Partly allowed

Bangalore, Bangalore Rural and v. Sri. G. Kavalappa

Karnataka HC9 Nov 2023WP/38344/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order by the Karnataka Appellate Tribunal that reinstated a dismissed society employee. The Court set aside the Tribunal's judgment, finding it erred in ignoring evidence produced before the enquiry officer and the Joint Registrar, and remanded the matter for proper adjudication.

What did the court decide?

The Tribunal judgment dated 07.04.2017 is set aside; parties directed to appear on 04.12.2023 for proper adjudication of the appeal.

Bangalore, Bangalore Rural and Vs Sri. G. Kavalappa — Cooperative Societies | Karnataka HC (2023)

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NC: 2023:KHC:40367 WP No. 38344 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 38344 OF 2017 (CS-RES)

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BETWEEN:

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Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA

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BANGALORE, BANGALORE RURAL AND RAMANAGARA DISTRICT CENTRAL CO-OPERATIVE BANK LIMITED (BBR & RDCC BANK) 5TH MAIN, CHAMRAJPET BANGALORE - 560018 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER SRI B RLINGARAJU

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(BY SRI SOMASHEKAR, ADVOCATE )

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…PETITIONER

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AND:

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SRI. G. KAVALAPPA S/O LATE SRI GANGAPPA RESIDING AT NO 1865, K G RAMA MANDIRA ROAD NELAMANGALA TOWN BENGALURU RURAL DISTRICT

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THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES BANGALORE URBAN, CHAMARAJPET BENGALURU 560018.

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…RESPONDENTS

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(BY SRI SIDDHARTH BABUOROA, AGA FOR R2 SRI MALLAIAH M R, ADVOCATE FOR R1)

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 07.04.2017 IN APPEAL NO.441/2012 PASSED BY THE HON'BLE K.A.T., BENGALURU AT ANNX-Q AND ETC.

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NC: 2023:KHC:40367 WP No. 38344 of 2017

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present petition is filed challenging the order dated 07.04.2017 passed in Appeal No.441/2012 by the Karnataka Appellate Tribunal (hereinafter referred to as ‘the Tribunal’).

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The relevant facts for consideration of the present petition are that the 1^st respondent was an employee of the Petitioner-Society at its Magadi Branch. A charge memo was issued by the Petitioner against the 1^st Respondent which was responded to by 1^st respondent. Thereafter, an enquiry was conducted. The Petitioner and the 1^st respondent adduced oral and documentary evidence. Vide a report dated 3.5.2006, the findings of the enquiry was submitted and a second show cause notice was issued to 1^st respondent, consequent to which, the 1^st respondent was dismissed from service by order dated 31.1.2008.

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The 1^st respondent challenged the said dismissal order dated 31.1.2008 by raising a dispute under Section 70 of the Karnataka Co-Operative Societies Act, 1959 (hereinafter referred to as ‘the Act, 1959’) before the 2^nd respondent. The

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Petitioner-Society entered appearance in the said dispute and contested the said proceedings. The 2^nd respondent by order dated 30.12.2011 dismissed the said dispute raised by 1^st respondent and upheld the order of dismissal order dated 31.01.2008. Being aggrieved, the 1^st respondent preferred an appeal No.441/2012 before the Tribunal. The Petitioner entered appearance before the Tribunal and contested the same. By its judgment dated 07.04.2016, the Tribunal allowed the Appeal filed by the 1^st respondent, set aside the order dated 30.12.2011 passed by the 2^nd respondent – Joint Registrar as also quashed the report of the Domestic Enquiry and ordered the reinstatement of the 1^st respondent to the same post in which he was working as on the date of the dismissal together with full backwages and financial benefits. Being aggrieved, the present writ petition is filed. It is placed on record that Respondent No.1 has attained the age of superannuation on 08.07.2012.

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Learned counsel for the Petitioner contended that the Tribunal on the sole ground that all the documents produced in the enquiry were not produced before the Joint Registrar in the Dispute raised by the 1^st respondent, allowed

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NC: 2023:KHC:40367 WP No. 38344 of 2017

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the appeal and reinstated the 1^st respondent. It is further submitted that elaborate oral and documentary evidence were adduced by the Petitioner in the enquiry and certain documents which were on record in the enquiry were produced by the 1^st respondent in the dispute raised by him before the Tribunal and certain other documents including enquiry report was submitted by the Petitioner. Hence, it is submitted that the question of not producing the relevant documents before the Tribunal does not arise. It is further contended that the Tribunal has not gone into the merits of the matter insofar as the charges made against Respondent No.1 and the response of the 1^st respondent where he admits to the charge made against him. Hence, the order of the Tribunal is sought to be set aside.

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Per contra, learned counsel for 1^st Respondent justifies the order passed by the Tribunal and further submits that 1^st Respondent has been acquitted in the criminal case that was initiated against him.

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The submissions made by both the learned counsels

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have been considered and the material on record have been perused.

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The essential facts regarding the employment is undisputed as also the fact that the charges were alleged against the 1^st respondent in respect of which, an enquiry was conducted and the 1^st respondent participated in the enquiry. It is forthcoming that the Petitioner, in the enquiry conducted had marked various documents as Exs.P1 to P22 as also examined various witnesses. The Petitioner has also produced in the enquiry, the response of the 1^st respondent dated 28.10.2005 which was marked as Exs.P6 as also various documents to prove the charges against the 1^st respondent. It is not in dispute that 1^st respondent has adequately participated in the enquiry and has also adduced evidence.

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Before the 2^nd respondent/Joint Registrar, in the dispute raised by the 1^st respondent, he has produced various documents of the enquiry. The Petitioner who was arrayed as a respondent in the dispute before the 2^nd respondent, has also produced certain documents which were considered and vide

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order dated 30.12.2011, 2^nd respondent upheld the dismissal made by the Petitioner.

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The Tribunal, while considering the appeal filed by Respondent No.1 has noticed the fact that in the charge memo only seven documents were relied upon and the Tribunal has not looked into the other documents. It is relevant to note that in the charge memo itself, liberty was reserved by the Petitioner to produce further documents at the time of enquiry. Further, in the enquiry various documents has been marked in evidence as Exs.P1 to P22 and Respondent No.1 while participating in the enquiry has cross examined witnesses with regard to the documents marked.

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The Tribunal has further recorded a finding that the documents relied on by the Bank were not produced in the enquiry and the conclusion by the enquiring officer with regard to the charges leveled are one sided and biased and has resulted in miscarriage of justice. The Tribunal further, not noticing the fact that all the records that have been produced by the Petitioner in the enquiry were marked in Exs.P1 to P22 and various witnesses have also examined in the enquiry and

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that 1^st Respondent had adequate opportunity to cross examine the witnesses with reference to the documents marked in the enquiry, erred in not noticing the fact that in the dispute raised before 2^nd Respondent all the necessary documents have been produced. There was no basis on which the Tribunal could have recorded a finding that documents were not produced by the Petitioner in the enquiry.

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It is relevant to note that the Petitioner had produced adequate material in the enquiry to prove the charge made against 1^st Respondent. In the dispute raised by the 1^st Respondent before the 2^nd Respondent, the material placed before it has beens adequately re-appreciated while disposing the dispute. The Tribunal has merely, on the ground that adequate material was not produced, has allowed the appeal filed by the respondent. The finding recorded by the 1^st Respondent is ex-facie untenable and liable to be set aside.

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The Tribunal ought to have considered all the material on record before recording its finding and adjudicating upon the appeal filed by the 1^st Respondent. It is relevant note that all the materials produced by the Petitioner to prove the

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charge against 1^st Respondent was produced before the enquiry officer and the documents as produced by the parties were placed before the 2^nd Respondent in the dispute raised by the 1^st Respondent. Hence, the Tribunal was required to consider the said material available on record before adjudicating upon the appeal filed by the 1^st Respondent.

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In that view of the matter, it is expedient that the judgment dated 07.04.2017 passed by the Tribunal be set aside and an opportunity be granted to both the parties to appear before the Tribunal so as to enable the parties to urge their contentions in the appeal before the Tribunal to enable the Tribunal to adjudicate the appeal in accordance with law. It is open to both the parties to place all the materials on record before the Tribunal to enable the Tribunal to record its finding on the charge made against the 1^st Respondent.

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In view of the aforementioned, the following order is passed:

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i) Writ Petition is allowed;

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ii) The Judgment dated 07.04.2017 passed in Appeal No.441/2012 by the Karnataka Appellate Tribunal is set aside;

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iii) The Petitioner and 1^st Respondent shall appear before the Appellate Tribunal on 04.12.2023 without the requirement of any further notice being issued in this regard;

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iv) Consequent to appearance of the parties, the Tribunal shall adjudicate upon the appeal in accordance with law after affording an adequate opportunity to both the parties;

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v) Registry to send the records to the Tribunal forthwith;

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vi) Both the parties are also given opportunity to produce other material as they deem fit before the Tribunal.

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Sd/JUDGE

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BS List No.: 1 Sl No.: 32

Bangalore, Bangalore Rural and v. Sri. G. Kavalappa

Case brief

What is this about?

What did the court decide?

Bangalore, Bangalore Rural and v. Sri. G. Kavalappa

Case brief

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What did the court decide?

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