Judgment:
ORDER
H.N. Nagamohan Das, J.
1. In this petition the petitioners have prayed for a writ in the nature of certiorari to quash the award dated 10.07.2002 in application Nos. 1 to 6/2002 passed by the Central Government Industrial Tribunal cum Labour Court (for short 'the Tribunal') rejecting the applications filed by the petitioners under Section 33(2)(B) of the Industrial Disputes Act seeking approval of the dismissal of respondents.
2. Petitioner is a company engaged in printing of currency notes having its press at Mysore in the State of Karnataka and at Saboni in the State of West Bengal. The petitioners issued an advertisement on 19.02.1996 inviting applications from eligible candidates for appointment of personnel in various grades. In response to the advertisement issued by the petitioners, the respondents applied claiming reservation under OBC category. In the process of selection, the respondents were selected and appointed on 06.04.1996. Subsequently, the services of respondents came to be confirmed on 06.01.1998, 16.06.1997, 11.07.1997, 05.07.1997 and 19.06.1997 respectively. After a lapse of nearly 4 years, the petitioners issued articles of charges on 17.10.2000 to the respondents stating that by producing false OBC certificates they have secured employment The respondents submitted their explanation inter alia denying the charges levelled against them. The Disciplinary Authority being not satisfied with the explanation of the respondents initiated enquiry proceedings. The Enquiry Officer submitted his report stating that the charges levelled against the respondents as proved. The Disciplinary Authority by accepting the enquiry report passed an order of penalty on 30.09.2001 dismissing the respondents from service. Subsequently, the petitioners filed application Nos. 1 to 6/2002 under Section 33(2XB) of the Industrial Disputes Act ('the Act' for short) seeking approval of their action of dismissing the respondents from service. The Tribunal after hearing both the parties and on appreciation of the material on record passed the impugned order rejecting the applications filed by the petitioners. Hence, this petition.
3. Sri. Kasturi, learned senior counsel for petitioners contend, that the Tribunal having held the domestic enquiry as perverse ought to have provided an opportunity to lead evidence and to justify their action of dismissal of respondents from service. The Tribunal committed an error in not applying its mind to the facts of the case and in not properly assessing the evidence on record. He further contends, that though there is a mistake in the advertisement, it will not give a right to the respondents. The Tribunal committed an error in not considering the fact that as on the date of respondents applying for job, they have not produced the OBC certificate issued by the Government of India. Reliance is placed on the following decisions.
1. Ritz Theatre (Private) Ltd. Delhi v. Its Workmen 1962 (II) LLJ 498
2. Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr. : (1963)IILLJ638SC
3. Bharat Iron Works v. Bhagubhai Balubhai Patel and Ors. : [1976]2SCR280
4. R. Vishwanatha Pillai v. State of Kerala and Ors. : AIR2004SC1469
5. Mysore Steel Works v. Jitendra Chandra Kar and Ors. 1971 (1) LLJ 543
4. Per contra, Sri. N.G. Phadke, learned Counsel for respondents contend, that the advertisement issued by the petitioners do not specify that the respondents are required to furnish the OBC certificate issued by the Government of India. In the absence of specific stipulation in the advertisement, the respondents produced the OBC certificate issued by the Government of Karnataka. He contends, that there is no dispute with regard to the fact that the respondents belong to OBC category. The petitioners by accepting the OBC certificate produced by the respondents selected, appointed and confirmed their services. Therefore, it is not open for the petitioners to dismiss the respondents from service on the ground that they have not produced the OBC certificate in me form prescribed by the Government of India. He further submits, mat subsequent to the appointment of respondents, the castes of respondents are included in the list of backward classes by the Government of India. He justifies the impugned order. Reliance is placed on the following decisions.
1. The workmen of Firestone Tyre and Rubber Co. of India (P) Ltd. v. The Firestone Tyre and Rubber Co. : (1976)ILLJ493SC
2. Devaraj Urs and Ors. v. The General Manager, Mysore State Road Transport Corporation, Bangalore and Ors. AIR 1971 Mysore 99
3. Electronics Corporation of India Ltd. and Ors. v. Secretary, Revenue Department, Govt. of Andhra Pradesh and Ors. : AIR1999SC1734
4. Dr. MS. Mudhol and Anr. v. S.D. Halegkar and Ors. 1993 (2) LLJ 1159
5. District Collector & Chairman, Vizianagaram, Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi : (1990)IILLJ153SC
6. Chief Engineer, MSEB and Anr. v. Suresh Raghunath Bhokare 2005 SCC (L&S;) 765
7. Anil Vasantrao Shirpurkar v. State of Maharashtra, Tribal Development Department and Ors. 2003 (T) LLJ 275
8. Northern Railway Cooperative Credit Society Ltd. v. Industrial Tribunal, Jaipur and Anr. 1967 (II) LLJ 46
9. Rhone Poulenc (India) Ltd. v. State of U.P. and Ors. : (2000)IILLJ1402SC
10. P.B. Rocho v. Union of India and Ors. 1984 (2) SLR 359
11. Eifco Oil Engine Industries, Coimbatore v. Labour Court, Coimbatore and Anr. 1992 (II) LLJ 293
12. Workmen v. Williamson Magor and Co., Ltd. and Anr. 1982(1) LLJ 33
13.M.D., Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam 2001 (1) LLJ 1706
14. Delhi Cloth and General Mills Co., v. Ludh Budh Singh : (1972)ILLJ180SC
5. Heard arguments on both the side and perused the entire writ papers.
6. Petitioners in their notification dated 19.02.1996 inviting applications for post of Industrial Workmen - Staff in from eligible candidates specified that 'reservation for SC-ST and other Backward Classes will be as per Government Guidelines'. In the form of application prescribed by the petitioners, in column No. 3 it is specified to indicate the category of the candidate. In column No. S it is specified to mention the date of birth as per the school leaving certificate. The notification dated 19.02.1996 and the prescribed form of application do not specify mat the eligible candidates shall produce the OBC certificate issued by the authority notified by the Government of India. As pointed out earlier, in the form of application when it is stated that the date of birth shall be as per the school leaving certificate, there was no impediment for the petitioners to specify that the OBC candidates shall produce the certificate issued by the authority notified by the Government of India. Petitioners in their notification dated 19.02.1996 inviting applications from eligible candidates and also in their form of application have not specified mat the candidates applying under OBC category shall produce the certificate issued by the authority notified by the Government of India. Therefore the petitioners are now not entitled to contend that the respondents by furnishing false information secured employment. The Enquiry Officer and also the Tribunal have concurrently held that the petitioners in their notification dated 19.02.1996 and in the form of application have not specified that candidates claiming reservation under OBC category shall produce the certificate issued by the Government of India. This finding of the Enquiry Officer and the Tribunal is based on evidence on record. I find no perversity or illegality in the impugned award.
7. At the time of filing of applications the respondents produced the OBC certificate issued by the Government of Karnataka. It is not the case of the petitioners that the respondents do not belong to OBC category. The petitioners on verification of the certificates produced by the respondents selected and appointed them under OBC category. Subsequently, the petitioners have confirmed the services of the respondents. Therefore at this length of time the petitioners are not entitled to contend that the respondents by furnishing false information secured employment.
8. The respondents 1 and 3 belong to Lingayat community. Respondents 2, 5 and 6 belong to Muslim community and respondent No. 4 belongs to Banajiga community. These communities are declared as backward class communities by the Karnataka Government The respondents have produced backward class certificate issued by the Government of Karnataka at the time of submitting their applications to the petitioners for employment Now the Government of India, Ministry of Social Welfare vide resolution dated 10.09.1993 bearing No. 12011/68/93 BCC (c) published in the Gazette of India dated 13.09.1993 included the castes of respondents in the list of backward class citizens. Therefore the appointment of respondents shall not be cancelled on the ground that they have not produced the backward class certificate issued by the Government of India.
9. The charge against the respondents is that on the basis of false information furnished by them, they have secured job in the petitioner organisation. This act on the part of respondents is contrary to Standing Order No. 23.1.46 and the same reads as under:
Giving false information regarding his name, age, qualification or previous service or any other personal data at the time of employment or thereafter, and submitting medical certificates/bills which are not of genuine nature.
In the instant case, at the time of submitting applications in the prescribed format the respondents have stated that they belong to OBC category. The petitioners have not disputed that the respondents belong to OBC category. At the time of appointment, the respondents have produced the OBC certificates issued by the Government of Karnataka. The contention of petitioners that the respondents have not produced the OBC certificates issued by the Government of India will not amount to furnishing false information. Thus the respondents have not secured the job by giving false information. In the absence of respondents giving false information, die question of they violating the Standing Order No. 23.1.46 will not arise. Therefore, the very charge sheet issued against the respondents is unfounded and baseless.
10. The learned Senior Counsel Sri. Kasturi contends, that a wrong appointment made contrary to law cannot give any legal right to the respondents to continue in the job. On principle this contention is correct. But it is not shown to me as to how the appointment of respondents is contrary to law. On the other hand, the initial notification dated 19.02.1996 and the form of application do not specify that the respondents shall produce OBC certificates issued by Government of India. Further it is not pointed out to me under which law the respondents are not entitled for appointment, which provision of law is violated by the respondents and the appointment of respondents is contrary to which provision of law. Therefore I decline to accept the contention of petitioners that the appointment of respondents is contrary to law.
11. Lastly it is contended that once the Tribunal holds the findings of enquiry as perverse, then an opportunity shall have to be provided to the petitioners to justify their action of dismissal of respondents. This contention of the learned Senior Counsel for petitioners is unacceptable to me. It is settled position of law that if there is no enquiry or defective enquiry, the employer is entitled to lead evidence and to justify its action. Once the enquiry is held as fair and proper, then the employer is not entitled to lead additional evidence before the Tribunal. Once the Tribunal holds the enquiry as fair and proper, then the Tribunal shall find out whether the findings of enquiry are perverse or not and the punishment is proportionate or not. Perversity means that the findings of enquiry are not supported by evidence or contrary to the evidence on record. Further, perversity means, that the conclusion arrived at by the Enquiry Officer could not have been arrived at by reasonable person on the basis of material facts and circumstances. If the Tribunal holds that the findings of enquiry are perverse the question of providing an opportunity to the employer to justify its action is not permissible under law. In the instant case, the Tribunal held the enquiry as correct and fair. Further, by consent the documents produced by both the parties are marked before the Tribunal. The petitioners have not sought for an opportunity to lead evidence before the Tribunal. Therefore at this length of time the petitioners are not entitled to contend that they are to be provided an opportunity to justify their action of dismissal of respondents.
12. Though number of decisions are cited on both the sides, they are not applicable to the facts of this case. For the reasons stated above, the writ petition is dismissed with no order as to costs.