Karnataka High Court
The State Of Karnataka vs Sri A V Kemparangaiah on 11 August, 2023
Author: G. Narendar
Bench: G. Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.26122 OF 2022 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF EDUCATION
M S BUILDING
BENGALURU-560001
2. THE COMMISSIONER
PUBLIC INSTRUCTIONS DEPARTMENT
NRUPATHUNGA ROAD
BENGALURU-560001
3. THE ACCOUNTANT GENERAL (A AND E)
KARNATAKA CIRCLE
PALACE ROAD
BENGALURU-560001
...PETITIONERS
(BY SMT SHILPA S GOGI, AGA)
AND
1 . SRI A V KEMPARANGAIAH
S/O LATE VENKATAPPA
AGED ABOUT 65 YEARS
RETIRED BLOCK EDUCATION OFFICER
2
RESIDING AT NO 345
3RD CROSS, 1ST LINK ROAD
SIT EXTENSION, TUMAKURU
TUMAKURU-572102
2 . THE HON'BLE LOKAYUKTHA
REP BY ITS REGISTRAR
DR AMBEDKAR VEEDHI
BENGALURU-560001
...RESPONDENTS
(BY SRI VIJAY KUMAR V B, ADVOCATE FOR C/R1
SRI VENKATESH S ARABATTI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION TO QUASH THE ORDER DATED
25/05/2022 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BENGALURU IN APPLICATION
NO.3148/2021 AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, POONACHA, J.,
MADE THE FOLLOWING:
ORDER
The above Writ Petition is filed by the State seeking for the following reliefs:
"a) Call for the records;
b) Issue writ of certiorari or any other
appropriate writ, order or direction to quash the order dated 25.05.2022 passed by the Karnataka State Administrative Tribunal at Bengaluru in Application No.3148 of 2021.
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c) Dismiss Application No.3148 of 2021 on the file of the Karnataka State Administrative Tribunal at Bengaluru;
d) Pass such other order or direction as this Hon'ble Court deems fit and proper under the facts and circumstances of the case, in the interest of justice and equity."
2. The necessary facts leading to the present Writ Petition are that the first Respondent who was working as a Block Education Officer was issued with a charge memo alleging that he had received illegal gratification of `5,000/- to release a cheque of `1.50 lakhs, etc. The first Respondent submitted his reply. Pursuant to the enquiry conducted, the second Respondent - Lokayuktha submitted its enquiry report dated 29.4.2019 holding that the charges against the first Respondent are proved and since he had retired from service on 30.9.2016 recommended for imposition of penalty of permanently withholding 50% of the pension. A second show cause notice was issued which was replied by the first Respondent. The disciplinary authority by order dated 21.1.2021 imposed a penalty of permanent reduction of 50% of his pension. Being 4 aggrieved, the first Respondent preferred Application No.3148/2021 to quash the penalty order. The Application was opposed by the State. The Tribunal, vide its order dated 25.5.2022 allowed the Application. Being aggrieved, the present Writ Petition is filed by the State.
3. Learned AGA in support of the Writ Petition submits that the bribe amount was recovered from the first Respondent and the shadow witness has supported the case of the prosecution and hence, the charge against the first Respondent has been sufficiently proved in the Departmental Enquiry. She further submits that the Tribunal erred in setting aside the enquiry report and ought to have dismissed the application filed by the first Respondent.
4. Per contra, learned counsel for the first Respondent submits that the complainant having died and the testimony of the shadow witness being contradictory in the Departmental proceedings and in the criminal case, the Tribunal was justified in allowing the application filed 5 by the first Respondent and the order of the Tribunal is not liable to be interfered with in the present Writ Petition.
5. It is forthcoming that in the enquiry conducted by the second Respondent, the charge against the Respondent No.1 is held to have been proved and the following aspects have been noticed;
i) a voice recorder was entrusted to the complainant asking him to switch on the same to record the conversation when he meets the DGO and to record the conversation with him while paying the money. The voice recorder produced by the complainant was played in the presence of DGO, complainant and the panch witnesses and the same was transferred into the CD and the transcription of the said conversation was also prepared as per Ex.P15.
ii) The complainant gave the tainted notes of `5,000/- to the DGO and the DGO received the amount from his right hand and counted the same by using his both hands and kept the said money in the left side shirt pocket.
iii) On receiving the signal from the complainant, Police Inspector, his staff and another panch witness approached the complainant, who took 6 them inside the room where the DGO is temporarily residing. The DGO took out the money of `5,000/- from his left side shirt pocket and produced the same before the Police Inspector. Those tainted notes were cross checked with reference to its serial numbers and confirmed that those notes were entrusted to the complainant during entrustment proceedings. Rest of the seizure procedure was conducted.
iv) The DGO gave written explanation - Ex.P3 that he requested the complainant for giving `5,000/- by way of loan as he has to visit Mantralaya and accordingly, the said amount of `5,000/- was given.
v) The voice of the DGO has been identified in the conversation recorded by the complainant.
vi) The panch witness Sri. H. Siddappa and Sri.Akbar Sab have been examined as PWs.1 and
2. PW.2 is also the shadow witness. PW.2 has stated that he was standing about 5 mtrs. away from the complainant and the DGO, while they were talking to each other and further claimed that, he has seen the entire happenings of demand and receipt of `5,000/- by the DGO from the complainant.
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vii) The evidence of the prosecution witness have been discussed and the same corroborates the charge against Respondent No.1.
viii) In support of his defence, Respondent No.1 has produced a promissory note Ex.D1, and has stated that he was about to sign the said promissory note which was duly prepared and kept ready but the Police Inspector did not allow him to sign the said promissory note.
ix) DW.2 has tendered evidence that he has signed the promissory note as a witness and that he put his signature at about 8.00 a.m., near the Sub - Registrar in the presence of a Deed Writer.
x) The DGO in his written explanation (Ex.P3) has not said anything about the said promissory note Ex.D1 and hence, the possibility of creating Ex.D1, subsequently, in order to take false evidence in the enquiry cannot be ruled out.
xi) Though the complainant could not be examined as he is dead, the evidence of PWs.1 to 4 can be believed and reliance can be placed on their evidence.
xii) In the absence of any corroborative evidence to support the defence contention of the DGO, the explanation taken by him by way his defence is disbelieved.
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6. The Tribunal while appreciating the relevant aspects, noticed that PW.2 who is the shadow witness and panch witness has stated in his testimony recorded in the criminal case that the complainant went inside the chambers of the DGO and he did not hear the conversation that took place between the accused and the complainant and that he has not seen the complainant paying the money to the DGO. Whereas, in the enquiry, he has stated that he was present when the DGO demanded the bribe amount and the complainant gave the amount to the DGO in his presence.
7. In view of the contradictory statements given by PW.2 in the criminal case and before the enquiry officer, the Tribunal has recorded a finding that the evidence of PW.2 is not trust worthy and no reliance can be placed on the same.
8. The Tribunal further noticed that the other witness who spoke about the demand and acceptance of the bribe amount is the complainant. However, since he is 9 no more, his evidence is also not available. Hence, the Tribunal held that, despite recovery of money, in the absence of any conclusion that there was demand and acceptance of the bribe amount, it is not sufficient to hold against the first Respondent.
9. It is forthcoming that the conversation between the complainant and the first Respondent was recorded in a voice recorder and the said conversation was transferred to a CD.
10. PW.1 in his cross-examination before the enquiry officer in para 3 has deposed that at the time of drawing up of the mahazar the Investigation Officer (for short 'IO') displayed the voice recorder and they heard it. Further, in para 7 he has deposed that the conversation that took place between the complainant and the DGO were displayed and they have heard it. However, there is no cross-examination of PW.1 regarding the voice recording.
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11. In the examination-in-chief of PW.2 before the enquiry officer at para 4, he has deposed that a voice recorder was placed, in which a demand made by the DGO was recorded. There is no cross-examination of PW.2 regarding the voice recording.
12. The DGO examined himself as DW.1.
However, he has not deposed in his evidence disputing the voice recording. It is forthcoming from the trap panchanama - Ex.A17 that the voice recording has also been placed on record in the same.
13. In the enquiry report dated 29.4.2019 - Ex.A5, the voice recording has been elaborately discussed and it is noticed that the voice recorder produced by the complainant was played in the presence of the panch witness and the same was transferred to a CD and transcript of the said conversation recorded in the CD has been marked as per Ex.P13 in the enquiry proceedings. Further, it has been noticed that the CD containing the conversation was played and the voice of the DGO was 11 identified in the conversation. The aspects regarding the voice recording, the voice of the DGO having been identified in the same and the transcript of the voice recording having been marked in the enquiry proceedings have not been considered by the Tribunal.
14. Having regard to the aforementioned, notwithstanding the fact that the Tribunal has noticed the inconsistency in the testimony of the shadow witness, the aspects regarding demand and acceptance have been placed on record by virtue of the voice recording. Hence, even though the complainant was dead and he was not available for the enquiry, in view of the voice recording that is available on record, it cannot be said that the finding of the enquiry officer that the charges are proved is one without any evidence.
15. The aspect regarding voice recording has also been deposed by the witnesses in the criminal case. The only aspect regarding which the witnesses have been cross-examined in the said criminal case regarding voice 12 recording was with regard to the procedure under which the conversation was transferred from the voice recorder to the CD.
16. In the case of Union of India v.
P.Gunasekaran1 the Hon'ble Supreme Court has held as follows:
"22. xxxx The High Court can only see
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;1
AIR 2015 SC 545 13
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
17. The ratio as held in the case of P.Gunasekaran1 was also reiterated and followed by the Hon'ble Supreme Court in the case of Union of India and ors., v. Dalbir Singh2.
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18. Keeping in mind, the necessary facts as noticed above and the position of law, it is clear that the enquiry officer has in detail appreciated all the necessary material on record while coming to the conclusion that the charges have been proved. The Tribunal, merely on the ground that there was inconsistency in the testimony of PW.2 has, held that there was no material against the first Respondent. Hence, the reasoning of the Tribunal is ex facie erroneous and liable to be interfered with.
19. It is also forthcoming that the Tribunal has held that the mandatory requirements of Section 12(4) of the Act have not been complied with. A perusal of the order dated 7.5.2013 (Annexure-A2) indicates that the Petitioners have noticed the report dated 1.2.2013 of the Hon'ble Upa Lokayukta in detail and after noticing all the factual aspects of the matter has, by order dated 7.5.2013 entrusted the matter to conduct the departmental enquiry. Consequently, articles of charge dated 29.5.2013 (Annexure-A3) has been issued and after the response of 15 the first Respondent enquiry was conducted, wherein the first Respondent has participated in the same. Vide enquiry report dated 29.4.2019 (Annexure-A5) a finding has been recorded that the charges against the DGO have been proved. Thereafter, after the enquiry report, a second show cause notice has been issued which has been replied to and thereafter, the order dated 21.1.2021 has been passed, wherein penalty has been imposed which has been challenged before the Tribunal.
20. Having regard to what has been noticed above, it is clear that the relevant statutory stipulations have been complied with. The finding of the Tribunal that the mandatory requirements of Section 12(4) of the Act have not been complied with is erroneous and liable to be interfered with since, as noticed above, the Petitioners after considering the entirety of the matter as was placed on record by the report of the second Respondent and having examined the same passed the order dated 7.5.2013.
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21. Hence, we pass the following:
ORDER i. The Writ Petition is allowed;
ii. The order dated 25.5.2022 passed in Application No.3148/2021 by the Karnataka State Administrative Tribunal, Bengaluru, is set aside;
iii. The Application No.3148/2021 filed by the first Respondent on the file of the Karnataka State Administrative Tribunal, Bengaluru, is dismissed.
No costs.
Sd/-
JUDGE Sd/-
JUDGE nd/BS