Karnataka High Court
D Krishnappa vs The Divisional Controller on 20 September, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.NO.32911/2013 C/W
W.P.NO.26172/2013
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 32911 OF 2013 (L-KSRTC)
C/W
WRIT PETITION NO. 26172 OF 2013 (L-KSRTC)
In W.P.NO.32911/13:
BETWEEN:
D KRISHNAPPA
AGE 51 YEARS
S/O. LATE DODDAMARIYAPPA
DRIVER, BADGE No. 6001, KSRTC
BANGALORE RURAL DIVISION
KIMCO BUILDING, DEEPANJALINAGAR
MYSORE ROAD, BANGALORE
RESIDING AT KOTUR VILLAGE
VIA VARTHUR, HOSAKOTE TALUK
MUTHUSANDRA POST
ANAGONDANAHALLI,
BANGALORE RURAL DISTRICT - 562114.
... PETITIONER
(BY SRI. LAKSHMAN RAO, ADVOCATE)
AND :
THE DIVISIONAL CONTROLLER
KSRTC, KIMCO BUILDING
DEEPANJALINAGAR, MYSORE ROAD
BANGALORE - 560 080. ... RESPONDENT
(BY SMT. H R RENUKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED AWARD PASSED IN I.D.NO. 41/2010 BY THE 1ST
ADDITIONAL LABOUR COURT AT BANGALORE VIDE ANN-A
2
W.P.NO.32911/2013 C/W
W.P.NO.26172/2013
MODIFYING THE IMPUGNED ORDER OF DISMISSAL PASSED BY
RESPONDENT TO THAT OF WITHHOLDING 5 INCREMENTS
WITH CUMULATIVE EFFECT VIDE ORDER DT. 29.9.2010 VIDE
ANN-C WHICH IS PRIMA FACIE NON-EST ORDER AND ETC.
IN W.P.No.26172/13:
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT
CORPORATION,
KIMCO BUILDING
DEEPANJALINAGAR,
MYSORE ROAD
BANGALORE.
BY ITS DIVISIONAL CONTROLLER
REP.BY ITS CHIEF LAW OFFICER.
... PETITIONER
(BY SMT. H R RENUKA, ADVOCATE)
AND :
D KRISHNAPPA
S/O. LATE DODDAMARIYAPPA
AGE 54 YEARS
RESIDING AT KOTTUR VILLAGE
VIA VARTHUR, HOSAKOTE TALUK
MUTHUSANDRA POST
ANEGONDANAHALLI,
BANGALORE RURAL DISTRICT - 562114.
... RESPONDENT
(BY SRI. LAKSHMAN RAO, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD DATED 22.1.2013 PASSED BY THE 1ST ADDITIONAL.
LABOUR COURT, BANGALORE IN ID NO. 41/10 VIDE ANN-D
AND GRANT AN INTERIM ORDER TO STAY THE OPERATION AND
EXECUTION OF THE AWARD OF THE 1ST ADDITIONAL. LABOUR
COURT, BANGALORE IN ID NO. 41/10 VIDE ANN-D DATED
22.1.2013 AND ETC.
THESE WRIT PETITIONS COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
3
W.P.NO.32911/2013 C/W
W.P.NO.26172/2013
ORDER
W.P.32911/13 is filed by the ex-driver calling in question the award dated 22.1.2013 in ID 41/2010 of the I Addl. Labour Court, Bangalore insofar as it relates to denial of backwages and the imposition of punishment of withholding of five ensuing annual increments with cumulative effect (permanently), while W.P.26172/13 is filed by the employer-Public Road Transport Corporation calling in question the very same award insofar as it relates to directing reinstatement with continuity of service and other consequential benefits.
2. Ex-driver when appointed to a vacant post in the Public Road Transport Corporation upon a application for appointment, declaring his date of birth as 1.6.1959, and to have passed out of "Govt. Primary Boys School, Harohalli", supported by the Transfer Certificate bearing No.25/82-83 and admission register No.10/65-66 certifying the name of the person as D.Krishnappa, s/o Dodda Mariyappa, which when 4 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 sought to be verified through an investigation by the Security Officer of the Corporation it was noticed that Admission Register No.10/65-66 of the Govt. Primary Boys School, Harohalli was in respect of a person by name R.Krishnappa s/o Ramaiah born on 11.10.1965 and did not correspond with the Transfer Certificate furnished by the driver enclosed to the application. The false declaration surfaced, though at a later date after confirmation of the services of the driver on probation. An Articles of charge was issued, to which a reply was furnished admitting the fact that he did not study in the Govt. Primary Boys School, Harohalli.
3. The disciplinary authority having noticed the admission in the reply and being of the opinion that there were grounds to inquire into the truth of the allegation issued an Articles of Charge dt. 7.5.2004 and thereafterwards appointed an Inquiring Authority by name Nanjundaiah, an Ex-Law Officer of the Corporation who held a domestic enquiry, whence ample opportunity of hearing was extended to the 5 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 driver, who examined one Munikrishnappa as his witness who stated on oath that he along with the driver, during the year 1960 studied at Harohalli. For the Corporation the Security Officer was examined as a witness who spoke to the investigation and the report from the Principal of the Govt. Primary Boys School, Harohalli, that the Transfer Certificate Ex.M1 furnished by the driver was fake and fabricated. The driver who gave his statement before the Inquiring Authority contending that he was the student of the Govt. Primary Boys School, Harohalli and that the Transfer Certificate Ex.M1 was issued to him disclosed not only his date of birth but the factum of having studied in that school. The Inquiring Authority submitted a report recording a finding that the misconduct was proved. The Disciplinary Authority on an independent assessment of facts, circumstances and evidence on record, concurred with the findings of the Inquiring Authority and accordingly held the charge proved, and passed the order dated 24.9.2010 dismissing the driver from service.
6
W.P.NO.32911/2013 C/W W.P.NO.26172/2013
4. That order was called in question in a petition under Section 10(4-A) of the Industrial Disputes Act, 1947, for short 'ID Act' by filing a claim statement of the driver inter alia contending that he had attended school in Mathasandra Govt. Boys Junior School. The employer-Public Road Transport Corporation arraigned as second party in the said proceeding, opposed the claim statement by filing a counter statement, inter alia, contending that the Inquiry Officer had held a valid enquiry after extending reasonable opportunity of hearing to the workman and thereafter submitted a report holding the charge proved and regard being had to the false declaration based upon which the workman secured an employment in a Public Road Transport Corporation, was disentitled to any relief. In the additional counter statement, it is contended that Section 33(2)(b) of the ID Act is inapplicable and there is no necessity to secure permission of the Industrial Tribunal in ID 148/2005 said to be pending over the Charter of Demands.
7
W.P.NO.32911/2013 C/W W.P.NO.26172/2013
5. In the premise of pleadings of parties the I Addl. Labour Court framed four issues. The Road Transport Corporation examined one witness as MW1 claiming to be the custodian of the records and stated that the Inquiring Authority was reportedly dead and marked documents Exs.M1 to M18, while the driver was examined as WW-1 and marked Ex.W1 to W11.
6. The Labour court having regard to the material on record answered in the affirmative issue Nos.1 and 2 on the validity of the domestic enquiry by order dated 15.11.2012, in other words held the domestic enquiry as fair and proper and that the enquiry officer was fully justified in recording a finding that the charge was proved. Thereafterwards the Labour Court by award dated 22.1.2013 observed that the driver did not lead evidence over victimization while the material on record, more appropriately Ex.M1 Transfer Certificate and Ex.M3 the photocopy of the admission register for the year 1965-66, as well as Ex.M4 the letter dated 7.01.2004 of the Headmaster of Govt. Primary Boys 8 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 School, Harohalli addressed to the Divisional Security Officer, Bangalore, established the allegation; in addition it observed that the evidence of Munikrishnappa, witness for the driver stating that he had studied in the Govt. Primary School, Harohalli, was contrary to the attendance register copy Ex.M3 and therefore, discarded that evidence as not credible; to record a finding that the Driver submitted false and fabricated Transfer Certificate Ex.M1 to secure employment in the Corporation. In view of the order of this Court in W.P.No.46544/11 in the case of "C.Prakash -v- Chief Traffic Manager, Disciplinary Authority, Bangalore", holding that termination of employment of a workman in accordance with sub- regulation (9) of Regulation 4 of KSRTC (Cadre & Recruitment) Regulations since the appointee did not have the requisite qualification and the appointment was based upon false and wrong information, termination does not tantamount to termination for a misconduct not connected with I.D.148/2005 calling for approval of termination under Section 33(2)(b) of the ID 9 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 Act. Accordingly held that there was no violation of law. However, the Labour Court noticed certain orders passed by the Corporation in respect of other drivers who were imposed with minor penalty/punishments for having submitted false Transfer Certificates, to hold that there was "discrimination" as between those drivers who were imposed with minor punishments, while the driver in question was imposed with a major punishment of termination from service and accordingly directed reinstatement by imposing a minor punishment.
7. The submission of the learned Counsel for the Road Transport Corporation that the Labour Court having recorded a positive finding over the false declaration made by the driver in the application for appointment to the post of the driver by submitting a Transfer Certificate - Ex.M.1 which was false, coupled with the reply Ex.M.17 to the Articles of Charge admitting the fact that the driver studied at Mathasandra and reiterated in paragraph 2 of the claim 10 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 statement before the Labour Court, deserves acceptance. Regard being had to the copy of the admission register disclosing the admission register No.10/1965-66 was in respect of R.Krishnappa s/o Ramaiah with date of birth as 11.10.1965, the charge when proved, was not justified in directing reinstatement by imposing the punishment of withholding five increments cumulatively (permanently).
8. Learned Counsel submits that even if the petitioner - Corporation has taken a different view in respect of other drivers, the very same view need not be taken in the case of this driver, as it does not amount to discrimination under Article 14 of the Constitution of India, as held by this Court in the case of Sri.Prabhulingappa.H.M. Vs. The Divisional Controller, KSRTC1. Learned Counsel further submits that in the confirmation order dated 8.2.2000 Ex.W.3, at paragraph 8, the Driver was informed about the verification that would be taken up over the Transfer 1 ILR 2011 KAR 4757 11 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 Certificate enclosed in support of the averments and the declaration in the application for appointment, whereafterwards the enquiry led to issue of Articles of Charge dated 7.4.2004 hence there was no delay. It is lastly contended that the decision of the Apex Court in Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra PD, Singh and Another2 as well as decision in W.P.No.17316/2005 in the case of the Division Controller KSRTC, Kolar Vs. N.Ramachandra, had no application to the facts and circumstances of the case.
9. Per contra, learned Counsel for the driver seeks to sustain the findings recorded by the Labour Court insofar as it relates to and in support of the reinstatement, while submitting that the Labour Court was not justified in denying back wages and not applying the decision of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs. Ram Gopal Sharma & others3.
2 (2001) 10 SCC 530 3 2002 (I) LLJ 834 12 W.P.NO.32911/2013 C/W W.P.NO.26172/2013
10. Having heard the learned Counsel for the parties, perused the pleadings, the evidence, both oral and documentary and examined the award impugned. The question for decision making is, "Whether the Labour Court in the facts, circumstances and evidence on record was justified in directing reinstatement of the workman with continuity of service and consequential benefits without back wages and imposing the punishment of withholding of 5 increments cumulatively?"
11. In order to appreciate the rival contentions of the parties, it is useful to notice the provisions of the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982, ("C & R Regulations" for brevity), more particularly, sub- regulation 9 of Regulation 4 which reads thus:
"4. Eligibility for appointment and disqualifications for appointment:
(9) 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 13 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 information, his services shall be terminated"
12. There being no dispute that every appointee who is appointed in the Public Road Transport Corporation is governed by the provisions of the aforesaid regulation, and if on verification, the application for the post is found to suffer on account of false declaration and the supporting documents are found to be false or fabricated, the appointee would have to lose his appointment and if appointed, his service would be terminated. In the instant case, the admission of the driver in reply Ex.M17 to the Articles of Charge that he studied at Mathasandra as also statements made in the claim statement filed before the Labour Court, coupled with the testimony of the Security Inspector, who, on investigation, secured copies of the admission register extract from the Government Primary Boys School, Harohalli, disclosing the name of one R.Krishnappa S/o Ramaiah as the student whose admission is against registration 14 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 No.10/65-66 and not D.Krishnappa S/o Dodda Mariyappa and that the date of birth recorded in the register was 11.10.1965 and not 01.06.1959 as asserted, there can be no more doubt that the Inquiring Authority, the disciplinary authority as well as the Labour Court were fully justified in concluding that the driver had made a false declaration in the application for appointment to the post of driver that he studied at Government Primary Boys School, Harohalli. In the absence of a valid Transfer Certificate it is not known whether the driver has, in fact, requisite educational qualification much less certification of date of birth. Applying sub-regulation 9 of Regulation 4 of C & R Regulations, it is needless to state that the driver is not entitled to continue in service and the disciplinary authority was justified in terminating his services.
13. It is no doubt true that the driver was issued with Articles of Charge under Regulation 23 of the Karnataka State Road Transport Corporation Servants (Conduct & Discipline) Regulations, 1971 ("C & D 15 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 Regulations" for brevity) by the disciplinary authority in exercise of disciplinary powers following which a domestic enquiry was held and report submitted holding the charge proved and the order terminating the services of the respondent for making a false declaration, by invoking Regulation 18-B(x) of the C & D Regulations. Merely because the disciplinary authority invoked the provision of C & D Regulations, it does not mean that the driver will not be governed by sub- regulation 9 of Regulation 4 of C & R Regulations. In any event, the disciplinary authority who is none other than the appointing authority is entitled to exercise either of the powers i.e., under sub-regulation 9 of Regulation 4 of C & R Regulations or Regulation 18 of the C & D Regulations. In either case, it is a question of invoking the jurisdiction to terminate the services of an employee. Having recorded a finding that the termination of employment was for furnishing a false declaration, would be falling under sub-regulation 9 of regulation 4 of C & R Regulations, it is needless to state that it is a futile effort to contend that the termination 16 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 was for a misconduct while in the services of the Road Transport Corporation.
14. It must be stated, at this stage, that the definition of a Corporation Servant under the C & D Regulations refers to a person who is appointed as an employee of the Corporation while Regulation 3 relates to conduct of a Corporation Servant. Admittedly, the alleged charge against the driver is not over his conduct, while in the discharge of his duties, falling under Regulations 3 to 17 of the C & D Regulations but falls under sub-regulation 9 of Regulation 4 of C & R Regulations. Therefore, the termination of services of the driver not being for a misconduct, the driver cannot have a grievance over the failure of the Corporation - employer to secure prior approval of the Industrial Tribunal, by filing an application under Section 32(2)(B) of the Industrial Dispute Act in I.D.No.148/2005 pending over the charter of demand in which the driver is a workman concerned. If that is so, the decision of the Apex Court in Jaipur Zila case (supra) holding that 17 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 failure of the Corporation to obtain prior approval to terminate the service of a workman concerned in a pending industrial dispute, by filing necessary application under Section 33(2)(B) of the Industrial Dispute Act, 1947 and therefore order of termination of services is non-est, is inapplicable.
15. In almost identical circumstances, this Court in W.P.NO.42694/12 in the case of BMTC Central Office Vs. P. Jai Singh DD 5.9.2013 having considered the provisions of the C & R Regulations, as well as C & D Regulations, recorded a finding that there was no necessity for the petitioner - Road Transport Corporation to secure approval of the Industrial Tribunal in I.D.No.148/2005 by filing an application under Section 32(2)(B) of the Act, in the matter of termination of its employees on account of false declaration in the application for appointment.
16. The Labour Court's finding having regard to Exs.W.4 to W.8 copies of orders of minor punishment imposed on five drivers involved in similar misconducts, 18 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 the driver in question too deserved to be imposed with only minor punishment, in my considered opinion, is unsustainable.
17. In Prabuling Swamy's case (supra), this Court having noticed a line of decisions, recorded a finding that Labour Court was not justified in invoking 11(A) of the Industrial Dispute Act to entitle the workmen to equitable consideration. For the very same reasons, it cannot but be said that the driver in question is not entitled to identical reliefs in the nature of punishment as had been done to such of those workmen by orders at Exs.W.4 to W.8.
18. It is well settled law that equality under Article 14 of the Constitution of India is a positive concept which 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 equity. Wrong order passed in favour of one person does not entitle others to claim a similar benefit, in the law laid down by the Apex Court in State 19 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 of Bihar vs. Kameshwar Prasad Singh4. So also is the tenor of the decision in State of Uttaranchal vs. Alok Sharma5. In fact in Gurusharan Singh Vs. New Delhi Municipal Committee6, at paragraph 9, the Apex Court observed that neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law.
19. The finding of the Labour Court that the driver possesses a heavy duty driving license and served the Corporation for 18 years, does not aid the driver who made a false declaration and furnished a fabricated Transfer Certificate to obtain an appointment by deceit to continue in employment. When a fraud is played on a Public Road Transport Corporation in securing a public employment to the detriment of a meritorious candidate, the driver in question cannot claim equities under Section 14 of the Constitution of India. 4 (2000) 9 SCC 94 5 (2009) 7 SCC 647 (C) 6 AIR 1996 SC 1175 20 W.P.NO.32911/2013 C/W W.P.NO.26172/2013
20. In the facts of this case, as noticed supra in Ex.W.3, the order of confirmation of service of the driver condition 8 reads thus:
" 8. F GzÉÝòvÀ £ÉêÀÄPÁwUÁV C¨sÀåyÃðAiÀÄÄ, CfðAiÉÆA¢UÉ ¸À°è¹gÀĪÀ ±Á¯Á ªÀUÁðªÀuÉ ¥ÀvÀæ ºÁUÀÆ EvÀgÉà zÁR¯ÁwUÀ¼ÀÄ ¸ÀļÀÄî CxÀªÁ £ÀPÀ° JAzÀÄ PÀAqÀħAzÀ ¥ÀPÀàzÀ°è CAvÀºÀ C¨sÀåyðUÀ¼À ¸ÉêÉAiÀÄ£ÀÄß PÀgÁgÀ¸ÀA¸ÉÜ (ªÀUÀð ªÀÄvÀÄÛ £ÉêÀÄPÀ) ¤AiÀĪÀiÁªÀ½ - 1982gÀ£ÀéAiÀÄ ªÀÄÄPÁÛAiÀÄ UÉƽ¸À¯ÁUÀĪÀÅzÀÄ. "
21. In the light of the condition subject to which the confirmation of service of the driver was made, the enquiry that followed and the issue of the Articles of Charge in the year 2004, it cannot be said that there was delay to bring to fore the fraud played upon the Public Road Transport Corporation.
22. If the Transfer Certificate Ex-M1, is discarded as unacceptable evidence/proof of educational qualification and date of birth, the Labour Court was not justified in directing reinstatement. If the date of birth as certified is unacceptable then the age of 21 W.P.NO.32911/2013 C/W W.P.NO.26172/2013 the driver is unknown, hence his age of superannuation will also be unknown.
22. The submissions of the learned Counsel for the driver, in my considered opinion, in the facts and circumstances of the case, do not merit acceptance and are rejected.
23. In the result, W.P.No.32911/13 filed by the driver is dismissed while W.P.No.26172/13 filed by the Public Road Transport Corporation is allowed. The award of the Labour Court insofar as it relates to recording findings against the Corporation are quashed and the petition under Section 10(4-A) of the Industrial Disputes Act, 1947 is rejected.
Sd/-
JUDGE Ln/RS/*