Partly allowed

C.S.Durai v. Air India Ltd.

Bombay HC27 Apr 2010WP/615/1997

Case brief

AI extract

What is this about?

This common order disposed of two writ petitions challenging termination of service under para 22 of the President's Directive. The court quashed the termination, holding that the Directive applies only to appointees against reserved vacancies.

What did the court decide?

Writ petitions allowed in part; termination quashed for C.S. Durai with reinstatement; show cause notice quashed for Ananda R. Karkera.

C.S.Durai Vs Air India Ltd. — Pension and Retirement Benefits | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 615 OF 1997

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Shri C.S. Durai of Mumbai

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Indian Inhabitant, residing at

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House No. 12, Razak Chawl,

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Kalina, Santacruz (East),

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MUMBAI 400 098. .... Petitioner.

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Versus

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Air India Limited, a Government

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Company incorporated under the Companies Act, 1956, with its Head Office at Air India Building, Nariman Point, Mumbai, and its Head Office at Bombay Airport, Santacruz (East), MUMBAI - 400 091. .... Respondent.

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Mr. A.D. Shetty i/by Sanjay Udeshi & Co. for the petitioner.

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Mr. S.K. Talsania, Sr. Adv., i/by Abhay Kulkarni

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for Respondent No. 1.

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WITH

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WRIT PETITION NO. 1182 OF 1997

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Shri Ananda R. Karkera of Mumbai Indian Inhabitant, residing at 22, Devidwar Chawl, Room No. 22, Ganesh Nagar, S.S. Road, Bhandup (West), MUMBAI 400 078. .... Petitioner.

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Versus Air India Limited, a statutory organization, incorporated under the provisions of Air Corporation Act, 1953, having its office at Nariman Point, Air India Building, MUMBAI - 400 021. .... Respondent.

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Mr. A.D. Shetty with Ms. Rita Joshi i/by Sanjay Udeshi & Co.

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for the petitioner.

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Mr. Abhay Kulkarni i/by Chhaya Shah for Respondent No. 1.

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CORAM : J. N. PATEL &

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A.P. BHANGALE, JJ.

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JUDGEMENT RESERVED ON 15/04/2010.

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JUDGEMENT DELIVERED ON 27/04/2010.

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ORAL JUDGMENT (PER J.N. PATEL, J.) :-

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These two petitions have been filed by the employees of the respondent aggrieved by their termination from service in accordance with Section 13(1) of the Model Standing Orders read with para 22 of the President's Directive on the ground that they had submitted false caste certificate in seeking employment with the respondent. Therefore, these two writ petitions which challenge the order of termination and show cause notice on similar facts and circumstances can be disposed of by a common order.

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The petitioner C.S. Durai (petitioner in Writ Petition No. 615 of 1997) was employed as a casual labour by the respondent in the year 1978. Thereafter his application dated 2.11.1979 for appointment as loader on a regular and permanent basis came to be accepted in the year 1982 in the quota reserved for backward candidates as the

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application made by the petitioner was against the said category for which the petitioner had given a caste certificate certifying himself to be belonging to caste "Hindu Nadar". In the year 1984, he came to be charge-sheeted for furnishing false information in respect of his caste and came to be suspended for a period of four days and thereafter he came to be continued in service as a loader and recategorised as Peon as informed by the Personnel Officer of the respondent on 31.12.1985. On 1.7.1991, the petitioner was promoted as a Senior Peon and confirmed in the said grade on 1.1.1992.

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It is the case of the petitioner that on 7.2.1997 a notice came to be issued from the President's Office to the departmental heads of the respondent, inter alia calling upon them to implement the aforesaid directive with particular emphasis on para 22 dealing with cases of furnishing false information in the matter of status of caste and pursuant to that the petitioner's services came to be terminated on 19.3.1997.

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On 26.3.1973 the petitioner Ananda R. Karkera (petitioner in Writ Petition No. 1182 of 1997) came to be appointed as a Telephone Operator on temporary basis and, therefore, he was required to fill his personal data form and in the column as regards whether he is a

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member of the Scheduled Caste, the petitioner had filled in his caste as "Moger (Mogveera)" belonging to Scheduled Caste in support of which

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he submitted a certificate from his Village Panchayat. The petitioner thereafter came to be appointed to a permanent post of teleprinter operator on probationary basis in the year 1973 and was confirmed in the said grade in the year 1974. Thereafter on 1.6.1980 he was promoted to the post of Chief Teleprinter Operator and thereafter on 1.10.1983 to the post of Teleprinter Supervisor. In the year 1987, the petitioner was asked to produce a caste certificate in the prescribed form but he was not able to do so as the parents had relocated from the ancestral village at other place. On the failure of the petitioner to submit proper caste certificate, an enquiry came to be initiated on 24.9.1987 and on 17.10.1988 he was given a show cause notice calling upon him to submit his explanation in writing as to why disciplinary action should not be initiated against him for allegedly furnishing false information regarding his caste status at the time of employment. Thereafter on 22.5.1989, he was issued with a charge-sheet under Regulation 42 (xxi) of the Air India Employees Service Regulations for furnishing false information at the time of employment regarding caste. The petitioner took the defence that he has never sought employment on the ground of caste and that at the relevant time he had filled in his form believing that "Moger" and "Mogveera" were the communities to which he belonged and that at the relevant time he was not aware that "Mogveera" does not belong to Scheduled Caste. Thereafter the enquiry was conducted and he was exonerated and acquitted from the false charges levelled against him by the charge sheet dated 25.1.1991.

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It is also the case of this petitioner that the General Manager of the respondent's Human Resources Development Department (HRD) by a communication to all the Departmental Heads, called upon them to adhere to the provisions of the President's Directive, with particular emphasis on paragraph 22 dealing with the appointment of SC, ST and OBC candidates pursuant to which on 10.7.1997 a show cause notice was issued to the petitioner calling upon him to show cause as to why his services ought not to be terminated for having allegedly furnished bogus caste certificate.

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Therefore, it can be seen that the common ground taken by the petitioners in both the writ petitions is that they have never applied for employment against the seat reserved for candidates belonging to backward classes but they have submitted their respective caste certificates and declared their caste as per the requirement of the employer and it was not false to their knowledge. In the case of Ananda R. Karkera he was even exonerated in the departmental enquiry and, therefore, it is contended that they cannot be dismissed from service pursuant to the President's Directives without giving them an opportunity of hearing and following the procedure prescribed under the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders framed thereunder which is applicable to their case.

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The learned cou nsel appearing for the petitioners has

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placed reliance on the judgment of this Court in the case of Laxman Shriyan v. Air India Ltd., Bombay & Ors., reported in 2001 II CLR 444 and submitted that the ratio of the decision in Laxman's case which is based on identical facts would be squarely applicable to their case and that this Court having quashed and set aside the termination of service on the ground that merely because the President's Directive was issued subsequently to the effect that if verification reveals that the claim of the candidate that he belongs to SC/ST is false, the services of the employee will be terminated forthwith without assigning any further reasons can be no justification for imposing a further penalty in respect of an offence which has already been dealt with. It is submitted that the decision in Laxman's case was challenged before the Supreme Court by filing a Petition for Special Leave to Appeal (Civil No. 17029/2001 which came to be dismissed and, therefore, this Court should allow both the petitions.

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Per contra, it is the contention of the learned counsel appearing for the respondent that the employer was bound to take cognizance of the President's directives which was very clear in respect of verification of caste certificates of candidates who were appointed against the backward category and, therefore, there is no

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error or illegality on the part of the employer in taking necessary action to implement the said directives and thereafter in removal of

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the petitioners from service if the petitioners are not found to be belonging to the backward class for which they have furnished their caste certificates.

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In so far as the case of the petitioner C.S. Durai is concerned, his services came to be terminated by order dated 19.3.1997 on the ground that he has deliberately produced a bogus caste certificate with the intention of enjoying benefits only due for bonafide SC/ST candidates. The enquiry committee which was constituted to enquire against him found him guilty in their report submitted to the competent authority for furnishing and falsely declaring that he belongs to 'Harijan' community, i.e. "Furnishing at

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the time of employment of wrong information". The very order of termination specifies that Air India has appointed Mr. C.S. Durai in the company as a general candidate. However, Mr. Durai in his application dated 2.11.1979 indicated that he belongs to SC community and has subsequently submitted V.M. certificate dated 10.9.1972 issued by Village Munsiff wherein it has been mentioned that Mr. Durai belongs to Harijan Community but it was found that he does not belong to SC community as claimed by him and,

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therefore, pursuant to paragraph 22 of the President's Directive his services came to be terminated. It has been the case of this petitioner that he has never claimed any advantage on the basis that he belongs to backward class either in seeking employment or promotions in the respondents. Therefore, it is evident that the respondents have wrongly terminated the services of the petitioner by the impugned order by placing reliance on paragraph 22 of the President's Directive on Reservation for SC & ST which is reproduced below :-

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"The appointment is provisional and is subject to the caste/tribe certificate being verified through the proper channels and if the verification reveals that the claim to belong to Scheduled Castes / Scheduled Tribes, as the case may be, is false, the service will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of false certificate."

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A plain reading of the President's directive makes it clear that the same is applicable in case of persons whose appointment is made against vacancy reserved for Backward Class and subject to the

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caste/tribe certificate being verified through the proper channels and if the verification reveals that the claim to belong to Scheduled Castes/Scheduled Tribes, as the case may be, is false, the services will be terminated forthwith. Therefore, the impugned order of termination dated 19.3.1997 is quashed and set aside and as a consequence thereof, the petitioner stands reinstated in service with

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full back wages and continuity of service with all consequential benefits.

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As regards Mr. Ananda R. Karkera, the petitioner in Writ Petition No. 1182 of 1997, this petitioner was charge-sheeted for "Breach of law applicable to the establishment." and on going through the report of the Enquiry Committee, the Disciplinary Authority found :-

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"1) No evidence has been led before the Enquiry Committee that Mr. A.R. Karkera had knowingly submitted a false caste certificate.

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1. Also no evidence has been led before the Enquiry Committee that Mr. A.R. Karkera's recruitment in the year 1973 was against a post which was reserved for a

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scheduled caste candidate."

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And, therefore, the Disciplinary Authority took a decision that the fact that Mr. Karkera does not belong to scheduled caste has come out after a lapse of 18 years after his recruitment, and at this distance of date, it would be impracticable to withdraw any of the benefits which he might have been extended as scheduled caste candidate, and also to impose any punishment on him at this juncture would be unjust. The Disciplinary Authority, therefore, ordered that with immediate effect no benefit whatsoever be extended to Mr. A.R. Karkera as a scheduled caste candidate. The order reads as under :-

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"I have gone through the past record of Mr. A.R.

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Karekara and find that it is without any blemish. I, therefore, order that with immediate effect no benefit whatsoever be extended to Mr. A.R. Karkera as a scheduled caste candidate. This in my view meets the ends of justice."

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The petitioner's challenge to the show cause notice dated 10.7.1997 is, therefore, justified as the respondent is estopped from taking any action against the petitioner for the same reason for which the

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departmental enquiry was conducted and it was thought fit to continue him in service. Therefore, the impugned show cause notice is quashed and set aside.

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The rule is made absolute in both the petitions

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accordingly with no order as to costs.

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( J. N. Patel, J)

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(A.P. Bhangale, J)

C.S.Durai v. Air India Ltd.

Case brief

What is this about?

What did the court decide?

C.S.Durai v. Air India Ltd.

Case brief

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