Karnataka High Court
Sri. Vasu K.V vs The General Manager on 21 March, 2022
Bench: S.Sujatha, Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION No.7599/2021(L-TER)
BETWEEN :
Sri. Vasu K.V.
Aged about 40 years
O/at PB No.76710-51
Hindustan Aeronautics Limited(HAL)
Over Haul Division
Bangalore-560 017
R/at No.120, Venkatadri Nilaya
Opp. Vidya School, 2nd Cross
Sharavathi Road, CM Extension
Kyathasandra, Tumkur-572104. ... PETITIONER
(By Sri.Vasu K.V - Party in person
Sri. Vijay Kumar A Patil, as Amicus Curiae
v/o dated: 20.12.2021)
AND :
1. The General Manager
Hindustan Aeronautics Limited
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Over Haul Division
Bangalore-560 017.
2. The Chairman
Hindustan Aeronautics Limited
No.15/1, Cubbon Road
PB No.5150, Bangalore-560 001.
3. The Chairman
Hindustan Aeronautics Limited
No.15/1, Cubbon Road
PB No.5150
Bangalore-560 001. ... RESPONDENTS
(By Sri. Syed Kashif Ali, for
Sri. Pradeep S Sawkar, Advocate)
---
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India with a prayer to
challenge the award passed by the Hon'ble Central
Government Industrial Tribunal Cum Labour Court on
IA 02/2017 dated 27.10.2020 Annexure-T and etc.
This Writ Petition coming on for Preliminary
Hearing in 'B' group this day, SHIVASHANKAR
AMARANNAVAR, J. passed the following;
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ORDER
Petitioner - party in person has filed this petition seeking the following relief:
"The petitioner prays that this Hon'ble Court is challenge the award passed by the Hon'ble Central government industrial tribunal cum labour court on ID 02/2017 dated 27.10.2020 in the interest of justice and equity, Annexure -T (page No. 129)"
2. Sri. Vijaykumar A. Patil, learned counsel has been appointed as Amicus Curie to represent the petitioner. Heard the Amicus Curie, the party in person and Sri. Syed Kashif Ali learned counsel for respondent.
3. The facts leading to the filing of the present petition are that the respondent is a Government company coming under the control of Ministry of Defence, Government of India. Respondent company -4- has Standing Orders in compliance with the Industrial Standing Orders Act to govern the workmen working with the company. The petitioner - party in person was appointed in the respondent company on 20.07.2007 as a Diploma Trainee in Quality Control Department, Overhaul Division. He was transferred to MS Department as Work Study Assistant with effect from 23.12.2010 based on divisional requirement.
4. Petitioner had obtained movement pass on two days, i.e., on 30.07.2015 and 04.08.2015 for going to the HAL Hospital. Petitioner, instead of visiting the hospital, misused the same and went to HAL Airport Police Station, Bengaluru for lodging a complaint against one Sri. C. Keshava Murthy, Manager, MSD and Sri. Harish, Assistant Engineer, MSD. Since the action of the petitioner amounted to serious misconduct as per the certified Standing -5- Orders of the respondent company he was suspended from service pending enquiry vide letter dated 19.08.2015. Subsequently a detailed charge sheet was issued to him seeking explanation vide letter dated 25.08.2015.
5. The petitioner provided with an unsatisfactory explanation for which the Disciplinary Authority referred the matter to One Man Departmental Enquiry Committee to enquire into the allegations made against him. The Departmental Enquiry Committee conducted enquiry in detail and submitted a report stating that the charges leveled against the petitioner are proved and found him guilty of the charges. The petitioner was issued with a second show cause notice vide letter dated 13.01.2016 proposing punishment of stoppage of 3 APIs with cumulative effect as specific punishment as per the certified Standing Orders of the -6- respondent company calling upon him to submit a report if any on the proposed punishment on or before 23.01.2016. The petitioner submitted a reply dated 19.01.2016 which was found to be unsatisfactory by the Disciplinary Authority. The Disciplinary Authority taking a lenient view, ignoring the gravity of the matter imposed a punishment of stoppage of two APIs without cumulative effect vide letter dated 02.02.2016.
6. Subsequently suspension was revoked and petitioner was permitted to join duty with effect from 02.02.2016 and was assigned to HAL Detachment at Air Force Station, Yelahanka for reporting for duty at Overhaul Division on 10.02.2016. The petitioner was informed that he had been assigned to HAL Detachment, Air Force Station, Yelahanka and was asked to acknowledge the assignment letter. The -7- petitioner refused to take assignment letter and did not report at the HAL Detachment Air Force Station, Yelahanka despite revocation of the suspension order. The petitioner remained unauthorizedly absent from duty from 11.10.2016 for more than 10 days for which the petitioner was issued a loss of lien notice vide letter dated 07.03.2016 with a request to return within 10 days from the date of issue of the letter and explain to the satisfaction of the management the reasons for his absence failing which the loss of lien on his appointment would be confirmed. The petitioner submitted his explanation dated 12.03.2016. The Disciplinary Authority found the same unsatisfactory and referred to a One Man Departmental Enquiry Committee by letter dated 06.04.2016 to enquire into the charges.
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7. The Committee conducted enquiry giving opportunity to the petitioner to present his case, followed the established principles of natural justice, considered all aspects of the matter, past records of the petitioner and gravity of the misconduct committed by the petitioner, confirmed the loss of lien over his appointment. The petitioner was further provided with a second show cause notice dated 30.06.2016 proposing to confirm the loss of lien over his appointment in HAL with effect from 22.02.2016 under Clause 18(ii) of the certified Standing Orders of the company for the misconduct committed by the petitioner and called upon to submit a report on the proposed punishment of confirmation of loss of lien. The Disciplinary Authority considering the reply, all aspects of the case, past record of the petitioner and gravity of misconduct confirmed the loss of lien over his appointment under clause 18(ii) of the certified -9- Standing Orders of the company vide letter dated 05.08.2016.
8. Being aggrieved by the order of loss of lien the petitioner initiated an industrial dispute in I.D. No. 8(3)2017-B3 before the Assistant Labour Commissioner cum Conciliation Officer at Bengaluru on 28.02.2017. The Conciliation proceedings failed and subsequently petitioner raised an industrial dispute in I.D. No. 2/2017 before the Central Government Industrial Tribunal (for short the CGIT), Bengaluru on 05.05.2017. The CGIT by its award dated 27.10.2020 has dismissed the petition filed by the petitioner. The petitioner has challenged the said award passed by the CGIT in the present petition.
9. The learned Amicus Curie for the petitioner would contend that the petitioner was not given a fair
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opportunity of being heard in the departmental enquiry, punishment imposed is highly disproportionate to the alleged misconduct, various correspondence produced by the petitioner have not been considered and he may be provided an opportunity to participate in the enquiry by remanding the matter back to the Enquiry Officer as the petitioner has not adduced oral evidence and the Enquiry Officer has not considered the reply given by the petitioner. The learned Amicus Curie has, in support of his contention that the punishment imposed is not proportionate to the misconduct, relied upon the following decisions.
i. Ranjit Thakur Vs. Union of India, AIR 1987 SC 2386 ii. Bharat Forge Ltd., Vs. Uttam Manohar Nakate, (2005) 2 SCC 489
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iii. Nicholas Piramal India Ltd., Vs. Hari Singh, (2015) 8 SCC 272 He has placed reliance on the following decisions in support of his contention that principles of natural justice are applicable to the departmental proceedings.
i. Moni Shankar Vs. Union of India, (2008) 3 SCC 484 ii. M.V. Bijalani Vs. Union of India, (2006) 5 SCC 88 iii. Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570
10. The petitioner - party in person submitted that he had a family problem and therefore he intended to make a request to his higher ups for cancellation of his transfer to Yelahanka base and he was not allowed to meet the higher ups and he had no ID at that time. On enquiry by us, the petitioner
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intimated that he had not made any efforts to go to Yelahanka Air Force station to work in the transferred post.
11. Learned counsel for respondent would contend that this Hon'ble Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India ought not to interfere with the award passed by the learned Presiding Officer of CGIT, Bengaluru. The Courts will not act as an appellate Court and re-assess the evidence led in a domestic enquiry. Courts can only interfere with the findings in disciplinary matters if principles of natural justice or statutory regulations have been violated and if the order is found to be capricious, arbitrary, malafide or based on extraneous consideration. He further contends that the CGIT, acting reasonably, has upheld the punishment of loss of lien based on the material on record. The order of
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confirmation of loss of lien for his employment has been passed based on consideration of all the material on record. He contends that when the Standing Orders provides that in case of over stay of more than certain number of days the workman will loose lien on appointment which will result in automatic cession by voluntary act on the part of the employee. He further contends that under Articles 226 and 227 of the Constitution of India this Court can not re-assess or re-appreciate the findings on facts. It is his further submission that the petitioner was given reasonable opportunity to participate in the proceedings before the Enquiry Officer and he has participated in the domestic enquiry, cross-examined the witnesses examined for the management and he has not chosen to examine himself as a witness. It is his further submission that taking into consideration the past conduct of the petitioner, the Disciplinary Authority
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has confirmed the loss of lien under Clause 18(ii) of the certified Standing Orders of the company and the said confirmation of loss of lien leads to termination of service and there are no other modes provided in the Standing Orders for punishment for loss of lien. On the above points he has placed reliance on the following decisions:
i. Gujaraj Electricity Board and another Vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602 ii. State Bank of India Vs. Anjan Sanyal, (2001) 5 SCC 508 iii. Union of India and others Vs. P. Gunaekaran, (2015) 2 SCC 610
12. Records of the proceedings before the CGIT have been secured and we have perused the same. It is trite law that the High Court cannot act as an appellate authority in the disciplinary proceedings, re-
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appreciate the evidence lead before the Enquiry Officer. What are the matters to be looked into by the High Court came up for consideration before the Hon'ble Apex Court in the case of Union of India Vs. T. Gunashekaran, supra, wherein it is held as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
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a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
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g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 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 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.
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(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."
13. In the case of Bharat Forge Ltd., Vs. Uttam Manohar Nakate, supra and M.V. Bijalani Vs. Union of India, supra, the Apex Court has held that the principles of natural justice are applicable to departmental proceedings and the delinquent should be given right of hearing. In the instant case, the petitioner has participated in the domestic enquiry and he has not appointed any co-employee to re-present him and he participated in the proceedings on his own and cross-examined the management witnesses. The petitioner was asked by the enquiring authority to lead his evidence and he said that he had no evidence to lead and it has been recorded in the proceedings
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which bears the signature of the petitioner. The CGIT after hearing both the petitioner and the respondent by its order dated 27.10.2020 has held that the enquiry was held against the workman by affording opportunity to him to defend himself against the letter
- Ex.M.1 in respect of subject of loss of lien. Considering all these aspects the petitioner was given opportunity to defend himself in the departmental enquiry and there is no violation of principles of natural justice.
14. Petitioner was permitted to join duty with effect from 02.02.2016 and was transferred to HAL Detachment, Air Force Station, Yelahanka and asked to acknowledge the assignment letter and the petitioner refused to take the assignment letter and did not report at HAL Detachment at Air Force Station,
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Yelahanka and remained unauthorizedly absent from duty with effect from 11.02.2016.
15. Transfer is an incidence of service and therefore an employee or workman has to obey the order of transfer. The Hon'ble Apex Court while dealing with a situation of flouting the orders of transfer in the case of State Bank of India Vs. Anjan Sanyal, supra, has observed thus:
"4. ... ... The entire fact situation unerringly point out to one fact namely the respondent flouted the orders of transfer, did not join the place of posting, did not apply for or take leave for his absence, did not discharge his duties, and yet the High Court in exercise of its discretionary jurisdiction, not only set aside the order of transfer on a pretext which does not appeal to us with regard to the non-
communication of the orders of transfer
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and even directed that the respondent would be entitled to his salary, increment, promotion and then only, could be considered for further transfer to anywhere else. To us, it appears that the High Court has granted premium to an errant officer, who did not obey the orders of transfer and did not discharge any duty for which conduct of his, he could have been proceeded with, in a departmental proceeding on the charge of gross misconduct and could have been punished".
16. Petitioner who was reported for duty at Overhaul Division on 10.02.2016 was informed that he has been posted to HAL detachment at Air Force Station, Yelahanka and he refused to take the assignment letter and did not report to duty at HAL detachment at Air Force Station, Yelahanka and he remained unauthorized absent from duty with effect
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from 11.02.2016 for more than 10 days. The petitioner has given his explanation dated 12.03.2016 stating family problems and the same was found not satisfactory and he did not report at HAL detachment at Air Force Station, Yelahanka subsequently also. The Enquiry Authority, after enquiry, has ordered for confirmation of loss of lien. Loss of lien has been provided under clause 18(ii) of the certified Standing Orders which reads thus:
"18. Termination of Employment
(i) xxx xxx
(ii) Loss of Lien:
If a workman remains absent for more than 10 days and/or absents himself beyond the period of leave originally granted, or subsequently extended, he shall lose his lien on his appointment, unless he returns within 10 days of the expiry of the notice of termination and explains to the satisfaction of the
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Management the reasons for his inability to return before the expiry of the leave.
In case the explanation of the workman is found not satisfactory or the workman does not submit any explanation before the specified date, in order to afford one more opportunity to the workman before confirmation of loss of lien, the Management or an officer of the Company authorized in this behalf shall refer the matter to a departmental enquiry committee consisting of one or more persons. Based on the findings of the departmental enquiry committee, the Manager shall pass appropriate orders."
17. The only incidence of confirmation of loss of lien is termination of service. Looking to the misconduct, i.e., unauthorized absence of the petitioner and his previous misconduct the Disciplinary Authority has rightly confirmed the loss of lien. There is no other mode of punishment in the Standing
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Orders of the respondent company in case of loss of lien. Therefore, the punishment imposed cannot be said to be disproportionate to the misconduct of the petitioner. We do not find any perversity or infirmity in the order passed by the CGIT. Hence, the petition is dismissed.
Office is directed to send back the original records to the Central Government Industrial Tribunal cum Labour Court, Bengaluru, forthwith.
Sd/-
JUDGE Sd/-
JUDGE LRS