Karnataka High Court
The General Manager (A And Hr) vs Sri. B. L. Manjunath on 29 July, 2024
-1-
NC: 2024:KHC:29840-DB
WA No. 794 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO. 794 OF 2023 (S-RES)
BETWEEN:
1. THE GENERAL MANAGER (A AND HR),
BESCOM, K.R CIRCLE,
BENGALURU-560 001.
2. THE SUPERINTENDING ENGINEER (ELE.),
BESCOM, BENGALURU EAST CIRCLE,
5TH MAIN ROAD, HRBR LAYOUT, 2ND BLOCK,
BENGALURU-560 043.
3. EXECUTIVE ENGINEER (ELE.)
O & M VIDHANA SOUDHA DIVISION,
Digitally signed by
MAYAGAIAH BESCOM, NO.32/1/2, CRESCENT BUILDING,
VINUTHA CRESCENT ROAD, BENGALURU-560 001.
Location: HIGH
COURT OF ...APPELLANTS
KARNATAKA (BY SRI. VIKRAM UNNI RAJAGOPAL, ADVOCATE)
AND:
SRI. B. L. MANJUNATH
S/O T. LAKSHMANAIAH,
AGED ABOUT 45 YEARS,
NO.1, 1ST CROSS, BELAGUMBA,
BELAGUMBA POST, TUMKUR TALUK,
TUMAKURU DISTRICT-572 104.
...RESPONDENT
(BY SRI. SRINIVASA .K, ADVOCATE)
-2-
NC: 2024:KHC:29840-DB
WA No. 794 of 2023
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
16.06.2023 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.
No.12473/2021 (S-RES) AND DISMISS WRIT PETITION
BEARING W.P. No. 12473/2021 (S-RES), IN THE INTEREST OF
JUSTICE AND ETC.
THIS WRIT APPEAL, COMING ON FOR PRELIMINRAY
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)
We have heard the learned counsel for the parties.
2. The challenge in this appeal is to the order dated
16.06.2023 passed by the learned Single Judge in the writ
petition No.12473/2021, whereby the learned Single Judge has
allowed the writ petition filed by the respondent herein by
stating as under:
(1) "Writ petition allowed;
(2) Order dated 07th August, 2020 (Annexure-d) passed
by the respondent No.3 and order dated 30th April,
2021 (Annexure-M) passed by the respondent No.2
are hereby quashed and matter is remitted to the
disciplinary authority to take decision in the matter
afresh, after affording an opportunity to the
petitioner.
(3) In order to avoid further delay in the matter,
petitioner is directed to appear before the
NC: 2024:KHC:29840-DB
respondent No.3 on 10 th July, 2023 for further action
in the matter."
3. Some of the relevant facts that need to be noted in
this appeal are in the following paragraphs.
4. The respondent herein was appointed as a
Gangman with the appellants in the month of February, 1999.
He was absorbed as Probationary Mazdoor in the year 2009.
Subsequently, he was promoted as Junior Powerman in the
year 2011.
5. The conceded case is the respondent remained
absent from work for more than 2 years i.e., from 16.04.2018
till 07.08.2020.
6. It is the case of the appellants that the respondent
had neither informed the Sub-Division Office nor the Division
Office of BESCOM regarding his absence. It is also their case
that notices were issued to the respondent on 11.10.2018 and
21.12.2018 regarding his unauthorized absence from the work
and calling upon him to report to work. It is their case that the
respondent, despite notices, failed to report to work.
7. A final notice was issued to the respondent in
Kannada Prabha and Deccan Hearald newspapers on
NC: 2024:KHC:29840-DB
03.06.2020 calling upon the respondent to report to work
within 7 days, failing which he would be dismissed. However,
even after newspaper publication of the final notice, the
respondent did not report to work.
8. The submission of the learned counsel for the
appellants is that the learned Single Judge has erred in holding
that the appellants while taking the final action against the
respondent, were required to hold a Departmental Enquiry in
accordance with law which is clearly erroneous.
9. The learned counsel for the appellants in support of
his submission has drawn our attention to Regulation 14 of the
Karnataka Electricity Board Employees (Classification,
Disciplinary Control and Appeal) Regulations, 1987 (hereinafter
referred to as 'Regulations' for short) framed by the appellants
which reads as under:
"14. SPECIAL PROCEDURE IN CERTAIN CASES:
Notwithstanding anything contained in Regin-11, 12
and 13-
[i] where a penalty is imposed on a Board employee
on the ground of conduct which has led to his
conviction an a criminal charge; or
[ii] where the officer concerned has absconded, or
where the officer concerned does not take part in
the inquiry or where for any reasons to be recorded
in writing it is impracticable to communicate with
NC: 2024:KHC:29840-DB
him, or where the Disciplinary Authority, for reasons
to be recorded in writing, is satisfied that it is not
reasonably practicable to follow the procedure
prescribed in the said regulations, or
[iii] where the Board is satisfied that in the interest
of the security of the Board it is not expedient to
follow such procedure, the Disciplinary Authority
may pass such orders thereon as it deems fit:
Provided further that in a case covered by CI.[i], no
order imposing a penalty may be passed without
giving the Board employee an opportunity to make
a representation on the proposed penalty."
10. According to him, Regulation 14 of the Regulations
is an exception to Regulations 11, 12 and 13 of the
Regulations, which provide procedure to be followed while
imposing Major Penalties/Minor Penalties/holds Joint Enquiry.
11. In that sense, the rigours of holding a Departmental
Enquiry for any misconduct as directed by the learned Single
Judge are not applicable. In support of his submission, he also
states that the communication of dismissing the respondent
from service issued by the appellants is a reasoned order. In
support of this, he has drawn our attention to page nos.56, 57
and 58 of the paper book. We deem it appropriate to
reproduce the same as under:
"PREAMBLE:
Sri.G.L.Manjunath Jr.Powerman, West 5 Division, for
the period from 15.4.2018 to 22.6.2020 totally for a period
of 783 days leave without obtaining the from higher
NC: 2024:KHC:29840-DB
officers, and not giving information and not obtaining the
sanction of leave have remained unauthorisedly absent
from work.
And this shows the negligence towards serving the
company. And in this connection under ref.1 letter show
cause notice mentioned in was sent to the address
mentioned in the service register through registered post
acknowledgement, and the same is received by the said
employee.
Further from this office under reference 2 letter, the
said employee was issued a final call letter to attend to the
work within 7 days, and also the paper publication was
given on 13.6.2012 in Kannada Prabha and Deccan herald
newspaper calling to attend to the work, and if failed to
attend without any notice will be dismissed from Bescom
service, and the said employee within the said days have
not attended for work.
And when all the above matters are examined,
Sri.B.L.Manjunath Jr.Powerman, unauthorized absence and
showing the negligence to the company work, the
company's day to day work is being hampered, and as he is
not interested to continue to work in the Bescom, and
prima faice seen that he has remained unauthorisedly
absent from attending to the work.
And hence under CDC and A 1987 regulations 14,
and as per KPTCL "CDCA" rule 28 (a) and rule 9(viii) and
circular No.KPTCL B.81/26057/2011.12 dated 14.9.2011,
by imposing serious punishment, the following final order is
passed.
Order No.EE (E) VSD/LE/sa le/sis a 2/20.21 /871.75
dt.7.8.20
I, Sri.Shivaprakash T.M. Executive engineer (Ele)
Vidhana soudha Division and Disciplinary Authority, do
herein Sri.B.L.Manjunath, Jr.Power man, 4-5th sub division,
Bescom, Bengaluru
1.w.e.f. 7.8.2020 dismissed from the
company/corporation service.
2. He is not eligible for any service benefits.
3. The same should be mentioned in his service
register."
NC: 2024:KHC:29840-DB
12. It is also his submission that against the order of
dismissal, the respondent had filed an appeal before the
Appellate Authority, who had also passed a reasoned order on
30.04.2021 (The English translation of which has been annexed
at page nos.92 to 109). He also highlights the fact that the
Appellate Authority has also noted his leave details, which
depict his unauthorized absence on earlier occasions. He also
states that the Appellate Authority was of the opinion that the
treatment undertaken by the respondent did not prescribe any
medicine and has an observation that no follow up is required.
In that sense, the respondent could not able to prove that he
was suffering from serious nature of diseases and obtaining
treatment as an inpatient. He further states that the conclusion
drawn by the learned Single Judge, if accepted, then Regulation
14 of the Regulations shall become otiose and the appellants,
even in a case of unauthorized absence when an employee fails
to report, cannot invoke Regulation 14 of the Regulations. He
prays for setting aside of the order of the Labour Court and the
learned Single Judge.
13. On the other hand, learned counsel for the
respondent would justify the order passed by the learned Single
NC: 2024:KHC:29840-DB
Judge inasmuch as it is the basic principle of natural justice
that a person cannot be dismissed without following due
process of law. In this regard, he relies upon Regulation 9 of
the Regulations which contemplates the nature of the penalties
to be imposed i.e., major or minor penalties. He states that
the respondent had conveyed to his supervisory Officer about
his illness and he is unable to attend the office. That apart, it is
also his submission that, the respondent being a group 'D'
employee, a compassionate view need to be taken.
14. Having heard the learned counsel for the parties,
we are of the view that the learned Single Judge has erred in
coming to the conclusion in the impugned order that
Departmental Enquiry should have been held against the
respondent before any action is taken. This we say so for the
reason that Regulation 14 of the Regulations, on which a
reliance has been placed by the learned counsel for the
appellants, is an exception to hold a Departmental Enquiry
under Regulations 9, 11, 12/13 of the Regulations. It is the
appellants' case and also noted from the impugned order that
the action was taken under Regulation 14 of the Regulations,
which contemplates that where employee concerned has
NC: 2024:KHC:29840-DB
absconded or he does not take part in the inquiry or where for
any reasons to be recorded in writing it is impracticable to
communicate with him or where the Competent Authority, for
reasons to be recorded in writing, is satisfied that it is not
reasonably practicable to follow the procedure prescribed in the
said Regulations, the Competent Authority is within its right to
take a decision in respect of such employee.
15. In the case in hand, the appellants' case is that two
notices were sent to the respondent. In fact learned counsel
for the respondent has conceded to the fact that the
respondent did receive the notices issued by the appellants. If
that be so, despite the two notices, the respondent neither
joined his duties nor has communicated with the appellants. It
was in the above circumstances, the final notice was published
in the newspaper and the impugned order of dismissal was
passed.
16. Suffice to state that the respondent has followed
the procedure under Regulation 14 of the Regulations, which is
statutory Regulation having been framed under the provisions
of Section 79(c) of the Electricity (Supply) Act, 1948 and in that
sense is a mandatory provision. If the plea of the learned
- 10 -
NC: 2024:KHC:29840-DB
counsel for the respondent is accepted, then the Regulation 14
of the Regulations shall become otiose.
17. Learned counsel for the respondent has relied upon
the judgment of this Court in the case of Lalmiya Vs. The
Secretary, KEB reported in ILR 1999 KAR 358 to contend
that the procedure contemplated under regulation 9 is required
to be followed before any action to the prejudice of an
employee can be taken. We have seen the judgment which has
been relied upon by the learned counsel for the respondent but
the same has no applicability in the facts of this case, more so,
when the issue which arises for consideration is in respect of
Regulation 14 of the Regulations. In the said case, the Court
was only concerned with the applicability of Regulation 9 of the
Regulations. The aforesaid is clear from the fact that the
Disciplinary Authority proceeded to frame the impugned order
by exercising his power under Regulation 9 of the Regulations
and dismissing the petitioner therein from the services of the
Board which action was held illegal. It is not such a case here
and as such, the judgment is clearly distinguishable.
18. That apart, we also find that the Appellate Authority
is justified in noting the fact that the respondent was
- 11 -
NC: 2024:KHC:29840-DB
unauthorizedly absent even on previous occasions. If that be
so, the plea of the learned counsel for the respondent that a
compassionate view need to be taken cannot be accepted.
19. That apart, the respondent remained absent for 783
days without intimation and justifiable reason. In the facts of
this case, we are of the view that the order of the learned
Single Judge is untenable and the same is set aside. The
appeal filed by the appellants is allowed.
No costs.
In view of disposal of the main appeal, I.A.No.1/2023
stands disposed of.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
KTY
