PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935
W.P.(C).No.18672 of 2010 (H)
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[AGAINST THE AWARD DATED 23.02.2010 IN I.D.NO.28/2008 OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM.)
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PETITIONER(S):-
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THE MANAGING DIRECTOR, CORPORATION BANK, MANGALDEVI TEMPLE ROAD, PB NO.88, BANGALORE - 575 001.
BY ADVS.SRI.P.JACOB VARGHESE (SENIOR ADVOCATE) SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO SRI.P.J.VINOD JOSEPH SMT.MANEESHA KUMAR.
RESPONDENT(S):-
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1. MR. R. CHANDRA BABU, AMBALATHUVILAKOM PUTHENVEEDU, MUTHIYAVILA, KATTAKKADA.P.O, THIRUVANANTHAPURAM - 695 572.
2. THE CENTRAL GOVERNMNET INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM.
R1 BY ADV. SRI.GOPAKUMAR R.THALIYAL R2 BY ASG OF INDIA SRI.P.PARAMESWARAN NAIR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2014, THE COURT ON 25-02-2014 DELIVERED THE FOLLOWING:- WP(C).NO.18672 OF 2010-H
APPENDIX
PETITIONER'S EXHIBITS:-
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EXT.P1 TRUE COPY OF CLAIM STATEMENT DATED 21.01.2009 FILED BY 1ST RESPONDENT BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM IN I.D.NO.28/08.
EXT.P2 TRUE COPY OF THE COUNTER STATEMENT DATED 18.03.2009 FILED BY THE PETITIONER BEFORE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM IN ID.NO.28/08.
EXT.P3 TRUE COPY OF THE REPLICATION DATED 22.06.2009 FILED BY THE 1ST RESPONDENT BEFORE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM IN ID.NO.28/08.
EXT.P4 TRUE COPY OF ENQUIRY FILE DATED 20.02.1997.
EXT.P5 TRUE COPY OF AWARD DATED 23.02.2010 PASSED BY LABOUR COURT IN ID.NO.28/08 OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM.
EXT.P6 TRUE COPY OF THE PARTICULARS SENT BY EMPLOYMENT OFFICER, NEYYATTINKARA TOWN EMPLOYMENT EXCHANGE DATED 29.05.1984.
EXT.P7 TRUE COPIES OF THE HAD OFFICE CIRCULAR NO.56/84 DATED 11.07.1984.
EXT.P8 TRUE COPY OF CIRCULAR NO.412/86 DATED 24.09.1986.
RESPONDENT'S EXHIBITS:-
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NIL.
vku/- ( true copy )
K. Vinod Chandran, J
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W.P.(C).No.18672 of 2010-H
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Dated this the 25th day of February, 2014
JUDGMENT
The award of the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam (hereinafter referred to as "Industrial Tribunal") in I.D.No.28 of 2008 is challenged before this Court by the management, who is the petitioner herein. The Industrial Tribunal, by the impugned award, directed reinstatement of the workman, the 1st respondent herein, without back wages, attendant benefits, continuity of service, future increments and promotion. Hence, the direction was in effect to merely reinstate the workman and continue him on the wages he was drawing last, when he was terminated, and continue the same till he attains superannuation.
2. The facts leading to the dispute are that the 1st respondent (hereinafter referred to as "workman") was appointed as a Peon in the service of the petitioner-Bank (hereinafter referred to as "management") on 03.10.1985 in the vacancy reserved for a Scheduled Tribe candidate. The workman was later discharged, after 12 years, on 19.04.1997, pursuant to a domestic enquiry initiated against him. The allegations in the enquiry was with respect to making a false statement with full knowledge and, hence, alleging acts prejudicial to the interest of the management. The false statement alleged to have been made was with respect to the caste of the petitioner, which was declared as "Malai Pandaram"; a Scheduled Tribe. The enquiry was with respect to the false declaration made and the workman having been found guilty, was discharged from the service of the management, as stated above. Though the discharge from service was in the year 1997, admittedly an industrial dispute was raised after ten years.
3. The Industrial Tribunal found the enquiry to have been carried or in tune with the established procedure and found no violation of principles of natural justice. The award is challenged by the management on the findings entered by the Industrial Tribunal with respect to the delay in raising a dispute; as also the interference made with the punishment imposed under Section 11A of the Industrial Disputes Act, 1947 (for brevity "ID Act").
4. The learned Senior Counsel appearing for the management would contend that the appointment, definitely, was made to the reserved category of Scheduled Tribes and the same was done on the strength of a declaration made by the workman and on his name being sponsored by the Employment Exchange. The documents produced as Exhibits P6 and P7, pursuant to the direction of this Court issued by order dated 16.06.2010, according to the learned counsel, evidences this fact. The workman was continued in service when the management was served with G.O.(RT).249/95/SCS TDD dated 03.06.1995 of the State Government regarding proceedings taken against the workman and his siblings for having obtained appointments in different institutions under the guise of they being members of the Scheduled Tribe. The Government Order is produced in the writ petition along with the Enquiry File, Exhibit P4. The Government Order found that the workman and his siblings are not entitled to be considered members of the community "Malai Pandaram" and their claim of belonging to a Scheduled Tribe, was negatived. In such circumstance, the management-Bank initiated proceedings against the workman and the charges levelled against the workman having been proved, the workman was imposed with the punishment of discharge from service. The management seeks to sustain the order of discharge as being commensurate with the gravity of the offence and further seeks to uphold the same on the contention that it was their bounden duty to appoint a Scheduled Tribe candidate to that vacancy, from which the petitioner was discharged, reservation being an affirmative action as per the Constitutional mandate and, hence, there could be no question of reinstatement.
5. The learned counsel for the 1st respondent-workman would, however, strenuously urge that the workman had merely gone by the school records and no mala fide conduct on his part could be alleged. What was declared by the workman was the information that was available in his school records and the charges levelled against him could not be said to have been proved. The learned counsel also stresses upon the delay of about 12 years in the Bank initiating proceedings against the workman. According to the learned counsel, the appointment of the workman at best could be considered to be irregular and in that context, the decision of the Supreme Court in Arun Kumar Rout v. State of Bihar [1998 SCC (L&S) 1116] would amply support the order of reinstatement passed by the Industrial Tribunal, is the argument. With respect to the claim that the petitioner does not belong to the Scheduled Tribe, the workman accuses the management-Bank for having slept over the matter and allowed him to continue on a declaration made by him, without making any enquiries thereon and eventually discharging him from service for reason of his caste status being under a cloud. The learned counsel places reliance on Vasant v. State of Maharashtra [1999-III-LLJ (Supp) 1392], Prakash v. State of Kerala [2002 (2) KLT 580], Anila v. State of Kerala [2009 (4) KLT 112], Dattu v. State of Maharashtra [(2012) 1 SCC 549] and Kavita Solunke v. State of Maharashtra [(2012) 8 SCC 430] to contend that these were all instances, where the unexplained delay in initiating proceedings; for upsetting the caste status of an employee, weighed with the Courts in allowing the various petitioners therein to continue with the benefits they had already acquired; but denying them any such benefits prospectively. C.D.S. v. Secretary, N.C.C.G.U.E. Assn. [2001 (2) KLT 104] and Valsalan v. Aravindan [2008 (4) KLT 957] have been relied on to contend that the amounts already paid under Section 17B of the ID Act cannot be asked to be refunded, even if the Court eventually finds the workman not entitled to be reinstated. Considerable arguments were also addressed on the scope and ambit of Section 11A with special reference to the powers of the Industrial Tribunal and the jurisdiction of the High Court under Article 227 of the Constitution of India to interfere with the same. Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. [(1984) 3 SCC 5] was relied upon to buttress the said contention.
6. Admittedly the workman was appointed under the Scheduled Tribe quota. Exhibits P7 and P8 were the Circular and notification issued by the management-Bank in making appointments to the category of subordinate staff. The management-Bank being wholly owned by the Government of India, was obliged by the Government directives to recruit subordinate staff through the medium of Employment Exchange/Sainik Boards. Reservation for Scheduled Caste/Scheduled Tribe (for short "SC/ST") candidates was also mandatory and specifically noticed in the Circular. Relaxation of age with respect to the reserved category is also evident from Exhibit P7. The maximum age for the general category candidates was 26 and for SC/ST candidates was 31 years, as evidenced from Exhibit P8. Going by the list forwarded by the Employment Exchange, produced as Exhibit P6, the workman's date of birth was 15.11.1957. Hence, on the date of his appointment in 1985, he was above the maximum age limit of 26 years prescribed for the general category candidates. Hence, the consideration of his appointment was definitely under the quota reserved for the communities falling under SC/ST.
7. Admittedly; though the interview letter directed production of a caste certificate, the workman was appointed on the basis of the declaration made by the workman on affidavit. The workman was continued and it is not as if the management-Bank doubted his credentials or delayed deliberately any proceedings against him. The cloud over the caste declaration made by the workman was prompted by the aforementioned Government Order dated 03.06.1995, a caste determination order made by the Government of Kerala, after due enquiry and with the participation of the workman and his siblings. In fact it is specifically noticed from the Government Order, that the workman and his siblings co-operated in the enquiry. The Government Order; G.O.(RT).249/95/SCS TDD dated 03.06.1995, was not challenged by any of the persons whose caste status was considered and negatived in so far as their claim to be belonging to a Scheduled Tribe community. That order has become final.
8. Neither the Industrial Tribunal nor this Court in the present proceedings is competent to go into the issue of caste status of the workman. Suffice it to say that the workman does not belong to the Scheduled Tribe category and it has been found so by the Government Order dated 03.06.1995. The proceedings with respect to the order dated 03.06.1995 is by a competent authority, being the Government of Kerala, which has the control over the Employment Exchange which sponsored the name of the workman for appointment to the post in the reserved quota. The enquiry initiated by the management-Bank was only with respect to the declaration made by the workman. The enquiry has found the workman guilty of giving a false declaration knowingly and having acted in a manner prejudicial to the interest of the Bank. The misconducts alleged being "gross misconduct" as defined under the bipartite settlement, regulating the conditions of service of the employees of the management-Bank; the penalty of discharge from service was perfectly in order and in accordance with the terms of the settlement.
9. The Industrial Tribunal found that the misconduct proved is a "gross misconduct", for which punishment should be commensurate. The Tribunal also did not look into whether the siblings of the workman continued in the employment they obtained, rightly so. The question, according to the Tribunal, was whether the workman could take advantage of his own wrong. The Tribunal then found that the workman cannot alone be blamed for the situation, since if timely action was taken by the management, the workman would not have been continued in employment and he could then have sought for any alternative employment. The workman who entered service at the age of 28 years was discharged from service when he was 38 years of age. The Tribunal also considered it relevant that when the dispute was being adjudicated, the workman was aged 51 years of age. Pausing here for a moment, the Tribunal, on such consideration, did not take into account that the adjudication of the dispute was delayed because of the fact that the workman had delayed raising the dispute itself. That delay of about 10 years was condoned by the Tribunal, on grounds which will be dealt with later.
10. Considering the fact that at the age of 51, the workman would not be able to secure another employment as also finding that the workman could not be accused of any mala fide act as also considering the negligence of the management-Bank in not verifying his eligibility for the job, the Tribunal interfered with the punishment and ordered reinstatement, as noticed above.
11. It would be apposite, at this stage, to notice the various decisions referred to by the learned counsel for the workman. The decisions referred to under Section 17B of the ID Act need not be looked into for resolution of the dispute, at present, since definitely there cannot be any refund of the amounts already paid as directed by this Court. The said decisions would also not be relevant, at this stage, since this Court is considering the writ petition itself finally. The decision in Arun Kumar Rout (supra), relating to regularisation of irregular appointment, also need not be referred to, since the Hon'ble Supreme Court has, in the said decision, specifically stated that the decision was rendered on a special consideration of the facts of the case and the said case shall not be treated as a precedent.
12. With respect to the delay in initiation of proceedings, considerable reliance was placed by the Industrial Tribunal on the Division Bench decision of the High Court of Bombay in Vasant (supra). This Court is unable to find any proposition in the said decision which could support the reinstatement, now made by the Tribunal. There, an employee in the Medical and Health Service, whose appointment was in the reserved category of Scheduled Tribe, was terminated on the basis of a scrutiny, which found his caste claim to be false. The specific contention of the petitioner was that the scrutiny was conducted behind his back. The Division Bench also noticed the fact that the proceedings itself was initiated after seven years of his appointment and the employee was continued on a stay, granted by the Court on his challenging such scrutiny before the High Court. While permitting the petitioner to be continued in service, the scrutiny was directed to be conducted afresh, after giving due opportunity to the employee.
13. Prakash (supra) was a case in which the Scrutiny Committee appointed by the Government on the report of Kerala Institute of Research, Training and Development Studies (for brevity "KIRTADS") was found to be bad for reason of the enquiry having been conducted and the report having been filed without participation of the employee at all. While the order of the Chairman of the Scrutiny Committee was set aside, the Government was given liberty to act on the report of the KIRTADS, in accordance with law. The learned counsel for the workman would in fact delve upon the proposition in so far as the petitioner therein also was found to have not acted fraudulently. In fact,in the said case there was a caste certificate issued by a competent authority, which certificate was held to be valid and binding on the basis of the transitional provision made by a subsequent enactment, being the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996.
14. Anila (supra) again was a case in which the enquiry of the KIRTADS was held to be effective only prospectively. Therein, the mother of the petitioner had acquired a declaration from the High Court that she belongs to a Scheduled Tribe and the benefit of such declaration was granted to her children also. It was on the basis of the said declaration that the petitioner therein, who was one of the children, was given such benefits after making suitable corrections in the records. It was in such context that the denial of Scheduled Tribe status, was declared to have operation only prospectively, from the date of issuance of the order, negativing her caste claim.
15. Dattu (supra) was concerned with the cancellation of the Scheduled Tribe status of two students, one of whom had completed B.Pharm. course and another had completed B.Ed. course. Their results were withheld, since their admissions were on the basis of their declaration of having belonged to Scheduled Tribe community. The Hon'ble Supreme Court ordered that they would not be deprived of the benefits which they have already enjoyed, being the admission to the courses; but, however, directed that if they had obtained any fee concession, the same shall be made good by the petitioners. Again they were also found to be not entitled to any further benefits on the basis of the caste claim made by them.
16. Kavita Solunke (supra) was a case in which the caste certificate granted to a person, who was employed on the basis of such certificate, was invalidated after a decade. There, the petitioner had claimed to be belonging to 'Halba-Koshti' community, which was treated as 'Halba' till the judgment of the Supreme Court in State of Maharashtra v. Milind [(2001) 1 SCC 4]. The petitioner, who was found to be a 'Koshti' later, was extended the benefit granted in the aforesaid Supreme Court judgment, despite the declaration otherwise, and it was also found that there was no fabrication or falsification of particulars by the appellant therein.
17. None of the above-cited decisions help the case of the workman. All the aforesaid decisions arose from a challenge against the invalidation or negativing of the caste status claim. In the instant case, as was noticed above, that is not the issue which is to be adjudicated upon. This Court is also not invoking its extra ordinary jurisdiction under Article 226, of the Constitution of India, to examine the order negativing the Scheduled Tribe status. The negativing of the caste status claim has been made by G.O.(RT).249/95/SCS TDD dated 03.06.1995. The workman has not challenged the same. No further claim can be made on the basis of the Scheduled Tribe status earlier claimed by the workman.
18. The claim of the workman is that he has proceeded on the basis of his school records and has made a declaration only on the basis of his school records. In fact the clear finding in G.O.(RT). 249/95/SCS TDD dated 03.06.1995 is that the caste name entered in the school records was changed to corner the benefits earmarked for the Scheduled Caste community "Malai Pandaram". The Government Order produced at the enquiry would also show that the workman's family was always considered as belonging to the "Pandaram" community, which is not identical to that of a "Malai Pandaram". In the teeth of such findings, the declaration made by the petitioner on affidavit (produced in the writ petition along with the Enquiry File, Exhibit P4) that he belongs to "Malai Pandaram" caste and that his parents too belongs to the said caste, which is a Scheduled Tribe, is false and the said declaration was made knowingly to get appointment under the Scheduled Tribe reserved category. This Court has considered the issue only in the context of the learned counsel for the workman having placed the decisions before this Court. In fact, this issue does not arise for consideration at all, since the Industrial Tribunal itself has found that the misconduct alleged is proved and that the same is a "gross misconduct" as per the bipartite settlement.
19. The only question would be as to whether interference made under Section 11A of the ID Act, regarding the penalty imposed, could be said to be unwarranted. Jitendra Singh Rathor (supra) dilates upon the discretion vested upon the Tribunal, which has been held to be a wide discretion in the matter of awarding of relief according to the circumstances of the case. The jurisdiction of the High Court under Article 227 was held to be circumscribed in so far as the High Court, not being conferred with such wide discretionary powers as the Tribunal. The power of superintendence could only clothe the High Court with the authority to scrutinise the orders of the Tribunal within the well-accepted limitations, but was held to not extending to substitute one finding in the place of the one passed by the Tribunal. In the said case, the dismissal of a Librarian was interfered with by the Tribunal, ordering reinstatement with 50% back wages. The High Court under Article 227 held that withholding of 50% of the back wages was a condition for reinstatement and since there was no punishment imposed, by setting aside of the order of reinstatement the High Court directed payment of compensation of a specified amount. This was interfered with by the Hon'ble Supreme Court holding that the High Court in such circumstance ought to have, if at all, remanded the matter to the Tribunal, since it was not proper to exercise supervisory jurisdiction in substituting one punishment over that which, the Tribunal granted under its wide discretionary powers under Section 11A. The finding was that Section 11A could only be invoked by the Tribunal and the discretion could not be extended or curtailed by the High Court sitting in supervisory jurisdiction. It was also held:
"We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power to the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law".
20. Hence, it cannot be said that the High Court, in exercise of the jurisdiction of superintendence, could not at all substitute one finding for another, since it was only held that ordinarily the High Court would not do so. In any case, exercising jurisdiction under Article 226 and 227, this Court necessarily has to look into the interference made by the Tribunal under Section 11A to understand what are the reasons that weighed with the Tribunal and whether the discretion was exercised properly and also as to whether it would amount to a perverse reasoning. It cannot but be said that the Tribunal was swayed by the sympathetic considerations which, on facts, according to this Court, are totally misplaced. As was noticed above, the age of the workman at the time when the dispute came for consideration being 51 years, swayed the Tribunal considerably. It was also noticed that this was due to the long delay of 10 years in raising a reference.
21. The management had contested the reference on the ground of the long delay. The explanation of the workman, accepted by the Tribunal, was that the brother of the workman had been prosecuting a similar issue before the Labour Court and eventually the Labour Court directed reinstatement of the brother of the workman. Only on such reinstatement order being passed, admittedly the workman initiated proceedings for reference of the dispute , that too after 10 years. The Tribunal, without proper application of mind, held that reason to be satisfactory. Nothing prevented the workman from raising a dispute at the proper time, immediately after the discharge. The reason proffered, noticed above, according to this Court, would not commend to any reasonable person. It cannot also stand scrutiny of the oft-declared proposition that no person can sleep over his rights and seek to revive it after passage of considerable time, herein long 10 years. The reference, according to this Court, ought to have been rejected on that ground alone.
22. While elaborately construing the long delay in initiating the reference, the Tribunal finds fault with the management-Bank for having slept over the matter for long. On the facts disclosed in the above case, it cannot be gainsaid that the management slept over the matter. A State agency, being the Employment Exchange, had forwarded a list of candidates for recruitment to the category of subordinate staff, wherein the workman was offered appointment under a reserved category, having been declared to be a "Malai Pandaram", which community, admittedly, comes under the Scheduled Tribe category. The management-Bank also obtained a declaration from the workman, which the workman willingly and knowingly gave. The management had absolutely no reason to doubt the caste claim made by the workman. The management could not, hence, be held to have slept over their rights. The caste claim issue was raked up after 9 years, not at the instance of the management-Bank, but on an enquiry proceeded with by the Government of Kerala, in which the workman had participated and which culminated in negativing the caste claim. The State, who is enjoined upon to take affirmative action in so far as reservation is concerned, intimated the Bank about the conclusions of the enquiry and required the Bank to take proceedings so as to appoint an eligible Scheduled Tribe candidate to the said post. This is the context in which the issue had to be examined.
23. There could be no negligence attributed to the management-Bank. Immediately on the enquiry report being furnished, the management-Bank took proceedings and after a validly conducted enquiry, following the principles of natural justice, discharged the employee, who had made a false claim for getting appointment in a reserved category. The order of reinstatement, in such context, would be a perverse exercise of power under Section 11A of the ID Act and the reasoning to arrive at such finding is on the basis of totally extraneous and irrelevant considerations. The award of the Industrial Tribunal, hence, is found to be bad for all the above reasons and the same is set aside.