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2026 Supreme(Online)(Kar) 18824
THE HIGH COURT OF KARNATAKA
Anu Sivaraman, T.M.Nadaf, JJ
Mangalore Electricity Supply Company Limited – Appellant
Versus
K Gopalkrishna – Respondent
WRIT APPEAL No. 331 OF 2023
For the Appellants/Petitioners: Bharath S, Badri Vishal
For the Respondents: L Muralidhar Peshwa, B L Sanjeev
Termination of a worker for unauthorised absence without a departmental enquiry is invalid where the absence is caused by involuntary judicial detention, as such absence lacks the necessary 'wilful' element required to constitute misconduct and does not equate to voluntary abandonment of service.
Headnote:(A) Recruitment and Service Conditions of Probationary Mazdoors Regulations, 1997 - Regulations 11 and 12 - Termination of service on ground of unauthorised absence - Workman remained absent due to detention in judicial custody following a criminal case - Whether absence is wilful or due to compelling circumstances is a question of fact requiring enquiry - Termination without enquiry for absence cannot be sustained where absence is not voluntary abandonment of service.
Facts of the case:
The respondents were employed as gangmen and were subsequently arrested in a criminal case, leading to their detention in judicial custody. During this period, they remained absent from duty. The appellants terminated their services in 2005 alleging unauthorised absence, without conducting a departmental enquiry. Following their acquittal in the criminal case in 2012, the respondents approached the court for reinstatement, arguing that their absence was not voluntary or wilful. The Single Judge set aside the termination orders.
Findings of Court:
The Court held that absence from duty caused by compulsory judicial custody cannot be equated to voluntary abandonment of service. The appellants failed to prove that the unauthorised absence was wilful, and the termination of service without an enquiry was illegal under the prevailing regulations.
Issues: Whether termination of a workman for absence caused by judicial custody without a prior domestic enquiry constitutes a violation of the principles of natural justice and the service regulations.
Ratio Decidendi: Absence due to compelling circumstances beyond an employee's control, such as judicial custody, does not amount to wilful misconduct or voluntary abandonment. Therefore, the disciplinary authority must conduct an enquiry to establish whether such absence was wilful before taking penal action.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. procedural background and facts leading to termination during judicial custody. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. interplay between service regulations, necessity of enquiry, and delay as a ground for appeal. (Para 8 , 9 , 10 , 11 , 12 , 13) |
| 3. respondent's contention on involuntary absence and procedural arbitrariness. (Para 14 , 15 , 16) |
| 4. admissibility of challenge regarding termination given circumstances of custodial detention. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 5. unauthorised absence must be proven wilful; non-voluntary absence does not equate to abandonment. (Para 23 , 24 , 25 , 26 , 27) |
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This Writ Appeal is filed challenging the Order dated 14.07.2022 passed by the learned Single Judge in Writ Petition No.38516/2013 (S-RES).
2. We have heard Shri. Bharath S, learned counsel appearing for the appellants as well as Shri. L. Muralidhar Peshwa, learned counsel appearing for respondents No.1 and 2 and Shri. B. L Sanjeev, learned counsel appearing for respondent No.3.
3. It is submitted that respondents No.1 and 2 were appointed as temporary gangmen on 17.10.1998 in the Belthangady Sub-Division under the erstwhile Karnataka Electricity Board. Their appointments were initially on a temporary basis until 31.12.1998 and their services were subsequently extended from time to time. Respondent No.2 remained continuously absent from 25.10.2004 to 30.11.2004, hence a notice was issued by the appellants on 30.11.2004 cautioning him that continued absence would attract appropriate action. In response, respondent No.2 by reply dated 01.12.2004, admitted his absence and requested that leave be retrospectively sanctioned for the period between 25.10.2004 and 30.11.2004.
4. Subsequently, respondent No.2 again remained absent from 02.01.2005 without explanation, hence the appellants issued another notice on 22.01.2005. On the same date, a notice was also issued to respondent No.1 for remaining absent from duty from 02.01.2005. Despite issuance of these notices, both respondents No.1 and 2 neither submitted a reply nor reported for duty. In the meanwhile, the appellants published a provisional list of temporary gangmen absorbed into the Probationary Mazdoor category with effect from 01.04.2005, in which, the names of respondents No.1 and 2 appeared at Sl.No.10 and 31, respectively. After more than six months, respondent No.2 submitted a reply dated 01.06.2005 admitting his continued absence from 02.01.2005 to 31.05.2005, explaining that he had been in judicial custody in connection with the investigation into the murder of one Mr. Dhanya Kumar and was therefore unable to attend work. Respondent No.1 also submitted a reply dated 17.06.2005 stating that he would not remain absent from work in the future.
5. However, in view of their prolonged and unexplained absence, the appellants terminated the services of respondents No.1 and 2 on 12.07.2005 and 29.06.2005, respectively. Thereafter, respondent No.2 issued a legal notice on 31.01.2007 seeking withdrawal of his termination on the ground that no proper notice had been issued and that his absence was due to judicial custody. The appellants replied on 21.02.2007 stating that the termination was on account of repeated absence and in accordance with the Recruitment and Service Conditions of Probationary Mazdoors Regulations, 1997 ('Regulations, 1997' for short). Subsequently, despite their termination, respondents No.1 and 2 submitted representations on 21.01.2010 to the Chief Minister and the District In-charge Minister alleging that their termination was wrongful and that their dues had not been paid. This representation was forwarded to the appellants on 03.02.2010. The appellants responded on 24.02.2010 reiterating that respondents No.1 and 2 had been terminated due to continuous absence from duty. It was also stated that the salary for December 2004 had been deposited, but as respondents No.1 and 2 remained absent from
