(Prayer: This petition is filed under Articles 226 and 227 of the Constitution of India Praying to quash the order dated 22/1/2005 In Dispute No.Abn/23/2002-03 passed by the 1st respondent which is produced herewith and marked as annexure-a, and also the order dated 30/1/2009 passed by the Karnataka appellate tribunal at bangalore in appeal no.212/2005 the copy of which has been produced at annexure-b.
1. The petitioner is a Co-operative Society and the respondent No.2 was its junior Manager (Accounts). Alleging that the respondent No.2 has misappropriated certain amounts, committed the breach of trust, dereliction of duty on his part, the petitioner dismissed the respondent No.2 from its service vide its order, dated 23.04.2002 (Annexure-E). Aggrieved by the said dismissal order, the respondent No.2 raised the dispute before the first respondent Assistant Registrar of Co-operative Societies invoking Section 70 of the Karnataka Co-operative Societies Act, 1959. The first respondent by his order, dated 22.01.2005 (Annexure-A) set aside the dismissal order directing that the period from the dismissal order till the date of his reinstatement be treated as the one spent on duty and directing the payment of backwages. The first respondent s order was challenged by the petitioner by filing Appeal No.212/2005 before the Karnataka Appellate Tribunal, Bengaluru (K.A.T5 for short). The K.A.T. by its judgment, dated 30.01.2009 (Annexure-B) dismissed the appeal. On suffering two concurrent orders, this petition is filed by the petitioner Co-operative Society.
2. Shri J.S.Shetty, the learned counsel appearing for the petitioner submits that the first respondent has proceeded on an erroneous assumption that the impugned dismissal order is passed only by the President and without the approval of the Managing Committee. He submits that the conduct of the respondent No.2 does not entitle her to any benefit. He submits that pursuant to the conditional interim order, dated 11.08.2009, the petitioner reinstated respondent No.2 back into its service. However, the respondent No.2 worked just for 23 days and without any valid reason sought leave for three months. Even when the leave was not granted, she has stopped coming to the Office of the petitioner. He submits that the respondent No.2 is not interested in resuming her work. He submits that the respondent No.2 is running a parallel Society. He submits that if the petitioner Society is made to pay the backwages even for the period during which the respondent No.2 has not worked, it would have serious financial ramifications for the Society.
3. Shri V.G. Bhat, the learned counsel appearing for the respondent No.2 submits that the lady employee is being victimised. She is not being assigned with any work and not being permitted to be in the Office, He submits that the respondent No.2 has even lodged a complaint with the Registrar of Co-operative Societies in that regard complaining of the harassment at the hands of the petitioner Management. He prays for the dismissal of this petition.
4. Smt K. Vidyavathi, the learned Additional Government Advocate appearing for the respondent No.1 submits that the orders passed by the Assistant Registrar of Co-operative Societies and the K.A.T. are absolutely justified.
5. The submissions of the learned counsel have received my thoughtful consideration. The first question that falls for my consideration is whether the dismissal order is sustainable and supportable?
6. My emphatic answer is in the negative for one simple reason. No enquiry whatsoever has taken place before the passing of the dismissal order. The dismissal order attaches stigma to the concerned employee. It is trite that no employee can be dismissed from the service without holding the enquiry by observing the principles of natural justice.
7. At this juncture, Shri Shetty submits that the matter be remanded to the Assistant Registrar of Co-operative Societies for holding the enquiry. I am disinclined to accept this submission. The domestic enquiry has to be held in a manner known to law. The articles of charges are to be issued, they are to be accompanied by the list of witnesses, list of documents and imputation of misconducts. These things have not been done in the instant case.
8. Merely making a bundle of loaded allegations does not enable the delinquent to defend himself/herself properly in the enquiry proceedings. The articles of charges have to be precise. In saying so, I am fortified by the Division Bench s judgment in the case of G.V.ASWATHNARAYANA VS. CENTRAL BANK OF INDIA reported in ILR 2003 KAR 3066. Its relevant paragraphs are extracted here in below.
"7. It is well settled that if a charge memo issued to a delinquent employee is defective in substantial terms, then the enquiry proceedings and the final order that may be made on the basis of such defective charge memo would be vitiated and only on that ground the penalty imposed on the delinquent is liable to be quashed. ..................................
8. It is trite that charge-sheet is the charter of disciplinary action. The domestic /departmental enquiry commences with the service of the charge-sheet. In other words, before proceeding with the departmental or domestic enquiry against a delinquent official, he must be informed clearly, precisely and accurately of the charges levelled against him. The charge-sheet should specifically set out all charges which the delinquent is called upon to show-cause against and should also state all relevant particulars and details without which he cannot defend himself. 7 The object of this requirement is that the delinquent employee must know what he is charged with and have the adequate opportunity to meet the charge and to defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged; otherwise, it will amount to his being condemned unheard. Fair hearing pre-supposes a precise and definite catalogue of charges so that the person charged may understand and effectively meet it. If the charges are imprecise and indefinite or vague or unintelligible, the person charged could not be able to understand them and defend himself effectively and in those circumstances, the subsequent enquiry would not be a fair and just enquiry. The charged official ought to be informed of the charges levelled against him as also the grounds upon which they are based. Charge of misconduct should not be vague. The charge -sheet must be specific and must set out all the necessary particulars and details irrespective of the fact whether the delinquent knows it or not; he must have told about the charges and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge23. In this case, it is also relevant to notice that Regulations 6(5) (iii) requires a list of documents has to be enclosed with the charge memo itself In this case, along with the charge memo, neither the list of witnesses nor the list of documents are enclosed. "
9. It is also the Court s anxiety that if the respondent No.2 has committed any misconduct she should not go scot-free. She has to be brought to the book strictly in a manner known to law, Therefore I expressly reserve the liberty to the petitioner to issue the articles of charges, list of witnesses, list of documents and imputation of misconduct and hold the enquiry into the misconduct alleged against the respondent No.2. If the enquiry officer finds the respondent No.2 is guilty of the charges, the disciplinary authority has to consider the findings of the enquiry officer and the second respondent s reply to that and thereafter take a decision as to whether any punitive order is to be passed. If any punishment order is to be passed, it is again for the disciplinary authority to decide as to what should be the quantum of punishment. Needless to observe that the punishment has to be in proportion to the acts of omission and commission committed by the delinquent.
10. The second question is whether the respondent No.1 and the KAT are justified in awarding the full backwages to the respondent No.2? To answer this question, I may usefully refer to the decision of the Hon'ble Supreme Court in the case of M/S.HINDUSTAN TIN WORKS PVT. LTD., VS. THE EMPLOYEES OF
M/S.HINDUSTAN TIN WORKS PVT. LTD., AND OTHERS reported in AIR 1979 SC 75.
"9....................................... The relief of reinstatement, with continuity
of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the light to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong at a result of which the workman is directed to be reinstated the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved: Ordinarily,therefore a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. "
11. The Hon ble Supreme Court's decision in the case of DEEPALI GUNDU SURWASE VS. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA(D.ED) AND OTHERS reported in (2013) 10 SCC 324 is also of immense value in considering the question of awarding backwages. In the said decision, the Apex Court has reiterated that the denial of backwages in cases of wrongful or illegal termination of service would amount to indirectly punishing the employee and rewarding the employer. Where the employer wants to deny backwages or test the employee s entitlement to get the consequential benefits, the employer has to plead and prove that the employee was gainfully employed during the intervening period. Paragraph 38 of the said decision is extracted here in below:
''38. The propositions which can be allied out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.22. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee / workman, the nature of misconduct, if any, found proved against the employee / workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/ she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages, However,if the labour Court/ Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 2226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee / workman to get full back wages or the employer s obligation to pay the same. The courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/ workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/ workman his dues in the form of full back ways.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Tack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman."
12. In the light of the judgments referred to hereinabove, I modify those parts of the orders of the Assistant Registrar of Co-operative Society and of the K.A.T. insofar as they pertain to the direction for the payment of backwages. The respondent No.2 cannot be fastened with the burden to prove that she was not gainfully employed; it amounts to calling upon a party to prove the negative, which is not possible. Once the respondent No.2 denies that she was gainfully employed, the onus shifts to the petitioner Management. I am therefore directing the respondent No.2 to file an affidavit before the petitioner within two weeks from the date of the issuance of the certified copy of today's order stating that she was not gainfully employed during the period of interregnum, that is between the date of her dismissal and the date of reinstatement. Thereafter, the petitioner has to hold the summary enquiry to satisfy itself that the respondent No.2 was not gainfully employed. This enquiry shall be completed within six weeks from the date of the filing of the affidavit by the respondent No.2
13. If it is found that the respondent No.2 was gainfully employed and earning more or less similar emoluments as were being given to her by the petitioner, she is not entitled to any back wages. On the other hand, if it is found that she was not at all gainfully employed, the petitioner Management is required and directed to pay the full backwages. Further, if it is found that the respondent No.2 was gainfully employed to some extent but her emoluments were lesser than the emoluments being given by the petitioner, her entitlement would be only to the differencial amounts (her entitlement had she continued in the service of the petitioner minus the emoluments, which she has earned by gainfully employing herself during the said period).
14. On the allegation that the respondent No.2 has not turned up for work after 23 days of her reinstatement, I do not propose to deny any benefit to the respondent No.2, because there is serious dispute as to whether she has abandoned the work or whether the petitioner has refused to give the work to her. Be that as it may, it is a subsequent act and gives a separate cause of action, if any, for initiating disciplinary proceedings. It shall be open to the petitioner to initiate fresh disciplinary proceedings for the alleged subsequent unauthorised absence of the respondent No.2.
15. I do not see an iota of scope for interfering in the concurrent orders passed by the Assistant Registrar of Co-operative Societies and KAT insofar as they pertain to setting aside the dismissal order. They are modified only in so far as the directions for the payment of backwages are concerned. Further, the liberty is reserved to the petitioner to re initiate the disciplinary proceedings in accordance with law.
16. This petition is accordingly disposed of. No order as to costs.