Harpal v. The Presiding Officer, Labour Court, Vi, Delhi Another

1. By this writ petition, the petitioner has challenged the validity of award dated 15th December, 1998 passed by the Labour Court No. VI, Delhi in ID NO. 28 of 1995 whereby the Tribunal upheld the termination of the services of the petitioner.

2. Briefly the facts are that the petitioner was employed by the respondent with effect from 1.7.1985 as a Beldar on daily wages/muster roll employee. He had given a school leaving certificate at the time of his employment that he was 5th class pass and his date of birth was 27th July, 1965. It seems that for considering regularization or absorption of the petitioner, the respondent got verified the certificate submitted by him from the school. On verification, the respondent learnt that the petitioner had submitted a forged certificate about his qualifications and date of birth at the time of his appointment. His actual date of birth was 27.7.1969 and he was studied up to 3rd Class when he left the school. After making enquiry about his certificate and qualifications and learning that he had submitted a forged certificate, following show-cause notice was served upon him:

Shri Har Pal while working as Beldar on Muster Roll under E.E.(E&M) Water North during the year, 1984 committed the following acts of omission and commission:

1. That Shri Harpal obtained the job of Beldar on Muster Roll in Delhi Water Supply & Sewage Disposal Undertaking on the basis of bogus certificate in respect of qualification and ago. The contest of the certificate produced by Shri Har Pal were got verified from the Head Master, MCD, Primary School, Uttam Nagar-II(old) New Delhi -110059. The head Master informed vide his letter dated 24.12.90 and 18.7.91 that the date of birth of Shri Harpal as per school record was 27.7.69 and he was studying in 3rd Standard when he left the school. the certificate produced by Shri Harpal of having passed 5th Standard showed his date of birth as 27.7.65. this manipulation was done by him to cover his under age and less qualification. Thus, it is evident that Shri Harpal cheated the department and obtained the job fraudulently in Delhi Water Supply & Sewage Disposal Undertaking submitting the bogus educational certificate.

From the foregoing, it is evident that Shri Harpal failed to maintain absolute integrity and devotion to duty.

3. The workman, on receipt of above memo, submitted his reply dated 29.9.93. He denied the allegations and took the stand that he had submitted a certificate of class 3rd Standard, showing his date of birth as 27.7.69 and he had not submitted the alleged certificate. After considering his reply, the respondent dismissed the petitioner from service. The petitioner raised an industrial dispute which was referred for adjudication to the Industrial Tribunal in following terms:

Whether the termination of Shri Har Pal from service is illegal and/or unjustified and if so, what relief is he entitled and what directions are necessary in this respect?

4. The petitioner, before the Tribunal, contended that no domestic enquiry was held for the charges levelled against him and he was terminated without holding a domestic enquiry and his termination was bad. The Tribunal held that the petitioner was only a casual employee and in view of Himanshu Kumar Vidyarthi v. State of Bihar 1997 IV ADSC 196's case, the termination of a daily wager could not be said to be in violation of Section 25F of the Industrial Disputes Act. The Tribunal also held that doctrine of 'equal pay for equal work' did not apply in this case and the petitioner was not entitled for equal pay or for reinstatement and passed the award. The award has been challenged by the petitioner on the ground that Himanshu Kumar's case(supra) was not a good law in view of the subsequent judgments of the Supreme Court. The petitioner, being a daily wager, was entitled to protection under section 25f of the i.d. act since he had worked for more than 240 days continuously.

5. I find that the basic issue in this case was not dealt with either by the Tribunal nor has been raised by the petitioner. The basic issue in this case was whether the services of the petitioner could be terminated without domestic enquiry. The petitioner, in his statement of claim as well as in his writ petition, submitted that he had given his correct certificate of date of birth as well as school leaving certificate. However, this contention of the petitioner, on the face of it, is false. The petitioner admittedly was appointed as Beldar on 1.7.1985. Had he given his correct dated of birth as 27.7.69 and correct qualification as 3rd Standard, he could not have been appointed as Beldar. His age on 1.1.65 was less than 16 years, if his date of birth was to be considered as 27.7.69. He could not have been appointed by the DDA as a muster roll daily wage employee since he was incompetent, being minor, to enter into contract of service. As per recruitment rules of the DDA, a person who has not completed age of 18 years, cannot be appointed either as daily wager or on regular service. The minimum qualification prescribed for Beldar was 5th Standard pass. It is apparent that in order to meet the criteria for recruitment, the petitioner submitted a forged certificate giving his date of birth as 27.7.1965 and his qualification as 5th Standard pass. When this forgery came to light, a show cause memo was given to the petitioner. The petitioner's reply was considered and after considering the same, the respondent terminated the services of the petitioner. I find no infirmity in the action of the respondent. The principles of natural justice were duly complied with since after the detection of fraud, played by the petitioner, the respondent gave him a show cause memo and considered his reply. If the contention of the petitioner was to be believed, the petitioner could not have been at all employed by the respondent. It is obvious that the petitioner had obtained employment by playing fraud about his age and qualifications.

6. In a similar case of employees in railways ( UOI v. M Bhaskaran ) Supreme Court held that such orders of removal ( after detection of fraud) would amount to recalling of fraudulently obtained erroneous appointment orders. Supreme Court further observed that even independently of Rule 3(1) (i) and (iii) of the rules such fraudulent appointment orders could be legitimately treated as avoidable at the option of employer and could be recalled by the employer and in such cases, the fact of employees having continued in service for a number of years on the basis of such fraudulently obtained employment orders, cannot create any equity in their favor or any estopple against the employer. Supreme Court observed that no Court should be a party to the perpetuation of the fraudulent practice. By such fraud or intended fraud on the employer or on the appointing authority the aggrieved are all those who had similar or even better qualifications than the appointee or appointees, but who could not apply for the post because of fraud played by those who obtained appointment by fraud. It amounts to fraud on public. If by doing fraud, an appointment is obtained, such fraudulent practice cannot be permitted to be continued by a court of law in directing reinstatement of respondent workman with all consequential benefits.

7. R. Vishwanatha Pillai v. State of Kerala and Ors. , the case pertained to termination of services of the of the petitioner on the ground that he got appointment on the basis of a false caste certificate. Supreme Court observed that the right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment to the post meant for Scheduled Caste, thus depriving the genuine Scheduled Caste of appointment to that post, does not deserve any sympathy or indulgence of the Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favor. No sympathy and equitable consideration can come to his rescue. In Ram Saran v. I.G. of Police, CRPF - Supreme Court held that no leniency can be shown to a person who has obtained appointment on the basis of forged documents, otherwise it shall amount to giving premium to a person who committed forgery.

8. In view of my foregoing discussion, I find that the petitioner was rightly terminated by the respondent and the Labour Court has come to right conclusion, though for different reasons. The writ petition is dismissed. No orders as to costs.