Allowed

Narendra Kumar S/O Late M Chandrasekhar v. Thekarnataka Power Transmission Corporation Ltd.

Karnataka HC6 Nov 2012WP/8249/2011

Case brief

AI extract

What is this about?

Two petitioners challenged their dismissal from service based on alleged police confessions without a departmental enquiry. The High Court held that such a statement is not sufficient evidence to dismiss an employee without enquiring into its voluntariness.

What did the court decide?

The impugned dismissal orders dated 09.12.2005 in I.D.Nos.93/2001 and 94/2005, along with the order of the Disciplinary Authority, were quashed.

Narendra Kumar S/O Late M Chandrasekhar Vs… — Service and Employment | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA, BANGALORE

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DATED THIS THE 6^TH DAY OF NOVEMBER 2012

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BEFORE

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THE HON'BLE MR. JUSTICE SUBHASH B.ADI

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WRIT PETITION NO. 8248/2011 C/W WRIT PETITION NO. 8249/2011 (L-TER)

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IN W.P.NO.8248/2011

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BETWEEN :

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R. Ravi S/o. Late Ramaswamy, Aged about 44 years, Aladakatti, Haveri, Haveri District. ... PETITIONER (By Sri. M.N. Satya Raj, Adv. - ABSENT) IN W.P.NO.8249/2011 BETWEEN :

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Narendra Kumar S/o. Late M. Chandrasekhar, Aged about 35 years, No.55, 3^rd Cross, Railway Parallel Road, Yeswanthpur, Bangalroe – 560 022. ... PETITIONER

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(By Sri. Subba Rao, Sr. Counsel for M/s. Subba Rao & Co.,)

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AND :

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The Karnataka Power Transmission Corporation Limited K.R.Circle, Bangalore – 560 001. Represented by its Superintending Engineer (Electl.) Bangalore Circle (North). ... RESPONDENT

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(COMMON IN BOTH W.Ps.)

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(By Sri. Harikrishna S. Holla, Adv.)

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These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the award dated 09.12.2005 (Annexure-A).

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These petitions coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:

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O R D E R

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None appears for the petitioner in W.P.No.8248/2011.

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Heard Sri. Subbarao, learned Senior Counsel appearing for the petitioner in W.P.No. 8249/2011.

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Though both the writ petitioners have called in question

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the awards passed by the Principal Labour Court, Bangalore in I.D.No.93/2001 dated 09.12.2005 and I.D.No.94/2011 dated 09.12.2005, the facts leading to passing the said awards being common, both the writ petitions are dealt by the common order.

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Respondents in both these cases and one K.Shashidhar were

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dismissed from th service on 31.03.2001 by the respondentCorporation by dispensing disciplinary enquiry by invoking provisions of Clause 14 Sub-Clause (3) of the Karnataka Electricity Board Employees’ (Classification, Disciplinary Control and Appeal) Regulation Act, 1987 (referred to as ‘the Regulation’)

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Brief facts leading to these cases are that the petitioners had joined the services of the respondent-Corporation. However, they were charged with an allegation of theft and were kept under suspension. A joint departmental enquiry was initiated against the petitioners and another by issuing charge sheet dated 21.12.1998. However, without any disciplinary enquiry being conducted, by common order dated 21.01.1999 the petitioners and another were dismissed from service. They had approached this Hon’ble Court in writ petition, this Hon’ble Court disposed of the said writ petition inter alia permitting the petitioners to raise a dispute before the labour Court/Industrial Tribunal. Accordingly, petitioner and another raised a dispute before the Labour Court.

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The Labour Court dismissed the dispute by the impugned

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award produced at Annexure-A in both the writ petitions. As against this award, petitioners are before this Court.

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It is not in dispute that the petitioners and another have been dismissed only on the basis of alleged confession statement alleged to have been made before the police admitting the theft and accordingly by order dated 21.01.1999 all the three workmen were dismissed from the service. This Court in respect of the one of the workman namely K. Shashidar who had also suffered the order of dismissal, had approached the Labour Court and against the dismissal of dispute had approached in W.P.No.12031/2006 and it is also not in dispute that this Court by order dated 06.03.2008 had allowed the writ petition by setting aside the order of dismissal as well as the award.

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It is also not in dispute that the said order was called in question before the Division Bench of this Court in writ appeal No.717/2008 and the Division Bench by order dated 29.07.2008 confirmed the order of the learned Single Judge. Against which a

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special leave petition was filed in SLP No.29334/2008 and the special

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leave petition also came to be dismissed by order dated 11.12.2009.

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It is not in dispute that against all the three delinquent employees common charges were made. It is also not in dispute that the disciplinary authority had dispensed the departmental enquiry by invoking provisions of Sub-Clause (3) of Clause 14 of the Regulations against all the three employees. Though the case of K.Shashidhar and petitioners is the same and the charges being one and the same, the decision of this Court in W.P.No.12031/2006 covers the case of these petitioners also.

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However, the learned Counsel appearing for the respondent submitted that, the petitioner in W.P.No.8248/2011 has admitted of his mis-conduct before the Police and in view of his confession statement made before the Police, the Disciplinary Authority has passed an impugned order. He further submitted that, in case of confession statement, no further enquiry is necessary and under Clause 14 subclause (3) of the Regulations, the Board can dispense with the

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enquiry. To support his contention, he relied on the judgment reported in (1996) 10 SCC 659 in the matter of Kuldip Singh –vs- State of Punjab and Others and submitted that, in similar circumstances, the Apex Court accepted the statement made before the Police as a confession statement, based on which, it confirmed the order of Disciplinary Authority.

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On the other land, Sri.Subba Rao, learned Senior Counsel submitted that, after the issue of the charge sheet, the Disciplinary Authority without holding any enquiry, only on the ground that petitioners and another have voluntarily admitted that, they have committed a theft alleged against them has passed the impugned order, hence, such an order is per se illegal, violative of principles of natural justice, no employee could be dismissed without any enquiry and much less when the charge sheet was issued and no enquiry is held, the order of Disciplinary Authority per se is not sustainable. He also submitted that, the Labour Court without even going into this question has erroneously dismissed the dispute. Further submitted that, in respect of one of the delinquent employees, this Court has

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already set aside the award and also the order of the Disciplinary Authority. Facts and circumstances for leading to that case are identical and similar to the facts and circumstances in these two cases also.

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It is not in dispute that, these two petitioners as well as one K.Shashidhar were issued with charge sheet alleging that, they have committed theft and in this regard, the Disciplinary Authority without any enquiry has passed the impugned order interalia observing:

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“ Whereas, during the investigation by police, the three delinquent employees namely, (1) K. Sashidhar, Assistant, (2) R.Ravi, Junior Assistant, (3) Narendra Kumar, Junior Assistant have admitted voluntarily that, they have committed the mis-conduct alleged against them. Though they have not filed any reply to the charge sheet stating that, on account of the pending criminal investigation and the matter pending in competent court, they will not file any reply.”

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Accordingly, it passed a common order, dismissing all the three employees.

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It is also not in dispute that, K.Sashidhar had raised a dispute in Reference No.75/2004 and his reference was also rejected.

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Further, it is not in dispute that, against the said order, K. Sashidhar has filed a Writ Petition No.12031/2006 and this Court allowed the

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said writ petition by order dated 6^th March 2008 wherein, on interpretation of Clause 14 sub-clause (3) of the Regulations, this Court has observed thus:

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“ There is no evidence before the Disciplinary Authority. In such circumstances, the order of dismissal is admittedly unwarranted. The Labour Court not appreciating the same and also not appreciating the fact that, the statement made before the Investigating Officer is no evidence, has passed the award. In the absence of evidence before the Disciplinary Authority, the order of dismissal and the award of the Labour Court is not sustainable.”

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In these cases also, there is no other reason for dismissal of the petitioners except stating that the confession statement is stated to

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have been made before the Police.

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The statements made before the Police by themselves do not become an evidence, however, during the course of the domestic enquiry, if the evidence adduced by the Management coupled with

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such voluntary statement made before the Police may have a bearing

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on the departmental enquiry. In this case, in the absence of any departmental enquiry and in the absence of any other evidence, a statement made before the Police, that by itself will not be a ground to dismiss an employee nor it will prove the misconduct alleged against the delinquent employee. The Judgment relied by the learned Counsel for the respondent is not applicable to the facts and circumstances of

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the case, as at para-11, the Apex Court has observed thus:

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“ In a departmental enquiry, it would perhaps be permissible for the authorities to prove that the appellant did make such a confession / admission during the course of interrogation and it would be for the Disciplinary Authority to decide whether it is voluntary confession / admission or not”.

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It clearly indicates that, a statement made before the Police by itself is not sufficient. Even if it is to be relied, it must be proved that it has been made by the delinquent employee and the Disciplinary Authority must give a finding that, such a statement was voluntary. In these cases, neither there is any enquiry nor there is any finding by the Disciplinary Authority that, such statement was voluntary statement. Hence, the order of the Disciplinary Authority per se being illegal and

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contrary to the principles of natural justice and further the order of dismissal being not preceded with any enquiry, is not sustainable in law.

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As far as Clause 14 sub-clause (3) of the Regulations is concerned, the dispensation of an enquiry arises only when there is threat of security to the Board, no such circumstance is also pointed out in these cases nor the case alleged against the petitioners can be termed as threat to the security of the Board. Further, the decision of this Court in K.Shashidhar ’s case in W.P.No.12031/2006 covers the case of these petitioners also.

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Hence, in view of the order passed by this Court in W.P.No.12031/2006, these writ petitions are also allowed. The impugned orders dated 09.12.2005 in I.D.Nos.93/2001 and 94/2001 produced at Annexure-A, stand quashed. Consequently, the order of the Disciplinary Authority also stands quashed.

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Sd/JUDGE

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VP/KNM

Narendra Kumar S/O Late M Chandrasekhar v. Thekarnataka Power Transmission Corporation Ltd.

Case brief

What is this about?

What did the court decide?

Narendra Kumar S/O Late M Chandrasekhar v. Thekarnataka Power Transmission Corporation Ltd.

Case brief

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What did the court decide?

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