Thammanna A. Alakavtagi vs The Divisional Controller, North West Karnataka Road Transport Corporation

B.S. Patil, J.

In this writ petition, petitioner-workman is calling in question the award passed by the Presiding Officer, Labour Court, Bijapur, dismissing the petition filed by him under Section 10(4)(A) of the Industrial Disputes Act, 1947.

Petitioner was selected as a driver in the respondent-Corporation on 15.07.1996 as per the select list published. He was appointed as a trainee driver for a period of two years on 18.07.1996. Thereafter, he was continued as a driver under the Corporation.

On 19.09.2000, Articles of Charges were issued by the respondent-Corporation alleging that petitioner had secured employment for the post of driver by producing a false and bogus Transfer Certificate showing that he had passed in 7th standard. Petitioner submitted his reply denying the charges levelled against him. Enquiry Officer was appointed. He submitted a report holding that the charges were proved. Accepting the report, the Disciplinary Authority dismissed the petitioner from service vide order dated 18.10.2001.

Petitioner moved the Labour Court challenging the order of dismissal. The Labour Court framed preliminary issue regarding the validity of the enquiry and on 17.05.2004 answered the same in favour of the petitioner-workman holding that the enquiry conducted was neither fair nor proper. Both parties were permitted to adduce evidence. The Management examined MW-1, Assistant Law Officer who was also the Enquiry Officer. One Sri B. Shivakumaraiah, Administrative Officer of the Corporation was examined as MW-2. Smt. Renuka who was the Head Mistress of the Primary School, Jaalakamaladinni, where the workman had studied was also examined as a Management witness. The Management got marked Ex. M.1 to Ex. M.40.

The petitioner-workman was examined as W.W. 1. The Labour Court on appreciation of evidence on record has found that the charge levelled against the petitioner-workman stood proved and the order of dismissal did not call for any interference. Aggrieved by the award passed by the Labour Court, the present writ petition is filed.

I have heard learned counsel for the parties who have taken me through the pleadings, evidence and the materials on record including the impugned order.

The main contention urged by learned counsel for the petitioner is that the Labour Court has erred in not taking note of the fact that, admittedly pass in 4th standard was the eligibility criteria for being appointed as a driver in the Corporation and that there was no dispute regarding the petitioner/workman possessing the said qualification of a pass in 4th standard and therefore the question whether petitioner had indeed passed in the 7th standard or not being besides the point, the Labour Court was not justified in embarking on an enquiry into the said aspect. It is his further contention that the findings recorded by the Labour Court to the effect that the 7th standard certificate produced by the petitioner was bogus and false were not supported by any evidence, inasmuch as, Ex. M.14-Transfer Certificate produced and marked before the Labour Court showing that petitioner had passed in 7th standard has not been disproved and the witnesses examined by the Management have themselves stated that they were not in a position to say whether the contents of the said documents were true or false. He has taken me through the evidence of Smt. Renuka-Headmistress of the School to contend that as per her own admission, the old records pertaining to Ex. M-14 were not available in the school and that without looking at the said records she was not in a position to state whether Ex. M-14 was true or false document. If that is so, how could there be a positive finding to establish that Ex. M-14 did not reflect the true state of affairs, is not forthcoming.

Even as regards Ex. M-13 - certificate showing that petitioner-workman had passed in 4th Standard, the Headmistress who has been examined was not aware whether the same had been issued by the school at Pachhapure. It is nobody''s case that the workman had not passed 4th Standard and that Ex. M-13 was also a fake document.

It is not in dispute that for the post of driver, pass in 4th Standard is the requirement. Without recording a finding that petitioner had not passed 4th Standard and had produced a false certificate showing that he had passed in 4th Standard, there could not have been a finding recorded holding that though he was ineligible to apply for the post, he got the appointment by producing false document.

In so far as 7th Standard certificate is concerned, as already referred to herein above, Ex. M-14 which is the transfer certificate that contains a statement showing that petitioner had passed in 7th Standard is not disputed by the Headmistress. She has pleaded her ignorance regarding the correctness or otherwise of the contents of the said document. Therefore, there was absolutely no justification for the Labour Court to return a finding that petitioner had obtained appointment by misrepresenting and producing bogus certificate.

Apparently, disciplinary enquiry conducted was vitiated. Before the Labour Court, the only witness who could speak with regard to the so-called illegal and created documents produced by the workman was the Headmistress. Her evidence does not prove the allegations levelled against the petitioner. The Labour Court has misread the evidence of the Headmistress. It has recorded perverse findings. It is no doubt true that petitioner has taken inconsistent stand. At one stage, he has stated that he has passed in 7th Standard, and at another stage, he comes up with a version that as he was told by the Headmistress that there were no records available regarding he having passed 7th Standard, he was forced to take 7th Standard examination as an external candidate and had passed the same. He has not produced any certificate showing that he had passed in 7th Standard. But, this inconsistency in his version cannot be made basis for dismissing him from service holding that he did not possess the required qualification or that he had produced bogus certificate. In the absence of proof of the allegations made against the workman, for which the burden is on the management, the Labour Court could not have passed the impugned award.

In addition, it is contended by the learned Counsel for the petitioner that in respect of several employees atleast as many as four drivers who were appointed along with the petitioner and who were found to have produced bogus certificates had been made, though the management had found them guilty, a lenient view was taken and they were continued in service. In this regard, learned Counsel for the petitioner wants to place reliance on the documents produced by way of additional documents alongwith an application filed before this Court. I do not find it necessary to go into these documents because plea of discrimination cannot be entertained in such matters, though it may to a certain extent reflect on the way management has taken different stand in respect of different employees.

In the light of the findings recorded above holding that the Labour Court had return perverse findings and the conclusion reached by it are unsustainable, petitioner deserves to succeed. However, petitioner is out of employment for the last 14 years. He must have been employed elsewhere to eke his livelihood. At any rate, part of the problem is attributable to the workman himself because he ought to have atleast come up with a definite stand and produced marks card of 7th Standard examination. He has come up with a plea that his name was found in the rolls of two primary schools. He has produced Ex. M-13 - certificate to show that he has passed 4th Standard from Government Kannada Boys Schools, Pachhapure, whereas he claims to have passed 7th Standard from Jalakamaladinni. He has failed to explain these inconsistencies. In such circumstance, he is not entitled for back wages for the long period of nearly 14 years. However, he must be aged about 50 years now and still has about 10 years of service. Ends of justice would be met, if he is ordered to be reinstated without back wages, but with continuity of service.

In the result, this writ petition is allowed in part. The impugned award passed by the Labour Court is set aside. Petitioner is ordered to be reinstated into service without back wages, but with continuity of service.