K. SIPPE GOWDA, S/O LATE CHIKKA JAVAREGOWDA, HIGH COURT OF KARNATAKA Vs. THE HIGH COURT KARNATAKA REPRESENTED BY ITS REGISTRAR GENERAL, THE HONBLE CHIEF JUSTICE AND THE DISCIPLINARY AUTHORITY, HIGH COURT OF KARNATAKA REPRESENTED BY ITS REGISTRAR

JUDGEMENT

(1.) HEARD the learned Counsel for the parties.

(2.) THE facts briefly staled are as follows: The Petitioner had joined the services of the first Respondent on 14.2.1972 as a Second Division Assistant and was promoted to the cadres of First Division Assistant, Assistant Court Officer and Court Officer in the years 1979, 1991 and 1994, respectively. It is claimed that the Petitioner has rendered service without any blemish over the decades. The Petitioner also contends that he was elected as the Joint Secretary of the Karnataka Slate Government Employees Association in the year 1978 and that he was a member of the Executive Committee of the said Association and thereafter, was elected as the General Secretary and he held that position till December 1994. In January 1995, he was said to have been elected as the President of the Association. In the year 2002, he was again elected as the president of the Association. It claimed that the Association has a membership of almost six lakh employees through out the State of Karnataka with 182 branches. It is contended by the Petitioner that as an office -bearer of the Association, he was required to attend to the problems of the Government employees in various departments and he was therefore a necessary member of various sub -committees, which were constituted by the Association to address the numerous grievances of its members. It is in view of the active involvement of the Petitioner in the affairs of the said Association, that the Respondents, as early as in the year 1991, had granted a general permission to the Petitioner, on his representation, that he could attend to the activities of the Association even during the office hours. The Petitioner however was placed under suspension by an order dated 18.12.2004, in contemplation of disciplinary action. The Petitioner was posted to work under the Assistant Registrar in the MFA. Decree -II, Record Room -II and the Supreme Court branches. He was under the over -all administration, control and supervision of the Registrar (Judicial), High Court of Karnataka. It was alleged that he was irregular in attendance and was in the habit of leaving his work place after marking attendance and was not available to assign any work. When questioned by the Registrar (Judicial), about his dereliction of duty, it was stated that he had frowned at him arrogantly and continuously failed to discharge his duties. This having been Drought to the notice of the Honourable Chief Justice, the Chief Justice had directed that he be posted to Court -hall No. 1 as an Additional Court Officer and accordingly, a Memo dated 18.12.2004 was served on him. After receiving the same, instead of complying with the directions contained therein, he had refused to work and had displayed utter defiance and had submitted an application seeking earned leave from 18.12.2004 till 15.2.2005, on medical grounds, which according to the Chief Justice was a ruse to avoid the work assigned to him. This was held to be willful, disobedience to work and a lack of devotion to duty and therefore, disciplinary proceedings were initiated, with the Chief Justice acting as the disciplinary authority and had been placed under suspension. This was followed by Articles of Charge dated 1.1.2005. The two charges were as follows: Charge -1: That while working as Court Officer on the establishment of High Court of Karnataka, you were directed under Memo dated 18.12.2004 to work as Additional Court Officer to Court Hail No. 1 with effect from 18.12.2004. But, after receiving the Memo instead of complying with the directions, you submitted an application praying for grant of Earned Leave from 18.12.2004 to 15.02.2005 on medical grounds without stating the nature of ailment and production of necessary medical certificate. Since the leave application was in total defiance to the Memo issued, as a ruse to avoid the work assigned to you, in disregard to Rule 182 of Karnataka Civil Service Rules, your leave application was rejected. You submitted your leave application in disobedience to work assigned memo dated 18.12.2004. Thus you have derelicted to your duty and you are also guilty of misconduct. Charge -2: That you are in the habit of marking attendance and getting away from the Court premises and were not available to assign any work and when questioned several times by the Registrar (Judicial), you frowned at him arrogantly. (A list containing the particulars of your absence, leave availed by you, marking your presence by overwriting your absence in the attendance register and not marking the attendance register is enclosed herewith.) Thereafter, not being satisfied with the reply submitted by the Petitioner, the Registrar - Vigilance of the High Court of Karnataka was appointed as the inquiry officer by an order dated 18.3.2005. The Petitioner had submitted his statement of defence on 17.1.2005 and an inquiry was conducted, whereby two witnesses namely, the Registrar -General and the Registrar -Judicial were examined as witnesses on behalf of the first Respondent. The Petitioner examined himself as PW.1. At the conclusion of the inquiry, the Petitioner had submitted his written brief dated 11.7.2005. The Presenting Officer also submitted his written brief on 12.7.2005. The report of the inquiring authority was submitted on 1.6.7.2005 and a show -cause notice was issued to the Petitioner on 19.7.2005, calling upon him to show -cause as to why the report ought not to be accepted and any of the penalties enumerated under the Rules be imposed on him. The Petitioner submitted his representation with reference to the show -cause notice on 27.7.2005. The second Respondent thereafter passed an order dated 12.9.2005 directing the dismissal of the Petitioner from the services of the first Respondent. It is that which is sought to be challenged in the above writ petition.

(3.) THE learned Senior Advocate Shri S. Naganand appearing for the counsel for the Respondents would contend as follows: That from an admission made by the Petitioner that he was the office -bearer of an Association of Government employees, which required his full -time attention, would itself disclose that he was too busy to attend to the duties assigned to him. He had been in the habit of marking attendance and leaving the court premises. He constantly indulged in insubordination. It was by virtue of his status as an office -bearer of the said Association, the Petitioner sought shelter under that pretext not to discharge any work assigned to him. The service record and the yearly performance appraisals for the years 2000 to 2004 would clearly indicate this aspect of the matter. When he was called upon to report for duty as a Court Officer in Court Hall No. 1, the Petitioner immediately filed an application seeking earned leave for almost two months from 18.12.2004 to 15.2.2005. This was a blatant act of willful disobedience and lack of devotion towards duty. It was under those circumstances that he was kept under suspension with effect form 20.12.2004. The disciplinary proceedings followed as a matter of course initiated by the Honourable Chief Justice after examining the service record of the Petitioner. In the Petitioner's defence statement, it was contended that he left the court premises only after obtaining permission and he placed reliance on a memo dated 16.8.1.991, which permitted him to attend meetings in connection with the work of Karnataka Government Employees Association on all working days whenever situation warranted and therefore, his application for medical leave could not be construed as misconduct under Rule 22 of the Rules and that the rejection of his leave application was never communicated to him. The learned Senior Advocate would submit that from a reading of the order dated 12.9.2005 passed by the disciplinary authority, it would reveal that the authority has considered the report of the inquiry officer dated 16.7.2005 in detail and it is thereafter concluded that the charges are proved after independently applying its mind to both the documentary and oral evidence. It is pointed out that the disciplinary authority has referred to Rule 17(10) and has noted that the said Rule was deleted with effect from 11.8.1977. This was pursuant to the 42nd amendment of the Constitution of India, by which Clause (2) of Article 311 was deleted and with the deletion of Sub -rule 10 of the Rules, there was no necessity for the disciplinary authority to record a finding on each of the charges independently before serving a copy of the inquiry report on the delinquent official and the Petitioner also having filed his objections to the report and the disciplinary authority having considered the same while passing the impugned order, the question of there being any violation of Rule 17(9) is misconceived and untenable. It is pointed out that the Petitioner's conduct in refusing to comply with the memo calling upon him to attend to work in Court Hall No. 1 on the ground that he had suddenly took ill, was never established. The medical certificate sought to be produced did not indicate that he required continuous bed rest for almost two months and the Petitioner himself having decided that he required to be on leave for almost two months on the spur of the moment and on the pretext that he had fallen ill is not placed on record. Having regard to the habitual conduct of the Petitioner, in the interest of discipline in the institution, any lenience shown to the Petitioner would have had a drastic effect insofar as the behavior and conduct of other employees of the institution, who could also resort to such misbehavior secure in the belief that no severe punishment would visit them, was uppermost in the mind of the disciplinary authority in imposing the punishment of dismissal and hence it is contended that the same cannot be characterised as being disproportionate to the acts of misconduct which have been established by cogent evidence before the inquiring authority. The learned Senior Advocate would further submit that even during the pendency of this petition, the Petitioner had approached the disciplinary authority seeking review of the impugned order of punishment which has been rejected. The law is well settled that insofar as the quantum of punishment is concerned that it is within the discretion of the disciplinary authority and therefore, he would submit that the petition be dismissed. He would place reliance on the following authorities in support of the contention that absenteeism is a serious misconduct and willful absenteeism was a ground for dismissal from service and that the punishment of dismissal from service cannot be said to be disproportionate to the said act of misconduct.