Gujarat HC Sets Aside Reinstatement Of Worker Appointed On ST Quota With Fraudulent Certificate, Says Section 33 Breach Alone Doesn’t Decide Dismissal’s Merits

The workman was engaged as an apprentice in 1993 and later appointed as a helper/lineman.

The employer alleged that he had secured appointment against a Scheduled Tribe vacancy using an altered school-leaving certificate.

After an initial termination was quashed by the High Court, the employer conducted a departmental inquiry and dismissed him.

The workman challenged the later dismissal by a complaint under Section 33A of the Industrial Disputes Act, 1947, alleging that it was made during the pendency of a reference without the required approval.

The Industrial Tribunal ordered reinstatement with 50% back-wages.

The employer challenged that award by writ application.

Section 33A of the Industrial Disputes Act permits an employee to complain of an employer’s contravention of Section 33 during pending proceedings; the Tribunal must adjudicate the complaint as if it were a dispute referred under Section 10.

The judgment applies the two-stage approach described in Punjab National Bank Ltd. v. All-India Punjab National Bank Employees Federation and Equitable Coal Co. Ltd. v. Algu Singh: determine first whether Section 33 was contravened, and then adjudicate the merits of the dismissal, giving the employer an opportunity to justify it.

It also relies on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma for the mandatory nature of the approval requirement under Section 33(2)(b) and the consequences of non-compliance.

On caste-based appointment, the judgment applies Chairman & Managing Director, FCI v. Jagdish Balaram Bahira and R. Vishwanatha Pillai v. State of Kerala: where an appointment is obtained on the basis of a false reserved-category claim, invalidation of that claim may render the appointment void or non est.

The Court held that the employer had failed to comply with Section 33 and that the Tribunal was entitled to entertain the complaint.

But the Tribunal could not treat that breach as automatically requiring reinstatement: Section 33A required it also to examine the substantive basis for dismissal.

The High Court found that the Tribunal had failed to consider material documents which, in its view, showed that the workman had been appointed against an ST vacancy and that the caste certificate had been cancelled by the competent authority, with that cancellation left unchallenged.

Because the Tribunal had overlooked this evidence and had not properly adjudicated the merits, its reinstatement award was unsustainable.

It allowed the writ application and quashed and set aside the Tribunal’s order dated 18 January 2007 granting reinstatement with 50% back-wages.