Dismissed

National Instt.of Technology v. the Presiding Officer

Madras HC16 Jul 2013WP/20395/2004

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Labour Court's award reinstating a temporary employee. The employee, acquitted by this Court on the benefit of doubt regarding forgery charges, was ordered reinstated with back wages and continuity of service.

What did the court decide?

Confirmation of the Labour Court's award reinstating I.Arulnathan with back wages and continuity of service.

National Instt.of Technology Vs the Presiding Officer — Service and Employment | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16 /07 /2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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W.P.No.20395 of 2004 &

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W.P.M.P.Nos.24552 of 2004 and 31523 of 2004 & W.V.M.P.No.1628 of 2004

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National Institute of Technology (Deemed University) (formerly known as Regional Engineering College, Trichy) Thuvakkudy, Trichy-15, Rep. by Dr.P.Subramaniam Director-in-charge ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Trichy. 2.I.Arulnathan ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the entire records culminating in the passing of the award dated 11.03.2004 on the file of the first respondent herein, made in I.D.No.56 of 2002, quash the same and consequently stay all the further proceedings including the reinstatement, payment of backwages and continuity of service.

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For Petitioner : Mrs.Maria Rosaline For Respondents : Mr.M.V.Muralidharan for R-2

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The petitioner / Director-in-charge of National Institute of Technology has stated that the second respondent herein / Arulnathan was originally appointed as a temporary employee on 29.11.1991 as Helper Grade-II in the petitioner-institute. He joined duty in the Chemical Engineering Department on 04.12.1991. At the time of joining, he has produced a transfer certificate issued by the Boiler Plant High School, Kailasapuram showing his date of birth as 09.05.1962. After joining, since there was a discrepancy in the transfer certificate produced by the second respondent, the

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petitioner-institution authorities directed him to produce the original or any other document from the concerned authorities to establish his date of birth. As the petitioner-institution also found that the second respondent has tampered his date of birth, viz., the year of birth in the transfer certificate, which was produced by him, for opening of the service book, the college authorities referred this matter to the concerned Headmaster of the school. The Headmaster replied that the date of birth of the second respondent, viz., Arulnathan is 09.05.1959 as entered in the school records, but the second respondent contended that his date of birth was 09.05.1962. Therefore, the institution authorities lodged a criminal complaint against him in the Thuvakkudi police station, Trichy and the police authorities registered a case in Crime No.135 of 1992 for the offence under Section 471 and 420 I.P.C. and thereafter he was placed under suspension with effect from 18.05.1992. In fact, as per Tamil Nadu Civil Services (Classification, Control & Appeal) Rules, when a criminal case is filed solely on criminal offences committed by the Government servant, which is in no way connected with the discharge of his official duties, there is no need to pursue Departmental action, except placing the Government servant under suspension.

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The ultimate Departmental action could be initiated against the delinquent officer after the result of the criminal case pending against him is disposed of by the Court of law and there is no embargo to have both the remedies taken together. When this is so, as per the complaint lodged by the college authorities, charge sheet was filed and the case in C.C.No.307 of 1995 was tried before the learned Magistrate's Court and the second respondent was convicted for offence of forgery for a period of three months and imposed a fine of Rs.1,000/-. As against the judgment and conviction, the second respondent preferred an appeal before the Sessions Court, Trichy, in Criminal Appeal No.170 of 1996 and got his sentence suspended on 09.08.1996. Consequently, the criminal appeal was disposed of by the learned I Additional District and Sessions Judge-cum-Chief Judicial Magistrate on 15.07.2007. The learned judge set-aside the judgment of the trial Court and acquitted the second respondent from his offences.

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As against this judgment of acquittal, the petitioner herein preferred a revision before this Court in Crl.R.C.No.401 of 1998 and the same was admitted by this Court. During the pendency of the said criminal revision case, the second respondent, on his request, was re-instated in service, subject to the result of the criminal revision in Crl.R.C.No.401 of 1998. In the meanwhile, the second respondent filed another claim petition before the Labour Court, claiming back-wages and it was entertained and pending in C.P.No.56 of 1998, which was subsequently withdrawn on 16.03.2000. The Labour Court dismissed the said case in C.P.No.56 of 1998, by its order dated 22.03.2000. The second respondent was temporarily reinstated on his request, on the basis of the judgment of the

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District Court dated 12.05.1999. His appointment was purely temporary. As regards the revision preferred by the college in Crl.R.C.No.401 of 1998, this Court was pleased to allow the revision on 19.01.2001 and remanded the matter for fresh disposal back to the lower first appellate Court, in view of the findings rendered by the Court. Pursuant to the remand, the matter was taken on the file of the first appellate Court in Criminal Appeal No.170 of 1996 and ultimately the same was disposed of by the 1st Additional Sessions Judge-cum-District Court / Chief Judicial Magistrate on 30.07.2001 and pursuant to this judgment, the conviction of the second respondent herein has been confirmed by the first appellate Court. Thereupon, the petitioner herein terminated his service on 23.11.2001, with immediate effect on two grounds, viz., (i) As the second respondent was a temporary employee appointed under Rule 10 (a)(1) of the General Rules of Tamil Nadu and Subordinate Service and that secondly as he has been sentenced to three months imprisonment and fine of Rs.1,000/-, as per the judgment of Criminal Appeal in Crl.A.No.170 of 1996, by the first Additional Sessions and District Court-cum-Chief Judicial Magistrate, Trichy for the offence under Section 471 r/w 465 IPC. This order was duly served on him on 28.11.2001 and he has been out of service ever since then.

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As against the judgment passed by the I Additional Sessions and District Court-cum-Chief Judicial Magistrate in Cr.Appeal No.170 of 1996, the second respondent herein preferred a criminal revision before this Court in Crl.R.C.No.1079 of 2001 and obtained an order of suspension of the imprisonment alone. Ultimately, the criminal revision was disposed of by this Court by virtue of the judgment dated 21.01.2003.This Court was pleased to allow the criminal revision giving benefit of reasonable doubt and acquitted the second respondent. Pursuant to the judgment of this Court, the second respondent herein raised a conciliation before the Assistant Commissioner of Labour, claiming for settlement of dispute in Na.Ka.No.A.2002-2001, but the conciliation did not materialize and the failure report was sent by the Department on 14.02.2002, referring the matter to an Industrial Dispute. Thereafter, the second respondent filed a petition under Section 2A(2) of Industrial Disputes Act, 1947, before the first respondent herein / Labour Court, Trichy in I.D.No.56/2002, claiming among other things reinstatement on the ground that the criminal case ended in his favour of acquittal and with back-wages and continuity of service. The matter was contested by this petitioner among other grounds that the second respondent had wantonly, willfully and deliberately tampered with the official records, viz., the transfer certificate regarding date of birth and committed forgery and two Courts have already gone to the conclusion that he was a forger, but ultimately this Court, though acquitted him on the benefit of doubt. Yet the legal right of the petitioner to terminate the service of the second respondent, he being a temporary employee, employed under Rule 10(a) (1) is clearly justified. In any event of the matter, this petitioner let in evidence before the Labour Court for the valid

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dismissal of the employee and also brought to the notice of the Court, especially the evidence of the Headmaster concerned and the person who had written the transfer certificate, who has categorically stated that as per the records of the school, the year of birth of the second respondent was 1959 and not 1962 and therefore, there is a clear case of tampering, alteration namely, forging vital documents pertaining to the age. Apart from this the petitioner has also brought to the notice of the court that this being a very big institution of national importance, would not stoop to any level to malafidely take action, but without taking into consideration the detailed representations, arguments, documents and oral evidence, the Labour Court, without going into the merits, had simply acquitted the second respondent on the ground that in the criminal case as he had been acquitted, he is automatically entitled for reinstatement, which is legally not sustainable.

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The petitioner further stated that time and again, this Court and Hon'ble Supreme Court have categorically held that mere acquittal of a person from the criminal proceedings, by itself, would not allow a person to seek a remedy as he wanted and it is open for the management, still, to establish the offence committed by the person. In this case, the petitioner-Institution has made out a well-founded case against the second respondent, the nonacceptance of the evidence let in by the petitioner are rather unfortunate. Further, it is pertinent to point out here that in the transfer certificate produced by the second respondent, it is stated in the community column, that he belongs to Indian Christian Pariyar, whereas in the certificate obtained from the school, in the community column, it is mentioned as Indian Hindu Pariyar. Therefore, the whole certificate which has been relied upon by the second respondent and produced by him is totally a bogus one. This vital aspect of the matter has not been considered by the Labour Court.

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As the petitioner-institution is law abiding, pursuant to the judgment of the Labour Court, the institution has reinstated the second respondent in service without prejudice to the contentions raised and to be raised later with effect from 01.07.2004. But, by virtue of the order of the Labour Court, though he is entitled to claim back-wages and continuity of service, as per the various judgments of the Hon'ble Supreme Court, the second respondent will not be entitled to get any back-wages during the period when he was suffering conviction and mere acquittal will not clothe him with any legal right to claim back-wages.

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Supporting this contention raised by the petitioner, the learned counsel contended that the second respondent has produced transfer certificates in which his date of birth was 09.05.1959 and he belongs to Hindu Pariyar. This certificate was issued by the competent authority viz., Headmaster attached to the Boiler Plant High School, Kailasapuram, Trichy, wherein the second

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respondent had studied. This is an authenticated document issued by the educational institution of the Government. The Headmaster of the school had also sent a letter on 04.09.1992 to the petitionerInstitution and clearly mentioned the second respondent's name and his father's name and date of birth as 09.05.1959. But, the second respondent, viz., Arulnathan had sent an application letter to the petitioner-institution, viz., the Principal, Regional Engineering College, Tiruchirapalli stating that his date of birth as 09.05.1962 and he declared the same as his self declaration. Therefore, the act of the second respondent squarely amounts to forgery, even though he was acquitted by this Court in Crl.R.C.No.1079 of 2001. The learned counsel further contended that there was a prima facie case on the side of the prosecution. As such, initially, the second respondent was convicted and subsequently acquitted by the appellate court. Again the same Court had convicted him after fresh enquiry, as per the direction of this Court. However, the second respondent is an erring employee and has committed forgery by way of tampering his date of birth in the transfer certificate.

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The learned counsel for the petitioner further contended that the second respondent has been appointed as per Section 10(a)(1) i.e., on ad-hoc basis. Therefore, he is not a permanent employee and at any time he can be terminated from service even without prior notice. The Labour Court, without applying its mind had granted continuity of service and back-wages in a case of termination due to criminal action. Further, the second respondent himself, had withdrawn his claim petition in C.P.No.56 of 1998. As such, the respondent is estopped from raising the same plea in the I.D. before the Labour Court. The learned counsel further submitted that as per several judgments of the top Courts, the second respondent is not entitled to any back-wages during the period when he was suffering conviction and mere acquittal will not clothe him with any legal rights to get any back-wages. The learned counsel further submitted that the petitioner cannot be retained in service for more than one year from the date of his temporary appointment. In view of the temporary nature of his appointment, the petitioner cannot claim continued employment in view of provisions of Section 10(a)(1) of Tamil Nadu State Subordinate and Subordinate Service Rules. The mere acquittal from criminal proceedings will not absolve a person from facing Departmental proceedings. The management always retain the right to proceed against the delinquent, when a delinquent is acquitted by the criminal Court by giving benefit of doubt. It is always open to the management to conduct its own enquiry and arrive at its own independent findings against the delinquent. The second respondent was acquitted from the criminal proceeding since the person who had tampered with it had not been identified. As such, the criminal Court had granted relief on benefit of doubt to the second respondent. In the instant case, there could not have been any interest to third parties for tampering the date of birth of the second respondent and it ought to have been done by the second respondent for his personal gain in

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order to serve more period, as an employee, till his superannuation in the petitioner-institution. This fact has been confirmed on the basis of documentary fact viz., transfer certificate, which had been issued by the recognized authority viz., Headmaster of the school. This is a vital document and it categorically proves that the second respondent's date of birth is 09.05.1959 and not 09.05.1962, as claimed by him. Therefore, the learned counsel for the petitioner entreats the Court to allow the writ petition and set-aside the impugned order of the Labour Court.

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The learned counsel for the second respondent vehemently argued that the petitioner has preferred criminal revision No.401 of 1998 against the judgment of conviction passed by the first appellate court and the same was admitted by this Court and suspense of sentence had been ordered. Hence, the second respondent made a request to the petitioner institution for reinstatement. The petitioner-institution reinstated him in service, subject to the result of the criminal revision case in Crl.R.C.No.401 of 1998, which was pending on the file of this Court. Thereafter, the second respondent was acquitted by this Court in Crl.R.C.No.1079 of 2001. Therefore, the second respondent is entitled to enjoy the previous benefits granted to him earlier i.e., reinstatement. The learned counsel further contended that the petitioner belongs to Hindu Pariyar which comes under the SC category. Subsequently, he converted into Christianity. However, this conversion does not in any way affect his employment and other benefits relevant to his job.

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The learned counsel for the second respondent further submits that the dispute regarding date of birth has to be set-right through civil proceedings, before the civil Court by way of declaration suit after considering all the relevant connected records including village birth register. The learned counsel further contends that the impugned order of the Labour Court is a well considered one and given after considering all the averments of both sides and after hearing arguments. The petitioner had not paid the contingency allowance, during his suspension period, wantonly and deliberately, in order to harass the petitioner. On the oral consent of the petitioner-institution, to reinstate him if he withdraws the case, the second respondent has not pressed his case. Thereafter, the petitioner-institution refused to reinstate the second respondent. Therefore, the petitioner-institution had breached the trust imposed on them and had put the second respondent into irreparable hardship and misery. The learned counsel further contended that if any dispute arises over the date of birth, the second respondent is open to get declaration from the civil Court to correct the date of birth within five years from the date of employment but in the instant case, he was not advised by the petitioner-institution to get declaration, from the civil Court, for carrying out notification regarding date of birth. Instead of that,

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the petitioner had levelled a criminal case against the second respondent, with mala-fide intention, to harass the respondent and to remove him from service.

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On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order passed by the Labour Court in I.D.No.56 of 2002, dated 11.03.2004, this Court does not find any shortcomings in the conclusions arrived at to reinstate the second respondent with continuity of service and back-wages. This Court is of the view that the second respondent was placed under suspension with effect from 18.05.1992. Thereafter, the second respondent was reinstated in service subject to the result of criminal revision case No.401 of 1998. In this revision, this Court directed the 1st Additional Sessions and District Court-cum-Chief Judicial Magistrate to decide the case afresh after due enquiry. The case was decided afresh and the trial Court's order was confirmed. Against the said order, the second respondent has filed Crl.R.C.No.1079 of 2001. In this revision, he has been acquitted from the criminal case and the order of the appellate Court's conviction was set-aside.

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The acquittal order has become final. Therefore, the second respondent has to be reinstated with continuity of service and back-wages since the second respondent had been reinstated by the petitioner-institution on an earlier occasion, while the sentence imposed on the second respondent was suspended.

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In the result, the above writ petition is dismissed. Consequently, the order passed in I.D.No.56 of 2002, on the file of Labour Court, Trichy, dated 11.03.2004 is confirmed. Connected miscellaneous petitions are closed. There is no order as to costs.

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Sd/ Asst.Registrar

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//True Copy// Sub.Asst.Registrar

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r n s

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To The Presiding Officer, Labour Court, Trichy.

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1 cc to Mr.M.V. Muralidaran, Advocate, Sr. 36398

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W.P.No.20395 of 2004 & W.P.M.P.Nos.24552 of 2004 and 31523 of 2004 & W.V.M.P.No.1628 of 2004

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JRG (CO) kk 24/7

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https://hcservices.ecourts.gov.in/hcservices/

National Instt.of Technology v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

National Instt.of Technology v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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