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Judgment
B.S. Patil, J.—These two writ petitions arise out of the order dated 25.09.2013 passed by the Karnataka Appellate Tribunal (for short, ''the Tribunal'') in Appeal No. 476/2012. By the said order, the Tribunal has dismissed the appeal filed by Vishwakarma Sahakara Bank Limited - petitioners in W.P. No. 47134/2013 against the order passed by the Joint Registrar of Co-operative Societies (for short, ''the Joint Registrar'') in the dispute raised by the petitioner in W.P. No. 49610/2013. For the sake of convenience, petitioner in W.P. No. 47134/2013 namely Vishwakarma Sahakara Bank Limited is referred to as ''the employer'' and the petitioner in W.P. No. 49610/2013 namely ''Sadananda'' is referred to as ''the employee''.
Sri Sadananda was working as General Manager in Vishwakarma Sahakara Bank Limited. Certain allegations of misconduct were made against him. A disciplinary enquiry was held. Out of 10 charges leveled against him, only three charges were held partly proved. The report of the Enquiry Officer was served on the employee. He submitted his reply. The Disciplinary Authority accepted the findings of the Enquiry Officer and imposed the punishment of compulsory retirement from service. Aggrieved by this order, a dispute was raised by the employee before the Joint Registrar u/s 70 of the Karnataka Co-operative Societies Act, 1959.
The Joint Registrar having considered the matter in some detail found that before accepting the report of the Enquiry Officer, the Disciplinary Authority failed to apply their mind to the reply given by the employee and that for very silly and untenable reasons which were not proved in the enquiry, the employee was penalized with such a serious punishment of compulsory retirement. Consequently, the '' employee was directed to be reinstated with back wages.
This order was challenged by the employer before the Tribunal. The Tribunal has affirmed the order passed by the Joint Registrar by dismissing the appeal. The Tribunal has issued a direction to the employer to reinstate the employee within 15 days from the date of its order along with full back wages with effect from the date of his compulsory retirement and to treat the period of punishment as period in service. Being aggrieved by the order passed dismissing the appeal, the employer filed W.P. No. 47134/2013. Whereas contending that the employee has not been extended all the consequential benefits including the period for which he was kept under suspension W.P. No. 49610/2013 is filed by the employee.
I have heard Sri K.M. Nataraj, learned Senior Counsel appearing for the employer and Sri V.S. Naik, learned counsel appearing for the employee.
The three charges which were found partly proved against the employee in the enquiry are as under:
i) That on 30.06.2006, the delinquent employee used abusive words against one of the Directors namely Sri A. Mohan Kumar Bellur, in the presence of other Directors and spoke to him in a raised voice.
ii) That the delinquent employee indulged in making corrections in the resolution book as per his whims and fancies.
iii) That delinquent employee, without permission of the Board of Directors, has paid a sum of Rs. 2,000/- to the Advocate engaged by the Bank in connection with a case in respect of disqualification of one of the Directors by name Sri Ashok Shet.
Out of the above charges, the Enquiry Officer in the findings recorded by him has held that the petitioner was found guilty of addressing the Director in a raised voice and that he had paid a sum of Rs. 2,000/- to the Advocate contrary to the Circular dated 01.08.1994 which fixed the upper limit of Finance Manager at Rs. 150/- and also the charge of indulging in making corrections in the resolution book as per his whims and fancies.
In the proceedings before the Disciplinary Authority, although the employee submitted a detailed reply to the findings recorded by the Enquiry Officer refuting the same and contending inter alia that the Circular dated 01.08.1994 was applicable to the erstwhile Society and not to the employer - Bank which had its own bye-laws and was governed by the bye-laws with effect from 2001, without considering the same and without applying its mind to the same, the Disciplinary Authority proceeded to accept the Enquiry Report and ordered for compulsory retirement, thus imposing a major penalty on the employee.
The Joint Registrar has examined this aspect and has come to the conclusion that the employee has been subjected to very harsh treatment by the employer and for untenable and silly reasons, such a major penalty is imposed against him. He has held that the Disciplinary Authority did not apply its mind to the explanation offered by the employee pursuant to the second show-cause notice issued and thus concluded that the order passed by the Disciplinary Authority was totally unsustainable and the employee was not guilty of the charges leveled against him. These findings have been affirmed by the Tribunal in exercise of its appellate power after re-appreciating the materials on record.
In order to find out whether there is any apparent illegality in the order passed by both the Authorities below, I have examined the matter at some detail. I find that the findings recorded by both the authorities are unexceptional and are based on cogent reasons and are therefore, sustainable. As rightly submitted by the learned counsel for the employee, the charges which are said to have been proved were vague and were not proved in the enquiry. Mere allegations that the employee raised his voice against the Director and used abusive words without narrating the details will not enable the employee to defend himself in the enquiry properly. At any rate, the Enquiry Officer himself found that there was no material to establish that the employee used abusive words. But, he has recorded baseless finding that the allegation of raising his voice against the Director was proved. This has been reiterated by both the Authorities below. They have found that the findings recorded and the order passed by the Disciplinary Authority accepting such findings were unsustainable. I do not see any reason to interfere with such findings recorded by the authorities below.
As regards the payment of Rs. 2,000/- towards Advocate fee by the employee in connection with a case that was filed against the Director of the employer - Bank, in which the Bank was made a party, as rightly submitted by the learned counsel for the employee, the Enquiry Officer and the Disciplinary Authority misdirected themselves in referring to the Circular which fixed the financial power of the Chief Executive Officer at Rs. 150/-. The said Circular was in operation when the employer-Bank was in existence as a Society till the year 2001. With effect from the year 2001, the Society has been converted into a Co-operative Bank and its affairs are regulated by the bye-laws framed. In the bye-law, as pointed out by the learned counsel for employee, taking me through the documents produced and the bye-laws particularly, Bye-law No. 60.9 dealing with the power of Chief Executive Officer of the Bank to sanction payment of staff salary, postage, rent and electricity bills contingent and other expenditure subject to budget allocations, no such limit is prescribed restricting his power to Rs. 150/- or to any other sum. As this particular bye-law was in force when the amount of Rs. 2,000/- was paid to the Advocate that too in a case filed involving the employer-Bank, it cannot be said that the employee exceeded his powers in giving the amount of Rs. 2,000/- to the Advocate.
As regards the charge of indulging in making corrections in the resolution book as per his whims and fancies by the employee, the Tribunal has held that the authorities have not narrated as to in respect of which issue the employee has made corrections. Therefore, the authorities below are right even in this regard in recording a finding that the other charges were also not proved against the employee. Now coming to the back wages awarded, the employee has been ordered to be reinstated along with full back wages. The employee has been out of service with effect from 17.11.2008 till today. He was kept under suspension with effect from 20.11.2006 onwards. As rightly pointed out by the learned Senior Counsel appearing for the employer, the employee cannot have the benefit of full salary for the long period during which the litigation was pending. He has referred to several judgments of the Apex Court in this regard. It is well established that merely because an employee is reinstated, he cannot automatically claim full back wages for the period during which he was out of employment. In the instant case, while the employee shall be deemed to be in continuous employment for the purpose of computing the service benefit and continuation of service for the purpose of payment of back wages, the facts and circumstances would persuade me to hold that the employee is entitled for 40% of back wages. Therefore, I pass the following:
ORDER
i) Both the writ petitions are partly allowed.
ii) Order passed by the Tribunal and the Joint Registrar are modified to the following extent:
a) the employee shall be reinstated into service immediately;
b) the employee is entitled for 40% back wages from the date he was out of service on account of the punishment imposed;
c) the period of suspension shall be regulated and be treated as in service;
d) the employee shall be entitled for full salary during the suspension period;
e) the employee shall be paid the current salary to which he will be entitled, with effect from today;
f) the employee will be entitled for other consequential benefits flowing from reinstatement.
Learned Additional Government Advocate is permitted to file memo of appearance for respondent No. 1 in W.P. No. 47134/2013.