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2024. KHC-D:10641 WP No.104702 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE26H DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO.104702 OF2023L-ID) BETWEEN: ANWARBHASHASAB S/O. MARDANSAB SARAGI, AGE:
43. YEARS, OCC: DRIVER, R/O: NEAR GOVT. COLLEGE, BEHIND H.P. GAS AGENCY, KOPPAL ROAD, MUNDARGI, PRESENTLY AT HOUSE NO.1917, ANNADANESHWAR NAGAR, 2ND CROSS, TQ & DIST: GADAG – 582 118. …PETITIONER (BY SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE) AND: THE DIVISIONAL CONTROLLER, NEKRTC, HOSAPETE DIVISION, HOSAPETE, DIST: VIJAYANAGAR – 583 201. …RESPONDENT (BY SMT. VEENA HEGDE AND SMT. CHITRA GOUNDALKAR, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT, ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER
DATED2202.2013 BEARING SL.No.EKARASAA.HOV. SIBANDI: GAIHA/274/12/1092/2012-13 PASSED BY THE RESPONDENT VIDE ANNEXURE-A, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
ON0207.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING; - 2 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 ORDER
1 The petitioner – workman is before this Court, seeking for the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari by quashing the order dated 22.02.2013 bearing Sl. No.EKaRaSaa. HoV. Sibandi: Gaiha/ 274 / 12/ 1092/ 2012-13 passed by respondent vide Annexure-A, in the interest of justice and equity. (ii) Issue a writ, order or direction in the nature of certiorari by quashing the order dated 30.01.2015 passed in KID No.78/2013 by the Hon’ble Labour Court vide Anneuxre-B, in the interest of justice and equity. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent to pay the increments for the year 2013 to 2016, in the interest of justice and equity. (iv) Pass such other order or orders that are deemed fit under the facts and circumstances of the case.
2. The case of the petitioner is that, he was appointed as a Driver in the respondent – Corporation. That, a charge memo was issued to him alleging that, he was absent for a period of 44 days without sanction of - 3 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 leave between 13.07.2012 to 09.08.2012. An enquiry was conducted by the respondent – Corporation, wherein the petitioner was held to be on unauthorised absence. Consequently, he was dismissed from service, vide order dated 22.02.2013, as per Annexure-A. Aggrieved by the same, the petitioner filed a claim petition before the Labour Court, Hubballi in KID No.78/2013 contending that, the order of dismissal was illegal and the enquiry that was held by the respondent – Corporation was not fair and proper. He also contended that, he was not gainfully employed anywhere and he had no source of income, for his livelihood. Accordingly, sought for setting aside of the order of dismissal, dated 22.02.2013 and prayed for his reinstatement into service with full back wages and continuity of service along with consequential benefits.
3. That, the Labour Court, while answering issue No.1, regarding fairness of the domestic enquiry in the affirmative, however held that the order of dismissal from service was disproportionate to the alleged misconduct.-. 4 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 Accordingly, the Labour Court set aside the order of dismissal and directed the respondent – Corporation to reinstate the petitioner into service with continuity of service without back wages by withholding two increments with cumulative effect, by order dated 31.01.2015. Being aggrieved by the same, the petitioner is before this Court.
4. Learned counsel appearing for the petitioner reiterating the grounds urged in the memorandum of petition submitted that: (a) The respondent – Corporation had illegally and erroneously refused to grant leave, though sufficient leaves were available to the credit of the petitioner. That, he had through telegram, produced at Ex.W17 had sent the application for leave, as he was suffering from illness and the Doctor had advised him a complete bed rest, and that, though the Labour Court having taken note of the petitioner having made such application through telegram, failed to - 5 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 consider the same. Thereby erred in holding that, the petitioner was unauthorisedly absent. (b) That, the petitioner was suffering from allergic bronchitis asthma, hypertension with lumber spondylolithasis and since, the petitioner was required to drive the Bus, his neck and back being weak due to the illness, was unable to attend to his duty. The petitioner was thus temporarily incapacitated, as such, he could attend the duty. (c) That, the order of dismissal from service being one without material evidence and though, the Labour Court has set aside the order of dismissal, has not granted larger relief, which the petitioner was entitled to. (d) That, the enquiry conducted by the respondent – Corporation was not fair and proper, in that, call notice purported to have been sent by the respondent – Corporation as per Ex.M3 was not served on the petitioner, as it did not contain full & correct postal address. He also submits that, the - 6 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 petitioner was not served with the charge memo, produced and marked as Ex.M4, as the postal shara produced at Ex.M5 itself suggests that, the said charge memo had returned with an endorsement “unserved, not known, since address was insufficient”. That, even the notices of the enquiry, produced at Exs.M7, M10 to M11 were not served on the petitioner and he was not made known of the enquiry dates. (e) That, the very enquiry report at Ex.M15 shows that, the petitioner could not actually participate in the enquiry proceedings and that, the entire proceeding was conducted in his absence. (f) That the enquiry conducted was contrary to the Cadre and Recruitment Regulations of the respondent – Corporation and the Labour Court was not justified in holding that, the enquiry was fair and proper. (g) Learned counsel for the petitioner filed a memo, dated 18.06.2024 along with the copy of endorsement, dated 30.04.2024 issued by the - 7 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 respondent – Corporation stating that, the petitioner has been denied the benefit of “Selection Grade” on the ground of the Labour Court not granting him consequential benefits, while ordering reinstatement. He submitted that, since the dismissal from service, which was based on the defective enquiry, the reinstatement of the petitioner should follow all consequential benefits. (h) In support of his contention, learned counsel for the petitioner has placed reliance of the following judgments and seeks for allowing of the petition. (i) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others reported in (2013) 10 SCC324 (ii) The order of the Division Bench of this Court in the case of Sri. Gurudas S.Fayde Vs. Union of India and others in W.P. No.103953/2023, dated 11th October 2023; - 8 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 (iii) The order of the learned Single Judge in the case of the Divisional Controller Vs. Sri. V.R.Kulkarni in W.P. No.78394/2013, dated 25th October 2021.
5. Per contra, learned counsel appearing for the respondent – Corporation justifying the order passed by the Labour Court submitted that: (a) once the enquiry is held to be fair and proper, the question of re-appreciating the evidence with regard to the proportionality of the punishment would not arise. (b) That, merely because the petitioner has been reinstated into service by the Labour Court, it does not mean that, he is entitled for all the benefits of service. (c) That, the evidence on record would reveal that, the petitioner had remained unauthorisedly absent and the Labour Court having appreciated these factual aspects of the matter based on the evidence had held that the petitioner indeed had remained - 9 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 unauthorisedly absent and the said factual aspect of the matter cannot be gone into. (d) That when admittedly petitioner appeared in the enquiry proceedings on 18.10.2012 and gave his statement he ought to have followed up with respondent – Management about the next dates of enquiry. That he cannot claim to have been denied of any opportunity. (e) In support of her contentions, learned counsel for the respondent – Corporation relies upon the following judgments and seeks for dismissal of the petition. (i) A.P State Road Transport Corporation and others Vs. Abdula Kareem, reported in (2005) 6 SCC36 (ii) J.K. Synthetics Ltd., Vs. K.P. Agrawal and another reported in (2007) 2 SCC433 (iii) Standard Chartered Bank Vs. R.C. Srivastava reported in (2021) 19 SCC281 - 10 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 6. In response to the submission made by the learned counsel for the respondent – Corporation, learned counsel for the petitioner submits that, the Apex Court in the case of Deepali Gundu Surwase (supra) has held that the law laid down by the Apex Court in the case of J.K. Synthetics Ltd., (Supra) cannot be treated as a good law. Hence, seeks for rejection of the same.
7. Heard. Perused the records.
8. Before adverting to facts in issue and the submissions and counter submissions of the learned counsel for the parties, appropriate in the context of the facts of the present case to refer the law enunciated by the Apex Court in the case of Deputy General Manager (Appellate Authority) and others Vs. Ajai Kumar Srivatsava reported in (2021) 2 SCC612at paragraph Nos.24 & 28 has held as under: “24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may - 11 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
9. The petitioner being an employee of the respondent – Corporation is not in dispute. A perusal of the order of dismissal, dated 22.02.2013, vide Annexure- A, passed by the respondent – Corporation would reveal that, the call notice, dated 09.05.2012 and the charge - 12 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 memo dated 27.08.2012 have not been served on the petitioner and have returned with the postal endorsement stating that, the petitioner was not available. Even this has apparently resulted in the petitioner not being able to give his response to the charge memo. Though, there is a reference in the said order that the respondent was present on 18.10.2012 when the matter was set down for enquiry and that his preliminary statement was recorded, the petitioner is stated to have denied the said allegations. That, the matter was thereafter posted to 11.01.2013 and though a notice in this regard is stated to have been served on the petitioner through Security Division, he is stated to have remained absent. It is further noted that, he has not utilised the opportunity provided as required under the principles of natural justice and has also not utilised the opportunity by cross-examining the witness. That, since the petitioner has not produced any documents for the period of his unauthorised absence and that he has not produced any documents in his defence, it was presumed that, the allegation of petitioner remaining - 13 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 unauthorisedly absent was proved. It is further noted that, the enquiry report was served on the petitioner on 04.12.2013 and he has not given any reply to the same.
10. The respondent – Corporation has thereafter taking into consideration of the previous record of he remaining absent and the punishment imposed thereon, has proceeded to pass the order dismissing the petitioner from service.
11. The petitioner thereupon filed petition challenging the said order of dismissal under Section 10(4-A) of the Industrial Disputes Act, 1947 and has examined himself as WW1 and exhibited 17 documents marked as Exs.W1 to W17. On behalf of the respondent – Corporation, one witness was examined as MW1 and exhibited 17 documents marked as Exs.M1 to M17.
12. Ex.W1 is the certificate, dated 08.02.2013 issued by the District Surgeon, District Hospital, Gadag, certifying that the petitioner – workman was suffering - 14 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 from allergic Bronchitis C Asthma C Hyper Tension with Lumbar Spondylolthiasis recommending that he “required light work, and one year back consult medical treatment”. Ex.W2 is the medical certificate, dated 09.03.2010; Ex.W3 is another medical certificate, dated 18.04.2010; Exs.W4 to 16 are the documents produced by the petitioner – workman regarding the treatments and the medicine taken by him; & Ex.W17 is the copy of Telegram, dated 19.09.2011. These documents do indicate petitioner suffering from certain medical ailment as claimed. However, what is required to be seen is the evidence that is brought on record by the respondent – Management before the Labour Court in justification of its claim for having conducted the enquiry in fair and proper manner.
13. Ex.M3 is the call notice, which is stated to have been sent through the post to the petitioner at the address shown in the said call notice, wherein it is mentioned as, “C£ÀégÀ ¨sÁµÁ, ZÁ®PÀ - 5840, ªÀÄÄAqÀgÀV (¥ÉƸÀÖ), vÁ|| ªÀÄÄAqÀgÀV, f|| UÀzÀUÀ”. The address shown on the charge memo, dated - 15 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 27.08.2012 produced at Ex.M4, bears the address as, “C£ÀégÀ ¨sÁµÁ, ºÀÄzÉÝ: ZÁ®PÀ - 5840, WÀlPÀ: ºÀqÀUÀ°”. The postal envelope produced at Ex.M5 also bears the address as C£ÀégÀ ¨sÁµÁ, ZÁ®PÀ - 5840, ªÀÄÄAqÀgÀV (¥ÉƸÀÖ), vÁ|| ªÀÄÄAqÀgÀV, f|| UÀzÀUÀ”, wherein the postal endorsement states “not known”. The order appointing the Enquiry Officer, dated 24.09.2012, produced at Ex.M4 bears the address as “²æà C£ÀégÀ ¨sÁµÁ, ºÀÄzÉÝ: ZÁ®PÀ, ©.¸ÀASÉå - 5840, WÀlPÀ: ºÀÆ«£À ºÀqÀUÀ°”. The same address is also reflected in the enquiry notice, dated 20.10.2012. Another enquiry notice, dated 4/8.10.2022, produced at Annexure-M9 reveal that the said notice was served on the petitioner through the Depot Manager “²æà C£ÀégÀ ¨sÁµÁ, ºÀÄzÉÝ: ZÁ®PÀ, ©.¸ÀASÉå 5840, (WÀlPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀªÀgÀ ªÀÄÄSÁAvÀgÀ)”. Similar is the position with regard to further notices of enquiry produced at Exs.M10, M11 and M12. The panchanama regarding the service of enquiry notice dated 09.01.2013 is at Ex.M13. The enquiry notice dated 14.12.2012 bears the signature of one “§¹ÃgÀ - 16 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 CºÀäzï”. The show cause notice produced at Ex.M16 also bears the address as “²æà C£ÀégÀ ¨sÁµÁªÀÄ ºÀÄzÉÝ: ZÁ®PÀ, ©.¸ÀASÉå:
5840. WÀlPÀ: ºÀqÀUÀ°, (WÀ.ªÀå.gÀªÀgÀ ªÀÄÄSÁAvÀgÀ)”.
14. Thus, from the aforesaid records, as rightly contended by the learned counsel for the petitioner, it is clear that the petitioner has not been served with the call notice, charge memo or the enquiry notices, as required under law, inasmuch as the address of petitioner mentioned in each of the documents, apart from being incomplete also differs from one another. Even the mode of service as claimed is irregular and insufficient. In that while the communications sent through post have returned un-served and those claimed to have been served through Depot Manager is served on the so called “brother of the petitioner”, which has been denied. Though counsel for the respondent-Management contended that the petitioner was aware of the pendency of the enquiry, he having participated once on 18.10.2012, as rightly pointed out by the learned counsel for the petitioner, if that is to be - 17 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 considered as the petitioner having sufficient knowledge of the pendency of the enquiry, what was the need for the respondents to issue further notices as per Exs.M7, M10 & M11 has remained unexplained. The result is that admittedly, petitioner has not been able to participate in the enquiry proceedings and this absence of petitioner in the enquiry proceedings has been taken as a proof of his misconduct of remaining unauthorisedly absent.
15. It is settled law that, the defective enquiry is no enquiry in the eyes of law. When the very enquiry report itself states that it was prepared in the absence of the petitioners, the Labour Court could not have held that petitioners had sufficient opportunity to participate, as the same is contrary to the material referred to above. Admittedly even the charge memo was not served on the petitioner. The Labour Court without adverting to these aspects of the matter has however, answered issue No.1 in the affirmative by holding that, the enquiry held was fair and proper and has thereby proceeded to permit the - 18 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 parties to lead additional evidence. The Labour Court has further opined that, since the petitioner was a permanent employee, he was required to apply for leave and that, he has not produced any document regarding he having applied for any leave and as such has concurred that the respondent – Management had proved the misconduct committed by the petitioner.
16. Necessary to note that the petitioner has specifically contended that, there was sufficient number of leaves available to his credit and that his request for grant of leave had not been considered by the respondent - Management. The Labour Court has not adverted this aspect of the matter either.
17. Yet another aspect, which requires to be looked into is that, the respondent – Management has relied upon the purported five previous cases of absenteeism while passing the order of dismissal and there is nothing on record to show that, the petitioner – workman was made known of the said five cases of absenteeism would be used - 19 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 against the petitioner in the enquiry. It is relevant in this regard to refer to paragraph 30 of the judgment of the Apex Court in the case of Nicholas Piramal India Limited Vs.Harisingh1, which reads as under: “30. Further, in State of Mysore v. K. Manche Gowda, this Court has held thus: (AIR p. 510, para
8) “8. It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the enquiry officer is only recommendatory in nature and the final authority which scrutinises it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject-matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing 1 (2015) 8 SCC272- 20 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same.
18. The Labour Court, though has taken note of the fact that, the respondent – Management, while imposing the punishment could not have relied upon the five previous cases of absenteeism without providing an opportunity to the petitioner – workman and has even held the same to be illegal and improper, has however upheld the enquiry to be fair and proper. This, in the considered view of this Court is unsustainable.
19. In the over all, fact situation of the matter, this Court is of the considered view that, the Labour Court by not adverting to the aforesaid material aspects of the matter has committed error in holding that, the enquiry conducted by the respondent – Management was fair and proper. The said finding and the conclusion arrived at by the Labour Court is without appreciation of the materials - 21 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 evidence available on record and without appreciation of the contentions raised by the petitioner – workman and the same is thus suffers from perversity and patent error on the face of the record.
20. As regards the issue of petitioner being gainfully employed during the period, when he was not in the job, even the Labour Court has taken note of the fact that the respondent – Management has failed to prove that, the claimant being gainfully employed. The petitioner in his claim statement has specifically contended that, he was not gainfully employed and no rebuttal evidence has been produced by the respondent – Management.
21. The Apex Court in the case of Deepali Gundu Surwase (supra) at paragraph nos.22 & 23 held as under: “Para No.22: When the termination is held to be bad in law, if the employer wants to deny the back wages and entitlement of employee to get consequential benefits then it is for employer to plead and prove that the employee was gainfully employed. In the absence of the same denial of back wages and consequential benefits would be rewarding the employer for the illegal act done by him.-. 22 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 Para No.23: when the termination is held to be illegal, the employee would be entitle to full back wages except to the extent that he was gainfully employed during the enforced idleness. That is the normal rule.
22. As regards, the contentions of petitioner not being entitled for the full service benefits, raised by the learned counsel for the respondent – Management relying upon the judgment in the case of A.P State Road Transport Corporation and others (Supra) and in the case of J.K. Synthetics Ltd., (supra) are concerned, the same are not applicable to the facts of this case at hand.
23. Though, the Labour Court has passed the order setting aside the order of dismissal and directing reinstatement of the claimant with continuity of service, has in the considered view of this Court erred in not providing consequential benefits. Further, withholding of two increments with cumulative effect is also inappropriate, as the same has adverse effect on the carrier progression of the petitioner – workman.-. 23 - NC:
2024. KHC-D:10641 WP No.104702 of 2023 24. In that view of the mater, the following: ORDER
(a) The petition is partly allowed. (b) The order of the Labour Court is modified. In that, the petitioner in addition to reinstatement and continuity of service would be entitled for consequential service benefits. (c) “Withholding of two increments with cumulative effect” as ordered by the Labour Court is modified to “Withholding of two increments without cumulative effect”. (d) The petitioner will not be entitled to any back wages during the period of his absence. SD/- JUDGE VNP*/CT-ASC List No.:
1. Sl No.:
3.