Partly allowed

Sri Sunil Monteiro v. the Managing Director & Appellate Authority

Karnataka HC5 Aug 2020WA/3501/2018

Case brief

AI extract

What is this about?

The High Court quashed the punitive order withholding increment with cumulative effect for a respondent employee due to unproportionate punishment. The court substituted it with withholding three increments without cumulative effect and directed pay fixation.

What did the court decide?

Order punishing petitioner with withholding of one annual increment with cumulative effect quashed; substituted with withholding of three increments without cumulative effect; directed to fix pay with

Sri Sunil Monteiro Vs the Managing Director… — Service and Employment | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 05^TH DAY OF AUGUST, 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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W.A. No.3501/2018 (S-RES)

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BETWEEN:

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SRI SUNIL MONTEIRO

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S/O. LATE SRI WILLIAM MONTEIRO, ‘BETHEL HOUSE’

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BEHIND KALAANGAN KONKANI THEATRE, MAKALE SHAKTHINAGAR POST, MANGALORE – 575 016.

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... APPELLANT

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(BY SRI A. MADHUSUDHANA RAO, ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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THE MANAGING DIRECTOR & APPELLATE AUTHORITY KARNATAKA POWER TRANSMISSION

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CORPORATION LTD., KAVERI BHAVAN, BANGALORE – 560 009.

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THE MANAGING DIRECTOR MANGALORE ELECTRIC SUPPLY CO. LTD., AN UNDERTAKING OF KARNATAKA

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GOVERNMENT, ATAVAR, MANGALORE – 575 001.

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THE CHIEF DIRECTOR ADMINISTRATION AND HUMAN RESOURCE KARNATAKA POWER TRANSMISSION

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CORPORATION LTD., KAVERI BHAVAN, BANGALORE – 560 009.

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SRI B.A. KULKARNI UNDER SECRETARY (RETIRED) GOVERNMENT OF KARNATAKA, BANGALORE, AND THE INQUIRY AUTHORITY, MANGALORE ELECTRICITY SUPPLY CO., LTD., ATAVAR,

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MANGALORE – 575 001.

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THE SUPERINTENDING ENGINEER WORKS AND MAINTENANCE CIRCLE, MESCOM CIRCLE OFFICE, ATAVAR, MANGALORE – 575 001. ... RESPONDENTS

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(BY SRI VIKRAM UNNI RAJAGOPAL, ADVOCATE FOR R-1 TO R-5 (THROUGH VIDEO CONFERENCE))

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 30.08.2018, PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.13778/2011, ALLOW THIS WRIT APPEAL WITH COSTS AND GRANT SUCH OTHER RELIEFS AS THIS HON’BLE COURT MAY DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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This is an appeal filed by the petitioner in Writ Petition No.13778/2011, who has challenged the order dated 30.08.2018 passed by the learned Single Judge of this Court, dismissing his writ petition.

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The parties hereinafter are referred to as per their respective ranking in the writ petition.

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Briefly stated facts are that the petitioner was

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earlier working as a Section Officer in Works and Maintenance Unit, Managudda Branch, MESCOM during the years 2000 to 2002. He was promoted as Junior Engineer and later as Assistant Engineer. On 01.10.2004 he was issued with a show cause notice stating that despite disconnection of power supply to the installations bearing R.R.No.B1204/P22 and RR.No.B1305/P22 belonging to M/s Rehman Timbers, Mangaluru, the consumer continued to draw power. The installations were within the petitioner’s jurisdiction and hence he had failed to detect and prevent power theft and avoid consequent revenue loss to the Corporation to the extent of Rs.8.63 Lakhs.

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In reply, the petitioner admitted the lapse but

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stated that it was due to pressure of work and denied any

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malafide intention. However, the respondents proceeded to initiate departmental enquiry by issuing Articles of Charge on 16.03.2006 to the petitioner as well as seven other officials who were working during the period. The petitioner filed his reply on 05.04.2006, reiterating his earlier statements. In addition, it was stated that the incident occurred when petitioner was given additional charge of HT installations of Managudda, Kavoor, and Bajpe branches. There were twenty thousand installations and more than 50 of them being above 40 HP. It was also stated that the petitioner was threatened by the consumer and had filed a police complaint, in that regard. It was further stated that apart from the above mentioned two installations, M/s Rehman Timbers had one more installation for commercial lighting, there were no arrears with regard to this installation. The said connection was also located in the same meter board and attached to the same pole.

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However, the respondent did not accept the explanation and proceeded with the departmental enquiry. After completion of the Departmental Enquiry, the Enquiry Officer submitted his report. The Enquiry Officer specifically recorded a finding that the entire amount due as per the KERC code S. 42.06 had been recovered from the consumer and the monetary loss to the Corporation was averted. The Enquiry Officer held that the charges against the delinquent employee nos. 1 to 3 and 6 to 8 were not proved. But the charges in respect of delinquent employee nos.4 and 5 were held proved partially. It was stated that the petitioner and his successor section officer had failed in their duty to file a complaint for violation of law against the consumer.

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5. The petitioner was thereafter issued with a copy

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of the enquiry report and to show cause why it should not be accepted. The petitioner once again reiterated his earlier reply.

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The Disciplinary Authority accepted the findings

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of the Enquiry Officer and closed the departmental enquiry against the delinquent employee Nos. 1 to 3 and 6 to 8. The Disciplinary Authority, however, proceeded to pass an order of punishment, withholding one annual increment of the petitioner with cumulative effect vide order dated 18.04.2007. Aggrieved by the order of the Disciplinary Authority the petitioner filed an appeal before the Managing Director, KPCL. However, the same came to be dismissed on 02.11.2010. Questioning the order of the Disciplinary Authority dated 18.04.2007(Annexure-H) and the order of the Appellate Authority (Annexure-L), the petitioner approached this Court in W.P.No.13778/2011. The same is dismissed by the learned Single Judge on 30.08.2018 leading to this Appeal.

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Learned counsel for the petitioner submitted

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that, during the relevant period, the lapse occurred on account of the Petitioner being placed in-charge of

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additional areas and which had a very large number of installations. It was sought to be argued that there was no loss of revenue as the entire amount due had been recovered from the consumer. It was also contended that, when the higher officer, namely, the Assistant Executive Engineer had permitted the consumer to pay the arrears in instalments, and the consumer was in fact paying the same, the power supply could not have been cut-off. When the charges against all the other officials, in relation to the same incident, were closed only the petitioner and his successor, Sri. Manjunath have been held guilty of the charges. As the Disciplinary Authority and the Appellate Authority failed to look into these aspects, the same were unsustainable. It was also contended that considering the nature of the charge, the order of punishment was highly disproportionate. Especially so when the petitioner is having more than twenty(20) years of service ahead, and the

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consequence of the order of punishment would entail severe civil consequences to him.

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On the other hand, learned counsel for the

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respondent, however, opposed the writ petition and contended that the Courts should be slow in interfering with the orders passed by the Disciplinary Authorities and should not treat the challenge to the order of the Disciplinary Authority as an appeal. Learned counsel submitted that the entire departmental enquiry proceedings were conducted in a just and fair manner and the learned Single Judge had rightly dismissed the writ petition. In support of his submissions, learned counsel for the respondent relied upon the following decisions:

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1) Union of India & Others Vs. P. Gunashekaran (2015) 2 SCC 610.

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2) State of Karnataka & Another Vs. N. Gangaraj 2020 SCC Online SC, 185.

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In respect of disciplinary matters, the Hon’ble

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Supreme Court in the case of State of Haryana Vs.

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Rattan Singh reported in AIR 1977 SC 1512 has held:

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“The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good.”

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Indeed as per Gunashekaran and Gangaraj ( Supra )

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the scope for interference in disciplinary matters is very limited to see whether it is a case of no evidence in support of the charges and not the sufficiency of the evidence. In former cases, there is some scope for interference, but not in the latter. As the departmental enquiry has been concluded, after affording due opportunity to the petitioner and as no case of violation of any specific rule/regulation have been urged, we desist from examining the findings of the Enquiry Officer, especially so, when the petitioner has

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admitted his lapse. The examination is therefore to verify whether the order of punishment is proportionate to the proven charges applying the Doctrine of Proportionality and Wednesbury Principles. It is useful to refer to the decision of the Hon’ble Supreme Court to the case of Mahindra and Mahindra Ltd. Vs. NB Narawade reported in 2005 (3) SCC 134 , where the Hon’ble Supreme Court held that jurisdiction on the principles of proportionality can only be exercised when the Court finds that the order of punishment disturbs its conscience, there exist mitigating circumstances which require reduction of punishment or past conduct of the workman which persuades for reduction of punishment.

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In this regard, the following factors are relevant:

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i) The petitioner has fairly admitted that there was lapse on his part in preventing power theft by the consumer. However, it is stated that the same was not only on account of pressure of work, as he was holding additional charge, but also because of the threat from the consumer

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and with regard to which a police complaint was also lodged.

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ii) While the Enquiry Officer held the charges against the petitioner (D.E. No.4) and Sri. Manjunath (D.E. No.5) as partly proved, the Disciplinary Authority imposed punishment of withholding of increment with cumulative effect only insofar as the petitioner is concerned.

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iii) The Enquiry Officer has given a specific finding that the entire arrears of revenue was recovered from the consumer and the financial loss to the Board was averted.

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iv) No antecedents of misconduct on the part of the petitioner are pointed out in the second show cause notice, which implies unblemished past service therefore calling for imposition of a reformative punishment.

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v) The petitioner is having more than two decades of service before attaining the age of superannuation and the cumulative effect of the punishment would have serious financial implication over the long duration of service and as such would be disproportionate.

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It is also seen that neither the Disciplinary Authority

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nor the Appellate Authority has examined petitioner’s case in the light of the above factors. The Hon’ble Supreme Court in its decision reported in Chairman-Cum-

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Managing Director, Coal India Limited And Another

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Vs. Mukul Kumar Choudhuri reported in 2009 (15) SCC 620 as also, a Division Bench of this Court of which one of us, Nagarathna J., was a member in W.A.No.100115/2016 ( J.G. Joshi Vs. Management of Syndicate Bank ) disposed of on 05.02.2019, have explained the manner of exercise of discretion by the Disciplinary Authorities while imposing punishment as follows:

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“19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

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20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and

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exclude irrelevant matters before imposing punishment.”

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Having regard to the above observations, we are of the considered opinion that the order of punishment imposed by the Disciplinary Authority requires to be interfered with, as the same is grossly disproportionate to the proven charges against the petitioner. Hence, the order of the Disciplinary Authority, only in so far as the order of punishment is concerned, is quashed.

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At this stage, though it would be proper to remand the matter back to the Disciplinary Authority to reconsider the case of the petitioner with regard to the quantum of punishment, but considering the fact that the misconduct in question is of the year 2002 and the disciplinary proceedings in question were initiated during the year 2004, it would be befitting to give a quietus to the issue in these proceedings by imposing an appropriate alternative punishment. It is clarified that we are

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constrained to do in the peculiar facts and circumstances of this case. In our considered view, it would be just and proper to impose punishment of withholding of three increments without cumulative effect as alternate

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punishment.

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Respondents are directed to re-fix pay and increments of petitioner in terms of the above order and pay financial benefits to petitioner within a period of four months from the date of receipt of a certified copy of this order.

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In view of the aforesaid discussion, appeal is allowed

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in part.

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Parties to bear their respective costs.

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Sd/JUDGE

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Sd/JUDGE

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Psg*