P. Jai Singh vs B.M.T.C.

K.L. Manjunath, J.—The short and important question of law that arises in this appeal is:

"When a workman is dismissed by the employer on the ground that he has secured employment by producing a fake certificate, whether he is entitled to seek relief under Section- 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "I.D. Act")?"

Heard the learned counsel for the parties.

The facts involved in these appeals are as hereunder:

For the sake of convenience, the facts in W.A. No. 6377/2013 are narrated, because in all cases the facts are similar. Pursuant to the notification issued by the B.M.T.C. for recruitment of the Drivers, the appellant applied to the said post in the year 1992 by producing a Transfer Certificate. Based on the Transfer Certificate produced by him, the appellant was appointed as a driver in BMTC. Later the Transfer Certificate produced by the appellant was sent for verification. On verification, it was found that the appellant had not studied in Government Kannada Model Middle School (Training College), Nazarbad, Mysore and the transfer certificate bearing No. 22/89-90, produced before the respondent was a bogus and a concocted document. A report was submitted by the Security Officer of the respondent and based on the same, an enquiry was ordered and in the enquiry it was proved that the appellant had secured an appointment by producing a fake document.

Based on the enquiry report, the appellant's service came to be dismissed by the respondent by its order dated 01.10.2007. Though an enquiry was initiated based on the report submitted by the Security Officer dated 04.02.2011 and charge-sheet was submitted on 02.06.1997, he was dismissed from the services on 01.10.2007. By then there was a charter of demands made by the recognized union with the respondent corporation and the same is pending in I.D. No. 148/2005.

Aggrieved by the dismissal of services by the respondent, the appellant raised dispute in I.D. No. 43/2007, before the IIIrd Additional Labour Court, Bangalore and it was contended that the enquiry conducted by the respondent was not fair and proper and also contended that in view of the pendency of I.D. No. 148/2005 and without there being a prior permission as contemplated under Section- 33(2)(b) of the I.D. Act, 1947, the appellant services could not have been terminated by the respondent. The Labour Court held that the enquiry conducted by the respondent was fair and proper. However, the order of dismissal was set-aside by the Labour Court on the ground that in view of the pendency of I.D. No. 148/2005, since no permission was obtained as required under Section- 33(2)(b) of the I.D. Act.

Aggrieved by the order of the Labour Court, the respondent-employer filed a Writ Petition before the Learned Single Judge in W.P. No. 42694/2012. The Learned Single Judge after hearing the parties, came to the conclusion that Section- 33(2)(b) of the I.D. Act is not applicable to the facts of the case and held that the respondent has power to dismiss the appellant from service, since the question involved in the case is in regard to securing appointment based on the fraud played by the appellant by producing fake transfer certificate and such an act has to be considered as a misconduct. Accordingly, the writ petition came to be allowed by an order dated 05.09.2013. Challenging the legality and correctness of the same, the present appeal is filed by the workman.

Shri. V.S. Naik, learned counsel appearing for the appellant contends that the learned Single Judge has committed an error in not considering the effect of Section- 33(2)(b) of the I.D. Act. When this court has dismissed W.A. No. 5738/2012, on 12.03.2013, wherein a similar question had arisen between the respondent and one Sri. M. Narayana Reddy, wherein this Hon'ble Court in view of the pendency of the I.D. No. 148/2005, the writ appeal filed by the respondent-B.M.T.C, came to be dismissed and that the learned Single Judge did not consider the effect of the order passed by this court in Writ Appeal No. 5738/2012.

According to him, the charges leveled against the appellant is more in the nature of misconduct and misconduct is alleged when the appellant was in service. When the appellant has been dismissed from the service, in view of the Section- 33(2)(b) of the I.D. Act, the learned Single Judge was required to dismiss the writ petition filed by the respondent.

According to him, the learned Single Judge has failed to note that the disciplinary proceedings were not initiated by the respondent against the appellant in terms of the provisions of Karnataka State Road Transport Corporation (Cadre And Recruitment) Regulations, 1982. According to him, the proceedings were initiated under the provisions of K.S.R.T.C. Servants (Conduct And Discipline) Regulation, 1971. Therefore, he contends that if the appellant has been dismissed from the service by invoking the provisions of Recruitment Rules, there was no necessity for the respondent to obtain permission under Section- 33(2)(b) of the I.D. Act. Under these circumstances, he requests the court to allow the appeal and set-aside the order of dismissal.

Per contra, the learned counsel for the respondents submits that the grounds urged by the appellant counsel is not tenable because the facts involved in Writ Appeal No. 5738/2012 and the facts involved in the present case are entirely different. According to her, the appellant had secured appointment by producing fake certificate contrary to the Cadre and Recruitment Rules. Believing the fake certificate produced by the appellant, as a genuine one the respondent appointed him as a Driver. When the certificate produced by the appellant was sent for verification it was found that the appellant was not even a student of the school which had issued the bogus certificate. Therefore, she contends that it is a fraud played by the appellant in order to secure an appointment and such a conduct cannot be considered as a misconduct and it has to be considered as a fraud played on the respondent in order to secure an appointment. According to her it cannot be considered as an act of misconduct after securing an appointment as a Driver of the K.S.R.T.C, but it is an act committed by the appellant prior to obtaining appointment and becoming the servant of the employer-respondent. Therefore, the provision of Section- 33(2)(b) has no application to the present case. She further contends that the charges leveled against the respondent in Writ Appeal No. 5738/2012, was entirely different from the charges leveled in the instant case. Therefore, she requests the court to dismiss the appeal.

In the same way the learned counsel appearing for the appellant in connected matters, have adopted the arguments of the learned counsel Sri. V.S. Naik.

Having heard the learned counsel for the parties, the only question to be considered in this appeal is:

"Whether Section- 33(2)(b) can be invoked by the appellant when the workman has secured appointment by producing a fake certificate and; whether production of fake certificate and securing appointment amounts to misconduct during the course of the employment under the respondent?"

Section- 33(2)(b) of the I.D. Act, 1947 reads as hereunder:

"(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the 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) xxxx

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;"

As rightly pointed out by the learned counsel for the appellant this bench in Writ Appeal No. 5738/2012, held that before dismissing an employee for a misconduct, permission under Section- 33(2)(b) of the I.D. Act is required. But in the instant case, the question is whether the act of production of fake certificate to secure an appointment has to be considered as a misconduct after becoming the workman of the respondent. So far as this point is concerned, it is an undisputed fact that the appellant herein has not committed any misconduct, after he became a workman of the respondent. The allegation in this case is that fraud is played by the appellant in order to secure an appointment. In such circumstances, we are of the view that Section- 33(2)(b) of the Act has no application and we cannot find fault in the order of the learned Single Judge in allowing the writ petition of the respondent.

The object of the Act is for settlement of industrial disputes, to protect the employees from exploitation by the employer and issues of identical nature. But when a person has deliberately submitted a false certificate with an intention to mislead, such a person cannot seek protection under the Act. The Act is meant for honest employees for the purposes as narrated therein. It is not intended for those persons who knowingly and intentionally mislead and cheat the employer. The benefit of the statute therefore cannot be extended to such class of workmen who indulge in fraud, misrepresentation, etc. As the admitted facts would show, a false certificate was submitted knowing it to be false. It was submitted with an intention to mislead and to gain an advantage out of it. Therefore, we are of the considered view that the contentions being advanced with regard to the applicability of certain provisions of the Act, would not come to the aid of the appellant herein in view of the fraud committed by him. The protection of the Act is not intended for a workman of this nature. Moreover the act of the employee amounts to an offence, under Section 198 of IPC of using as true a certificate knowing the same to be false. Hence on these grounds also, no interference is called for.

According to us, the learned Single Judge has not committed any error in the impugned order in order to interfere with the same. In the result, all these appeals are dismissed.