IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.3174 OF 2018 (L-KSRTC) BETWEEN:
RANGASWAMY SON OF VEERAKEMPAIAH AGED 51 YEARS EX-DRIVER, TOKEN NO.13148 K.S.R.T.C.
RESIDING AT KOLAR VILLAGE RAMOHALLI POST VIA KENGERI BENGALURU RURAL DISTRICT BENGALURU-560 060.
...APPELLANT (BY SRI L.SHEKAR, ADVOCATE) AND:
THE DIVISIONAL CONTROLLER K.S.R.T.C.
KIMCO BUILDING DEEPANJALINAGAR MYSURU ROAD BENGALURU-560 026.
...RESPONDENT THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.26768/2014 DATED 05.10.2018 DIRECTED THE RESPONDENT TO REINSTATE THE APPELLANT BY PAYING FULL WAGES AND ALL OTHER CONSEQUENTIAL BENEFITS FROM THE DATE OF DISMISSAL TILL THE DATE OF REINSTATEMENT AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 05.10.2018 passed by the learned Single Judge in W.P. No.26768 of 2014, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the impugned award passed by the Labour Court in ID No.42 of 2010 dated 27.11.2013 and for a direction to the Respondent-Corporation to reinstate the petitioner into service as driver by allowing continuous service, consequential benefits and back wages from the date of dismissal to the date of reinstatement.
3. The petitioner claims that he entered the services of the respondent-Corporation as driver in the year 1983. He has rendered blemishless service. At the time of joining service, the petitioner had submitted Transfer Certificate from the School evidencing Pass in IX Standard for the post of Driver. The said Transfer Certificate was referred to the Divisional Security Hawaldar for verification. On verification, a report was submitted to the effect that the name of the petitioner was not found in the School records and Admission number and Certificate number furnished by the petitioner relates to some other person. Based on the said report, a show cause notice was issued to the petitioner and disciplinary proceedings was conducted against the petitioner. Based on the enquiry report, after giving opportunity to the petitioner, petitioner was dismissed from service by order dated 21.09.2010.
Aggrieved by the said order of dismissal, the petitioner raised a dispute under Section 10(4-A) of the Industrial Disputes Act (‘ID Act’ for short). On the issue as to whether enquiry held by the Corporation is fair and proper, the Labour Court held against the Corporation. The Corporation as well as the petitioner led evidence before the Labour Court. The Labour Court by award dated 27.11.2013 rejected the claim petition of the petitioner holding that the Transfer Certificate on the basis of which, the petitioner secured employment was bogus and fabricated document. Aggrieved by the said award, the petitioner filed instant writ petition. The learned Single Judge on hearing both sides dismissed the writ petition rejecting the contention of the petitioner that the respondent-Corporation has failed to examine material witness and the order of dismissal is bad for not following the provision of Section 33(2)(b) of the ID Act. Aggrieved by the same, the petitioner is in appeal.
4. Heard the learned counsel for the appellant and perused the appeal papers.
5. The learned counsel for the appellant submits that the learned Single Judge committed an error in rejecting the writ petition without properly appreciating the contentions raised by the petitioner. It is contended that the order of dismissal is violative of Section 33(2)(b) of the ID Act and further submits that there is no evidence to prove the charge. The Corporation has failed to examine the material witness i.e. Head Master of the School from which, the Transfer Certificate Ex.M1 was issued. Without there being evidence on record, the Labour Court ought not to have confirmed the order of dismissal.
6. On hearing the learned counsel for the petitioner- appellant and on perusal of the appeal papers, we are of the view that the order of the learned Single Judge would not suffer from any perversity or erroneousness calling for interference. The petitioner joined services of the respondent-Corporation by producing Transfer Certificate for having passed IX Standard for the post of Driver. The said Transfer Certificate was referred to the Divisional Security Hawaldar who submitted his report after verification that the Transfer Certificate produced by the petitioner would not tally with the Admission number and Certificate number with the School records. Based on the said report, the petitioner was issued with charge memo dated 22.11.2004 alleging that the petitioner obtained employment as driver with the respondent-Corporation by producing false and fabricated document. The Divisional Controller based on the report of the Enquiry Officer passed an order dated 21.09.2010 imposing punishment of dismissal on the petitioner. The petitioner raised dispute in ID No.42 of 2010 before the Labour Court. The Labour Court found the enquiry conducted by the Corporation as not fair and proper. Hence, both the parties led evidence before the Labour Court. The Management apart from examining two witnesses, produced Ex.M1 to Ex.M52. Whereas the petitioner-first party examined himself as W.W.1 and produced documents as Ex.W1 to Ex.W12. The respondent- Corporation examined M.W.2/Sri. K. N. Hanumanthappa- Assistant Security Inspector who verified the genuineness of the document produced by the petitioner by visiting the school. Transfer Certificate/Ex.M1 issued by the Head Master of the School would not reflect the name of the petitioner, wherein he has spoken about the verification made by him with regard to Ex.M2 and report submitted by him is as per Ex.M4. Ex.M3 is the School Admission register which would not include or indicate the name of the petitioner. Ex.M1 is the Transfer Certificate produced by the petitioner. The Admission number and T.C. number shown in Ex.M1 is not found in Ex.M3-Admission Register. It is clear from the documents, that the name of the petitioner was not at all found in Ex.M3-School Admission Register of the School from which the petitioner had produced. The contention that the respondent-Corporation has not examined the material witness Head Master of the School to prove the charge cannot be accepted. The petitioner has produced Ex.M1-Transfer Certificate, it is for the petitioner to prove Ex.M1-Transfer Certificate by examining the person who issued the document. He having failed to prove the genuineness of Ex.M1, cannot turn around and contend that the respondent-Corporation ought to have proved the genuineness of Ex.M1. The burden is on the petitioner who has produced Ex.M1 to prove that it is a genuine document issued by the School authorities, but has utterly failed to prove genuineness of Ex.M1. The Labour Court on assessment of the evidence on record both oral and documentary has rightly come to the conclusion that the Transfer Certificate/Ex.M1 produced by the petitioner at the time of joining the services of the respondent-Corporation was bogus and fabricated document. The charge having been proved, the order of dismissal is rightly imposed on the petitioner.
7. The petitioner next contended that the respondent- Corporation has failed to obtain approval by filing application under Section 33(2)(b) of the ID Act and hence the order of dismissal is bad since I.D.No.148/2005 with regard to charter of demand raised by the KSRTC Staff and Workers’ Federation was pending. The petitioner is not charged and dismissed for any misconduct during his employment. The charge against the petitioner is that he has produced false document i.e., Transfer Certificate- Ex.M1 at the time of joining the Corporation Service. The Transfer Certificate was required to be produced to show his qualification. Since the Transfer Certificate produced by the petitioner is held to be false and fabricated, the petitioner would be lacking qualification for appointment as driver. Therefore, the petitioner who had no qualification, by producing false document obtained employment. Hence no approval under Section 33 (2)(b) of the ID Act would be necessary. The same view is taken by this Court in W.P.No.46544 of 2011 disposed off on 16.12.2011.
8. Hence we hold that there is no merit in both the contentions raised by the petitioner. We are of the view that the petitioner has not made out any ground to interfere with the order of the learned Single Judge. Accordingly, the appeal stands dismissed.
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JUDGE JUDGE mpk/-*