IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION No.9886 OF 2008 (L-TER) BETWEEN:
CANARA BANK A BANKING COMPANY CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKINGS ACT), 1970 REPRESENTED BY ITS ASST. GENERAL MANAGER CIRCLE OFFICE, BANGALORE RURAL #86, M.G. ROAD BANGALORE – 560 001 ... PETITIONER (BY SRI. N.S. PRASAD, ADV.) AND:
SRI. UMAPATHY S/O LATE SRI. MUNI VENKATAPPA NO.146, SANTHE MAIDANA BADAVANE KOLAR – 563 101 ... RESPONDENT (BY SRI.K.R. GANESH RAO, ADV.) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 15.02.2008 IN C.R.NO.39/2004 PRONOUNCED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, BANGALORE PRODUCED AS ANNEXURE – E TO THIS PETITION AND ETC., THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER The petitioner had remained absent for about 53 days from 16.08.1999 to 07.10.1999. Since it was in contravention of Chapter XI, Regulation 3(r) of the Canara Bank Service Code as the respondent was continuously absent in excess of 30 days, the petitioner punished him in accordance with law by issuing the charge sheet against the respondent for his unauthorized absences and after conducting domestic enquiry, the respondent was found guilty of the charges, he was punished with reduction of annual increments. Now, the respondent again was unauthorizedly absent for as many as 1245 days for which the chargesheet has been issued and after conducting domestic enquiry, the petitioner has dismissed him from service after following the procedure as per the proceedings of the disciplinary authority dated 21.10.2000.
2. Aggrieved by the same, respondent preferred an appeal to the Appellate Authority on 18.12.2000. After hearing, the Appellate Authority dismissed the appeal confirmed the dismissal order.
3. Aggrieved by the same, the respondent raised dispute before the Central Government Industrial Tribunal- Cum-Labour Court in Cr. No.39/2004. The same came to be disposed of by the Tribunal on 15.02.2008 directing the petitioner bank to reinstate the respondent into service with 50% of the back wages from the date of dismissal till the date of his reinstatement in its services with continuity of service and all other consequential benefits withholding his three annual increments with cumulative effect from the date of impugned punishment order onwards. Against which, the petitioner bank has preferred this writ petition.
4. Learned counsel for the petitioner-bank submitted that the order passed by the Tribunal is perverse and same is liable to be set aside. The order of dismissal is in accordance with law and consequently the Tribunal committed an error in not referring to the previous instance where he was punished for unauthorized absence for 1245 days and the case of the management has been proved by examining the management witnesses and documents have been marked. Hence the impugned order passed by the Tribunal is perverse and liable to be set aside.
5. The learned counsel for the petitioner has also relied upon the Judgment of the Supreme Court in the case of Central Industrial Security Force and Ors. v. Abrar Ali, AIR 2017 Supreme Court 200 wherein in para-10 of the judgment it is held as follows, “10. Charge No.3 was that the Respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days salary earlier. The Disciplinary Authority found that the Respondent did not improve in spite of being punished earlier. The High Court agreed with the contention of the Respondent and held that a fresh enquiry cannot be initiated into a misconduct for which a delinquent had already suffered a penalty. The High Court found that any penalty imposed under Charge No.3 would amount to double jeopardy. We disagree with the finding of the High Court as we are of the view that the Respondent was not being tried again for previous misconduct. As the Respondent did not improve in spite of being punished earlier and had become habitual in indiscipline and disorderliness, the Disciplinary Authority rightly found Charge No.3 as proved. The desirability of continuance of the Respondent was considered on the basis of his past conduct which does not amount to double jeopardy. In any event, past conduct of a delinquent employee can be taken into consideration while imposing penalty. We are supported in this view by a judgment of this Court in Union of India v. Bishamber Das Dogra, reported in (2009) 13 SCC 102 : (AIR 2010 SC 3769, Para 25) held as follows:
“30. ……But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.” ”
6. Relying on the same, the learned counsel for the petitioner submitted that the previous conduct of the petitioner is to be taken into consideration while passing the order of reinstatement. The petitioner was absent for 53 days on the last occasion and he has been punished. The Tribunal has not taken into consideration of the same.
7. He also relied upon the decision in the case of Chief Executive Officer, Krishna District Cooperative Central Bank Limited and Another vs. K. Hanumantha Rao and Another, reported in (2017)2 Supreme Court Cases 528 and submitted that the enquiry held against the respondent is just and proper and question of interference by this Hon’ble Court does not arise. If at all any irregularities are found by the Tribunal, at the most the matter can be remitted back to the management for proper imposition of penalty. The order of the Tribunal is in contravention of ratio laid down by the Hon’ble Supreme Court in the above cited case.
6. The learned counsel for the respondent sought to dismiss the writ petition. It is submitted the subject matter of unauthorized absence of 53 days is a previous absence and in respect of the same the enquiry has been held and petitioner was punished. The same should not be taken into consideration now as it amounts to double jeopardy and it also submitted the punishment of dismissal from service is disproportionate to the gravity of the offence for which he has referred the decision in the case of Lucknow Kshetriya Gramin Bank (now Allahabad, Uttar Pradesh Gramin Bank) and another vs. Rajendra Singh reported in (2013) 12 Supreme Court Cases 372 wherein in para 17 it is held as follows:-
“17. If there is a complete parity in the two sets of cases, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav case(4), already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should be commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. case(2) even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employees accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology.”
7. It is submitted by the learned counsel for the respondent that for his unauthorized absence for 53 days, he has produced medical certificate to the effect that he has suffered Tuberculosis. The production of medical certificate and genuiness of the same has not been disputed. The code of the bank provides for production of medical certificate in case if the employees unauthorizedly absent from service. The Enquiry Officer should have examined the same. Despite examining the same, the same has not been considered and however the petitioner has been punished arbitrarily and it violates Articles 14 and 16(1) of the Constitution of India. In respect of similar case where one of his colleague Maheshwarappa who is aged 53 years, in the appeal filed by him, the punishment of dismissal was reversed into reduction of three increments. Hence, dismissal of the petitioner from service is arbitrary and illegal as the similarly placed person one Maheshwarappa whose punishment of dismissal was modified with that of reduction of three increments.
8. It is undisputed fact that the petitioner was unauthorizedly absent for 53 days in the year 2013. By virtue of the award under Section 17(b) of ID Act, the petitioner’s service has been completed and now reinstatement cannot be done and he has been relieved from service. In the light of the fact that respondent had been retired from service, a question of reinstatement does not arise. I find that 50% of back wages to the respondent would come to around Rs.7 lakhs as submitted by the respondent. Hence, under these circumstances this court is of the opinion that reversing the order of the labour/industrial Tribunal may not be appropriate in view of the judgment reported in (2017) 2 SCC 528. But in the case of this nature for the previous unauthorized absence, the enquiry was held and respondent was punished by imposing punishment of withholding increments. When he has already punished for the previous misconduct, the question of referring the same now may not be appropriate. For the previous unauthorized absence for 53 days, the respondent has explained his cause for unauthorized absence and produced Medical Certificate as provided under the Canara Bank Service Code stating that he has been suffering from Tuberculosis and for which period he was under treatment. The issuance of such certificate and its genuiness has not been disputed by the petitioner bank. When in similar case where one Maheshwarappa who was standing on the same footing, his dismissal order was reversed into reduction of increment, the petitioner cannot be punished with the order of dismissal as otherwise it is violative of Article 14 of the Constitution of India. Hence, for the aforesaid reasons, writ petition filed by the petitioner-bank is rejected.
Sd/- JUDGE NM/LL