Karnataka High Court
Sri.Krishna Dead By His Lrs vs The Managing Director on 29 November, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29th DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.36998/2011 (L-KSRTC)
BETWEEN:
Sri Krishna,
S/o. late Venkatappa,
Since deceased by his LRs.
1. Smt. Nirmala,
Aged about 50 years,
W/o. late Venkatappa.
2. K. Venkatesh,
Aged about 38 years,
S/o. late Venkatappa.
3. Manjula,
Aged about 29 years,
D/o. late Venkatappa.
4. Ravichandra,
Aged about 27 years,
S/o. late Venkatappa.
All are residing at No.5,
Kannanayakana Agrahara,
Anjanapura Post, Uttarahalli Hobli,
Bangalore - 560 082. ...PETITIONERS
(By Sri S.B.Mukkannappa for
M/s. S.B. Mukkannappa & Associates, Advs.)
2
AND:
The Managing Director,
B.M.T.C.,
Central Offices, K.H. Road,
Shanthinagar,
Bangalore - 560 027.
... RESPONDENT
(By Sri L. Govindraj, Adv.)
This writ petition is filed under Articles 226 227 of
the Constitution of India, praying to call for the records
and quash the impugned order dated 7.8.2010 passed by
the 3rd Addl. Labour Court at Bangalore in I.D.No.43/2005
vide Annexure -D, to the WP.
This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:
ORDER
Deceased petitioner was a driver in the respondent Corporation. He was charge sheeted on 20.2.2003 for having obtained appointment by producing a bogus Transfer Certificate. A departmental enquiry was conducted and a report finding the workman guilty was submitted. Enclosing a copy of the enquiry report, show cause notice dated 29.9.2003 was issued, to which the workman submitted a reply. The Disciplinary Authority, considering the record of the enquiry and the reply to the 3 show cause notice, found the workman guilty of the charge. As a result, an order of dismissal from service dated 7.1.2005 was passed. The said action was questioned before the Labour Court, by filing a claim petition under S.10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1987 ("the Act" for short). The Management appeared and filed counter. Based on the pleadings, the Tribunal raised 4 issues. By an order dated 7.8.2010, the domestic enquiry held against the workman having been found to be fair and proper, issue No.1 was answered against the workman. The workman having died during the pendency of the matter in the Labour Court, his L.Rs., came on record and prosecuted the matter further. Considering the evidence brought on record by both sides, Labour Court found the claim petition to be untenable. As a result, the petition was dismissed and it was held that the L.Rs., of the workman are not entitled to any relief. Assailing the said award, the L.Rs. of the deceased workman have filed this writ petition. 4
2. Sri S.B.Mukkannappa, learned counsel, in support of the writ petition contended as follows:
(i) The workman could not have held responsible for the discrepancy in the entries relating to the admission in the school and that the Labour Court has not correctly appreciated the evidence and its findings are perverse and illegal;
(ii) The workman had served for a period of 17 years and had an unblemished service and in the circumstances, the failure of the Labour Court to exercise the discretionary power conferred under S.11-A of the Act has resulted in substantial failure of justice.
3. Sri L.Govindraj, learned counsel on the other hand, supported the impugned Award and submitted that the case being one of obtaining appointment by producing bogus School Transfer Certificate i.e., by playing fraud, the Labour Court is justified in not exercising the power conferred under S.11-A of the Act and sought dismissal of the writ petition.
4. Perused the record. The question involved before the Labour Court was, as to whether the workman had 5 secured employment in the Corporation by producing a bogus School Transfer Certificate?
5. Undeniably, the workman had applied to the post of driver in the respondent establishment. Since minimum education qualification had been prescribed, a School Transfer Certificate was produced. Based on such certificate, the workman was selected as a driver and was appointed. Subsequently, it came to light that the School Transfer Certificate which the workman has produced to obtain appointment was a bogus Transfer Certificate. Departmental enquiry was held, wherein, the workman participated and it was found that the workman had committed the charged misconduct. In view of the finding of misconduct and the record of the domestic enquiry, Disciplinary Authority passed an order of dismissal. When the said action was assailed before the Labour Court, parties having adduced evidence, both oral and documentary, the Labour Court finding that Ex.M3 is a bogus School Transfer Certificate which the workman had 6 produced and had obtained the employment, passed the award dismissing the claim petition.
6. Indisputably, there are over writings/alterations in the school admission register, which can be seen even from Annexure-E, produced along with this writ petition. The Labour Court has appreciated the oral and documentary evidence brought on its record, in the correct perspective and in my opinion has not committed any error or illegality in that regard. The findings of the Labour Court being pure findings of fact and there being evidence in support of the findings recorded, no interference in exercise of writ jurisdiction under Article 227 of the Constitution is warranted. It is not a case of no evidence or any material evidence placed on record having not been considered. The findings recorded by the Labour Court are neither perverse nor illegal, warranting interference in exercise of writ jurisdiction.
7. In the case of The Management of V.I.S.L. Vs B.Veeranna Gowda Patil and Another, ILR 2000 KAR 4399, 7 an employee who is found to be guilty of securing appointment by playing fraud was held not entitled to any equitable consideration or relief. Further it has been held as follows:
"When once fraud on the employer is detected, appointment orders themselves are tainted and vitiated by fraud and acts of cheating on the part of the employees, appointment orders are liable to be recalled and voidable at the option of the employer concerned. Once fraud of the employees in getting such employment was detected, the employees were proceeded against in a departmental enquiry and called upon to have their say and thereafter have been removed from service. Orders of removal would amount to recalling of fraudulently obtained and erroneous appointment orders which were awarded by the employer after following due process of law and complying with the principles of natural justice. Fraudulently obtained appointment orders would be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases, merely because the employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders, cannot create equity in their favour or any estoppel against the employer."
The ratio of the decision applies to the instant case. 8
8. In view of the material evidence placed on record of the Labour Court by the Management to substantiate the fact that the workman had committed misconduct and obtained employment by playing fraud, i.e., producing a bogus School Transfer Certificate, the Labour Court is justified in not exercising the power under S.11-A of the Act. A person who gained employment and worked for certain period, cannot claim any equity, since he had committed fraud. In the said view of the matter, the non- interference of the Labour Court with the order of dismissal passed by the Management is justified.
The impugned Award does not suffer from any illegality and hence, interference in the matter is not warranted. Consequently, writ petition being devoid of merit is dismissed with no order as to costs.
Sd/-
JUDGE Ksj/-