph 15 as follows:
Para 15: ".... It is true, that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern, may, in some cases, constitute misconduct; if the conduct proved against the employees is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders are framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with common sense."
10.4. The conduct before entering into service need not be referred to in the Standing Orders and any person, who is not having any essential qualification or enters into service with fake certificates showing such qualification can even be removed summarily as has been held by the Supreme Court in Superintendent of Post Offices v. R. Valasina Babu [(2007) 2 SCC 335] and the following passages found in paragraphs 14 and 15 may be extracted below:-
Para 14: "The question in regard to the effect of obtaining appointment by producing false certificate came up for consideration in State of Maharashtra v. Ravi Prakash Babulalsing Parmar wherein this Court opined that the authorities concerned would have jurisdiction to go into the said question and pass an appropriate order. The effect of cancellation of such caste certificate had also been noticed in the light of a two-Judge Bench decision of this Court in Bank of India v. Avinash D. Mandivikar2 wherein it was held that if the employee concerned had played fraud in obtaining an appointment, he should not be allowed to get the benefits thereof, as the foundation of appointment collapses.
Para 15: In this view of the matter, we are of the opinion that in a case of this nature, it might not have been necessary to initiate any disciplinary proceeding against the respondent."
11. Procedural requirement for conducting enquiries in the matter of this nature:-
11.1. With regard to the procedural requirement of conducting an enquiry, the learned counsel for the petitioners contended that the educational authorities, before informing the respondent, should have heard the petitioners and, hence, pleaded that reliance placed upon the communication sent to the respondent should be eschewed for being considered for any further action.
11.2. In this context, the Supreme Court vide its decision in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others [(1991) 2 SCC 716] has held that the principles of natural justice will depend on the nature of inquiry and the peculiar circumstances of each case. The relevant passages found in paragraphs 17, 20 & 21 may be usefully extracted below :-
Para 17: "The students involved at the examination of secondary education are by and large minors but that by itself would not be a factor to hold that the students were unfairly treated at an inquiry conducted during the domestic inquiry. Assistance of an advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice. It depend on the nature of the inquiry and the peculiar circumstances and facts of a particular case. The regulations and the rules of enquiry specifically excluded the assistance of an advocate at the inquiry. Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice. The show cause notice furnished wealth of material particulars on which the tampering was alleged to be founded and gave the opportunity to each student to submit the explanation and also to adduce evidence, oral or documentary at the inquiry. Each student submitted the explanation denying the allegation...."
Para 20: "Unless the rule expressly or by necessary implications excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgment. But the reasons may be precise. . . . The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order,need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge."
Para 21: "Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of this Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."
11.3. Further, in identical circumstances, a Division Bench of this Court in W.P. No. 19063 of 2004 [P. Sekar v. The Registrar, Tamil Nadu Administrative Tribunal, Chennai and others], disposed on 16.02.2008, has held as follows:-
Para 5: "Therefore, the contention of the petitioner that the enquiry report and the order of punishment are based on no evidence is not acceptable. In a departmental enquiry, technical rules of the Evidence Act are not strictly applicable. On behalf of the Department, the letter of the Director of Government Examinations dated 7.11.2001 had been produced indicating that the marks reflected in the mark sheet submitted by the petitioner did not tally with the marks available from the original records. The petitioner himself was examined during the departmental enquiry and the questions put and the answers given are available on record. Except baldly stating that the petitioner has got mark sheet from the school, there is no other acceptable material or detail has been given. It is not even the case of the petitioner that he had actually passed and the report given by the Director of the Government Examinations is incorrect. Since the petitioner had submitted a mark sheet, which was found to be incorrect, it was within the subject knowledge of the petitioner as to the source of obtaining such mark sheet and it was for him to explain such aspect by adducing proper evidence. To that extent, the Tribunal was correct in coming to the conclusion that the charge has been found against him."
Therefore, it is not a case of disciplinary action but a question of not having the essential qualification for continuing in service.
12. Whether leniency can be shown in such cases:-
In fact, in such cases, the Court cannot show any sympathy. The Supreme Court in Ram Saran v. IG of Police, CRPF [(2006) 2 SCC 541] observed in paragraphs 9 to 11 as follows:
Para 9: "In R. Vishwanatha Pillai v. State of Kerala it was observed as follows: (SCC pp. 116-17, para 19) 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 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. Para 10: Though the case related to a false [caste] certificate, the logic indicated clearly applies to the present case.
Para 11: This is a case which does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery. In the instruction (GO No. 29 of 1993), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of the recruitment rules, etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved, the government servant should be removed or dismissed from service and under no circumstances any other penalty should be imposed."
13. Whether the plea of discrimination can be accepted?
13.1. The learned counsel appearing for the workmen relied upon the following judgments
(a) Sengara Singh and others v. State of Punjab [(1983) 4 SCC 225]
(b) Director General of Police and others v. G. Dasayan[(1998) 2 SCC 407]
(c) Akhilesh Kumar Singh v. State of Jharkhand and others [(2008) 2 SCC 74] to drive home the point that if two similarly situated persons are dealt with differently by the employer, then the Court can consider the same as discrimination and can also interfere with the punishment.
13.2. The first judgment Sengara Singh's case (cited supra) dealt with the case of dismissal of 1100 Policemen out of which 1000 were reinstated in service and for the others, it was pleaded that those who were not restored, had criminal cases against them. But, as a matter of fact, it was found that even those criminal cases were withdrawn and hence, relief was granted. The following passages found in paragraph 9 will make the position clear:
Para 9: ".... But approaching the matter from this angle, all the 1100 dismissed members of the Police Force were guilty of same misconduct namely indiscipline to the same extent and degree as the present appellants. Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, we see no justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the Court the distinguishing features and therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution. The Court must accordingly interpose and quash the discriminatory action."
13.3. In the Dasayan's case (cited supra) relied on by the learned counsel appearing for the workmen, the Court ultimately found that the punishment was proper and only converted the dismissal into one of compulsory retirement. This hardly helps the case of the workmen.
13.4. In the Akhilesh Kumar Singh's case (cited supra), the Supreme Court in paragraphs 15 and 16 of the judgment observed as follows:
Para 15: "It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly.
Para 16: Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that Charge 1 was a very serious one and Shri Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, Charge 2 had also been partly proved against him; whereas the appellant admitted his guilt in relation thereto."
13.5. Even otherwise, with regard to the case of Pandi on which strong reliance has been placed, it must be stated that one illegality will not justify another illegality. For this purpose, it is necessary to refer to the recent judgment of the Supreme Court in State of Jharkhand v. Manshu Kumbhkar [(2007) 8 SCC 249] and the following passage found in paragraph may be relevant to be quoted:
Para 11: "Reliance by the High Court on the order passed in Sanjay Kumar case was thoroughly misconceived. It is to be noted that LPA was dismissed on the ground of delay. Even otherwise, merely because mistake had been committed in one case, there is no rational for perpetuating that mistake, even when the same is legally impermissible...."
14. In the light of the same, the submission made by the learned counsel for the workmen must necessarily fail. Accordingly, W.P. Nos. 8446 of 1997 and 3779 of 1998 filed by the workmen will stand dismissed. W.P. No. 13715 of 1997 and 15727 of 1997 filed by the Management will stand allowed. However, there will be no order as to costs. The Management of the Pandian Roadways Corporation is allowed to withdraw the amounts deposited by them due to the interim orders passed by this Court. 9..6..2008 Index : Yes Internet : Yes gri To The Presiding Officer Labour Court Madurai K.CHANDRU, J.
gri Pre-Delivery Common Order in W.P. No. 8446 of 1997, etc. batch Delivered on
9..6..2008