Shiv Shankar Thakre vs M. P. S. E. B.
2021 Latest Caselaw 8105 MP

    HIGH COURT OF JUDICATURE FOR MADHYA
            PRADESH : JABALPUR


Case No.                             W.P. No.12749/2011
Parties Name                               Shiv Shankar Thakre
                                                   Vs.
                                           M.P.S.E.B and others

Date of order                      02.12.2021
Bench Constituted                  Justice Vivek Agarwal
Order passed by                    Justice Vivek Agarwal
Whether approved for reporting No
Name of counsel for parties        Shri K.N. Pethia, learned counsel for
                                   the petitioner.
                                   Shri Anoop Nair, learned counsel for
                                   the respondents.
Law laid down                      --

Significant paragraph numbers      --



                               ORDER

(02.12.2021)

This petition, under Article 226 of the Constitution of

India, has been filed by the workman being aggrieved by the

order passed by learned Labour Court in Case

No.17/2008/IDR Act on 07/03/2021, pronounced on

24/05/2011 by which learned Labour Court has refused to

interfere in the impugned order dated 30 th March, 2007 passed

by the Executive Engineer (O&M), M.P. Poorva Kshetra

Vidyut Vitaran Company Limited, Lakhnadone dismissing the

petitioner who was working as an unskilled labourer on the

basis of proved allegation that petitioner had submitted forged

mark sheet of Class-8th.

2. Petitioner's contention is that petitioner entered into

service of erstwhile M.P. Electricity Board as N.M.R. on

23/09/1991 and by virtue of his continuous working for a

period of 240 days in a calendar year, he attained status of

permanent employee. Petitioner's case is that he was

subsequently regularized as a Line Attendant for which no

specific qualification is prescribed. A charge sheet was

issued to the petitioner alleging that he had submitted a

forged and fabricated mark sheet of Class-8th at the time of

his regularization on the post, of which enquiry was

conducted and thereafter impugned order of punishment

dated 30/03/2007 was passed by the Executive Engineer.

3. Petitioner's contention is that there was no requirement

for possessing qualification of 8 th class pass to seek

regularization on the post of Line Attendant, therefore,

petitioner, being not aware of the fact as to who had

produced the said mark sheet, could not be made to suffer on

the basis of probabilities, conjectures and surmises.

Petitioner's further contention is that he had joined as Line

Attendant on 04/12/1995 in terms of order dated 27/11/1995

when he was given pay scale of Rs.750-15-810-20-950/-

vide order dated 27/11/1995. Petitioner's contention is that

he was placed under suspension vide order No.3074 dated

24/7/1996 and thereafter vide order No.3554 dated 8/8/1996

charge sheet was issued to him. Petitioner's contention is

that charge sheet having been issued beyond a period of one

year of commission of a major misconduct, charge sheet is

violative of the provisions contained in M.P. Industrial

Employment (Standing Orders) Rules, 1963. It is submitted

that Rule 12(6) provides that an employer shall not be

competent to initiate proceedings against an employee- (a)

for major misconduct after one year of its commission, and

(b) for a minor misconduct after six months of its

commission. In support of his contention, learned counsel

for the petitioner has placed reliance on the decision of a

Coordinate Bench of this High Court in the case of

Secretary, M.P. Electricity Board and others Vs. Raja

Bhaiya Thakur passed in W.P. No.210/1999 decided on

08/03/1999.

4. Learned counsel for the petitioner also places reliance

on the decision of Full Bench of this High Court in the case

of Madhya Pradesh State Road Transport Corporation

Vs. Heeralal Ochhelal and others, 1980 MPLJ 8 wherein

it is held that Regulations cannot prevail over matters

regulated by Standing Orders. Reliance is also placed on the

decision of Supreme Court in the case of Nelson Motis Vs.

Union of India and another, AIR 1992 SC 1981, wherein it

is held that reading down of a statute is not permissible when

language is clear and unambiguous, therefore, it is submitted

that since language of the provisions contained in Rule 12(6)

of the Rules of 1996 is unambiguous, the petitioner could

not have been visited with major penalty specially when

proceedings were not initiated in time. Reliance is also

placed on the decision of Division Bench of this High Court

in the case of Divisional Engineer and 3 others Vs.

Badriprasad Baraiya decided on 21/01/2009 passed in

W.P. No.13601/2008(s), wherein it is held that removal

based on no domestic enquiry as is required under Clause

12(4) of the Standard Standing Order framed under M.P.

Industrial Employment (Standing Orders) Act, 1961, order of

termination could not have been passed and was rightly set

at naught by the Labour Court.

5. Shri Anoop Nair, learned counsel for the respondents,

in his turn, submits that petitioner was regularized vide order

dated 27/11/1995. He was appointed as unskilled labourer

on probation of two years. In the appointment order itself it

is mentioned that appointment is subject to the provisions

contained in Section 79 (c) of the Electricity Supply Act,

1948. Petitioner had joined services on 4/12/1995 and

petitioner had furnished his 8 th class pass mark sheet as

contained in Annexure-D/3. On verification, Incharge Dy.

Director, Education, Distt. Balaghat had informed that

petitioner-Shiv Shankar Thakre S/o Sada Shiv Thakre never

appeared in the middle school examination as a private

candidate from Govt. Higher Secondary School, Changotola,

his roll No.84790. In fact the said roll number belongs to

another person. It also came to the notice of the employer

that petitioner has studied only upto 7 th Class as is evident

from Annexure-D/6, therefore, during the period of

probation, a decision was taken to initiate departmental

enquiry on 8/8/1996 and charge sheet was issued to him.

6. Petitioner had submitted his reply to the charge sheet.

Thereafter enquiry officer and presenting officer were

appointed and after giving full opportunity to cross-examine

prosecution witnesses and produce his defence, enquiry

report Annexure-D/12 was submitted wherein enquiry officer

found petitioner to be guilty of charge against him.

Considering the enquiry report, show cause notice dated

30/07/1999 was served on the petitioner proposing penalty

of dismissal from service. Petitioner had submitted his reply

on 27/08/1999, but, the petitioner had challenged this notice

dated 30/0-7/1999 before the Labour Court, Jabalpur in

Case No.168/99/MPIR which was dismissed by the Labour

Court vide order dated 10/03/2003. Thereafter petitioner had

filed appeal against the order of dismissal passed by Labour

Court before Industrial Court, Jabalpur bearing Appeal

No.42/2003/MPIR which was dismissed vide order dated

30/09/2003. Petitioner filed a case under Section 13 of the

M.P. Industrial Employment (Standing Order) Act, 1961

bearing case No.4/2007/SSO challenging the show cause

notice, however, on the issue of maintainability being raised,

the petitioner had withdrawn these proceedings on

03/10/2007. Punishment was inflicted on 30/03/2007.

7. As per the terms of the order dated 27/11/1995 the

petitioner was asked to submit an affidavit in the prescribed

format along with a health certificate from the District

Medical Officer, original copy of the educational

qualifications, certificate of being a bona fide resident of

State of Madhya Pradesh and in terms of the said order, the

petitioner had submitted his educational qualification

certificate.

8. It is further submitted that petitioner's contention that

he never submitted any documents in the year 1995 is

factually incorrect inasmuch as i.e. the requirement

mentioned in the order of appointment dated 27/11/1995 and

in compliance of that requirement, since documents were

filed, now petitioner is estopped taking plea that he had not

furnished any document in this regard.

9. After hearing learned counsel for the parties and going

through the record, certain facts need to be put in a straight

manner. Firstly, petitioner was given appointment in a

regular pay scale vide order dated 27/11/1995. This very

order makes it mandatory to produce documents pertaining

to educational qualifications. Mark sheet contained in

Annexure-D/3 makes mention of name of petitioner which

was found forged as per the communication received from

Incharge Dy. Director, Education, Distt. Balaghat dated

11/4/1996 and the charge sheet was issued on 08/08/1996.

Thus, for a major misconduct as has been defined under Rule

12(1)(b) of the Rules of 1963, issuance of a charge sheet is

found to be well within one year, therefore, submission of

learned counsel for the petitioner that no charge sheet was

issued to the petitioner for major misconduct within one year

of its commission, cannot be accepted and this submission

needs to be rejected and is rejected.

10. It is not petitioner's case that petitioner had not

furnished any certificate of educational qualification in terms

of the order dated 27/11/1995, therefore, this plea raised by

petitioner's counsel and consequent reliance on the judgment

of a Coordinate Bench in the case of Secretary, M.P.

Electricity Board (supra), is not made out. As far as

petitioner's plea that provisions contained in the standing

orders will prevail and regulations cannot prevail over the

matters regulated by the standing orders is concerned,

therefore, reliance on judgment of Full Bench of this High

Court in the case of Madhya Pradesh State Road

Transport Corporation (supra), is correct, but, since there

is no violation of the Standing Orders or Rules framed

thereunder, it cannot be said that the petitioner's order of

termination was passed in terms of some Regulations which

cannot supersede the Rules of 1963. In fact, the petitioner

was found guilty of committing a major misconduct as

defined under Rule 12(1)(b) of the M.P. Standard Standing

Orders Rules, 1963, charge sheet was issued within one year

and, accordingly, impugned order dated 30/03/2007 has been

passed.

11. It has come on record in the evidence of defence

witness P.N. Sharma, the then Executive Engineer (O&M),

Lakhnadone that petitioner had furnished his 8 th Class mark

sheet on 04/12/1995. This mark sheet was duplicate and on

enquiry petitioner had informed that original mark sheet was

lost and, therefore, duplicate mark sheet was furnished by the

petitioner. It has also come on record that certificates as were

produced by the petitioner like minimum qualification i.e. 8 th

class passed, M.P. domicile were sent for verification by the

Superintending Engineer. It has also come on record that in

Case No.168/99/MPIR when petitioner had given his

evidence on 10/10/2001, he had admitted the fact that after

receiving order dated 27/11/1995, he had furnished his

original document on 04/12/1995. However, he said that he

had deposited 7th class mark sheet in 1995 and one Shri U.K.

Mishra had obtained his signatures on blank papers. He also

admitted that on 8/8/1996 charge sheet was issued to him.

Thus, it is evident from the evidence led by prosecution

witnesses so also that of the petitioner that petitioner had

produced educational documents on 5/12/1995.

12. On verification, it has come on record that the said

document was forged and in place of name of his brother, the

petitioner had mentioned his own name in the mark sheet and

this fact could not be properly converted by the petitioner. In

fact, prosecution witness R.R. Manmode admitted that the

documents were furnished by the petitioner and he had made

entry in the service book on the basis of the documents as

were furnished by the petitioner. Even the petitioner's

contention that no educational qualification is prescribed,

therefore, there was no occasion for the petitioner to

furnished 8th class mark sheet, is also not made out from the

record inasmuch as evidence of another labourer namely

Keshav Rao Patle is not sufficient to deny the factum of

requirement of qualification and for this purpose the

petitioner was required to advert to the necessary rules and

regulations in this regard which the petitioner has failed to

refer, therefore, in the light of law laid down by the Supreme

Court in the case of Union of India Vs. M. Bhaskaran, AIR

1996 SC 686, an appointment obtained on the basis of a

bogus and forged record constitutes a ground for cancellation

of the appointment. Similarly in the case of J&K Public

Service Commission Vs. Farhat Rasool, 1995 Suup (4)

SCC 621, it is held that an appointment obtained by

committing fraud is also liable to be set aside. Thus,

appointment on the regular pay scale obtained by committing

fraud and producing forged mark sheet, cannot be sustained

in the eye of law. Even witness Shivcharan Patle could not

deny the circular of M.P.E.B. that those appointed as N.M.R.

on or before 31/03/1993 and had passed 8 th Class were only

entitled to be appointed as unskilled labourer in regular

grade. Thus, in absence of any material on record to show

that there was no requirement to pass Class-8th to seek such

appointment and admission of the petitioner that he has

produced educational certificate at the time of his joining on

4/12/1995, taking into consideration Annexure-D/20 issued

by the Superintendent Engineer which provides the required

criteria of minimum educational qualification i.e. 8 th Class

passed, maximum age, M.P. domicile certificate and original

certificates were required to be verified before granting

appointment as unskilled labourer in the pay scale of Rs.750-

950/- to the N.M.R. employee in which even name of the

petitioner is mentioned and thereafter issuance of order dated

4/1/1995 passed by Joint Secretary (P) (I), M.P. Electricity

Board, Jabalpur, contained in Ex.D/21 dealing with

absorption of employee borne on N.M.R. on regular

establishment providing for 8 th Class pass requirement since

could not be rebutted by the petitioner, the only inference

which can be drawn is that the petitioner with a view to

obtain regular appointment, has produced forged documents

which constitutes a major misconduct for which charge sheet

was issued in time, there is no illegality in the impugned

order passed by the authority inflicting major penalty on the

petitioner so also in the order passed by the Labour Court

rejecting the contention of the petitioner.

13. Thus, the petition fails and is hereby dismissed. The

parties to bear their own cost.

(VIVEK AGARWAL) JUDGE

ts

TULSA SINGH 2021.12.08 17:19:16 +05'30'