Karnataka High Court
Centre Fore Development Of Advanced ... vs Mrs. Ragini Bhartari on 3 September, 2024
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WA No. 1584 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO. 1584 OF 2023 (S-DE)
BETWEEN:
CENTRE FOR DEVELOPMENT OF
ADVANCED COMPUTING
(FORMERLY NATIONAL CENTRE
FOR SOFTWARE TECHNOLOGY),
GULMOHAR CROSS ROAD,
NO.9, JUHU,
MUMBAI - 400 049.
...APPELLANT
(BY SRI. UNNIKRISHNAN.M., ADVOCATE)
AND:
Digitally signed
by K G
RENUKAMBA MRS. RAGINI BHARTARI,
Location: High W/O. NEERAJ BHARTARI,
Court of AGED ABOUT 41 YEARS,
Karnataka
R/AT: NO.803, MAGIC RAY,
SUN CITY, SARJAPUR OUTER RING ROAD,
BENGALURU - 560 102.
...RESPONDENT
(BY SMT. P.V.KALPANA, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THE ABOVE APPEAL
FILED BY THE APPELLANTS THEREBY SETTING ASIDE THE
ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WP
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WA No. 1584 of 2023
NO.40767/2010 DATED 31/08/2023 AND THEREBY DISMISS
THE SAID PETITION, ETC.
THIS APPEAL COMING ON FOR ORDERS 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)
The challenge in this appeal is to an order dated
31.08.2023 passed by the learned Single Judge in WP
No.40767/2010, whereby the learned Single Judge has
allowed the writ petition filed by the respondent herein by
stating in paragraphs No.39 and 40 as under:
"39. In the light of the fact that the petitioner
has been denied an opportunity of participating in
the inquiry, despite repeated requests made by her
in the letter dated 15.05.2004 and more
importantly, the letter dated 12.09.2004 where she
had requested for ten days adjournment, the
inquiry report that has been submitted against her
and the acceptance of that inquiry report by the
disciplinary authority coupled with the imposition of
penalty of dismissal from service on the very day
she came back to rejoin her duty are clearly
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arbitrary and illegal. The confirmation of the
dismissal in appeal cannot also be sustained and
therefore, they are accordingly quashed.
40. The respondent is directed to reinstate the
petitioner into service forthwith. Since the
victimization of the petitioner is apparent from the
manner in which her request for adjourning the
inquiry by ten days coupled with the fact that her
leave applications were rejected though the
petitioner held out a just cause, this would be an
appropriate case to award 25% backwages to the
petitioner, which shall be paid to her by the
respondent within a period of three months from
the date of receipt of a copy of this order.
Writ Petition is accordingly allowed."
2. The facts that need to be noted for the purpose of
this order are, the respondent was working as a Senior
Staff Scientist in the appellant-Organization. It was her
case before the learned Single Judge that she availed
maternity leave and resumed duty on 02.12.2002. During
the period 04.04.2003 - 14.05.2003, she once again
availed leave on account of her sister's marriage.
Thereafter, she went to United Kingdom where her
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husband was posted. She had also applied for grant of
one year leave from 24.06.2003.
3. It was her case that vide letter dated 01.07.2003,
the appellant-employer called upon her to immediately
report for duty and to hand over all the projects and
technical responsibilities to a co-employee. She, on
19.08.2003, again requested the appellant to grant
extraordinary leave for two years from September 2003.
In the said letter, she had also stated that she would be
handing over all projects and technical responsibilities to a
co-employee.
4. On 02.09.2003, the respondent addressed an e-
mail to the appellant stating that she has handed over all
the projects to her colleague. She addressed three e-
mails on 15.09.2003, 16.09.2003 and 30.09.2003
requesting the appellant to inform her about the status of
her leave application. The aforesaid three e-mails were
responded to vide letter dated 08.10.2003 whereby she
was informed that her leave was considered as
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unauthorized absence and her going abroad is a
misconduct. It was also stated by the appellant that the
absence being the first misdemeanour, a lenient view is
being taken and for that, she has to submit a written
apology, assuring the appellant that she would not commit
the same in future. In fact, it is a matter of record that on
17.10.2003, the respondent had submitted a written
apology. It is also a matter on record that on 19.10.2003,
the appellant rejected the request for grant of two years
extraordinary leave without pay. Thereafter, on
24.10.2003, the respondent addressed a letter stating that
she had applied for leave more than 2½ months ago and
yet, she has not received any information on her request
and as such, she has assumed that it has been approved.
She had, again on 27.10.2003, applied for extraordinary
leave for two years on the assumption that leave has been
approved. On 18.11.2003, the appellant by its written
communication, informed the respondent that her request
has not been accepted and her absence from duty from
27.10.2003 would be treated as unauthorized absence
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since prior permission had not been obtained. It is also a
fact that pursuant thereto also, she continued to apply for
leave even while being in United Kingdom. In any case,
the appellant vide letter dated 09.02.2004, called upon the
respondent to report for duty by 29.02.2004, failing which
they would initiate disciplinary action against her.
Accordingly on the failure of the respondent to join the
duties, a charge sheet dated 21.04.2004 was issued to the
respondent. The respondent, responded to the same on
15.05.2004. It is noted that even after issuance of the
charge sheet, she continued to write letters to the
appellant stating that she would join the duties by August
2004. The request of the respondent was not acceded to
and vide memorandum dated 28.06.2004, she was
informed that the proceedings would be held at Bengaluru
on 26.07.2004 and she is required to be present on that
day. She did not appear in the proceedings. It may be
stated that on 09.07.2004, a revised memorandum was
issued for similar charges. This revised charge sheet was
because, she continued to remain absent from 27.10.2003
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without authorization. The charge was also that she had
travelled abroad during the said period without prior
permission.
5. The grievance of the respondent before the
learned Single Judge was that the enquiry resulted in her
dismissal. While dismissing her, she has not been given
proper opportunity. Despite the request that the enquiry
be taken up after 09.10.2004, the enquiry officer hurriedly
conducted the enquiry which is in violation of Principles of
Natural Justice. That apart, despite filing an appeal in
February 2005, the same took 5 years for the Appellate
Authority to decide. The learned Single Judge has, in
paragraphs No.32 to 38, stated as under:
"32. In this case, on issuance of a revised
article of charge dated 09.07.2004, the petitioner
had stated that she would be resuming duty by the
end of August, 2004 and she could not participate
in the inquiry till September, 2004 and had,
therefore, requested the respondent to adjourn the
inquiry till September, 2004. Despite this request,
the date was fixed for inquiry as 03.09.2004 and
thereafter, on 03.09.2004, a notice was sent to the
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petitioner to furnish her written submission by
20.09.2004. To this notice of 03.09.2004, the
petitioner submitted a reply requesting that the
inquiry may be adjourned till October, 2004 since
she and her husband was returning to India to
participate in the inquiry.
33. In my view, in the light of the fact that the
petitioner responded to the hearing notice dated
03.09.2004 requesting that the inquiry be taken up
after she returned to India in October, 2004, the
respondent was obliged to grant her a reasonable
opportunity. It is to be borne in mind that the
article of charges was issued in April, 2004 and was
followed by a revised article of charges, which was
issued in July, 2004 i.e., three months thereafter.
In the background of the fact that the respondent
took three months to issue a revised charge sheet,
it is clear that if the request of the petitioner for
adjourning the inquiry by 30 days was granted, no
prejudice would have been caused to the
respondent.
34. The respondent, by denying the request of
the petitioner to adjourn the inquiry to/after
09.10.2004 to participate in the inquiry, has
submitted an inquiry report on 27.09.2004 and has
thereby acted in the most arbitrary manner. It
becomes rather patently clear that the intention of
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the respondent was to hastily conclude the process
of inquiry and ensure that the petitioner was
dismissed from service before she returned to India
on 09.10.2004 and attempted to rejoin duty.
35. The fact that the petitioner, on coming
back to India, intimated the respondent on
20.10.2004 that she was prepared to rejoin the
duties and yet on the very same day, an order of
dismissal from service was passed, by itself, clearly
indicates that there was an element of
vindictiveness prevalent in the mind of the
respondent.
36. It is also to be noticed here that though the
petitioner preferred an appeal in the year 2005 and
she made repeated requests for early hearing and
disposal during the period 2005-2009 vide
Annexures-HH, JJ, KK, LL and MM, her appeal was
decided only on 19.07.2010 i.e., nearly after 5½
years. If the Appellate Authority could take 52
years to decide an appeal, the extent of
victimization in denying the petitioner an
adjournment of ten days to enable her participation
in the inquiry becomes apparent. This fact clearly
establishes that double standards were adopted and
the petitioner has been victimized.
37. It is to be stated here that the petitioner
from the very beginning was stating that she could
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not work due to the fact that she had an infant child
to take care and her husband was posted to work in
United Kingdom and also because her mother who
was taking care of her baby was unable to stay with
her since her sister was suffering from a serious
ailment. In my view, the fact that the petitioner has
applied for grant of leave and had also submitted a
written apology clearly indicates that it was not the
intention of the petitioner to avoid rejoining her
duties.
38. Yet another factor which confirms the fact
that the petitioner had been victimized is the
issuance of revised article of charges on
09.07.2004. As already stated above, the
petitioner's request for regularizing her leave i.e.,
extraordinary leave from 14.05.2003 to 11.08.2003
was granted by the respondent subject to her
giving written apology. The petitioner, admittedly,
gave the written apology and despite this admitted
position, the respondent employer has proceeded to
issue a revised article of charges making a charge
against the petitioner that she was unauthorizedly
absent from 14.05.2003 to 11.08.2003. This
attitude of the respondent - employer leaves no
room for doubt that they intended to remove the
petitioner on any pretext, and it was always their
intention to victimize the petitioner."
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6. The submission of learned counsel for the
appellant is that, till such time the leave is granted, a
Government servant cannot be said to be on leave. Mere
filing of leave application without ensuring that the same
has been granted, the respondent could not have
proceeded to United Kingdom. Her absence from duties
was unauthorized. Additionally, she having visited a
foreign country without the approval is also a misconduct.
His submission is that she being a Senior Scientist, she
could not have remained absent unauthorizedly leaving
the work at the mercy of her colleagues. Even her plea
that the enquiry must be held after she comes back was
also a misplaced argument. Despite all the above, the
learned Single Judge has allowed the writ petition in the
manner reproduced above.
7. On the other hand, learned counsel for the
respondent would justify the order of the learned Single
Judge stating that the respondent has been submitting her
applications for leave from time to time and there is no
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reason why the respondent should not have been granted
the leave. Unfortunately, in the absence of any
communication, she rightly assumed that the leave has
been granted. Even the conduct of enquiry was by
denying a reasonable opportunity to her as despite her
request, the enquiry was not postponed beyond October
2004, which resulted in the enquiry officer completing the
enquiry at her back. So, in that sense, the enquiry having
been held denying reasonable opportunity to her, the
learned Single Judge has rightly allowed the writ petition.
8. We are unable to agree with the submissions
made by the counsel for the respondent for the simple
reason that without leave having been sanctioned, the
respondent could not have remained absent or for that
matter, travelled to United Kingdom. She remained
absent for quite a long period, despite knowing that the
appellant has rejected her leave and called upon her to
join the duties. The same depicts the wilful absence on
the part of the respondent. The plea of learned counsel
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for the respondent that the respondent had applied for
leave and nothing had been heard from the appellant, a
presumption was rightly drawn by the respondent that the
leave has been granted, does not appeal us. This is for
the reason even after communications sent to her
rejecting the leave and calling upon her to join the place of
posting, she did not join her duties. In such circumstance,
the appellant had rightly issued the charge sheet for
unauthorized absence for different periods which resulted
in her dismissal and the same cannot be faulted.
9. The plea of the learned counsel for the respondent
that the respondent was not given a fair opportunity
during the conduct of the enquiry is also unmerited for the
reason, the employee who has been chargesheeted cannot
put condition for her appearance as per her convenience.
It was expected of her to attend the enquiry as per the
schedule fixed by the Enquiry Officer. It is a clear case of
insubordination. Be that as it may, we do not agree with
the conclusion drawn by the learned Single
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Judge in the manner depicted above. The justification
given by the learned Single judge about the infant child
being there and as her husband was in United Kingdom is
concerned, no doubt as a mother, she is bound to look
after the child, but the fact remains merely because the
husband has gone on official work to United Kingdom for
two years, would not mean that she can discard her duties
as a Scientist in the appellant-Organization. These
aspects have to be balanced by a Government servant so
as to ensure that the employer also does not suffer. It is a
clear case of wilful absence from the duties and hence, the
penalty imposed on the respondent of dismissal is clearly
justified.
10. The conclusion drawn by the learned Single
Judge that it is a case of victimization only on the ground
that revised Articles of charge dated 09.07.2004 were
issued is not justified for the reason that the revised
charge sheet was issued to amend the charges that were
earlier framed against the respondent. Revised charges
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were more detailed/specific. We see nothing wrong in the
appellant revising the charge to bring in conformity with
the misdemeanour committed by the respondent. In the
conspectus of the facts of this case, we are of the view
that the order of the learned Single Judge is liable to be
set aside and it is ordered accordingly.
The writ petition filed by the respondent is dismissed.
We dispose of the appeal.
No costs.
In view of the order in the writ appeal, IA No.1/2023
is disposed of as infructuous.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
PA
