BBMP at liberty to pass orders whether the petitioner was permitted or not to report the duties : Karnataka High Court

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF NOVEMBER 2020 THE HON BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.11076 2018MR.GIRIRAJ I. S O LATE INDIRA BAHADUR AGED ABOUT 26 YEARS RESIDING AT NO.2 BBMP CORPORATION QUARTERS ORC ROAD AUSTIN TOWN BENGALURU 560 047. PETITIONER BY SRI PAUL FREDERICK ADVOCATE FOR SMT.BEENA P.K AND SMT.DEVI SUKANYA.K ADVOCATES FOR NEXT LEGAL SERVICESTHE ADDITIONAL COMMISSIONERBRUHAT BENGALURU MAHANAGAR PALIKE BBMP OFFICE MAYOHALL BENGALURU 560 001. THE COMMISSIONER BRUHAT BENGALURU MAHANAGAR PALIKE BBMP HEAD OFFICE CORPORATION CIRCLE HUDSON CIRCLE BENGALURU 560 001. THE OFFICE OF THE EDUCATION OFFICER COMMERCIAL COMPLEX 2ND FLOOR 2 NEXT TO PARKING LOT ABOVE DENA BANK J.C.ROAD BENGALURU 560 002. 5. MR.RAJA SEKAR C. HEADMASTER BBMP BOYS HIGH SCHOOL AUSTIN TOWN BENGALURU 560 047. ... RESPONDENTS BY SRI B.V.MURALIDHAR ADVOCATE FOR R1 AND R2 SMT.SAVITHA T.H. HCGP FOR R3 AND R4 SRI B.S.GAUTHAM ADVOCATE FOR R5THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT FORTHWITH PERMIT THE PETITIONER TO REPORT AND PERFORM HIS DUTIES UNDER THE GROUP ‘C’ OR ANY OTHER OFFICE IN THE CITY OF BENGALURU ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY THE COURT MADE THE The petitioner in this writ petition has sought for a direction by issuance of a writ in the nature of 3 mandamus directing the respondents to permit the petitioner to report to duties and perform his work. 2. Heard Sri Paul Frederick learned counsel for petitioner Sri B.V.Muralidhar learned counsel for first and second respondents Smt. Savitha T.H. learned High Court Government Pleader for third and fourth respondents Sri B.S.Gautam learned counsel for fifth respondent and perused the material on record. 3. Brief facts of the case leading to filing of the writ petition are that the petitioner was appointed on compassionate grounds on 05.07.2014 on the death of his father who died in harness in the cadre of Second Division Assistant and was posted to the Office of the Health Officer of Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘the BBMP’ for short). The petitioner subsequently was transferred from the Health Department to the Revenue Department in the 4 month of May 2015 and subsequently to the fifth respondent BBMP Boys High School Austin Town Bengaluru on 06.05.2015. 4. It is the case of the respondents BBMP that though the petitioner reported to duties has remained intermittently unauthorised absent from 02.12.2015 and later did not report to duties at all. 5. Learned counsel for petitioner contend that the petitioner reported to duties in terms of the order dated 06.05.2015 at the fifth respondent School but was not permitted to sign the Attendance Register or perform his duties on and from 02.12.2015. The grievance of the petitioner is that from 02.12.2015 he was not allowed to perform the duties and allegation of the respondents BBMP is that he remained unauthorisedly absent. 5 6. The fact remains that there is no order passed by the Respondents BBMP upon the said allegation and the petitioner continues to be in service. In the light of the fact that the petitioner is still on probation I deem it appropriate to direct BBMP to forthwith take the petitioner back to duties as a probationer. 7. The contention of the petitioner is that he has not been paid salary from December 2015 to which he is entitled to. Since the BBMP has not issued a notice even to the petitioner on the allegation of unauthorized absence that is now put up in statement of objections the BBMP is at liberty to hold proceedings and arrive at a conclusion as to whether the petitioner was in fact not permitted to report to duties or he remained unauthorisedly absent by conducting an enquiry after affording reasonable opportunity to the petitioner. 6 8. In the event respondents BBMP come to conclude after an enquiry that the petitioner who is still on probation had in fact remained unauthorisedly absent BBMP will be at liberty to pass appropriate orders in accordance with law and if the petitioner is able to prove that he was stopped from working from 02.12.2015 he shall be paid arrears of salary and other benefits if any from 02.12.2015 till the date of reinstatement in terms of this order. 9. The aforesaid exercise shall be completed by the respondents BBMP within a period of three months from the date of receipt of a copy of the 10. The petitioner shall report to duties without awaiting any further orders from the respondent before the Public Relation Officer at the head office of the BBMP on 02.12.2020 at 10.30 a.m. 11. With the aforesaid observations the writ petition stands disposed. Sd CT:MJ 

Summary: BBMP come to conclude after an enquiry that the petitioner who is still on probation, had in fact remained unauthorisedly absent, BBMP will be at liberty to pass appropriate orders in accordance with law and if the petitioner is able to prove that he was stopped from working, he shall be paid arrears of salary and other benefits if any, till the date of reinstatement in terms of this order, the Karnataka High Court held in Mr. Giriraj I. v. The Additional Commissioner(East) Bruhat Bengaluru and Ors.(W.P. No. 11076/2018) The petitioner has filed a writ petition, and has sought for a direction by issuance of a writ in the nature of mandamus directing the respondents to permit the petitioner to report to duties and perform his work. The petitioner was appointed on compassionate grounds on 05.07.2014, on the death of his father, who died in harness, in the cadre of Second Division Assistant and was posted to the Office of the Health Officer of Bruhat Bengaluru Mahanagara Palike (the BBMP). The petitioner subsequently was transferred from the Health Department to the Revenue Department in the month of May, 2015 and subsequently to the fifth respondent BBMP Boys High School, Austin Town, Bengaluru on 06.05.2015. The petitioner contended that, he reported to duties in terms of the order dated 06.05.2015 at the fifth respondent School but was not permitted to sign the Attendance Register or perform his duties on and from 02.12.2015. And, he was not allowed to perform the duties and allegation of the respondents – BBMP is that, he remained unauthorisedly absent. Simultaneously, the respondent argued that, though the petitioner reported to duties has remained intermittently unauthorised absent from 02.12.2015 and later did not report to duties at all. The court held that, “the BBMP is at liberty to hold proceedings and arrive at a conclusion as to whether the petitioner was in fact not permitted to report to duties or he remained unauthorisedly absent by conducting an enquiry after affording reasonable opportunity to the petitioner.” The petitioner shall report to duties without awaiting any further orders from the respondent, before the Public Relation Officer at the head office of the BBMP on 02.12.2020 at 10.30 a.m. But, at the same time court directed that, the BBMP shall pass the appropriate orders within a period of three months from the date of receipt of a copy of the order.