Karnataka High Court
Anwarbhashasab S/O. Mardansab Saragi vs The Divisional Controller on 26 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 104702 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.104702 OF 2023(L-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,
Digitally NEKRTC, HOSAPETE DIVISION,
signed by V N
BADIGER HOSAPETE, DIST: VIJAYANAGAR - 583 201.
Location:
High Court of
...RESPONDENT
Karnataka (BY SMT. VEENA HEGDE AND
SMT. CHITRA GOUNDALKAR, ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, 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
THE RESPONDENT VIDE ANNEXURE-A, IN THE INTEREST OF JUSTICE
AND EQUITY AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 02.07.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING;
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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
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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.
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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
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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
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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
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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 SCC 324;
(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;
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(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
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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 SCC 36;
(ii) J.K. Synthetics Ltd., Vs. K.P. Agrawal
and another reported in (2007) 2 SCC
433;
(iii) Standard Chartered Bank Vs. R.C.
Srivastava reported in (2021) 19
SCC 281.
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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 SCC 612 at 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
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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
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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
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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
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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
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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 "²æÃ
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
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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
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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
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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
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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
(2015) 8 SCC 272
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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
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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.
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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.
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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
