The Superintending Engineer Vs S.Arulmoorthi

PRAYER: The Writ petition filed under Article 226 of the Constitution of India seeking to issue a Writ of Certiorari calling for the records relating to the order dated 17.11.2021 passed in I.D. No.182 of 2019 on the file of the

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Presiding Officer, Labour Court, Hosur and to quash the same.

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For Petitioner : Mr.K. Rajkumar, Standing Counsel. For Respondent : Mr.K.M. Ramesh, Senior Counsel for Mr. V. Subramani.

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ORDER

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W.P. No.19379 of 2022

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This Writ petition has been filed as against the order passed by the Labour Court, Hosur in I.D. No.182 of 2019 dated 17.11.2021 and to quash the said order, wherein the respondent herein has raised an industrial dispute challenging the dismissal order passed against him by the petitioner Management and the same was allowed and the Labour Court directed the petitioner to reinstate the respondent with continuity of service with full backwages and all other attendant benefits. Against which, the present Writ petition has been filed.

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2. The short facts necessary to dispose of the Writ petition are as

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follows:-

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The respondent was appointed as a 'field assistant' in the petitioner's department on 20.03.2009 and was promoted as Commercial Assistant and worked at the Sub Division Office, Pochampalli. While so, the respondent workman produced his X standard Mark sheets for the months of April 1992 bearing Registration No.222466 in the name of the respondent bearing TMR Code A198462 and Date 16.06.1992, Certificate S. No.0261281 and marksheet of October 1992 bearing Registered No.398829 in the name of the respondent bearing TMR Code No.A072368 and Date 31.12.1992, Private

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W.P. No.19379 of 2022

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Candidate Certificate No.AA1136409 as if he secured marks in Science - 45%

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and in Social Science 45%. While so, on 18.12.2014, the Executive Engineer / Operation and Maintenance, Pochampalli, TANGEDCO, Krishnagiri had sent those certificates to the Joint Director, O/o.Directorate of Government Examinations, Chennai for verification of the genuineness of the said certificates. After verification, it was found that the mark sheet of October 1992 is bogus. In fact, the respondent originally secured marks as per the marksheet of October 1992 as 15 marks in Science and 25 marks in Social Science. But in the mark sheet of October 1992 submitted by the respodent, it has been shown as if 45 marks in Science and 45 marks in Social Science. Therefore, the respondent was suspended through an order dated 02.09.2016. Thereafter, a Charge Memo was issued to him on 28.09.2016. The respondent also submitted his explanation on 20.04.2017. Since the explanation was not satisfactory, a domestic enquiry was ordered. The Enquiry Officer conducted the enquiry and rendered findings that the charges against the respondent were proved. Thereafter, a copy of the enquiry report was furnished to the respondent and called upon him to submit his explanation and he also submitted his explanation. Thereafter, the Disciplinary Authority passed an award dated 24.10.2018 imposing

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W.P. No.19379 of 2022

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punishment of dismissal from service. The respondent preferred an appeal before the Chief Engineer, Vellore Division and the same was rejected and the Appellate Authority confirmed the said order of dismissal from service passed by the Disciplinary Authority. Challenging the said order, the workman raised an industrial dispute before the Labour Court, Salem in I.D. No.109 of 2019. Thereafter, the said dispute was transferred to the Labour Court, Hosur and renumbered as I.D. No.182 of 2019. The Labour Court, Hosur passed an order dated 17.11.2021 holding that the domestic enquiry conducted by the Management was not fair and proper and set aside the order of dismissal from service. Aggrieved by the said order, the present Writ petition has been filed by the Management.

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The learned Standing counsel appearing for the petitioner Board would submit that the respondent was appointed as a 'Field Assistant' on 20.03.2009. At the time of his appointment, he produced bogus certificates and marksheets of S.S.L.C. as if he passed X Standard and when the mark sheets of April 1992 and October 1992 were sent for verification to ascertain its genuinety, the Directorate of Government Examinations, Chennai stated that the mark sheet of October 1992 is bogus and the respondent has only

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secured 15% of marks in Science and 25% in Social Science, whereas, in the mark sheet of October 1992 produced by the respondent, it was stated as if he secured 45 marks in Science and 45 marks in Social Science. Therefore, for the above said misconduct, a Charge Memo was issued to the respondent by the petitioner Management and he also offered his explanation. Being not satisfied with the explanation, the Management ordered for a domestic enquiry. In the domestic enquiry, the respondent participated and thereafter, the Enquiry Officer filed a report that charges against the respondent were proved and based on the same, an explanation was called for and after perusing the explanation, the Disciplinary Authority awarded a punishment of dismissal from service, considering the gravity of the charges. Thereafter, the respondent preferred an appeal before the Appellate Authority and the same was dismissed. Therefore, the respondent raised an industrial dispute before the Labour Court, Salem and the same was transferred to the Labour Court, Hosur.

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3.1. The Labour Court, without considering the nature of charges and

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the available materials, erroneously held that the charges levelled against the respondent were not proved. In fact, the Labour Court failed to consider that

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the workman was provided with opportunities in the domestic enquiry by following the principles of natural justice. At the time of appointment, the respondent was asked to produce the certificates in original for his educational qualification, date of birth and community certificate etc., and if any discrepancies found in the certificates, the appointment will be cancelled immediately. The Labour Court failed to consider the same and rendered findings that the Court need not rely the communications between the Board/Management and the Directorate of Government Examinations and the same is error in law. The Labour Court has wrongly come to a conclusion that the documents were not furnished along with the Charge Memo. In fact, the annexures to the Charge Memo dated 26.11.2016 contained list of documents, but in the Annexure-IV, instead of 'list of witnesses', wrongly mentioned as 'list of documents'. The Labour Court erred in law through its findings that the petitioner Management had not taken any steps to collect the documents from the Education department and substantiate the charge and the findings of the Enquiry Officer is false and erroneous. The Labour Court also erred in law in its findings that there is nothing in this case to pinpoint the workman has committed offence of forgery of his X marksheet by altering the marks. The Labour Court failed to consider that due to COVID pandemic

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W.P. No.19379 of 2022

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situation, no oral evidence was adduced and did not permit the witness inside the Court, thereby they were not able to produce the witnesses before the Labour Court. Therefore, the Award passed by the Labour Court that no any documents produced by the Management is erroneous and the same is liable to be quashed.

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The learned Senior counsel appearing for the respondent would submit that the respondent was appointed as a 'Field Assistant' in the petitioner department. At the time of appointment, he produced the certificates and marksheets of April 1992 and October 1992. Thereafter, the petitioner suspended the respondent through an order dated 02.09.2016 stating that the respondent forged the marksheet and submitted the same to obtain the job opportunity. Thereafter, the respondent was dismissed from service on 24.10.2018, without following the principles of natural justice. In fact, the respondent had registered with Employment Exchange for job and on basis of seniority, the Tamil Nadu Public Service Commission had recommended him to the petitioner Management and thereby, he attended the interview and got selected in the petitioner's office. The petitioner Board also thoroughly verified the documents of the respondent and satisfied with the

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same, issued appointment order dated 20.03.2009. Therafter, he was promoted as Commercial Assistant and he has not forged any document as alleged by the petitioner.

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4.1. A Charge Memo dated 26.11.2016 was issued on the respondent

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and 4 documents listed in the Annexure III of the said Charge Memo, were not furnished to the respondent. Therefore, the respondent by his letter dated 12.12.2016 requested to furnish the copy of documents and copy of 2 documents only were furnished to him. On 08.01.2017, the respondent submitted his explanation. Inspite of that, the petitioner Board conducted the domestic enquiry. Thereafter, on 23.03.2017, the petitioner Board cancelled the earlier Charge Memo and issued a fresh Charge Memo dated 04.04.2017, for which, the respondent submitted his explanationon 20.04.2017. In spite of that, the Board conducted domestic enquiry. Thereafter, on 12.05.2017, the petitioner Board reinstated the respondent into service after revoking the suspension order. The petitioner Board, without conducting proper domestic enquiry, removed the respondent from service. The dismissal of respondent from service is against the principles of natural justice. In the Charge Memo, nowhere it has been stated that the certificate of marksheet submitted by the

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respondent was forged one. The contents of the Charge Memo did not reflect the details of the letter given by the Secretary, State Board of Examinations and also not furnished the copy of the letter of Secretary, State Board of Examination, the charge drafted against the respondent is not specific and clear and therefore, the Disciplinary action taken against the petitioner is not in accordance with law. At the time of domestic enquiry, the list of witnesses were not furnished to the respondent and the documents were also not produced. The witnesses examined by the Board is no way connected to the Certificate of Marksheet of the respondent. The Secretary, State Board of Examination was not examined as witness in the domestic enquiry. Therefore, the charges against the respondent were not proved based on the acceptable evidence. Therefore, the Labour Court held that the charges against the respondent were not proved and allowed the industrial dispute and directed the petitioner Board to reinstate the respondent into service. Therefore, the present Writ petition is liable to be dismissed.

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Heard both sides and perused the entire materials available on

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record.

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In this case, there is no dispute that the respondent was appointed as

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a 'Field Assistant' in the petitioners department on 20.03.2009 based on the recommendation made by the Employment Exchange. At the time of appointment, the respondent's original documents were verified by the petitioner Management. Thereafter in the year 2016, the petitioner Management came to know that the certificate submitted by the respondent i.e., marksheet of October 1992 is bogus and the same was confirmed through educational authorities. Therefore, they issued a Charge Memo and thereafter, a domestic enquiry was conducted and witnesses were examined before the Enquiry Officer and thereafter, the Enquiry Officer rendered findings that the charges levelled against the respondent were proved. Thereafter, the Disciplinary Authority passed an order by dismissing the respondent from service.

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In this context, already the Labour Court passed a preliminary Award holding that the enquiry conducted by the petitioner Board against the respondent is not just and proper and is against the principles of natural justice. In spite of that, the petitioner Board failed to take any steps to examine any witnesses before the Labour Court. Though the nature of

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charges are serious, the petitioner Management failed to examine any witness

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before the Labour Court to prove the charges. It is well settled law that the Management has to prove the charges, after the findings rendered by the Labour Court in the preliminary Award that the enquiry was not conducted in a fair manner. But the petitioner Management failed to adduce evidence and thereby failed to prove the charges against the respondent.

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At this juncture, the learned counsel appearing for the respondent has relied upon the following judgments:

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8.1. The Management through the General Manager, Tamil

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Nadu Transport Corporation vs. Presiding Officer, Labour Court, Tirunelveli and another reported in 2020 IV LLJ 209 (Mad).

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8.2. The Management, EIH Associated Hotels Ltd., vs. The Presiding Officer, Principal Labour Court, Chennai and another reported in 2013(1) LLN 258 (Mad).

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On a careful perusal of the judgments, it is clear that if an enquiry is held to be vitiated by the Labour Court, the Management cannot rely upon any part of the past evidence in the subsequent proceedings. Once the Court

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came to a conclusion that there was no new evidence to be examined and when the enquiry conducted has already been decided as violative of the principles of natural justice, the termination order passed based on the outcome of such enquiry also will met the same fate.

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In the case on hand also, when the Labour Court in the preliminary

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Award held that the enquiry conducted by the Enquiry Officer is not fair and no witnesses were examined by the Management before the Labour Court, there is no any evidence to prove the alleged charges levelled against the respondent, thereby, the Labour Court has correctly set aside the dismissal order passed by the petitioner Management in the Disciplinary Proceedings. Therefore, there is no any infirmity or perversity in the order passed by the Labour Court and it does not warrant interference by this Court.

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