Karnataka S.R.T. Corporation vs Krishnegowda

S. Abdul Nazeer, J.—Karnataka State Road Transport Corporation, Mandya Division, Mandya has filed this writ petition challenging the validity of the award at Annexure-F, in I.D. No. 21 of 2010, dated 19.6.2012 whereby the Labour Court, Mysore, while setting aside the order of dismissal of the workman dated 25.2.2010 from service directed the Corporation to pay full back wages to the legal representatives of the deceased workman, the respondents herein from the date of the dismissal till the date of death.

The respondents are the wife and children of Krishnegowda. Krishnegowda was appointed in the year 1993 as Badli worker in the establishment of the petitioner-Corporation at Mysore. He had produced the transfer certificate evidencing his educational qualification before the Selection Committee of the Corporation. He had worked as such for a period of three years. He was continued as a daily wage employee for a further period of two years. He was placed as a trainee driver from 1999 onwards. On the basis of the report submitted by the Divisional Security Inspector of the Corporation stating that he had gained appointment on production of false transfer certificate, disciplinary proceedings was initiated against him. He was issued with a show-cause notice by the Corporation. An Enquiry Officer was appointed for holding enquiry. In the enquiry, it was found that the transfer certificate produced by the workman was not a genuine certificate. Therefore, the Disciplinary Authority accepted the findings of the Enquiry Officer and removed the name of the workman from the list of trainee drivers.

Being aggrieved by the order of removal, he raised a dispute before the Labour Court, Mysore under section 10(4-A) of the Industrial Disputes Act, 1947 (''the Act'' for short). The Corporation resisted the claim petition by filing its counter statement. The Labour Court vide its order dated 8.3.2012 held that the domestic enquiry held by the Corporation was fair and proper. The workman died during the pendency of the dispute before the Labour Court on 7.11.2011. The Labour Court held that the order of dismissal is non est and has been passed in contravention of section 33(2)(b) of the Act and also held that the charges are not proved. As stated above, the Labour Court has passed an award dated 19.6.2012 setting aside the order of dismissal passed by the Corporation and directed it to pay full back wages to the legal representatives of the deceased workman.

Learned Counsel for the petitioner-Corporation submits that the Labour Court was not justified in holding that there is contravention of section 33(2)(b) of the Act. The dispute raised by the Karnataka Staff and Workers Federation in I.D. No. 148 of 2005 was no doubt pending consideration on the date of dismissal of the workman. It was a collective dispute by the Union pertaining to the wage settlement and other benefits. This would not take away the discretion of the Corporation to dismiss the workman from service as the dismissal was on the basis of production of fake transfer certificate. The termination of the workman from employment does not tantamount to termination for a misconduct not connected with the dispute in I.D. No. 148 of 2005 calling for approval of termination under section 33(2)(b) of the Act. In this connection, she has relied on the decision of this Court in W.P. No. 46554 of 2011, dated 16.12.2011 (between C.P. Rakash v. The Chief Traffic Manager). Secondly, it is contended that the charge levelled against the workman is that he had secured job by producing a fake transfer certificate. The certificate Ex. M. 16 belongs to one Chennamma, daughter of Amavasya. The charge was proved in the enquiry. She has further argued that according to the petitioner, he was studying in Bhagavadgita Vidya Kendra, Kannada Higher Primary School, Mudalapalya, Bangalore during the relevant point of time. When the Inspector of the Corporation visited the said school, the Headmaster of the school issued a letter at Ex. M. 14 stating that the school had not issued the transfer certificate at Ex. M. 16. The number contained in the transfer certificate is 46/84-85. The school in its letter at Ex. M. 14 has stated that the certificate belong to Chennamma daughter of Amavasya. The workman had issued a letter at Ex. M. 20, dated 26.6.2007 stating that the Bhagavadgita Vidya Kendra has been closed and all the documents have been transferred to Jnanavahini High School, Mudalapalya, Bangalore. Jnanavahini High School had issued a letter at Ex. M. 18 stating that the transfer certificate issued to the workman is a genuine document. However, the register of admission furnished by the school at Ix. M. 21 would indicate that he had joined the school for the study of 7th standard on 26.5.1990. The transfer certificate at Ex. M. 16 would indicate that he is eligible to join the 7th standard. The Corporation has also received a letter at Ex. M. 17 from Shilpa Convent stating that the Shilpa Convent is being run in the place where Bhagavadgita School was running earlier. Again, the Headmaster of Bhagavadgita School has issued a letter at Ex. M. 19, dated 1.4.2008 stating that the transfer certificate of the deceased workman was a fake document and that the school has not been closed. The workman himself has issued a letter at Ex. M. 11, dated 27.1.2009 requesting the Enquiry Officer to pass suitable orders on the basis of the report of the Security Officer of the Corporation. The Enquiry Officer in the order sheet dated 27.1.2009 has recorded that the workman has admitted the charges. The workman had also signed, the order sheet on that day. She has also taken me through the evidence let in by the parties and other materials available on record. It is argued that when the workman himself has admitted the charges, question of holding of workman as not guilty of charges does not arise. Therefore, the Labour Court is not justified in exonerating the workman.

On the other hand, learned Counsel appearing for the respondent-workman has sought to justify the impugned order. It is argued that the transfer certificate produced by the workman is not a fake document as contended on behalf of the Corporation. The Labour Court on appreciation of the materials on record, has concluded that the workman was not guilty of misconduct. This Court cannot re-appreciate the evidence on record and come to a different conclusion in exercise of the power under Article 226/227 of the Constitution of India. He prays for dismissal of the writ petition.

I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record.

As noticed above, the workman was appointed in the year 1993 as Badli Worker in the establishment of the petitioner-Corporation. Later, the Corporation placed him as a Trainee Driver from 1999 onwards till his removal from service on 25.2.2010. He was removed from service on the ground that he had gained employment by producing a false transfer certificate bearing No. 13/90-91 with Admission No. 46/84-85. In the disciplinary enquiry proceedings held by the Corporation, it was established that he had gained employment by producing a false transfer certificate. Before the Labour Court, the workman had conceded the fairness of the domestic enquiry without prejudice to his right, unfair labour practice and victimisation. The documents pertaining to the enquiry were marked by consent of the parties as Exs. M. 1 to M. 26. The workman was examined as W.W. 1 and got marked 13 documents. The Labour Court recorded a finding of fact that the Enquiry Officer has not referred to all the documents and in particular, Ex. M. 18 and has not discussed the material on which he came to the conclusion that Ex. M. 16 is a false document. Therefore, the contention of the learned Counsel for the workman that this Court cannot re-appreciate the evidence and come to a different conclusion cannot be accepted.

In Kuldeep Singh Vs. The Commissioner of Police and Others, the Apex Court has held that normally the High Court and the Supreme Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of ''guilt'' is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But, if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

It is thus clear that if the decision is arrived at on no evidence or evidence which was thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. In the instant case, the question for consideration is:

Whether the Labour Court has taken into consideration the material evidence for coming to the conclusion that the workman is not guilty?

After joining the Corporation on the basis of a transfer certificate at Ex. M. 16, the Security Inspector visited Bhagavadgita Higher Primary School on 14.7.2000. The Headmaster of the said school gave a letter to the said Inspector at Ex. M. 14, wherein it has been stated as under:

From this letter, it is clear that certificate produced by the workman at Ex. M. 16 has not been issued by the said school. The said certificate is in respect of Chennamma, daughter of Amavasya. When this was confronted to the workman, he sent a letter to the Corporation at Ex. M. 20, dated 26.7.2007 stating that the Bhagvadgita School has been closed and that it was started in a different place in the name of Jnanavahini High School, SVG Nagar, Mudalapalya, Bangalore. He requested the Corporation to verify the same from the said school. The Inspector of the Corporation went to Jnanavahini School and the Jnanavahini School has issued a letter at Ex. M. 18 stating that the transfer certificate at Ex. M. 16 is not a fake certificate. The said school has also issued the register of admission for the academic year 1991. If this attendance register is carefully perused, it is clear that the workman had joined the said school for the study of 7th standard on 25.6.1990. But the transfer certificate was issued by the Bhagvadgita Higher Primary School certifying that the workman is eligible to join 7th standard. It was issued on 18-6-1991. However, the register of admission at Ex. M. 21 states that the workman had joined for the study of 7th standard for the academic session 1990-1991 and not 1991-1992. Be that as it may.

The Headmaster of Shilpa Convent has sent a letter to the Security Inspector at Ex. M. 17, dated 6.11.2007 stating that it is running a school where Bhagavadgita Higher Primary School was running earlier. Again, when the Inspector visited Bhagavadgita School, the said school has issued a letter at Ex. M. 19, dated 2.4.2008 stating that the said school is running in its original place since the year 1984-1985 and that the records of the said school have not been transferred to any other school. This letter again falsifies the claim of the workman that Bhagvadgita Higher Primary School has been closed and that the records have been transferred to Jnanavahini High School.

The workman has made a statement before the Enquiry Officer at Ex. M. 11, dated 27.1.2009 that two of the Inspectors of the Corporation have already given their reports stating that the transfer certificate is a false certificate and that the Corporation may take action against him on the basis of the said reports. During the course of the enquiry on 27.1.2009 before the Enquiry Officer, he has admitted the charges, which has been recorded in the order sheet. He has also signed the order sheet on the said date. Without taking note of these documents, and in particular, the admission of the workman in the order sheet at Ex. M. 11, dated 27.1.2009, the Labour Court has passed the award. The decision arrived at by the Labour Court is thus perverse. In Hindustan Aeronautics Ltd. Vs. Shanmugam and another, a Division Bench of this Court has held that when the workman himself admitted the guilt, there is no necessity for the employer to hold enquiry by leading further evidence.

In V. Ramachandrappa Vs. The Divisional Controller and Disciplinary Authority, it has been held that if any employment is obtained by committing fraud, the same cannot be permitted to be countenanced by the Court of law. By mere passage of time, a fraudulent practice would not get any sanctity. The concerned authority, in the instant case, was right in taking the impugned action, having come to know about the fraud committed by the respondent-workman in obtaining employment as a driver, after holding a Departmental Enquiry. It has been held thus:

"If the petitioner had not produced false and fabricated documents at the time of his appointment, perhaps that post would have gone to a person qualified for the said post. The petitioner has committed fraud not only on the Corporation but on the public at large. Such practice cannot be encouraged by retaining a person like the petitioner in service. That would, send a wrong signal to the people at large, and perhaps may encourage to indulge in such a sharp practice".

Again the question is:

Whether the removal of the delinquent by the Corporation without obtaining approval as stipulated in section 33(2)(b) of the Act is illegal?

This question has been considered by this Court in W.P. No. 46554 of 2011, dated 16.12.2011 (between C. Prakash v. The Chief Traffic Manager). This Court has taken into consideration sub-regulation (9) of Regulation 4 of the Regulations, which states that 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 and wrong information, his service shall be terminated. It has been held thus:

"4. The last of the contention that the respondent-Corporation did not secure prior approval under section 33(2)(b) of the ID Act from the Industrial Tribunal in ID No. 148 of 2005, an industrial dispute relating to the charter of demands, and therefore the order of termination was void and inoperative, is unacceptable. In the first place, such a plea was not raised before the Labour Court for it to consider and therefore cannot be permitted to be raised for the first time in a judicial review proceeding and in the second, the order is one terminating the employment of the petitioner, in accordance with sub-regulation (9) of Regulation 4 of the Regulations, 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 and wrong information, his service shall be terminated".

In other words, petitioner did not have the requisite qualification to be appointed as a driver in the respondent-organisation since the transfer certificate was proved to be false containing wrong information over his qualification, and therefore, the termination of the employment does not tantamount to termination for a misconduct not connected with the dispute in I.D. No. 148 of 2005 calling for approval of termination under section 33(2)(b) of the I.D. Act Petition, devoid of merit, is rejected".

In my opinion, the award of the Labour Court in I.D. No. 21 of 2010, dated 19-6-2012 cannot be sustained. It is accordingly quashed and the writ petition is allowed. No costs.