Karnataka High Court
Sri N K Payannavar vs The State Of Karnataka on 27 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.13041 OF 2021 (S-RES)
BETWEEN:
1. SRI. N. K. PAYANNAVAR,
S/O KALLAPPA PAYANNAVAR,
AGED ABOUT 59 YEARS 11 MONTHS,
WORKING AS DEPUTY GENERAL MANAGER,
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED (KREDL),
REGIONAL OFFICE, NO. 44, 1ST FLOOR,
ARALIKATTI BUILDING, SANMATI NAGAR,
3RD, MAIN, KELGERI ROAD,
DHARWAD - 580 008.
...PETITIONER
(BY SRI. CHANDRAKANTH R. GOULAY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS ADDL. CHIEF SECRETARY,
DEPARTMENT OF ENERGY,
VIKAS SOUDHA, 2ND FLOOR,
BENGALURU - 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PUBLIC ADMINISTRATION
2
AND REFORMS
VIDHANA SOUDHA,
BENGALURU - 560 001.
3. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED,
NO 39, 'SHANTHI GRUHA'
BHARATH SCOUTS AND GUIDES
BUILDING, PALACE ROAD,
BENGALURU - 560 001.
REP BY ITS MANAGING DIRECTOR
4. THE BOARD OF DIRECTORS,
KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED,
NO. 39, 'SHANTHI GRUHA'
BHARATH SCOUTS AND GUIDES
BUILDING, PALACE ROAD,
BENGALURU - 560 001.
....RESPONDENTS
(BY SRI. M. S. NAGARAJA, AGA FOR R1 & R2;
SRI. SUBRAMANYA R., ADVOCATE FOR
SRI. VINAYAKA B., ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI QUASHING THE IMPUNGED ORDER
BEARING NO.KRED/ 01 / ADMN / 89 / NKP / 2020-21/1985A
DATED 30.06.2021, PASSED BY THE 3RD RESPONDENT VIDE
ANNEXURE-P, AS ARBITRARY, ILLEGAL AND VOID AND ONE
WITH A MALAFIDE INTENTION AND WITH A COLORABLE
EXERCISE OF POWER; ISSUE DIRECTIONS TO THE
RESPONDENTS TO RESTORE ALL THE BENEFITS TO THE
PETITIONER WITH ALL CONSEQUENTIAL MONETARY BENEFITS
FLOWING THEREFORM IN THE CADER OF DEPUTY GENERAL
3
MANAGER IN THE RESPONDENT NO.3 -ORGANISATION AND
FURTHER TO AWARD COSTS, ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. In this writ petition, petitioner is challenging Order dated 30.06.2021 passed by the third respondent (Annexure-P) inter alia sought for direction to the respondent to restore all the consequential benefits in the cadre of Deputy General Manager in the respondent No.3 - Organisation.
2. Relevant facts for adjudication of this writ petition are that, the petitioner claims to be qualified expert in the field of Wind Energy and was appointed in the Karnataka State Council and Science Technology to deal with wind monitoring studies and implementation of its applications on 17.11.1988. Thereafter, the petitioner was transferred to the wing of Cell for Renewable Energy Dissemination Agency (hereinafter referred to as 'CREDA' ) as a Project Engineer. Third respondent is one of Institutions run by the Karnataka State Council and Science Technology (hereinafter referred to as 'KSCST') and thereafter it was called 4 as KREDL, which is under the control of Department of Energy, Government of Karnataka Undertaking. It is further stated in writ petition that, the petitioner was promoted to the post of Cadre of Assistant General Manager by Order dated 28.07.2001 as per Annexure-A to the writ petition. The KSCST in its 22nd Board Meeting, held on 29.12.2001, ratified the promotion of the petitioner as Assistant General Manager and sought for State Government's approval for absorption of the petitioner. The KREDL in its letter dated 30.12.2003 permanently transferred the petitioner to KREDL as Technical Officer with effect from 31.07.2001 (Annexure-B). Subsequently, the petitioner was promoted to the Cadre of Deputy General Manger of KREDL as per letter dated 08.01.2007 (Annexure-C). It is the case of the petitioner that, as the petitioner is holding responsible post of Deputy General Manager, has addressed certain letters to the State Government, in the interest of respondent - Organisation to ensure that records are set right and to smoothen the administration. In this regard, the respondent - Organisation issued charge-memo dated 15.01.2010 seeking explanation from the petitioner on the ground that, the petitioner has violated the 5 provisions under Karnataka Civil Services (Conduct Rules), 1966 and Karnataka Civil Services (Classification, Control and Appeal), Rules, 1957 read with KREDL Cadre and Recruitment Rules (Annexure-D). Pursuant to the same, petitioner has filed detailed reply as per Annexure-E to the writ petition, stating that the petitioner is not responsible for the imputation of charges levelled against him in the charge-memo. In the meanwhile, the respondent - Organisation issued show-cause notice dated 09.05.2014 (Annexure-F) seeking explanation for imputation of charges made in the said show-cause notice. Pursuant to the same, the petitioner made reply dated 10.07.2014 (Annexure-
G). Thereafter, Departmental Enquiry was conducted against the petitioner and the Enquiry Officer in his report dated 30.09.2014 (Annexure-J) opined that, the charges 1, 2, 3 and 6 are proved and charge No.4 and 5 are not proved. It is also stated in the writ petition, that the petitioner has filed W.P. No.63169/2016 challenging the decision taken by the respondent - Organisation in its 81st Board Meeting and this Court by Order dated 28.02.2019 allowed the writ petition and the Board Resolution dated 25.08.2016 was quashed (Annexure-H). Thereafter, the 6 Disciplinary Authority issued second show-cause notice dated 18/19.03.2019 seeking explanation from the petitioner relating to the finding recorded by the Enquiry Officer. The petitioner made detailed reply to the same as per letter dated 04.04.2019.
In the meanwhile, the petitioner had challenged Order dated 31.08.2019 and Order dated 03.09.2019 before this Court in W.P. No. 41873/2019 and this Court, by Order dated 05.01.2021 allowed the writ petition, consequently, directed the respondent
- Organisation to continue the petitioner as Deputy General Manager till the petitioner attains the age of superannuation (Annexure-L).
3. The petitioner attained the age of superannuation on 31.07.2021. In the meanwhile, the respondent - Organisation considering the reply made by the petitioner, passed the impugned order dated 30.06.2021 (Annexure-P), by imposing punishment of reduction of his pay to a lower stage time scale and grade of post with immediate effect as per Rule 8.1 of the Cadre and Recruitment Rules of KREDL and further ordered to reduce pay to a lower stage time scale and from grade of post 7 from Deputy General Manager to Assistant General Manager.
Being aggrieved by the same, petitioner has presented this writ petition.
4. I have heard Chandrakant R. Goulay, learned counsel appearing for the petitioner, Sri. M.S. Nagaraja, learned Additional Government Advocate appearing for respondent Nos.1 & 2, and Sri. R. Subramanya, learned counsel appearing on behalf of Sri. Vinayaka B., learned counsel for respondent Nos.3 and 4.
5. Sri. Chandrakant R. Goulay, learned counsel contended that, there are two charge memos issued against the petitioner and the same are on same set of facts. He further contended that, the first charge memo was issued on 15.01.2010 (Annexure-D) and thereafter, same was repeated by issuing show-cause notice on 09.05.2014 (Annexure-F) and therefore, he contented that, the writ petition charges made against the petitioner was stale and the second charge memo cannot be issued on the same set of facts alleged in the first charge memo and accordingly sought for interference of this Court. He also 8 invited the attention of the Court to the multiple punishments imposed by the Disciplinary Authority as per Annexure-P to the petition. Referring to the impugned order dated 30.06.2021 (Annexure-P), Sri. Chandrakant R. Goulay, contended that the impugned order is not a speaking order and no reasons have been stated in the impugned order for reduction of grade as well as pay scale of the petitioner and accordingly he submitted that the impugned order requires to be set aside in this Writ Petition.
6. Nextly, learned counsel appearing for the petitioner, contended that, charges levelled against the petitioner are vague and Departmental Enquiry was initiated at the belated stage and therefore he contended that initiating Departmental Enquiry at the later stage of the service is impermissible in law and accordingly sought for interference of this Court. In order to buttress his arguments, he referred to the Judgments of the Hon'ble Apex Court in the case of NANDKUMAR VARMA Vs. STATE OF ZHARKHAND reported in 2012 AIR SCW 1791; in the case of SAWAI SINGH Vs. STATE OF RAJASTHAN reported in AIR 1986 SC 995 and in the case of SADHNA 9 CHAUDHARY Vs. STATE OF U.P. AND ANOTHER in Civil Appeal No. 2077 of 2020 disposed of on 06.03.2020 and contended that the charges are not specific, vague and therefore sought for interference of this Court.
7. Per contra, learned Additional Advocate General Sri. R. Subramanya, justified the action of the respondent and argued that the petitioner being a responsible Officer of the respondent
-Organisation, did not respect the higher Officers and conduct of the petitioner in respondent - Organisation is contrary to the well being of a officer and affects the smoothening of the administration in the respondent - Organisation. Emphasising on aspects, he further contended that, the petitioner without the order of the Managing Director, directly approached the Government and it was an embarrassment for the Managing Director of the respondent - Organisation in the State level meeting, and accordingly sought for dismissal of the writ petition on the ground that the charges levelled against the petitioner are proved and therefore, the Disciplinary Authority has passed proportional punishment to the petitioner and accordingly sought 10 for dismissal of the writ petition. In this regard, learned Additional Advocate General contended that, as the Disciplinary Authority has concurred with the findings recorded by the Enquiry Officer, a detailed order is not required to be made by the Disciplinary Authority and accordingly sought for dismissal of the writ petition.
8. Emphasising on the jurisdiction of this Court to interfere with the Departmental Enquiry matters, learned Additional Advocate General placed reliance on the Judgment of the Hon'ble Supreme Court in the case of STATE OF BIHAR AND OTHERS Vs. PHULPARI KUMARI reported in (2020) 2 SCC 130 and in the case of UNION OF INDIA Vs. KUNISETTY SATYANARAYANA reported in (2006) 12 SCC 28.
9. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully considered the dictum of the Hon'ble Apex Court relating to interference with the Departmental Enquiry. It is well settled principle in law that, the judicial review under Article 226 of the Constitution of India 11 relating to Departmental Enquiry is very limited and interference be made by this Court only if following aspects are violated;
(i) If the enquiry is conducted by incompetent authority;
(ii) Non compliance of principles of natural justice;
(iii) The findings are based on no evidence.
10. Following the aforesaid principles, I have made an attempt to look into the enquiry report produced at Annexure-J to the writ petition. It is not in dispute that, the Disciplinary Authority has issued the charge-memo and passed the impugned order reduction of rank of the petitioner from Deputy General Manager to Assistant General Manager. Charges 1 to 3 and 6 are proved and charges 4 and 5 were not proved. No allegation is made by the petitioner that, principles of natural justice is violated denying opportunity to him. In the backdrop of these aspects, taking into consideration the finding recorded by the Enquiry Officer, I am of the view that the petitioner has not made out a case for interference in this writ petition.
11. It is also relevant to cite the law declared by the Hon'ble Apex Court in the case of PRAVIN KUMAR v. UNION 12 OF INDIA AND OTHERS reported in (2020) 9 SCC 471.At paragraphs 25 to 30 and 34 of the said judgment, the Hon'ble Supreme Court has held as under:
"25. Learned counsel for the appellant spent considerable time taking us through the various evidences on record with the intention of highlighting lacunas and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision making process and not the merits of the decision itself. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.
26. These principles are succinctly elucidated by a three
-judge Bench of this Court in BC Chaturvedi v. Union of India in the following extract:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the 13 decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by 14 the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:
(i) State of Tamil Nadu v. S Subramaniam, (1996) 7 SCC 509 15
(ii) Lalit Popli v. Canara Bank, (2003) 3 SCC 583.
(iii) Himachal Pradesh State Electricity Board Ltd v.
Mahesh Dahiya, (2017) 1 SCC 768.
28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well reasoned. Furthermore, the High Court didn't restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to 16 satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.
30. Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.
34. It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision. Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial 17 are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances."
12. In the case of DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) & OTHERS v. AJAI KUMAR SRIVASTAVA reported in (2021) 2 SCC 612, at paragraphs 22 to 28, the Hon'ble Supreme Court held as under:
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court in State of Tamil Nadu Vs. T.V. Venugopalan and later in Government of T.N. and Another Vs. A. Rajapandian and further examined by the three Judge Bench of this Court in B.C. Chaturvedi Vs. Union of India and Others wherein it has been held as under:
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re appreciate the evidence or the nature of punishment. In a 18 disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
23. It has been consistently followed in the later decision of this Court in Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya and recently by the three Judge Bench of this Court in Pravin Kumar Vs. Union of India and Others.
24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the 19 conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or 20 else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
2113. Recently, Hon'ble Apex Court, in the case of STATE OF KARNATAKA AND ANOTHER Vs. UMESH reported in (2022) 6 SCC 563, in paragraph 16 to 23, held as under:
"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.
17. In a judgment of a three-Judge Bench of this Court in State of Haryana v. Rattan Singh (1977) 2 SCC 491), Justice V.R. Krishna Iyer, set out the principles which 22 govern disciplinary proceedings as follows: (SCC p.493, para 4) "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act, 1872 may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for 23 the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence
-- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
(emphasis supplied) These principles have been reiterated in subsequent decisions of this Court including State of Rajasthan v. B K Meena; Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh; Ajit Kumar Nag v. Indian Oil Corporation Ltd.; and CISF v Abrar Ali.
18. In the course of the submissions, the respondents placed reliance on the decision in the Union of India v.
24Gyan Chand Chattar. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision:
"21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. [...] wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from 25 service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."
19. The observations in paragraph 21 of Gyan Chand Chattar case are not the ratio decidendi of the case.
These observations were made while discussing the judgment of High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh (supra) was reiterated:
"35. ...an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statue defining the misconduct."26
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non-
existing material and failed to consider the relevant material land finding of all facts recorded by him cannot be sustained in the eye of the law."
(emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with.
20. In Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju {(2019) 10 SCC 367}, this Court has held: (SCC p. 371, para 9) "9. Acquittal by a criminal court would not debar an 27 employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different."
21. The Court also held that: (C. Nagaraju case, SCC p.372, para 13) "13. Having considered the submissions made on behalf of the Appellant and the Respondent No.1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during 28 the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court."
22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(v) the penalty is disproportionate to the proven misconduct.29
23. However, none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority are sustainable with reference to the evidence which was adduced during the enquiry. The acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding."
14. It is well established principle in law that, this Court while exercising the jurisdiction of judicial review under Article 226 of the Constitution of India, should not interfere with the merits of the decision and scope of interference is only with regard to the decision making process. In the instant case, the procedure adopted by the respondent Corporation while conducting the departmental enquiry is fair, just and proper, meets the judicial 30 standards and therefore I am of the view that, no interference is called for in this writ petition (see AIR 2022 SC 5626).
15. Applying the aforementioned principles to the case on hand, I have carefully examined writ papers. In so far as the argument advanced by the learned counsel appearing for the petitioner that, two charge memos have been issued on the same set of facts. It is well established principle of law enunciated by the Hon'ble Supreme Court that, where a charge has already been enquired into by a competent authority in a regular Departmental Enquiry and the delinquent is exonerated in the said enquiry, a second enquiry on the very same set of facts / charge is not maintainable. However, in the present case, the first charge memo was issued on 15.01.2010 (Annexure-B) and the petitioner made reply on 09.02.2010 (Annexure-E). However, the respondent - Organisation did not venture into conducting a detailed enquiry by appointing an Enquiry Officer in terms of the relevant Rules of Cadre, Recruitment, Probation, Promotion and Seniority Rules, 2001.
Clause 8 of the Cadre and Recruitment Rules provides for 31 discipline, penalties and appeal provisions. Clause 8.5.2 provides for procedure for imposing major penalties. I have carefully examined the relevant provisions set out in the aforementioned Rules, inter alia, applying the law declared by the Hon'ble Apex Court, in the case of KUNISHETTY (supra), I am of the view that, the contentions of the petitioner that, the respondent have initiated two enquiries on the same set of facts cannot be accepted. Paragraph 18 of the KUNISHETTY Judgment (supra), reads as under:
"18. We agree with the learned counsel for the respondent that if the charge which has been levelled under the Memo dated 23.12.2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case, we are of the opinion that the charges levelled against the respondent under the Charge Memo dated 23.12.2003, had not been enquired into by any authority and he had not been exonerated on those charges. Hence we are of the opinion that it is not a case of double jeopardy."
(Emphasis supplied) 32
16. Nextly, it is the contention of the petitioner that, there are no reasons in the impugned order and charges are vague and proceedings initiated are belated. In this regard, I have carefully examined the charges levelled against the petitioner and the punishment imposed by the Disciplinary Authority. In this regard, it is relevant to cite the declaration of law by the Hon'ble Supreme Court in the case of DEPUTY COMMISIONER, KENDRIYA VIDYALAYA SANGTHAN AND OTHERS Vs. J.
HUSSAIN reported in (2013) 10 SCC 106. Paragraphs 7 to 16 read as under:
"7. When the charge is proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. A host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to 33 be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist.
8. The order of the Appellate Authority while having a relook of the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate Aathority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.(See: UT of Dadra & Nagar Haveli vs. Gulabhia M.Lad).1 In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.1
(2010) 5 SCC 775 34
9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury2 Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service3 in the following words:
"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds on which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality."2
(1947) 2 All ER 680 (CA) 3 (1984) 3 All ER 935 (HL) 35
10. An imprimatur to the aforesaid principle was accorded by this Court as well, in Ranjit Thakur vs. Union of India4 . Speaking for the Court, Justice Venkatachaliah (as he then was) emphasizing that "all powers have legal limits" invokes the aforesaid doctrine in the following words: SCC p. 620, para 25) " 25. ....The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
11. To be fair to the High Court, we may mention that it was conscious of the narrowed scope of the doctrine of proportionality as a tool of judicial review and has stated so while giving lucid description of this principle 4 (1987) 4 SCC 611 36 in the impugned judgment. However, we are of the view that it is the application of this principle on the facts of this case where the High Court has committed an error while holding that the punishment was shocking and arbitrary. Moreover, while interfering therewith, the High Court has itself prescribed the punishment which, according to it, "would meet the ends of justice", little realizing that the Court cannot act a disciplinary authority and impose a particular penalty. Even in those cases where it is found that the punishment is disproportionate to the nature of charge, the Court can only refer the matter back to the disciplinary authority to take appropriate view by imposing lesser punishment, rather than directing itself the exact nature of penalty in a given case.
12. Here in the given case, we find that the High Court has totally downplayed the seriousness of misconduct. It was a case where the respondent employee had gone to the place of work in a fully drunken state. Going to the place of work under the influence of alcohol during working hours (it was 11.30 a.m.) would itself be a serious act of misconduct. What compounds the gravity of delinquency is that the place of work is not any commercial establishment but a school i.e. temple of learning. The High Court has glossed over and trivialized the aforesaid aspect by simply stating that the respondent was not a "habitual drunkard" and it is not the case of the management that he used to come 37 to the school in a drunken state "regularly or quite often". Even a singular act of this nature would have serious implications.
13. There is another pertinent aspect also which cannot be lost sight of. The respondent had barged into the office of the Principal. As per the respondent's explanation, he had gone to the market and his friends offered him drinks which he consumed. It was a new experience for him. Therefore, he felt drowsiness immediately after consumption of alcohol and while returning home, he remembered that he had left some articles in the school premises and therefore he had gone to school premises to pick up those left out articles belonging to him. If the respondent was feeling drowsiness as claimed by him where was the occasion for him to go to the school in that condition? Moreover, if he had left some articles in the school premises and had visited the school only to pick up those articles, what prompted him to enter the office of the Principal? There is no explanation of this behaviour on the part of the respondent in his reply. It would, obviously, be a case of forcible entry as it is no where pleaded that the Principal asked him to come to his room or he had gone to the room of the Principal with his permission or for any specific purpose.
14. Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition 38 and thereafter forcibly entering into the Principal's room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the court. Though it does not appear to be excessive either, but even if it were to be so, merely because the court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too the extent that it shocks the conscience of the court and the court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the repetition that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once, it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty.
15. The High Court has also mentioned in the impugned order that the respondent is a married man with family consisting of number of dependents and is suffering hardship because of the said "economic capital punishment". However, such mitigating circumstances are to be looked into by the departmental authorities. It 39 was not even pleaded before them and is an after-effect of the penalty. In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict the penalty. This is specifically held by this Court in Hombe Gowda Educational Trust vs. State of Karnataka5 in the following words:
" 20. A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court."
16. In the present case, it cannot be imputed that the departmental authorities while imposing the punishment acted in a manner which manifests lack of reasonableness or fairness. In Karnataka Bank Ltd. Vs. A.L.Mohan Rao6, charge against the delinquent 5 (2006) 1 SCC 430 6 (2006) 1 SCC 63S 40 employee was that he had colluded with one of the Branch Managers and enabled grant of fictitious loan. The High Court interfered with the punishment of dismissal and ordered reinstatement on sympathetic ground even when it found that the misconduct was proved. This Court reversed the judgment of the High Court. Repeatedly this Court has emphasized that the courts should not be guided by misplaced sympathy or continuity ground, as a factor in judicial review while examining the quantum of punishment."
14. It is also relevant to follow the law declared by the Hon'ble Apex Court in the case of BOLORAM BORDOLOI Vs. LAKSHMI GAOLIA BANK AND OTHERS reported in (2021) 3 SCC 806.
Paragraph 11 therein, reads as under:
" 11. We are of the view that the judgment of this Court in the case of Managing Director, ECIL is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held 41 on 10.12.2005, the Board's decision is communicated vide order dated 21.12.2005 in Ref.
No.LGB/I&V/Appeal/31/02/200506. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons."
15. It is also relevant to extract the observation made by the Hon'ble Supreme Court in the case of GOVT. OF A.P. AND OTHERS Vs. MOHD. TAHER ALI reported in (2007) 8 SCC
656. At Paragraph No.5 it is held as follows:
" 5. Learned Counsel appearing on behalf of the respondent submitted that in fact, the disciplinary authority while passing the order has taken into consideration the earlier absence of the respondent from the duty. He submitted that this could not have been taken into consideration as the respondent was not aware about these incidents and those were not the part of the charges levelled against him. In support of his submission learned counsel for the respondent has invited our attention to the judgment of this Court titled State of Mysore v. V.K. Manche Gowda but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also 42 absented himself from duty on earlier occasions also. In our opinion there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the chargesheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of disciplined force is sufficient to justify his compulsory retirement."
16. Following the declaration of law made by the Hon'ble Supreme Court in the aforementioned Judgments, I am of the view that the Judgments referred to by the learned counsel appearing for the petitioner are not applicable to the facts on hand and the Disciplinary Authority based on the detailed enquiry conducted by the Retired District and Sessions Judge, arrived at the conclusion to impose the punishment of reduction of pay and cadre and in view of the declaration of law made by the Hon'ble Apex Court that this Court is having limited scope 43 while exercising judicial review in the matter of Disciplinary Enquiry, I do not find any merit in the writ petition.
17. Accordingly, writ petition is dismissed.
SD/-
JUDGE sac*