Karnataka High Court
Madivalappa B Chebbi vs The General Manager on 27 February, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.18141/2014 (L-RES)
BETWEEN:
MADIVALAPPA B CHEBBI
S/O BASAVANTAPPA CHEBBI
AGED ABOUT 29 YEARS,
R/A H.NO.54D, KULKARNI GALLI,
BAILHONGAL,
BELGAUM DISTRICT - 591 102 ... PETITIONER
(BY SRI.P H VIRUPAKSHAIAH, ADV.)
AND:
1. THE GENERAL MANAGER
PERSONNEL CELL, STAFF WELFARE
DIVISION
HEAD OFFICE, SYNDICATE BANK,
MANIPAL - 576 104
UDUPI DISTRICT
2. THE CHAIRMAN AND MANAGING DIRECTOR
SYNDICATE BANK, CORPORATE OFFICE,
GANDHINAGAR,
BANGALORE - 560 009
3. THE ASSISTANT GENERAL MANAGER
SYNDICATE BANK, REGIONAL OFFICE,
MARUTHI GALLI, BELGAUM - 590 002
... RESPONDENTS
2
(BY SRI.K.RADESH, SRI.PRABHU AND SRI.DEEPAK, ADVS.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNX-T AWARD DT.26.12.2013 IN CR.NO.29/2009 PASSED BY
THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM
LABOUR COURT, SHRAM SADAN, G.G.PALYA, TUMKUR ROAD,
YESHWANTHPUR , BANGALORE HOLDING THE SAME IS AGAINST
LAW & ALLOW THE CLAIM PETITION FILED BY THE PETITIONER.
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner was appointed as clerk in the respondent Bank under the quota reserved for physically handicapped person. An appointment letter was issued on 17.11.2007. The appointment was subject to completion of probationary period of six months from the date of joining, with provision to extend by a further period of 3 months depending upon performance and further condition that during the period of probation, the petitioner shall show proper attitude towards work, acquire thorough knowledge of Bank's Manual of Instructions, Circulars, Rules of Business, Policies, Procedures/System of Working etc., of the Bank, besides acquiring knowledge of computer 3 operations and be able to discharge the duties and responsibilities of a workman with due diligence. The petitioner submits that he performed his duties with utmost diligence and dedication. However, notice has been issued on 13.03.2008 alleging that Bank had received some complaint from Head Master H P S, Mukibham stating that their salary cheques were sent for collection by Deshnur Branch but not returned till 12.3.2008. On inspection it was found that OBCs. and CDDS were kept pending in the tray since several days. The petitioner had made reply on 05.04.2008 disowning the allegations made in the notice. Further he has stated that he has been unnecessarily harassed by the Bank on false allegations. The probationary period of six months was extended by another three months and thereafter on 29.8.2008, he has been retrenched from service.
2. Hence he approached the Central Government Industrial Tribunal Cum Labour Court, at Bengaluru in C R No.29/2009 and the Tribunal by its order dated 26.12.2013 rejected the reference holding that termination of the petitioner by the 4 Management is legal and justified and he is not entitled to any relief. This order of the Tribunal is impugned in the present writ petition seeking to quash the order and to direct to treat the period from 30.8.2008 till date as duty.
3. The learned counsel for petitioner submits that the impugned order passed by the Tribunal is erroneous. The retrenchment order during the probationary period is stigmatized order. To fortify the same, the learned counsel referred the show cause notice issued for dereliction in performing the duties dated 13.03.2008 in which it is alleged about the complaint received from the Head Master, unattended OBCs. and CDDS and inconvenience caused to the customers etc., This show cause notice has been answered as per Annexure-D dated 5.4.2008 submitting that there was harassment by the Bank. Further reply was made on 04.04.2008 personally, but it was rejected. Thereafter it was sent by R P A D, which is not disputed. The Tribunal has not gone into the question as to whether the order is stigmatized or a simpliciter. To substantiate the same, the learned counsel referred the judgment of this Court reported in 5 ILR 2014 KAR 1044 (Sri Sidagouda N Patil vs., The Union of India, by its Secretary, Department of Home Affairs, New Delhi & others) and submits that when there is a stigmatized order, it requires an enquiry after giving opportunity to the petitioner. The learned counsel submitted that discharging a probationer is also a retrenchment as per the judgment reported in 1994(4) KLJ 55 where it has been held, discharging a probationer during probationary period is also retrenchment, in which event, there shall be compliance of Section 25-F of the I D Act. The learned counsel for the petitioner also placed reliance on judgment reported in (2015) AIR SCW 869 (Jasner Singh Vs., State of Haryana) to contend that when workman has worked for 240 days, there shall be compliance of Section 25-F of the I D Act.
4. On the other hand, the learned counsel for the respondent bank supported the order of retrenchment referring sub-section (bb) of Section 2(oo) of the I D Act. It is submitted that after expiry of contract period, Section 25-F of the I D Act is not applicable. Discharge of probationer or retrenchment is not a stigmatized order which is as per the conditions stipulated in 6 the appointment order itself. The probationary period was extended by three months but he has not improved his work as per clause 14 of the appointment order. Accordingly, show cause notices were issued but there was no improvement. In the circumstances, the termination or retrenchment can only be treated as simpliciter and it is not a stigmatized order. Before the Tribunal, evidence was led on behalf of the bank and also by the petitioner and on examination of the evidence both documentary and oral, the Tribunal held that action of the Bank is legal and justifiable and hence he supports the order. He refers the judgment of the Hon'ble Supreme Court reported in AIR 2002 SC 23 (Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I of Medical Sciences & another). In Para-31 the Hon'ble Supreme Court referring AIR 1999 SC 983 held that "use of the word unsatisfactory work and conduct" in the termination order will not amount to a stigma and further it has been held that the impugned order is not an ex facie stigmatic. The learned counsel submits, merely using some derogative words itself is not sufficient to hold that the retrenchment order is a stigmatic 7 order. Hence the learned counsel for the respondent bank seeks dismissal of the writ petition.
5. Heard the learned counsel for the parties. The petitioner is a physically handicapped person appointed against the post reserved for the said category as a clerk on a probationary period of six months extendable by three months by appointment order dated 17.11.2007. There are number of conditions stipulated in the appointment order, of which Condition No.3 & 14 are relevant. Condition No.14 stipulates, during the period of probation, he should show proper attitude towards work, acquire thorough knowledge of Bank's Manual of Instructions, Circulars, Rules of Business, Policies, Procedures/System of Working etc., of the Bank, besides acquiring knowledge of computer operations and be able to discharge the duties and responsibilities of a workman with due diligence. It is assumed that the petitioner has accepted the conditions stipulated in Annexure-A. Initially, the probationary period was six months. Since it was found some short falls or lackings, he was issued notice dated 13.03.2008 that means to 8 say, within a period of six months. When a person was appointed with a probationary period of six months, issuance of notice within a period of 3-4 months itself show that bank hurriedly issued the notice. It is alleged in the notice that the Bank had received complaint from the Head Master of H P School about non-clearance of the salary cheque and on verification it was found, papers were in the tray for several days. It is complained that the petitioner had not attended the said cheque which was to be presented for collection. It was further stated that cheque books though issued to the customers, it was not fed in the system for several days causing inconvenience to them while withdrawing cash leading to dissatisfaction to the customers. The petitioner was asked to submit his explanation within three days for his dereliction in performing the duty. The petitioner made his reply on 5.4.2008 stating among other things in Para-2 that "I being a handicapped person who joined recently to my service unable to tolerate the false allegations made to give unnecessary harassment". This shows, the petitioner was subjected to unnecessary harassment. On the basis of the said reply, the Bank should have gone into detailed 9 enquiry, instead passing retrenchment/termination order on 29.08.2008 which is per se a stigmatized order and it is not a simpliciter.
6. It is well established principle of law that a probationer has no right of opportunity for discharge beyond probationary period, then it is simpliciter in nature. It will not cause any stigma in future employment or future service. However, if the discharge or retrenchment by a stigmatized nature on the basis of the complaint or by issuing a show cause notice, then it is not a simple discharge, it is a stigmatized discharge calling for full enquiry. The petitioner who is discharged or retrenched from service without affording full opportunity during probationary period with stigmatized allegations is contrary and violation of Articles 14 & 16 of the Constitution of India.
7. This Court in ILR 2014 KAR 1044 referring meaning of the word `stigma' has held as follows in Para-19.
"19. The word `stigma' would relate to conduct or character of an employee. Stigma according to dictionary meaning is something that detracts from the character or reputation of a person, a mark sign etc., indicating that something is not considered 10 normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant, stigma would mean a statement in the order indicating his misconduct or lack of integrity."
8. In State of Bihar Vs., Gopi Kishore Prasad, AIR 1960 SC 689, it has been held that a termination founded on insufficient or other disqualification is a punishment because "It puts indelible stigma on the officer affecting his future career". This case is clearly applicable to the case on hand.
9. The dismissal order/retrenchment order Annexure-H dated 28.8.2008 states in Para-3 that "whereas your explanations were called by the Branch vide letter dated 20.4.2008, 19.2.2008, 13.3.2008 and 6.5.2008 for your refusal to work in IBR/IBDD departments, your unauthorized absence on 5.2.2008, customers complaint regarding delay in dispatching the credit IBA being proceeds of OBC Cheque, for keeping the dispatch of several OBC/CDD item pending not feeding / delay in feeding in the system/computer about the cheque books issued to the customers causing inconvenience to the customers service 11 at the Branch etc., In the second para, also it is referred "the deficiency of service, quarrel with staff/customers would be spoiling decency, decorum of the Branch etc., " Again in Para No.4 it refers that your performance during the probationary period revealed that you have disobeyed the order of superior management, refused to take delivery of branch letters etc., and in the last but one paragraph, it is stated, there is no improvement in your work and behaviour at the Branch. These are the words employed in the notice of termination/retrenchment from service. They spoil the future of the person since it is stigmatized, it requires detailed enquiry in order to avoid arbitrariness. The Bank also referred in letter dated 19.4.2010 addressed to the petitioner that request made for copy of the complaint said to have been received by the Branch for which it is referred that they were oral complaints from the customers and there was no written complaint. In the show cause notice and in the retrenchment order it is referred, complaint received from the Head Master name of the Head Master is also referred therein. However, in the communication dated 19.4.2010 Annexure-K it is stated, there was no written 12 complaint. This shows vengeance attitude on the part of the Bank and also the way he has been harassed by the Bank as stated in Reply dated 5.4.2008. These are the reasons which are sufficient to hold that the impugned action of the Bank is arbitrary in nature and impugned action is nothing but a colourable exercise of power, unconstitutional and arbitrary.
10. When the petitioner approached the Tribunal, though it has recorded the evidence of both the petitioner and the respondent, it has not devoted itself in giving reasons as to whether action of the bank is arbitrary or stigmatized or simpliciter. Simply it has referred to documentary evidence produced by the first party and monthly performance reports EW-23, 24, 25 & 27. Further it has referred to Ex.P25 column No.4 as to deficiency, slow in learning, not evincing interest in acquiring knowledge, MOI etc., Though the Tribunal referred that "slow in learning, argues and quarrels with customers' but it lost sight about the stigmatized impugned order of retrenchment which refers that the petitioner was quarrelsome and he has not discharged his duty in a proper manner. When the petitioner 13 approaches the Tribunal alleging that the decision is not simpliciter but it is a stigmatized, then the Tribunal should have specifically examined by securing records from the Bank and held that whether it is stigmatized or simpliciter. It has been held that even in the case where the discharge order looks as simpliciter but what court should do, should secure record and find out whether it is a discharge/retrenechment on the basis of complaint or not. That work has not been done by the Tribunal. Hence the order of the Tribunal is liable to be quashed. Bank is required to reinstate the services of the petitioner.
Accordingly, the writ petition is allowed. The respondent Bank is directed to reinstate the workman within a period of 12 weeks from the date of receipt of copy of the order. He is also entitled to all consequential monetary benefits.
Sd/-
JUDGE akd