Smt Meenakshi S vs Karnataka Stte Natural
2023 Latest Caselaw 1536 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                       BEFORE

       THE HON'BLE MR. JUSTICE C.M. POONACHA

       WRIT PETITION NO.45508 OF 2013 (S-DIS)


BETWEEN

SMT MEENAKSHI S
W/O N.V.RAJAN,
AGED ABOUT 48 YEARS,
WORKING AS DATA ENTRY
OPERATOR-GRADE-1,
KARNATAKA STATE NATURAL DISASTER
MONITORING CENTRE,
YELAHANKA,
BANGALORE-560 064.
                                        ...PETITIONER
(BY SRI VIKAS ROJIPURA, ADVOCATE)


AND

1 . KARNATAKA STATE NATURAL
    DISASTER MONITORING CENTRE,
    REPRESENTED BY ITS DIRECTOR,
    MAJOR SANDEEP UNNIKRISHNAN,
    NEAR ATTUR LAYOUT,
    YELAHANKA,
    BANGALORE-560 064.

2 . EXECUTIVE COMMITTEE
    KARNATAKA STATE NATURAL
    DISASTER MONITORING CENTRE,
    REPRESENTED BY ITS CHAIRMAN,
    NEAR ATTUR LAYOUT,
                            2




      YELAHANKA,
      BANGALORE-560 064.

3 . KARNATAKA STATE NATURAL
    DISASTER MONITORING CENTRE,
    REPRESENTED BY ITS SECRETARY,
    NEAR ATTUR LAYOUT,
    YELAHANKA,
    BANGALORE-560 064.

4 . CHAIRMAN, EXECUTIVE COMMITTEE
    KARNATAKA STATE NATURAL
    DISASTER MONITORING CENTRE,
    IT & BT DEPARTMENT,
    6TH FLOOR, 5TH STAGE,
    M.S.BUILDING,
    DR.AMBEDKAR VEEDHI,
    BANGALORE-560 001.

                                         ...RESPONDENTS

(BY SRI YOGESH D NAIK, ADVOCATE)


       THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDERS DT.28.12.12, PASSED BY THE R1, VIDE
ANN-A TO THE WP & IMPUGNED ORDER DT.28.8.13, VIDE ANN-
B TO THE WP PASSED BY THE R4, & CONSEQUENTLY EXTEND
ALL CONSEQUENTIAL BENEFIT TO THE PETITIONER AND ETC.



       THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR     ORDERS    ON   06.12.2022,   COMING   ON   FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
                               3




                           ORDER

The above Petition is filed seeking for the following

reliefs;

"a) CALL for records from the Respondents pertaining to the enquiry, impugned Order dated 28.12.2012 (Annexure-A) , impugned Order dated 28.8.2013 (Annexure-B);

b) ISSUE WRIT OR ORDER QUASHING the impugned Orders dated 28.12.2012 bearing No.KSNDMC/ADMN/132/2012-13/279(2) passed by 1st Respondent (Annexure-A to the Writ Petition) and impugned Order dated 28.8.2013 bearing No. DST 2 DMC 2013 (Annexure-B to the Writ Petition) passed by the 4th Respondent; AND CONSEQUENTLY extend all consequential benefit to the Petitioner in the interest of justice and equity;

c) PASS any other order including the cost of this Writ Petition."

2. It is the case of the Petitioner that she was

employed with Respondent No.1 as a Data Entry Operator-

Grade I from 13.09.2001. Vide Official Memorandum

issued on 17.04.2012, it was notified that disciplinary

action would be initiated against the Petitioner if she fails

to tender proper reply. Vide order dated 18.4.2012 she

was kept under suspension and an in-house committee

was constituted to enquire regarding the allegations made

against the Petitioner. The Petitioner made a detailed

representation dated 27.4.2012 refuting the charges made

against her. The enquiry committee submitted its report

on 28.4.2012 holding that the misconduct of the Petitioner

can be condoned and she may be let off by issuing a

warning. The Petitioner made a representation dated

11.6.2012 to the Government, which in turn requested the

Respondents to consider the case of the Petitioner and

take appropriate action.

3. Thereafter, the Respondent No.1 vide show

cause notice dated 25.06.2012 initiated enquiry against

the Petitioner. The Petitioner submitted her representation

to Respondent No.1 denying the charge. The Enquiry

Officer after holding an enquiry, submitted a report holding

that charge Nos.2, 4 and 5 are proved. Thereafter, the

Petitioner was issued with a show cause notice dated

05.12.2012 seeking for her response to the enquiry report,

which was responded to by the Petitioner vide a reply

dated 15.12.2012. The Respondent No.1 by an order

dated 28.12.2012 dismissed the Petitioner from service.

Being aggrieved, the Petitioner filed W.P.No.509/2013,

which was disposed off vide order dated 04.04.2013

directing the Petitioner to avail alternative remedy of filing

an appeal. The Petitioner filed an appeal before the

Appellate Authority, which vide order dated 28.08.2013

dismissed the said appeal and confirmed the order of

dismissal dated 28.12.2012. Being aggrieved the present

Petition is filed.

4. Learned counsel for the Petitioner has

contended that the Petitioner had denied the incident

which was alleged against her and only with an intention to

give a quietus to the issue, although she was not at fault,

she tendered an un-conditional apology vide her

representation dated 27.04.2012. He further refers to the

charges that have been alleged against the Petitioner and

submits the said charges are not serious and the order of

dismissal of service is not proportionate to the charges

alleged and is an extreme punishment. In support of his

submissions, he relied on the judgment of the Hon'ble

Supreme Court in the case of Om Kumar and Others Vs.

Union of India1.

5. Per contra, learned counsel for the

Respondents supports the order of dismissal as well as the

order passed by the Appellate Authority and submits that

the said orders do not warrant interference by this Court in

exercise of its jurisdiction under Article 226 of the

Constitution of India. In support of his submission, he

relied on the judgment of the Hon'ble Supreme Court in

the case of Union of India and Others Vs. Subrata

Nath, 2. The learned Counsel seeks to distinguish the

judgments relied upon by the Appellate Authority while

upholding the punishment awarded. The said judgments

are:

i) Biecco Lawarie Limited and Another Vs. State of West Bengal and Another ;3

(2001) 2 SCC 386

2022 SCC Online SC 1617

(2009) 10 SCC 32

ii) Hombe Gowda Educational Trust Vs. State of Karnataka and Others 4.

6. I have considered the submissions made by

learned counsel for the Petitioner and Respondents and

perused the material available on record. The question that

arises for consideration is;

"Whether the relief sought for in the Writ Petition is liable to be granted?

7. With regard to the charges made against the

Petitioner the enquiry report dated 4.12.2012 has been

submitted wherein charge No.1 was held as not having

survived for consideration and charge No.3 was held as not

proved. Only charge Nos.2, 4 and 5 are held to be proved.

Charge No.2 pertains to the Petitioner entering the

chamber of the Director without seeking prior permission.

Charge No.4 is that the Petitioner refused to do additional

work entrusted to her. Charge No.5 relates to an instance

(2006) 1 SCC 430

on 18.4.2012 where the Petitioner said to the Director that

she will approach the higher authorities for redressal of her

grievance. Having regard to the enquiry report, the

Petitioner was terminated from services by termination

order dated 28.12.2012.

8. Being aggrieved, she preferred

WP.No.509/2013. This Court, vide order dated 4.4.2013

dismissed the Writ Petition since there was an alternative

remedy of appeal available to the Petitioner. Thereafter,

the Petitioner filed an appeal before the Appellate

Authority. The Appellate Authority, vide its order dated

28.8.2013 rejected the appeal filed by the Petitioner.

9. It is forthcoming from a perusal of the order of

the Appellate Authority that the contentions pertaining to

the authority of the Director to initiate an enquiry and pass

an order of dismissal has been rejected noticing the

relevant provisions under the Service Rules. With regard

to the contention that the enquiry initiated is without

authority of law, the Appellate Authority noticing that there

was only one disciplinary proceedings and not two,

negatived the said contention. With regard to aspects

pertaining to charge Nos.2, 4 and 5 the Appellate Authority

has recorded a finding that the same is in order and

cannot be faulted.

10. With regard to the contention of the Petitioner

that the order of dismissal was disproportionate to the

charges levelled against the Petitioner, relying on the

judgments of the Hon'ble Supreme Court Biecco Lawarie

Limited (supra) and Hombe Gowda Educational Trust

(supra), the Appellate Authority upheld the order of

dismissal.

11. In the case of Biecco Lawarie Limited

(supra), the employee was issued with a charge sheet of

charges of major misconduct namely instigation,

insubordination, using abusive and filthy languages against

his superiors and dialatory tactics, which are major

misdemeanours as per the certified Standing Orders of the

company. The employee admitted all the charges and

sought condonation and mercy. In the said case, with

regard to the punishment imposed, it was noticed that

despite repeated warnings the employee had not rectified

his conduct and an order of dismissal was passed which

was set aside by the Industrial Tribunal, which order was

upheld by the learned Single Judge and the Division Bench

of the High Court. The Hon'ble Supreme Court upheld the

order of dismissal and set aside the orders passed by the

Industrial Tribunal as well as the learned Single Judge and

Division Bench of the High Court. It is relevant to note

that the charges alleged against the employee in the said

case are serious in nature and are not comparable to the

charges against the Petitioner in the present case.

12. In the case of the Hombe Gowda

Educational Trust (supra) the Hon'ble Supreme Court

was dealing with a case where a Teacher assaulted his

superior with a 'chappal' and hence, it was found that the

punishment of dismissal from service cannot be said to be

wholly disproportionate so as to shock one's conscience.

The factual matrix in the said case is wholly different from

the facts of the present case.

13. In the case of Subrata Nath (supra) relied

upon by the learned Counsel for the Respondents, the

Hon'ble Supreme Court was dealing with a case where a

Constable in the Central Industrial Security Force (CISF)

was charged with negligence and dereliction of duty since

he failed to prevent the theft of copper wire weighing 800

kgs and other wires of copper at the scrap yard while the

said Constable was on shift duty as well as the other

charges, where the Constable had involved himself in

various delinquencies and despite him being awarded 8

punishments, he did not mend himself. In the said case,

the order of dismissal of service was upheld by the

Appellate Authority and the Revisional Authority was

interfered with by a learned Single Judge of the High Court

where the punishment of dismissal imposed was converted

to one of compulsory retirement which order was

interfered with by the Division Bench, which held that the

Constable was entitled to reinstatement into service along

with full backwages. The Hon'ble Supreme Court

considering the said case held that the Courts ought to

refrain from interfering with findings of facts recorded in a

departmental inquiry except in circumstances where such

findings are patently perverse or grossly incompatible with

the evidence on record and is based on no evidence. The

facts of the said case are wholly different from the facts of

the present case.

14. In the case of Om Kumar (supra) the Hon'ble

Supreme Court was dealing with a proceedings arising out

of an order which proposed to reopen the quantum of

punishments imposed in departmental enquiries on certain

officers of the Delhi Development Authority. The Hon'ble

Supreme Court, after an elaborate discussion on the law

relating to the proportionality, has held as under:

"71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply

proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."

15. In view of what is stated above, the Petitioner

has not made out any ground to interfere with the

concurrent findings recorded in the enquiry as well as

affirmed by the Appellate Authority with regard to the

charges alleged against the Petitioner. However, with

regard to the punishment of dismissal from service, the

Appellate Authority merely relying on the two judgments of

the Hon'ble Supreme Court as noticed above, has upheld

the order of dismissal by holding that in identical

circumstances where abusive language was used by the

employee against the official superior the dismissal from

service was upheld. As noticed above, the facts in the

case of Biecco Lawarie Limited (supra) and Hombe

Gowda Educational Trust (supra) are wholly different

from the facts of the present case.

16. The proved charge Nos.2, 4 and 5 not disclose

that the Petitioner has used any abusive language against

her superior. Charge No.2 is that that she entered the

chamber of the Director without seeking any prior

permission, charge No.4 is that she refused to do extra

work entrusted to her and charge No.5 is that she said to

the Director that she will complain to the higher authority.

These charges by no stretch of imagination can be said to

be serious so as to warrant the extreme punishment of

dismissal from service. The said punishment of dismissal

is shockingly disproportionate to the proved charges.

17. In normal circumstances, the matter would

have been remanded to the Appellate Authority for the

purpose of imposing appropriate punishment. But having

regard to the fact that the order of dismissal is passed on

28.12.2012, which was affirmed by the Appellate Authority

on 28.8.2013 and the present writ petition is pending for

the past 10 years, it is expedient that the aspect of

punishment also be ordered in the present Writ Petition.

18. Having regard to the nature of charges against

the Petitioner, it is clear that charge No.2 was that the

Petitioner entered the chamber of the Director without

seeking prior permission and charge No.5 was that she

conveyed to the Director that she will approach the higher

authorities for redressal of her grievance. It is not the

case of the Respondents that the Petitioner used any

abusive language against her superior officers. The charge

No.4 is that the Petitioner refused the additional work

entrusted to her. The said charges under any

circumstances whatsoever do not warrant the extreme

punishment of dismissal from service. Upon consideration

of the nature of charges, it is expedient that the Petitioner

be reinstated into service with continuity of service and

she be paid 50% backwages.

19. In view of the aforementioned, the question

framed for consideration is answered partly in the

affirmative. Hence, I pass the following:

ORDER

i. The writ petition is partly allowed;

ii. The order dated 28.8.2013 passed by the Appelalte Authority in case No.DST 2 DMC 2013 insofar as it relates to upholding the order of dismissal of the Petitioner from service is set aside.

iii. The order of dated 28.12.2012 bearing No.KSNDMC/ADMN/132/2012-13/279(2) passed by Respondent No.1 dismissing the employee from service is set aside.

iv. The Respondent No.1 is directed to reinstate the Petitioner with 50% backwages and continuity of service within 30 days from the date of this order.

No costs.

Sd/-

JUDGE Bs/nd