Sri Narendra Since Deceased Vs the Management of Hal

THE MANAGEMENT OF HAL AERO SPACE DIVISION (BANGALORE COMPLEX) POST BOX NO.7502, NEW THIPPASANDRA P.O BANGALORE-560 075 REPRESENTED BY THE MANAGER (P AND A). …RESPONDENT (BY SRI. SYED KASHIF ALI, ADVOCATE FOR SRI. PRADEEP S. SAWKAR, ADVOCATE FOR C/R1 (CP NO.18133/24))

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HC-KAR

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS WRIT APPEAL AND SET ASIDE THE ORDER DATED 31.08.2024 PASSED IN W.P.NO.36379/2017, ON THE FILE OF THE LEARNED SINGLE JUDGE AND DISMISS THE WRIT PETITION AND ETC.

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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The appellant/workman is before this Court seeking

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to challenge an order dated 31.08.2024 passed by the learned Single Judge in W.P.No.36379/2017 [hereinafter referred to as ' the Impugned Order']. Vide the Impugned

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Order, the writ petition was allowed by the learned Single Judge giving a finding that the order of the Labour Court was not sustainable. As the Caste Certificate has been cancelled, the appointment of the appellant/workman

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would be ab initio . It has been further held that consequently, the question of reinstatement and payment of retirement benefits to the appellant/workman would not arise.

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Briefly stated the facts are that:

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2.1. The appellant/workman was appointed as a Security

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Guard in the respondent/company on 2/3.02.1984. The appointment was made against the post reserved for Scheduled Tribes. Based on the Caste Certificate ("Certificate") dated 21.07.1980 issued by the Tahsildar certifying that the appellant/workman belonged to 'Gond Community', a Scheduled Tribe Community, the appellant/workman was appointed. As there was suspicion regarding the genuineness of the Certificate, the appellant/workman was directed to produce the Certificate from the place of his birth. Accordingly, the appellant/workman produced the Certificate dated 04.05.1994 issued by the Tahsildar certifying that he belonged to the "Gond Community", which is a recognized

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HC-KAR

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Scheduled Tribe. When the Certificate was forwarded to the Deputy Commissioner, Bidar, for verification, it was found that the appellant/workman did not belong to Scheduled Tribe, but was in fact a member of Kuruba Community, which is not classified as a Scheduled Tribe. Accordingly, the Deputy Commissioner submitted his report dated 05.04.1995 based on which, the Tahsildar, by his order dated 24/25.03.1995, withdrew the Certificate dated 04.05.1994.

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2.2. Pursuant to cancellation of the Caste Certificate, a charge sheet was issued to the appellant/workman on 13.10.1995 and disciplinary proceedings commenced against him. The Enquiry Officer submitted the report holding that the appellant/workman is guilty of misconduct and fraud in terms of Clause 25(2) and Clause 25(8) of the certified Standing Orders of the respondent/company. The Disciplinary Authority proceeded to impose a punishment of dismissal from service on appellant/workman with effect from 06.02.1999.

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2.3. Aggrieved by this decision, the appellant/workman filed an industrial dispute against the

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respondent/company. The respondent/company also filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 ("ID Act") seeking approval of the punishment imposed on the appellant/workman. The Labour Court, by the order dated 07.11.2008, decided both matters rejecting the claim petition filed by the appellant/workman and upholding the order of his dismissal from service.

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2.4. Aggrieved by the order dated 07.11.2008, a writ petition was filed before this Court by the appellant/workman in W.P.No.11437/2009. The learned Single Judge, by the order dated 02.06.2011 [“first writ petition order”], allowed the writ petition and remanded the matter to the Labour Court for the limited purpose of

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examining the Deputy Commissioner's communication dated 02.08.1997. Thereafter, a review petition was filed

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by the appellant/workman, which was also disposed of on 20.09.2011 clarifying that all the contentions of the parties including the validity of the disciplinary proceedings/domestic enquiry were to be considered by the Labour Court.

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2.5. The Labour Court thereafter by an order dated

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15.11.2011 rejected the appellant/workman's application after hearing arguments on the validity of the domestic enquiry/disciplinary proceedings conducted by the respondent/company.

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2.6 A second writ petition came to be filed by the appellant/workman being W.P.No.46048/2011 which was disposed of by the learned Single Judge on 26.10.2016 directing that the workman would be entitled to re-agitate the issues regarding the validity of the domestic enquiry before the Labour Court .

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2.7. The Labour Court, after conducting the proceedings,

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by its award dated 02.02.2017 ("Award"), gave a finding

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holding that the enquiry proceedings were not fair and proper; set aside the order of dismissal dated 06.02.1999 and directed reinstatement of the appellant/workman to his original post with 75% back wages and continuity of service and all other consequential allowances.

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2.8. The Award was thereafter challenged by the petitioner/company in the aforesaid W.P.No.36379/2017 which was allowed by the Impugned Order.

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It was the contention of the respondent/company before the learned Single Judge that in terms of the judgments of the Supreme Court in the cases of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development & others reported in (1994) 6 SCC 241 and Chairman and Managing Director, Food Corporation of India and others Vs. Jagadish Balaram Bahira & others reported in (2017) 8 SCC 670 which say that once an employment was obtained based on a false certificate, the Disciplinary

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Authority has the right to conduct an enquiry. It was contended that since the charges were proved, the order of dismissal was valid.

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3.1. The appellant/workman, on the other hand, contended that cancellation of the Certificate was without jurisdiction and since the withdrawal of the Certificate was done without referring to the Caste Verification

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Committee, the report could not be accepted.

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3.2. The learned Single Judge found that the appointment

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of the appellant/workman was based on the Caste Certificate and since the Certificate obtained was false and cancelled, the appointment had become void ab initio. The learned Single Judge further found that the findings of the Disciplinary Authority were based on the evidence of the Deputy Commissioner, who deposed that the appellant/workman belonged to Kuruba Community and not Gond Community which is not a Scheduled Tribe.

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3.3. It was further observed that the appellant/workman

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never produced any record to show that he belonged to Gond Community and thus, the Labour Court had erred in granting reinstatement with back wages.

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3.4. The learned Single Judge also found that the orders

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of the Deputy Commissioner and the Tahsildar were not challenged by the appellant/workman and since the appointment of the appellant/workman was void ab initio , he was not entitled to the relief of reinstatement. The petition filed by the respondent/company was thus allowed by the learned Single Judge vide impugned Judgment and Order.

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During the course of the arguments, the learned counsel for the appellant/workman has fairly conceded that the appellant/workman had not challenged the order of the Deputy Commissioner declaring the Caste Certificate invalid, till today. He submits that the

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appellant/workman is no longer alive as well and

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therefore, the relief of reinstatement no longer survives.

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The learned counsel for the respondent/company, on the other hand, seeks to refer to the judgment of the Hon'ble Supreme Court in the case of Madhuri Patil

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(supra) to submit that once the Certificate is cancelled or declared void ab initio , the Labour Court cannot proceed to award reinstatement. He submits that it is no longer res integra that where employment is obtained based on a false certificate, the appointment is void and the person is liable to be prosecuted.

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