Dismissed

J. Jagannathan v. the General Manager

Karnataka HC12 Nov 2024WP/14/2017

Case brief

AI extract

What is this about?

This is a writ petition filed by an ex-employee of South Western Railways challenging his removal from service. The High Court of Karnataka rejected the petition, holding that the Tribunal's findings on the long unauthorized absence were not susceptible to interference by the writ court under supervisory jurisdiction.

What did the court decide?

The writ petition is dismissed with cost.

J. Jagannathan Vs the General Manager — Pension and Retirement Benefits | Karnataka HC (2024)

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WP No.14/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT PETITION NO. 14 OF 2017 (S-CAT)

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BETWEEN:

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J JAGANNATHAN, AGED ABOUT 50 YEARS, (S/O LATE SRI. V JEEVARATHINAM) EX JUNIOR CLERK IN THE OFFICE OF SENIOR DIVISIONAL SIGNAL & TELECOMMUNICATION ENGINEER, BANGALORE DIVISION, S W RAILWAY, BANGALORE – 560 023. R/O #122, H COLONY, INDIRA NAGAR, 1^ST STAGE, BANGALORE – 560 038. …PETITIONER

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(BY SRI. J JAGANNATHAN., PARTY IN PERSON)

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AND:

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THE GENERAL MANAGER

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& REVISING AUTHORITY (UNDER RAILWAY SERVANT’S DAR, 1968) SOUT-WESTERN RAILWAY, GADAG ROAD, P.O.HUBLI – 580 020.

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THE CHIEF PASSENGER TRANSPORT MANAGER & NOMINATED REVISING AUTHORITY O/O THE GENERAL MANAGER, SOUTH-WESTERN RAILWAY, GADAG ROAD, P.O:HUBLI-580 020.

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THE ADDITIONAL RAILWAY MANAGER & APPELLATE AUTHORITY (UNDER RLY SERVANT’S DAR, 1968) O/O THE DIVISIONAL RAILWAY MANAGER, BANGALORE DIVISION, SOUTH-WESTERN RAILWAY, BANGALORE – 560 023. 4.

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THE SENIOR DIVISIONAL SAFERTY OFFICER, O/O THE DIVISIONAL RAILWAY MANAGER, BANGALORE DIVISION, SOUTH-WESTERN RAILWAY, 5. BANGALORE – 560 023. THE SENIOR DIVISIONAL SINGAL & TELECOMMUNICATION ENGINEER, O/O THE DIVISIONAL RAILWAY MANAGER, BANGALORE DIVISION, SOUTH-WESTERN RAILWAY, BANGALORE – 560 023.

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…RESPONDENTS

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(BY SRI.MADHUKAR DESHPANDE., CGC)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO QUASH ANNX-G THE ORDER DATED 18.11.2016 PASSED BY THE HON’BLE TRIBUNAL, BANGALORE BENCH IN O.A.NO.170/00098/2015 FOR THE REASONS MENTIONED ABOVE AND QUASH ANNX-A15 (UNDER ANNX-A) THE PENALTY ADVICE DATED 04.7.2012 PASSED BY THE SR.DSO/SBC-THE DISCIPLINARY AUTHORITY AND ETC.,

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THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY, KRISHNA S. DIXIT.J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and

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HON'BLE MR JUSTICE C M JOSHI

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CAV ORDER

(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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Petitioner an erstwhile employee of South Western Railways is grieving before the Writ Court against Bengaluru Central Administrative Tribunal’s order dated 18.11.2016 whereby his case in O.A.No.170/00098/2015 has been negatived. In the said O.A. he had called in question the punishment of removal from service handed on 04.07.2012 and its confirmation by the Appellate Authority vide order dated 18.02.2013. During the pendency of the O.A. he had also challenged the Revisional Order dated 06.04.2015 whereby these two orders were upheld.

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Petitioner, party-in-person by lengthy submissions and thick pleadings sought to falter Tribunal’s judgment on several grounds which can be essentially summarized as under:

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(a) The disciplinary proceedings were marred by the vice of violation of the principles of natural justice inasmuch as he was denied the opportunity of examining two witnesses of the management namely PW-1 & PW-2.

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(b) The charge of unauthorisedly remaining absent was not established on the basis of evidentiary material placed on record and so also the charge of refusing to accept the memo asking him to undergo medical test; the authorities are not justified in holding to the contrary ie., the charges having been proved and levying the punishment of removal from service.

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(c) Going by the preponderance of probability, petitioner should be held to have been prevented from attending to the usual duties and therefore the order of punishment founded on a contra premise is liable to be voided.

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(d) The authorities who had passed the impugned orders and the Tribunal which has entered the judgment in question affirming the said orders failed to see the protection afforded to a civil servant like the petitioner under the provisions of Article 311 of the Constitution of India and thereby committed a blatant illegality. The punishment is disproportionate to the gravity of guilt, even if taken to have been proved.

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Learned Panel Counsel appearing for the official respondents resisted the petition making submission in justification of the impugned orders of the authorities and Tribunal’s judgment in question. He made submission in

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justification of the reasons on which they have been constructed. He also draws our attention to the record of the case to contend that petitioner did not avail the opportunity of cross examining the witnesses; even otherwise nothing material to the outcome of the enquiry would have happened had he undertook cross examination; the Disciplinary Authority, Appellate Authority and the Revisional Authority have considered the matter in due discharge of statutory duties; their concurrent views have been affirmed by the Tribunal; that

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being the position a Writ Court exercising essentially supervisory jurisdiction cannot interfere with the same in the absence of demonstrable errors of law. So contending he prayed for dismissal of the petition.

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Having heard the petitioner party-in-person and the learned Sr. Panel Counsel appearing for the official respondents and also having perused the petition papers, we decline indulgence in the matter for the following reasons:

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(i) Firstly, we do not agree with the petitioner, partyin-person that he was denied the opportunity of cross-

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examining two witnesses of the management. PW-1 Mr.Gnyanaprakasam happens to be a Senior Typist and PW-2 Mr.Rajashekar happens to be Office Superintendent. After examination-in-chief so called, petitioner instead of cross examining them had sought for adjournment, which the Enquiry Officer refused to grant. It is not that the examination in chief ran into pages and therefore time was required to be granted to the petitioner to prepare for cross examination. A person who fails to avail the opportunity to conduct cross examination of witnesses cannot complain that he was denied such an opportunity. The Enquiry Officer in his report has specifically observed that on the third sitting, petitioner delinquent did not choose to cross examine but had sought for time; on the fourth sitting when witness Mr.Gyanaprakasam was called for, petitioner had said that he had nothing to cross examine. There is absolutely no reason to doubt the regularity of enquiry proceedings.

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(ii) The version of the petitioner that his long absence from 04.11.2010 to 24.04.2011 was not unauthorized, is very difficult to countenance; once long absence is

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admitted the onus to prove that it was authorized lies on the shoulders of the delinquent employee, which he had not discharged in this case by placing even minimum evidentiary material. It was not a case involving short absenteeism for a week or two but a very long period of absence. Longer the period, heavier becomes the onus on the delinquent employee to justify it. The submission of the petitioner party in person that it is the duty of the employer/competent authority to prove that the absenteeism was not justified, is legally wrong to say the least, once absence is admitted. Why he remained absent, is for the delinquent employee to explain. The reply of the petitioner that for short period he was also working elsewhere in the Department is a poor justification. In any civilized jurisdiction, long absence when not plausibly explained is treated as a misconduct and rightly so. It would not only disturb the regularity of work in the office but will prompt others to do the same thereby leading to indiscipline & disorganization. Much is not necessary to deliberate.

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(iii) The next submission of the Petitioner – party in person that on 25.04.2011, he was not served with the memo at all, is again cannot be agreed to. The said memo had directed him to go for medical check up at the hands of designated Medical Officer; there was nothing unusual in that. Such a course is adopted to ascertain that the absence was not on medical ground. Why the higher officials would falsely assert about petitioner’s refusal to accept the memo, remains to be a riddle wrapped in an enigma. His explanation that there was an undercurrent of personal bias is not substantiated, either. What gain the higher ups would derive by troubling a lower official is difficult to ascertain. Viewed from the human conduct, in the ordinary course of nature coupled with evidentiary material on record, we see absolutely no justification for the petitioner’s refusal to accept memo of the kind. It hardly needs to be stated that, petitioner was labouring under an impression that once he accepts memo and undergoes medical test, that would affect his arguable justification for the long absenteeism.

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(iv) Both the findings of the enquiry officer that the charge of long absenteeism and refusal to accept tender of memo, have been examined by the competent authority after petitioner submitted his representation pursuant to second Show Cause Notice. He carried the matter in appeal which came to be negatived; matter did not end here; he invoked revisional jurisdiction which also came to be dismissed. These are all remedies availing to a civil servant of the kind at the Department level. Later, challenge to the same at the hands of Tribunal also came to be rejected. The Tribunal at Paragraph Nos.17 of its impugned judgement has observed as under:

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“We have gone through the inquiry report and connected records. The inquiry officer’s report states that the DRM disposed of the applicant’s representation with an endorsement dated 25.10.2010 directing him to continue to work under the Sr.DSO. Thereafter the Sr.DSO issued a series of letters instructing the applicant to report for duty and issued the charge memo when the latter did not comply. The record shows that the applicant himself testified that he was expecting a posting order from Sr. DTSE/SBC whom he called his controlling officer. He also stated that he was working under Sr.DSO from 20.9.2011 without orders and that he had attended office. He was also aware that he was marked absent in the attendance register. In his statement dated

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13.03.2012 he admitted that he had not attended office during the period of absence. After perusing these records we have no doubt in our minds that the applicant was willfully absent during the period concerned. There is nothing to show that he was prevented from rejoining duty. To this date we cannot understand why the applicant refused to rejoin duty when directed to do so.”

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The above observation has been made after examining the

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records and therefore, this Court cannot undertake a

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deeper examination of the same in the absence of demonstrable errors.

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(v) The last contention that the punishment is disproportionate to the gravity of the charges, even if they are assumed to have been proved, again is difficult to sustain. As already mentioned above, the absence was apparently too long to be ignored. It was for a period of 319 days; It hardly needs to be reiterated that long absenteeism would cause insurmountable difficulties in an organization like the Railways and more particularly in its Safety Department. Added to this, petitioner’s refusal to accept the service of memo in question is an affront to the organizational discipline; virtually, it borders insubordination, which again has potential contagiousness.

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Removal from service for proven misconduct of the kind is not by any standard disproportionate to the gravity of charges nor does it shake the conscious of the Court. The Tribunal at paragraph No.18 of its judgement has rightly observed as under:

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“We are satisfied that disciplinary action was initiated by the competent authority, that the applicant was willfully absent and that the respondents adhered to prescribed procedure. The applicant failed to make a compelling case to prove his innocence despite adequate opportunity. The Railway board’s master Circular (Enclosure 7) does not come to his aid either. The applicant has also failed to substantiate allegations of mala fide against the respondents. We note that the DA, the AA and the RA all passed well-reasoned and speaking orders. The Railway Board’s file makes it clear that the RA relied upon the proven misconduct of unauthorized absence to uphold the penalty imposed on the applicant and that the applicant never presented the compelling circumstances that obliged him to be unauthorizedly absent. The RRT’s role is purely advisory and Enclosure 6 has been overruled by the appropriate authority, namely, the Railway Board.”

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Ordinarily, what punishment needs to be awarded is a matter that belongs to the domain of employer/competent authority, subject to all just exceptions into which argued case of the petitioner does not fit. Appellate authority has seen the record of the proceedings and affirmed the order

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of punishment; even the Revisional Authority did the same. A statutory Tribunal which comprises of a retired judicial officer and a retired civil servant of high grade has examined the matter and in its considered view entered the impugned judgement. A Writ Court exercising supervisory jurisdiction under Article 227 of the Constitution, other provision i.e., Article 226 having been ornamentally employed, is not a court of appeal. It has its own conventional limitations. It cannot undertake a roving enquiry in matters of the kind, more particularly when the punishment awarded to the delinquent employee for the proven misconduct serves cause of justice.

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In the above circumstances, this petition being devoid of merits, is liable to be and accordingly dismissed, costs having been made easy.

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Sd/- (KRISHNA S DIXIT) JUDGE

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Sd/(C M JOSHI) JUDGE

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Bsv

J. Jagannathan v. the General Manager

Case brief

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J. Jagannathan v. the General Manager

Case brief

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