Karnataka High Court
M Hanumanthappa vs State Of Karnataka By Its on 22 March, 2019
Author: R Devdas
Bench: R. Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2019
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.57923/2017 (S-RES)
BETWEEN
M. HANUMANTHAPPA
S/O MYLARAPPA
AGED ABOUT 59 YEARS,
SECOND DIVISION ASSISTANT
CITY MUNICIPAL COUNCIL
CHITRADURGA 577501.
... PETITIONER
(BY SRI K R SHIVASHANKAR, ADVOCATE)
AND
1. STATE OF KARNATAKA BY ITS
SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
4TH FLOOR, VIKASA SOUDHA
BENGALURU 560 001.
2. THE DIRECTOR
DIRECTORATE OF MUNICIPAL
ADMINISTRATION
9TH FLOOR, VISHVESHWARAIAH TOWERS
BENGALURU 560 001.
... RESPONDENTS
(BY SRI SRIDHAR N HEGDE, HCGP FOR R1 & R2)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 29.12.2012 PASSED BY THE 2ND
RESPONDENT VIDE ANNEXURE-K AND THE IMPUGNED ORDER
DTD 7.1.2015 PASSED BY THE 1ST RESPONDENT VIDE
ANNEXURE-M HOLDING THE SAME AS ILLEGAL, BAD IN LAW
AND ARBITRARY ONE.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The petitioner was working as the Chief Officer, Town Municipal Council of Challakere, during the period 2000-01. During that period, the petitioner had invited tender from the eligible contractors to carryout certain works for construction of four shops in front of the old Municipal building. The petitioner was issued a show-cause notice dated 19.03.2003 along with 'Articles of Charges' for certain omissions and commissions with regard to the tender. In December, 2009 after lapse of more than 6 years, the Deputy Commissioner, Chitradurga passed an order appointing the Assistant Commissioner, Chitradugra Sub-Division, as Enquiry Officer -3- and Manager of the office was appointed as Presenting Officer to conduct the enquiry in the matter. Enquiry Officer submitted a report on 31.10.2011, holding that the charges No.1, 2 and 3 are proved, while charges No.4 and 5 were not proved. The respondent No.2-Disciplinary Authority issued a second show-cause notice dated 25.01.2012, to the petitioner and the petitioner furnished his detailed reply to the second Show-Cause notice explaining that the very Presenting Officer, after perusing the records submitted his Written Brief before the Enquiry Officer that the charges leveled against the petitioner are not proved. However, Disciplinary Officer proceeded to pass the impugned order dated 29.12.2012 reverting/demoting the petitioner from the cadre of First Division Assistant to Second Division Assistant.
2. The petitioner had preferred an appeal before the respondent No.1-appellate authority, i.e., State Government. The State Government proceeded to pass the impugned order dated 07.01.2015, dismissing the Appeal filed by the petitioner. The petitioner is therefore before this Court -4- questioning the impugned order issued by the Disciplinary Authority as well as the appellate authority.
3. Learned counsel for the petitioner submits that the appellate authority has passed a cryptic order without considering the explanation offered by the petitioner herein. It is contended that the petitioner had in fact brought to the notice of the appellate authority that the permission of the competent authority i.e., Deputy Commissioner, was obtained before the tender was floated by the petitioner and the same is in accordance with law.
4. Learned counsel for the petitioner also places reliance upon a judgment of this Court, in the case of K.Thimmegowda Vs. Director of Municipal Administration and Others, in W.P.No.26446/2015, which was disposed of on 12.07.2016. It is pointed out from the said order that Rule 25 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short 'KCS (CCA) Rules'), wherein Sub-clause (2) of the Rules would provide that in a case of appeal against an order imposing -5- any of the penalties, the appellate authority is enjoined with the duty to consider whether the procedure had been complied with and if not, whether non-compliance had resulted in violation of any of the provisions of the Constitution or had resulted in failure of justice; whether the findings were justified, whether penalty imposed was excessive. The appellate authority has power to set aside the order challenged by reducing, confirming or enhancing the penalty or remit the case to the authority which had imposed the penalty with such direction as it deemed fit. It was found that in that case the appellate authority had not applied its mind, let alone reference to any grounds urged in the appeal memo and the satisfaction with regard to the justification of the findings recorded. Therefore, it was held that the appellate authority had not discharged its function in accordance with law which has resulted in failure of justice.
5. Learned Additional Government Advocate seeks to justify the order of the appellate authority. -6-
6. Having heard the learned counsels and having perused the writ papers, this Court is of the opinion that the impugned order dated 07.01.2015, suffers from very vice, which was pointed out by this Court in the case of K.Thimmegowda (supra). It would be relevant to extract the order passed by the appellate authority, which is as under:
"The appeal has been heard as per the existing rules in the presence of appellant and respondent. Appellate authority examined all the relevant documents and written statements produced by the applicants and respondents. The appellate authority after examining all the relevant documents thoroughly in accordance with rules. It is concluded that the disciplinary authority has passed the impugned order in accordance with the rules. The appellate authority arrives to the conclusion that the order passed by the disciplinary authority is in accordance with rules and it is flawless. Therefore the appellate authority passes the following order:-7-
ORDER In view of the reasons explained in the preamble the appellate authority upholds the order passed by the Director, Directorate of Municipal Administration for demoting the applicant from First Division Assistant to Second Division Assistant as per rule 8(5) of the KCS(CCA) Rules, 1957 vide order No.Pouni/ Vicharane/ Chigi/CR/171/2000-01, dated 29.12.2012 and dismissed the appeal."
It is therefore evident that the appellate authority has not applied its mind and has neither considered the grounds urged by the appellant before the appellate authority in the appeal memo.
7. It would be pertinent to notice paragraph 30 of judgment of the Hon'bel Apex Court, in the case of A.L.KALRA VS. PROJECT AND EQUIPMENT CORPORATION OF INDIA LTD, reported in (1984) 3 SCC 316, wherein it has been held that it is required to emphasize the obligations cast on the appellate authority to apply its mind and record its satisfaction with regard to the findings recorded by the disciplinary authority. -8- In the facts and circumstances as adverted to above, this Court is left with no other alternative but to set-aside the impugned order, while remanding back the matter for reconsideration in accordance with law.
8. Accordingly, the writ petition is allowed. The impugned order passed by the appellate authority dated 07.01.2015, at Annexure-M, is hereby quashed and set-aside while remanding the matter back to the appellate authority for reconsideration in accordance with law keeping in mind the observations made in this order.
The appellate authority shall dispose of the appeal as expeditiously as possible and at any rate within a period of four months from the date of receipt of certified copy of this order.
SD/-
JUDGE DL