Employer challenged the Industrial Tribunal's refusal to approve a workman's dismissal based on a caste verification finding. The Court held the government notification treating 'Parivara' as synonym of 'Nayaka' meant no false certificate was obtained; dismissal unwarranted. Writ petition dismissed, Tribunal order confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO. 30593 OF 2012 (L-DE)
BETWEEN:
M/S BEML LIMITED, EQUIPMENT DIVISION, MYSORE COMPLEX, MYSORE, REPRESENTED BY ITS SENIOR MANAGER(LEGAL).
…PETITIONER
(BY SRI. N. S. NARASIMHASWAMY, ADVOCATE)
AND:
MR. SHANKAR NAYAKA, S/O LATE JAVARA NAYAKA, AGED ABOUT 47 YEARS, R/AT NO.47, G BLOCK, 3RD STAGE, VIJAYANAGAR MYSORE 570 017.
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
…RESPONDENT (BY SRI. SHASHIDHAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 13.12.2011 PASSED BY THE INDUSTRIAL TRIBUNAL, MSORE IN SERIAL APPLICATION NO.1/2009 VIDE ANNEXURE-K AND ETC.
THIS PETITION, COMING ON FOR DICTATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL ORDER
Petitioner is applicant in Serial Application No.1/2009 on the file of the Industrial Tribunal, Mysore (herein after referred to as ‘Tribunal’ for short), whereby, the application filed under Section 33(2)(b) Industrial Disputes Act, 1947 (herein after referred to as ‘ID Act’ for short) was dismissed by the Tribunal.
the following grounds:
the petitioner in dismissing the respondent-workman is based on the order passed by the DCVC.
Development and Others1 (Kumari Madhuri Patil and Another)
iii. Additional General Manager, Human Resource, Bharath Heavy Electricals ltd. Vs. Suresh Ramkrishna Burde3 (Additional General Manager, Human Resource, Bharath Heavy Electricals ltd.)
4. Per contra , learned counsel for the respondent justifying the order passed by the Tribunal would urge the following grounds:
1 AIR 1995 SC 94.
2 (2005) 3 SCC 241.
3 (2007) 5 Scc 336.
further clarified that the appointments made in respect of the person belonging to ‘Parivara’, who had obtained employment under 'Scheduled Tribes' quota as 'Nayaka' shall be treated as appointment under 'General Merit' category with effect from the date of the order.
b. That the Government order was passed on 25.04.2002 and the order of DCVC pursuant to which, imposing punishment of dismissal, is without considering the Government notification, which had given the benefits under the Government orders.
between a ‘wrong’ caste certificate and a ‘false’ caste certificate and the caste certificate issued by the Tahsildar was a ‘false’ certificate and moreover when the Government order clearly states that the ‘Parivara’ community was hitherto considered as ‘Nayaka’ and the benefits drawn by any in such cases, shall not be considered as ‘false’, but only thereafter, shall be considered as ‘General Merit’.
5. Having heard the learned counsel for the
parties, the point that arises for consideration is:
"Whether the Tribunal was justified in rejecting the application filed by the petitioner under Section 33(2)(b) ID Act seeking approval in the present facts and circumstance of the case?"
come under the 'Scheduled Tribes' category. On the order
of the DCVC, the petitioner issued show-cause notice calling upon the respondent-workman as to why he should not be dismissed from service on account of his act of producing ‘false certificate’ which was meant for reserved category. Not being satisfied with the explanation offered
by the respondent-workman, the competent authority issued an order on 16.05.2009, dismissing the respondent-workman from service, after issuance of letter, dispute was pending before the Tribunal, accordingly, application under Section 33(2)(b) ID Act seeking approval
was filed and simultaneously along with the order of dismissal. Section 33(2)(b) ID Act reads as under:
" 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) XXX
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such
dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]
(a) XXX
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
7. The Apex Court in the case of Cholan
Roadways ltd. has held at paragraph Nos.18, 19 and 20 as under:
"18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N. Banerjee. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity
or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case this Court stated: (AIR p. 85, para 27)
"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (Sec Buckingham &
Carnatic Co. Ltd. v. Workers of the Company)"
19. It is further trite that the standard of proof required in a domestic enquiry vis-à-vis a criminal trial is absolutely different. Whereas in the former "preponderance of probability" would suffice; in the latter, "proof beyond all reasonable doubt" is imperative
20. The Tribunal while exercising its jurisdiction under Section 3.3(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently."
ID Act cannot be equated with that of Section 10 ID Act, the Tribunal while exercising the jurisdiction under Section 33(2)(b) ID Act is required to see whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent and the Tribunal while exercising its jurisdiction under Section 33(2)(b) ID Act was required to bear in mind, the legal principles that in a domestic enquiry preponderance of probability would suffice unlike in criminal trial, where the proof requires beyond all reasonable doubt is imperative.
considered as ‘ST’ anymore and further clarified that the appointments made in respect of persons belonging to ‘Parivara’ who had obtained employment under ‘ST Quota’ as ‘Nayaka’ shall be treated as appointments with effect from the date of the order, the relevant portion of the order reads as under:
“The entire matter has been reviewed. It is considered necessary to prevent non-ST persons from availing benefits meant for ST persons, Hence the following order:
Government order No.SWD 713 SAD 83, Bangalore, Dated 11th March 2002.
In partial modification of Government Orders read at (1) and (2) Government are pleased to order as under :-
1. The benefit of reservation in admission to educational Institutions and educational concessions extended to Pariwara, Talwara, Maaleru, Kuruba communities in G.Os read at (1) and (2) above and Besta and Koli Communities accordingly cease. All persons of these communities who have obtained ST Caste certificates shall surrender them immediately to the issuing authority for cancellation. They shall not be
NC: 2024:KHC:37739 WP No. 30593 of 2012
liable for penal action provided they surrender their certificates. The issuing authority shall cancel such certificates.
2. Wherever it comes to the notice of the appointing authority that a ST certificate has been issued to a persons belonging to these communities and which has not been surrender or cancelled necessary action shall be taken for cancellation of such certificate by the issuing authority, with due regard to the principles of natural justice.
The benefits of reservation obtained by the persons in para (1) educational and employment based on the wrong caste certificate issued by the competent authorities as ST and which have become final may also be not disturbed accordingly".
(1) Enquiries pending before the various departments, verification Committee, Appellate Authorities, CRE cell and other authorities stands obated or dropped.
(2) Action shall be taken on withdraw the cases filed before any court.
(3) Suspension orders if any in such cases stands revoked.
(4) Pensionary benefits that are with held shall be released.
NC: 2024:KHC:37739 WP No. 30593 of 2012
3. The competent authority to issue caste certificate shall independently verify each case before issuing a Certificate and shall not issue a Certificate merely because the father/brother or any relative of the person holds a certificate as belonging to a particular community.
4. The appointments already made in respect of the persons belonging to Pariwara, Talwar, Maleru, Kuruba, Besta and Boil communities who have obtained employment under ST quota (as Nayaka, Maaleru, Kadu Kuruba, Jenu Kuruba, Gond, Rajgond, Kolidhor and Tokrikoli) shall be treated as appointments under GM category w.e.f. the date of this order. They shall not be eligible for any promotion or any other benefits as STs in future. However, they could claim benefits under the respective category of Backward Classes to which they belong as per the existing Government order.
Separate orders shall be issued regarding the manner in which the vacancies lost to STs on account of G.O.s read at (1) & (2) above have to be restored.
Any difficulty in implementing this order shall be referred to Government in the Social Welfare Department.”
(emphasis supplied)
"With reference to the subject and reference cited, it is to state that, this office has forwarded a copy of your letter under reference for clarification to the Directorate of Tribal Welfare. Govt. of Karnataka, who have clarified, that the sub-caste 'Naika' does not figure in the list of Scs/STs in the State nor it can
be treated on par with "Nayaka", which figures in the ST list."
“27. In Automobile Products of India Ltd. V. Rukmaji Bala, this Court was dealing with a similar
4 AIR 1960 SC 160.
problem posed by the provisions of Section 22 of Act 48 of 1950, and Section 33 of the Act. Dealing with the effect of these sections this Court held that the object of Section 33 was to protect the workmen against the victimisation by the employer and to ensure the termination of the proceedings in connection with the industrial disputes in a peaceful atmosphere. That being so, all that the tribunal, exercising its jurisdiction under Section 33, is required to do is to grant or withhold the permission, that is to say, either to lift or to maintain the ban. This section does not confer any power on the tribunal to adjudicate upon any other dispute or to impose conditions as a prerequisite for granting the permission asked for by the employer. The same view has been expressed in Lakshimi Devi Sugar Mills Ltd. V. Pt. Ram Sarup”
(emphasis supplied)
passed by the Tribunal does not warrant any interference and this Court pass the following:
ORDER
i. The writ petition is dismissed.
NC: 2024:KHC:37739 WP No. 30593 of 2012
ii. The impugned order passed by the Tribunal
stands confirmed.
Sd/(K.S. HEMALEKHA) JUDGE
AT List No.: 1 Sl No.: 25
1 issue framed by the court
Whether the Tribunal was justified in rejecting the employer's application under Section 33(2)(b) ID Act seeking approval of the workman's dismissal over a caste certificate.
Colour shows how this judgement treated each authority
Cholan Roadways ltd. Vs. G. ThirugnanasambandamRelied on¶7
(2005) 3 SCC 241 · Who else cites this
Punjab National Bank Ltd. Vs. WorkmenRelied on¶14
AIR 1960 SC 160 · Who else cites this
2 provisions across 2 enactments
M/S BEML Limited, Equipment Division, Mysore Complex, Mysore
Mr. Shankar Nayaka
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
