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2013 DIGILAW 645 (KAR)

Managing Committee v. B. K. Gopal Krishna

2013-06-07

K.L.MANJUNATH, L.NARAYANA SWAMY

body2013
JUDGMENT 1. These two appeals are filed by the Management as well as by the employee challenging the order passed by the Learned Single Judge in W.P.No.14280/2006 dt.31st July 2009. 2. Heard the counsel for all the parties. 3. The facts leading to these appeals are as hereunder:- B.K.Gopal Krishna, respondent in the first appeal who is the appellant in the 2nd appeal was appointed as a Second Division Assistant by the appellant-Sangha on 3.6.1985. His order of appointment was approved by the Director of Collegiate Education. Since the appellant – Management is an aided institution, a charge sheet was issued on 24.12.2003 against the employee on the ground that he remained absent from 1.1.2003 to 9.12.2003 unauthorisedly without prior approval of his leave and that he has displayed lack of devotion to duty and has conducted himself in a manner of unbecoming of an employee of the Management. 4. The employee sent a detailed reply explaining the circumstances which made him not to attend for duty and the Medical Certificate produced by him was not considered by the Management. Since the reply sent was not up to the satisfaction of the Management, the Management proceeded with the enquiry. In the enquiry it is held that the charges leveled against the employee were proved. The Disciplinary Authority by his order dt.8.7.2004 imposed a penalty of compulsory retirement from service. 5. Aggrieved by the order of the dismissal, the employee filed an appeal before the Educational Appellate Tribunal in Appeal No.20/2004, which appeal came to be dismissed on 4.8.2006. Aggrieved by the same, the employee filed the Writ Petition. 6. The Learned Single Judge after considering the arguments advanced by both the parties and by appreciating the evidence let in by the parties before the Enquiry Officer came to the conclusion that the punishment imposed by the Management in ordering for compulsory retirement is contrary to second provisio to Rule-32 of Karnataka Educational Institutions (Collegiate Education) Rules, 2003. Accordingly, he set aside the order of compulsory retirement and also the order of the EAT and allowed the Writ Petition by directing the Management to reinstate the employee into service within a period of 8 weeks from the date of receipt of the copy of the order by giving all consequential benefits. However, he restricted the payment of backwages only to 50% from 1.2.2003 till the date of reinstatement. 7. However, he restricted the payment of backwages only to 50% from 1.2.2003 till the date of reinstatement. 7. Contending that the order of the Learned Single Judge in holding that the order of compulsory retirement passed by the appellant – Management will not contravene Rule-32 of the Rules referred to above, with a request to set aside the order of the Learned Single Judge, the Management has come up in the appeal. Similarly, the employee has filed the appeal contending that the denial of 50% of backwages as bad in law. Therefore, these two matters are heard together. 8. At the outset, we have noticed that the Learned Single Judge did not interfere with the findings of the Enquiry Officer. He has set aside the order of imposition of penalty on technical ground. In other words, the Learned Single Judge, did not interfere with the findings of the Disciplinary Authority or the Enquiry Officer or even the order of the Educational Appellate Tribunal. Therefore, we are of the view that the charges leveled against the employee is proved. The fact remains that the order of punishment has been set aside by the Learned Single Judge on the grounds that imposition of penalty is contrary to Rule 32 and considering the nature of charges leveled against the employee, the imposition of penalty of compulsory retirement would shocks the consciousness of the court. Therefore, using its discretion has interfered with the order by directing the Management to reinstate the employee into service with 50% backwages along with other consequential benefits. 9. Having heard the learned counsel appearing for the parties, we have to consider the following two points in these appeals:- (1) Whether the learned Single Judge has justified in holding that the order of punishment imposed by the Management against the employee is contrary to proviso 2 to Rule 32 or not? (2) If the said point is held against the appellant – Management, whether the employee is entitled for full back wages as contended by him? 10. In order to appreciate the oral contentions, we have to consider Rule 32. Rule 32 reads as hereunder:- “32. (2) If the said point is held against the appellant – Management, whether the employee is entitled for full back wages as contended by him? 10. In order to appreciate the oral contentions, we have to consider Rule 32. Rule 32 reads as hereunder:- “32. Nature of Penalties.- One or more of the following penalties for good and efficient reasons and as herein after provided may be imposed on the employees namely:- (i) Fine, in the case of peons and attenders only; (ii) Censure; (iii) Withholding of increments; (iv) Withholding of promotions; (v) Recovery from pay of the employees in whole or part of any pecuniary loss caused by negligence or breach of orders of the Board of Management, the State Government, the Central Government or any other State Government, any person, body or authority to whom the services of the employee had been lent; (vi) Reduction to a lower stage in a time scale of pay for a specified period with further direction as to pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect on postponing the future increments of his pay; (vii) Reduction to a lower time scale of pay, grade, post or service which shall, unless otherwise directed, be a bar to the promotion of the employee to the time scale of pay, grade, post or service from which he was reduced with or without further directions regarding:- (a) Seniority and pay in the scale of pay, grade, post or service to which the employee is reduced; (b) Conditions of restoration to the scale of pay, grade or post or service from which the employee was reduced and his seniority and pay on such restoration to the scale of pay, grade, post or service; (viii) Compulsory retirement; (ix) Removal from service shall not be disqualification for future employment; (x) Dismissal from service which shall ordinarily be a disqualification for future employment, Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the order of the disciplinary authority, no penalty other than those specified in clause (vi) to (x) shall be imposed for an established charge of corruption; Provided further that every order of private management regarding suspension, dismissal or removal from service etc., shall be issued after prior approval by the Competent Authority which approved the appointment.” 11. It is not in dispute that the appellant – Management is an aided Institution and governed by the institution and on perusal of Rule 32 and second proviso to Rule 32, it is clear that a private Management in regard to suspension, dismissal or removal from service, etc., can only be ordered after prior approval by the Competent Authority which has approved the appointment of the delinquent. 12. It is not in dispute that in the instant case the service of the employee has been confirmed by the Competent Authority (the Joint Director of Collegiate Education). Therefore, the short question that arises for our consideration is whether the order of punishment imposing a penalty of compulsory retirement would come within the purview of the 2nd proviso to rule 32 or not. 13. It is the contention of Sri.S.V.Narasimhan, the learned counsel appearing for the Management that 2nd proviso to Rule 32 would apply only in the case of suspension, dismissal or removal from service and does not apply to a penalty imposed for compulsory retirement as the compulsory retirement does not fall under the category of dismissal or removal from the service. 14. Per contra, the learned counsel appearing for the employee Mr. Bajentri, submits the word used in 2nd proviso to Rule 32 does not confine to order of suspension, dismissal or removal from service. It also includes, etc.,. The word used ‘etc.,’ would attract the punishment of compulsory retirement as compulsory retirement is nothing but a way of removing or terminating an employee from the service. He has also relied upon the Judgment of Madras Highcourt in the case of RAMASWAMY NAIDU VIDYALAYAM VS. REMBERT S.PACKIAM AND OTHERS reported in 2004 (5) SLR Page 311. 15. Before adverting to the Judgment relied upon by the Learned counsel for the employee, we have to consider what is the effect of compulsory retirement whether it can be brought within the purview of the removal or dismissal from the service and what would be the effect of such order on the service condition of the employee. 16. It is not in dispute that in the case of compulsory retirement, the employee who suffered such an order is entitled only for pensionery benefits. But he cannot continue his work. It is nothing but an engineer way of terminating or removing from the services. 16. It is not in dispute that in the case of compulsory retirement, the employee who suffered such an order is entitled only for pensionery benefits. But he cannot continue his work. It is nothing but an engineer way of terminating or removing from the services. Though the word, compulsory retirement has not been included in 2nd proviso to Rule 32, in view of the nature of penalty imposed to him and considering the word, etc., found in 2nd proviso, we have no hesitation to hold that order of compulsory retirement also amounts to a removal from the service and while awarding such penalty, Management is required to obtain prior permission from the Competent Authority. 17. Therefore, we do not see any perversity or illegality in the order passed by the Learned Single Judge and we are also of the view that no error is committed by him in order to interfere with the interpretation made by the Learned Single Judge. Accordingly, point-1 is held against the Management. 18. So far as the 2nd point is concerned, as stated supra, the finding of the Enquiry Officer and the and the Disciplinary Authority has not been disturbed either by the Educational Appellate Tribunal or by the Learned Single Judge. When the unauthorized absence of the appellant has been proved, it is difficult for any court to award bonus to him by directing the Management to pay full salary for his fault. The relief of reinstatement and 50% backwages with continuity of service has been given to the employee by the Learned Single Judge holding that the order of punishment is disproportionate to the nature of challenge and considering the past services rendered by the employee for any allegations of whatsoever nature since the unauthorized absence was on medical grounds. Accordingly, point-2 has to be answered against the employee. 19. In the result, both the appeals are dismissed confirming the order of the Learned Single Judge.