IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.590 OF 2016 (L-TER) BETWEEN:
SMT. P S JAYASHREE WIFE OF M.R.KRISHNAMURTHY AGED ABOUT 60 YEARS #194, AISHWARYA 100 FEET RING ROAD BSK III STAGE BENGALURU- 560085.
... APPELLANT (BY SRI. K N NITISH, ADVOCATE) AND:
1. M/S. ING VYSYA BANKS LTD., BY ITS VICE PRESIDENT NO.22, M.G. ROAD BENGALURU - 560001.
2. KOTAK MAHINDRA BANK LIMITED HAVING ITS REGISTERED OFFICE AT 36-3A, NARIMAN BHAVAN 222, NARIMAN POINT, MUMBAI-400101.
HAVING ITS REGIONAL OFFICE AT 22, GROUND FLOOR, ING VYSYA HOUSE, M.G. ROAD, FM CARIAPPA COLONY, SHIVAJINAGAR, BENGALURU -560 001.
... RESPONDENTS (BY SRI. VISHWANATH R HEGDE, ADVOCATE) THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.5250/2012 DATED 12/02/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 12.02.2016 passed by the learned Single Judge in W.P.No.5250 of 2012, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India assailing the order dated 10.12.2010 passed by the Central Government Industrial Tribunal-cum-Labour Court in C.R.No.11 of 2006 and order dated 19.11.2002 passed by respondent No.1 in reference No.100-01-ER-1024. By order dated 19.11.2002 the petitioner was dismissed after holding a domestic enquiry, against which the petitioner raised a dispute in C.R.No.11 of 2006 which was dismissed by order dated 10.12.2010 of the Central Government Industrial Tribunal- cum-Labour Court. It is claimed that the petitioner joined service of the respondent-Bank as trainee by order dated 14.11.1978 and thereafter, she was placed on probation by order dated 25.09.1979. The petitioner served as Clerk at various places. When the petitioner was working as Clerk at Mangaluru, by order dated 19.07.1996 the petitioner was transferred to Bengaluru. She was relieved on 10.08.1996. The petitioner states that on the same day another order was issued directing the petitioner to report to work as Receptionist-cum-Telephone Operator. The petitioner reported to duty on 19.08.1996. From the next day i.e., from 20.08.1996 the petitioner remained absent from duty without there being any request or representation. As the petitioner without intimating remained unauthorizedly absent, the respondent-Bank initiated enquiry by issuing Article of Charge dated 13/19.12.1996 alleging unauthorized absence from 20.08.1996 till 30.11.1996. The petitioner replied stating that she was not allowed to work as Clerk and without any reason her cadre has been changed to that of Telephone Operator. Since the petitioner failed to appear before the enquiry officer, the Enquiry Officer placed her exparte and submitted his report holding the petitioner as guilty of the charges. As the petitioner remained unauthorized absent, subsequently one more Article of Charges dated 24.12.1997 was issued alleging unauthorized absence from 01.12.1996 to 15.11.1997. An Enquiry Officer was appointed and the petitioner was placed exparte before him. The Enquiry Officer submitted his report holding the petitioner guilty of charges and the report of the Enquiry Officer was forwarded to the petitioner, for which, the petitioner submitted her explanation. On considering the entire material, the petitioner was imposed with punishment of reduction of basic pay by two stages vide order dated 31.03.1999. The petitioner again remained absent, even though she was called upon to report to duty through memo dated 17.01.2002. Hence, one more Article of Charge dated 28/31.03.2002 was issued alleging unauthorized absence from 16.11.1997 to 14.03.2002. As the petitioner failed to reply, Enquiry Officer was appointed. Before the Enquiry Officer, the petitioner sought copies of documents which was furnished. Subsequently, when the petitioner request for engaging an Advocate was rejected, she remained absent. The Enquiry Officer after recording evidence of the Disciplinary Authority, submitted his report dated 01.08.2002 holding the petitioner guilty of the charges. The enquiry report was forwarded to the petitioner and she submitted her explanation dated 10.08.2002. Thereafter, the respondent- Management passed the impugned order dated 19.11.2002 dismissing the petitioner from service. Aggrieved by the same, the petitioner raised a dispute, which was referred to Central Government Industrial Tribunal-cum-Labour Court in C.R.No.11 of 2006 (for short ‘the Tribunal’).
3. The Tribunal framed preliminary issue as to whether the Domestic Enquiry conducted against the petitioner is fair and proper. After recording evidence, by order dated 05.05.2008, the Tribunal held that the Domestic Enquiry conducted by the respondent-Bank is fair and proper. Before the Tribunal the petitioner contended that she was not afforded fair opportunity during enquiry and contended that the punishment imposed is disproportionate to the alleged charge. The Tribunal by its detailed order, on examination of the material on record rejected the reference holding that the dismissal of the petitioner from service is legal and justified.
4. Aggrieved by the said order, the petitioner filed the present writ petition contending that her dismissal from service is not legal and it is not justified. It is further contended that the petitioner was never paid subsistence allowance and hence she could not effectively represent her case before the Enquiry Officer. Further it is contended that she has not remained unauthorizedly absent but there was no post of Telephone Operator for which she was posted. The learned single Judge, by order dated 12.02.2016 dismissed the writ petition as devoid of merit. Hence, the petitioner is in appeal.
5. Heard the learned counsel for the petitioner- appellant and learned counsel for the respondents. Perused the appeal papers.
6. Learned counsel for the appellant submits that the petitioner joined services in the respondent-Bank as Clerk during the year 1979 and in the year 1996 she was transferred from Mangaluru to Bengaluru as Telephone Operator. There was no post of Telephone Operator at the place, where the petitioner was posted. There was no order for change of cadre. Further it is contended that the petitioner was not paid subsistence allowance, as such, she could not effectively represent before the Enquiry Officer. The enquiry conducted is in violation of principles of natural justice and the punishment imposed is disproportionate to the alleged charge. Thus, he prays for allowing the appeal.
7. Per contra, learned counsel for the respondents justifies the order passed by the respondents. It is submitted that the petitioner remained absent from duty without intimating and without applying for leave continuously from 20.08.1996. On earlier occasion for the unauthorized absence she was punished and thereafter also the petitioner remained absent. The charge-sheet is issued to the petitioner for her unauthorized absence and she was never kept under suspension to seek subsistence allowance. Further he submits that the enquiry was conducted in accordance with law and punishment imposed is commensurate with the gravity of charge. Hence, he prays for dismissal of the appeal.
8. Having heard the learned counsels appearing for the parties and on going through the material on record including the award passed by the Central Government Industrial Tribunal-cum-Labour Court, we are of the view that the order of the learned single Judge is neither perverse nor erroneous so as to warrant interference.
9. The petitioner was working as Clerk in the respondent-Bank at Mangaluru. On her request, the petitioner was transferred from Mangaluru to Bengaluru as Telephone Operator. The petitioner on transfer reported to duty on 19.08.1996, but, from next day i.e., 20.08.1996 the petitioner remained absent without any reason. The respondents issued Article of Charges dated 13/19.12.1996 alleging unauthorized absence from 20.08.1996 till 30.11.1996. The enquiry officer held charges as proved. The petitioner remained absent subsequently also without reporting to duty. As such, the respondents issued another charge memo dated 24.12.1997 alleging unauthorized absence from 01.12.1996 to 15.11.1997. Since the petitioner remained absent, she was placed exparte before the Enquiry Officer. The Enquiry Officer held the charges as proved. As the charges were proved, the petitioner was imposed with the punishment of reduction of basic pay by two stages under order dated 31.03.1999. She was called upon to report to duty through memo dated 17.01.2002. But she failed to report to duty and she remained absent. As such, one more Article of Charge dated 28/31.03.2002 was issued. The petitioner sought copies of certain documents which were furnished to her by the Enquiry Officer. Her request for engaging an Advocate to represent before the Enquiry Officer was rejected on the ground that Management representative is not a legally trained person. Thereafter, the petitioner remained absent before the Enquiry Officer.
The Enquiry Officer after recording the evidence of the Disciplinary Authority submitted his report dated 01.08.2002 holding the charges as proved. The Management forwarded the enquiry report to the petitioner and petitioner submitted her explanation dated 10.08.2002. The management after considering the entire material on record imposed the punishment of dismissal on the petitioner.
10. On the narration of the above sequence of events and on going through the award passed by the Tribunal, it could be seen that the petitioner was given substantial opportunity at every stage of the enquiry and it is the petitioner who failed to utilize the same. The contention of the petitioner that the enquiry conducted is in total violation of the principles of natural justice cannot be accepted. The petitioner on transfer from Mangaluru to Bengaluru has remained absent continuously from 1996 to 2002. The petitioner contention that she was working as Clerk and she was posted as Telephone Operator, where there was no such post. The Tribunal has recorded a finding that the petitioner has admitted in her evidence that she earlier to joining service to the respondent-Bank, was working as Telephone Operator in the P&T Department and she knows the work of Telephone Operator. Moreover, the petitioner has not made any representation nor has sought posting as Clerk, when she reported to duty on 19.08.1996 at Bengaluru. The Tribunal, on recording of evidence has also come to the conclusion that the enquiry held by the respondent-Management is fair and proper. The appellant has failed to point out at what stage the petitioner was denied opportunity and how she was prejudiced. Hence, the contention of the petitioner that the enquiry is in violation of principles of natural justice is liable to the rejected.
11. The next contention urged by the petitioner is that she was not paid subsistence allowance and hence, she could not represent before the Enquiry Officer effectively. The said contention is also liable to be rejected for the reason that the allegation against the petitioner is that of unauthorized absence, it is not the case of the petitioner that she was kept under suspension at any stage of the enquiry. One would be entitled for subsistence allowance during the suspension period. Hence, the contention of non-payment of subsistence allowance during enquiry is not available to the petitioner. The learned counsel for the appellant further contended that punishment imposed is disproportionate to the alleged charge. The said contention is also liable to be rejected for the reason that the petitioner has remained unauthorizedly absent from August 1996 till she was dismissed from service. Even the memo dated 17.01.2002 calling upon her to report to duty has not resulted in her reporting to duty. When the petitioner has deliberately remained unauthorizedly absent for a long time, it cannot be said that the punishment of dismissal is disproportionate. The petitioner has not made out any ground to interfere with the order passed by the learned single Judge.
12. Accordingly, writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE mpk/-* CT:bms