Karnataka High Court
Sri H R Jayadevappa vs State Of Karnataka on 19 February, 2014
Bench: S.Abdul Nazeer, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF FEBRUARY, 2014
PRESENT
THE HON'BLE MR. JUSTICE S. ABDUL NAZEER
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT PETITION NO.44092 OF 2013 (S-KAT)
BETWEEN
SRI H R JAYADEVAPPA, S/O HALAPPA
AGED ABOUT 58 YEARS
WORKED AS MANAGING DIRECTOR
GOVERMENT TOOL ROOM & TRAINING CENTRE,
RAJAJINAGAR INDUSTRIAL AREA,
WEST OF CHORD, BANGALORE-44
PRESENTLY WORKING AS:
JOINT DIRECTOR OF INDUSTRIES &
COMMERCE, OOD AS DIRECTOR (ADMINISTRATION),
KEONICS,RACE COURSE ROAD, BANGALORE-01.
... PETITIONER
(BY SRI R.L. PATIL FOR M/S. ADINATHA NARDE
AND REVATHY ASSOCIATES, ADVOCATES)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF COMMERCE & INDUSTRIES,
REP BY ITS PRINCIPAL SECRETARY,
VIKAS SOUDHA, BANGALORE-01
2. KARNATAKA LOKAYUKTHA
REP BY ITS REGISTRAR,
M.S. BUILDING, BANGALORE-01 ... RESPONDENTS
(BY SMT. S SUSHEELA, AGA FOR R-1,
SRI. K. GOVINDARAJ, ADVOCATE FOR R-2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER DATE 12.07.2013, PASSED IN
APPLICATION NO.5657/2010, PASSED BY THE
KARNATAKA ADMINISTRATIVE TRIBUNAL WHICH IS
PRODUCED AS ANNEXURE-A AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.1.2014 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
H.S.KEMPANNA J., PRONOUNCED THE FOLLOWING;
ORDER
This petition is directed against the order dated 12.7.2013 passed in Application No.5657/2010 by the Karnataka Administrative Tribunal at Bangalore wherein the Tribunal has declined to quash the memorandum of charges dated 30.7.2010 bearing No.Lok/ARE-4/14-A/ENQ-39/2007 issued by the second respondent in a departmental enquiry conducted against the petitioner pursuant to entrustment of the same by the first respondent.
2. The petitioner had entered into service in the department of Industries and Commerce. He had been promoted to various cadres. He was working as Managing Director, Government Tool Room and Training Centre, Bangalore. In the year 1998 he was posted as Managing Director, Karnataka State Coir Co- 3 operative Federation Ltd. Bangalore (hereinafter referred to as 'Federation' for short') on deputation. While working in the Federation he went abroad from 21.6.2002 to 8.7.2002. On his return he was not allowed to rejoin to his duties at the Federation. However, at the intervention of the Government he was taken back to duty. One Sri.S.N.Patil and Sri.B.T.Radhakrishna, who were the Vice President and Superintendent of the Federation respectively, had operated the bank accounts while he had gone abroad. They had committed some irregularities in the financial transactions of the Federation. Therefore, the Federation passed a resolution on 13.9.2002 and recommended for an enquiry under Sections 64 and 65 of the Karnataka Co-operative Societies Act (for short hereinafter referred to as 'the Act'). However, the Government did not take any decision in the matter of holding enquiry under Section 64 of the Act.
2.1. Such being the position, one Sri Boregowda and Dhananjaya Gowda, who were the employees of the Federation, gave a complaint to the second respondent 4 regarding the irregularities that had occurred in the Federation.
2.2. The second respondent on the basis of the said complaint conducted investigation and recommended to the Government to hold a proper enquiry against various officials including the petitioner. In fact, the petitioner had made a detailed representation to the second respondent as to how the irregularities had taken place in the Federation and the persons who are responsible for the same. Despite the same the second respondent recommended for holding the enquiry, in response to which the Government took a decision to hold a joint enquiry against the petitioner and one Sri.B.T.Radhakrishna, an employee of the Federation under Rule 14(A) of the Karnataka Civil Service (Classification, Control and Appeal) Rules 1957 (for short hereinafter referred to as the Rules). On the basis of the said recommendation the first respondent issued order dated 25.5.2006 initiating joint enquiry against the petitioner as well as the non-Government servant viz. Sri.B.T.Radhakrishna. Thereafter the 5 Government issued a modified order dated 28.05.2007 initiating departmental enquiry against the petitioner and another M.Ramakrishna by cancelling the earlier order date 25.05.2006. The petitioner at that stage filed O.A.NO.5913/2006 challenging the order dated 25.5.2006.
2.3. When things stood thus the second respondent issued the charge memo dated 30.7.2010 in respect of the alleged irregularities committed during the years 1998-2000. The petitioner challenged the said charge memo dated 30.7.2010 issued by the second respondent before Tribunal in the impugned application seeking for quashing of the same.
2.4. In the application inter alia among other things it was mainly contended by the petitioner that the respondents have taken 12 long years to initiate departmental enquiry against him. Apart from the same it was also contended that the action taken against him by virtue of the modified orders would go to show it is a selective action taken against him. He is not at all responsible for the alleged misconduct. The interest of 6 the petitioner is jeopardized and his right of defence is taken away by the inordinate delay in initiating the departmental enquiry. The respondents have failed to explain the inordinate delay of 12 years in initiating the enquiry. Therefore, it is liable to be set aside solely on the ground of delay and latches apart from merits.
2.5. The respondents on notice contended the delay, if any, in initiation of the departmental proceedings against the petitioner is due to administrative reasons and as the said delay has been properly explained having regard to the facts on record it is not a fit case to quash the Articles of Charges issued against the petitioner. Accordingly, they sought for dismissal of the application.
2.6. The Tribunal on considering the entire materials placed before it came to the conclusion that the delay that has occurred in initiation of the departmental enquiry has been properly explained by the respondents and having regard to the nature of allegations made against the petitioner and the gravity of misconduct against him also requires to be noted 7 while considering his prayer, held it is not a fit case to quash the Articles of charges dated 30.7.2010 issued by the respondents. Accordingly, by the impugned order it dismissed the application filed by the petitioner.
3. The learned counsel appearing for the petitioner at the outset contended that admittedly the alleged misconduct committed by the petitioner relates back to the years 1998-2000 (according to him it dates back to the years 1995-96 to 2002-03). The charge memo is dated 30.7.2010. The respondents have slept over the matter for over a period of 12 years which has jeopardised the interest of the petitioner and his right of defence is also taken away on account of the inordinate delay in initiating the enquiry.
He further contended the respondents have not properly explained the delay of 12 long years. He contended according to the respondents since B.T.Radhakrishna had filed W.P.NO.12674/2006 and there was an interim order of stay granted in his favour on 14.9.2006 and further as the petitioner had filed application in O.A.No.5913/2006 challenging the order 8 dated 25.5.2006, they were not able to proceed with the enquiry. In this connection he brought to our notice in the writ petition filed by B.T.Radhakrishna that absolute stay was not granted, but stay was granted in respect of that petitioner only. In the application filed by the petitioner there was no stay. In that view of the matter there was no bar for the respondents to proceed with the enquiry against this petitioner.
He further contended that initially the Federation had passed a resolution dated 13.9.2002 for holding an enquiry u/ss.64 and 65 of the Act. However, no steps were taken in that direction for the reasons best known to the authorities. He further contended thereafter on the recommendation of the Lokayuktha a joint enquiry was initiated which also could not have been done as the joint enquiry initiated was in respect of a non Governmental employee. He further contended the Government has given up the persons who were actually responsible for the pilferation of the funds of the Federation wherein the petitioner had no hand as per the resolution of the Federation. It is fortified from 9 the action of the Government in issuing modified order intermittently. He further submitted the Tribunal having come to the conclusion that there is inordinate delay in initiating the departmental enquiry has failed to notice that the same has been not properly explained. But on the other hand, relying on the decision in the case of SECRETARY FOREST DEPARTMENT AND OTHERS - VS - ABDUR RASUL CHOWDARY reported in AIR 2009 SCW 4666 has committed an error in holding that the respondents have explained the delay satisfactorily which is not substantiated by any justifiable reasons. In this connection he contended that in the said case delay had occurred on account of the employee and not on account of the employer and it has been held the delay has to be explained satisfactorily which has not been done in the present case. Therefore the impugned order cannot be sustained, it be set-side and charge memo dated 30.07.2010 issued by the 2nd respondent be quashed.
In support of his contentions he relied on the decisions rendered in P.V.MAHADEVAN - VS - M.D 10 TAMILNADU HOUSING BOARD, reported in (2005) 6 SCC 636, M.V.BIJLANI - VS - UNION OF INDIA (2006) 5 SCC 88, STATE OF MADHYA PRADESH - VS -
BANISINGH AND ANOTHER (1990) Supp SCC 738, N.B.KULKARNI - VS - LIFE INSURANCE
CORPORATION OF INDIA AND ORS. reported in ILR 1999 KAR 2677, Y.N.KRISHNAMURTHY - VS -
KARNATAKA SILK INDUSTRIES CORPORATION LTD. reported in ILR 2005 KAR 3389 and an unreported judgment of this court in the case of S.MURALI - VS - KARNATAKA STATE WARE HOUSING CORPORATION AND ANOTHER passed in W.P.NO.36183/2003, disposed of on 31.08.2012.
4. On the other hand, the learned counsel for the respondents supporting the impugned order of the Tribunal submitted that the delay has been properly explained by the respondent. Having regard to the nature and gravity of the allegations made, in the circumstances of the case it cannot be said there is an inordinate delay. The Tribunal on considering the entire material on record has rightly declined to quash 11 the charge memo dated 30.7.2010, it does not call for any interference, accordingly it be dismissed.
In support of their submissions they relied upon the decisions reported in (1995) 3 SCC 134, (1995) 2 SCC 570, (1995) 6 SCC 750 apart from the one that has been relied upon by the Tribunal in its order.
5. We have considered the submissions made by the counsels for the parties and also have gone through the material placed before us.
6. The petitioner has sought to quash the charge memo dated 30.7.2010 issued by the second respondent in a departmental enquiry initiated against him pursuant to the entrustment of the said enquiry by the first respondent vide order dated 28.5.2007. Admittedly the Articles of charges that has been leveled against the petitioner relates back to the misconduct for the period between 1998-2000 (according to the counsel for the petitioner it pertains to the period 1995-96 to 2002-03). Initially the Federation had passed a resolution dated 13.9.2002 and had recommended for an enquiry to be conducted under Sections 64 and 65 of the Act. In that 12 resolution it is clearly stated that Sri.S.M.Patil, the then Vice President and Sri.B.T.Radhakrishna, the Superintendent of the Federation are responsible for embezzlement of the funds and to take action as per law. However, for the reasons best known, no action has been taken against the said two persons. Thereafter, one Boregowda and S.L.Dhananjayagowda filed a complaint before the second respondent in respect of the financial irregularities that had occurred in the Federation. The second respondent after conducting investigation recommended to the Government to hold enquiry against the officials of the Federation working at the relevant point of time who were responsible for the said financial irregularities. In response to the same Government by its order dated 25.5.2006 initiated joint departmental enquiry against the petitioner and B.T.Radhakrishna. At that stage B.T.Radhakrishan filed W.P.NO.12674/2006 before this court challenging the said order and this Court granted an interim stay on 14.9.2006 insofar as B.T.Radhakrishna only. Later the Government on 13 realizing the mistake that it could not have proceeded against a non-Governmental official i.e. B.T.Radhakrishna, issued a modified order dated 28.5.2007 initiating departmental enquiry against the petitioner and one Ramakrishna, Asst. Director of Commerce and Industries observing that the enquiry against B.T.Radhakrishna who is not a Government servant would be conducted separately by the Competent Authority. At this stage the petitioner filed O.A.5913/2006 before the Tribunal challenging the Government order dated 25.5.2006, but no stay was granted in the said application. Thereafter, in pursuance of the order of the Government dated 25.5.2006, enquiry was initiated by the second respondent and the Additional Registrar of Enquiry No.1 was nominated to hold the departmental enquiry as per the order dated 4.8.2006. However, in view of the subsequent Government order dated 28.5.2007 the second respondent re-nominated Additional Registrar of Enquiry No.4 to proceed with the enquiry by order dated 6.6.2007 and again one more order dated 19.6.2009 14 was passed. It is thereafter the present Articles of Charges dated 30.7.2010 has been issued against the petitioner. As already pointed out the alleged misconduct is for the period 1998-2000 (1995-96 to 2002-03 according to the counsel for the petitioner). The charge memo is dated 30.7.2010. This is nearly after 12 years of the alleged misconduct. This is not disputed to in the case. According to the petitioner the respondents have not properly explained the inordinate delay in initiating the proceedings. That has jeopardized his interest and his right of defence is also taken away. According to the respondents the delay is on account of administrative reasons, more particularly in view of the interim order of stay granted on 14.9.2006 in the writ petition filed by B.T.Radhakrishna before this Court and the application filed by the petitioner before the Tribunal. In view of the pendency of the writ petition and also the application filed by the petitioner, the respondents could not proceed with the enquiry. Immediately after the disposal of the writ petition in view of the modified order of the Government dated 15 28.5.2007 they have proceeded with the enquiry. Therefore, in view of what has been laid down in the decision relied upon by the respondents cited aforesaid, the delay has been properly explained. It is to be noticed that in the said decisions it has also been held the delay depends upon the facts of each case and it has to be satisfactorily explained.
7. The Apex Court in the case of P.V.Mahadevan - vs - M.D Tamilnadu Housing Board, relying on two other reported decisions viz. State of Madhya Pradesh - vs - Bani Singh and Another reported in (1990) Supp. SCC 738 and State of A.P - vs - N.Radhakrishnan reported in (1998) 4 SCC 154 wherein at para 19 of the later case it is held as under:-
"It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into 16 consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of change, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed.17
Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations".
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.07.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 01.06.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed".
8. The court came to the conclusion that allowing the respondent to proceed further with the departmental proceedings would be at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental 18 agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employee. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant has already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
This principle has been reiterated in other cases which have been relied upon by the counsel for the petitioner.
9. No doubt, in the cases relied upon by the respondents, it has been stated that the delay must be considered having regard to the facts of each case and 19 whether the same has been explained to proceed with the enquiry. In the case cited in the order of the Tribunal it is seen that it was the employee who was responsible for the delay. Therefore, the Apex Court in that particular case came to the conclusion that the delay has been properly explained. That is not the picture that is before us in this case. The alleged misconduct is for the period 1998-2000. The charge memo is dated 30.7.2010 i.e. nearly after 12 years of the alleged misconduct. This inordinate delay has not been properly explained. The reason offered by the respondents for the delay is pendency of the writ petition and also the application filed by the petitioner. It is to be noticed that no blanket stay had been granted in the writ petition filed by B.T.Radhakrishna. On the other hand, stay had been granted by this Court in the writ petition in respect of the petitioner (B.T.Radhakrishna) only. In the application filed by the petitioner before the Tribunal there was no stay. Therefore there was no bar for the first respondent to proceed with the enquiry. Under these circumstances, 20 we find that the Tribunal has committed an error in the facts and circumstances of the case that the delay has been properly explained. Since the Apex court has clearly enunciated that the inordinate delay in initiating the departmental proceedings would affect the interest of the delinquent official, the impugned order in our view cannot be sustained. Apart from the same, we find from the material on record right from the inception steps have not been taken by the Competent Authority to bring into book the persons who are all responsible for the alleged embezzlement of the funds of the Federation. Step by step one after the other including the Vice President and other officials of the Federation have been deleted in the process. It is brought to our notice that the petitioner joined the Federation on 21.7.1998 and was repatriated on 1.2.2003. Though the Federation has passed a resolution for initiating an enquiry under Sections 64 and 65 of the Act against the then Vice President and the Superintendant B.T.Radhakrishna, no steps have been taken in that direction for the reasons best known to them. On the 21 other hand as rightly submitted by the counsel for the petitioner the action initiated against the petitioner is selective action and in view of the inordinate delay which has not been properly explained, we find that the charge memo deserves to be quashed.
10. Accordingly, we pass proceed to pass the following :-
ORDER
i) Writ petition is allowed;
ii) The impugned order dated 12.7.2013 passed by the Tribunal in Application No.5657/2010 is set aside. Consequently the charge memo dated 30.7.2010 issued by the second respondent, insofar as the petitioner is concerned, is quashed. No costs.
Sd/-
JUDGE Sd/-
JUDGE rs