Karnataka High Court

D. Vasudeva Rao vs The Chief Executive Officer (Ceo) on 5 June, 2023

Bench: E.S.Indiresh

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 05TH DAY OF JUNE, 2023

                         BEFORE

       THE HON'BLE MR. JUSTICE E.S. INDIRESH

       WRIT PETITION NO.42439 OF 2016 (S-DE)

BETWEEN

D. VASUDEVA RAO
S/O LATE D.GOPALA RAO,
AGED ABOUT 60 YEARS,
WORKING AS PRODUCTION ENGINEER,
HINDUSTAN AERONAUTICS LTD.,
ENGINE DIVISION,
BENGALURU.

                                            ...PETITIONER

(BY SRI M. RAGHAVENDRACHAR, ADVOCATE)

AND

1. THE CHIEF EXECUTIVE OFFICER (CEO)
   HINDUSTAN AERONAUTICS LTD.,
   BENGALURU COMPLEX, (B.C),
   BENGALURU-560 017.

2. THE GENERAL MANAGER (G.M.)
   ENGINE DIVISION,
   HINDUSTAN AERONAUTICS LTD.,
   BENGALURU-560 017.

3. THE DISCIPLINARY AUTHORITY,
   HINDUSTAN AERONAUTICS LTD.,
   BENGALURU-560 093.
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                                       ....RESPONDENTS
(BY SRI N.S. NARASIMHASWAMY, ADVOCATE FOR R2;
R1 AND R3 ARE SERVED AND UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ANNEXURE-F PASSED BY DISCIPLINARY AUTHORITY I.E.,
RESPONDENT 3 BEARING ORDER NO.E/P&A/617/2174/2007
DATED 21.11.2007 AND ETC.

    IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

In this writ petition, the petitioner has challenged order

dated 21.11.2007 (Annexure-F) passed by the disciplinary

authority and order dated 08.12.2015 (Annexure-H) passed by

Appellate authority, dismissing the petitioner from service under

Rule 6(ii)(h) of the HAL Conduct Discipline and Appeal Rules,

1984.

2. It is the case of the petitioner that, petitioner is a

graduate in Electrical Engineering and appointed as Assistant

Engineer in the respondent-Establishment on 10.11.1976. The

respondent had given an opportunity to its employees to acquire

master degree to improve their career and to do better service in

the respondent-Establishment. Accordingly, the petitioner

approached the respondent-Establishment to pursue Post

Graduation course "M.Tech" in Computer Application in industrial

Drives at M.S. Ramaiah Institute of Technology, Bengaluru. The

plea made by the petitioner to the same was accepted by the

respondent-Establishment subject to terms and conditions as per

letter dated 02nd December, 2004 (Annexure-A). It is the case of

the petitioner that, on account of lapse on the part of the

Principal of the M.S. Ramaiah Institute of Technology, the

petitioner was unable to complete the course and accordingly,

the petitioner made an application for rejoining to the

respondent-Establishment. It is further stated in the writ

petition that the respondent-Establishment, without accepting

the plea made by the petitioner, issued charge sheet dated 25th

April, 2006 (Annexure-B) and accordingly, the petitioner has

been placed under suspension, pending enquiry. Proceedings of

the Departmental enquiry was initiated against the petitioner

and enquiry report was filed before the Disciplinary Authority,

wherein, the finding was recorded that the charges leveled

against the petitioner was proved. Enquiry report is produced at

Annexure-D to the writ petition. Pursuant to the same, the

petitioner made reply dated 08.09.2007 (Annexure-E), denying

the finding recorded by the Enquiry Officer. The Disciplinary

Authority, considering the findings recorded by the Enquiry

Officer, passed order dated 21.11.2007 (Annexure-F), dismissing

the petitioner from service. Feeling aggrieved by the same, the

petitioner filed appeal to the Appellate Authority and the

Appellate Authority, by its order dated 08th December, 2015,

confirmed order passed by the Disciplinary Authority (Annexure-

H). Feeling aggrieved by the same, the present writ petition is

filed.

3. I have heard Sri M. Raghavendrachar, learned

counsel appearing for the petitioner and Sri N.S.Narasimha

Swamy, learned counsel appearing for the respondent No.2.

4. Sri M.Raghavendrachar, learned counsel appearing

for the petitioner contended that the respondent-Establishment

ought to have summoned the principal of M.S. Ramaiah Institute

of Technology, Bengaluru, before issuing order of suspension.

He further contended that the Presenting Officer was examined

as one of the witnesses and therefore, impugned orders are

liable to be set-aside.

5. Per contra, Sri N.S.Narasimha Swamy, learned

counsel appearing for the respondent submitted that the full

opportunity of hearing was extended to the petitioner during

departmental enquiry and the finding recorded by the Enquiry

Officer is based on the material on record and accordingly, he

sought for dismissal of the writ petition.

6. In the light of the submission made by learned

counsel appearing for the parties and on careful examination of

the writ papers, particularly, Articles of charges produced at

Annexure-B would indicate that, one B.R.Suryanarayana, Senior

Manager (P and A), Engine Division has been shown as a witness

and another witness was the Principal of M.S.Ramaiah Institute

of Technology. Perusal of proceedings produced at Annexure-C

would indicate that the said B.R.Suryanarayana was Presenting

Officer. I have also seen that the said B.R.Suryanarayana was

cross-examined in detail by delinquent-petitioner herein at

length. In that view of the matter, the arguments advanced by

the learned counsel appearing for the petitioner that the

Presenting Officer should not have been witness to the

proceedings, cannot be accepted. However, such contention was

not raised before the Disciplinary Authority or at the time of

enquiry by the petitioner. I have also noticed that by examining

the Presenting Officer as a witness has not changed the facts

and situation of the case. By so examining, no prejudice is

caused to the petitioner and therefore, the said submission

raised on behalf of the petitioner cannot be accepted. Even at

the time of arguments, learned counsel appearing for the

petitioner has not made any submission to demonstrate how the

deposition of the Presenting Officer prejudiced the case of the

petitioner and in that view of the matter, I am of the view that

the said submission made by the learned counsel appearing for

the petitioner cannot be accepted. In an identical case, in the

case of Naresh Babulal Dave Vs. Ahmedabad Municipal

Corporation reported in 2012 SCC Online Guj 6324 had an

occasion to deal with such contentions raised in the present writ

petition, however, favours the respondent-Management therein.

Full Bench of Court of the Calcutta High Court in the case of

S.V.S Marwari Hospital vs. State of West Bengal and

Others reported in 2015 SCC Online Cal 348 at paragraph 16

held as follows:

"(16) In our view, the fact that the complainant acted as the Presenting Officer by itself will not vitiate a domestic enquiry if no other question of prejudice is there. There is no principle of natural justice which requires that a person who has lodged a complaint cannot be a Presenting Officer and a prosecutor in a domestic enquiry. This view of ours is supported by a decision of the Kerala High Court in the case of Vijaya Mohan Mills- vs.- Industrial Tribunal reported in 1993 (1) LLJ 605. Similarly, in our view, an enquiry does not get vitiated merely on the ground that the Presenting Officer examined himself as a witness for proving the charges. This is also the view of the Andhra Pradesh High Court expressed in the case of Management of Glaxo India Ltd. (supra). In a domestic enquiry the management has the right to present its case against the delinquent employee. This is done through the Presenting Officer. His job is to adduce evidence in support of the charges. Generally, he is not a witness. But if he also appears as a witness on behalf of the management, he has to be offered for cross- examination by the delinquent employee. The enquiry will stand vitiated if the delinquent is not allowed to cross- examine him."

7. Having taken note of the dictum of the Full Bench

decision of the Calcutta High Court, referred to above and

applying the said principle to the case on hand, it is to be held

that, if the employee has suffered any prejudice by reason of

examining the Presenting Officer, as a witness in the

Departmental Proceedings and such enquiry proceedings stands

vitiated, unless such prejudice must be demonstrated by the

delinquent, affecting his substantial rights as well as no

opportunity is extended to the delinquent to cross-examine the

Presenting Officer-cum-witness. It is the duty of the Delinquent-

employee to prove such burden and in the absence of the same,

I am of the view that, mere participation of the Presenting