Karnataka High Court
Bmtc, Central Office vs Sri P Jai Singh on 5 September, 2013
Equivalent citations: 2014 LAB. I. C. 832, 2014 (1) AIR KANT HCR 62
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1 R
W.P.42694/12
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 42694 OF 2012 (L-KSRTC)
BETWEEN
BMTC, CENTRAL OFFICE
K.H. ROAD, SHANTHINAGAR,
BANGALORE-560027
REP. BY CHIEF LAW OFFICER
B.M.T.C
... PETITIONER
(By Sri. K S BHARATH KUMAR, ADVOCATE)
AND
SRI P JAI SINGH
AGED ABOUT 50 YEARS,
S/O PADMA SINGH,
EX. DRIVER, BADGE NO.8440, BMTC
RESIDING AT SITE NO.480/1,
3RD CROSS, 50 FT. ROAD,
KUMARASWAMY LAYOUT,
2ND STAGE, BANGALORE-79.
... RESPONDENT
(By Sri. V S NAIK , ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS ON THE FILE OF THE PRESIDING OFFICER, III ADDL.
LABOUR COURT, BANGALORE IN RESPECT OF ID.NO.43/07
AND QUASH THE AWARD AT ANN-C, MADE IN ID.NO.43/07
DT.6.3.12, PASSED BY THE PRESIDING OFFICER, III ADDL.
LABOUR COURT, BANGALORE; AND ETC.
2
W.P.42694/12
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner - Corporation having invited applications to fill up the vacant post of drivers was responded to by the respondent with an application declaring his educational qualification supported by a Transfer Certificate bearing No. 22/89-90 (admission No. 122/73-74) issued by the Government Kannada Model Middle School (Training College), Nazarabad, Mysore, following which the respondent was appointed to the post of driver. The certificate when subjected to verification, on an investigation, Admission No. 122/73- 74 was found to be in respect of one H.V. Nagaraj and not in respect of the respondent, hence the declaration was false.
2. Petitioner - Corporation initiated proceeding by issuing an Articles of charge calling upon the respondent to submit a reply to the allegation, followed 3 W.P.42694/12 by the appointment of an Inquiring Authority, an enquiry into the allegation by extending reasonable opportunity of hearing to the respondent, and a report holding the allegation proved. The Appointing Authority by order dt. 01.10.2007 terminated the respondent from service.
3. Respondent challenged the said order of termination by filing a claim petition invoking sec. 10(4- A) of the Industrial Dispute Act, 1947, for short 'Act', before the III Additional Labour Court, registered as I.D.No. 43/2007 arraigning the petitioner as the second party. On notice petitioner filed counter statement denying the allegations while contending that the respondent having made a false declaration over his educational qualification, while having none was disentitled to an appointment. In addition it was contended that there was no necessity to apply for and secure an approval of the termination of service by filing 4 W.P.42694/12 an application under Sec. 33(2)(b) of the Act in I.D.148/05 relating to dispute over charter of demands.
4. In the premise of pleadings, the Labour Court framed the following issues and additional issue :
"1. Whether second party management establishes that the domestic enquiry held against the first party applicant was fair and proper?
2. Whether the second party is justified in holding the first party applicant guilty of the alleged charges?
3. Whether the second party is justified in dismissal the first party applicant from service as per order dated 01.10.2007?
ADDITIONAL ISSUE :
1. Whether the first party applicant proves that the order of dismissal dated 01.12.2007 passed by the second party management dismissing him from service is nonest for want of approval of the Industrial Tribunal in I.D. No. 148 of 2005 as provided under Section - 33 (2)(d) of the Industrial Disputes Act, 1947?"5 W.P.42694/12
5. Petitioner examined one witness as MW1 and marked Ex.M1 to M30 while the respondent was examined as WW1. The Labour Court by Order dated 4.2.2011 held that the domestic enquiry was fair and proper and accordingly returned a finding in the affirmative over issue No.1. The respondent was further examined whence a document was marked as Ex.W1 i.e. the certified copy of the order dt. 2.9.2005 of the State Government referring I.D. 148/05 for adjudication.
6. The Labour Court did neither record reasons nor findings or answer issues 2 and 3 nevertheless opined that it was sufficient to record a finding that the order of termination was non-est since petitioner did not make an application under Sec. 33(2)(b) of the Act in I.D. 148/05 before the Industrial Tribunal and obtain prior permission to terminate the services of the respondent following the decision of the Apex Court in 6 W.P.42694/12 Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and Others reported in 2002 (I) LLJ 834.
7. By Award dated 6.03.2012 the Labour Court set aside the order dated 1.10.2007 terminating the services of the respondent and directed reinstatement with full backwages, continuity of service and all other consequential benefits. Hence this petition.
8. The submission of the Learned Counsel for the petitioner that the Labour Court having not answered the Industrial Dispute issues 2 and 3, under Sec. 10 (4-A) of the Act, failed to exercise a jurisdiction vested in it, at the threshold, deserves acceptance. The Industrial dispute brought before the Labour Court invoking Sec. 10 (4-A) of the Act, is over the termination of service of the respondent, a driver, as is evident from issues 2 and 3 supra. The Labour Court exercising a jurisdiction under Section 10 (4-A) of the Act, is required under the Act to adjudicate on the dispute and 7 W.P.42694/12 record a finding over the justification of the petitioner in terminating the service of the respondent, based upon facts, evidence and material on record, being a fact finding court while the High Court, does not sit as a court of Appeal against the Award of the Labour Court. In other words the fact whether the respondent had made a false declaration over his educational qualification in the application for appointment to the post of driver, and whether he did not posses the required qualification for being appointed to the said post, in terms of the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations 1982, for short '(C&R) Regulations', as alleged by the petitioner was true and correct and sequentially whether the respondent was justificably terminated from service in accordance with Regulation 4(9) of the (C & R) Regulations. Suffice it to state that the award impugned suffers from an error on the face of the record, hence unsustainable.
8W.P.42694/12
9. The next submission of the learned counsel for the petitioner that Sec. 33(2)(b) of the Act has no application to the facts and circumstances of the case, since the termination from service in terms of Regulations 4(9) of the (C & R) Regulation on the premise that the respondent secured an appointment on a declaration which on verification was found to false, is opposed by the learned counsel for the respondent on the submission that the articles of charge issued is in respect of a misconduct under the KSRTC servants (Conduct and Discipline) Regulations 1971 for short '(C & D) Regulation', followed by a Disciplinary Enquiry, and termination for a misconduct not connected with the dispute in I.D. 148/05, hence requires the approval of the Industrial Tribunal in the pending dispute over charter of demands, in which respondent admittedly is a workman concerned. Elaborating on the submission, it is stated that after the respondent was appointed as a driver and was discharging duties, the initiating of 9 W.P.42694/12 disciplinary proceeding by invoking regulation 23 of the (C & D) Regulations, on the framing of a charge in the Articles of charges, followed by the domestic enquiry, an opportunity of hearing, the findings of the enquiry officer holding the charge proved, and the order of the disciplinary authority dismissing the respondent for proved misconduct, is one not connected with the dispute in I.D. 148/05, hence a misconduct in the discharge of duties.
10. A perusal of the Articles of charge discloses that it is issued invoking Regulation 23 of the (C & D) Regulations but the substance of the allegation is the declaration over the educational qualification of the respondent, in the application for appointment to the vacant post of driver, supported by a transfer certificate, which on enquiry revealed was false and did not possess the required qualification for appointment to the said post, hence disqualified.
10W.P.42694/12
11. The (C & R) Regulations of 1982, contain the cadre and recruitment regulations in the petitioner corporation suffice it extract Regulation 4 (9) which reads thus :-
"Any person who has given false or wrong information in the application will be disqualified and if appointed and found at a later date that he has given false or wrong information, his services shall be terminated."
"The "Person" referred to in the sub-Regulation is the applicant for the post advertised to be filled up and not a corporation servant. The person on being appointed, and at a later date it is revealed that he has given a false declaration in the application shall stand disqualified and his services well stand terminated."
12. Thus respondent having made a declaration in the application about his educational qualification supported by the transfer Certificate, the basis for appointment to the vacant post of driver in the petitioner corporation, which when later on, while in service, found to be false, cannot but suffer not only disqualification but also termination from service. In 11 W.P.42694/12 other words a bar to the appointment and if appointed disentitled to continue in employment. Therefore it was incumbent upon the Labour Court to have answered issues 2 & 3 over the proof of the allegations.
13. In order to appreciate the submission that the allegation of making a false declaration is a misconduct under the (C&D) Regulations, in order to bring it within the said terms in Sec. 33(2)(b) of the act. Hence termination of service of the respondent is for a misconduct not connected with the pending industrial dispute in I.D.No. 148/05, relating to adjudication of claims in respect of charter of demands, in which the respondent is a workman concerned, it is useful to make reference to the said regulations.
14. The petitioner Road Transport Corporation with the previous sanction of the State Government, under sec. 45 of the Road Transport Corporation Act 1950, (Central Act 64 of 1950) by order dated 12 W.P.42694/12 15.03.1972 brought into force the (C&D) Regulations, in the matter of condition of service governing its employees. "Corporation Servant" is defined in Reg. 2(c) of the Regulations to mean an officer or servant of the Corporation whose conditions of appointment and service can be determined by the Corporation by regulations made under the Road Transport Corporations Act, 1950. Part II of the Regulations are provisions relating to conduct, requiring the General a Corporation Servant to at all times maintain (a) absolute integrity (b) devotion to duty and (c) do nothing which is unbecoming of a corporation servant. Regulations 4 to 17 provide for prohibition of various acts by corporation servants in the discharge of duties. The acts that are prohibited from being performed by a servant is not exhaustive but are inclusive of acts which are unbecoming of a corporation servant. Part III provides for Disciplinary proceedings, whereunder Reg. 18 provides for nature of penalties - Minor & Major - Reg. 13 W.P.42694/12 19 Disciplinary Authorities; Reg. 20 Authority to institute proceedings; Reg. 21 suspension pending Inquiry; Reg. 22 Procedure for imposing minor penalties; Reg. 23 Procedure for imposing major penalties amongst other regulations. Thus an indiscipline corporation servant will be subjected to disciplinary proceedings and if found guilty of such acts during discharge of duties, in other words 'misconduct', will suffer the penalty.
15. In the instant case petitioner corporation invoked regulation 23 of the (C&D) Regulations by issuing an Articles of charge detailing the allegation noticed supra and calling upon the respondent to submit a reply to the charge. The allegation against the respondent, is not of a conduct which is unbecoming of a corporation servant, in the discharge of duties as a driver, but upon his conduct prior to his appointment, in making a false declaration of his educational 14 W.P.42694/12 qualification to obtain an appointment, i.e., by unlawful means, attracting disqualification and termination from services under Sub-Regulation (9) of Reg. 4 of the (C&R) Regulations. Though the word 'charge' is mentioned in the 'Articles of Charge', the substance of the 'charge' is in relation to the false declaration and not over indiscipline in the discharge of duties as a Corporation servant.
16. Regard being had to the substance of the allegation against the respondent, it cannot be said that merely because the Appointing Authority, who is the Disciplinary Authority, invoked Regulation 23 of the (C & D) Regulations the charge could be termed a 'misconduct' in the discharge of duties as a driver. The plausible explanation is that the petitioner Corporation employs more than 1,20,000 employees against whom Disciplinary proceedings are invariably instituted by issuing Articles of charge, by which reason, the Articles 15 W.P.42694/12 of charge was issued to the respondent. In my opinion the submission of the learned Counsel for the respondent is hypertechnical and cannot be countenanced.
17. In the view that is taken, it is axiomatic that the term 'misconduct' in Section 33(2)(b) of the Act is inapplicable to the charge against the workman, more appropriately in the matter of allegation of false declaration in the application for appointment to a vacant post of driver in the petitioner - Corporation.
18. The last submission of the learned Counsel for the respondent that when the respondent was discharging duties as a driver, the petitioner issued the Articles of charge hence, is a 'misconduct' is far from acceptance and is rejected. It is needless to state that the appointment of the respondent as a driver is not final but is subject to verification of the declaration in the application for appointment and it would be 16 W.P.42694/12 disqualified if at a later date is found to be false and the service terminated, under sub-Regulation (9) of Regulation 4 of the (C & R) Regulations, 1982.
19. The finding of the Labour Court on additional issue that the order of termination of the respondent is non-est, for not having obtained the prior approval of the Industrial Tribunal in I.D. No.148/05, by filing an application under Section 33(2)(b) of the Act is unsustainable, since perverse. The decision of the Apex Court in Jaipur Zilla's case is in applicable to the facts supra.
20. Sri.V.S.Naik, learned counsel for the respondent submits that respondent has been reinstated into service pursuant to the interim directions of this court. If that is so, ends of justice would be met by directing the petitioner corporation to continue the respondent in service.
17W.P.42694/12
In the result, this petition is allowed. The award of the Labour court is quashed. The proceeding is remitted for consideration afresh and to record reasons, findings and conclusions over issue Nos.2 and 3 only, strictly in accordance with law, after extending reasonable opportunity of hearing to the parties. Petitioner is directed to continue the respondent until the award in the reference becomes enforceable.
Sd/-
JUDGE ln