ORDER
Prabha Sridevan, J.
1. The petitioner was working as a clerk in the second respondent Bank from 9.4.1990. On 9.11.1992 he applied to the Management to promote him as Secretary when a vacancy arises in that post. According to the petitioner, his representation was not considered and another person was appointed who did not possess the requisite qualification. Therefore, he raised an industrial dispute. The petitioner had laid his claim to be considered for promotion on the ground that he had worked in another Cooperative Society viz., Kannirasapuram Milk Producers Co-operative Society and therefore, that should be taken note of. In the document marked as Ex.M2 before the Labour Court which is the application of the petitioner, Xerox copy of the certificate dated 28.12.1988 was enclosed. This is given under the seal of the President of Kannirasapuram Milk Producers Cooperative Society one P. Subramanian. He had certified that from 1.6.1985 to 27.12.1987 the petitioner had worked as a clerk in that Society. The certificate that had been enclosed in Ex.M2 is only a Xerox copy of the original certificate. Thereafter, the second respondent appears to have been asked to give an explanation as to why the petitioner’s claim was superceded. On enquiry, the second respondent allegedly found that the petitioner had never worked in the Kannirasapuram Milk Producers Cooperative Society. The petitioner was placed under suspension pending enquiry. Charge memo was served consisting of two charges, (1) for absenting himself from duty on 5.1.1993 and 5.3.1993 and (2) the petitioner had produced a false certificate of experience in an earlier Society to gain promotion. The enquiry officer came to the conclusion that charge No. 1 was not proved but however held that charge No. 2 was proved. On the basis of the findings of the enquiry officer, the second respondent imposed the punishment of dismissal on 1.11.1993. This is the background of I.D.No. 20 of 1994 which was also dismissed and against which, the present writ petition had been filed.
2. The learned counsel for the petitioner would submit that the proceedings are vitiated for the following reasons :
The petitioner was not paid subsistence allowance. The petitioner was not allowed to peruse the documents based on which, the findings had been given. The enquiry report was not furnished to him before imposing the punishment. The punishment was excessive. The respondent Management did not establish that the certificate was false.
Reliance was placed on the decision in M. Natanam v. The Assistant Commissioner H.R. & C.E., .
3. The learned counsel for the second respondent Management on the other hand would submit that none of these grounds were raised before the Labour Court. Before the Labour Court, the petitioner did not claim to have any prejudice because of lack of opportunity nor did he complain of an unfair enquiry. The learned counsel also pointed out that in fact the petitioner was permitted to peruse the documents and he had also taken note of the same which was found a place in the award. As regards the non-furnishing of the enquiry report, the learned counsel relied on several decisions and would submit that judicial opinion regarding the consequence of the enquiry officer’s report not being furnished, has undergone several changes and at present the consistent view of the Supreme Court is that the proceedings cannot be quashed merely because the enquiry officer’s report has not been furnished unless prejudice is shown. The learned counsel also submitted that the scope of the writ Court while considering such matters is very limited and it cannot take upon itself the task of reappraising the evidence as of sitting in appeal over the award.
Following decisions were relied on:
1. The Management of T.I. Cycles of India v. C. Muthukrishnan, 1998 WLR 109.
2. Union Bank of India v. Vishwa Mohan, .
3. Mrs. Rohini Ananthanarayan v. General Manager, Bharat Heavy Electricals Ltd., Ranipet and Ors., 1997 WLR 565.
4. Syndicate Bank v. G. Venkataramani, 2001(2) L.L.J. 483.
5. State of U.P. v. Harendra Arora and Anr. , .
4. Before the second respondent, the petitioner did not mark any exhibits but however, the Management marked as many as 22 exhibits. The Labour Court came to the conclusion that the enquiry was fair and proper and answered the first issue in favour of the respondent Management. As regards the second charge, the Labour Court had held that since the petitioner has not examined the author of the certificate, the Xerox copy of which had been produced by him, it is clear that the Xerox copy is a false one and that the petitioner did not work as a clerk in Kannirasapuram Milk Producers, Co-operative Society and that he had attempted to prove that he had five years continuous experience by producing a certificate from a person who was holding an honorary post. During the enquiry, the respondent had examined two persons (1) the Secretary of the Kannirasapuram Milk Producers, Co-operative Society and (2) the Special Officer and they had also produced the wage register, the minutes of the Society and the audit reports and from this, the enquiry officer had come to the conclusion that the petitioner had not worked continuously in Kannirasapuram Milk Producers, Co-operative Society to entitle him to the promotion that he had sought for. The Labour Court came to the conclusion that the punishment that was awarded was in consonance with the misconduct committed by the petitioner since a person who gives a false certificate is bound to cause incalculable damage to others during his service. The question of payment of subsistence allowance has been correctly decided by the first respondent since even in the claim statement the petitioner does not say that he was not paid the subsistence allowance but his complaint is more with regard to the correct percentage that he is entitled to. The conclusion of the Labour Court with regard to the fair conduct of the enquiry cannot also be interfered with since the Labour Court recorded that no objections were raised by the petitioner in this regard. As regards the non-furnishing of enquiry report, it has been raised in the claim statement that it is contrary to law. But neither before the Labour Court nor in the affidavit has the petitioner shown how he is prejudiced.
5. However it is difficult to confirm the findings of the Labour Court with regard to the second issue. On the one hand, the Labour Court accepts that the certificate was issued by a person holding an honorary post and in the same breadth, the Labour Court feels the certificate as a false one. It may be that the person who issued the certificate did not have the authority to issue the certificate but that would not make it a false one. The Labour Court also failed to see that Ex.M20 was marked by the respondent which appears to be a letter written by the author of the certificate, Xerox copy of which was marked by the petitioner. If Ex.M20 has to be accepted, then the certificate cannot be false. It is always open to the respondent to accept or reject the claim of continuity of service. But if there is some evidence to show that the person who has issued the certificate acknowledges that he had in fact issued the certificate, then the certificate cannot be bogus. If the certificate is not bogus, then all that may be said against the petitioner is that without actually having been appointed in the post, he had claimed continuity of service. Ex.M20 states that the petitioner had trained the two persons mentioned in Ex.M20 to maintain the accounts in Kannirasapuram Society. If this is so, then the petitioner may have been working in an ad hoc capacity in Kannirasapuram Society without being actually appointed. These are issues which must be decided on a proper construction of Exs.M2 and M20. Further the Labour Court also ought to have decided whether the punishment awarded is excessive. The Labour Court is vested with the discretion of deciding whether a lesser punishment can be awarded or whether reinstatement shall be awarded. The Labour Court, in my opinion, ignored Ex.M20 totally. The petitioner has not shown the prejudice that was caused to him by non-furnishing of the enquiry report. So this objection is rejected. The impugned order is set aside. The matter is remanded to the first respondent for a consideration afresh in the light of the above observations. The Writ Petition is partly allowed. No costs. Consequently, W.M.P.No. 17735 of 1996 for stay is closed.