Allowed

Centre Fore Development of Advanced Computing (Formerly National Centre for Software Technology) v. Mrs. Ragini Bhartari

Karnataka HC3 Sept 2024WA/1584/2023

Case brief

AI extract

What is this about?

Employer appealed against a Single Judge order reinstating a scientist dismissed for unauthorized absence and setting aside the dismissal with 25% backwages. The Division Bench held absence without sanctioned leave was wilful, no natural justice violation occurred, revised charges were proper, set aside the Single Judge's order and dismissed the writ petition.

What the court decided

AI extract

Centre Fore Development of Advanced… — Labour and Industrial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:37801-DB WA No. 1584 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K WRIT APPEAL NO. 1584 OF 2023 (S-DE)

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BETWEEN:

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING (FORMERLY NATIONAL CENTRE FOR SOFTWARE TECHNOLOGY), GULMOHAR CROSS ROAD, NO.9, JUHU, MUMBAI - 400 049. (BY SRI. UNNIKRISHNAN.M., ADVOCATE)

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AND:

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MRS. RAGINI BHARTARI, W/O. NEERAJ BHARTARI, AGED ABOUT 41 YEARS, R/AT: NO.803, MAGIC RAY, SUN CITY, SARJAPUR OUTER RING ROAD, BENGALURU - 560 102.

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…APPELLANT

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…RESPONDENT

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(BY SMT. P.V.KALPANA, ADVOCATE)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE APPEAL FILED BY THE APPELLANTS THEREBY SETTING ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WP

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NC: 2024:KHC:37801-DB WA No. 1584 of 2023

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NO.40767/2010 DATED 31/08/2023 AND THEREBY DISMISS THE SAID PETITION, ETC.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO AND

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HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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The challenge in this appeal is to an order dated 31.08.2023 passed by the learned Single Judge in WP No.40767/2010, whereby the learned Single Judge has allowed the writ petition filed by the respondent herein by stating in paragraphs No.39 and 40 as under:

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“39. In the light of the fact that the petitioner has been denied an opportunity of participating in the inquiry, despite repeated requests made by her in the letter dated 15.05.2004 and more importantly, the letter dated 12.09.2004 where she had requested for ten days adjournment, the inquiry report that has been submitted against her and the acceptance of that inquiry report by the disciplinary authority coupled with the imposition of penalty of dismissal from service on the very day she came back to rejoin her duty are clearly

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arbitrary and illegal. The confirmation of the dismissal in appeal cannot also be sustained and therefore, they are accordingly quashed.

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40. The respondent is directed to reinstate the petitioner into service forthwith. Since the victimization of the petitioner is apparent from the manner in which her request for adjourning the inquiry by ten days coupled with the fact that her leave applications were rejected though the petitioner held out a just cause, this would be an appropriate case to award 25% backwages to the petitioner, which shall be paid to her by the respondent within a period of three months from the date of receipt of a copy of this order.

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Writ Petition is accordingly allowed.”

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The facts that need to be noted for the purpose of

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this order are, the respondent was working as a Senior Staff Scientist in the appellant-Organization. It was her case before the learned Single Judge that she availed maternity leave and resumed duty on 02.12.2002. During the period 04.04.2003 - 14.05.2003, she once again availed leave on account of her sister’s marriage. Thereafter, she went to United Kingdom where her

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NC: 2024:KHC:37801-DB WA No. 1584 of 2023

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husband was posted. She had also applied for grant of one year leave from 24.06.2003.

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It was her case that vide letter dated 01.07.2003, the appellant-employer called upon her to immediately report for duty and to hand over all the projects and technical responsibilities to a co-employee. She, on 19.08.2003, again requested the appellant to grant extraordinary leave for two years from September 2003. In the said letter, she had also stated that she would be handing over all projects and technical responsibilities to a co-employee.

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On 02.09.2003, the respondent addressed an e-

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mail to the appellant stating that she has handed over all the projects to her colleague. She addressed three e- mails on 15.09.2003, 16.09.2003 and 30.09.2003 requesting the appellant to inform her about the status of her leave application. The aforesaid three e-mails were responded to vide letter dated 08.10.2003 whereby she was informed that her leave was considered as

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unauthorized absence and her going abroad is a misconduct. It was also stated by the appellant that the absence being the first misdemeanour, a lenient view is being taken and for that, she has to submit a written apology, assuring the appellant that she would not commit the same in future. In fact, it is a matter of record that on 17.10.2003, the respondent had submitted a written apology. It is also a matter on record that on 19.10.2003, the appellant rejected the request for grant of two years extraordinary leave without pay. Thereafter, on 24.10.2003, the respondent addressed a letter stating that she had applied for leave more than 2½ months ago and yet, she has not received any information on her request and as such, she has assumed that it has been approved. She had, again on 27.10.2003, applied for extraordinary leave for two years on the assumption that leave has been approved. On 18.11.2003, the appellant by its written communication, informed the respondent that her request has not been accepted and her absence from duty from 27.10.2003 would be treated as unauthorized absence

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since prior permission had not been obtained. It is also a fact that pursuant thereto also, she continued to apply for leave even while being in United Kingdom. In any case, the appellant vide letter dated 09.02.2004, called upon the respondent to report for duty by 29.02.2004, failing which they would initiate disciplinary action against her. Accordingly on the failure of the respondent to join the duties, a charge sheet dated 21.04.2004 was issued to the respondent. The respondent, responded to the same on 15.05.2004. It is noted that even after issuance of the charge sheet, she continued to write letters to the appellant stating that she would join the duties by August 2004. The request of the respondent was not acceded to and vide memorandum dated 28.06.2004, she was informed that the proceedings would be held at Bengaluru on 26.07.2004 and she is required to be present on that day. She did not appear in the proceedings. It may be stated that on 09.07.2004, a revised memorandum was issued for similar charges. This revised charge sheet was because, she continued to remain absent from 27.10.2003

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without authorization. The charge was also that she had travelled abroad during the said period without prior permission.

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The grievance of the respondent before the learned Single Judge was that the enquiry resulted in her dismissal. While dismissing her, she has not been given proper opportunity. Despite the request that the enquiry be taken up after 09.10.2004, the enquiry officer hurriedly conducted the enquiry which is in violation of Principles of Natural Justice. That apart, despite filing an appeal in February 2005, the same took 5 years for the Appellate Authority to decide. The learned Single Judge has, in paragraphs No.32 to 38, stated as under:

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“32. In this case, on issuance of a revised article of charge dated 09.07.2004, the petitioner had stated that she would be resuming duty by the end of August, 2004 and she could not participate in the inquiry till September, 2004 and had, therefore, requested the respondent to adjourn the inquiry till September, 2004. Despite this request, the date was fixed for inquiry as 03.09.2004 and thereafter, on 03.09.2004, a notice was sent to the

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petitioner to furnish her written submission by 20.09.2004. To this notice of 03.09.2004, the petitioner submitted a reply requesting that the inquiry may be adjourned till October, 2004 since she and her husband was returning to India to participate in the inquiry.

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33. In my view, in the light of the fact that the petitioner responded to the hearing notice dated 03.09.2004 requesting that the inquiry be taken up after she returned to India in October, 2004, the respondent was obliged to grant her a reasonable opportunity. It is to be borne in mind that the article of charges was issued in April, 2004 and was followed by a revised article of charges, which was issued in July, 2004 i.e., three months thereafter. In the background of the fact that the respondent took three months to issue a revised charge sheet, it is clear that if the request of the petitioner for adjourning the inquiry by 30 days was granted, no prejudice would have been caused to the respondent.

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34. The respondent, by denying the request of the petitioner to adjourn the inquiry to/after 09.10.2004 to participate in the inquiry, has submitted an inquiry report on 27.09.2004 and has thereby acted in the most arbitrary manner. It becomes rather patently clear that the intention of

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the respondent was to hastily conclude the process of inquiry and ensure that the petitioner was dismissed from service before she returned to India on 09.10.2004 and attempted to rejoin duty.

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35. The fact that the petitioner, on coming back to India, intimated the respondent on 20.10.2004 that she was prepared to rejoin the duties and yet on the very same day, an order of dismissal from service was passed, by itself, clearly indicates that there was an element of vindictiveness prevalent in the mind of the respondent.

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36. It is also to be noticed here that though the petitioner preferred an appeal in the year 2005 and she made repeated requests for early hearing and disposal during the period 2005-2009 vide Annexures-HH, JJ, KK, LL and MM, her appeal was decided only on 19.07.2010 i.e., nearly after 5½ years. If the Appellate Authority could take 52 years to decide an appeal, the extent of victimization in denying the petitioner an adjournment of ten days to enable her participation in the inquiry becomes apparent. This fact clearly establishes that double standards were adopted and the petitioner has been victimized.

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37. It is to be stated here that the petitioner from the very beginning was stating that she could

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not work due to the fact that she had an infant child to take care and her husband was posted to work in United Kingdom and also because her mother who was taking care of her baby was unable to stay with her since her sister was suffering from a serious ailment. In my view, the fact that the petitioner has applied for grant of leave and had also submitted a written apology clearly indicates that it was not the intention of the petitioner to avoid rejoining her duties.

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38. Yet another factor which confirms the fact that the petitioner had been victimized is the issuance of revised article of charges on 09.07.2004. As already stated above, the petitioner's request for regularizing her leave i.e., extraordinary leave from 14.05.2003 to 11.08.2003 was granted by the respondent subject to her giving written apology. The petitioner, admittedly, gave the written apology and despite this admitted position, the respondent employer has proceeded to issue a revised article of charges making a charge against the petitioner that she was unauthorizedly absent from 14.05.2003 to 11.08.2003. This attitude of the respondent - employer leaves no room for doubt that they intended to remove the petitioner on any pretext, and it was always their intention to victimize the petitioner.”

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The submission of learned counsel for the

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appellant is that, till such time the leave is granted, a Government servant cannot be said to be on leave. Mere filing of leave application without ensuring that the same has been granted, the respondent could not have proceeded to United Kingdom. Her absence from duties was unauthorized. Additionally, she having visited a foreign country without the approval is also a misconduct. His submission is that she being a Senior Scientist, she could not have remained absent unauthorizedly leaving the work at the mercy of her colleagues. Even her plea that the enquiry must be held after she comes back was also a misplaced argument. Despite all the above, the learned Single Judge has allowed the writ petition in the manner reproduced above.

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On the other hand, learned counsel for the respondent would justify the order of the learned Single Judge stating that the respondent has been submitting her applications for leave from time to time and there is no

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reason why the respondent should not have been granted the leave. Unfortunately, in the absence of any communication, she rightly assumed that the leave has been granted. Even the conduct of enquiry was by denying a reasonable opportunity to her as despite her request, the enquiry was not postponed beyond October 2004, which resulted in the enquiry officer completing the enquiry at her back. So, in that sense, the enquiry having been held denying reasonable opportunity to her, the learned Single Judge has rightly allowed the writ petition.

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We are unable to agree with the submissions made by the counsel for the respondent for the simple reason that without leave having been sanctioned, the respondent could not have remained absent or for that matter, travelled to United Kingdom. She remained absent for quite a long period, despite knowing that the appellant has rejected her leave and called upon her to join the duties. The same depicts the wilful absence on the part of the respondent. The plea of learned counsel

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for the respondent that the respondent had applied for leave and nothing had been heard from the appellant, a presumption was rightly drawn by the respondent that the leave has been granted, does not appeal us. This is for the reason even after communications sent to her rejecting the leave and calling upon her to join the place of posting, she did not join her duties. In such circumstance, the appellant had rightly issued the charge sheet for unauthorized absence for different periods which resulted in her dismissal and the same cannot be faulted.

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The plea of the learned counsel for the respondent that the respondent was not given a fair opportunity during the conduct of the enquiry is also unmerited for the reason, the employee who has been chargesheeted cannot put condition for her appearance as per her convenience. It was expected of her to attend the enquiry as per the schedule fixed by the Enquiry Officer. It is a clear case of insubordination. Be that as it may, we do not agree with the conclusion drawn by the learned Single

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Judge in the manner depicted above. The justification given by the learned Single judge about the infant child being there and as her husband was in United Kingdom is concerned, no doubt as a mother, she is bound to look after the child, but the fact remains merely because the husband has gone on official work to United Kingdom for two years, would not mean that she can discard her duties as a Scientist in the appellant-Organization. These aspects have to be balanced by a Government servant so as to ensure that the employer also does not suffer. It is a clear case of wilful absence from the duties and hence, the penalty imposed on the respondent of dismissal is clearly justified.

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The conclusion drawn by the learned Single Judge that it is a case of victimization only on the ground that revised Articles of charge dated 09.07.2004 were issued is not justified for the reason that the revised charge sheet was issued to amend the charges that were earlier framed against the respondent. Revised charges

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were more detailed/specific. We see nothing wrong in the

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appellant revising the charge to bring in conformity with the misdemeanour committed by the respondent. In the conspectus of the facts of this case, we are of the view that the order of the learned Single Judge is liable to be

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set aside and it is ordered accordingly.

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The writ petition filed by the respondent is dismissed .

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We dispose of the appeal.

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No costs.

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In view of the order in the writ appeal, IA No.1/2023

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is disposed of as infructuous.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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List No.: 1 Sl No.: 12

Centre Fore Development of Advanced Computing (Formerly National Centre for Software Technology) v. Mrs. Ragini Bhartari

Case brief

What is this about?

What the court decided

Centre Fore Development of Advanced Computing (Formerly National Centre for Software Technology) v. Mrs. Ragini Bhartari

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