BHARAT ELECTRONICS LTD. , DIRECTOR (BC), BHARAT ELECTRONICS LTD. v. S. SHIVAKUMAR S. SIDDAIAH
2006-02-22
CYRIAC JOSEPH, MANJULA CHELLUR
body2006
DigiLaw.ai
CYRIAC JOSEPH C. J. ( 1 ) THIS Writ Appeal is filed against the Judgment dated 15th February 2005 in Writ Petition No. 24228/2002 which was allowed by the learned Single Judge. The appellants are the respondents in the Writ Petition. ( 2 ) THE respondent herein (writ petitioner) was appointed as a Draughtsman-C in the Bharat electronics Limited, Jalahalli (first appellant) and he joined duty on 16. 7. 1993. The said appointment was given to him giving the benefit of reservation as a member of a Scheduled tribe. However, as per Annexure "a" order dated 30. 5. 2002, he was dismissed from service of the first appellant with immediate effect. The dismissal was on the ground that he was not a member of any Scheduled Tribe and that he obtained the employment by deliberately making false statement in his employment application form and attestation form to the effect that he belongs to Kadukuruba community. According to the appellants, the respondent belongs to kuruba community which is admittedly not a Scheduled Tribe. Before issuing Annexure "a" order, charge sheet was served on the respondent and a domestic enquiry was conducted and on the basis of the enquiry report, a show cause notice was issued to him and the explanation submitted by the respondent was considered by the appellants. Aggrieved by the order of dismissal from service, the respondent filed the Writ Petition challenging Annexure "a" order. After considering the rival contentions, the learned Single Judge passed the following Orders: 10. For the foregoing reasons, the writ petition filed by the petitioner is allowed. The order passed by the 1st respondent dated 30/5/2002 vide Annexure-A is hereby set aside and the matter stands remitted to the 1st respondent for fresh disposal in accordance with law. 11. However, lst respondent is directed to consider the JUDGMENT passed by the Division bench of this Court in W. A. No. 3399/2001 dated 23rd November 2004 and also the notification issued by the Government dated 11th March 2002 in Govt. Order No. SWD 713 SAD 93 and the well settled law laid down by Supreme Court in the case of State of Maharashtra v. Miland, Civil appeal 2294/86 and dispose of the same after affording an opportunity to the petitioner and also after obtaining the report from the Caste Verification Committee, if they so desire.
Order No. SWD 713 SAD 93 and the well settled law laid down by Supreme Court in the case of State of Maharashtra v. Miland, Civil appeal 2294/86 and dispose of the same after affording an opportunity to the petitioner and also after obtaining the report from the Caste Verification Committee, if they so desire. ( 3 ) AGGRIEVED by the order of the learned Single Judge, the respondents in the Writ Petition have filed this appeal. ( 4 ) THE first contention raised by the learned Counsel for the appellants is that the Writ Petition was not maintainable as the writ petitioner had an effective alternate remedy of raising an industrial dispute under the provisions of the Industrial Disputes Act. It is contended that even though this objection regarding maintainability of the Writ Petition was raised before the learned Single Judge, it was over ruled by the learned Single Judge. In. support of his contention, learned Counsel for the appellants relied on the decisions of the Hon'ble Supreme court in The Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant AIR1995 SC 1715 , 1995 (2 )CTC208 , [1995 (71 ) FLR211 ], JT1995 (4 )SC 348 , (1995 )II LLJ728 SC , (1995 )2 MLJ48 (SC ), 1995 (3 ) SCALE440 , (1995 )5 SCC75 , 1994 Supp (1 )SCC268 , [1995 ]3 SCR1118 , 1995 (2 ) UJ318 (SC ), (1995 )2 UPLBEC1295 and u. P. State Bridge Corporation Ltd. and Ors. v. U. P. Rajya Setu Nigam S. Karamchari sangh AIR2005 SC 4067 , 2004 (5 )ALD39 (SC ), JT2004 (2 )SC 440 , (2004 )II LLJ9 SC , 2004 (2 )SCALE466 , (2004 )4 SCC268 , 2004 (2 )SLJ406 (SC ), (2004 )2 uplbec1567. ( 5 ) WE have perused the above decisions of the Hon'ble Supreme Court. In the Rajasthan State road Transport Corporation case, the jurisdiction of the High Court under Article 226 of the constitution of India to entertain a Writ Petition against an order of dismissal in respect of which an industrial dispute could be raised was not considered, What was considered was the jurisdiction of the Civil Court. Therefore, the said decision, in our view, has no application to the facts of this case.
Therefore, the said decision, in our view, has no application to the facts of this case. In the U. P. State Bridge Corporation Ltd case, though the fact situation was entirely different, the question whether the High Court could entertain the Writ Petition under article 226 of the Constitution did arise and the question was considered by tile Supreme Court, after referring to the decision in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke AIR1975 SC 2238 , [1975 (31 )FLR195 ], 1975 Lablc1651 , (1975 )II llj445 SC , (1976 )1 SCC496 , [1976 ]1 SCR427 , the Hon'ble Supreme Court held as follows: (Refer paragraph 12) although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner. ( 6 ) IT is clear from the above quoted portion in the judgment that there is no absolute bar against exercise of power by the High Court under Article 226, in a case relating to dismissal from service in respect of which a dispute could be raised under the provisions of the Industrial disputes Act, If there is a very strong case for the petitioner in the Writ Petition, the High Court can exercise the power, Hence, the question is whether the Writ Petitioner in the present case (respondent herein) had a very strong case so as to persuade the High Court to exercise this power under Article 226 of the Constitution of India. The learned Single Judge found that not only the case of the petitioner was very strong but also held that the dismissal from service was illegal. Reiterating the same, we are of the view that the Writ Petitioner in this case had a very strong case and therefore, the learned Single Judge was justified in entertaining the Writ Petition and exercising the power under Article 226 of the Constitution of India.
Reiterating the same, we are of the view that the Writ Petitioner in this case had a very strong case and therefore, the learned Single Judge was justified in entertaining the Writ Petition and exercising the power under Article 226 of the Constitution of India. ( 7 ) THE next contention raised by learned Counsel for the appellants is that the learned Single judge was wrong in allowing the Writ Petition on merits also. ( 8 ) HAVING regard to the facts and circumstances of the case and the materials placed on record, we are not inclined to agree with the above contention. Along with the application submitted by the respondent, he had produced certificate from the school authorities to show that he belongs to kadukuruba community which is admittedly a Scheduled Tribe. He had also produced a certified issued by the Tahsildar, Malavalli Taluk stating that he belongs to Kadukuruba community. In the domestic enquiry report, the Enquiry Officer has referred to the said certificate in paragraph 7. 8. However, the Enquiry Officer has held that the said certificate was obtained under false pretension. He has held so on the ground that the respondent is a resident of Bangalore and that the intention of obtaining Caste certificate from the Tahsildar, Malavalli Taluk was doubtful. The explanation of the respondent is that he and his family belong to Malavalli Taluk and he was staying at Bangalore as his father was employed at Bangalore. This explanation is not seen considered by the Enquiry Officer. At any rate, the appellants have no case that the said Caste certificate (Ex. M8) issued by the Tahsildar, Malavalli Taluk has been cancelled at any time. It is also not disputed that another Caste certificate dated 19. 10. 1995 issued by the Tahsildar, bangalore North Taluk (Urban) stating that the respondent belongs to Kadukurubu caste which is recognised as Scheduled Tribe was produced by the respondent. According to the respondent, the said certificate had to be produced at the insistence of the appellants to produce a fresh caste certificate, Though the said caste certificate was produced along with the reply to the show cause notice issued by the Disciplinary Authority, in the final order passed by the Disciplinary authority (Annexure-A), there is no consideration of the said Caste certificate also.
On the face of the Caste certificate produced by the respondent along with the application and in view of the fact that the said Caste certificate has not been cancelled subsequently, the charge that the respondent obtained employment deliberately making false statement in his employment application form and attestation form, cannot stand, The only material based on which the appellants found that the respondent does not belong to Kadukuruba community is the communication No. DSWO (U)/cv/cr-297/95-96 dated 30. 11. 1995 referred to in paragraph No. 3 of the show cause notice issued to the respondent (Annexure V ). The said letter of the Deputy commissioner, Bangalore District is produced as Annexure "b", It is seen that the said letter is in respect of the verification of the claim of Sri S. Siddaiah (respondent's father) as a member of scheduled Tribe. Even though the Deputy Commissioner has stated that Sri S. Siddaiah does not belong to Kadukuruba community and that he belongs to Kuruba community, it is not based on any verification conducted by the Caste Verification Committee constituted under The karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of appointment etc.) Rules, 1992. It is also not disputed that the order passed by the appellants in the case of said Siddaiah on the basis of Annexure "b", letter of the Deputy Commissioner, was quashed by this Court in Writ Appeal No. 3399/2001 holding that the competent authority to decide the Caste is only the Caste Verification Committee. The appellants have no case that before sending Annexure "b" - letter, the Deputy Commissioner had placed the matter before the caste Verification Committee and the Caste Verification Committee had conducted necessary enquiry in the matter. At any rate, it is not disputed that the case of the respondent was not referred to the Caste Verification Committee. It is against the above background that the learned single Judge, after setting aside Annexure "a" order, remitted the matter to the first respondent for fresh disposal in accordance with law, directing the first respondent to consider the matter in the light of the judgment of the Division Bench in Writ Appeal No. 3399/2001 and the government Notification dated 11th March 2002 and the decision of the Supreme Court in State of Maharashtra v. Miland (Civil Appeal No. 2294/1986 ).
( 9 ) IN the above circumstances, we do not find any merit in the appeal and the appeal is dismissed. ( 10 ) EVEN though the learned Single Judge had not stipulated any period for taking fresh decision in the matter, considering that the judgment of the learned Single Judge was rendered on 15th february 2005 and the appellants have kept the respondent out of service for full one year, it is directed that the respondent shall be reinstated in service forthwith and the fresh decision in his case as directed by the learned Single judge shall be taken as early as possible and at any rate, within a period of six months from today.