BANGALORE METROPOLITAN TRANSPORT CORPORATION Vs. HEMANNA

JUDGEMENT

(1.) THE Public Road Transport Corporation aggrieved by the award dated 30.10.2009 in Reference No.26/2006 of the III Addl. Labour Court, Bangalore allowing the reference made by the State Government in its order dated 18.4.2006 in exercise of jurisdiction under Section 10(1)(c) of the Industrial Disputes Act, 1947, for short 'ID Act', setting aside the order of dismissal dated 16.8.2004 of the respondent-driver and directing his reinstatement by withholding four annual increments with cumulative effect as a measure of punishment, while, disentitling him to back wages and consequential benefits and granting continuity of service only for the purpose of claiming pensionary/retirement benefits and not for other benefits like increments and promotions, has presented this petition.

(2.) RESPONDENT when appointed as a driver in the KSRTC produced a Transfer Certificate issued by the Dayananada Boys High School, Kanakapura Road, Bangalore certifying that he had discontinued 9th Std. with Transfer Certificate No.32/83-84 and Admission No.22/78-79, which, on verification revealed was fabricated. The respondent having made a false representation, disciplinary proceeding was initiated by issuing an Articles of Charge followed by appointing an Inquiring Authority, who extended reasonable opportunity of hearing to the respondent, submitted a report dated 2.9.2000 holding the charge proved. The disciplinary authority by order dated 16.8.2004 dismissed the respondent from service leading to the respondent initiating conciliation proceeding under 'ID Act', which when failed, State Government referred the points of reference to the III Addl. Labour Court, Bangalore for adjudication. The claim petition filed by the respondent, was resisted by filing counter statement of the petitioner-corporation. In the premise of pleadings of the parties, the Labour Court framed an additional issue over the validity of the domestic enquiry. The parties entered trial whence the petitioner examined one witness as MW-1 and marked 13 documents as Exs.M1 to M13, while respondent was examined as WW-1. The Labour Court by order dated 3.3.2009 answered the additional issue in the affirmative holding that the domestic enquiry was fair and proper. Thereafter wards respondent was further examined as WW-1 on the allegation of victimisation whence no document was marked.

(3.) THE answer to this question need not detain the Court for long. THE observations of the Supreme Court in 'Union of India & Ors. v. V. Bhaskaran & Ors.1' in the circumstances, is apposite: "When once fraud on the employer is detected, the appointment orders themselves are tainted and vitiated by fraud and acts of cheating on the part of the employees. THE appointment orders are liable to be recalled and voidable at the option of the employer concerned. Once the fraud of the employees in getting such employment was detected, the employees were proceeded against in departmental enquiries and called upon to have their say and thereafter have been removed from service. Orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer after following the due process of law and complying with the principles of natural justice. Fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the employees have continued in service for number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel in favour of the employee".