Karnataka High Court
The State Of Karnataka vs N Krishna Reddy on 13 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1947, 2020 (1) AKR 318
Bench: L.Narayana Swamy, R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 13TH DAY OF SEPTEMBER, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT PETITION NO.35827 OF 2018 (S-KAT)
C/W
WRIT PETITION NO.9065 OF 2018 (S-KAT)
IN W.P. NO.35827/2018
BETWEEN
THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
HEALTH & FAMILY WELFARE
SERVICES DEPARTMENT,
(INDIAN MEDICINE SYSTEM),
M. S. BUILDING,
BENGLAURU 560001.
... PETITIONER
(BY SRI I THARANATH POOJARY, AGA)
AND
1. N. KRISHNA REDDY
S/O. LATE. N.VENKAT REDDY,
RESIDING AT NO.1654,
5TH CROSS, 4TH MAIN,
G.K.V.K. POST, YELAHANKA,
BENGALURU 560065.
2 THE KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR,
KARNATAKA LOKAYUKTA,
M S BUILDINGS,
BENGALURU 560001.
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3 THE ENQUIRY OFFICER AND
ADDITIONAL REGISTRAR
(ENQUIRIES II),
KARNATAKA LOKAYUKTA,
M. S. BUILDINGS,
BENGALURU 560001,
REP BY ITS REGISTRAR.
... RESPONDENTS
(BY SRI H C SHIVARAMU, ADVOCATE FOR R1;
SRI VENKATESH S ARABATTI, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT AND
SET ASIDE THE ORDER DATED 23.11.2017 PASSED BY THE
KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN
APPLICATION NO.2616/2017, AT ANNEXURE-A AND ETC.
IN W.P. NO.9065/2018
BETWEEN
1. THE KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR,
KARNATAKA LOKAYUKTA,
M.S.BUILDINGS,
BENGALURU-560 001.
2. THE ENQUIRY OFFICER AND
ADDITIONAL REGISTRAR
(ENQUIRIES-II)
KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR
M.S.BUILDINGS,
BENGALURU-560 001.
... PETITIONERS
(BY SRI VENKATESH S ARABATTI, ADVOCATE)
AND
1. SRI. N. KRISHNA REDDY
S/O LATE N.VENKAT REDDY,
AGED ABOUT 54 YEARS,
ASSISTANT DRUGS CONTROLLER,
DRUGS CONTROL DEPARTMENT,
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CHAMARAJANAGARA DISTRICT,
R/AT NO.1654, 5TH CROSS,
4TH MAIN, G.K.V.K. POST,
YELAHANKA, BENGALURU-560 065.
2 THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
HEALTH & FAMILY WELFARE
SERVICES DEPARTMENT,
(INDIAN MEDICINE SYSTEM)
M.S.BUILDING,
BENGALURU-560 001.
... RESPONDENTS
(BY SRI H C SHIVARAMU, ADVOCATE FOR R1;
SRI I THARANATH POOJARY, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE HON'BLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.
2616/2017, DATED 23.11.2017 VIDE ANNEX-C AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 12.07.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J., MADE
THE FOLLOWING:
COMMON ORDER
The State of Karnataka, by its Principal Secretary, Health and Family Welfare Services Department and the Karnataka Lokayukta, by its Registrar have preferred these writ petitions assailing the order dated 23.11.2017, passed by the Karnataka State -4- Administrative Tribunal (hereinafter referred to as the 'Tribunal' for short), in Application No.2616/2017. Therefore, these petitions are heard and disposed of by this common order.
2. The respondent-Sri. N. Krishna Reddy, approached the Tribunal being aggrieved by order dated 24.04.2017, whereunder punishment of compulsory retirement was imposed upon the respondent. The charge leveled against the respondent was that while he was working as Assistant Drugs Controller and Licensing Authority, at Bagalkot, a trap was laid by the Lokayukta Police and he was caught red-handed, receiving bribe money of Rs.8,000/-, in Prakash Medical Stores of Todabalagi village. The Lokayukta Police initiated action on a complaint lodged by one Siddaiah Sangaiah Lakkundimath of Savalagi in Jamkandi Taluk.
3. Sri. Venkatesh S Arabatti, learned counsel appearing for the Upalokayukta, and the Enquiry Officer, Additional Registrar (Enquiries-II), submits that the Tribunal erred on several counts. Firstly, it was submitted that the Tribunal could not have re- -5- appreciated the evidence on record, to upset the finding of the Enquiry Officer. Secondly, it was submitted that the Tribunal erred in holding that the order of imposition of punishment did not consider the explanation offered by the respondent to the second show-cause notice and the impugned order was held to be made on the basis of recommendation of the Upalokayukta and the disciplinary authority had not applied its mind, independently. The learned counsel has taken us through the depositions and cross- examination to substantiate his contention that the Tribunal did not appreciate the evidence on record in the right perspective. It was also submitted that the view of the Tribunal that the charge leveled against the respondent in the charge memo and in the second show-cause notice are different and on that ground allowing the application of the respondent herein, is contrary to the well settled proposition of law and decisions of the Hon'ble Supreme Court of India. In this regard, the learned counsel submits that minor discrepancy in the charge memo and second show- -6- cause notice may not be fatal, if it is evident that the delinquent officer has understood the charge.
4. Sri. I. Tharanath Poojary, learned Additional Government Advocate, supports the argument of the learned counsel for the Lokayukta. The learned Additional Government Advocate draws the attention of this Court to the decisions in State of Haryana and another Vs. Rattan Singh, reported in (1977) 2 SCC 491, wherein, it was held that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Sufficiency of evidence in proof of the finding by a domestic tribunal was held to be beyond scrutiny. In State of Uttar Pradesh and another Vs. Man Mohan Nath Sinha and another, reported in (2009) 8 SCC 310, it was held that it is not open to High Court to re-appreciate and reappraise the evidence led before Enquiry Officer and examine findings recorded by Enquiry Officer as a Court of appeal and reach its own conclusions. Reliance was also placed on the decisions in Transport Commissioner, Madras-5 Vs. A. Radha Krishna -7- Moorthy, reported in (1995) 1 SCC 332 and National Fertilizers Ltd. and another Vs. P. K. Khanna, reported in (2005) 7 SCC 597. It was also pointed out from Chairman, Life Insurance Corporation of India and others Vs. A. Masilamani, reported in (2013) 6 SCC 530 that the Tribunal could not have directed reinstatement of the respondent after punishment order was set aside on account of infirmity in disciplinary proceedings. The Tribunal, it is submitted, should have remitted the matter to the disciplinary authority to conduct the enquiry from the point that it stood vitiated.
5. Per contra, Sri. H. C. Shivaramu, learned counsel appearing for the respondent delinquent officer, submits that the Tribunal was right in holding that there is descripancy in the charge memo and the second show-cause notice. It was pointed out from the charge memo dated 14.08.2012 that it was alleged that the respondent collected the bribe money of Rs.8,000/- from the complainant, on 27.05.2011, while he was sitting inside Prakash Medical Stores. However, in the second show-cause notice dated 19.10.2016, it is stated -8- that the respondent received the bribe money of Rs.8,000/- through the owner of Prakash Medical Stores. It is therefore vehemently contended that the enquiry is vitiated since there is discrepancy in the charge sought to be imputed on the respondent. The learned counsel also contended that the allegation made in the complaint that the respondent was collecting bribe from all the medical store owners for issuance of license or renewal and the complainant was called to Prakash Medical Stores by the respondent to receive bribe money for issuance/renewal of license was far from truth because Prakash Medical Stores and the surrounding area was not under the jurisdiction of the respondent. The learned counsel further submits that the witnesses examined before the Enquiry Officer did not support the prosecution.
6. Learned counsel for the respondent placed reliance on a decision of this Court in the case of G.V.Aswathanarayana Vs. Central Bank of India and others, reported in ILR 2003 KAR 3066, to contend that where the charge memo is found to be -9- defective in substantial terms, the enquiry proceedings and the final order made on the basis of such defective charge memo would be vitiated and only on that ground the penalty imposed on the delinquent is liable to be quashed. In State of Uttaranchal and others Vs. Kharak Singh, reported in (2008) 8 SCC 236, which was also relied before the Tribunal, it was held that the Enquiry Officer can offer his views but cannot make strong recommendation for imposition of a particular punishment because decision of quantum lies within the jurisdiction of disciplinary authority.
7. Heard Sri. Venkatesh S Arabatti, learned counsel for the Lokayukta, Sri. I. Tharanath Poojary, learned Additional Government Advocate for the State Government and Sri.H.C.Shivaramu, learned counsel for the respondent delinquent officer.
8. Though Sri. H.C.Shivaramu, learned counsel for the respondent had submitted that Prakash Medical Stores and the surrounding area was not within the territorial jurisdiction of the respondent and therefore, the entire allegation of the complainant that the -10- respondent collected bribe from all the medical shop owners in the vicinity of Prakash Medical Stores and the complainant was called to Prakash Medical Stores to pay bribe for grant or renewal of license is far from truth, on our further query, the learned counsel sought to withdraw the said statement.
9. We have carefully examined the depositions and cross-examination of the witnesses and have also gone through the complaint, charge memo and the second show-cause notice. We are not convinced that the discrepancy imputed in the charge memo and the show-cause notice is such that the defect is so substantial to render the enquiry proceedings or the final order vitiated.
10. During the course of the argument, we sought for copies of the complaint, entrustment mahazar, money mahazar, statement of the delinquent officer and the extract of the telephonic conversation between the delinquent officer and the complainant. The learned Additional Government Advocate has placed the same on record along with a memo dated 15.07.2019. The -11- averment made in the complaint that the respondent has spoken to the complainant over the mobile phone, asking him to come to Prakash Medical Stores, is substantiated by the call records. The conversation between the respondent herein, the complainant and Prakash Ananthapur, the owner of Prakash Medical Stores has been recorded and the transcription is also made available. Therefore, it is clear from the above facts that the respondent has understood the allegation that the bribe money was sought from the complainant, to be handed over in the premises of Prakash Medical Stores and the same was handed over to Prakash Ananthapur at the directions given by the respondent. The enquiry has proceeded accordingly. Therefore, we are of the opinion that the discrepancy sought to be made out by the learned counsel for the respondent, in the charge memo and the second show-cause notice cannot be countenanced.
11. It would be beneficial to notice that the Hon'ble Supreme Court, in Dinesh Seth Vs. State of N.C.T. of Delhi, reported in (2008) 14 SCC 94, while -12- answering the question whether an error or irregularity in the charge, is by itself sufficient for quashing the conviction of the accused, held :-
"it is the substance that we must see. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.-13-
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."
12. From the material on record, it is clear that the respondent knew what the allegation against him was. This was a case of trap. The police team proceeded after recording the complaint and on the communication made by the respondent to the complainant, requiring him to come over to Prakash Medical Stores. Transcription of the mobile phone call evidences this fact. There is no denial that the respondent was present in the premises. The conversation between the complainant, the respondent and Prakash Ananthpur, the owner of Prakash Medical Stores has been produced by way of a transcription. It is seen that the respondent instructed the complainant to hand over the bribe money to Prakash Ananthpur. The raiding team confiscated the bribe money from the hands of Prakash Ananthpur. Therefore, there can be no doubt that the respondent has understood the -14- charge leveled against him and proceeded to defend himself in the enquiry. Merely because there is a variation in the charge memo and the second show- cause notice, the same is not sufficient for quashing the enquiry report or the final order of punishment.
13. On going through the impugned order passed by the Tribunal, we find that the Tribunal was carried away by oral evidence and cross-examination of the complainant. It is clear from the enquiry proceedings that the complainant turned hostile. But the allegation made in the complaint and the other material on record, including the mobile call record, transcription of the recording of the conversation between the complainant, the respondent and Prakash Ananthpur, leaves no room to doubt the guilt of the delinquent officer viz., the respondent.
14. Moreover, the Tribunal or this Court, while exercising powers under Article 226 of the Constitution in judicial review does not re-appreciate or re-appraise the evidence led before Enquiry Officer and examine findings recorded by Enquiry Officer as a Court of -15- appeal and reach its own conclusions. It is well settled legal position that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on the merits of the decision. In Transport Commissioner, Madras-5 (supra), it was held that even when the matter comes to the Tribunal after the imposition of punishment, it has no jurisdiction to go into truth of the allegations/charges except in a case where they are based on no evidence i.e., where they are perverse. The jurisdiction of the Administrative Tribunal is akin to that of the High Court under Article 226 of the Constitution. It has power of judicial review. It only examines the procedural correctness of the decision making process. For this reason the order of the Tribunal insofar as it goes into or discusses the truth and correctness of the charges, was held to be unsustainable in law.
15. On the other aspect of the matter that Enquiry Officer can offer his views but cannot make strong recommendation for imposition of a particular -16- punishment and that the decision on quantum of punishment lies within the jurisdiction of disciplinary authority, reliance was placed on the decision of this Court in the case of The Karnataka Power Transmission Corporation Limited Vs. Javarai Gowda And Another, in W.A.8594/2012 decided on 18.02.2015. In this regard, it would be useful to notice a decision of another co-ordinate Bench in the case of Shri Shankarappa Vs. Karnataka Power Transmission Corporation Limited, in W.P.No.23485/2015 which was decided on 24.11.2016, wherein the decision in Javarai Gowda's case was held to be per incuriam for having not noticed the effect of Regulation 14(A)(d) of the Karnataka Electricity Board Employees' (Classification, Disciplinary, Control and Appeal) Regulations, 1987, which provided that after the enquiry is completed, the records of the case with the findings of the Enquiry Officer and the recommendations of the Vigilance Commissioner/ Lokayukta/Upalokayukta shall be sent to the Board. -17-
16. It is noticeable that the said provision i.e., Regulation 14(A)(d) of the Karnataka Electricity Board Employees' (Classification, Disciplinary, Control and Appeal) Regulations, 1987 is pari materia with Rule 14- A(2)(d) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Therefore, the answer to the said question should necessarily go against the respondents herein.
17. The other contention that was raised by the respondents herein, as an applicant before the Tribunal was that the disciplinary authority imposed the punishment without considering the explanation submitted by the delinquent officer to the second show cause notice and solely based on the recommendation of the Upalokayukta. The said question also stands answered in the case of Sri. Shankarappa (supra).
18. Placing reliance on a judgment of the Hon'ble Supreme Court in Punjab National Bank And Others Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84, it was held that whenever the disciplinary authority disagrees with the enquiring authority on any article of -18- charge, then before it records its own finding on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. On the other hand, if the disciplinary authority is in agreement with the enquiry authority, then the disciplinary authority need not record separate opinion before proceeding to impose the punishment. In National Fertilizers Ltd. (supra), it was held that the disciplinary authority is not required to record its reasons if it concurs with the Enquiry Officer's finding in contradiction with the situation in which the disciplinary authority disagrees with the findings of the enquiring authority.
19. It is also on record that the entire file including the reply dated 22.12.2016 given by the respondents herein to the second show-cause notice was placed before the State Cabinet. The Cabinet, on consideration of the material placed before it, has taken a decision on 12.04.2017 to accept the findings of the enquiry officer and the recommendation of the -19- Upalokayukta. Therefore, it cannot be said that the reply given by the respondent to the second show-cause notice was not considered.
20. For the foregoing reasons, we pass the following:
ORDER
i) Both the writ petitions are allowed.
ii) The impugned order dated 23.11.2017, passed by the Karnataka State Administrative Tribunal, Bangalore, in Application No.2616/2017 is hereby set aside.
iii) Consequently, the Application No.2616/17 is hereby dismissed.
SD/-
JUDGE SD/-
JUDGE DL/JT