Madras High Court

V.Srinivasan vs The Presiding Officer on 28 June, 2021

                                                                                  W.P.No.29499 of 2010

                                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 28.06.2021

                                                              CORAM

                                           THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

                                                       W.P.No.29499 of 2010
                 V.Srinivasan                                                           ... Petitioner
                                                               -vs-
                 1. The Presiding Officer,
                    Additional Labour Court,
                    Vellore.

                 2. The Management,
                     Tamil Nadu State Transport Corporation Villupuram (Division-II) Ltd.,
                     Rangapuram,
                     Vellore-632 009.                                              ... Respondents
                 Prayer: Writ Petition filed under Article 226 of Constitution of India praying for
                 the issuance of a Writ of Certiorarified Mandamus, calling for records from the
                 1st Respondent, relating to the impugned Award dated 11.03.2010 in I.D.No.273
                 of 2003 and quash the same and direct the 2 nd Respondent to reinstate him in
                 service, with full backwages, continuity of service and all other attendant
                 service benefits.
                                      For Petitioner      : Mr.P.Rajaram

                                      For R2              : Mr.C.S.K.Sathish
                                                                *****
                                                           ORDER

This writ petition has been filed, challenging the Award dated 11.03.2010

passed in I.D.No.273 of 2003 by the 1st Respondent herein, by which the

Industrial Dispute, raised by the Petitioner for reinstatement was dismissed.

The Petitioner also sought a direction to the 2nd Respondent to reinstate him in

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service, with full backwages, continuity of service and all other attendant

service benefits.

2. The case of the petitioner is that his name was sponsored by the

Employment Exchange in the year January, 1994 for the post of Driver and after

interview and verification of his educational certificates, he was initially

appointed as Casual Labour (Driver) and thereafter, his service was regularized

in the year 2000;

2.1. It is further case of the Petitioner that he was issued with a Charge

Memo dated 27.07.2001, alleging production of forged transfer certificate and

after receipt of explanation from him, the Enquiry Officer submitted a report

on 26.07.2002, stating that the petitioner was guilty of charges. The 2nd

Respondent, based on the said report, terminated the petitioner from service,

after issuance of a show cause notice dated 22.10.200 in respect of the

proposed punishment;

2.2. It is also the case of the Petitioner that in the Industrial Dispute

raised by the Petitioner under Section 2(A) of the I.D.Act, 1947, there was no

settlement, which led to filing of a failure report by the Conciliation Officer.

Though the Labour Court in I.D.No.273 of 2003 initially set aside the domestic

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enquiry proceedings on the ground of violation of principles of natural justice

and afforded an opportunity to the Management to prove the charges before it,

subsequently, solely on the basis of the evidence of M.W.2 / Headmistress of

the School, the Labour Court came to the conclusion that the certificate

produced by the petitioner was a bogus one, thereby justified the termination

order of the 2nd Respondent. Aggrieved by the same, the Petitioner is before

this Court seeking to quash the said Award.

3. Learned counsel for the Petitioner submitted that in the evidence,

M.W.2 only deposed that the serial number of the certificate belongs to some

other students, meaning thereby that there may be a wrong entry and it was

never deposed that the petitioner did not study in the school at all. Moreover,

the purported certificate was not obtained for the purpose of securing the job.

Learned counsel assailed the impugned Award on the ground that when the

similarly placed persons were given a minor punishment, the termination of the

petitioner will amount to discrimination. In support of this submission, he

referred to a judgment of the Supreme Court in the case of Life Insurance

Corporation of India and Others vs. Triveni Sharan Mishra, reported in

(2014) 10 SCC 346, wherein it was held as follows:

'13. From the papers on record before us, it appears that for mentioning less qualification to secure the job, similarly situated another employee (one Daluram Patidar) was let off by the Life

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Insurance Corporation of India by awarding punishment of stoppage of increments for two years with cumulative effect. We are of the opinion that the High Court has rightly taken note of said fact while allowing the writ petition, and directing the employer to consider the imposition of similar penalty after reinstatement of the writ Petitioner.

14. Therefore in view of the above discussion, we do not find any sufficient reason to interfere with the impugned order passed by the High Court. Accordingly, the appeal is dismissed. No order as to costs.”

4. Per contra, learned counsel for the Management contended that the

Labour Court rightly apprised the evidence of M.W.2 and held that the

certificate produced by the Petitioner was not a correct one and upheld the

order of the 2nd Respondent. If an appointment order is tainted and vitiated by

fraud, such order is liable to be recalled. He also contended that a wrong

decision cannot give rights to the Petitioner to claim parity.

4.1. Learned counsel for the Management relied on the following

judgments of the Supreme Court in order to substantiate his arguments:

i) Union of India (UOI) and others vs. M. Bhaskaran and others,

reported in 1995 Supp (4) SCC 100;

“6....It was clearly a case of fraud on the appellant- employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case.

Once the fraud of the respondents in getting such employment was detected the respondents were proceeded against in departmental

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enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could 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 respondent-employees have continued in service for number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer.”

ii) State of Haryana and Others vs. Ram Kumar Mann, reported in

(1997) 3 SCC 321;

“3. The question, therefore, is : whether the view taken by the High Court is correct in law? It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on May 18,1982. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already became effective by acceptance on May 18, 1982. It may be that Government for their own reasons, given permission in similar case, to some of the employees mentioned earlier, to withdraw their resignations and had appointed them.

The doctrine of discrimination is found upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief.

Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an

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employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into service. Can a similar circumstanced person claim equality under Section 14 for reinstatement? Answer is obviously 'No'. In a converse case, in the first instances, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never made a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits.

4. The appeal is accordingly allowed. But in the circumstances without costs.”

5. Heard the learned counsel on either side and perused the material

documents available on record.

6. The main plea canvassed by the Petitioner is that no educational

qualification is prescribed for the post of Casual Labour (Driver) and that there

is a discrimination. He drew the attention of this Court to the additional typeset

of papers produced before this Court to show that three other similarly placed

employees, who were alleged to have produced bogus certificate were let off

with a minor punishment. It is further represented by the petitioner that though

the extract of service records pertaining to one Anjali and Moorthy was

produced by him, in the Award, it has been shown as Management Exhibits,

instead of Workman Exhibits.

7. This Court do not want to analyze under what circumstances other

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employees have been reinstated. Once there is a bogus certificate produced, it

is unfair on the part of an employee to take the plea of discrimination.

Moreover, there is a 12(3) settlement in this case and this Court cannot set

aside the said settlement. The Petitioner, by quoting the decision of the

Supreme Court in Life Insurance Corporation of India and Others vs. Triveni

Sharan Mishra (supra), sought for application of the same yardstick extended

to other employees, to his case. However, the Supreme Court in yet another

case in Union of India (UOI) and others vs. M. Bhaskaran and others (referred

to above), held that where an appointment has been obtained by fraud and

bogus documents, such employee is not entitled to any relief. Both decisions

referred to by the respective parties were rendered by the Bench of Apex

Court, consisting of Two Judges and merely because the judgment relied on by

the petitioner is of the year 2014 (latest one), it does not mean that it must be

automatically applied to the facts of this case, as the ratio laid down in Union

of India (UOI) and others vs. M. Bhaskaran and others has not been referred

to in the subsequent judgment of the Supreme Court in Life Insurance

Corporation of India and Others vs. Triveni Sharan Mishra.

8. It is to be noted that while relying on a judgment, if it is found that

the factual situation totally differs, then there is no compulsion for the

subordinate courts to blindly rely on the same to arrive at a conclusion, as held

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by the Hon'ble Supreme Court in the case of Padmasundara Rao (Dead) &

others vs. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, as

follows:

"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."

9. As held by the Supreme Court in State of Haryana and Others vs.

Ram Kumar Mann (supra), two wrongs will not set a thing right to enforce one

more wrong order and claim parity. In view of the said authoritative

pronouncement of the Supreme Court, this Court is of the view that there is no

perversity in the Award of the Labour Court, which had gone into the disputed

question of facts and rendered a categorical finding by means of evidence both

documentary and oral that the certificate produced by the Petitioner was a

forged one. By any means, the action of the Management in appointing other

similarly situated persons cannot be condoned. The Officials / Appointing

Authorities, who had appointed the employees like the petitioner based on the

fake certificates, cannot be let go scot-free and action must be initiated against

them in the light of the judgment of this Court in the case of S.Thangappan vs.

Government of Tamil Nadu, reported in 1986 TLNJ 153, relevant portion of

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which, reads thus:

“If there had been any irregularity committed by the Appointing Authority, it is the Appointing Authority, who should be proceeded against. It is because of the failure of the concerned superior authority in not taking a stern action against irregular appointment made by the Appointing Authorities, it results in innocent persons, who secures employment against considerable stress and odds and later on their service dispensed with as if the Appointing Authority, would at any point of time, arbitrarily terminate their services. The second respondent, having found that the third respondent had appointed the petitioners contrary to the Rules, ought to have taken disciplinary proceedings against the third respondent. For errors and omissions committed by him, persons like that of the petitioners, who have secured the last grade post on permanent basis cannot be dealt with as if they could be dropped like hot cakes. Their future cannot be treated as light-heartedly. It is in this view, this Court, considering that even if the appointments had not been made through the Employment Exchange, or due to any other irregularity taking note of the difficulties to which the petitioners would be placed by throwing out of their employment arbitrarily, there Petitions are allowed; committed authority could have exercised its powers of exempting the rules which they do not satisfy. Such orders of exemption are not a rarity. Therefore, instead of taking action against the person who is responsible for passing orders he had been allowed to arbitrarily and contrary to rules terminate the services of the petitioners. There is no rule enabling the third respondent to terminate the service of a permanently recruited municipal servant."

10. It is apposite to mention here that appropriate disciplinary

proceedings for major misconduct shall be initiated against the Appointing

Authorities for not maintaining absolute integrity and devotion to duty, which is

S.VAIDYANATHAN,J.

ar unbecoming of a member of the service and such irresponsible Officials should

be dismissed from service. Before initiating action and dismissing them from

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service, they must be transferred to a non-sensitive post and place, and their

dereliction should be entered into the Service Register, so that their promotions

and other benefits should be deprived. Before depriving the gratuity, an

opportunity shall be given to the person concerned, as on technical ground, on

the failure to give an opportunity, the persons, who are involved in the act of