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U.P.S.R.T.C. THRU' REGIONAL MANAGER versus KASHI NATH & ANOTHER

High Court of Judicature at Allahabad

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U.P.S.R.T.C. Thru' Regional Manager v. Kashi Nath & Another - WRIT - C No. 48466 of 2004 [2007] RD-AH 2804 (20 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

      COURT NO.6

Civil Misc. Writ Petition No.48466 of 2004

U.P.State Road Transport Corporation and others..................Petitioner

Vs.

Kashi Nath and others....................................................Respondents.

*****

Hon.Tarun Agarwala, J.

Heard Sri Sheshadri Trivedi, the learned counsel for the petitioner and Sri K.S.Rathore, the learned counsel for the workman,respondent No.1.

By means of this writ petition, the petitioner has challenged the validity and legality of the award passed by the Labour Court in Adjudication Case No.36 of 1999. The reference made under Section 4-K of the U.P. Industrial Disputes Act is whether the employers were justified in terminating the services of the workman w.e.f. 5.5.1994 and, if so, to what relief was the workman entitled to. It is relevant to state here  that the order of termination was passed in the year 1994. The reference was made by the State Government by an order dated 17.1.1999.

The facts leading to the impugned award is, that an advertisement was issued by the petitioner Corporation in a newspaper on 3.3.1993 for filling up 50 posts of drivers. The advertisement indicated that the posts would be filled up from the candidates belonging to Scheduled Castes and Scheduled Tribes. Pursuant to the aforesaid  advertisement, the workman, respondent No.1, applied  and filed a certificate issued from the Tehsildar  indicating  that he belonged to a scheduled caste category.  The  petitioner was selected and an appointment letter dated  26.4.1993 was issued  to him as a driver on a daily rated basis. Subsequently, on an inquiry, it was found that the respondent No.1 was not a Scheduled Caste candidate. Based on the investigation made by the petitioner, a show cause notice dated 28.4.1994 was issued to the workman, to show cause, as to why his services should not be dispensed with, for furnishing a false caste certificate. The workman was directed to submit a reply by 30.4.1994. Since no reply was received by the employers till 4.5.1994, the management, taking the averments made in the show cause notice to be correct, passed the impugned order of termination dated 5.5.1994.

It transpires that the workman filed a Writ Petition No.21009 of 1994 before the High Court challenging the order of termination dated 5.5.1994, which was dismissed as withdrawn in the year 1999. It seems that the workman thereafter raised an industrial dispute under the U.P. Industrial Disputes Act and upon the failure of the conciliation proceedings, the State Government, by an order dated 17.2.1999, referred the dispute, for adjudication before the Labour Court.

Before the Labour Court, the workman filed a written statement alleging that he had worked for more than 240 days in a calander year and that his services were terminated arbitrarily without applying the principles of audi alteram partem and without complying with the provisions  of Section 6-N of the U.P. Industrial Disputes Act. The petitioner in its written statement submitted that the appointment of the respondent No.1 was made pursuant to  an advertisement  inviting  applications from the Scheduled Caste/Scheduled Tribe candidates for appointment on the post of a Driver,  and in the inquiry, it was found, that the workman  was not a Scheduled Caste and that he was a Backward Class. The employer further stated that a show cause notice was issued to the workman and since he failed to file a reply, it was presumed that he had nothing further to say in the matter and accordingly, the impugned order of termination was passed by the employers. It was also submitted that there was no requirement to hold an oral inquiry or to give any further opportunity to the workman or to comply with the provisions of Section 6-N of the U.P. Industrial Disputes Act.

The Labour Court in its award held that the workman was entitled for an opportunity of hearing pursuant to the preliminary inquiry conducted by the employers. Since no opportunity of hearing was given to the workman, the order of termination was in violation of the principles of natural justice. The Labour Court further found, that no fraud was committed by the workman and that the error in the issuance of the caste certificate was done by the Tehsildar in which the workman had no role to play. The Labour Court further held that the provisions of Section 6-N of the Act was not complied by the employers. In view of the aforesaid findings, the Labour Court  directed the reinstatement of the workman with 25% of back wages.

In my view, the award of the Labour Court is manifestly erroneous in law and cannot be sustained. Admittedly, the Labour Court has given a categorical finding that an advertisement was issued for filling up 50 vacancies on the post of driver and that these vacancies were required to be filled up from the candidates belonging to the Scheduled Caste or Scheduled Tribe. The Labour Court has also given a clear finding that the petitioner was not a Scheduled Caste  or a Schedule Tribe and that he belonged to a Backward Class. Consequently, it is clear that the  workman could not be appointed  for the post of a driver  pursuant to the aforesaid advertisement. The finding of the Labour Court that the error was committed by the Tehsildar in the issuance of the caste certificate and that the workman did not play a fraud is patently erroneous. It is expected that an individual knows his own caste. In any case, the workman himself applied for a Scheduled Caste certificate which was granted by the Tehsildar. It is only upon an investigation that it was found that the workman did not belong to a Scheduled Caste category and that he belonged to a backward class. Consequently, filing of a wrong certificate by the workman was a fraud played by him upon the employers. The workman played a fraud in seeking an appointment showing himself to be a Scheduled Caste when, in fact, he was a Backward Class.

Fraud vitiates all appointments and, in such a scenario, it is not necessary for the employer to give a show cause notice or an opportunity of hearing to the workman. It is also not necessary for the employer to hold an oral inquiry and thereafter take action, if any, on the delinquent workman. If it is found that a fraud was committed by a workman, in seeking an employment, the Management is not required to comply with the principles of natural justice. In any case, in the present case, the petitioner had issued a show cause notice dated 28.4.1994 to the workman, to show cause, why his services should not be terminated, on account of obtaining an appointment on the basis of a false certificate. The workman was required to file a reply and till the date of the issuance of the order of termination, the workman did not file any reply. In the absence of not filing a reply to the show cause notice, the management, having taken the contents of the show cause notice to be correct, had no option but to pass the order of termination. The management was not required to hold an oral inquiry. An oral inquiry is required to be conducted only when the charge is denied by the workman. In the present case, the charge  levelled against the workman in the show cause notice was not denied by the workman. Consequently, the management was justified in issuing the order of termination.

The contention of the workman that he had submitted a reply is incorrect. The reply which the workman had submitted is dated 2.5.1994, which is after the deadline as stipulated in the show cause notice. In any case, there is nothing on record to suggest that the reply was received by the management before the issuance of the order of termination. No explanation has been given as to whether the reply could not be filed on or before the dead line.

The contention of the workman that the principles of natural justice was violated is patently misconceived. As stated above, a show cause notice was issued to the workman which he did not avail. The management was therefore justified in passing the order of termination and it was not necessary  for the management to give an opportunity of hearing thereafter to the workman nor the management was obliged to hold an oral inquiry or give an opportunity to the workman to defend himself.

In Bank of India and another vs. Avinash D. Mandivikar an others, (2005)7 SCC 690, the Apex Court held-

".......When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence."

Similarly in Sheo Govind Singh  vs. Inspector General of Police, CS CRPF, Lucknow and another, 2005(4)ESC 2720, a Division Bench of this Court after considering various judgments of the Supreme Court held that where the applicant obtained an order by  misrepresentation or by playing a fraud upon the competent authority,  such an order could not be sustained in the eyes of law .

In District Collector and Chairman Vizianagram Social Welfare  Residential School Society vs. M. Tripura Sundari Devi, 1990 (3) SCC 655, the Supreme Court held:-

"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."

Consequently, by playing a fraud, it was no longer open to the workman to plead that he was entitled to a right of hearing. In my opinion, the workman cannot claim any right arising out of his wrong doing. The principles of  "Juri Ex Injuria Non Oritur" is squarely applicable.

In view of the fraud played by the workman, the question of complying with the requisite requirement of Section 6-N does not  arise in the fact of the circumstances of this case. Apart from the aforesaid, the provisions of Section 6-N of the U.P. Industrial  Disputes Act comes into play provided the workman proves that he had worked for 240 days in a calender year. In the present case there is no material on the record to prove that the workman had actually worked for more than 240 days in a year. Consequently, the provisions of Section 6-N of the Act is not applicable in the present case.

In view of the aforesaid, this Court is of the opinion that the award of the Labour Court cannot be sustained and is therefore quashed. The writ petition is allowed.

Dated:20.2.2007

AKJ


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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