Karnataka High Court
Mrs Ragini Bhartari W/O Neeraj Bhartari vs Centre For Development Of Advanced on 31 August, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:31253
WP No. 40767 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 40767 OF 2010 (S-DE)
BETWEEN:
1. MRS RAGINI BHARTARI,
W/O NEERAJ BHARTARI
AGED ABOUT 41 YEARS
R/AT NO 803, MAGIC RAY,
SUN CITY, SARJAPUR OUTER RING ROAD,
BANGALORE - 560102
...PETITIONER
(BY SMT. P V KALPANA., ADVOCATE)
AND:
1. CENTRE FOR DEVELOPMENT OF ADVANCED
COMPUTING (FORMERLY NATIONAL CENTRE
Digitally FOR SOFTWARE TECHNOLOGY),
signed by
PANKAJA S GULMOHAR CROSS ROAD, NO 9,
Location: JUHU MUMBAI 400049.
HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. K.MOHAN KUMAR FOR
M/S KASTURI ASSOCIATES., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR ENTIRE
RECORDS LEADING TO THE ORDERS DATED: 20TH OCTOBER
2004 AND 19TH JUNE 2010 AND QUASH ORDER DATED 20TH
OCTOBER 2004 (UNDER ANNEXURE-Y TO THE W.P.) PASSED
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NC: 2023:KHC:31253
WP No. 40767 of 2010
BY THE DISCIPLINARY AUTHORITY AND ORDER NO. NIL DATED
19TH JUNE 2010 (UNDER ANNEXURE-NN TO THE W.P) PASSED
BY THE APPELLATE AUTHORITY BY ISSUE OF A WRIT IN THE
NATURE OF CERTIORARI AND DIRECT THE RESPONDENT BY
ISSUE OF A WRIT IN THE NATURE OF MANDAMUS TO
REINSTATE THE PETITIONER IN TO SERVICE FORTHWITH
WITH ALL CONSEQUENTIAL BENEFITS INCLUDING PAYMENT
OF ARREARS OF SALARY, PROMOTION, SENIORITY etc. AS IF
THE ORDERS OF PUNISHMENT PASSED AGAINST HER WERE
NEVER IN EXISTENCE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The facts leading to filing of this writ petition are as follows:
2. The petitioner, who was working as a Senior Staff Scientist in the respondent - Centre for Development of Advanced Computing (formerly known as National Centre for Software Technology) had availed maternity leave and had resumed duty on 02.12.2002. During the period from 04.04.2003 to 14.05.2003, she once again availed leave on account of her sister's marriage. Thereafter, she went -3- NC: 2023:KHC:31253 WP No. 40767 of 2010 to United Kingdom where her husband was posted and she also applied for grant of one year leave from 24.06.2003.
3. By letter dated 01.07.2003, the respondent - employer called upon the petitioner to immediately report for duty and to hand over all the projects and technical responsibilities to a co-employee. Thereafter, on 19.08.2003, the petitioner requested for grant of extraordinary leave for two years from September, 2003 and in this letter, she also stated that she would be handing over all projects and technical responsibilities to a co-employee.
4. On 02.09.2003, the petitioner addressed an email to the respondent stating that she had handed over all the projects to her colleague - Ms.Supriya Pal. The petitioner thereafter addressed three emails dated 15.09.2003, 16.09.2003 and 30.09.2003 requesting the respondent to inform her about the status of her leave application. These emails were responded to by letter dated 08.10.2003 by the respondent vide Annexure-G stating that her leave -4- NC: 2023:KHC:31253 WP No. 40767 of 2010 was considered as unauthorized absence and her going abroad was considered as misconduct. However, the employer also stated that this absence being the first incidence of misconduct by the petitioner, a lenient view was being taken and for that she had to submit a written apology and assure the respondent that she would not continue the same in future. It was also stated that her request for grant of extraordinary leave would be considered upon the receipt of written apology. It is, therefore, clear from this communication that the petitioner's unauthorized absence from 14.05.2003 to 11.08.2003 would be considered by grant of an extraordinary leave, if the petitioner were to furnish a written apology.
5. The respondent - employer has, in fact, also produced a letter dated 17.10.2003 - Annexure-R7, by which the petitioner had submitted a written apology. The endorsement on the said letter indicates that the apology -5- NC: 2023:KHC:31253 WP No. 40767 of 2010 was accepted and the leave application for the period from 14.05.2003 to 11.08.2003 was considered.
6. Two days thereafter, the respondent, after considering petitioner's unauthorized absence till 11.08.2003, however, proceeded to reject the request of the petitioner for grant of two years extraordinary leave without pay, by its written communication dated 19.10.2003.
7. On 24.10.2003 (Annexure-PP), the petitioner addressed a letter stating that she had applied for leave more than 2½ months ago and yet, she had not received any information on her request. She went on to state that since she had not received any information on her leave application, she had assumed that it had been approved. She also stated that she was applying leave from 27.10.2003 for two years on the assumption that leave had been approved. She also informed the respondent that she had handed over all the projects and technical responsibilities to the assigned members and she had -6- NC: 2023:KHC:31253 WP No. 40767 of 2010 cleared all her dues to library and other administrative departments and handed over keys to Mr.Krishnakumar.
8. On 18.11.2003, the respondent by its written communication informed the petitioner that her request for grant of two years leave without pay had not been accepted and her absence from duty from 27.10.2003 would be treated as unauthorized absence since prior permission had not been obtained. The petitioner was called upon to report to duty by 01.12.2003, failing which action was threatened against her.
9. Thereafter, petitioner addressed a letter dated 25.11.2003 to the respondent requesting them to inform her as to whether the order of rejection was passed on her leave application dated 19.08.2003 and if it had not been rejected, what had happened to that application. She also requested the respondent to furnish the reason for not passing any order for unreasonable long period and she ultimately requested the reasons for rejection of her leave. -7-
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10. This was responded by the respondent vide communication dated 12.12.2003, wherein it was once again reiterated that her application for long leave had been rejected and her request for furnishing information vide her letter dated 25.11.2003 did not worth any reply. It was also stated that since she had proceeded on leave without any authorization from 27.10.2003, it was treated as unauthorized absence and also informed her to report for duty immediately i.e., by January, 2004, failing which, disciplinary action will be taken against her.
11. The petitioner also addressed a letter dated 24.12.2003 requesting the respondent to reconsider her request for grant of leave for a reasonable shorter period till December, 2003. In this communication, she also stated that she had applied for long leave as her husband was posted to work in United Kingdom and her mother who was taking care of her infant baby was unable to stay with her.
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12. The respondent vide letter dated 09.02.2004 called upon the petitioner to report for duty by 29.02.2004, failing which, they would initiate disciplinary action against her.
13. Thereafter, an article of charges dated 21.04.2004 was issued to the petitioner containing the following two charges:
"1. Ms.Ragini Bhartari is continuously absent from her duties without authorization or prior approval w.e.f. October 27,2003.
2. She has proceeded abroad (UK), without prior permission from the office."
14. The petitioner submitted a response on 15.05.2004. Apart from explaining the circumstances under which she had applied for long leave, she went on to state her grievance about the list of witnesses as follows:
"The list of witnesses does not indicate as to what each of the four witnesses will state against me. So, at this stage I am unable to say any thing against their evidence. However I reserve my right to cross -9- NC: 2023:KHC:31253 WP No. 40767 of 2010 examine all or any of them after their statements are recorded during the inquiry.
Lastly, I have to submit that two years posting of my husband in the U.K. is to expire by August 2004, and I propose to return to Bangalore by the end of that month and to rejoin my duties. However, if the proposed enquiry is not to be dropped and it is to be pursued, it will not be possible for me to participate in the enquiry before September 2004. So, it may kindly be fixed in or after September, as I have to inspect the relevant record at the Bangalore as well as the Mumbai offices and also to peruse the relevant rules etc. for preparing my full and effective defence against the charges set up."
15. It is thus clear that even as on 15.05.2004, the petitioner had informed the respondent that her husband's posting for two years at United Kingdom was coming to an end in August, 2004 and she was supposed to return to Bengaluru by the end of August, 2004 and that she would rejoin her duties. She also stated that if the proposed enquiry was not dropped and it was to be pursued, in order to enable her participation, she requested that the enquiry may not be conducted before September, 2004. It
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NC: 2023:KHC:31253 WP No. 40767 of 2010 is, therefore, clear that the petitioner did make a request for the inquiry to be conducted after she returned from United Kingdom in August, 2004.
16. This request of the petitioner was, however, not acceded to and by the memorandum dated 28.06.2004, she was informed that the inquiry would be conducted in Bengaluru on Monday, 26.07.2004 and that she was required to be present on that day. She had also been informed to furnish the names and addresses of witnesses whom she wished to examine on her behalf and also the name of any fellow employee of her choice through whom she wished to be represented in the inquiry. It was also stated that she could examine the documents annexed therein before 20.07.2004 in consultation with the Senior Administrative Officer.
17. Thereafter, a revised memorandum dated 09.07.2004 was issued fixing the date of inquiry as 09.08.2004. The other averments in the earlier letter were
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NC: 2023:KHC:31253 WP No. 40767 of 2010 reiterated. Along with the said letter, a statement of article of charges was also issued, which reads as follows:
"1. Ms.Ragini Bhartari remained absent during the period from May 14, 2003 to August 11, 2003 without authorization.
2. She had traveled abroad during the above period without prior permission.
3. Ms.Ragini Bhartari had given a written apology and based on this the Centre had taken a lenient view of her misconduct at 1 and 2 above and permitted her to resume duty with warning on August 12,2003.
4. Ms.Ragini Bhartari has again remained continuously absent from her duties without authorization or prior approval w.e.f. October 27, 2003.
5. During the above period, she has proceeded abroad (UK), without prior permission from the office."
18. Interestingly, in this revised article of charges dated 09.07.2004, though her absence from 14.05.2003 to
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NC: 2023:KHC:31253 WP No. 40767 of 2010 11.08.2003 had been regularized by accepting the written apology dated 17.10.2003 in the following terms at Annexure-R7, the charge with regard to the said period of absence had also been included:
"Pl. see the above letter.
She has not written that she will not repeat such act in future.
As she has given apology letter in writing, we may regularize her leave by grant of EOL without pay.
Leave application for the period from 14.5.03 to 11.08.03 (at flag 'A' may please be signed)."
19. A charge was also made in this revised article of charge that she had remained absent from 27.10.2003 without authorization. It was also charged that she had traveled abroad during the said period without prior permission. It was also stated that she had given a written apology, based on which, the respondent took a lenient view and she was permitted to resume duty.
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20. A letter dated 30.07.2004, sent through fax, was stated to be received by the respondent on 07.08.2004, in which, the petitioner had made a request. In response to the same, the respondent addressed a letter dated 18.08.2004 informing the petitioner that her request had been passed on to the Inquiry Authority, who had already taken cognizance of her request. It was also stated that though the Presenting Officer had already concluded his presentation of the case, instead of concluding the inquiry, another meeting was scheduled with the sole objective of giving the petitioner a final opportunity and the next hearing date was fixed on 03.09.2004.
21. Again on 03.09.2004, the respondent addressed a letter to the petitioner informing her to furnish her written submissions by 20.09.2004.
22. The petitioner responded to the said letter vide communication dated 12.09.2004 (Annexure-V). Since this letter would be of some relevance, it would be appropriate to extract the entire letter:
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NC: 2023:KHC:31253 WP No. 40767 of 2010 "i. To participate in the enquiry I and my husband decided to return to Bangalore on 9.10.04 with plane ticket (PNR number is H84JW - for the travel on 9th Oct 2004 by AI112). My mother got reservation in 2 AC of Gorakhpur-Bangalore weekly to join us on 11th to take care of the baby. But unfortunately the committee refused to grant any adjournment, and the enquiry has already been concluded ex parte.
ii. The statements of Ms.Supriya Pal and Mr.Krishnakumar as recorded are substantially untrue.
iii. The totality of the proceedings, especially harsh refusal to grant me any adjournment, leads me to think that from the very beginning the Committee is inclined, whatever be its reason, to conclude the enquiry against me ex parte in such haste.
iv. In these circumstances, especially when the enquiry has already been concluded ex parte, I think that no useful purpose will be served by written brief when witnesses were examined in my absence and I got no opportunity to show falsity of their statements by cross examining them and giving evidence of my own.
v. Moreover, I am also unable to prepare proper brief till I return, and to inspect (1) 20 documents
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NC: 2023:KHC:31253 WP No. 40767 of 2010 filed, (2) official file of my leave application (3) rules, standing orders etc. relating to grant of such leave, and (4) rules etc. regarding disciplinary enquiry."
23. As could be seen from this letter, the petitioner had informed the respondent that in order to participate in the inquiry, she and her husband had decided to return to Bengaluru on 09.10.2004 and she also indicated the PNR number of her air ticket to establish that she was genuinely coming to participate in the inquiry.
24. Despite this letter dated 12.09.2004 requesting that the inquiry be taken up after 09.10.2004, the Inquiry Officer has acknowledged as follows:
"Written brief received from PO was forwarded to MS RAGINI BHARTARI on 3.9.04 to which MS RAGINI BHARTARI responded through a letter dated 12.9.04 (received by fax) in which she complained against the inquiry Committee's refusal to grant extension of time. MS RAGINI BHARTARI further stated that according to her no useful purpose will be served by a written brief when all witnesses have been examined. She also stated that she is unable to prepare proper brief till she returns and inspects the documents filed. In this background, Inquiry
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NC: 2023:KHC:31253 WP No. 40767 of 2010 Committee was not in favour of entertaining this request and therefore hereby submits the final report."
25. This indicates that the Inquiry Officer was indeed aware of the request of the petitioner to have the inquiry after 09.10.2004 and though there was only about ten days left before the petitioner was to return to Bengaluru, the Inquiry Officer, nevertheless, proceeded to submit the report on 27.09.2004 holding that the charges had been proved.
26. On 20.10.2004, the petitioner on returning from United Kingdom, submitted a letter, a copy of which is produced at Annexure-X, requesting that she may be allowed to rejoin the duties.
27. Despite the fact that the petitioner submitted a letter stating that she was prepared to rejoin for duty, on the very same day, i.e., on 20.10.2004, the Disciplinary Authority proceeded to accept the report of the Inquiry
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NC: 2023:KHC:31253 WP No. 40767 of 2010 Officer and also proceeded to dismiss the petitioner from service with immediate effect.
28. Being aggrieved by the said order of dismissal, the petitioner preferred an appeal on 07.02.2005. In the said appeal, the petitioner made a request for early hearing and disposal on 04.11.2005 vide Annexure-HH, on 27.09.2006 vide Annexure-JJ, on 28.09.2007 vide Annexure-KK, on 26.03.2008 vide Annexure-LL and on 26.03.2009 vide Annexure-MM.
29. Thus, though the petitioner had been removed from service pursuant to an ex parte inquiry and despite filing of an appeal in the month of February, 2005 and making number of requests, the Appellate Authority did not pass any order. Ultimately, five years after the appeal had been filed, the Appellate Authority has proceeded to dismiss the appeal.
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30. The petitioner, being aggrieved by the order of dismissal and its confirmation by the Appellate Authority, is before this Court by way of the present writ petition.
31. One of the fundamental facets of natural justice is that 'no man should be condemned unheard'. This is a clear case, in which this basic rule has been totally disregarded by the respondent.
32. In this case, on issuance of a revised article of charge dated 09.07.2004, the petitioner had stated that she would be resuming duty by the end of August, 2004 and she could not participate in the inquiry till September, 2004 and had, therefore, requested the respondent to adjourn the inquiry till September, 2004. Despite this request, the date was fixed for inquiry as 03.09.2004 and thereafter, on 03.09.2004, a notice was sent to the petitioner to furnish her written submission by 20.09.2004. To this notice of 03.09.2004, the petitioner submitted a reply requesting that the inquiry may be
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NC: 2023:KHC:31253 WP No. 40767 of 2010 adjourned till October, 2004 since she and her husband was returning to India to participate in the inquiry.
33. In my view, in the light of the fact that the petitioner responded to the hearing notice dated 03.09.2004 requesting that the inquiry be taken up after she returned to India in October, 2004, the respondent was obliged to grant her a reasonable opportunity. It is to be borne in mind that the article of charges was issued in April, 2004 and was followed by a revised article of charges, which was issued in July, 2004 i.e., three months thereafter. In the background of the fact that the respondent took three months to issue a revised charge sheet, it is clear that if the request of the petitioner for adjourning the inquiry by 30 days was granted, no prejudice would have been caused to the respondent.
34. The respondent, by denying the request of the petitioner to adjourn the inquiry to/after 09.10.2004 to participate in the inquiry, has submitted an inquiry report on 27.09.2004 and has thereby acted in the most arbitrary
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NC: 2023:KHC:31253 WP No. 40767 of 2010 manner. It becomes rather patently clear that the intention of the respondent was to hastily conclude the process of inquiry and ensure that the petitioner was dismissed from service before she returned to India on 09.10.2004 and attempted to rejoin duty.
35. The fact that the petitioner, on coming back to India, intimated the respondent on 20.10.2004 that she was prepared to rejoin the duties and yet on the very same day, an order of dismissal from service was passed, by itself, clearly indicates that there was an element of vindictiveness prevalent in the mind of the respondent.
36. It is also to be noticed here that though the petitioner preferred an appeal in the year 2005 and she made repeated requests for early hearing and disposal during the period 2005-2009 vide Annexures-HH, JJ, KK, LL and MM, her appeal was decided only on 19.07.2010 i.e., nearly after 5½ years. If the Appellate Authority could take 5½ years to decide an appeal, the extent of victimization in denying the petitioner an adjournment of
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NC: 2023:KHC:31253 WP No. 40767 of 2010 ten days to enable her participation in the inquiry becomes apparent. This fact clearly establishes that double standards were adopted and the petitioner has been victimized.
37. It is to be stated here that the petitioner from the very beginning was stating that she could not work due to the fact that she had an infant child to take care and her husband was posted to work in United Kingdom and also because her mother who was taking care of her baby was unable to stay with her since her sister was suffering from a serious ailment. In my view, the fact that the petitioner has applied for grant of leave and had also submitted a written apology clearly indicates that it was not the intention of the petitioner to avoid rejoining her duties.
38. Yet another factor which confirms the fact that the petitioner had been victimized is the issuance of revised article of charges on 09.07.2004. As already stated above, the petitioner's request for regularizing her leave i.e., extraordinary leave from 14.05.2003 to 11.08.2003 was
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NC: 2023:KHC:31253 WP No. 40767 of 2010 granted by the respondent subject to her giving written apology. The petitioner, admittedly, gave the written apology and despite this admitted position, the respondent
- employer has proceeded to issue a revised article of charges making a charge against the petitioner that she was unauthorizedly absent from 14.05.2003 to 11.08.2003. This attitude of the respondent - employer leaves no room for doubt that they intended to remove the petitioner on any pretext, and it was always their intention to victimize the petitioner.
39. In the light of the fact that the petitioner has been denied an opportunity of participating in the inquiry, despite repeated requests made by her in the letter dated 15.05.2004 and more importantly, the letter dated 12.09.2004 where she had requested for ten days adjournment, the inquiry report that has been submitted against her and the acceptance of that inquiry report by the disciplinary authority coupled with the imposition of penalty of dismissal from service on the very day she
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NC: 2023:KHC:31253 WP No. 40767 of 2010 came back to rejoin her duty are clearly arbitrary and illegal. The confirmation of the dismissal in appeal cannot also be sustained and therefore, they are accordingly quashed.
40. The respondent is directed to reinstate the petitioner into service forthwith. Since the victimization of the petitioner is apparent from the manner in which her request for adjourning the inquiry by ten days coupled with the fact that her leave applications were rejected though the petitioner held out a just cause, this would be an appropriate case to award 25% backwages to the petitioner, which shall be paid to her by the respondent within a period of three months from the date of receipt of a copy of this order.
Writ Petition is accordingly allowed.
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JUDGE PKS/List No.: 1 Sl No.: 10