Karnataka High Court
H. C. Vijaykeerthi vs Union Of India on 23 December, 2021
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
W.P No.40371/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
WRIT PETITION No.40371 OF 2017 (S-CAT)
BETWEEN :
H.C. VIJAYKEERTHI
S/O H.A. CAILAS KUMAR
AGED ABOUT 46 YEARS
RESIDING AT NO.1201, E-23
3RD CROSS, 1ST BLOCK
HAL 3RD STAGE
NEW THIPPASANDRA POST
BANGALORE-560 075 ... PETITIONER
(BY SHRI. A.R. HOLLA, ADVOCATE)
[THROUGH VIDEO CONFERENCE]
AND :
1. UNION OF INDIA
BY SECRETARY
MINISTRY OF INFORMATION
AND BORADCASTING
SHASTRI BHAVAN
NEW DELHI-110 001
2. THE CHIEF EXECUTIVE OFFICER
PRASAR BHARATHI BROADCASTING
W.P No.40371/2017
2
CORPORATION OF INDIA
COPERNICUS MARG
NEW DELHI-110 001
3. THE DIRECTOR GENERAL
PRASAR BHARATHI BROADCASTING
CORPORATION OF INDIA
DOORDARSHAN
DOORDARSHAN BHAVAN
COPERNICUS MARG
NEW DELHI-110 001 ... RESPONDENTS
(BY SHRI. M.N. KUMAR, SR.CGC FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD11.7.2017 PASSED BY THE CAT IN OA/170/00083/2017
AT ANNEXURE-A AND ALLOW THE OA/170/00083/2017 GRANTING
THE RELIEF AS PRAYED FOR.
THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.12.2021, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-
ORDER
In this writ petition, petitioner has challenged order dated July 11, 2017 in O.A. No.170/00083/2017 passed by the CAT1, Bengaluru.
2. Heard Shri. A.R. Holla, learned Advocate for petitioner and Shri. M.N. Kumar, learned Senior Central Government Panel Counsel for respondents. 1 Central Administrative Tribunal W.P No.40371/2017 3
3. This case has checkered history. Brief facts of the case are, petitioner was appointed as a Camera man Grade-II in 1989 and posted in Doordarshana Kendra. He was deputed to Delhi from May 4, 1995 to June 15, 1995 to cover the Parliamentary proceedings. He remained absent unauthorisedly from June 16, 1995 to April 25, 2000. He was dismissed from service vide order dated October 8, 2007 issued by the Director General, Doordarshan. After prolonged legal proceedings, the said dismissal order has been restored by order dated May 25, 2016. Petitioner has challenged the said order in the instant O.A., and the CAT has dismissed the same.
4. Shri. A.R. Holla, for petitioner urged following three grounds:
• The dismissal order dated May 25, 2016 is an order restoring the earlier dismissal order dated October 8, 2007. Restoration of a previous order of dismissal is unsustainable in law;W.P No.40371/2017 4
• After The Prasar Bharati (Broadcasting Corporation of India) Amendment Act, 2011, any order of dismissal has to be passed by Central Government.
Therefore, the order dated May 25, 2006 passed by the CEO2, Prasar Bharati is illegal; and • No enquiry was conducted before passing the penalty order.
5. In reply, Shri. Kumar, submitted that by the instant penalty order, Prasar Bharati has restored the previous order of dismissal. Petitioner has remained absent unauthorizedly. Despite several notices, he has not appeared for enquiry. Accordingly, he prayed for dismissal of this writ petition.
6. We have carefully considered rival contentions and perused the records.
7. Undisputed facts of the case are, petitioner has remained absent for duty between 16.06.1995 and 2 Chief Executive Officer W.P No.40371/2017 5 25.04.2000. He reported for duty in Doordarshan Kendra, Lucknow and transferred to Bengaluru on May 5, 2003. Imputation of charges were issued on October 25, 2004 alleging that he had remained unauthorizedly absent. Petitioner submitted has reply. An enquiry was conducted and charges were held proved. On October 10, 2007, petitioner was dismissed from service. He challenged the dismissal order in O.A. No.435/2007. The CAT has set-aside the dismissal order reserving liberty to the respondents to complete the proceedings and to take suitable action. Respondents challenged the said order in W.P. No.14361/2009. This Court has set-aside CAT's order and remitted the matter for further disciplinary action. Respondents passed second order of dismissal after holding a denovo enquiry. Petitioner challenged the same in O.A. No.415/2010 and it was disposed of with liberty to file an appeal before the Hon'ble President of India. Accordingly, petitioner filed his appeal and the same was rejected. Petitioner again approached CAT in W.P No.40371/2017 6 O.A. No.139/2013 challenging the second dismissal order and rejection of his appeal. The CAT quashed the order passed by the Disciplinary Authority and the Appellate Authority and directed the respondents to conduct an enquiry within two months from the date of receipt of his order. Respondents sought extension of time by filing miscellaneous applications.
8. Petitioner again approached the CAT in O.A. No.713/2014 for a direction to pay the subsistence allowance and O.A. No.714/2014 for a direction to reinstate him. O.A. No.713/2014 was disposed of with a direction to the petitioner to submit the requisite documents. O.A. No.714/2014 was disposed of with a direction to reconsider the order of deemed suspension.
9. Petitioner again approached the CAT in O.A. No.1604/2015 for payment of subsistence allowance at the rate of 75% of salary for the entire period. The said W.P No.40371/2017 7 O.A. was dismissed with cost of Rs.1,00,000/- by recording thus:
"8. ............Without knowing that applicant had produced a not valid document we had directed that applicant be given subsistence allowance. All those orders are now recalled en masse, therefore, there will be an order to the applicant to refund the amount he has received within two months next.
10. The above order was challenged in W.P. No.25519/2016. This Court, vide order dated November 10, 2016 allowed the writ petition in part and set-aside the order to recover the subsistence allowance paid to the petitioner and the cost imposed; and reserved liberty to the petitioner to challenge the second dismissal order dated May 25, 2016. Thereafter, petitioner has filed the instant O.A. and the same has been dismissed recording thus:
"12. The applicant had also raised that in terms of the Prasar Bharati Amendment Act 2011 which came into effect from 9.1.2012, the power to impose major penalty shall be exercised by the Central Government. Hence, the earlier order of dismissal dated 8.10.2007 passed by the Prasar Bharati cannot be sustained as the Prasar Bharati is not competent authority to impose the W.P No.40371/2017 8 penalty of dismissal on an employee. We note that the order of 2007 was passed by the authority competent to pass such order at that point of time. The present action is only to restore the said order. Hence the contention of the applicant that the order of October 2007 was not passed by a competent authority is not correct.
13. Judging by the fact that the unauthorised absence of the applicant for which the departmental proceeding was initiated is an established fact and the conduct of the applicant i.e. his refusal to attend the enquiry proceedings citing different reasons and refusal to appear before medical board in spite of the fact that he had cited medical reasons for his unauthorised absence, we are of the view that there is nothing wrong in the action taken by the respondents in imposing the penalty of dismissal from service. The dismissal from service in 2007 or now will not have any further adverse impact on the applicant as he will not be entitled to any further benefits on his dismissal from service. In any case, he has received subsistence allowance for all the period since 2007 which are not to be refunded in terms of the order of the Hon'ble High Court of Karnataka. In the light of this, the action taken by the respondents vide order dated 25.05.2016 to restore the original order of dismissal dated 8.10.2007 pursuant to the order of the Tribunal in O.A. No.1604/2015 appears to us as justified."
11. The facts recorded hereinabove, lead to an inference that petitioner has been litigating the matter without complying with the directions issued by the CAT. W.P No.40371/2017 9
12. In O.A. No.1604/2015, CAT has recorded in para 4 of the order that the disciplinary authority could test the merit of the Medical Certificate and examine whether applicant was on special diet and medicines for tuberculosis. The CAT had also asked for the list of medicines which the petitioner was taking. It is recorded that petitioner was taking medicines only for 'diabetes' and nothing else. CAT had also asked for Medical Certificate from the Doctor, who had treated him. CAT recorded that the Doctor had not apparently issued such Medical Certificate. It is further recorded that respondents had called upon the petitioner to produce the X-ray taken at the relevant time and petitioner had not co-operated. CAT has further recorded that petitioner had not claimed any reimbursement. Further, the Government of Karnataka had reported that the whereabouts of the Doctor was not found out and the Medical Certificate did not seem to be genuine. In such circumstances, the CAT had recalled the earlier orders W.P No.40371/2017 10 directing for payment of subsistence allowance. It is relevant to note that this Court has set-aside the order passed by the CAT only so far as the cost of Rs.1,00,000/- imposed by the CAT. The other findings contained in the order have remained on record.
13. A careful analysis of the facts of this case having a checkered history of long litigation, leads us to an inference that except litigating in the Court for 13 years, petitioner has not co-operated in the enquiry nor made any efforts to prove that he was genuinely suffering from Tuberculosis, which, according to him, is the reason for his absence.
14. Petitioner was dismissed from service on October 8, 2007. Though the said order was set-aside and petitioner has dragged the litigation for 13 years, he has failed to prove that he had remained unauthorizedly absent for valid reasons. In such circumstances, by order W.P No.40371/2017 11 dated May 25, 2016, the earlier order of dismissal has been restored.
15. In substance, the argument advanced on behalf of the petitioner is that after Prasar Bharati Amendment Act coming into force, the penalty order ought to have been passed by the Central Government. In our view, the conduct of the petitioner appears to be, to receive 75% subsistence allowance and keep litigation pending in one Court or the other.
16. Learned Advocate for petitioner has placed reliance on para 18 in Krushnakant B. Parmar Vs. Union of India and another3 and contended that the employer must prove that the unauthorized absence is willful. The facts disclose that petitioner has willfully abstained from participating in the proceedings.
17. Shri. Kumar has placed reliance on paras 33 to 38 in Director General of Police Railway Protection 3 (2012)3 SCC 178 W.P No.40371/2017 12 Force & Ors. Vs. Rajendra Kumar Dubey4, wherein it is held as follows:
38. In paragraph 13 of the judgment, the Court held that:
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based;
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
18. It is also settled that relief under Article 226 of the Constitution of India is discretionary. The CAT has recorded cogent reasons and held that respondents have only restored the earlier order of dismissal. The facts and circumstances of this case do not merit exercise of the discretionary jurisdiction and to interfere with penalty 4 2020 SCC OnLine SC 954 W.P No.40371/2017 13 order dated May 25, 2016, so far as the restoration of the dismissal order is concerned. It is relevant to note that by the same order, the Prasar Bharati has directed refund of the subsistence allowance paid to the petitioner. This Court, in earlier round of litigation, in W.P. No.19094/2016 has held in para 17 of the order5 that in normal course, this Court would have remanded the matter to the CAT to examine petitioner's claim for payment of subsistence allowance, but refrained to do so because, the penalty order which is under challenge in this proceeding was already passed. Ultimately, this Court has set-aside the order to recover the subsistence allowance.
19. Though petitioner has remained unauthorizedly absent between 1995 and 2000, the curtains have been finally drawn to the long litigation with the penalty order under challenge in this writ petition. Therefore, we are of the opinion that the 5 Order dated 16.10.2016 W.P No.40371/2017 14 direction to recover the subsistence allowance is not sustainable.
20. Accordingly, we dispose of this writ petition, confirming the penalty order dated May 25, 2016 so far as restoration of dismissal order dated October 8, 2007; and set-aside that portion of the order directing the petitioner to refund the subsistence allowance.
21. Writ petition is thus allowed in part to the above extent.
No costs.
Sd/-
JUDGE Sd/-
JUDGE SPS