IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 6TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.4085 of 2012 (S-DIS) BETWEEN:
THE KARNATAKA SOAPS AND DETERGENTS LIMITED (A GOVERNMENT OF KARNATAKA UNDERTAKING) REGISTERED OFFICE AND FACTORY BANGALORE PUNE HIGHWAY BENGALURU-560 055.
REPRESENTED BY ITS MANAGING DIRECTOR NOW REPRESENTED BY ITS DEPUTY GENERAL MANAGER (HRD) ...APPELLANT (BY SRI. PRASHANTH B R, ADVOCATE FOR SRI. M R C RAVI, ADVOCATE) AND:
SRI BUDAVENTI SREENIVASA MURTHY SON OF LATE B GUNDACHAR AGED ABOUT 62 YEARS RESIDING AT SR-126, SEETHARAMNAGAR, R K PURAM, SECUNDERABAD-500 056 ….RESPONDENT (BY SMT. MANJULA N. KULKARNI, ADVOCATE FOR SRI. V S NAIK, ADVOCATE FOR CAVEATOR / RESPONDENT) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 6114 OF 2008 (S-DIS) DATED: 12.06.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 12.6.2012 passed by the learned Single Judge in W.P.No.6114 of 2008 allowing the writ petition in part by modifying the impugned order of penalty of dismissal into compulsory retirement of the petitioner from service with consequential benefits, the respondent-Management has come up in appeal.
2. Parties are referred to as per their rankings in the writ petition.
3. The petitioner joined the service of the Respondent Company on 4.9.1985 as a Sales Supervisor at Bombay. He was promoted as Assistant Sales Officer on 19.6.1989 and transferred to Hyderabad Branch. He was then promoted as a full fledged Branch Manager on 6.4.1999 and continued to work. While the petitioner was working as the Branch Manager at Kanpur, the respondent-Company issued show cause notice-cum-charge sheet dated 23.9.2001 that is on Sunday and called upon the petitioner to explain with regard to the charges leveled against him as per Annexure-A. Petitioner submitted his explanation thereto on 12.10.2001 denying all the charges leveled against him and satisfactorily explaining away his conduct as per Annexure-B. Petitioner was issued with additional charge sheet dated 18.1.2002 containing additional charges. Petitioner submitted his explanation to additional charge sheet by explanation dated 29.01.2002 as per Annexure-C. The respondent being not satisfied with the explanation given by the petitioner, the Disciplinary Authority instituted Domestic Inquiry against the petitioner to enquire into the charges leveled against him. Sri. Vijay Vikram Singh, Retired District judge and Additional Secretary to the Government of India was appointed as Enquiry Officer. The petitioner requested to permit him to avail the service of any other person outside the Company in the departmental enquiry. The said request of the petitioner was turned down by the Respondent, vide endorsement dated 8.3.2009 on the plea that there is no provision in the Company’s Conduct and Discipline Action Rules, 1984 to take assistance of an outsider during the enquiry.
Upon the demise of the enquiry officer on 26.6.2002, the Disciplinary Authority appointed Sri.S.K.S. Senger, Retired Judge as the Enquiry Officer under Notification of Enquiry dated 29.07.2002. In the Inquiry proceedings the respondents examined 3 witnesses namely Sri.Anjinappa, Director (Marketing) Sri. Arun Gupta (Chartered Accountant), Sri.Sanjay Kumar Gupta, Assistant, Kanpur Branch and got marked 37 documents. The petitioner made his defence statement and examined two witnesses by name Sri. Sanjay Singh, Junior Assistant and Sri.Veda Prakash Mishra, Attender, Kanpur Branch as his witnesses. The Inquiry Officer after perusing the statement of witnesses and records held that charges leveled against the petitioner is proved and submitted his report to Disciplinary Authority.
4. The Disciplinary Authority after satisfying that charges have been proved beyond reasonable doubt, the amount of damages caused by the petitioner to the Company by his acts of omission and commission and in the interest of maintaining discipline in the company and having regard to the gravity of charges proved, vide order dated 26.3.2003, dismissed the petitioner from the Company.
5. Aggrieved by the order dated 26.3.2003 passed by the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority vide order 4.1.2008 dismissed the appeal after re-appreciating the findings given by the Enquiry Officer. The petitioner thereafter approached this court in W.P.No.6114 of 2008.
6. The learned Single Judge partly allowed the writ petition and the order of dismissal was modified as that of compulsory retiring the petitioner from service. Further issued a direction to the respondent to calculate consequential benefits and extend the same to the petitioner as admissible under law. The respondent-Company being aggrieved by the order passed by the learned Single Judge in W.P.No.6114 of 2008 has filed this writ appeal.
7. The gravity of charges proved against the petitioner is serious in nature and he has committed acts of omission and commission and has tried to pass on the responsibility on others. The nature of defence taken by the petitioner, more particularly to the charge of inaction on the part of the respondent –Company in not initiating action against the stockists wherever the cheque issued by them is returned, does not deserve any concession.
8. Considering this aspect of the matter and in the interest of maintaining discipline in the Company as charges are established beyond reasonable doubt and having regard to the nature and gravity of charges, the Disciplinary Authority has come to the conclusion that punishment imposed was just and proper. From out of the 19 charges levelled against the petitioner, all the 19 charges have been established against the petitioner. The act of the petitioner amounts to negligence and by discharging duties dishonestly caused wrongful loss to the company. The learned Single Judge without considering the gravity of charges levelled against the petitioner, has modified the order converting the order of dismissal of the petitioner into one of compulsory retirement.
9. The petitioner while discharging his duty as a Branch Manager committed financial irregularities. The Disciplinary Authority is justified in passing the order of dismissal from service. We are of the considered view that the learned Single Judge has committed an error in modifying the order of punishment of dismissal into compulsory retirement. It is settled law that in a catena of decisions that in exercising power of judicial review cannot normally substitute its conclusion on penalty and impose some other penalty.
10. The learned counsel for the petitioner has relied on the judgment of the Hon’ble Supreme Court reported in the case of B C CHATURVEDI V. UNION OF INDIA AND OTHERS reported in 1995(6) SCC 749, wherein at paragraph 18 it is held as under :-
“18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court / Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal, it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
11. The Hon’ble Apex Court has held that in exceptional and rare cases, the High court or Tribunal can mould the relief and impose appropriate punishment with cogent reasons in support thereof. But from the perusal of the impugned order, the learned Single Judge has not assigned proper reasons for moulding the relief and we also do not find that the case in hand falls under the category of ‘exceptional and rare cases’.
12. In our considered view, the learned Single Judge was not justified in modifying the order of dismissal into compulsory retirement. We are therefore inclined to interfere with the impugned order and proceed to pass the following :
ORDER Writ appeal is allowed.
The order dated 12.6.2012 passed by the learned Single Judge in W.P.No.6114 of 2008 is set aside. The Writ Petition is dismissed. The order dated 4.1.2008 passed by the Appellate Authority, upholding the order of dismissal of the petitioner from service dated 26.5.2003 passed by the Disciplinary Authority, is maintained.
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