JUDGMENT
Garg, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners against the respondents on 25.4.2003 with the prayer that by an appropriate writ, order or direction, the impugned judgment and award dated 23.9.2002 (Annex.5) passed by the learned Judge, Labour Court, Bikaner (respondent No. 2) by which termination of services of the respondent No. 1 Akhilesh Kumar through termination order dated 18.11.2000 (Annex.13) was held to be improper and illegal and thus, the termination order dated 18.11.2000 (Annex. 13) was set aside and the respondent No. 1 was ordered to be reinstated back in service.
2. The case of the petitioners as put forward by them in this writ petition is as follows:
On the request of the respondent No. 1, the State Government through Notification dated 17.10.2001 referred the dispute to the respondent No. 2 Labour Court, Bikaner to the effect whether the termination of services of the respondent No. 1 Akhilesh Kumar by the petitioners through order dated 18.11.2000 (Annex. 13) was just, proper and valid or not.
After receiving the dispute, the respondent No. 2 Labour Court, Bikaner issued notices to both the parties and in pursuance of that, the respondent No. 1 filed his claim petition (Annex. 1) before the respondent No. 2 Labour Court stating inter-alia that he was appointed as work-charge LDC vide order dated 13.10.1998 (Annex.8) passed by the petitioner No. 1 Superintending Engineer (O&M) and in pursuance of that order Annex.8, he joined his duties in the office of the petitioner No. 2 Assistant Engineer and he continued to work till 18.11.2000. It was further submitted by the respondent No. 1 that during that period his pay was increased from time to time and initially he was paid Rs. 1000/- p.m. to time and initially he was paid Rs. 1000/- p.m. and thereafter, it was increased to Rs. 1200/- p.m. and then it was increased to Rs. 1700/- p.m. It was further submitted by the respondent No. 1 that through order dated 18.11.2000 (Annex. 13), his services were terminated by the petitioners and before passing that termination order Annex. 13, no opportunity of hearing was given to him and apart from this, before terminating his services through order Annex.13, compliance of mandatory provisions of Section 25F, 25(G) and 25N of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”) was not made and thus, the same was bad in law. Hence, it was prayed by the respondent No. 1 that the termination order Annex. 13 dated 18.11.2000 be quashed and set aside and he may be reinstated back in service with all consequential benefits.
A reply to the claim petition (Annex.1) submitted by the respondent No. 1 was filed by the petitioners before the respondent No. 2 Labour Court through Annex.2 and it was submitted by the petitioners that no doubt the respondent No. 1 was appointed as work-charge LDC through order Annex.8 dated 13.10.1998, but actually he should have not been appointed on that post as it was reserved for physically handicapped person and the respondent No. 1 has failed to prove his disability as per the standard fixed by National Employment Service (Annex.7) and according to the standard fixed, the respondent No. 1 must have disability to the extent of 40% or more and since the respondent No. 1 was having disability only upto 10%, therefore, he was not entitled to appointment on the post of LDC and thus, his services were rightly terminated by the petitioners through order Annex.13 dated 18.11.2000 and furthermore, before passing that termination order Annex.13, a show cause notice Annex.12 dated 15.11.2000 was also served upon the respondent No. I. Hence, it was submitted that the respondent No. 1 was not entitled to the relief sought for and his claim petition Annex. 1 deserves to be rejected.
Thereafter, both the parties led evidence in support of their respective case.
After hearing both the parties, the learned Judge, Labour Court, Bikaner (respondent No. 2) through impugned judgment and award dated 23.9.2002 (Annex.5) accepted the claim petition of the respondent No. 1 in the manner as indicated above holding inter- alia that since there was no dispute on the point that the respondent No. 1 was workman and the petitioners were employer and the dispute between them was industrial dispute and since compliance of mandatory provisions of the ID Act was not made by the petitioners before terminating the services of the respondent No. 1 through order Annex. 13 dated 18.11.2000, therefore, it was bad in law and thus, termination order Annex. 13 was set aside and the respondent No. 1 was ordered to be reinstated back in service.
Aggrieved from the said judgment and award Annex.5 dated 23.9.2002 passed by the respondent No. 2 Labour Court, Bikaner, the petitioners have preferred this writ petition.
In this petition, the main submissions of the petitioners are as follows:-
(i) That respondent No. 2 Labour Court has failed to consider that the appointment obtained by the respondent No. 1 was by way of forgery and concealment of material facts and thus, his appointment was void ab initio and therefore, provisions of the ID Act were not applicable in the case of the respondent No. 1.
(ii) That respondent No. 2 Labour Court has also failed to consider that the respondent No. 1 was having only 10% disability, which did not make him eligible to claim appointment as according to the guidelines contained in the National Employment Service (Annex.7), he must have 40% disability and therefore, from that point of view also, the impugned judgment and award Annex.5 passed by the respondent No. 2 Labour Court cannot be sustained and liable to be set aside.
A reply to the writ petition was filed by the respondent No. 1 and it has been submitted by the respondent No. 1 that he had not concealed anything as by the appointment order Annex.8 dated 13.10.1998, only a disability certificate was sought by the petitioners and in pursuance of the said appointment order Annex.8, he submitted the disability certificate Annex.9 dated 15.3.1997 and therefore, to say that he concealed the fact that he was having only 10% disability was totally wrong one and for that, his services could have not been terminated. Apart from this, in the appointment order Annex.8 dated 13.10.1998, the fact that disability should have been upto 40% was not specifically mentioned and therefore, no question of concealment of fact by the respondent No. 1 arises.
It has been further submitted by the respondent No. 1 that before terminating his services through order Annex.13 dated 18.11.2000, compliance of mandatory provisions of the ID Act was not made by the petitioners and thus, the respondent No. 2 Labour Court has rightly set aside that termination order Annex. 13 through impugned judgment and award dated 23.9.2002 (Annex.5). Furthermore, the findings of the respondent No. 2 Labour Court holding that the termination of services of the respondent No. 1 through order dated 18.11.2000 (Annex. 13) was bad in law are based on correct appreciation of evidence and materials available on record and thus, they do not call for any interference by this Court under Articles 226 and 227 of the Constitution of India. Hence, this writ petition deserves to be dismissed.
3. I have heard the learned counsel for the petitioners and the learned counsel for the respondent No. 1 and gone through the entire materials available on record.
4. There is no dispute on the point that through order Annex.8 dated 13.10.1998, the respondent No. 1 was appointed as work- charge LDC and a bare perusal of that appointment order Annex.8 reveals that only disability certificate was sought from the respondent No. 1.
5. There is also no dispute on the point that in pursuance of the appointment order Annex.8, the respondent No. 1 submitted disability certificate dated 15.3.1997 (Annex.9), which was issued by the Department of Orthopedics, Government Hospital, Ratangarh (Churu) and a bare perusal of that disability certificate Annex.9 reveals that the respondent No. 1 was a orthopedically handicapped person.
6. There is also no dispute on the point that thereafter, a fresh Medical Board was constituted for examining the disability of the respondent No. 1 and the respondent No. 1 appeared before that Medical Board and thereafter, a disability certificate Annex.10 dated 30.9.2000 was issued in favour of the respondent No. 1, in which the Medical Board opined that the respondent No. 1 was having 10% disability.
7. There is also no dispute on the point that as per the guidelines contained in National Employment Service (Annex.7), disability, which was sought, was 40%.
8. There is also no dispute on the point that before terminating the services of the respondent No. 1 through order Annex.13 dated 18.11.2000, a show cause notice Annex.12 dated 15.11.2000 was issued to the respondent No. 1 and the main ground of termination of his services as contained in the order Annex, 13 was that the respondent No. 1 was having only 10% disability, but as per guidelines contained in the National Employment Service (Annex.7), he must have 40% disability and therefore, he was not found eligible to be appointed as LDC and thus, his services were terminated.
9. There is also no dispute on the point that through appointment order Annex.8 dated 13.10.1998, only a disability certificate was sought from the respondent No. 1 and in that appointment order Annex.8 nowhere it was mentioned that he should have disability atleast upto 40%.
10. Thus, in the facts and circumstances just mentioned above, the question for consideration is whether at the time when the appointment was given to the respondent No. 1 through order Annex.8 dated 13.10.1998, he was to have disability upto 40% or not.
11. In my considered opinion, the respondent No. 1 was not required to have 40% disability because of the following reasons:-
(i) That when the petitioners have themselves sought only a disability certificate while issuing appointment order Annex.8 dated 13.10.1998 in favour of the respondent No. 1 and in compliance of the appointment order Annex.8, the respondent No. 1 produced the disability certificate Annex.9 and on the basis of that certificate Annex.9, the respondent No. 1 was given appointment and he was allowed to join duties as LDC, therefore, to say that at that time, the respondent No. 1 was required to have 40% disability cannot be accepted. Had in the appointment order Annex.8, it would have been specifically mentioned that the respondent No. 1 was required to produce certificate of having 40% disability, the position would have been different one.
(ii) That apart from this, the respondent No. 1 was got medically examined by the Medical Board to adjudge his disability and the Medical Board through certificate Annex. 10 dated 30.9.2000 opined that the respondent No. 1 was orthopedically handicapped person and his disability was found 10%. Therefore, from this point of view also, the respondent No. 1 was a physically handicapped person, which was the requirement as per the appointment order Annex.8. Had the respondent No. 1 would have not been found physically handicapped person at all by the Medical Board, the case of the petitioners could have been accepted.
12. When the respondent No. 1 was only to produce disability certificate and the same was submitted by him in the shape of Annex.9, the question arises whether by doing so, he had made concealment of facts or not and in my considered opinion, the answer is no.
13. The meaning of the word “concealment” as found in Shorter Oxford English Dictionary, 3rd Edition, Vol. I, is as follows:
“in law, the intentional suppression of truth or fact known, to the injury or prejudice of another.”
14. The word “concealment” inherently carried with it the element of mensrea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if takes out the case from the purview of nondisclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars.
15. Therefore, it can be said that for proving the concealment, the petitioners were required to prove the fact that the respondent No. 1 had concealed or intentionally or deliberately furnished inaccurate particulars about his disability and this aspect is missing in this case as the certificate, which was sought by the petitioners through appointment order Annex.8, was only a disability certificate and the same was produced by the respondent No. 1 in the shape of Annex.9. Hence, it cannot be said that by producing certificate Annex.9, the respondent No. 1 had concealed any fact.
16. Thus, the present case is not a case of concealment of material facts or misrepresentation of facts by the respondent No. 1.
17. So far as the ruling relied upon by the learned counsel for the petitioners in Union of India and Ors. v. M. Bhaskaran, 1995 Supp(4) SCC 100, is concerned, in my considered opinion, that ruling would not be helpful to the petitioners because in that case, the petitioners of that case obtained employment on the basis of bogus and forged documents and the position in the present case is altogether different one as from every point of view, the respondent No. 1 was a physically handicapped person.
18. So far as the findings of the respondent No. 2 Labour Court holding that before terminating the services of the respondent No. 1 through order Annex. 13 dated 18.11.2000, compliance of mandatory provisions of ID Act was not made by the petitioners and therefore, termination of services of respondent No. 1 vide order Annex. 13 was bad in law are concerned, in my considered opinion, since they are based on correct appreciation of evidence and materials available on record and they do not suffer from any basic illegality or infirmity, therefore, no interference is called for with the same in exercise of powers under Articles 226 and 227 of the Constitution of India.
19. For the reasons stated above, there is no force in this writ petition and the same deserves to be dismissed.
Accordingly, this writ petition filed by the petitioners is dismissed. No order as to costs.