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Allahabad High Court · body

2018 DIGILAW 2220 (ALL)

UPSRTC AGRA v. Presiding Officer

2018-10-24

SARAL SRIVASTAVA

body2018
JUDGMENT : Saral Srivastava, J. Heard learned counsel for the parties. 2. The U.P. State Transport Corporation has challenged the order passed by the Presiding Officer, Labour Court in Case No. 183 of 1998, whereby the Presiding Officer, Labour Court-respondent no. 1 has set-aside the order of termination of Mohammad Ali @ Dularey respondent no. 2 with all consequential benefits. 3. The facts of the case in short is that the respondent no. 2 was appointed as Cleaner in the petitioner's Corporation in the year 1997 and was promoted on the post of driver in the year 1979. 4. It appears that one Gopal had filed a complaint before the Assistant Regional Manager, Idgah Depo, Agar against the respondent no. 2 stating that the respondent no. 2 had obtained the service by submitting fake educational certificate. 5. It further transpires from the record that the petitioner had terminated the service of respondent no. 2 by order dated 16.4.1996. The respondent no. 2 preferred a writ petition no. 15784 of 1996 challenging the order of termination and this Court by judgment and order dated 3.5.1996 dismissed the writ petition of respondent no. 2. 6. The respondent no. 2, thereafter, preferred Special Appeal no. 430 of 1996 challenging the order of the learned Single Judge dated 3.5.1996 in writ petition no. 15784 of 1996; and Division Bench of this Court allowed the Special Appeal of respondent no. 2 on 21.5.1996 and directed the petitioner U.P.S.R.T.C. to conduct the disciplinary proceedings in accordance with service rules. 7. After the order was passed by this Court remanding the matter to the concerned authority, the respondent no. 2 was issued show cause notice by Assistant Regional Manager, Idgah Depo, Agra. The respondent no. 2 replied the show cause notice, wherein he had stated that he had not filed any forged certificate in respect of his educational qualification. The Assistant Regional Manager being dissatisfied with the explanation of the respondent no. 2 passed an order date 12.7.1996 affirming the earlier order dated 16.4.1996, by which the service of the respondent no. 2 was dispensed with. 8. Feeling aggrieved by the order of the Additional Regional Manager dated 12.7.1996, the respondent no. 2 preferred statutory appeal before the chairman of the petitioner's Corporation which was dismissed by the appellate authority by order dated 4.9.1997. The respondent no. 2 was dispensed with. 8. Feeling aggrieved by the order of the Additional Regional Manager dated 12.7.1996, the respondent no. 2 preferred statutory appeal before the chairman of the petitioner's Corporation which was dismissed by the appellate authority by order dated 4.9.1997. The respondent no. 2, thereafter, raised an industrial dispute before Assistant Labour Commissioner, Agra and the reconciliation having been failed; the State Government by order dated 8.5.1998 referred the following dispute to the Labour Court, Agra: 9. The petitioner as well as respondent no. 2 filed there respective claim and led evidence. 10. The Labour Court, by order dated 28.1.1999 set-aside the termination order dated 12.7.1996 and further directed the reinstatement of respondent no. 2 with full back wages. The Labour Court in allowing the claim of respondent no. 2 has recorded a finding that the employer petitioner did not file any evidence to prove that the respondent had obtained appointment by filing forged educational certificate. The Labour Court further recorded a finding that no enquiry was conducted by the disciplinary authority nor the complainant was produced in order to enable the respondent no. 2 to cross-examine the complainant with regard to allegations made by him against the respondent no. 2. It further recorded a finding that the order of termination was non speaking nor it records a finding that the charges levelled against the respondent no. 2 have been proved. On these findings, the claim of the respondent no. 2 was allowed by the respondent no. 1. 11. When the petition was filed before this Court, it appears that an objection was raised by the counsel for the respondent no. 2 that the writ petition was liable to be dismissed as petitioner has failed to explain delay and latches in filing the writ petition. This court passed the following order on 12.1.2000: "A preliminary objection has been raised by Sri D.K.S. Rathore that the delay and latches in filing the writ petition has not been explained. Learned counsel for the petitioner concedes this objection. He wants to file supplementary affidavit. He prays for and is granted one week time to file supplementary affidavit. List on 25.1.2000 before the appropriate court." 12. Thereafter, the writ petition was dismissed in default on 5.5.2003, the order of this Court dated 5.5.2003 is extracted herein below: "Case called in the revised list. No body appears for the petitioner. He wants to file supplementary affidavit. He prays for and is granted one week time to file supplementary affidavit. List on 25.1.2000 before the appropriate court." 12. Thereafter, the writ petition was dismissed in default on 5.5.2003, the order of this Court dated 5.5.2003 is extracted herein below: "Case called in the revised list. No body appears for the petitioner. The writ petition is dismissed for want of prosecution. Interim order, if any, is discharged." 13. The record of the case further reveals that a Civil Misc. Application No. 139864 of 2004 was filed on 9.8.2004 for recalling the order dated 5.5.2003 along with delay condonation application no. 139863 of 2004 for condoning the delay in filing the restoration application. The record further reveals that thereafter the petitioner did not make any effort for listing of the case. It is only about after 14 years, an application dated 23.7.2018 was filed by the petitioner for early listing of the case. This Court on 14.8.2018 restored the writ petition and passed the following order: "(Ref : Civil Misc. Delay Condonation Applicaton) 1. This is an application seeking condonation of delay in filing the restoration application. 2. Cause shown is sufficient. 3. Delay condoned. 4. This application, accordingly, stands allowed. (Ref : Civil Misc. Restoration Application) 1. This is an application seeking recall of order dated 5.5.2003 dismissing the writ petition for want of prosecution. 2. Cause shown is sufficient. 3. The order dated 5.5.2003 is hereby recalled. The writ petition is restored to its original number. 4. This application, accordingly, stands allowed." 14. The aforesaid facts shows callous and casual approach of the Corporation in filing the writ petition and in not pursuing it as it was not argued for about 19 years. 15. The counsel for the petitioner contended that the order of respondent no. 1 is not sustainable, inasmuch as, the respondent no. 2 had obtained the employment by filing forged certificate. He contends that the enquiry was conducted and it was found that the certificate filed by the respondent no. 2 was forged and consequently, his services was dispensed with. In this regard, he has relied upon the judgment of the Apex Court in the case of Ram Saran v. I.G. Of Police, CRPF & Ors. He contends that the enquiry was conducted and it was found that the certificate filed by the respondent no. 2 was forged and consequently, his services was dispensed with. In this regard, he has relied upon the judgment of the Apex Court in the case of Ram Saran v. I.G. Of Police, CRPF & Ors. (2006) 2 SCC 541 , wherein the Apex Court has held that if after enquiry proceeding it was found that the employee has submitted false certificate of his date of birth at the time of recruitment, his service can be terminated even if he had completed 27 years of service. 16. The counsel for the respondent submits that the writ petition was dismissed in default in the year 2003 and no effort was made by the petitioner for getting it restored for the last 15 years and petitioner has implemented the order of the Tribunal. He further submits that the respondent no. 2 has retired from service on 30.4.2018 which is evident from the order passed by the petitioner's Corporation annexed as Annexure No. 1 to the supplementary affidavit. 17. He further submits that respondent no. 1 recorded a categorical finding that the complainant on whose complaint the proceedings against the respondent no. 2 was initiated was not produced before the disciplinary authority to prove the contents of complaint nor the respondent no. 2 was afforded any opportunity of hearing to crossexamine the complainant. 18. He further submits that the respondent no. 2 has recorded the categorical finding that the petitioner could not produce any document to establish the qualification required for appointment on the post of cleaner and driver. He further submits that no enquiry was held nor the respondent no. 2 was afforded any opportunity of hearing by the petitioner and, hence, the order of the termination is illegal and not sustainable in law being in violation of the principles of natural justice. He submits that finding recorded by the respondent no. 1 in this regard is a finding of fact 19. I have heard considered the rival submissions of the parties and perused the record. 20. In respect of contention of the petitioner, that the respondent no. He submits that finding recorded by the respondent no. 1 in this regard is a finding of fact 19. I have heard considered the rival submissions of the parties and perused the record. 20. In respect of contention of the petitioner, that the respondent no. 2 had obtained employment by filing forged certificate, the record reveals that the order of termination as well as the order of appellate authority only speaks about filing of forged certificate in respect of educational qualification of respondent no. 2, but the allegations does not disclose which certificate was forged by respondent no. 2 for the purpose of obtaining employment. 21. When the counsel for the petitioner was confronted with a question as to which certificate was forged by respondent no. 2, he could not point out anything from the record and prayed for some time for filing the supplementary affidavit to bring the certificate on record which was said to be forged by the respondent no. 2. 22. Considering the conduct of the petitioner as detailed above and further as the matter is pending for the last 19 years and no effort was made by the Corporation for disposal of the case, the prayer of the petitioner's counsel for further time for filing supplementary affidavit has been rejected. 23. The record further reveals that the respondent no. 1 has recorded a categorical finding that the respondent could not produce any document to show the minimum qualification required for appointment on the post of cleaner and driver at the time of appointment of respondent no. 2. 24. The respondent no. 1 further held that the order of termination was non speaking and without conducting any enquiry and in violation of the order of this Court in Special Appeal No. 4361 of 1996, wherein this Court has directed the disciplinary authority to dispose of the enquiry proceedings in accordance with service rules and law. 25. The counsel for the petitioner could not demonstrate even from the record that the aforesaid finding recorded by the respondent no. 1 is perverse and against the record nor could demonstrate as to what was minimum qualification for appointment on the post of cleaner and driver on the date of appointment of respondent no. 2 in the petitioner's Corporation. 26. The counsel for the petitioner could not demonstrate even from the record that the aforesaid finding recorded by the respondent no. 1 is perverse and against the record nor could demonstrate as to what was minimum qualification for appointment on the post of cleaner and driver on the date of appointment of respondent no. 2 in the petitioner's Corporation. 26. So far as the judgment of the Apex Court in the case of Ram Saran (supra) relied upon the counsel for the petitioner is concerned, judgment of the Apex Court is not applicable in the facts of the present case. 27. In view of the finding recorded by the respondent no. 1 that no enquiry was conducted against the respondent no. 1 before passing the order, the finding of the respondent no. 1 holding termination order illegal is based on proper appreciation of evidence and material on record, and is being finding of fact is not liable to be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 28. Consequently, the writ petition lacks merit and is hereby dismissed. There shall be no order as to costs.