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CASE NO.: Appeal (civil)  5358 of 2002

PETITIONER: Chief Engineer, M.S.E.B & Anr.

RESPONDENT: Suresh Raghunath Bhokare

DATE OF JUDGMENT: 17/12/2004

BENCH: S.B.Sinha, N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       Being aggrieved by the order of the High Court of  Judicature at Bombay made in W.P. No.5836 of 2001  confirming the order of the Industrial Court, Pune made in  Revision Application No. 12 of 2001 the appellant-Chief  Engineer, Maharashtra State Electricity Board and another are  in appeal before us. The facts necessary for disposal of this  appeal are as follows :         The respondent herein and some others on being  recommended by the District Social Welfare Department were  selected as line-helpers in the appellant Board. On coming to  know that the said recommendation was allegedly made  fraudulently the respondent was dismissed from service by a  letter dated 26.9.2000. Being aggrieved by the said order of  dismissal the respondent herein filed a complaint alleging  unfair labour practices under Items 1(a), (b), (d), (f) and (g) of  Schedule IV of the MRTU & PULP Act before the I Labour  Court, Pune, in Com.ULP No.145/99. The Labour Court framed  the following 3 issues : " i)      Does  the  respondent  prove  that  the  misconduct  alleged against the complainant  is  proved  on  the  basis of evidence before the Court ?

ii)     Whether the complainant proves that the  respondent has terminated the services of the  complainant by issuing the termination order dated  26/9/2000 by indulging into unfair labour practices  under item No.1(a), (b), (d), (f) and (g) of  Schedule IV of the MRTU & PULP Act 1971 ?

iii)    Whether the complainant is entitled to the relief of  reinstatement with continuity of service and with  full back wages as prayed for ?"   

         The Labour Court found all the issues against the  respondent, hence dismissed the complaint. Being aggrieved by  the said order of dismissal of the complaint the respondent  preferred a revision before the Industrial Court at Pune under  section 44 of the said Act. The Industrial Court after  considering the material on record disagreed with the finding of  the Labour Court and reversing the said order quashed the  termination of services of the respondent and directed the  appellant to reinstate the respondent with continuity of service.

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It however did not grant back wages.         As stated above a writ petition filed against the said order  of the Industrial Court came to be dismissed by the impugned  order of the High Court hence this appeal.  Mr. A.S. Bhasme, learned counsel for the appellants  addressed lengthy arguments in support of the appeal and has  also filed written submissions. He has contended that the  respondent has played a fraud probably in collusion with the  District Social Welfare Officer and has obtained an  appointment through back door entry hence the respondent is  not entitled to reinstatement. He also relied upon the judgment  of this Court in the case of Vice-Chairman, Kendriya Vidyalaya  Sangathan & Anr. vs. Girdharilal Yadav (2004 6 SCC 325),   Ram Chandra Singh vs. Savitri Devi & Ors. (2003 8 SCC 319)  and Secretary, A.P. SWRE I Society vs. J.Prathap & Ors. (2002  10 SCC 430) to contend that misrepresentation by itself would  amount to fraud therefore an appointment based on  misrepresentation gets vitiated because of such fraud. On the  contrary Mr. M.D. Adkar, contended that the act of the  appellant in terminating the services of the respondent clearly  amounted to unfair labour practice as contemplated under the  MRTU & PULP Act, 1971. He submitted though the Labour  Court erroneously rejected the complaint of the respondent the  revisional court had properly taken into consideration all  material facts and given relief to the petitioner which has been  affirmed by the High Court hence this Court should not  interfere with the said orders of the authorities below.  The entire basis of the dismissal of the appellant depends  upon the factum of the alleged misrepresentation attributed to  the respondent. The Industrial Court in its impugned order has  noticed the fact that the respondent was appointed in April,  1994 pursuant to the selection procedure followed by the  competent authority and that he was selected by the panel of  Selection Committee consisting of 6 members which included  the very same Social Welfare Officer who had sent the proposal  including the name of the respondent for appointment. It also  noticed the fact that the selection in question was made after an  oral interview and the required test as also the medical  examination. The Industrial Court also noticed the fact that the  appointment of the respondent was confirmed after 1 year  period and thereafter the respondent has been working without  any complaint. Said Industrial Court also noticed the fact that  the termination of the respondent was based on a show-cause  notice issued on 5.7.1999 which was replied to by the  respondent on 17.7.1999 and the termination was made in a  summary procedure permissible under Rule 90(b) of the  Service Regulations. The Industrial Court after perusing the  pleadings and the notice issued to the respondent came to the  conclusion that the alleged misrepresentation which is now said  to be a fraud was not specifically pleaded or proved. In the  show cause notice no basis was laid to show what is the nature  of fraud that was being attributed to the appellant. No  particulars of the alleged fraud were given and the said  pleadings did not even contain any allegation as to how the  appellant was responsible for sending the so called fraudulent  proposal or what role he had to play in such proposal being  sent. It also noticed from the evidence of Mr. Waghmare, Social  Welfare Officer who sent the proposal before the Labour Court  that he did not utter a single word as to whether the said  supplementary list was ever called for by the Department  concerned or not. Thus applying the basic principle of rule of  evidence which requires a party alleging fraud to give  particulars of the fraud and having found no such particulars the  Industrial Court came to the conclusion that the respondent  could not be held guilty of fraud. Said finding of the Industrial

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Court has been accepted by the High Court. Mr. Bhasme  though contended that the fraud in question was played in  collusion with the Social Welfare Officer and 2 other  employees of the Board and action against said 2 employees of  the Board has been taken, but by that itself we are unable to  accept the argument of Mr. Bhasme that there is material to  support the contention of the Board that the appellant had also  contributed to making the misrepresentation at the time of  applying for the job with the Board. In the absence of any such  particulars being mentioned in the show cause notice or at the  trial, attributing some overt act to the respondent, we do not  think the Board can infer that the respondent had a role to play  in sending a fraudulent list solely on the basis of the  presumption that since respondent got a job by the said  proposal, said list is a fraudulent one. It was the duty of the  Board to have specifically produced the material to prove that  the respondent himself had the knowledge of such a fraud and  he knowingly or in collusion with other officials indulged in  this fraud. Since there is no such material on record, on the facts  of the instant case, the Industrial Court and the High Court have  come to the right conclusion that the alleged fraud has not been  established by the appellants, hence, this is not a fit case in  which interference is called for. This appeal, therefore, fails and  the same is dismissed.