Allowed

Smt. T. Nalini v. M/S Karnataka Food and Civil Supplies

Karnataka HC5 Aug 2024WP/36372/2015

Case brief

AI extract

What is this about?

A Junior Assistant punished after her employer rejected a favourable enquiry report challenged the punishment orders and appellate rejection. The court held the disciplinary authority failed to record reasons for disagreement or offer a hearing as required under Rule 11-A, and the punishment was excessive given her mentally challenged child's medical needs.

What did the court decide?

Impugned disciplinary and appellate orders quashed; respondent directed to settle all benefits due from 05.04.2006 till superannuation.

Smt. T. Nalini Vs M/S Karnataka Food and Civil… — Service and Employment | Karnataka HC (2024)

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NC: 2024:KHC:31068 WP No. 36372 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 36372 OF 2015 (S-RES)

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BETWEEN:

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SMT. T. NALINI AGED 55 YEARS W/O. SRI. T.L. DAYAKAR WORKING AS JUNIOR ASSISTANT KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LTD., NO.16/1, MILLER TANK BED AREA, VASANTHNAGAR, BEHIND AMBEDKAR BHAVAN, BENGALURU-560052 (BY SRI. R. KRISHNA MURTHY, ADVOCATE)

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…PETITIONER

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AND:

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M/S KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LTD., NO.16/1, MILLER TANK BED AREA, Digitally VASANTHNAGAR, signed by SUMA BEHIND AMBEDKAR BHAVAN, BENGALURU - 560052 Location: HIGH REPRESENTED BY ITS COURT OF MANAGING DIRECTOR KARNATAKA 2. BOARD OF DIRECTORS OF M/S KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LTD., NO.16/1, MILLER TANK BED AREA, VASANTHNAGAR, BEHIND AMBEDKAR BHAVAN, BENGALURU - 560052 REPRESENTED BY ITS CHAIRMAN

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…RESPONDENTS

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(BY SMT. LATHA, ADVOCATE FOR SRI. M.V.CHARATI, ADVOCATE FOR RESPONDENT NO.1;

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NOTICE SERVED ON RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER BEARING NO.KFCSC/LD/306/2005-06/2011-12/790 DATED 15.05.2012 ISSUED BY THE 1^ST RESPONDENT VIDE ANNEXURE-H AND THE ENDORSEMENT BEARING NO.KFCSC/LD/234/2012-13/101 DATED 21.11.2014 ISSUED BY THE 2^ND RESPONDENT VIDE ANNEXURE-L AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged an order bearing No.KFCSC/LD/234/2012-13/101 dated 21.11.2014 by which, punishment of withholding of two increments with cumulative effect was passed by the respondent No.2. The petitioner has also challenged the order bearing No.KFCSC/LD/306/200506/2011-12/790 dated 15.05.2012 passed by the respondent No.1 affirming the order of punishment.

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The petitioner contends that she joined the office of the respondents in the year 1986 as Junior Assistant on daily wage basis and she was regularised in the year 1988 as a Junior Assistant. During the year 2003-2004, she was working

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at the office of Hon'ble Revenue Minister. Later, by an order dated 28.05.2004, she was transferred to the Head Office at Bengaluru, where she reported to duty on the same day. She was on leave from 31.05.2004 to 30.06.2004. However, in the meanwhile, by an order dated 28.06.2004 she was transferred from the Head Office to the District Office at Hassan. She contends that she has two children, amongst whom, the daughter is aged 28 years and is mentally challenged who is confined to bed or the wheel chair and she is under treatment at Nimhans. She claimed that the State Government had issued an order dated 22.12.2001, wherein it was stated that wherever the child of the Government servant is suffering from any serious ailment, he/she should be posted in a place, where the required medical treatment is available. In that circumstance, the petitioner submitted a representation dated 19.11.2004 requesting the respondents to cancel her transfer to Hassan and to retain her in Bengaluru. She contends that in view of her inability to travel to Hassan, she kept on submitting leave applications from time to time. However, the respondent No.1 initiated disciplinary action against the petitioner and

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issued articles of charge accusing the petitioner of the following charges:

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"1. You, Smt. T.Nalini, Junior Assistant have reported for duty in the Administration Section in the head Office on 28-5-2004. Thereafter, from 31-5-2004 to till date, you are unauthorizedly absent from duty and have thus caused inconvenience to Office work.

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2. You Smt. T.Nalini, Junior Assistant, have shown disobedience to your higher authorities by not receiving and by not obeying the Transfer Order No.KFCSC/Adm/Est/JA/2004-05/1706, dated 28/29-6-2004 and Relieving Order No.KFCSC/Adm/Est/135/PF/ 2004-05, dated 7/8-72004.

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3. You, Smt. T.Nalini, Junior Assistant, have brought political pressure for modifying your transfer order. This amounts to misconduct under Rule 26 of KCS (Conduct) Rules, 1966."

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The petitioner submitted her reply and requested

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the respondent No.1 to drop the enquiry. However, the respondent No.1 appointed an enquiry officer. When the enquiry was under progress, the respondent No.1 compulsorily retired the petitioner allegedly in public interest on the ground

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that the petitioner had failed to report to duty pursuant to the order of transfer dated 28.06.2004. Aggrieved by the said order, the petitioner filed WP No.11954/2006. This Court in terms of the order dated 09.12.2010 quashed the order of compulsory retirement and directed the respondent No.1 to continue enquiry from the stage, at which it was abandoned. Later, the respondent No.1 by an order dated 01.01.2011 directed the petitioner to report for duty at Hassan. Accordingly, the petitioner reported to duty at Hassan on 12.01.2011. The respondent No.1 then informed the enquiry officer to continue the enquiry form the stage at which it was abandoned. Again by an order dated 14.01.2011, the petitioner was transferred from Hassan to Bengaluru, where she reported to duty on 15.01.2011. The Enquiry officer resumed the enquiry and submitted a report dated 28.07.2011 holding that none of the charges leveled against the petitioner was proved. The respondent No.1 issued a second show-cause notice dated 07.10.2011 disagreeing with the findings of the Enquiry Officer and proposed to impose punishment of postponement of two increments with cumulative effect. The petitioner contends that she submitted her explanation dated

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07.12.2011 and also contended that the finings of the enquiry officer was just and proper and requested the respondent No.1 to drop the proceedings. None the less, the respondent No.1 passed an order imposing the following punishment upon the petitioner:

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"i. Postponement of two annual increments with cumulative effect;

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ii. Forfeiture of 50% of salary from the date of compulsory retirement till the date the petitioner reported for duty as per the order of this Hon'ble Court;

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iii. Treating the period from 21.11.2004 to 4.4.2004 as unauthorized absence without wages."

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The petitioner challenged the above order before

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the respondent No.2 by filing an appeal. However, the respondent No.2 in its 271^st board meeting held on 18.01.2014 passed a one line resolution stating that "after due discussions, financial implications were studied and Board did not consider the appeal."

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Being aggrieved by the order passed by the

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respondent Nos.1 and 2, the petitioner has filed this petition.

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The learned counsel for the petitioner contended

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that whenever the disciplinary authority chooses not to accept the report of the enquiry officer, it is bound to:

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i. specifically inform in the second show-cause the reasons for rejecting the enquiry report or disagreeing with the findings of the enquiry officer;

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ii. to call for an explanation as to why, the enquiry report should not be rejected.

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He contends that the second show cause notice did not contain these aspects and therefore, the disciplinary authority did not apply its mind before imposing punishment on the petitioner. He contends that the respondent No.1 had alleged that the petitioner had remained absent from 21.11.2004 to 04.04.2006 without submitting any leave application. However, in reality, the petitioner had submitted leave application dated 29.03.2006 on which, the General Manager had made certain remarks on 03.04.2006 which was inwarded at SL.No.89 dated 04.04.2006 of the inward register. Therefore, he contends that the respondent No.1 without considering this fact had blindly passed an order of punishment. He further contended that the petitioner has a mentally challenged daughter who is treated at

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Nimhans and therefore, the presence of the petitioner at Bengaluru was necessary and therefore, the petitioner was compelled to request for grant of leave, since she could not travel to Hassan. He contended that having regard to the problems faced by the petitioner, the respondent No.1 must have taken a lenient view while imposing punishment. He contends that the respondent No.1 while imposing the punishment had alleged that a request was made by the petitioner to reduce the punishment, though, the petitioner did not make such a request. He therefore, contends that the impugned order is based on incorrect facts and is thus liable to be set aside. He further contends that the respondent No.1 has not considered the reply submitted by the petitioner to the second show-cause notice and therefore, the impugned order is not a speaking order. He also contends that in the second show-cause notice, the respondent No.1 had called upon the petitioner to show-cause as to why, punishment of stoppage of two increments should not be imposed. However, in the impugned order in addition to postponement of two increments, the respondent No.1 had imposed punishment of forfeiture of 50% salary from 05.04.2006 to 11.01.2011. He contends that

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punishment of forfeiture of 50% of salary was illegal since the order of compulsory retirement of petitioner was quashed by this Court in W.P.No.11954/2006 and therefore, the respondent No.1 was bound in law to pay full salary for the said period. He also contends that the Appellate Authority blindly dismissed the appeal without giving cogent reasons.

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The learned counsel for the respondents on the other hand contended that the petitioner was transferred to Hassan on 28.06.2004, but she did not report to duty. He therefore contends that the petitioner was unauthorisedly absent and therefore, the report of the enquiry officer that charge No.1 was not proved, was rightly not accepted by the disciplinary authority. He further submitted that the order of transfer dated 28.06.2004 was not received by the petitioner and she did not obey the order of transfer and hence, the charge No.2 was proved beyond doubt and disciplinary authority was justified in refusing to accept the findings and report of the enquiry officer that the charge No.2 was not proved. In so far as charge No.3 was concerned, Ex.P18 was the minute dated 29.06.2004 issued by an Ex-Revenue Minister, Ex.P19 was a note dated 30.08.2004 by the Chairman

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of Karnataka Food and Civil Supplies Corporation by which, the concerned Officer was informed to transfer the petitioner to the Chairman's office, Ex.P20 was a minute of the then Deputy Chief Minister, while Ex.P21 was a minute dated 19.07.2004 of the Special Officer and Ex-officio Joint Secretary of the Chief Minister. He submitted that by all these minutes and communications, the petitioner had brought political pressure for her retention at Bengaluru and therefore the charge No.3 was amply proved. He submitted that in the second showcause notice, the respondent No.1 had specifically indicated the reason for not accepting the report of the enquiry officer and therefore, the Disciplinary proceedings against the petitioner cannot be annulled on the ground that there was any procedural lapse. He also contended that the petitioner had remained absent unauthorisedly for nearly two years and had brought political pressure to retain her at Bengaluru, which was in violation of Rule 26 of Karnataka Civil Services (Conduct) Rules, 1966. He contended that petitioner was given ample opportunity to establish her innocence and Disciplinary Authority while passing the impugned order had taken into

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consideration Rules 14-A, 99-A(1) to (5), 106-A, 106-B, 107, 108, 143, 144, 162 of Karnataka Civil Services Rules.

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I have considered the submissions of the learned

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counsel for the petitioner and the learned counsel for the respondent No.1.

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The Enquiry Officer while returning his findings on charge No.1 relating to unauthorised absence from 31.05.2004 held that MW, deposed that petitioner had submitted an application for leave for the period 31.05.2004 to 15.06.2004 vide Ex.P1. Similarly, leave applications were filed for the period 16.06.2004 to 21.11.2004. Of this, the petitioner had submitted a request for earned leave for the period 17.08.2004 to 17.09.2004 and commuted leave for the period 20.09.2004 to 20.10.2004 on medical grounds which was sanctioned vide note dated 02.02.2011. This period was ordered to be excluded from the charge sheet. This apart it was found that leave applications for the period 31.05.2004 to 15.06.2004 and 16.06.2004 to 30.06.2004 was received on 31.05.2024 to 17.06.2004 respectively. Similarly leave application for the period 01.07.2004 to 21.11.2004 was received in the head

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office. The enquiry officer held that in the statement of imputation, there was a reference to the leave applications but no details were forthcoming about the alleged absence from duty from 21.10.2004 to 05.04.2006. The enquiry officer held that under Rule 106 of Karnataka Civil Services Rules, if an employee absented from work without getting the leave sanctioned, he is liable for disciplinary action but if he/she is able to convince the sanctioning authority that he/she could not attend to work due to unavoidable reasons, the disciplinary action may be dispensed. He also held that no documents were produced to establish that any action was taken against petitioner. He also held that the procedure prescribed under Rule 143 of Karnataka Civil Services Rules was not followed by the leave sanctioning authority. Hence, the consequence under Rule 162 of Karnataka Civil Services Rule was bound to follow. Therefore, he held that the charge was not proved. Contrarily, in the second show-cause notice issued by the respondent No.1, he held that as reported by the enquiry officer, the petitioner did not submit leave application from 21.11.2004 till the date on which, the departmental enquiry was commenced. He held that when there was no leave application, the question

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of sanction or refusing the leave application does not arise. In this writ petition, the petitioner has placed on record, a leave letter dated 29.03.2006, the same is received and acknowledged in the inward register dated 04.04.2006. There is nothing to show that the leave application was considered in the manner prescribed under Rule 143 of Karnataka Civil Services Rules. However, the respondent No.1 had passed an order dated 05.04.2006 compulsorily retiring the petitioner for unauthorized absence which was challenged before this Court in W.P.No.11954/2006. Hence the disciplinary proceedings for unauthorised absence was not proceeded with. This Court after considering the fact that the petitioner was compulsorily retired, without following due process of law, allowed W.P.No.11954/2006 and directed reinstatement of the petitioner, but reserved liberty to the respondent No.1 to commence the enquiry from the stage, it was left. The respondent No.1 before recommencing the enquiry, must have therefore, considered the leave application submitted by the petitioner on 29.03.2006 inwarded by the respondent No.1 on 04.04.2006. The disciplinary authority proceeded to assume that the petitioner was guilty of unauthorized absence,

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unmindful of the fact that the petitioner had submitted applications for leave, many of which were not considered.

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The procedure to be adopted by the disciplinary authority while rejecting the report of the enquiry officer is provided under Rule 11A of the Karnataka Civil Services (Classification, Control and Appeal Rules, 1957 which reads as follows:

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" 11-A. Action on the inquiry report .-(1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be.

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(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.

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(3) If the Disciplinary Authority having regard to its findings, on all or any of the articles of charge is of the opinion that one or more of the penalties

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specified in Rule 8 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 12, make an order imposing such penalty:

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Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government Servant and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant."

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It is evident from the above that the respondent

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No.1 did not comply with the above Rule while rejecting the report of the enquiry officer and while holding that the charge against the petitioner was proved. It was incumbent upon the respondent No.1 to have called upon the petitioner to first show-cause as to why the report of the enquiry officer should not be rejected and thereafter he should have proceeded to pass the order of punishment. This is also the law declared by the Hon'ble Surpeme Court in the case of Punjab National

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Bank and others Vs. Kunj Behari Misra - (1998) 7 SCC 84

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which reads as follows:

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"11. The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the enquiring authority and acts under Regulation 7(2). The said sub-regulation does not specifically state that when the disciplinary authority disagrees with the findings of the enquiring authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.

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When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

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It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.

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19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority

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records its findings on the charges framed against the officer."

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Similarly in the case of SBI and Others Vs. Arvind K.Shukla - (2004) 13 SCC 797 , the Hon'ble APex Court following the judgment in the case of Punjab National Bank Vs. Kunj Behari Mishra referred supra held that:

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"The learned Single Judge came to the conclusion that non-furnishing of the reasons, which weighed with the disciplinary authority to differ with the findings of the enquiring officer to the delinquent is fatal, and vitiates the ultimate order of punishment inflicted upon, and therefore the learned Single Judge allowed the writ petition. The Bank assailed the said order by preferring an appeal, but the Division Bench having dismissed the same, the Bank has preferred this appeal before this Court.

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On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate

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findings. This question is concluded by a three-Judge Bench decision of this Court in the case of Punjab National Bank V. Kunj Behari Misra.

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In the absence of any contrary decision of a three-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this Court in Punjab National Bank case necessarily, therefore, we do not find any merit in this appeal, which stands dismissed."

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The respondent No.1 has not disputed the fact hat the petitioner has a mentally challenged daughter, who was treated at Nimhans. The petitioner who was taking care of a mentally challenged child, could not have been transferred to a distant place at Hassan, where there are no adequate medical facility for treatment of her daughter. In a desperate attempt to hold on to the post at Bengaluru, the petitioner could have approached the authorities for her retention at Bengaluru. That in itself could not be treated as bringing political pressure and could not be treated as a misconduct. Under the circumstances, the procedure adopted by the respondent No.1 and consequent punishment imposed by him are thoroughly

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arbitrary, unreasonable and excessive and deserves to be interfered with.

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The Appellate Authority which was required to consider the case holistically, rejected the appeal only on the ground of financial implications and therefore, the order of the Appellate Authority deserves to be set at naught.

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Consequently, the writ petition is allowed the impugned order bearing No.KFCSC/LD/306/2005-06/201112/790 dated 15.05.2012 passed by the respondent No.1 and the order bearing No. No.KFCSC/LD/234/2012-13/101 dated 21.11.2014 passed by the respondent No.2 are quashed. The respondent No.1 is directed to forthwith settle all the benefits to which the petitioner is entitled to from the date she was compulsorily retired that is from 05.04.2006 to till the date she attained the age of superannuation.

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Sd/- (R. NATARAJ) JUDGE

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List No.:1 Sl No.: 42

Smt. T. Nalini v. M/S Karnataka Food and Civil Supplies

Case brief

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Smt. T. Nalini v. M/S Karnataka Food and Civil Supplies

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