Karnataka State Road Transport ... vs Rama
2024 Latest Caselaw 5646 Kant

Karnataka High Court

Karnataka State Road Transport ... vs Rama on 23 February, 2024

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                           BEFORE

           THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

         WRIT PETITION No.65748/2016 (L-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
MYSORE RURAL DIVISION
MYSORE
BY ITS DIVISIONAL CONTROLLER
REP. BY ITS CHIEF LAW OFFICER.                 ... PETITIONER

(BY SMT. RENUKA H.R., ADVOCATE)

AND:

RAMA
S/O. EARAIAH
ADULT
R/O. BEERYA VILLAGE AND POST
HOSA AGRAHARA HOBLI,
K.R. NAGAR TALUK,
MYSURU - 570 001.                            ... RESPONDENT

(BY SRI LETHIF B., ADVOCATE)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE AWARD
DATED 04.12.2015 IN I.I.D.NO.46/2013 PASSED BY THE 1 LABOUR
COURT, MYSURU (ANNEXURE-S).

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 22/01/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                             -2-

                         ORDER

The Karnataka State Road Transport Corporation ('the

corporation' for short) is before this Court assailing the

legality and correctness of the order of the Labour Court

directing reinstatement of the workman with continuity of

service, with all other consequential benefits, however, back

wages were denied.

2. Respondent was working as a driver in the

establishment of the corporation, his appointment was on an

application submitted by the respondent to the corporation

for the post of driver and along with the application, he had

submitted a transfer certificate issued by the Government

Practising Kannada Middle School Training College, Mysore

('the Government School, Mysore' for short), the respondent

was placed on probation, subject to the verification of the

genuineness of the certificates produced by the respondent,

his period of probation was postponed for a period of one

year. In Mysore, two divisions came to be formed namely,

Mysore Rural Division and Mysore Urban Division, and the

respondent came under the purview of Mysore Rural Division

and all documents relating to him were sent to the

corporation in the year 1999, according to the corporation,

normal procedure is without verification of documents the

employee will not be placed on probation, however,

respondent was placed on probation, as the division was

under the impression that the certificates of the respondent

were verified, however, while verifying the records of each

employee, it was noticed that the transfer certificate of the

respondent was not verified, as such Security Officer was

directed to conduct inspection in respect of genuineness of

the transfer certificate produced by the respondent. A letter

was issued by the Head Master of the School stating that the

transfer certificate was not issued by their school and the

same was submitted by the security officer as a report, the

disciplinary proceedings were initiated, corporation examined

the Enquiry Officer as M.W.1 and also the Head Mistress of

the school as M.W.2, the workman did not choose to cross-

examine the M.W.2, the enquiry officer conducted enquiry

and held that the transfer certificate produced by the

workman is a fake document and submitted the report. The

Disciplinary Authority after considering the report and the

materials placed imposed the punishment of dismissal of the

respondent from service.

3. Dispute was raised by filing claim statement under

Section 10 (4-A) of the Industrial Disputes Act, 1947 ('the ID

Act' for short), the corporation filed counter statement, inter

alia, denying the averments made in the claim statement.

4. The Labour Court, on the question of the validity

of the domestic enquiry, held that the domestic enquiry

conducted by the corporation is fair and proper and by the

impugned order, the Labour Court allowed the claim petition

and directed the corporation to reinstate the workman into

service with continuity of service and other consequential

benefits without back wages.

5. Heard Smt. H.R. Renuka, learned counsel for the

petitioner and Sri B. Lethif, learned counsel for the

respondent and perused the material on record.

6. Learned counsel for the petitioner would urge the

following grounds:

i. That the Labour Court committed a grave error in

placing reliance on Exs.W.1 and W.2, which were

the documents produced for the first time before

the Labour Court;

ii. The Labour Court, having held that the domestic

enquiry to be fair and proper, was required to

appreciate the evidence adduced before the Enquiry

Officer and the documents produced there and

would further contend that the documents which

are not part of the enquiry proceedings could not

be allowed to be produced, and the Labour Court

committed error in placing reliance on Exs.W.1 and

W.2.

iii. Ex.M.1 is a transfer certificate issued by the

Government School, Mysore, which was produced

by the respondent at the time of appointment and

on verification, it was found that the said transfer

certificate pertains to one Appaji, s/o Ningaiah and

the corporation had also examined the Head

Mistress of the said school as M.W.2 and the

evidence of the head mistress remained

unrebutted.

iv. The reliance placed by the respondent on the

documents to contend that the order of punishment

is disproportionate and there has to be parity in

imposing the order of punishment has no

application.

v. The Labour Court, while examining the issue of

victimization, has placed reliance on the orders

passed by the corporation in other cases of

employees and failed to consider that equality

under Article 14 of the Constitution of India cannot

be enforced in a negative manner.

vi. That the interference with the order of dismissal

was uncalled for by the Labour Court.

7. Per contra, learned counsel for the respondent-

workman would justify the order of the Labour Court and

would contend that the Labour Court has rightly considered

that the workman studied up to the 7th standard at

Government Higher Primary School, Berya and thus, the

question of producing a fake certificate to obtain employment

by producing Ex.M.1 was not necessary and would contend

that the Labour Court has rightly analyzed the documents

produced by the workman and has rightly arrived at a

conclusion that the workman is entitled for reinstatement

with continuity of service and all consequential benefits and

the same does not warrant any interference.

8. Having heard the learned counsel for the parties,

the point that arises for consideration is:

"Whether the Labour Court was justified in setting aside the order of dismissal and re-appreciating the entire evidence while taking additional evidence, when the domestic enquiry conducted by the corporation was held to be fair and proper?"

9. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties and

perused the material on record.

10. Undisputed facts are that Ex.M.1-transfer

certificate was produced by the respondent along with the

application while seeking an appointment in the corporation.

The proceedings were conducted and on enquiry, it was

found that Ex.M.1-transfer certificate, wherein admission

No.23/1970-71, TC No.40/1984-85, was issued by the

Government School, Mysore, on verification, it was informed

by the school authorities that admission No.23/1970-71

pertains to one Appaji, S/o Ningaiah and TC No.40/1984-85

pertains to one E.Rita, the head mistress of the said school,

was examined as M.W.2, who reiterated the aforestated facts

with reference to the original records, the evidence of the

head mistress of the school remained unrebutted, while the

respondent did not cross-examine this witness. The Labour

Court, placing reliance on Exs.W.1 and W.2, arrived at a

conclusion that the respondent-workman had never studied

in the school pertaining to Ex.M.1, the error committed by

the Labour Court is that the Labour Court failed to consider

that the workman has come up with the new contention by

producing two documents for the first time before the Labour

Court, the enquiry having been held fair and proper, what

was required by the Labour Court is to appreciate the

evidence adduced and the documents produced before the

Enquiry Officer. Admittedly, Ex.W.1 and W.2 were never part

of enquiry proceedings.

11. The Corporation, by adducing the evidence of

Head Mistress as M.W.2, proved that the transfer certificate

produced along with the application for recruitment was a

fake document, it is brought to the notice of this Court by

the corporation counsel that even assuming that Ex.W.2 was

considered by the Labour Court, the Labour Court has lost

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sight of the fact that at Ex.W.2, the name of the father of the

respondent is mentioned as Davaiah, whereas the father of

the respondent is Eraiah, which again is undisputed. The

respondent having produced a fake certificate which pertains

to his appointment and Ex.W.1 and W.2 having not placed

before the Enquiry Officer. The Apex Court in the case of The

workmen of M/s. Firestone Tyre and Rubber Co. of

India P. Ltd. Vs. The Management and others1

(Firestone Tyre) has summarized the principles governing

the jurisdiction of the Tribunal when adjudicating the

disputes relating to dismissal or discharge and at paragraph

No.27 has held as under:

"27. From those decisions, the following principles broadly emerge:-

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal., the latter has power to see if action of the employer is justified.

AIR 1973 SC 1227

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(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other

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hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee

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and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 = (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal"

12. The contention of the respondent that similarly

placed persons have been imposed with lesser punishment

and that the corporation has practiced disproportionate

against the respondent insofar as it pertains to imposition of

the punishment, the said submission is unacceptable for the

reasons that it is a settled proposition of law that equality is

a positive concept and there cannot be a negative in law and

merely because in some cases, the corporation has viewed

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misconduct leniently, that could not give a right to seek

similar orders by this Court. The Apex Court, in the case of

Union of India and another Vs. International Trading

Company and another2, has held at paragraph No.13 as

under:

"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It

(2003) 5 SCC 437

- 15 -

does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."

13. The Apex Court in the case of Indian Oil

Corporation Ltd. Vs. Rajendra D. Harmalkar3 has held

that when an employee produced a forged/fake certificate,

the disciplinary authority/employer looses the confidence and

trust in such employee, when it is a case of trust and the

Apex Court held at paragraph Nos.6 and 7 as under:

"6. By the impugned judgment and order, the High Court, in exercise of powers under Article 226 of the Constitution of India, has interfered with the order of punishment imposed by the Disciplinary Authority and has ordered reinstatement without back wages and other benefits by observing that order of punishment of dismissal from the service imposed by the Disciplinary Authority is disproportionate to the misconduct proved. Therefore, the short question which is posed for consideration by this Court is,

AIR Online 2022 SC 580

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whether, in the facts and circumstances of the case the High Court is justified in interfering with the conscious decision taken by the Disciplinary Authority while imposing the punishment of dismissal from service, in exercise of powers under Article 226 of the Constitution of India.

7. On the question of judicial review and interference of the courts in matters of disciplinary proceedings and on the test of proportionality, a few decisions of this Court are required to be referred to:

i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority to order and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the wellknown principles known as 'Wednesbury principles'.

In the Wednesbury case, (1948) 1 KB 223, it was said that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied,

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namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : (AIR 1996 SC 484), in paragraph 18, this Court observed and held as under:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

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iii) In the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh, (2013) 12 SCC 372 : (AIR 2013 SC 3540), in paragraph 19, it was observed and held as under:

"19. The principles discussed above can be summed up and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter

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back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para

19.4 above, would be in those cases where the co delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the codelinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the codelinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If the codelinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."

7.1 In the present case, the original writ petitioner was dismissed from service by the Disciplinary Authority for producing the fabricated/fake/forged SSLC. Producing the false/fake certificate is a grave misconduct. The question is one of a TRUST. How can an employee who has produced a fake and forged

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marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate. Therefore, in our view, the Disciplinary Authority was justified in imposing the punishment of dismissal from service.

7.2 It was a case on behalf of the petitioner - original writ petitioner before the High Court that he pleaded guilty and admitted that he had submitted a forged and fake certificate on the assurance that lesser punishment will be imposed. However, except the bald statement, there is no further evidence on the same. Nothing has been mentioned on record as to who gave him such an assurance.

7.3 Even otherwise the conduct on the part of the original writ petitioner is required to be considered.

As observed hereinabove, prior to the issuance of the chargesheet and after the complaint was received by the Vigilance Officer, there were repetitive requests and follow up by the authorities requesting the original writ petitioner to produce the original SSLC. Initially the original writ petitioner did not even respond to the said requests. Thereafter, he came up with a case that

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the original SSLC was misplaced. He was then called upon to obtain a duplicate copy of the SSLC and to submit the same to the Manager, ER. However, he continued to evade obtaining the duplicate certificate from Karnataka Board. Only thereafter the Manager, ER directly contacted the authorities of the Board and requested the Education Board to check up from their records and only thereafter it was revealed that the SSLC produced by the original petitioner was forged and fake and belonged to or related to some another student and it did not belong to the original writ petitioner. This shows the malafide intention on the part of the original writ petitioner.

7.4 Now, so far as the submission on behalf of the original writ petitioner that he was acquitted by the Criminal Court for the offences punishable under Sections 468 and 471 IPC in respect of the same certificate is concerned, the said contention is neither here nor there and is of no assistance to the original writ petitioner. Apart from the fact that he was acquitted by the Criminal Court by giving benefit of doubt and there was no honourable acquittal, in the present case before the Disciplinary Authority the original writ petitioner as such admitted that he produced the fake and forged certificate. Therefore, once there was an admission on the part of the respondent - original writ petitioner, thereafter

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whether he has been acquitted by the Criminal Court is immaterial.

7.5 Even from the impugned judgment and order passed by the High Court it does not appear that any specific reasoning was given by the High Court on how the punishment imposed by the Disciplinary Authority could be said to be shockingly disproportionate to the misconduct proved. As per the settled position of law, unless and until it is found that the punishment imposed by the Disciplinary Authority is shockingly disproportionate and/or there is procedural irregularity in conducting the inquiry, the High Court would not be justified in interfering with the order of punishment imposed by the Disciplinary Authority which as such is a prerogative of the Disciplinary Authority as observed hereinabove.

7.6 From the impugned judgment and order passed by the High Court, it appears that the High Court has denied the back wages and other benefits and has ordered reinstatement on a concession given by the learned counsel on behalf of the original writ petitioner. However, it is required to be noted that for the period between 2006 to 2017 i.e. during the pendency of the writ petition the respondent was working in the Petroleum Division of Reliance Industries. Therefore, he was aware that even

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otherwise he is not entitled to the back wages for the aforesaid period. Therefore, the concession given on behalf of the original writ petitioner as such cannot be said to be a real concession. In any case in the facts and circumstances of the case and for the reasons stated above and considering the charge and misconduct of producing the fake and false SSLC Certificate proved, when a conscious decision was taken by the Disciplinary Authority to dismiss him from service, the same could not have been interfered with by the High Court in exercise of powers under Article 226 of the Constitution of India. The High Court has exceeded in its jurisdiction in interfering with the order of punishment imposed by the Disciplinary Authority while exercising its powers under Article 226 of the Constitution of India."

14. The Division Bench of this, in the case of Sri

Krishna Vs. Bengaluru Metropolitan Transport

Corporation4, has held that if employment is secured by

providing fake certificates, he deserves to be dismissed and

the Labour Court, invoking Section 11A of the ID Act, could

not have interfered with punishment of dismissal of the

respondent from service by substituting it with only the

W.A. No.94/2015 D.D. 24.01.2020

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denial of back wages and giving the benefit of reinstatement

and other benefits. This is a case of the submission of a false

transfer certificate for the purpose of obtaining employment,

the employment of the respondent-workman was secured by

playing fraud on the corporation and the material on record

indicates that the discretion under Section 11A is unavailable

to the Labour Court when the appointment is based on fraud

played on the employer, if such types of appointments are

legalized, it would be a situation where the dishonest persons

are brought to service and the legitimate eligibility person is

deprived of his right.

15. The Labour Court has totally lost sight of the fact

that the punishment imposed by the Disciplinary Authority is

for submission of a fake certificate, which discretion is

unavailable under Section 11A of the ID Act and the perusal

of the impugned order would indicate that the Labour Court

has not applied its mind to hold that the imposition of

punishment is disproportionate to the misconduct, the entire

reasoning is a situation where the Labour Court upset the

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findings recorded by the Enquiry Officer when the charges

against the workman is proved and the charge was that he

secured an employment in the corporation by production of

false transfer certificate and the punishment to be imposed

in such matters would be a dismissal, which is rightly

imposed by the Disciplinary Authority.

16. For the foregoing reasons, the point framed for

consideration is answered in favour of the petitioner-

corporation and this Court pass the following:

ORDER

i. Writ Petition is allowed.

ii. Impugned order dated 04.12.2015 passed by the

Labour Court, Mysore at Annexure-S is hereby set

aside.

SD/-

JUDGE

MBM