Karnataka High Court
Smt H Yashoda vs The President on 18 October, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.6652/2015 (S-DIS)
BETWEEN:
SMT H YASHODA
WIFE OF MANJU
AGED ABOUT 42 YEARS,
ATTENDER, STAFF NO.90,
RESIDING AT 1350,
2ND CROSS, 2ND MAIN,
GOKULA I STAGE,
YESHWANTHPURA,
BANGALORE-560022.
...PETITIONER
(BY SRI S B MUKKANNAPPA, ADV.)
AND:
1. THE PRESIDENT
THE MALLESWARAM CO-OPERATIVE BANK LTD.,
7TH CROSS, MALLESWARAM,
BANGALORE-560003.
2. THE MALLESWARAM CO-OPERATIVE BANK LTD.,
7TH CROSS, MALLESWARAM,
BANGALORE-560003
REP. BY ITS BRANCH MANAGER.
3. THE JOINT REGISTRAR OF K.S.C U.B.F LTD.,
RULE (441)
2
NO.132, 2ND FLOOR, K.H.ROAD,
BANGALORE-560027.
4. THE KARNATAKA APPELLATE TRIBUNAL
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001
REP. BY ITS DEPUTY REGISTRAR.
...RESPONDENTS
(BY SRI B C PRABHAKAR, ADV. FOR R1
R2, R3, R4-SERVED)
THIS WP FILED PRAYING TO. THIS WRIT PETITION IS
FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION
OF INDIA PRAYING TO CALL FOR RECORDS IN APPEAL
NO.588/2011 BEFORE THE R-4 AND BEFORE THE R-3 AND SET
ASIDE/ QUASHING THE IMPUGNED ORDER DATED 16.08.2014
PASSED BY THE R-4 IN APPEAL NO.588/2011 VIDE ANNEX-A
AND IMPUGNED ORDER PASSED BY THE R-3 DATED 23.05.2011
VIDE ANNEX-B AND REINSTATE THE JOB OF THE PETITIONER
ALONG WITH BACK WAGES AND ALL SERVICE BENEFITS, BY
ALLOWING THIS WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THROUGH VIDEO CONFERENCE THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner, a dismissed Attender of second respondent-Bank is before this Court, challenging the order of dismissal confirmed by the Assistant Registrar of Co-operative Societies dated 23.05.2011 (Annexure-B) as 3 well as the order dated 16.08.2014 in Appeal No.588/2011 on the file of the Karnataka Appellate Tribunal, Bangalore confirming the order of dismissal passed by the Bank as well as the award of Assistant Registrar of Co-operative Societies and to reinstate the petitioner along with back wages and all service benefits.
2. Heard the learned counsel Sri.S.B.Mukannappa for petitioner and learned counsel Sri.B.C.Prabhakar for respondent No.1. Perused the writ petition papers.
3. The petitioner was appointed as Attender in the second respondent-Bank on 17.05.1993 and she has completed 15 years of service as on the date of dismissal. The petitioner remained absent from duty without permission between the period from 18.05.2005 to 08.09.2005 and from 26.10.2005 to 28.01.2006. For remaining absent, the second respondent-Bank initiated disciplinary proceedings by issuing charge memo. After 4 conducting enquiry, by order dated 04.09.2006 dismissed the petitioner. The petitioner being aggrieved by the order of dismissal raised a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 before the 3rd respondent-Joint Registrar of Co-operative Societies. The 3rd respondent, by order dated 23.05.2011 rejected the dispute and confirmed the order of dismissal. Thereafter, the petitioner filed an appeal before the Karnataka Appellate Tribunal-4th respondent herein challenging the order of dismissal as well as order passed by the 3rd respondent/Joint Registrar of Co-operative Societies. The 4th respondent by order dated 16.08.2014 dismissed the appeal, confirming the order dated 23.05.2011 passed by 3rd respondent/Joint Registrar of Co-operative Societies. Challenging both the orders passed by respondent Nos.3 and 4, the petitioner is before this Court under Article 227 of the Constitution of India.
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4. Learned counsel Sri.S.B.Mukannappa for petitioner would submit that the petitioner remained absent due to her health issues and domestic problems. The petitioner remained absent due to termination of pregnancy. To the memo dated 15.07.2005 and 05.08.2005, the petitioner submitted her reply indicating her health issues and explained reasons for remaining absent from duty. Learned counsel for the petitioner Sri.Mukannappa would submit that as the petitioner admitted the charge of remaining absent from duty, he would urge only one ground i.e., punishment of dismissal for remaining absent for 209 days is disproportionate to the gravity of charge. Further, learned counsel would submit that there is no finding by the Enquiry Officer that the absenteeism is willful and deliberate. Under such circumstances, since the petitioner had explained that absenteeism was due to health issues, the second 6 respondent-Bank ought to have imposed minor penalty other than the penalty of dismissal. Remaining absent for a period of 209 days would not attract capital punishment of dismissal.
5. In that regard, learned counsel Sri.Mukannappa places reliance on the decision of Hon'ble Apex Court reported in (2012) 3 SCC 178 in the case of KRUSHNAKANT B.PARMAR v/s UNION OF INDIA AND ANOTHER and another decision reported in (2009)15 SCC 620 in the case of CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA LIMITED AND ANOTHER v/s MUKUL KUMAR CHOUDHURI AND OTHERS.
6. On the other hand, learned counsel Sri.B.C.Prabhakar appearing for respondent-Bank would submit that the petitioner admitted her guilt that she remained unauthorizedly absent for 209 days. Further, learned counsel would submit that since the charge is 7 proved, the Disciplinary Authority rightly imposed punishment of dismissal from service. It is submitted that the work in the Bank was hampered and absenteeism of the petitioner affected the business and service of the second respondent-Bank. Therefore, having no other option initiated enquiry and after enquiry the punishment of dismissal is imposed. Further, learned counsel would submit that it is not the case of the petitioner that the petitioner is not provided with opportunity during the conduct of enquiry nor there is violation of principles of natural justice. Further, he would submit that the petitioner has not placed on record any medical records to establish that absenteeism was due to health issues. In the absence of any material to establish that absenteeism was due to health issues, mere statement of the petitioner cannot be taken into consideration. Further, learned counsel would submit that the decision relied on by the petitioner would have 8 no application to the facts and circumstances of the present case since there is no explanation whatsoever for remaining absent for 209 days. In the cases cited by the petitioner (supra), the Hon'ble Supreme Court has come to the conclusion that there was explanation for remaining unauthorized absence and the authorities had not recorded as to whether absenteeism was willful or deliberate. Thus, he prays for dismissal of the writ petition.
7. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration in this petition is as to whether the orders under challenge require interference by this Court.
8. Answer to the above point would be in the negative for the following reasons:
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It is an admitted fact that the petitioner remained absent from duty during the period from 18.05.2005 to 08.09.2005 and from 26.10.2005 to 28.01.2006. The said charge of unauthorized absence for 209 days is admitted by the petitioner. The explanation offered by the petitioner for her absence for 209 days was for medical reasons and domestic problem. To prove or to explain the reasons of medical ground, the petitioner has not placed on record any medical certificate nor any material to establish that she was under treatment. In the absence of material on record to prove that absence of the petitioner was due to health issues, the question of recording as to whether absence was willful or deliberate would not arise. In the absence of cogent reason or material for remaining absent for 209 days it is to be held that absenteeism is willful. If there is some explanation based on material, then a duty is cast upon Disciplinary Authority to examine as to whether the absence from 10 duty was willful and deliberate or for compelling circumstances. In the instant case, as there was no explanation at all and on the other hand, the petitioner admitted that she was unauthorisedly absent, the question of deciding as to whether the absence was willful or deliberate or for compelling reasons would not arise. Hence, the facts of KRUSHNAKANT (supra) would have no application to the present case. In KRUSHNAKANT (supra) the Hon'ble Apex Court has observed that there may be different eventualities due to which, the employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case, the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
But, in the instant case, the petitioner herself admitted that she was on unauthorized absence and there was no 11 material to accept the reason of health issue for remaining absent.
9. In the case of CHARIMAN-CUM-MANAGING DIRECTOR, COAL INDIA LIMITED (supra), the Hon'ble Apex Court held that even though absence from duty was for more than six months, there was explanation for remaining absent and the reason was that it was beyond one's control. In the instant case, on the one hand the petitioner admitted her absenteeism and inspite of notice issued to the petitioner to join the duty as well as paper publication issued on 25.12.2005 in Vijaya Karnataka newspaper calling upon her to report to duty within one week from the date of publication has also not yielded any result. The Karnataka Appellate Tribunal has come to the conclusion that the conduct of the petitioner shows that she was not interested in the work and she has not proved that she was absent on medical grounds 12 by placing medical certificates on record. When the charge is proved in an enquiry conducted in accordance with law, it is for the authorities to impose punishment. Since there is no explanation for remaining unauthorized absence for 209 days, both the decisions relied on by the learned counsel for the petitioner would have no application. The punishment imposed on the petitioner would not shock the conscious of the Court. Thus, I am of the view that there is no merit in the writ petition and accordingly, the petition stands rejected.
Sd/-
JUDGE mpk/-* CT:bms