Karnataka High Court
Sri B R Ramaswamy vs The General Manager (P) on 27 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT PETITION NO.15618 OF 2021 (L-RES)
BETWEEN:
SRI B.R. RAMASWAMY,
S/O B K RANGAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT AGRAHARA COLONY,
BANAVARA, ARASIKERE TALUK,
HASSAN DIST. - 573 112.
... PETITIONER
(BY SRI. KASHINATH J.D., ADVOCATE)
AND:
THE GENERAL MANAGER [P]
SYNDICATE BANK,
PERSONNEL DEPARTMENT [W]
HEAD OFFICE, MANIPAL,
DAKSHINA KANNADA,
MANIPAL- 576 119.
... RESPONDENT
(BY SRI.T.P. MUTHANNA.,ADVOCATE)
THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
PERTAINS TO ORDER VIDE BEARING C.R.NO.2/2011 PASSED BY
THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-
LABOUR COURT DATED 01.04.2019. AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27TH JUNE OF 2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, UMESH M ADIGA J,
PASSED THE FOLLOWING:
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ORDER
1. This petition is filed under Articles 226 and 227 of Constitution of India challenging the award passed in C.R.No.2/2011 by the Central Government Industrial Tribunal - cum-Labour Court dated 01.04.2019 notified on 15.04.2019.
2. The petitioner has prayed for the following reliefs:
i. Issue writ or order direction or any other appropriate writ or directions in the nature of certiorari to quash the impugned order vide bearing C.R.No.2/2011 passed by the CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - CUM - LABOUR COURT dated 01.04.2019 Notified on 15.04.2019 non acceptance of reference of dispute so for as major punishment of compulsory retirement as illegal and accordingly allow the claim petition filed by the petitioner in reference vide CR.NO.CGIT/LC/BNG/AWARD/2019 by accepting the entire reference as per Annexure-A as illegal and arbitrary.
ii. Issue writ or direction or appropriate order deems fit to the facts and circumstances of the case on hand and to meet the interest of justice.
3. We have heard the arguments of learned advocates for both side and carefully gone through the records of CGIT.
4. Petitioner was appointed as attender in respondent - Bank on 05.01.1985. Thereafter he had been working as attender in respondent - Bank. He was served with charge sheet alleging some unauthorized absence and misconduct said to have been committed by the petitioner. It was alleged in the charge sheet that on various occasions petitioner was remained unauthorized absent from 03.11.2005 to 03.11.2007 and he was called upon to give the explanation.
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5. The charges levelled against petitioner was that as per records he remained unauthorised absent for as many as 327 days between 03.11.2005 to 03.11.2007, which had been treated as unauthorized absence and said fact was also communicated to petitioner and that clearly indicate that the petitioner resorted to absence without leave, regular attendance and remained unauthorisedly absent without intimation, continuously for a period exceeding 30 days. The said acts of the petitioner and also omission on his part beside being serious and highly irregular and also constitute misconduct in terms of clause 5(p) and 7(a) of the Bipartite Settlement (MOS) dated 10.04.2002.
6. Thereby he had charged with minor misconduct of
(i) "Absence without leave" vide clause 7(a) and (ii) "Irregular attendance" vide clause 7(b) and (iii) with Gross Misconduct and "remaining unauthorisedly absent without intimation continuously for a period exceeding 30 days" vide clause 5(p) of the Bipartite Settlement (MOS) dated 10.04.2002.
7. Petitioner had submitted his explanation to the said charge sheet dated 25.03.2008 contending that he had availed leave frequently and it was due to unavoidable circumstances and beyond his control. He was not well during the said periods and he had no other alternative except going on leave. His absence 4 was duly informed to the branch authority and later on leave application and relative certificates were submitted accordingly. He has also contended that his own brother was not well and hospitalized at Bengaluru. The said brother breathed his last during August 2007 and he was forced to go on leave and at that time also he had informed the Branch Authority over phone and later on submitted leave applications.
8. The concerned authorities i.e. Disciplinary Authority of respondent being not satisfied with the reply submitted by petitioner, decided to hold enquiry. Accordingly, enquiry was held.
9. Before enquiry office and on behalf of management side, MWs-1 and 2 were examined and 13 documents were got marked. Petitioner had not lead defence evidence. However, on his behalf 11 documents were marked as DEX-1(a) to DEX-1(x) and DEX Nos.2 to 11. On hearing both side, the Enquiry Officer by his report dated 08.09.2008 held that all the charges Nos.(a) to (c) were proved and report was submitted to Disciplinary Authority i.e., Assistant General Manager and Disciplinary Authority, Syndicate Bank, Regional Office, Mysuru. The disciplinary authority by proceeding dated 31.01.2009 accepted the report of enquiry officer and passed the following order: 5
(i) The next increment of Sri. B.R. Ramaswamy be and is hereby stopped for a period of 6 months for the commission of Minor misconduct of 'Absence without leave" vide clause 7(a),
(ii) The next increment of Sri. B.R. Ramaswamy be and is hereby stopped for a period of 6 months for the commission of Minor misconduct of 'Irregular Attendance' vide clause 7(b) and
(iii) Sri. B.R.Ramaswamy be and is hereby compulsorily retired from the services of the bank with immediate effect with superannuation benefits i.e., Pension and/or Provident Fund and Gratuity as would be due otherwise under the rules and Regulations prevailing at the relevant time and without disqualification from future employment for the commission of Gross misconduct of 'remaining unauthorisedly absent without initimation continuously for a period exceeing 30 days' vide clause 5(p) of the Bipartite Settlement (MOS) dated
10.04.2002.
All the punishments shall run concurrently.
If he so desires, Sri. B.R. Ramaswamy may prefer an appeal against the above order to the Appellate Authority, i.e., General Manager (P), Head Office, Manipal within 45 days from the date of receipt of this proceedings."
10. The said order was challenged by the petitioner before Appellate Authority i.e. General Manager of Syndicate Bank, Head office, Manipal. The Appellate Authority heard the matter and by order dated 20.06.2009 concurred the order of Disciplinary Authority and the appeal was dismissed.
11. It appears the petitioner through Union has approached the Government accordingly Central Government vide order No.L-12012/79/2010-IR(B-II) dated 30.12.2010 in exercise of the powers conferred by Clause (d) of Sub-Section(1) and Sub- 6 Section 2(A) of Section 10 of Industrial Dispute Act, 1947 referred the dispute to the CGIT for adjudication.
12. The point of reference was as under:
• Whether the management of Syndicate Bank is justified in compulsory retiring Sri. B.R. Ramaswamy, Attender from the services of the Bank with effect from 20.06.2009 ?
• What relief the workman is entitled to ?
13. The above said petition was registered as CR.No.2/2011. The learned Presiding Officer of CGIT-cum-Labour Court heard the matter and by impugned order dated 01.04.2019 partly accepted the reference. The punishment order imposed on the first party Workman by the Disciplinary Authority vide order dated 31.01.2009 whereby the first increment was stopped for a period of 6 months for the commission of minor misconduct and stoppage of next increment for Irregular attendance vide clause 7(b) are set side and if the first party workman is entitled for any monetary benefit consequent upon setting aside the minor punishment, same shall be paid to him within 3 months. The Major Punishment of Compulsory retirement is not disturbed. The report was sent to Central Government by C.G.IT. and Central Government by notification dated 15.04.2019 published the award passed by the C.G.IT. That is challenged in the present writ petition.
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14. Following point emerges for our determination:
Whether the learned Presiding Officer of CGIT is justified in concurring with the order passed by the Disciplinary Authority regarding major punishment and does it calls for any interference?
15. The learned counsel for petitioner has vehemently contended that the Disciplinary Authority as well as CGIT did not consider that the petitioner was already punished for remaining unauthorized absent from 03.11.2005 to 30.10.2006. The concerned officer has communicated to the petitioner that his application for grant of post-facto leave and it was considered as unauthorized absence and his pay was deducted to that extent. Ignoring the same, he was once again charge sheeted for the said misconduct and even after his submission, the said fact was ignored by the Disciplinary Authority and he was convicted. The Appellate Authority did not look into the same and blindly accepted or concurred with the findings of Disciplinary Authority. Even CGIT has also not considered the same. Therefore, he had been punished twice for same misconduct which is contrary to Article 20 of the Constitution of India. No person can be convicted for two times for the same offence. Therefore, the proceedings or impugned order needs to be quashed.
16. He has further contended that for minor misconduct of unauthorized absence for a period of more than 30 days 8 imposing punishment of compulsory retirement is highly disproportionate. The presiding officer of learned CGIT did not consider the same. Therefore, it needs to be set aside. Petitioner has wife and three children. They are all depending upon his earnings. Imposing such harsh punishment will put entire family to the sufferings. Therefore, prayed to set aside the said orders.
17. He has further contended that the CGIT did not consider the submission of the petitioner and accepted the orders passed by the Disciplinary Authority as well as Appellate Authority. Therefore, it needs to be interfered by this court under Article 227 of the Constitution. He facilitated with some of the reliances rendered by the Hon'ble Supreme Court.
18. The learned counsel for respondent supported the impugned order passed by the CGIT so also orders passed by the Disciplinary Authority as well as Appellate Authority. He has contended that petitioner was not punished twice for the same misconduct. The major misconduct committed by him was remaining unauthorized absent for 47 days as well as 33 days, which were beyond 30 days. As per the Bipartite Settlement (MOS) dated 10.04.2002 clause 5(p), if any official remained unauthorisedly absent exceeding 30 days, the punishment prescribed is removal from service or compulsory retirement and 9 same was imposed by the Disciplinary Authority, which was concurred by the appellate authority and accepted by the CGIT. There is no illegality in the said findings. It is not a disproportionate punishment prescribed for the said misconduct. He has further contended that petitioner was of the habit of remaining unauthorised absent frequently. He remained unauthorisedly absent for 572 days during various intervals. Earlier he was dismissed from service on 12.03.1999. Thereafter as per the orders passed by CGIT in C.R.No.8/2001, he was reinstated into service. In spite of the same, he did not try to correct himself and continued to remain unauthorisedly absent to the duty. He was an attender in the Bank posted to a small branch. Remaining unauthorisedly absent for a longer period, causes inconvenience for running of the branches and serving the public at large. The management of the Bank had also tried its level best to correct the petitioner. But he did not correct himself. In view of the said reasons, he does not deserve any sympathy and prayed to dismiss the said petition.
19. Disciplinary Authority, Appellate Authority as well as CGIT have concurrently held that petitioner was unauthorisedly absent without any intimation for 47 days and 33 days from 02.07.2007 to 17.08.2007 and from 20.08.2007 to 21.09.2007. This fact is in dispute. Though the absence was disputed before the 10 Disciplinary Authority. However, on the basis of evidence available on record, the successive authorities has held that he was unauthorisedly absent during the above said period.
20. The learned Presiding Officer of CGIT in the impugned award in paragraph No. 11 has held as under:
"11. Of course, the Minor punishment imposed on him is in respect of the period for which he is tried under the charge sheet. However, the punishment order dated 04.01.2008 is not referred either by Enquiry Officer of Disciplinary Authority. It is a fact that, charge sheet dated 06.02.2008 was issued to him subsequently including the period for which he was already imposed minor punishment. Despite having the knowledge of the minor punishment, in his reply to the charge sheet, the 1st party did not inform the Enquiry Officer about the minor punishment already imposed on him. However, during the final submission after closure of evidence he has brought to the notice of the Enquiry Officer. However, the Enquiry Officer was obliged to give the report pertaining to the charge sheet and the evidence before him. The Disciplinary Authority has gone on the basis of the Enquiry Report and imposed two minor punishments in respect of misconduct of absence without leave and irregular absence. However, these minor punishments imposed are redundant. Since, he is already punished for the misconduct, next punishment is against the right guaranteed to him under Article 20(2) of our Constitution".
21. The presiding officer of CGIT in the impugned award has already held that imposing of minor punishment for Article A and B was redundant so also he was already punished for the said misconduct in earlier orders. The said paragraph is answered to 11 the repeated submission of the learned counsel for the petitioner that petitioner was punished twice for remaining unauthorisedly absent for a period from 3.11.2005 to 31.10.2006. He got remedy by the CGIT. Accordingly, the learned CGIT has modified order passed by Disciplinary Authority as well as Appellate Authority and petitioner was punished only to the effect of unauthorised absent for a period of 47 days and 33 days, which was beyond 30 days and the learned Presiding officer of CGIT confirmed the punishment imposed by the Disciplinary Authority as well as Appellate Authority in respect of charge No.(c).
22. The learned counsel for the petitioner has vehemently contended that punishment was disproportionate. It is the submission of learned counsel for respondent that as per clause 5(p) of Bipartite Settlement (MOS) dated 10.04.2002 any workman, if remained unauthorised absent without intimation continuously for a period exceeding 30 days", then the punishment is removal from service or compulsory retirement and said punishment was imposed by the Disciplinary Authority and confirmed by the Appellate Authority as well as the CGIT and it does not call for any interference. The learned advocate for the petitioner has not placed any material on record to show that the said punishment is in contravention of clause 5(p) of 12 Bipartite Settlement (MOS) dated 10.04.2002. Under these circumstances and on the basis of the records, it cannot be held that, the said punishment was disproportionate to the misconduct committed by the petitioner and not justifiable.
23. Provisions and guidelines on various type of leave, travelling allowance and leave / travel concession are available in the file of CGIT-cum-Labour Court, which gives guidelines about availing of privilege leave or consequences of availing such a privileged leave on the ground of sickness. It also contains restrictions of availing of a privileged leave. It appears the punishment imposed by the Disciplinary Authority, Appellate Authority as well as CGIT was based upon the previous conduct and attitude of petitioner. It is not in dispute that the petitioner was dismissed from service for such misconduct earlier and he was re-instated to the duty or service by the order of CGIT in CR.No.8/2001. Thereafter also the petitioner did not improve his conduct as well as behaviour of applying the leave or availing of the leave without application well in advance. It appears time and again he had been availing leave without prior application and was remaining unauthorisedly absent. Thereafter, filed a mercy petition before the Competent Authority for granting leave. On the basis of such application, previously the competent authority had granted leave without pay or loss of 13 pay. He did not correct himself, on the contrary, he continued to avail leave without application or without sanction of leave. Therefore the competent authorities have held that the proper punishment to the petitioner was compulsory retirement. Looking to the previous history of unauthorized absence of petitioner from his service indicates that the said punishment was proper and justifiable and do not call for any interference.
24. In the impugned judgment, the learned Presiding Officer of CGIT has considered all this point and confirmed with the punishment imposed and petitioner in respect of charge No.(C). Both the Disciplinary Authority as well as first Appellate Authority have re-appreciated the evidence available on record and concurred with the report of enquiry officer or opinion of the enquiry officer. Thereafter, Presiding officer of CGIT have re- considered the said points as well as appreciated the evidence available on record and admission available on record and on that basis partly allowed the reference and confirmed the punishment imposed in respect of charge No (c). We do not find any illegalities to the said findings to interference in the impugned award passed by the CGIT dated 01.04.2019.
25. The learned advocate for petitioner has relied on the following judgments:
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a. NEW INDIA ASSURANCE CO. LTD VS. VIPIN BEHARI LAL SRIVASTAVA reported in Appeal (Civil.No.5213/2006) dated 21.02.2008. The facts of that case is different from the facts of this case. In that case, there is sufficient reason for unauthorized absence of a workman; In this case, petitioner was repeatedly remained unauthorisedly absent on several dates and previous occasions totally amounting to 572 days. It was submitted by learned counsel for respondent that petitioner was transferred to a place which was not wanted to him, therefore he was in the habit of remaining absent to the duty so as to cause hardship to the management to run the branch. Looking to the entire records placed before the CGIT as well as Disciplinary Authority and Appellate Authority, the said reason appears to be tenable. The said revengeful attitude of petitioner indicates that he does not deserve any sympathy and the reasons assigned by him is not justifiable. Even the learned Presiding Officer of CGIT has noted that, at all the point of time, he obtained the certificate from the same doctor and from the same hospital at Banavar and not from the place of his work. Therefore, the said reliance do not help anyway to the case of the petitioner.
b. In the case of M.V. BIJLANI VS. UNION OF INDIA AND OTHERS reported in AIR 2006 SUPREME COURT 3475. The facts of that case is totally different from the facts of this case.
In that case, the charge framed was very vague and not clear.15
Looking to the facts and circumstances of that case, Hon'ble Supreme Court in the paragraph Nos. 25 and 26, it is held as under:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. while doing so, he cannot take into consideration any irrelevant fact. he cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26. The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly. In the facts of the present case, The Disciplinary Authority & Appellate Authority on appreciation of oral and documentary evidence held that said charges were proved beyond reasonable doubt that appellant was unauthorized absent for a period of more than 30 days. In fact, it was not seriously disputed. Documentary evidence i.e., attendance register clearly indicate the said facts. These facts were reconsidered by the CGIT. Therefore, the punishment imposed by the 16 above said forums are proper and correct and justifiable. The principle of law laid down in the above said judgments do not help the petitioner in any way to substantiate its contention.
c. Similarly, law laid down in the judgment in the case of LT.GOVERNOR, DELHI AND OTHERS VS. HC NARINDER SINGH reported in (2004) 13 SCC 342 and also in the case of STATE OF U.P AND OTHERS VS. MADHAV PRASAD SHARMA reported SLP (C) No.31461 of 2009 do not help the contention of the petitioner.
d. The learned counsel for petitioner has also relied on the judgment in the case of UNION OF INDIA VS. JYOTI CHIT FUND AND FINANCE AND OTHERS reported in (1976) 3 SCC 607 as well as in the case of SOM PRAKASH REKHI VS. UNION OF INDIA AND ANOTHER reported in (1981) 1 SCC 449: 1981 SCC (L&S) 200.
The above said two judgments are not relevant to the facts of the present case. Therefore, no need for detailed discussion.
26. For the reasons discussed above, we do not find any reasons to interfere in the findings of CGIT. Hence, we answer above point in the affirmative and pass the following: 17
ORDER i. Writ petition is dismissed with cost.
ii. Impugned judgment passed by learned Presiding Officer of CGIT-CUM-Labour Court in C.R.No.2/2011 dated 01.04.2019 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE AG