If employee has not disclosed: Higher educational qualification, it is not misconduct

>>> Whether omitting to disclose information regarding higher academic qualification than required for vacant post amounted to misrepresentation / misconduct?

Has such omission caused harm to employer?

If such guilt is discovered, it justifies termination of employment?

The Management charge sheeted the employee for misrepresentation and dismissed him from service, after discovering guilt in the departmental proceedings.

However, in the reference to the labor court, the court set aside the dismissal of the workman and awarded reinstatement.

The Bank preferred a Writ petition against the award.

The High Court held that the employee made no misrepresentation to the bank nor caused any harm to it. Therefore, there is no misconduct on part of employee. Hence, his dismissal is highly unjustified.

 The writ petition was dismissed with exemplary cost.

>>> Middle pass needy Jai Kishan (respondent No.2) had applied for post of Peon with Bank of Baroda through his application submitted in February 2000. On being found eligible, respondent No.2 was appointed as a Peon during March 2000. He had hardly been into the service, when a complaint was received by the Bank alleging that respondent No.2 had concealed his actual academic qualifications to get this appointment. The allegation was not that respondent No.2 did not have the requisite educational qualification or that he had misled the Bank in any manner. The complaint was that he was in fact more qualified being matriculate but has mentioned his qualification to be 8 th standard pass. This was construed to be a misconduct on his part and enquiry ordered against him. Finding, the complaint to be correct, the petitioner Bank acted against respondent No.2. It was revealed that respondent No.2 had appeared in the matriculation examination in the year 1991-92 but had not qualified. Strangely, the Bank still decided to charge sheet respondent No.2 for making false statement and for concealing material facts regarding his qualifications. Was this a misconduct committed by respondent No.2 and serious enough to charge sheet him and ultimately to dismiss him from service? This question would certainly agitate any right thinking mind.

In any case, how this would amount to a chargeable misconduct, was a question, which perhaps did not invite attention of either the Bank or the Enquiry Officer. Respondent No.2 must have rightly felt agitated and aggrieved against this highly whimsical and arbitrary action against him, leading to his dismissal. Losing a job for a person, who was working as a Peon, would certainly have been a cause of great hardship to survive. The competent Appellate Authority also failed to see reason and had rejected the appeal. Respondent No.2 was, thus, left with no alternative but to seek reference of an industrial dispute. When the conciliation failed, the Central Government referred the dispute in regard to termination of respondent No.2 for adjudication to the Labour Court. The Labour Court saw sense and has set-aside the order of termination directing reinstatement of respondent No.2 vide an award passed on 6.8.2007. Unsatisfied petitioner-Bank has chosen to file the present writ petition to impugn the said award………………………………The only response which he could make was that respondent No.2 had provided a misleading information while seeking the employment and had filed an affidavit also, which was false and as such, the misconduct was enough to order his dismissal…………..The counsel for the petitioner-Bank had highlighted the information given by respondent No.2 in his affidavit that he had not studied beyond 9 th Class and never took admission or appeared in 10th Class from any school or Board…….

How this could be considered to his disadvantage or as dis-qualification for employment is hard to understand. The Bank was totally unjustified in proceeding against respondent No.2 and then to dismiss him from service. In any event, the punishment is highly excessive which in itself may be an indication of bias. All the above noted and relevant consideration while dealing with the case were ignored by the authority. The Bank, in my view, has not acted in a fair and just manner against a poor employee, who has been dragged to this Court and, thus, made to spent substantial sum of fortune. A poor peon has been made to fight an unequal battle by the Bank without any justifiable cause. There is no merit in the writ petition and the same deserves to be dismissed with an exemplary costs for making the poor person to come upto this Court.

CIVIL WRIT PETITION NO.10307 OF 2009 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JUNE 30, 2010
Bank of Baroda, Chandigarh .....Petitioner
VERSUS
Presiding Officer, Central Government Tribunal, Chandigarh & another ....Respondents

>>> The Bank with vast resources at its disposal has come to challenge the award passed by the Labour Court, allowing the reference of a dispute regarding termination of respondent No.2 from the services of the Bank. Respondent No.2 was appointed as part time Caretaker for a Guest House of the Bank for a temporary period of three months on 16.11.2002. The education qualifications for the post of Frash/Peons/Drivers as laid down in the Bank at the relevant time were 8 th pass and below 10th Class. Respondent No.2 had applied for the post, stating that his qualification was 10th fail. On 18.2.2003, respondent No.2 was appointed on permanent basis. It is alleged that he had furnished a false affidavit stating that he is 8 th Class pass and below SSCC i.e. 10th Class.

Respondent No.2 continued to work, when a complaint was received on 3.5.2005 to the effect that said respondent had already passed 10+2 examination in the year 2002 before joining the temporary service of the Bank and, thus, he had obtained this job on the basis of false averments.

The matter was thoroughly investigated by the Bank and on the basis of the investigation report, show cause notice was served on respondent No.2, who admitted his fault. The reason given by respondent No.2 in this regard is that he did so for getting an employment. The petitioner charge sheeted respondent No.2 and directed regular enquiry. On the basis of enquiry report, punishment of removal from service was proposed. The appointing authority, considering the seriousness of the allegation, passed ordered removing respondent No.2 from service.

He accordingly raised an industrial dispute, which was referred for adjudication to the Labour Court. The Labour Court, though has held that the allegation against respondent No.2 stood established on account of his admission of guilt but has set-aside the punishment of removal on the ground that the same was disproportionate to the alleged misconduct.

The Bank has accordingly filed this petition to challenge the said award.

The submission of counsel for the petitioner may to an extent be justified as in the present case respondent No.2 has admitted his guilt.

No doubt, the petitioner did not disclose the complete facts about his qualification. Desperation to get job is the reason which can not be completely ignored. How desperate a person is to get a job that he can hide information about his qualification. The fact of not disclosing the complete qualification would not make respondent No.2 to be ineligible for appointment or would not reveal such a misconduct, which should invite removal from service.

This would not justify the action of respondent No.2 but is to take stock of hard realities of life. The courts can not be unmindful of hard realities of life. Courts have to be pragmatic and adopt realistic approach.

The plea of the petitioner-Bank to seek judicial review of the order passed by the Labour Court is required to be assessed in the parameters of permissible ground of judicial review. Judicial review generally speaking is not directed against a decision but is directed against a decision making process.

The punishment can not be vindictive or unduly harsh. It should not be so disproportionate to the misconduct alleged as to shock the conscious and amount in itself to conclusive evidence of bias.

It can be observed that the Court can see if punishment is commensurate with the proved misconduct. The penalty is, thus, not immune from correction while exercising judicial review. Seen in this context and the background of the allegation made against respondent No.2, the punishment of removal from service appears to be harsh and disproportionate and, thus, rightly needed correction, which was accordingly done by the Labour Court. I am, therefore, not inclined to interfere in exercise of writ jurisdiction. The writ petition is accordingly dismissed in limine.

CIVIL WRIT PETITION NO.21465 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: DECEMBER 08,2010
State Bank of Patiala, Patiala .....Petitioner
VERSUS
Central Government Industrial Tribunal-cum-Labour Court,
Chandigarh and another....Respondents