Bangalore District Court
B.V.Venkateswara Rao vs Adarsha Film Institute on 5 January, 2017
1 M.A.(EAT) No:33/1998
BEFORE THE EDUCATIONAL APPELLATE TRIBUNAL,
AND THE III ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH.25).
Dated: This the 5th day of January 2017
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
M.A. (EAT) No:33/1998
Appellant B.V.Venkateswara Rao, 44 years, C/o
Smt.K.Pramila, Shri Maharagne Nilaya,
No.619, 6th Main Road, 6th Cross, Bhavani
Nagar, Kempegowda Nagar, Bangalore-
560 019.
(By Sri.PNN, Advocate.)
Vs
Respondents: 1. Adarsha Film Institute, Repted by
the Managing Director and
Disciplinary Authority, No.39,
Nethaji Road, Bangalore-560 005.
2. The Director, Department of
Information, No.17, Vartha
Bhavana, Bhagavan Mahaveer Jain
Road, Infantry Road, Bangalore-
560 001.
(R1 by Sri.MGR, Advocate)
(R2 by ADGP)
Date of Institution 7.11.1998
Nature of suit Appeal Under Education Act
Date of commencement of 10.9.2009
evidence
Date on which the judgment was 5.1.2017
pronounced.
2 M.A.(EAT) No:33/1998
Total Duration: Years Month Days
18 0 28
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This appeal is filed U/Sec.94 of The Karnataka Education Act, 1983 (hereinafter referred in short as "Act").
2. In short the contents of the appeal memo are that; the appellant joined the service of respondents in the year 1990 and ever since the date of his appointment he was working as a Sound Recordist (Sound Engineer) with utmost zeal and zust by maintaining good service record. That while in service the appellant formed an union known as "Adarsha Film Institute Employee Union, (Regd)" and he was the President of it. On account of formation of the said union the management did not like him to continue in the union as he was fighting for better service conditions of it's members, so in order to wreck vengeance against him, the respondent no.1 started harassing him in one or the other way, even it tried to break the union so that they can make the appellant to act to their tune. When the said respondent did not succeed in it, it placed the appellant under suspension on 3 M.A.(EAT) No:33/1998 23.4.1996 without any reason and it was came to be recalled by the President of the Managing Committee viz; Dr.Jeevaraja Alva. However the order of the President was not given effect to as there was a tussle between the President and Managing Committee. Thereafter by issuing charge sheet dt.30.9.1996 three charges were leveled against the appellant and it was suitably replied by him. But without considering the same one Jnana Mithra was appointed as Presenting Officer and Smt.Eliza D'Souza was appointed as enquiry officer. During the enquiry the Managing Director B.R.P.Swamy used to be present and dictate how enquiry is to be conducted by the enquiry officer and Presenting Officer. Because of his said interference the Enquiry officer expressed her inability to continue the enquiry, so she was relieved of her duty and one N.P.Padmanabha Rao was appointed in her place. In the meanwhile the management also reduced the subsistence allowance to the appellant from 50% to 25% of his salary and filed caveat in the City Civil Court so that he should not approach the court questioning the reduction in the rate of subsistence allowance and even if he approaches it, it has to be heard before any order is passed in that matter. The appellant challenged the said order by filing W.P.No:12388/97 on the file of Hon'ble High Court of Karnataka and the same is pending. Since the said Padmanabha Rao also did not come forward to conduct enquiry, Mr.N.Ramesh was appointed as Enquiry officer in 4 M.A.(EAT) No:33/1998 his place and B.K.Bhagavan, the Principal of the institute was appointed as Presenting Officer. These acts of the management themselves show that they wanted to have an enquiry and it's result in a way they wished. When the said enquiry was under progress, the respondent no.1 issued additional charge sheets on 5.3.1997 and on 18.3.1997 alleging that this appellant refused to receive the memo and when it was sent by registered post it was not claimed by him and that by going to the press the appellant has lowered the reputation of the institute and instigated the staff to go on strike. Thus the respondent no.1 had determined to remove him from service. The said additional charge sheets were also replied by the appellant, but as usual they were not taken care of. Because of threat of managing committee, co-employees of the appellant, whose assistance he sought to defend him in the enquiry, did not come forward. Therefore the appellant requested for appointment of an advocate to represent his interest, but it was refused by the Enquiry officer. Against the said order the appellant filed W.P.18732/97 and interim stay was granted in it. Having kept quite still that stay was in operation the Enquiry officer proceeded with the enquiry during the pendency of that proceeding and gave his report without giving any opportunity to the appellant to cross-examine the management witnesses or to submit his written arguments. Based on that report show-cause-notice was issued to the appellant along with it's copy. The appellant requested time 5 M.A.(EAT) No:33/1998 to submit his explanation to the said report as well as show- cause-notice as W.P.No:18732/97 was still pending. But without taking note of the same the respondent no.1 passed the impugned order of dismissal on 10.8.1998. Being aggrieved by the same the appellant has moved this tribunal on the following grounds;
that the impugned order is illegal, arbitrary and without authority of law; that the respondent no.1 did not afford reasonable opportunity to the appellant during the enquiry to defend him properly; that the charges leveled against this appellant were vague; the frequent changing of Enquiry officers show that the respondent no.1 was not interested in fair trial; Enquiry officer proceeded with the enquiry exparte without permitting the appellant to engage a lawyer on his behalf as no co-employee was ready to defend him because of the threat by respondent no.1; it was illegal on the part of the Enquiry officer to proceed with the enquiry when W.P.18732/97 was very much pending on the file of Hon'ble High Court; the prayers of the appellant to recall the management witnesses for cross-exam and provide him time to submit his written arguments were not considered by the Enquiry officer; when similar charge was leveled against other employees viz; N.Balasubramanya, A.M.Mulla and Ravindra Singh, it did not take action against them by holding an enquiry and singled out this respondent alone. All these factors have led to biased findings of Enquiry officer and based on such report, ignoring the explanation of the 6 M.A.(EAT) No:33/1998 appellant impugned order was passed, wherefore the appellant prays to set aside the same and to reinstate him with full back wages from the date of dismissal till the date of reinstatement.
3. The respondent no.1 appeared and filed objection statement as under;
that this respondent no.1 is a registered society under The Karnataka Societies Registration Act and the Executive Committee consists of seven members and it functions as Board of Directors. None of the members of the board is a Government Nominee and all the members of the committee are independent persons having power to remove any executive member including the President. Clause-no.9 of the rules of the society provide power to the Executive Committee for appointment of staff and to take disciplinary action against them in the event of their misconduct. The Managing Director will be elected by Executive Committee and it is the sole body to take action against it's employees. That the respondent no.1 is a film institute imparting education in film acting and play back singing. Several producers had written lot of complaints against this appellant who was working as a Sound Recordist alleging that he insists for bribery, food from particular restaurant or hotel, use to abuse his subordinates in vulgar language, use to stop the work and goes out indefinitely and thereby delay the completion of work unless his demands are met. Therefore 7 M.A.(EAT) No:33/1998 he was kept under suspension and Smt.D'Souza was appointed as an Enquiry officer and as explanation offered by the appellant was not satisfactory, she was asked to hold enquiry against him and when she expressed her inability to continue with the enquiry, Mr.Padmanabha Rao was appointed and when said person was also failed to attend the enquiry, Ramaiah was appointed as Enquiry officer. It is denied that during the enquiry proceedings Managing Director Swamy used to come and sit and was dictating the Enquiry officer as well as the Presenting Officer regarding manner of conducting of enquiry and for that reason D'Souza got relieved herself from the enquiry. It is true that the additional charge sheets were issued to the appellant for his further misconducts and next Enquiry officer Ramaiah provided a fair opportunity to the appellant to defend him in the enquiry, but by remaining absent, seeking adjournments on frivolous grounds, without cross-examining the Management witnesses and without adducing his evidence, the appellant himself suffered the order, so now he cannot raise his finger at the respondent no.1 alleging that no proper opportunity was given to him to defend him. It is true that the appellant had filed W.P.18732/97 and interim stay was granted in it, but when it was came to be vacated enquiry was proceeded and report was received. By the time the said writ petition was disposed of enquiry was completed and explanation of the appellant was called. Hence the reasons stated in the appeal memo are false, frivolous and 8 M.A.(EAT) No:33/1998 untenable. The grounds urged in the appeal memo are vexatious and have no substance in them. Since the other three employees viz; N.Balasubramanya, A.M.Mulla and Ravindra Singh tendered their unconditional apology, no enquiry was initiated against them. Since appellant continued his misconduct charges were framed and enquiry was held against him. As the rules for holding enquiry did not permit him to engage an advocate his prayer for the same was rejected. In order to gain sympathy from the court appellant has lied and this respondent is governed by KPEI Rules of 1978 and as the charges leveled against the appellant were very serious, the action taken by the management to maintain it's reputation is just and proper. By adopting delay tactics the appellant un-necessarily prolonged the enquiry, wherefore the rate of subsistence allowance was reduced as per rules. There is no substance in the appeal memo nor the appellant deserves any sympathy, hence the respondent no.1 prays to dismiss the appeal with costs.
4. The respondent no.2 has not taken interest to contest.
5. Based on the said pleadings my predecessor in office has framed the following issues:
ISSUES
1. Whether appellant proves that, enquiry initiated/conducted by the respondent against him were not as per Rules 9 M.A.(EAT) No:33/1998 approved under the Karnataka Education Act, 1983?
2. Whether the dismissal order dated.10.8.98 against the appellant by the respondent is in accordance with law?
3. Whether the appellant is entitled for reinstatement with all benefits of regular service?
4. To what order the parties are entitled?
6. In support of his appeal, appellant examined himself as PW1 and got marked 73 documents. On the other hand the respondent no.1 examined the Enquiry officer as RW1 and Cini & Sound Operator as RW2 and in all Ex.R1 to R174 are marked. I have heard the arguments of Sri.PNR, Advocate for the appellant and Sri.KR, Advocate for respondent no.1. Perused the written synopsis of appellant, respondent no.1 and decisions relied by both side.
7. My finding on the above issues are as under:
Issue No.1 - In the negative Issue No.2 - In the affirmative Issue No.3 - In the negative Issue No.4 - As per final order, for the following:
REASONS Issue No.1 to 3:
8. Since the issues in hand are closely interwoven and findings on one issue may indirectly influence the findings on 10 M.A.(EAT) No:33/1998 the other, in order to avoid duplication of discussion I have taken them simultaneously.
9. As evident from the case file nevertheless this matter ought to have been disposed off summarily at an earliest, for the reasons reflected from the order sheet it's disposal was delayed, let us not attribute any one person for the same as order sheet itself speaks on it. It is borne from the said order sheet that my predecessor in office having posted the matter for appellant's evidence after giving enough opportunity to adduce his evidence, when he failed to turn up by his order dt.21.3.2003 dismissed this appeal for default. On the same day at 3.30 p.m. counsel for the appellant filed an application U/Sec.151 of CPC to restore the matter to file and it was also came to be rejected on the same day. Being aggrieved by the said order the appellant moved Hon'ble High Court in W.P.No:51845/03 and on hearing both side, Hon'ble High Court allowed it vide it's order dt.1.2.2005 and quashed the order passed by this court on 21.3.2003, consequently matter was restored to the file. Later the appellant filed an application to delete the original respondent no.2, the State of Karnataka represented by Department of Kannada & Culture and in it's place the Director, Department of Information was added as respondent no.2, and said respondent, as mentioned above has not taken interest to contest. It is only a sample to explain the cause for delay.
11 M.A.(EAT) No:33/199810. Having carefully gone through the entire case file and the grievances of the appellant vented in the appeal memo as well as in his written synopsis filed on 16.10.2015, I would like to record my findings on them as they will effectively assist in arriving the conclusion on the issues in hand.
11. As borne from the appeal memo Para-9 it is the first and foremost contention of the appellant that no reasonable opportunity was afforded to him in conducting the enquiry and it vitiates the same etc., I find that while making such allegation he has not explained what is the meaning of "reasonable opportunity" according to his own interpretation. It is essential in the background that respondent no.1 has produced entire enquiry file and got it marked as Ex.R1 to R174. As can be seen from the case file initially Articles of Charges dt.30.9.1996 containing three charges was served on the appellant and later on alleging that he continued his misconduct additional charge sheets dt.5.3.1997 and 18.3.1997 were came to be served upon him during the enquiry. Then having conducted a common enquiry for all these charges and preparing his detailed report marked as Ex.R1, the enquiry officer has meticulously explained the procedure followed by him. Infact he starts with the enquiry commenced by Smt.Eliza D'Souza and holding of three sittings by her and gives details of 20 sittings and out of those 20 sittings he also mentions that only 10 sittings were attended by this appellant and the 12 M.A.(EAT) No:33/1998 attitude of the appellant in seeking time throughout the enquiry on two grounds. Firstly that he (appellant) has moved the Hon'ble High Court against refusal to engage a lawyer on his behalf by filing W.P.No:18732/97 and secondly regarding reduction of subsistence allowance he has filed W.P.No:12388/97 and it is also pending and unless the said matters are disposed of, enquiry cannot be proceeded with. To some extent he was able to get stay of enquiry proceedings in W.P.No:18732/97 and after it's disposal the enquiry officer proceeded with the enquiry and completed it. So let me attend his grievance whether on the reason that writ petitions were pending on the file of Hon'ble High Court enquiry officer could have suspended the enquiry proceedings at the behest of this appellant? According to me law on this point is well settled. In number of decisions our Hon'ble High Court has held that mere pendency of an appeal, revision or review is not a ground to operate as a stay to the trial court or other authority to stop it's proceedings in a matter pending before it. To quote few decisions on the point I may usefully refer to HCR 2013 KANT 30 (C) (Pawan Kumar Surana Vs Smt.M.S.Nagalakshmi and others), 2010(1) KCCR 543 (C) (Shivarudrappa Fakirappa Uppin (dead) by his L.Rs and others Vs Executive Engineer, KHB, Hubli) and ILR 2006 KAR 3909 (Yallapur Rubber Mills Vs Sri Tulasi Industries through it's Partner and another). So one cannot accept the contention of appellant that enquiry officer was not justified in proceeding with the 13 M.A.(EAT) No:33/1998 enquiry though the writ petitions were seized by the Hon'ble High Court. First of all though the writ petitions were came to be disposed of during the pendency of the enquiry itself, he did not bother to produce their copies in this case. Unless the appellate court or authority exercises it's discretion to stay the trial or proceedings of the lower court or lower authority, the latter is not expected to raise his hands and keep quite without going ahead in the matter. Hence I straight away reject his so-called grievance on this aspect.
12. The main attack of the appellant is that since charges leveled against him were bit complicated he ought to have been permitted to engage a lawyer to defend him before the enquiry. The order sheet maintained by the enquiry officer produced at Ex.R1 and the reasons assigned there show that repeatedly the appellant tried to stall the proceedings of enquiry by filing applications one after the other seeking permission to engage an advocate and successively they were came to be rejected by the enquiry officers. Here one thing has to be kept in mind that indisputably the respondent no.1 is a private educational institution and it was earlier governed by The Karnataka Private Educational Institutions (Discipline & Control) Act, 1975, which came to be replaced by The Karnataka Education Act, 1983. Though the latter Act indicates that it is of 1983, it came in to effect in the year 1995 as Act No.1 of 1995, till then the earlier Act was in force. As a result of delayed enforcement of 1983 Act, Rules were also not 14 M.A.(EAT) No:33/1998 framed immediately after it's enforcement in 1995. Only in the year 2003, the rules were framed and till then the Private Education institutions were guided by The Karnataka Private Educational Institutions (Discipline & Control) Rules, 1978. As per Rule-17(7), which dealt with the procedure for imposing major penalties enabled a delinquent employee to present his case with the assistance of any other person approved by the enquiry committee, but may not engage a legal practitioner for the purpose unless the person nominated by the discipline authority to present it's case is a legal practitioner or the enquiry committee having regard to the circumstances could have permitted to engage such lawyer. In the case in hand whenever representations were made by the appellant to engage a legal practitioner/lawyer on his behalf the earlier enquiry officer as well as the subsequent enquiry officer having referred his said requests to the managing committee declined to engage a lawyer on his behalf. The appellant having challenged the said orders on the file of Hon'ble High Court by filing writ petition and being unsuccessful in it, he cannot again urge the very same ground to attack the legality and correctness of the enquiry. When the rules framed by the legislatures themselves did not permit the appellant to seek such relief as a matter of right, it was too much on his part to waste precious time of the enquiry proceedings and delay the trial by urging the very same ground again and again.
15 M.A.(EAT) No:33/199813. During the arguments by referring to the decision reported at (1991)2 SCC 283 (J.K.Aggarwal Vs Haryana Seeds Development Corporation Ltd. and others) the appellant tried to contend that he was not debarred from engaging a lawyer in a domestic enquiry. I have gone through the said decision. It is not clear whether Hariyana Civil Services (Punishment and Appeal) Rules 1952 are in par materia with K.P.E.I. Rules. Secondly in that decision itself Hon'ble Supreme Court clarified that if the Presenting Officer is a person of legal mind and experience, then only a delinquent employee may be permitted to engage a lawyer to represent him in domestic enquiry. In the case in hand it is not the contention of appellant that S.K.Bhagavan, who was appointed as Presenting Officer by respondent no.1 was legal minded person and was well experienced compelling him to engage a lawyer. Thirdly I doubt the claim of the appellant to engage lawyer in defending him before the enquiry on one more strong reason, which he himself has urged and has sought to vitiate the enquiry on the same. As indicated earlier throughout the enquiry the appellant gave several representations stating that because the subsistence allowance was not paid to him regularly and it was drastically reduced one year after the enquiry he was unable to attend the enquiry and defend himself. If his said version was really true, one has to seriously doubt his contention that he was deprived of engaging a lawyer to defend him. It is needless to say that he could not availed the services of a lawyer 16 M.A.(EAT) No:33/1998 unless he paid the professional charges of such person and it rules out that he was financially disabled to appear before enquiry. Thus by taking inconsistent stand i.e. he was not permitted to engage lawyer in one breath and in the very next breath by submitting that because of non-payment of subsistence allowance he could not attend and defend himself, he has exposed himself to show that there was no substance in the grounds urged by him.
14. Even then I would examine whether was he justified in seeking payment of full salary on the reason that enquiry was delayed beyond the stipulated period. Again for this I would refer to Rule-13 of K.P.E.I. Rules. As per Sub- Rule-1(a) subsistence allowance has to be paid equivalent to 75% of the pay drawn immediately prior to the date of suspension and additional dearness allowance if admissible, on the basis of amount of such subsistence allowance. In the proviso to said sub-rule it is provided that if the period of suspension exceeds 12 months, the authority may vary the subsistence allowance and as per Sub-Rule-1(a)(ii) if the delay in the enquiry was occasioned by the delinquent official the subsistence allowance may be reduced considerably. Further as per Sub-Rule-1(b) each claim for subsistence allowance should be supported by a certificate by the employee concerned to the effect that he was not engaged in any employment, business, profession or vocation during the period to which the claim relates. Thus the delinquent employee cannot claim the subsistence allowance as a 17 M.A.(EAT) No:33/1998 matter of right unless he demonstrates his unemployment through a document. Let me examine whether was there any lapses on the part of the respondent no.1 in payment of subsistence allowance. For this I refer to Ex.R7 to R9. Through Ex.R7 dt.20.3.1997 the Managing Director of respondent no.1 ordered that appellant is entitled for payment of subsistence allowance at the rate of 50% of his salary till December 1996 and it was already paid to him. Thereafter he was paid subsistence allowance at the rate of 25% of his salary from January 1997 as enquiry was delayed by him on his part and cheque was enclosed towards payment of subsistence allowance of February 1997. This Ex.R7 is corroborated by the computation sheet of subsistence allowance produced at Ex.R8. Since the appellant himself did not furnish the certificate and other documents as required under the said rule delay was occasioned. This aspect is reflected in Ex.M23 to M26 marked before the enquiry officer and which are part of the file containing Ex.R1 to R13. Repeatedly the Managing Committee clarified that since the appellant was the sole cause for delay in the progress of the enquiry, he is not entitled for subsistence allowance equivalent to his salary.
15. In the written arguments on page no.4 at ground
(b) the appellant submitted that management did not pay him subsistence allowance during the pendency of the enquiry and also the "arrears of salary" due to him. I afraid whether an employee can expect arrears of salary when he 18 M.A.(EAT) No:33/1998 is under suspension and facing enquiry. Quite contrary to the written arguments during his cross-exam on page no.25 at about 9th line from the top he admitted that he has received whatever amount was due as subsistence allowance during his suspension period. This fact was again admitted by him on page no.28 when he was further cross-examined on 7.3.2014 at third line from below. These admissions rule out his contention that he was not paid subsistence allowance during the enquiry and that disabled him to defend himself. Along with the written arguments the appellant also filed copy of the decision reported at (2008) 2 SCC 55 (State Government of Madhya Pradesh and others Vs Shankarlal). In that case the Hon'ble Court held that unless it is shown that because of non-payment of subsistence allowance alone a delinquent employee was not in a position to participate in the proceedings or causing of any other prejudice in effectively defending the proceedings is shown, enquiry cannot be vitiated. The fact that even after being well aware of the enquiry proceedings and having attended some of the hearings and having filed two applications to recall the management witnesses, even after they were liberally allowed by the enquiry officer the appellant bluntly did not attend the enquiry and cross-examine the said witnesses. Even he did not bother to adduce oral evidence on his behalf. The Ex.R1 shows that the appellant filed his first application to recall MW1, 2, 5, 6 and 7 on 26.5.1997 and it was allowed by the enquiry officer on 6.6.1997, but by 19 M.A.(EAT) No:33/1998 remaining absent in the next adjournment appellant lost his opportunity to cross-exam the said witnesses, so they were came to be discharged. Misusing the magnanimity of the said authority appellant again filed second application on 15.7.1997 seeking to recall the said witnesses again and it was also allowed and he was permitted to cross-examine by 28.7.1992. Since on that day also he did not turn up, the witnesses were discharged. Thus by his conduct the appellant played hide and seek in the enquiry proceedings and he continued the same in the trial of this appeal also. On page no.22 of his cross-exam in unnumbered third paragraph when a direct question was put to him to know his complete residential address he flatly refused to divulge it and replied that he has changed his residence from Viveknanada Nagar, Khadi Commercial Layout, Bangalore and he will not disclose his shifted residential address. His said conduct attains crucial importance for the reason that as it was mandatory on his part to submit the documents to claim subsistence allowance as evidenced by Ex.R103 to R.122. Whenever subsistence allowance was paid to the appellant the respondent no.1 has taken suitable declarations from him. That being the case without furnishing such declarations and without providing his residential address for communication he went on putting blame on the respondent no.1 stating that no subsistence allowance was paid to him and in his cross-exam in this appeal took altogether different version. Wherefore his 20 M.A.(EAT) No:33/1998 another contention that subsistence allowance was not paid to him, so he could not defend himself is also liable to be rejected.
16. His further contention that since he was espousing the common cause of his colleagues he was made as a scape goat and he alone was victimized and other employees against whom the similar charges were made were not proceeded with, I again find that his said grievance is also without any substance. Here I would emphasis that there are three articles of charges against the appellant. The first Article of Charges contained three charges i.e., firstly he was guilty of misconduct by creating rumpus in the institution and incite violence amongst the employees of the institute by disturbing the peaceful atmosphere there and that he use to abuse his subordinates and colleagues in foul language; secondly from the date of assuming charge as a Sound Recordist he exhibited insubordination and shown scant respect for rules and regulations of the institution and thirdly and very importantly he was guilty of misconduct by demanding excess money, insisting for bribe/gratification to do the work assigned to him and by insisting the film producers and directors to get food and fruit salad from hotels of his choice etc., I am not so serious about the second articles of charges which only contained his negligent attitude of refusing to receive office memo, the registered post sent to his residential address and third articles of charge of going to the press making false statements against 21 M.A.(EAT) No:33/1998 the management. Since it is not in dispute that appellant was the President of the Employees Association, naturally as a leader he was expected to speak against the management and at the same time when their grievances are not met, though it is impermissible for an employee to go to the press as per the Conduct Rules, as a President he could have gone to the press. But what cautions me lot is his corrupt practice in discharging his duty, when he was getting the salary he deserved. Several film producers and directors made innumerable complaints against this appellant narrating his misconduct and suffering of loss on account of his too greedy mind. The said written complaints were marked as Ex.M13 to M19 before the enquiry officer and they are part of file containing Ex.R1 to R13. The gist of said complaints show that this appellant was demanding bribe from every producers for doing recording and re-recording work; he used to insist to use a particular dubbing artist; pressurize the producers to get the food and fruit salad from selected costly hotels of his choice and in the event if his demands were not met, he use to abuse the producers, their crew, used to adopt go-slow attitude, by packing up the work in the middle of recording and re-recording and thereby cause delay in said works and damage the whole film rolls by incorrectly recording the sound mixing etc., etc eventually leading a huge financial loss to the producers and affect the quality of film as a whole. Being fed up with galoring complaints and the attitude of the appellant in non-mending 22 M.A.(EAT) No:33/1998 his behaviour, the management was forced to take action against him by keeping him under suspension and by issuing articles of charges it called upon him to explain. Before submitting explanation he went on seeking time and finally submitted his explanation denying all the charges. Even I have not taken serious note of the charge that he used to abuse his subordinates in singular words and insult them in public. The unchallenged evidence of H.R.Srikanta Swamy/MW3 and B.R.Keshava/MW4 show that this appellant was in the habit of getting enriched illegally by insisting them to pay bribe to him.
I
17. I seriously doubt the grounds urged in the appeal memo as well as the written arguments filed in this tribunal in the context of his alleged written arguments submitted by him on 18.10.1997 before the enquiry officer. First of all there is no acknowledgement on the said written arguments which is marked as Ex.P51 to show that it was submitted to the enquiry officer. Apart from that in Para-2 of the said written arguments explaining the alleged cause for his absence during enquiry he stated that since he protested he was threatened by the Presenting Officer, Managing Director and his son as well as other employees of the institute in the premises of that institute itself, wherefore he was afraid of participating in the enquiry as all of them were ill-deposed against him. This alleged fact was not whispered by him in the appeal memo or in his written arguments filed in this tribunal. What it shows is that at every stage he took a 23 M.A.(EAT) No:33/1998 defence in a way he liked. Perhaps it was one of the cause why his colleagues refused to act as a defense assistant for him in the enquiry. The enquiry files show that without consulting his colleagues and without taking their consent to act as defence assistant to defend him he suggested their names during the enquiry proceedings but they refused to defend him by submitting their written representations and in turn alleged that he never consulted them nor informed them.
18. In his cross-examination in the trial of this appeal he (appellant) admitted that he has not given any evidence before enquiry officer nor examined the co-employees on his behalf though he was given opportunity to adduce his evidence and examine his co-employees. On page no.18 of his cross-exam he admitted that after disposal of the writ petition he was given opportunity again to adduce evidence on his behalf, but he did not utilize the same. When he was confronted whether did he cross-examine the management witnesses he expressed his ignorance as to who were examined by the management even after admitting that he was supplied with copies charge sheet, memo, list of witnesses and documents. On page no.19 of his cross-exam he falsely claimed that he never remained absent to the enquiry proceedings. If really he was present on all hearing dates of enquiry, nothing prevented him to cross-examine the witnesses or to plead ignorance as to who deposed on behalf of the management. He admitted that producers, 24 M.A.(EAT) No:33/1998 directors and his sub-ordinates filed written complaints against him but stated that all of them are false and baseless, however when opportunity was granted to him to prove their falsity by cross-examining them during the enquiry he did not use them and thereby wantonly wasted opportunities to prove his alleged innocence. He also replied that for filing such false complaints against him he has not taken any action against the producers or against his colleagues and subordinates.
19. Once again in his further cross-exam dt.10.3.2011 he falsely deposed that he gave his oral evidence during the enquiry. Even after alleging that he is in custody of documents to show that unnecessarily delay was caused by the management in disbursing the salary even after receiving the grants in time from the State, he did not produce such document. In the further cross-exam dt.7.3.2014 again changing his version when his attention was drawn to the complaints filed by his colleagues he expressed his ignorance. The purpose of referring to these versions is to show how he was inconsistent at every stage.
20. In his written arguments appellant also questioned the examination of enquiry officer by respondent no.1 as RW1. It is true that it was incorrect on the part of respondent no.1 to examine the very enquiry officer as a witness in the tribunal, but unfortunately it was not properly exploited by the appellant by cross-examining the said 25 M.A.(EAT) No:33/1998 witness and exposing the illegality or irregularities committed, if any by him during the enquiry. So another golden opportunity was wasted by him to prove his so-called innocence. Un-necessarily having no relevance to the case in hand the appellant tried to know from the enquiry officer whether any enquiry was conducted against his co- employees, who were also facing some charges. According to me the enquiry officer has nothing to do with the wish of the management in not proceeding against the said co- employees and it is not a reason to seek his exoneration unless he shows that corruption charges were also made against his said colleagues and they were not proceeded with. On Page No.35 of the cross-examination of RW1 without any basis he suggested that the enquiry officer did not record the statements of witnesses instead he manipulated the documents as if he recorded the evidence of said witnesses. So there is no material to reject the evidence of RW1 and reasons to interfere in the findings recorded by him.
21. Regarding RW2 less said the better. Though this witness, who is senior Cini and Sound Equipment Operator of Adarsha Film Institute of Respondent No.1, stepped into the witness box and deposed several things in his chief however he was won over by the appellant, so he conceded all his suggestions giving a clean chit to him, but when there are enough documents which speak against the appellant, the hostile evidence of RW2, who was examined as MW6 during 26 M.A.(EAT) No:33/1998 enquiry and where he gave different version, has no consequence.
22. The documents produced by the appellant before the enquiry officer marked in 'D' series reflect his intention in prolonging the enquiry on one or the other pretext. Before I end up my discussion on the so-called allegations of appellant I would like to refer other decisions relied by him. In the decision reported at (1993)4 SCC 10 (Rattan Lal Sharma Vs Managing Committee, Dr Hari Ram (Co- Education) Higher Secondary School and others) and (2001) 1 SCC 182 (Kumaon Mandal Vikas Nigam Ltd., Vs Girja Shankar Pant and others) dealing with bias in conducting the domestic enquiry, Hon'ble Supreme Court held that if one of the members of the Managing Committee appears and deposes before the enquiry it vitiates the same and it is also held that the factum of bias has to be arrived from the facts and circumstances of the case of individual case and normally factual findings given in a departmental enquiry although not subjected to judicial review, except when based on no evidence or totally perverse, requires no interference. In the decision reported at (1989)4 SCC 710 (B.R.Singh and others Vs Union of India and others) Hon'ble Court held that employees have right to go on strike but no-longer it is approved by the Hon'ble Apex Court. In the subsequent decisions Hon'ble Court departed from it's earlier view. In the decision reported at ILR 2003 KAR 3066 (G.V. Aswatha Narayana Vs Central Bank of India, by Chairman, Bombay 27 M.A.(EAT) No:33/1998 and others) and ILR 2004 KAR 298 (G.V.Aswathnarayana Vs The Zonal Manager and Appellate Authority and others) the Hon'ble Court held that charges should not be vague and delinquent official must be supplied with all necessary annexures. In the instant case no such grievance is made out by the appellant. In the last decision referred by the appellant reported at (2013)3 SCC 73 (Rajendra Yadav Vs State of Madhya Pradesh and others) Hon'ble Court held that parity has to be maintained in inflicting punishment when there are co-delinquents. Definitely one cannot dispute the submission of the appellant on this aspect, but when his colleagues have not been chargesheeted like him and have not faced the trial, the said ratio will not come to his help.
23. Along with his written arguments respondent no.1 furnished three decisions reported at 2009 LLR 226 (Kanpur Electricity Supply Co. Ltd., Vs Shamin Mirza, 2009 LLR 230 (M.D.Balasaheb Desai Sahakari S.K. Ltd., Vs Kashinath Ganapati Kambale) and AIR 2006 SC 3018 (U.P.S.R.T.C. Vs Mitthu Singh). All these decisions deal with the back wages. The ratios laid down in them would come into picture only in the event appellant is able to show that enquiry conducted against him is vitiated or that he is innocent of the charges leveled against him. He having failed in proving them, the aspect of back wages takes to the back seat.
24. Thus I do not find any reason to interfere with the findings recorded by the enquiry officer on the charges 28 M.A.(EAT) No:33/1998 leveled against this appellant. Once this conclusion is arrived, the appellant being guilty of corruption charge, he does not deserve any sympathy. Hence I answer issue no.1 and 3 in the negative, whereas issue no.2 in the affirmative.
Issue No.4:
25. In the result, I proceed to make the following:
ORDER Appeal is dismissed.
Draw award accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in open court, this the 5th day of January 2017) (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witness examined for the appellant side:
PW1 B.V.Venkateshwara Rao List of documents exhibited for the appellant side:
Ex.P1 Interview letter
Ex.P2 Appointment letter
Ex.P3 Confirmation order
Ex.P4 Memo
Ex.P5 Memo
Ex.P6 Order by respondent no.1 dt.24.6.96
Ex.P7 Copy of explanation
29 M.A.(EAT) No:33/1998
Ex.P8 Office memo
Ex.P9 Explanation
Ex.P10 Copy of office memo
Ex.P11 Explanation
Ex.P12 Office memo
Ex.P13 Memo
Ex.P14 Articles of Charge
Ex.P15 Letter by petitioner dt.8.10.96
Ex.P16 Letter by respondent no.1 dt.2.11.96 Ex.P17 Letter by petitioner dt.23.10.96 Ex.P18 Letter by respondent no.1 dt.11.10.96 Ex.P19 Explanation Ex.P20 Representation Ex.P21 Representation by petitioner Ex.P22 Representation for revocation suspension order Ex.P23 Representation Ex.P24 Enquiry proceedings Ex.P25 Representation Ex.P26 Order by respondent no.1 dt.17.2.97 Ex.P27 Letter by R1 dt.22.2.97 Ex.P28 Representation Ex.P29 Additional charge sheet Ex.P30 Representation by petitioner through EO Ex.P31 UCP endorsement Ex.P32 Explanation by petitioner Ex.P33 Order dt3.3.97 Ex.P34 Memo dt.18.3.97 Ex.P35 Memo Ex.P36 Explanation Ex.P37 UCP endorsement Ex.P38 Representation Ex.P39 Telegram Ex.P40 Explanation Ex.P41 UCP endorsement Ex.P42 Representation Ex.P43 Order by R1 dt.2.5.97 Ex.P44 Letter by R1 dt.9.4.97 Ex.P45 Notice of enquiry Ex.P46 Representation Ex.P47 Representation Ex.P48 Letter by R1 30 M.A.(EAT) No:33/1998 Ex.P49 Representation Ex.P50 Certified copy of the order in WP.40727/99 dt.8.11.00 Ex.P51 Written arguments Ex.P52 Letter Ex.P53 Show-cause-notice Ex.P54 Enquiry report Ex.P55 Representation Ex.P56 Letter by R1 Ex.P57 Representation Ex.P58 Letter Ex.P59 Medical certificate Ex.P60 Dismissal order dt.10.8.98 Ex.P61 to 67 Letters Ex.P68 to 70 Letter issued by Government department Ex.P71 to 73 Letters List of witness examined for the respondents side:
RW1 N.Ramaiah RW2 M.A.Mohan Raj
List of documents exhibited for the respondents side:
Ex.R1 Enquiry report
Ex.R2 Enquiry report on additional charge sheet
Ex.R3 Enquiry report on additional charge sheet AFI
Ex.R4 Suspension order
Ex.R5 Memo
Ex.R6 Articles of charges
Ex.R7 Order
Ex.R8 Salary particulars
Ex.R9 Copy of notice
Ex.R10 Order
Ex.R11 to 13 Order of enquiry officer
Ex.R14 Order enquiry officer
Ex.R15 Explanation
Ex.R16 Show-cause-notice
Ex.R17 Additional charges
Ex.R18 Additional charges
Ex.R19 Additional charges
Ex.R20 & 21 Order on enquiry
Ex.R22 Order on enquiry
31 M.A.(EAT) No:33/1998
Ex.R23 Postal cover
Ex.R24 Show-cause-notice
Ex.R25 Copy of enquiry report
Ex.R26 to 30 Memos
Ex.R31 Articles of Charge
Ex.R32 Copy of additional charge sheet
Ex.R33 Copy of additional charge sheet
Ex.R34 Additional order
Ex.R35 Additional order
Ex.R36 Show-cause-notice
Ex.R37 Order of dismissal
Ex.R38 to 48 Representation
Ex.R49 to 53 Letters
Ex.R54 Leave letter
Ex.R55 to 69 Leave letters
Ex.R70 Application
Ex.R71 Endorsement
Ex.R72 Letter
Ex.R73 Letter
Ex.R74 Order
Ex.R75 to 102 Letters
Ex.R103 Affidavit
Ex.R104 to 106 Letters
Ex.R107 Affidavit
Ex.R108 to 138 Letters
Ex.R139 Telegram
Ex.R140 to 142 Letters
Ex.R143 Memo
Ex.R144 to 174 Letters
(RON VASUDEV),
III Addl. City Civil & Sessions Judge,
Bengaluru.