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2018 DIGILAW 955 (KAR)

Beml Limited v. N. Sukumar

2018-09-06

L.NARAYANA SWAMY

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ORDER : 1. The petitioner herein is an applicant in ID No.22/2007 who had filed an application under Section 33(2)(b) of the ID Act before the Tribunal, seeking to approve the order of termination of the respondent from service. The grounds for termination are that knowing fully well that the respondent herein does not belong to Nayaka Community (ST), but with a view to get an employment, has deliberately furnished a false information for getting Caste Certificate and employment in BEML under ‘ST’ quota. 2. After obtaining explanation from the respondent, an enquiry was held and it was concluded by the Enquiry Officer that the respondent has committed a misconduct by misrepresenting himself claiming employment under ST quota. The said application came to be rejected. Hence, the present writ petition is filed. 3. Learned counsel for the petitioner submits that on the findings of the Enquiry Officer, the Industrial Tribunal has to enquire as to whether the punishment order is supported by materials, enquiry conducted is fair and proper and whether there is any victimization. Without considering the said aspects, rejection of the application is arbitrary. 4. It is further submitted that the respondent got appointed on the establishment of petitioner on the basis of the Caste Certificate. In the Enquiry Report (Annexure-C) at para-9 it is stated as under: “9. The appointment of Sri. K. Sukumar, Staff No.354-20957, as Technician (Machinist) in the Wage Group-B, was considered under reserved category ‘ST’ based on reference to the District Employment Exchange, Kolar, initially on Muster Roll basis for a period of 2 years vide letter No.EKP/15-E/ENG dated 07/06/1986 (Exhibit-2). It is alleged that, Sri. K. Sukumar, Staff No.354-20957 has produced caste certificate in Original to substantiate that he belongs to Scheduled Tribe issued by the Tahsildar, Bangarapet dated 15.06.1988 certifying that he belongs to ‘Nayaka’ community which is recognized as Scheduled Tribe under the SC/ST orders for the Territory of Karnataka. The Charge Sheeted Employee also declared himself as Schedule Tribe belonging to Nayaka Community for MRE engagement dated 05/06/1986 (Exhibit-1) and his application for employment dated 19.08.1988 (Exhibit-5) and even in the Attestation Form dated 17/06/1986 (Exhibit-7), he has reiterated that he belongs to ‘Nayaka Scheduled Tribe’ community.” 5. The Caste Certificate showing that the respondent belongs to Nayaka community was forwarded to the Deputy Commissioner, Kolar District, for verification. The Caste Certificate showing that the respondent belongs to Nayaka community was forwarded to the Deputy Commissioner, Kolar District, for verification. The Deputy Commissioner of Kolar District in his report dated 07.04.2005 has certified that the respondent belongs to ‘Goundar’ caste, which does not come within ‘ST’ category under the territory of Karnataka. On this basis, an enquiry was conducted and charge-sheet was served to the respondent. The enquiry was held to be fair and proper. Under the said circumstances, the learned Judge could have accepted the application that was made under Section 33(2)(b) of the Act and approved the action of termination of the respondent from service. 6. The first ground taken by the Tribunal is, along with the termination order the respondent has not been paid with one month wages in compliance of Section 33(2)(b) of the I.D Act. On this ground, the said application was liable to be rejected. 7. The learned counsel further submitted that the certificate was issued initially by the Competent Authority wherein it is mentioned that the respondent belongs to ST Caste. The said Caste Certificate was issued on 15.06.1988. Initially his name was referred from Employment Exchange, wherein he was registered as a person belonging to ST caste. He also produced Transfer Certificate issued by the Head Master, Sumathi Jain High School, Robertsonpet, KGF, where he had studied and it states that the respondent belongs to Nayaka caste. The Caste Certificate dated 18.06.1980 which was issued to the respondent has been produced at AnnexureR3, wherein it is mentioned that respondent belongs to Nayaka Caste. The respondent’s brother was also working in the petitioner department who had claimed appointment under ST Caste. When the persons of the respondent’s family belongs to ST, there cannot be any dispute with regard to the caste of the respondent as he also belongs to the same caste. 8. It is undisputed for more than two decades that the respondent is shown to be belonging to Nayaka caste. But, for no reason, the Caste Certificate of the respondent was referred to the Deputy Commissioner, for verification. After verification, it was reported to the Chief Manager, vide letter dated 07.04.2005, that the respondent does not belong to Nayaka community, which comes under the category of Scheduled Tribe and that he belongs to ‘Goundar’ community, which is not classified as Scheduled Tribe. After verification, it was reported to the Chief Manager, vide letter dated 07.04.2005, that the respondent does not belong to Nayaka community, which comes under the category of Scheduled Tribe and that he belongs to ‘Goundar’ community, which is not classified as Scheduled Tribe. Issuance of the said report Annexure-R-12 by Deputy Commissioner was on the basis of report of the Tahasildar. Learned counsel for the respondent submits that respondent belongs to ST and his caste is classified as ST for the purpose of taking employment and benefit. 9. Heard learned counsel for both the parties. Primarily what is required for the purpose of adjudication is the Industrial dispute under Section 2(k). The “industrial dispute” means “any dispute or difference between the employers and employers, between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”. A plain reading of the same discloses that the industrial dispute is a dispute between the employers and employers or between employers and workmen or between workmen and workmen with reference to employment etc., The industrial enquiry against the respondent is not on the basis of the conclusion made by the Deputy Commissioner, on 07.04.2005, wherein it is stated that the respondent does not belong to Nayaka community and that he belongs to Goundar community. Where a proceedings is with regard to a person’s caste, it would not be a dispute as per Section 2K of the I.D Act. It is no doubt true that the question is with reference to the respondent, who is an industrial employee of the petitioner, but the matter is not an industrial dispute. 10. The petitioner has filed copy of the application registering his name in employment exchange as ST. As such his name was furnished to the petitioner. But furnishing his name was based on the declaration made by the respondent, to the effect that he belongs to ST. The report of the Deputy Commissioner reveals the fact that the respondent does not belong to ST community and that he belongs to Goundar community, which is not an industrial dispute. Whether filing of application under Section 33 (2)(b) of the I.D Act itself is required to be examined. The report of the Deputy Commissioner reveals the fact that the respondent does not belong to ST community and that he belongs to Goundar community, which is not an industrial dispute. Whether filing of application under Section 33 (2)(b) of the I.D Act itself is required to be examined. Section 33(2)(b) reads as under: “For any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” 11. It is required to relook or recheck sub clause (b) of 33(2) since the proceedings is registered for a misconduct and misrepresenting information and obtaining employment. Section 33(1) reads that “during the pendency of any conciliation proceeding before a Conciliation officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute.” When Section 33(1) and Section 33(2)(b) are read jointly, it is seen that the dispute is in relation to furnishing of false information to obtain employment. When there is a dispute between employer and employee in relation to employment then an application under Section 33(2)(b) of the I.D Act before the Labour Court, is mandatory. 12. As per the submissions made by the petitioner, the respondent does not belong to Nayaka community. If a person produces a false certificate or suppresses any fact and obtains employment as well as benefit, then compliance of Section 33(2)(b) of the I.D Act, shall not be insisted upon the employer, since it is a misconduct and misrepresentation committed by the respondent. Under this circumstances application under Section 33(2)(b) is maintainable. It ought to have been accepted by the Tribunal. Just because caste certificate of family members showing their caste as Nayaka, that cannot be taken to uphold the contention of the respondent. Moreover in the instant case father of the respondent migrated from Tamil Nadu. It is to be noted that caste certificate issued by one state cannot be taken as a proof of caste in the other state. Just because caste certificate of family members showing their caste as Nayaka, that cannot be taken to uphold the contention of the respondent. Moreover in the instant case father of the respondent migrated from Tamil Nadu. It is to be noted that caste certificate issued by one state cannot be taken as a proof of caste in the other state. The domestic enquiry is held to be fair and proper and the competent authority has found that respondent belongs to Gounder which is not falling under ST. 13. The Tribunal has proceeded on the basis that family members caste certificate show their caste as Nayaka. As already stated those caste certificates cannot be taken unless they are certified by the verifying committee. 14. In the circumstances, I am of the view that the impugned order is liable to be quashed and the application filed by the petitioner for approval of termination needs to be accepted, ordered accordingly. Writ petition is accordingly disposed of. At this stage learned counsel submits that the certificate has not been cancelled. The materials on record show that respondent has misrepresented the fact that he belongs to Nayaka community. However respondent is reserved liberty to assail about validity by filing an appeal before the appellate authority.