Allowed

Bangalore Metropolitan Transport Corporation v. Malurappa

Karnataka HC12 Feb 2024WP/58582/2017

Case brief

AI extract

What is this about?

Writ petition filed by Bangalore Metropolitan Transport Corporation to challenge Labour Court order reinstating a workman with forgery charges. High Court held that no discretion exists to reinstate an employee whose appointment was secured through fraud.

What did the court decide?

Writ petition allowed, impugned order by III Additional Labour Court set aside, and order of Disciplinary Authority confirmed.

Bangalore Metropolitan Transport… — Labour and Industrial Disputes | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF FEBRUARY, 2024

¶3

BEFORE

¶4

THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 58582 OF 2017 (L-KSRTC)

¶5

BETWEEN:

¶6

BANGALORE METROPOLITAN TRANSPORT CORPORATION, CENTRAL DIVISION, SHANTHINAGAR, BY ITS CHIEF TRAFFIC MANAGER, REPRESENTED BY ITS CHIEF LAW OFFICER.

¶7

…PETITIONER

¶8

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

¶9

AND:

¶10

Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

¶11

MALURAPPA, S/O RAMAIAH, R/O ERAPPANAHALLY, DODDAGUBBI POST, BANGALORE EAST TALUK.

¶12

…RESPONDENT

¶13

(BY SRI. NAIK V.S., ADVOCATE)

¶14

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 18.3.2016 IN REF NO.15/2010 PASSED BY THE III ADDITIONAL LABOUR COURT, BANGALORE (ANNEXURE-B) AND ETC.

¶15

¶16

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶17

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

¶18

ORDER

¶19

The respondent was appointed to the post of Driver in the establishment of petitioner/Bangalore Metropolitan Transport Corporation (for short 'the Corporation'). At the time of filing the application, the respondent had produced a school certificate issued by the Head Master, Government Higher Primary School, Erappanahally. On information received by the Corporation that the School Certificate issued by the Head Master is not genuine, a Security Officer was appointed and after investigation in this regard, submitted a report stating that the Transfer Certificate produced by the workman along with the application was not genuine.

¶20

Articles of charges were issued for having obtained appointment by production of fake certificate. Reply was submitted to the show-cause notice, the Enquiry Officer being not satisfied with the reply, submitted report stating

¶21

¶22

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶23

that the articles of charges are proved, Disciplinary Authority removed the respondent/workman from the list of Badli Drivers and his right to claim appointment in the Corporation was forfeited.

¶24

The said order was questioned by the

¶25

respondent/workman by raising a dispute before the Labour Court in ID No.8/2015. The Labour Court held that the domestic enquiry conducted by the Corporation was fair and proper as the respondent/workman conceded to the fairness of the domestic enquiry. The Labour Court on adjudication of the dispute on the earlier occasion had held that the charges are proved. However, directed reinstatement of the workman with continuity of service without back wages and the same was subject matter in W.P.No.9752/2012 (L-KSRTC), which came to be allowed and matter was remitted to the Labour Court for fresh consideration.

¶26

¶27

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶28

On remand, the Labour Court decided the case and held that the order of dismissal is not justified and directed reinstatement of the respondent with continuity of service, without back wages, and with denial of three annual increments with cumulative effect. Aggrieved by which, the Corporation is before this Court in this writ petition.

¶29

5. Heard Smt. H R Renuka, learned counsel appearing

¶30

for the petitioner and Sri. V S Naik, learned counsel appearing for the respondent and perused the material on record.

¶31

Learned counsel appearing for the

¶32

petitioner/Corporation would contend that direction of reinstatement of the workman, who played fraud in securing the appointment, is contrary to the settled proposition of law. Learned counsel would contend that the misconduct committed by the workman cannot be construed lightly, as the question of misconduct committed by the workman at the time of securing

¶33

¶34

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶35

employment is by submitting fake certificate. The circular referred by the Labour Court to set-aside the order of dismissal was misread and the question of discretion in case of dismissal from service for a fraudulent act, would not arise.

¶36

Per contra, learned counsel for the respondent would justify the order of the Tribunal directing reinstatement with continuity of service and would contend that the same does not warrant any interference.

¶37

This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

¶38

Having heard the learned counsel for the parties, the point that emerges for consideration is:

¶39

"Whether the Labour Court was justified in allowing the reference and setting aside the order of dismissal and whether the action of the

¶40

6 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶41

Corporation was discriminatory with similar allegation of misconduct by imposing a lesser

¶42

punishment for few workmen and extreme punishment of dismissal to the respondent-

¶43

workman ?"

¶44

The Labour Court allowed the reference and set aside

¶45

the order of disciplinary authority on three counts:

¶46

(i) That the circular, which according to the Labour

¶47

Court is that, if employees are alleged to suppression such employees should not be terminated;

¶48

(ii) That there is an inordinate delay in conducting

¶49

the enquiry and initiation of proceedings against the workman;

¶50

(iii) That there is discrimination relating to the co-workers, who are placed with similar allegations of misconduct, have been imposed with lesser punishment.

¶51

¶52

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶53

The charge of securing appointment in the petitioner/Corporation on production of a fake school certificate, stood established before the Labour Court, as is clear from paragraph No.8 while answering issue No.2. The Labour Court held that the charge is proved, however termed the order of dismissal as harsh, and modified the same with reinstatement and denial of three increments with cumulative effect. The charges as it was relating to production of fake documents while securing employment, the respondent was dismissed from service in terms of Regulation 4(9) of the KSRTC (Cadre and Recruitment) Regulations, 1971.

¶54

The Labour Court has viewed the misconduct of the workman very lightly without considering that he had no right to claim appointment and the question of reinstatement would not arise. The decision placed reliance by the Labour Court in K V S RAM VS. BANGALORE METROPOLITAN CORPORATION

¶55

8 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶56

LIMITED¹ wherein in the said facts and circumstances of the case, the Apex Court held that the proceedings initiated against the workman went on for a period of 14 years and the Apex Court took note of the fact that the delay in initiation of proceedings and its completion and the fact that the similarly situated employees had been issued with lesser penalties. In the instant case, the charge sheet was issued against the workman after 12 years and the charge was production of false transfer certificate at the time of employment, wherein the necessary qualification was completion of 4^th standard for

¶57

the appointment. The Tribunal has misread the circular dated 02.08.1983, which was with regard to suppressing information relating to the previous employment. This circular cannot be equated to that of securing employment by production of fake transfer certificate. The entire reading of the circular pertains only to the past service, if any, rendered by the employee in the Corporation and the

¶58

1 2015-I LLJ 275

¶59

9 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶60

Labour Court has mislead itself by placing reliance on the circular, to arrive at a conclusion that the order of dismissal warrants interference.

¶61

Apex Court in the recent decision in the case of INDIAN OIL CORPORATION LIMITED VS RAJENDRA

¶62

D. HARMALKAR² held that an employee submitting forged document and imposition of dismissal from service was justified. The Apex Court at paragraph No.7.1 has held as under:

¶63

"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 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

¶64

2 AIR ONLINE 2022 SC 580

¶65

10 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶66

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."

¶67

The Apex Court in the case of INDIAN OIL CORPORATION cited supra regarding the question of judicial review, an interference of the Court in the matter of disciplinary proceedings and test of proportionality has held at paragraph No.7 as under:

¶68

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:

¶69

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

¶70

11 -

¶71

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶72

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 well-known principles known as ‘Wednesbury principles’.

¶73

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, 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.

¶74

ii) In the case of B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749: [1995(5)SLR 778 (SC)], in paragraph 18, this Court observed and held as under:

¶75

“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

¶76

12 -

¶77

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶78

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.”

¶79

iii) In the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh, 13 (2013) 12 SCC 372:[2013(5) SLR 638 (SC)], in paragraph 19, it was observed and held as under:

¶80

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

¶81

13 -

¶82

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶83

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.

¶84

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.

¶85

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.

¶86

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 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.

¶87

14 -

¶88

NC: 2024:KHC:5745 WP No. 58582 of 2017

¶89

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.”

¶90

The question of discrimination in case of dismissal of an employee from service for the fraudulent act would not arise as the doctrine of equality, when it is found that the employee concerned and the Co-delinquent was equally placed, is not applicable for a negative equality. The Division Bench of this Court in the case of SRI KRISHNA, SON OF SRI MUNIYAPPA Vs. BANGALORE

¶91

15 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶92

METROPOLITAN TRANSPORT CORPORATION in

¶93

W.A.No.94/2015 (L-KSRTC) has taken a view that

¶94

when an appointment of the workman was secured by playing fraud, the discretion by the Labour Court under Section 11-A of the Act was not available and it was only available to certain factors being disproportionate to the gravity of misconduct, so as to shock the conscience of the Court, and held that the discretion available to the Labour Court under Section 11-A of the Act, was not available when the appointment is based on the fraud played on the employer. The said decision is aptly applicable to the present facts and circumstances of this case. In the instant case, the appointment of the workman is in terms of the fake transfer certificate, which has been submitted at the time of securing the appointment by playing fraud on the employer. This Court is of the considered view, that the point framed for consideration needs to be answered in favour of the petitioner/Corporation for the foregoing reasons and accordingly this Court pass the following :-

¶95

16 - NC: 2024:KHC:5745 WP No. 58582 of 2017

¶96

ORDER

¶97

a. Writ petition is allowed.

¶98

b. The impugned order dated 18.03.2016 in Ref.No.15/2010 passed by the III Additional Labour Court, Bangalore, is set aside and the order of the Disciplinary Authority stands confirmed.

¶99

Sd/JUDGE

¶100

NG List No.: 1 Sl No.: 15 CT:SNN

Bangalore Metropolitan Transport Corporation v. Malurappa

Case brief

What is this about?

What did the court decide?

Bangalore Metropolitan Transport Corporation v. Malurappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Canara Bank Vs the Appellate Authority

Sri a S Eshwarappa Vs the Karnataka State Road Transport Corporation

H Bhagwandas Vs K P T C L

Sri P S Surendra Ithal @ Pss Ithal Vs Kennametal India Ltd.

M/S Gravure Cylinder Colour Process System Vs Engineering & General Workers Union

Bangalore Metrolpolitian Transport Corporation Vs Lakshmipathi