Karnataka High Court
Karnataka State Coir Development vs H S Ramesh Raju on 11 February, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11th DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
WRIT APPEAL NO.30932/2012(S-RES)
BETWEEN:
KARNATAKA STATE COIR DEVELOPMENT
CORPORATION LIMITED
REPRESENTED BY MANAGING DIRECTOR
VITC BUILDING, KASTURIBA ROAD,
BANGALORE 560 001.
...APPELLANT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
H.S. RAMESH RAJU
S/O H.L.SITARAM RAJU
AGE 41 YEARS, OCC: SERVICE
MANAGER KARNATAKA STATE COIR
DEVELOPMENT CORPORATION LIMITED
HUBLI.
...RESPONDENT
(BY SRI. ANANT P. SAVADI, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT 1961 PRAYING TO SET ASIDE
THE ORDER DATED 14/06/2012 PASSED BY LEARNED SINGLE
JUDGE IN W.P.NO.63354/2009 AND CONSEQUENTLY DISMISS
THE SAME.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, C.R.KUMARASWAMY J, DELIVERED THE
FOLLOWING:
JUDGMENT
This writ appeal is filed under Section 4 of the Karnataka High Court Act, 1961, praying to set aside the order dated 14/06/2012 passed by the learned Single Judge in Writ Petition No.63354/2009 and consequently dismiss the same.
2. A petition was filed by the petitioner in Writ Petition No.63354/2009. The grievance of the delinquent employee is that though he has performed his work, the management has not paid the salary since May 2008. Several requests were made but in vain. The respondent i.e. the management issued a :3: show cause notice dated 07/02/2009 calling upon the delinquent employee to show cause as to why the petitioner has sold articles even though there was a prohibition to sell the articles on credit basis amounting to Rs.1,46,644/- and despite oral instructions, the employee has not taken steps and stock, when verified, was found short of Rs.15,509/- and Rs.41,899/-. This amount was not remitted by the delinquent employee from the sales of the articles. The delinquent employee had also sold certain materials on credit basis and there was an outstanding credit of Rs.1,46,477/-. Another show cause notice dated 27/02/2009 was issued to the delinquent employee that when there was a shortage of sum of Rs.21,926/- was found. The delinquent employee states that his salary from May 2008 may be released since no charge sheet has been filed and :4: there was no inquiry and no opportunity was given to him.
3. Statement of objections was also filed by the management. The management has stated that the employee himself has agreed that his salary from 2008 should be paid only after he deposits the misappropriated cash sales amounting to Rs.41,899/- and credit sales amounting to Rs.1,46,140/- on or before 25/01/2009. He further states that though there was prohibition of sale of goods on credit basis, the petitioner has sold the goods on credit basis and has failed to recover the same from the parties. The employee has also mis-appropriated cash sales amount of Rs.41,899/- and did not deposit the same in the account of the Corporation. Further, during the employee's period, there was a shortage of stock worth Rs.21,926/- and the employee failed to remit the said amount in the account of the respondent. :5: The employee, instead of remitting the admitted amount of misappropriation, got issued a legal notice dated 18.2.2009. The same was suitably replied on 22/05/2009. As the employee failed to deposit the amount, office order dated 12/03/2009 was issued stating that the salary which is not paid/with held since June 2008 will be continued till the petitioner deposits the total amount of Rs.2,10,469/-.
4. Learned Single Judge has passed the following order:
"Though the petitioner has not sought for quashing of the order dated 12/03/2009 Annexure-M of the respondent-employee indicating that the salary of the petitioner will not be paid until he deposits Rs.2,10,469/-, nevertheless in order to mould the relief to the petitioner, it is incumbent upon the Court to quash Annexure-M as being one without authority of law since the respondent is unable to point out to any rules or conduct :6: disciplinary rules which invests a jurisdiction to stop payment of salary to an employee.
In the result, this petition is allowed in part. The order dated 12.03.2009 Annexure "M" of the respondent is quashed. The respondent, as a consequence, is directed to compute and pay the arrears of salary which the petitioner is entitled to."
5. Feeling aggrieved by the same, the management has preferred this appeal.
6. We have heard the learned counsel for the appellant as well as learned counsel for the respondent. We have perused the records.
7. Learned counsel for the appellant submits that the learned Single Judge ought to have seen that the respondent has admitted the misappropriation and has also given a letter of undertaking as per Annexure R-1 which is in his own handwriting, which is not :7: disputed. Hence, direction to pay arrears of salary is unsustainable since the appellant will not be able to recover the same in the event of charges being proved. He further submits that on 16/07/2009 inquiry officer has also submitted a report against the charge sheeted employee stating that the charges leveled against the respondent are proved. Therefore, the direction issued by the learned Single Judge to compute and pay the arrears of salary is illegal. He further submits that the charge sheeted employee will scot-free and the management will not be in a position to recover the amount. Therefore, he seeks to set aside the order dated 14/06/2012 passed by the learned Single Judge in Writ Petition No.63354/2009.
8. Learned counsel for the respondent supports the order passed by the learned Single Judge. He further submits that there is no law to withhold the salary of the delinquent employee. :8:
9. Therefore, two points arise for consideration in this appeal:
1. Whether quashing of Annexure-"M" i.e. with holding the salary of the charge sheeted employee by issuing the notice dated 12th March 2009, is sustainable in law or not?
2. Whether the learned Single Judge issuing a direction to compute and pay the arrears of salary to which the charge sheeted employee is entitled to, is proper or not?
10. In the case of Union of India Vs. K.Y. Janakiram, reported in 1991 AIR 2010 relevant portion of paragraph 7 reads as under:
"7. xxxxxx We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of :9: the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule : 10 : that in every case when an employee is exonerated from disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub- paragraph after clause(iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, : 11 : and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
To this extent we set aside the conclusion of the Tribunal on the said point."
11. Normally, the management is vested with the power to decide whether the delinquent employee deserves any salary or not. In this case, the charge leveled against the delinquent employee is that the delinquent employee had made loss to the management i.e. loss by wrongful gain of profit which the management is losing. Therefore, the management has got lien over the misappropriated funds.
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12. Now it is the contention of the learned counsel for the appellant that enquiry was conducted and the charges leveled against him and the delinquent employee is found guilty of the charges leveled against him. He further submits that delinquent employee has been dismissed as on this date and subsistence allowance was paid during the inquiry period and misappropriated amount has been adjusted while releasing the subsistence allowance.
13. The main grievance of the appellant is that salary was withheld on the basis of the undertaking given by the delinquent employee and in case, as per the direction of the learned single Judge, if arrears of salary is released, it will be difficult for the management to recover the same. Therefore, he seeks to set aside the direction issued by the learned Single Judge to compute and pay arrears of salary : 13 : which the petitioner/delinquent employee is entitled to.
14. No doubt, in order to mould the relief to the petitioner/ delinquent employee, learned single Judge has quashed Annexure "M. The observation of the learned single Judge in respect of first part of Annexure "M" is proper. The other part of the order that the respondent is directed to compute and pay the arrears of salary to which the petitioner/delinquent employee is entitled to, is not proper because the management will have right over the salary of the delinquent employee, for the reason that the delinquent employee has used the money of the management for his own use, besides the management will have discretion to decide whether delinquent employee deserves salary or not. Therefore, this part of the order has to be set aside since it is unsustainable in law. Therefore, we are of : 14 : the view that the respondent, as a consequence, is directed to compute and pay arrears of salary which the delinquent petitioner is entitled to, is hereby set aside.
Accordingly, we answer point No.1 in the affirmative and Point No.2 in the negative and pass the following:
ORDER
1. Writ Appeal is allowed in part.
2. The order relating to quashing of Annexure-M is affirmed.
3. The order relating to issuing a direction to the Management to compute and pay the arrears of salary to the delinquent employee is hereby set-aside.: 15 :
4. Liberty is reserved to the parties to work out their remedies in accordance with law.
SD/-
JUDGE SD/-
JUDGE Kmv