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2016 DIGILAW 282 (KAR)

Mahadev v. State of Karnataka

2016-03-18

G.NARENDRA, H.G.RAMESH

body2016
ORDER : G. Narendra, J. 1. The above writ petition is preferred being aggrieved by the Order of the Karnataka Administrative Tribunal [hereinafter referred to as "the Tribunal" for short] at Bangalore, dated 20.03.2013 rendered in Application No. 369/2010. 2. The facts in brief is that the petitioner was appointed in the Karnataka State Reserve Police Force as Anuyayi-42, C-Force, 8th Battalion vide Order of Appointment dated 18.05.1984. The petitioner was continued in service till 30.11.2003 and was removed from service with effect from 01.12.2003 pursuant to the order of dismissal dated 29.11.2003. It is alleged that the petitioner unauthorizedly absented himself from 06.10.2002 till date of dismissal i.e., 30.11.2003. Noticing his unauthorized absence, a Caution Notice dated 07.11.2002 was forwarded to his address, which he failed to receive. Thereafter, a departmental inquiry came to be instituted against the petitioner under the Karnataka State Police [Disciplinary Proceedings] Rules, 1965 and an Inquiry Officer came to be appointed in terms of Rule 6 to inquire into the charges leveled against the applicant. The inquiry was conducted and the report submitted. On the basis of the report, the 3rd respondent got issued a show cause notice dated 13.10.2003; whereby the delinquent/petitioner was put on notice that it was proposed to impose punishment of dismissal from service and he was also called upon to submit his explanation to the said notice. No reply was submitted by the petitioner. Subsequently, an order of dismissal came to be passed against the petitioner while treating the period of unauthorized absence from 06.10.2002 to 30.11.2003 as one of leave without allowance by Order dated 29.11.2003. 3. After the passage of nearly 2 years, the petitioner preferred an appeal vide representations dated 22.08.2005, 12.09.2005 and 17.10.2005. The Competent Authority-2nd respondent after consideration of the appeal was pleased to reject the same on the premise that the same was filed belatedly and as per the provisions of Rule 11 ought to have been filed within 90 days from the date of the order and the delinquent had not even furnished the reasons for the delay. The appeal came to be rejected by Order dated 17.01.2006. The petitioner is said to have submitted yet another representation dated 02.08.2006 to the 2nd respondent, which came up for consideration and was disposed of by endorsement dated 16.09.2006, whereby the delinquent employee was informed to pursue revision petition dated 09.02.2006. The appeal came to be rejected by Order dated 17.01.2006. The petitioner is said to have submitted yet another representation dated 02.08.2006 to the 2nd respondent, which came up for consideration and was disposed of by endorsement dated 16.09.2006, whereby the delinquent employee was informed to pursue revision petition dated 09.02.2006. It is stated that the 1st respondent-Government after considering various grounds including the length of service rendered by the petitioner was pleased to alter and modify the punishment from one of dismissal from service to that of compulsory retirement. The said order of the Government on the revision petition came to be passed on 18.05.2007. 4. The petitioner accepted the same and did not initiate any proceedings to question the legality of the order passed by the 1st respondent on his review petition and the same became final. 5. In 2010, the petitioner moved the Tribunal by way of application on the sole contention that he has been discriminated against while imposing punishment. That in the case of another delinquent, who was working as a driver and was dismissed from service after an inquiry on the charge of having given a false income certificate to the society for obtaining a loan. But, on the review petition filed, the revisionary authority modified the order of dismissal to that of withholding of 5 annual increments and hence on parity the order of compulsory retirement is discriminatory and vitiated by arbitrariness. On coming to know of the said order, he submitted a representation dated 26.08.2008 praying for treatment on parity. But, the said representation came to be rejected by endorsement dated 17.01.2009 on the ground that a second revision is not maintainable and hence he preferred the Application on 04.01.2010. 6. In the application, the petitioner raised several contentions. The Tribunal after considering the application was pleased to hold that the respondents have modified the order of one of dismissal from service to that of compulsory retirement only on humanitarian ground and though the said order is passed in the year 2007, it was not questioned for nearly two years and is being agitated after much delay. It was also pleased to consider the matter on merits also and it has observed that he unauthorizedly absented himself along with the official kit and that he was untraceable during the said period and remained incommunicado during the relevant period. It was also pleased to consider the matter on merits also and it has observed that he unauthorizedly absented himself along with the official kit and that he was untraceable during the said period and remained incommunicado during the relevant period. It was also pleased to hold that the petitioner has failed to demonstrate as to when he left Shimoga or ascribe reasons as to why he did not apply for leave and he has raised a challenge belatedly. After appreciating the reasons for imposing punishment, it was pleased to hold that the said reasons are valid and dismissed the application. Aggrieved, he is before this Court. 7. The petitioner would reiterate his contention that he has been differently treated and discriminated against and hence the impugned order of dismissal is arbitrary and discriminatory and on parity, his punishment ought to have been fruitfully modified and he ought to have been taken back into service. This is the sole ground that is urged before this Court. Learned counsel would draw the attention of this Court to Annexure-"A7", which is the order on revision in respect of a constable/driver by name Sri. S.Y. Harakeri. We have perused the same. 8. The employee referred to in Annexure - A7 is alleged to have indulged in furnishing false information to a Society regarding his salary for the purpose of obtaining a loan. The respondents in their wisdom have deemed it fit to condone the same taking into account the extenuating circumstances therein and the nature of delinquency committed. Whereas, the charge against the petitioner is one of the unauthorized absence for the period in excess of 400 days and that too without any intimation. Hence, the said charges against the present petitioner and the person proceeded under Annexure - A7 are neither comparable nor on the same footing and hence, the allegation that the impugned order is discriminatory and vitiated by disparity is liable to be rejected and is accordingly rejected. 9. It is not the case of the petitioner that the charges alleged against him and the charge against other person are similar and hence, he ought to be treated on parity. The mere fact that similar punishments were imposed cannot be a ground for claiming the benefit of similar treatment. 9. It is not the case of the petitioner that the charges alleged against him and the charge against other person are similar and hence, he ought to be treated on parity. The mere fact that similar punishments were imposed cannot be a ground for claiming the benefit of similar treatment. This was also not a ground that was urged before the respondents on the first occasion and it is only in the second representation that this is sought to be canvassed. 10. The Hon'ble Apex Court in the case of Regional Manager, Bank of Baroda v. Anita Nandrajog 2009 (9) SCC 462 ] while dealing with a case of unauthorized absence for a period of 150 days has been pleased to hold as follows: "13. The behavior of the respondent remaining absent without leave for such long periods was clearly regrettable and unfortunate. We are fortified by the view we are taking by the decision of this Court in Syndicate Bank v. Staff Assn. as well as the decision in Punjab & Sind Bank v. Sakattar Singh. No establishment can function if it allows its employees to behave in such a manner. We, therefore, uphold the order of the appellant Bank dated 25-8-1989 terminating the service of the respondent as a voluntary cessation of her job, and we set aside the award of the Tribunal dated 5.6.1996 and the impugned judgment of the High Court dated 22.9.2003. Appeal allowed. No order as to costs." 11. In the present case, the petitioner has absented himself for a period of 400 days and he has also willfully disobeyed the superior by not responding to the caution notice. He has not even intimated his address nor has he justified his absence with any records. He has not even submitted a leave application and hence, this Court is of the considered view, that the charge of unauthorized absence and the punishment imposed do not warrant any interference at the hands of this Court. 12. In another case reported in the case of S.C. Saxena v. Union of India 2006 (9) SCC 583 ] the Hon'ble Apex Court upheld the charge of unauthorized absence and the order of compulsory retirement. Even the plea of the delinquent to adjust the leave available in his credit against the period of unauthorized absence has been rejected and it was pleased to observe as follows: "8. Even the plea of the delinquent to adjust the leave available in his credit against the period of unauthorized absence has been rejected and it was pleased to observe as follows: "8. A final, if we may say so, desperate argument was made that the appellant had sufficient leave to his credit and, therefore, the respondents should have taken a liberal view in the matter and permitted him to resume duty when he attempted to resume in the year 1992 by sanctioning the leave that was available to his credit. In our view, the argument cannot be countenanced. Acceding to such an argument by courts, particularly this Court, has led to and will continue to lead to gross indiscipline in public service. We are unable to accept such an argument." 13. In the present case, the petitioner has not made out any ground and apart from relying on Annexure - A7 which as stated earlier is only on a different set of facts. The petitioner has also virtually accepted the reasoned order passed by the 1st respondent modifying the punishment of dismissal from service to one of compulsory retirement. 14. An aggrieved person is expected to be vigilant, diligent and proactive in approaching the authority or the Court for agitating his rights and praying for relief. The act of callousness and unexplained delay are one that are capable of defeating the litigant's right to equity. Though it is not an inviolable rule that the delay must and will defeat the equitable right of the litigant, the conduct of the petitioner and the circumstances surrounding do not excite this Court to exercise its jurisdiction. Even in the present petition, the petitioner has not explained the delay in approaching either the authorities or the Court within a reasonable time. The petitioner has not acted with a diligence as is expected of a prudent person, who had suffered a severe penalty. The petitioner was guilty of delay in even preferring an appeal against the order of dismissal, which was preferred after a delay of more than 2 years. The petitioner has not acted with a diligence as is expected of a prudent person, who had suffered a severe penalty. The petitioner was guilty of delay in even preferring an appeal against the order of dismissal, which was preferred after a delay of more than 2 years. Even in the intervening period, there are no details forthcoming if the petitioner ever made any attempt to even find out about the status of his employment and that too being a person belonging to the Police Force, high standards of discipline are expected and the petitioner absenting himself for more than 2 years and that too along with the official kit handed over to him cannot be condoned. 15. In the case of Shankar Co-op Housing Society Ltd. v. M. Prabhakar & Ors. 2011 AIR SCW 3033], the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows: "The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay." 16. As laid-down by the Hon'ble Apex Court, the appellant has not at all explained the delay much less in any satisfactory manner and mere presentation of the second revision contrary to the statute and rules cannot be a ground to condone the delay. Even otherwise, no other good ground is made out which would warrant interference with the order under challenge at the hands of this Court. Hence, the writ petition is dismissed without being admitted.