Karnataka High Court
Mr B K Mariyappa vs Bwssb on 29 September, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION NO.31484/2017 (S - RES)
BETWEEN:
MR B K MARIYAPPA
S/O LATE T.M. KRISHNAPPA
AGED ABOUT 46 YEARS,
#17TH, 1ST N BLOCK,
BWSSB QUARTERS, RAJAJINAGAR
BANGALORE 560010.
... PETITIONER
(BY SRI K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE)
AND:
BWSSB
REPRESENTED BY ITS CHAIRMAN
1ST FLOOR, CAUVERY BHAVAN,
K.G. ROAD,
BANGALORE 560009.
... RESPONDENT
(BY SRI SHIVANANDA METI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER AT ANNEX-A DTD.29.12.2009, ANNEX-B DTD.1.12.2011,
ANNEX-C DTD.27.9.2012 AND ANNEX-D, NO. NIL
DTD.15.12.2016 PASSED BY THE RESPONDENT AND DIRECT THE
RESPONDENT TO REJOIN THE PETITIONER TO HIS WORK AND
TO PAY THE SALARY TO THE PETITIONER REGULARLY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT, MADE THE FOLLOWING:
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ORDER
The petitioner has called in question validity of the order of suspension at Annexure-A dated 29.12.2009, the enquiry report at Annexure-B, the order of Disciplinary Authority at Annexure-C and the order of the Appellate Court at Annexure-D.
2. The petitioner apart from raising various other contentions submits that the Inquiry Authority though notices that the enquiry report finds in the negative on all the charges, proceeds to record the finding that the petitioner is guilty of a lesser charge of not reporting about the constructions which are liable to pay prorata charges and the authority has proceeded to hold the petitioner liable for a lesser minor charge and has recommended to the Disciplinary Authority to take note of the same. It is submitted that the Disciplinary Authority acting on such report has proceeded to impose the penalty. It is contended that Inquiry Authority records in the negative as regards all of the Articles of charge framed as in the present 3 case, but intends to recommend for imposition of penalty by recording a finding with respect to Articles of Charge different from the original Articles of Charge, same must be done strictly in accordance with Rule 11 Clause 23 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short "KCS (CCA) Rules"). It is submitted that Insofar as finding of the Inquiry Authority as regards the lesser charge, there is neither any admission nor any opportunity that is made out to the petitioner and accordingly, the report and the decision by the Disciplinary Authority has to be set aside on that sole ground itself.
3. Learned counsel appearing for the respondent would submit that interference in the disciplinary proceedings is to be exercised as an exception and even otherwise, it is only a minor penalty of withholding increments for one year that is eventually imposed and no prejudice as such is caused to the petitioner considering that the lapses are made out by him and relies on the statement of objections filed on 26.07.2018. 4
4. Heard both sides.
5. Insofar as the narrow question regarding the finding at paragraph No.42 of the enquiry report regarding a lesser charge is concerned, it must be noted that the Inquiry Authority as regards all the three charges has recorded finding in the negative. The Inquiry Authority however at paragraph No.42 proceeds to record a finding that petitioner is guilty of a lesser charge of not reporting about the construction of buildings which are liable to pay prorata charges which is a lapse on his part. The Disciplinary Authority has issued a second Show Cause Notice on 24.01.2012, copy of which is produced before this Court. Perused the same. The second Show Cause Notice does not refer to the finding of the Inquiry Authority as regards the lesser charge nor makes reference to the finding of the Enquiry Officer in the negative as regards to the three charges that were framed at the commencement of the enquiry.
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6. It is not in dispute that the KCS (CCA) Rules are applicable to the petitioner during the relevant period of time. Reliance is placed on the judgment of this Court in the case of Lokesh M.V. Vs. the State of Karnataka & Others in W.P.No.20866/2017.
7. This Court in the above said judgment has referred to the scope of Rule 11 clause 23 of the KCS (CCA) Rules. Rule 11 clause 23 of the KCS (CCA) Rules reads as follows;
"11 (23)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-
a) the articles of charge and the statement of the imputations of misconduct or misbehavior;
b) the defence of the Government Servant in respect of each articles of charge;
c) an assessment of the evidence in respect of each article of charge;
d) the findings on each article of charge and the reasons therefor.6
Explanation.- If in the opinion of the Inquiring Authority the proceeding of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The Inquiring Authority, where it is not itself the Disciplinary Authority shall forward to the Disciplinary Authority the record of inquiry which shall include-
a) the report prepared by it under clause
(i);
b) the written statement of defence, if any submitted by the Government servant;
c) the oral and documentary evidence produced in the course of the inquiry 7
d) written briefs, if any, filed by the Presenting Officer or the Government Servant or both during the course of the inquiry; and
e) the orders, if any made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry."
8. Clearly though the Inquiry Authority is entitled to record a finding regarding an Article of Charges different from the original Articles of Charge that would be subject to the conditions laid down in the proviso of the said Rule, which provides that such finding shall not be recorded unless the government servant has either admitted the facts on which, such Articles of charge is framed or had a reasonable opportunity of defending himself against such Articles of charge. Clearly there is no material to indicate any admission by the petitioner as regards the finding recorded on the lesser charge.
9. A perusal of the second Show Cause Notice also does not make out any ground calling upon the petitioner to reply regarding the lesser charge on which finding has been 8 recorded. The procedure adopted in recording the finding on lesser Articles of charge being in contravention of the proviso of Rule 11 Clause 23, on this sole ground itself, the finding of the Inquiry Authority as regards the lesser charge alone requires to be set aside and consequently, the order of the Disciplinary Authority at Annexure-D is liable to be set aside.
Accordingly, the orders at Annexure-A and C and the consequent order at Annexure-D are set aside.
Needless to state it is always open for the respondent- Authority to take action and pass an order, if deems fit and appropriate if grounds are made out regarding additional charge regarding which, finding has been made at paragraph No.42.
Accordingly, petition is disposed off.
Sd/-
JUDGE PN