Karnataka High Court
Bangalore Metropolitan Transport ... vs T Rajappa S/O Thimmappa on 22 June, 2011
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
documents produced by the petitioner--~Corporation were marked as Ex.i\/ii to M20, by consent. Aeoevordziiigiy issue No.1 relating to the validity of was answered in the affirmative."holdingdthe;»d.orr1esti§: V' enquiry as fair and proper. Tfhereafterwardsit"'Athe respondent was examined V\[Wv1"'on the vallegations of"
Victimization, wheneeno doeu-m'ents were' 'marked.
3. LabourV'Court,'_haiziri'gVTregarddtoy---the material on record and documentary;
marshaledi. observed that the oral .1\/Iiswtress of the Government coupled with the entries in the 'original admission register, disclosing the name of vionew S/o. Ramaiah, against Admission not the name of the respondent, V . TRajap'fia,'"'.aceepted the same as eredibie evidence. 'A it ' Resepaonvdent though extended an opportunity to putforth in the domestic enquiry, did not enter the Witness box in srder to tender d0eumentary.--evitieriee . substantiate the fact that the _tran.s'ie;~«..:feert.iiieate submitted by him was genuine. [in finding, Labour Court held the'--- prd}vded.V7qp nevertheless, on an assurnptien Airiiiinimum quaiifieatien was required 'of drivefand that the transfer eertifieateiéiiras the date of birth of the the fact that in similar the Corporation took a 1enient..Viemt,' of dismissal was the misconduct proved and invokedidthger jurisdiction under Section 1 lugs; 0'1" the modify the punishment of dismissal Withholding four increments with A"C.u'flfi1J&.1iaf.i'%<'§§V as a measure of punishment? by the award i_i<irp_ujgned.
2 Having heard the learned counsel for the * perused the pleadings and examined the award ego impugned, the foiiowing question arise for "rie'e--ij::.io'n making:
"Vtfhether in the facts and eireumstanees ease, the Labour Court was not..:'ju'stifi.ed invoking Section 11~Aof_'the «Ae.t"to tithe punishment of dismissal' lesser.
and entitling the wo.r1Vtn1ari.._p to.' "equitable Consideration andifireliepf con.tentded by the petitioner? T is T V _
5. The answer not detain the Court for ohs_eiyations ofthe Supreme Court in 'UNION & ORS1.' in the ,-- .is'=a_pposite:
"W'he1'2 onee:t'rauti'on"'the employer is detected, the pappoiiiztmeflpt'v._ord_ers"themselves are tainted and .«.i.x'?itia,ted hytV--.fraud_and acts of cheating on the part _ 'employtees. The appointment orders are V recalled and Voidabie at the option of .'"*'the eitnpioyer concerned, Once the fraud of the eivnpioffees in getting such employment was eteteeted, the employees were proceeded against in departmental enquiries and eailed upon to have " their say and thereafter have been removed from tat, wk} service. Orders Of removal would afI1QI..1_1f1'§V recalling Of fraudulently Obtained appointment Orders which were aV0lC§€d~:::b:{'V"'€h€Av employer after following the due' lpvreeeeés' and Complying with the pafiheiples O'f..e.netufa;l."--. justice. Fraudulentiffl "'~Obta1'.f1ed . R15 Orders Could be Iegitimateljy'_1t1'eate(l' 'as:VO'ldalgle at the Option Of the's:'COuld laehrehalled by the employef V'2.3.LI1d.' merely because thevernployeeis' in service for of such frauchl1eht.ly' Orders Cannot C,re.aCteu"ahyfE;;g1lit3rj'.'1n:Vltheireetéréour or any estoppel in e'mf5'1Qyee'.'.
Of the Observations of the Apex CO11V'1*t._V in the felloxzsfing Opinions: , '_ (1) " .__§QLVENT EXTRACTIONS v. Ai';tJI~I.li\T'H:R1sHNAN & (fit. COLLECTOR <3: CHAIRMAN,
-. " '"-*l996(:;; LL} 78:
SOCEAL WELFARE RESIDENTIAL V SCHOOL SOCIETY 3: ANOTHER v. MTRIPURA .. SRNDARI DEVI3' gfmw f E99442) LLJ 888 ;99<){3> SCC 553 {iii} 'UNION or INDIA v. ANAGAEVIALLESHWAR {N} 'UNITED INSURANCE co. LTD. V. _ SINGH & GRS5.'
7. A Division Bench of'-._ tliiesf MANAGEMENT or VlSL"lV__v.-.... PATILG', following thepaforesaid_decisions~of Apex Court, declined to termination of service after" ,a extending reasonable. having found the workman- an appointment by fraudtilent forged document / academic l*-doc:i1m~entsf,2..-elisentitling the workman to v equitable conside1'at«i«o'n or relief. V tiiiefactual matrix, the Labour Court's finding that" th_e'r'e7, Aivas no educational qualification for '<.,appointnient to the post of Drivers is factually incorrect, 3§ince"p_ithe Karnataka State Road Transport Corporation and Recruitment] Regulations, 1992 under the i E 4 299a: ; SCC me to.
heading "traffic department" prescribes . qualification of 4131 standard for apApointnf:ent---- of Driver Class~IH. In other words, the surmise, conjecture and V.*g'.14iess"' while tpdrzxmfing the inference in the absence of faets Earle therefore, there is no legitimacy to ._ _1n~feren(:ei and the conclusion.
9. So. also Liahoar Co5;irt's. conclusion that in identical eirCL11nstanees';iVi.' sirnilafrly placed workmen when ipermitted__t3o_ elontinue in service by imposing minor p'u.nishment-,..'w:ou_ld' enure to the benefit of the workman, i'n._Vn1yv"considered opinion, is illegal and
---.,.,.11nsnstainahle. HAi*ti'ele l4 of the Constitution of India iprolv-id_e's4ilfoVi*i. equality which is a positive concept and cannot bed-'f_eré'forced in a negative manner. Benefits j extended to some persons in an illegal or irregular l:=rnanner,l Cannot be claimed by others on the plea of .. 2§)o<:<3)seC 53:
" "its 2004 KAR 4399:
equality. Wrong order or judgment: pas3e:1v'fa{I:ou:r V 2 one person would not entitle ariotherA.f}oAe1aiIfi-beV:'1efi%:;.A This is the law laid down 'the BIHAR & ORS. V. KAMESHWP.R PRASAD SNGH & ANR7.' and in the easeof 'STATE (u)'F..UTTARAN'CHAL v. ALOK sHARMA&oRS8;3-.
10. T eob-sef*vation that the workman .?iaci."*se1'V:e_d f:1fij€eA'VCo:fApo:fat.ion for 12 years and hence 7;» 'fa; " "'eo1asideration, is wholly misplaced 'ar1d _the observations of the Apex Court in"'BANK "Ii\fiDIA & ANOTHER V. AVINASH & V" ORS.9', following its earlier in 'RR7ismNANATHA PILMXI v. STATE OF which reads thus:
"A siiiii-§.aI'Vp1ea about long years of service was ".""eo1'}aid'efed by this Court in 'RVISHWANATHA ea PiL;,,A.1v. STATE op' KERALA & oRs(supra): to 2{fiGi}(9) sec ex:
»_ ' 9;<2o39;7 see ea?
" -. 2005 AIR sew 4477 2 (2005) 3? sec 690 W " E" 2<}<>4{2} see :05 para 9 be inconsequential. In para 19 it was observed:(SCC pp. 1 1517} "19.lt was then eontencied by Shri Kumar, learned Senior Counsel fo1j"~--theyVl'v:.ll"' ll".
appellant that since the WVappelI_antv-- rendered about 27 years of:.seryiee«.i i<he'i of dismissal be substitutecl'«Vl3y--._lan oi"'d.eI'~.Ol7 V' compulsory retiremen_t"'--~._or l1"€1'I1OV8.l"l,_ tiioln. service to protect the plenysionaryl belneiits of the appellant. do not 'find arty suhstanee in this rights to salary, pension and .otherep&serl}ieepilienefits are entirely in 'iiattire pI_.1;l3llC service.
The? appointment _Vagai_n'stl.a ineant ior.,awreserved candidate by Caste certificate and by lplayinlg appointment to the post xvasyoid VandAInon.ll~~llest in the eye of the law. 'V The salary or pension after retirement E"lllo\x_?s~.p_frorn a valid and legal appointment' 3 :"i'_l:Vi.e-4"zgoiisequential right of pension and niovnetaity benefits can be given only if the vappvointrnent was valid and legal. Such a vvhenefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false easte certificate. A person who entered the 'ix V' ..N.B-;Nz3d§AWADE31', the Apex Court observed thus:
service by producing a false easte certificate and obtained appointment for the gost meaiitt for a Scheduled Caste, thus deprivin;.§~~--.a&'V:'__l_i'l.j' genuine Scheduled Caste candidaté:_:ll appointment to that post, _does_ not i any sympathy or indulgence of at person who seeks equity eorI1e_"_;W:ith"
Clean hands. He, Who_:e~r)rnes.V'to with false Claims, caniiot-..lpiead noir would the C€)l1I"LjuS'tlfl§'(:Zlvd"C:QV_ eifiereise eduity jurisdiction in .]lfax}oLi1r:V who seeks eqtiity mLi'ét"a'ett: ind' affair equitable Inanlilegt', li1ri:_$_;fi§i_.etii3uri"""'cannot be the iiiersoln who got the "oiiylthe lhasiislvof a false caste Zflcertifioate. a iraud. No svmpathv andllequitaloie'coiisidéfation can come to his reseii~e.V_V' we arellot the View that equitv or eomvpaseionv earinot be allowed to bend the law in a case Where an individual ' status by practising: fraud."
{Errgohasis supplied) ln 'MAHINDRA & MAHINDRA LTD. V. " W""2o{>5<3; sec 234 'S20: it is no doubt true that after introduction:
Section. ll~A in the industrial Disput_es._ '7' certain amount of discretion is V€Sl€Cl.v~~'?iZl:JCl'1Vvli:i*1:€ ._ Labour Court / industrial Tribunali,n'««interfe1li1_:gv V with the quantum of punishment"lla\Arard'ed_ lit the management wherertlthe workrnlany is found guilty of miseonlduyot. ~S.ai'd--larella: of discretion has heen Very' -a}jellll"'d.efineld'"by~"the various judgmentsof } referred to hereinabove and itiseertainlylnot"lunlimited as has been 'tahserveld bythe<«[5i'{2isi.on:VfBench of the High 5. l"d.i_s<:rletion__ which can be exercisgdll-2 available only on the ceitain_faetors like punishment bleing to the gravity of rnisoonduetl' disturb the conscience of ii the eoui"-t,_lorl existence of any mitigating
-ll,llciareuinystaneels"Which require the reduction of th.el'~is'entence, or the past conduct of the vkthich may persuade the Labour Court A tov_;*eflu~ee the punishment."
'A observation was followed by the Apex Court 1:3 iia T Koix/iA'rsU LTD. v. N.UDAYAKUl\/IARW.
" "9l*2t;<;«éa:::; see 224