IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. L NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR W.A. NO. 4252 OF 2015 (S-DIS) BETWEEN:
SRI. G. RAMASWAMY S/O GANGAIAH AGED ABOUT 50 YEARS WORKING AS EXECUTIVE ENGINEER (O & M DIVISION), CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY (CHESCOM), CHAMARAJANAGAR R/AT NO.163, VIVEKANANDA BLOCK TEACHERS LAYOUT, YERGANAHALLI MYSURU-570 029 …APPELLANT (BY SRI. M.SIVAPPA, SENIOR COUNSEL FOR SRI. S. ANIL KUMAR, ADVOCATE) AND:
1. MANAGING DIRECTOR & DISCIPLINARY AUTHORITY HUBLI ELECTRICITY SUPPLY COMPNAY LTD. (HESCOM) NAVANAGAR, P.B. ROAD HUBLI-580 025 2. MANAGING DIRECTOR & APPELLATE AUTHORITY KARNATAKA ELECTRICITY SUPPLY COMPANY LIMITED CAUVERY BHAVAN BANGALORE-560 001 ...RESPONDENTS (BY SRI. A CHANDRA CHUD AND SRI. MADHAN , ADVOCATE FOR R1 & R2 ) **** 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.8198/2015 DATED:07.08.2015.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY ASHOK G. NIJAGANNAVAR J., PRONOUNCED THE FOLLOWING:
JUDGMENT This Appeal is preferred for setting aside the order dated 07.08.2015 passed by the learned Single Judge in W.P. No.8198/2015 (S-DIS).
2. The facts briefly stated are that the appellant was working as the Executive Engineer in ALDC Branch, Hubli Electricity Supply Company Ltd., (for short ‘The HESCOM’) at Hubli. The appellant had applied for casual leave as he was suffering from toothache, therefore, he had gone to Mysore for taking treatment. The appellant had sent leave application through fax. During the period of absence, the appellant was suspended from service by an order dated 29.09.2012. Thereafter, the charge sheet was filed on the allegations of unauthorized absence for two months and for violation of the procedure as per Regulations 106 to 120 of the Karnataka Electricity Board Employees Service Regulations, 1996. After enquiry, the report was submitted by the Enquiry Officer, subsequently, a show cause notice was issued. The appellant replied to the said notice, but the respondent No.1 – Managing Director and Disciplinary Authority passed the penalty order dated 23.07.2013. Being aggrieved by the said order, the appellant preferred department appeal, but it was dismissed and the penalty order was confirmed. Hence, the appellant had challenged the said order in W.P. No.8198/2015 (S-DIS). On hearing the parties, the Writ Petition was dismissed. Being aggrieved by the said order, the appellant has come up in appeal.
3. The learned counsel for the appellant strenuously contended that the impugned order dated 07.08.2015 is not in accordance with law. The learned Single Judge has failed to consider that the appellate authority has not appreciated the explanation offered by the appellant and the records submitted in support of his absence from duty due to medical reasons. The appellant was not given adequate opportunity and the order was passed by the appellate authority in a mechanical way confirming the order passed by the disciplinary authority. Imposing punishment without holding enquiry is contrary to the service regulation of the respondent authority. The entire approach of the disciplinary authority and also the appellate authority is contrary to the records and principles of natural justice. The learned Single Judge has proceeded on the ground that the appellant ought to have examined the official superiors, which is not the case before the disciplinary authority and appellate authority. The learned Single Judge has erred in holding that the appellant has tried to compare his case with that of one Mr. V.S.K. Rangan, which is not proper and correct. The conclusion drawn is erroneous. The disciplinary authority and appellate authority have failed to consider the grounds urged by the appellant for his absence, but the same was not considered by the learned Single Judge. As such, the impugned order calls for interference.
4. Per contra, the learned counsel for the respondents submitted that there are no valid reasons for interfering with the order passed by the learned Single Judge. There was no justification whatsoever for unauthorized absence of the appellant. The reasons assigned for unauthorized absence are not supported by convincing evidence. The materials placed on record clearly goes to show the violation of the Regulations 106 to 120 of the Karnataka Electricity Board Employees Service Regulations, 1996. The appellant being the senior and responsible officer, had gone on long leave without making in charge arrangements which has affected the work of the Company. The conduct of the appellant amounts to disobedience and dereliction of duty towards the company service and violation of service regulations. As such, the order passed by the learned Single Judge is perfectly legal and justified.
5. In the writ petition the claim of the petitioner for setting aside the penalty order dated 23.07.2013 imposed by respondent No.1 was rejected mainly on the following grounds -
(a) The petitioner proceeded on leave in violation of the procedure as per the regulations 106 to 120 of the Karnataka Electricity Board;
(b) The medical grounds urged by the petitioner were not supported by cogent evidence; and (c) The principle of parity cannot be applied as no material is placed on record to compare the case of the petitioner to the case of one Mr. V S K Rangan.
6. The first and foremost contention of the appellant is that the appellant was compelled to go on leave on health grounds and it was not unauthorized absence. The punishment imposed by the disciplinary authority is disproportionate.
7. Under regulation 106 to 120 of the Karnataka Electricity Board Employees Service Regulations, 1996, the leave application has to be sanctioned by the competent authority, after obtaining the permission from the superior officers the concerned official has to hand over the charge before going on leave. But in the present case no such compliance is there. Even according to the appellant he proceeded on leave by informing his superior officer namely, the Superintending Engineer, but no evidence is forthcoming in this regard. After holding the thorough enquiry the Enquiry Officer submitted the report, after considering the entire records it is held that the appellant has failed to prove that the appellant has proceeded on leave by informing the superior officers and also by handing over the charge. Therefore, the learned Single Judge has rightly held that the plea of the appellant in this regard is unacceptable.
8. The reason assigned for proceeding on leave immediately is the medical ground. According to the appellant he had to take treatment from the Dentist, as such he had to go to Mysuru in an inevitable situation. The appellant in his reply dated 18.02.2003 addressed to the Managing Director and Disciplinary Authority has stated that the Dentist advised that all his teeth require treatment, another doctor gave temporary treatment for his piles problem and the date for operation of piles problem and dental problem will be decided after toothache is cleared. Thus he had to avail leave from 1.8.2012 to 31.8.2012 and from 1.9.2012 to 30.09.2012. But all these contentions are not at all supported by the medical records. Thus, the learned Single Judge has rightly observed that the reasons assigned by the appellant are not at all justified.
9. The next contention of the counsel for the appellant relates to the disproportionateness of the punishment imposed by the Disciplinary Authority. As far as this issue is concerned, the appellant has tried to justify his absence and also trying to compare his case with that of one Mr. V S K Rangan, but no material is placed on record to show that in a similar circumstances the Disciplinary Authority had shown leniency to Mr. V S K Rangan and the said Disciplinary Authority has made discrimination against the appellant. The learned Single Judge has observed that the case of misconduct has to be examined in the peculiar facts and circumstances of each case. Therefore, no universal principle of law can be laid down in the case of an employee who goes on long leave on medical grounds. As already stated above there is a clear violation of the regulation of 106 to 120 of the Karnataka Electricity Board Employees Service Regulations, 1996. The appellant being at fault is trying to claim the leniency in imposition of the penalty on the ground of principles of parity which is not at all proper and justified. Thus, there are no valid grounds to interfere with the impugned order.
10. For the foregoing reasons, we find no merits in the writ appeal. It thus fails and is accordingly dismissed.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE SJ/ykl