Karnataka High Court
Sri. K. Shankar vs The Director on 23 August, 2024
-1-
NC: 2024:KHC:34084
WP No. 13658 of 2014
C/W WP No. 22800 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 13658 OF 2014 (S-RES)
C/W
WRIT PETITION NO. 22800 OF 2011 (S-RES)
IN WP NO. 13658/2014
BETWEEN:
MAHAJANA EDUCATION SOCIETY ®
JAYALAKSHMIPURAM,
MYSORE-570 012.
REPRESENTED BY ITS
HON. SECRETARY,
DR. P.R.NAGASRINIVASA.
...PETITIONER
(BY SRI. SOMASHEKAR, ADVOCATE)
AND:
1. SRI. K. SHANKAR
S/O SRI. K. BORAIAH,
Digitally signed
by AGED ABOUT 61 YEARS,
MARKONAHALLI
RAMU PRIYA
R/AT NO.1214, 12TH CROSS,
Location: HIGH 7TH MAIN, VIJAYANAGAR, 1ST STAGE,
COURT OF
KARNATAKA MYSORE - 17.
2. THE DIRECTOR OF
PRE UNIVERSITY EDUCATION,
SAMPIGE ROAD, MALLESWARAM,
18TH CROSS, BANGALORE - 560 012.
3. THE JOINT SECRETARY TO GOVERNMENT
AND APPELLATE AUTHORITY,
PRIMARY AND SECONDARY EDUCATION,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
...RESPONDENTS
-2-
NC: 2024:KHC:34084
WP No. 13658 of 2014
C/W WP No. 22800 of 2011
(BY SRI. VIJAYKUMAR, ADVOCATE FOR CAVEATOR / RESPONDENT
NO.1;
SRI. GOPALAKRISHNA SOODI, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.2 AND 3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 25.02.2014 IN REVISION PETITION NO.52/2011 (ED 352
DGW 2011) PASSED BY THE RESPONDENT NO.3 VIDE ANNEXURE-J.
IN WP NO. 22800/2011
BETWEEN:
SRI K SHANKAR
S/O SRI. K.BORAIAH,
AGED ABOUT 57 YEARS,
WORKING AS PRINCIPAL,
(UNDER ORDERS OF SUSPENSION)
SBRR MAHAJANA PU COLLEGE,
JAYALAKSHMIPURAM,
MYSORE-560 012.
R/O, 214, 12TH CROSS,
7TH MAIN, VIJAYNAGAR, 1ST STAGE,
MYSORE-560 017.
...PETITIONER
(BY SRI. VIJAYAKUMAR, ADVOCATE)
AND:
1. THE DIRECTOR
PRE-UNIVERSITY EDUCATION DEPARTMENT,
MALLESHWARAM, 18TH CROSS,
SAMPIGE ROAD,
BANGALORE - 560 003.
2. THE SECRETARY,
MAHAJAN EDUCATION SOCIETY,
JAYALAKSHMIPURAM,
MYSORE - 570 012.
3. SRI. B.L. JAGADEESH
ADVOCATE AND ENQUIRING AUTHORITY,
-3-
NC: 2024:KHC:34084
WP No. 13658 of 2014
C/W WP No. 22800 of 2011
MAHAJAN EDUCATION SOCIETY,
MYSORE - 570 012.
...RESPONDENTS
(BY SRI. SOMASHEKAR, ADVOCATE FOR RESPONDENT NOS.2 AND 3;
SRI. GOPALAKRISHNA SOODI, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NO.1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
RELATING TO ISSUE OF THE IMPUGNED ORDER DATED 11.06.2011
VIDE ANNEXURE-E, PASSED BY THE 3RD RESPONDENT IN THE
DISCIPLINARY PROCEEDINGS INITIATED AGAINST THE PETITIONER
ON 20.10.2009 AND AFTER PERUSAL SET ASIDE THE SAME AND
ETC.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
IN W.P. NO.22800/2011
The petitioner in W.P. No.22800/2011, an employee of an institution receiving aid from the State Government, has challenged the correctness of the order dated 11.06.2011 passed by the respondent No.3 in the disciplinary proceedings initiated against him on 20.10.2009.
2. The petitioner was employed as a Principal of the Mahajana Pre-University College, an aided institution, run by -4- NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 the Mahajana Education Society (henceforth referred to as "Society"). The petitioner was placed under suspension on 06.10.2009 pending a departmental enquiry on the basis of a report submitted by the Joint Director of Pre-University. On 20.10.2009, a charge memo was issued by the Society, alleging 21 charges against the petitioner.
2.1 Being aggrieved by the said order suspending him as well as the articles of charge, the petitioner filed Review Petition No.13/2010 before the Appellate Authority and Deputy Secretary (Primary and Secondary Education), Department of Education under Section 132 of the Karnataka Education Act, 1983. The petitioner primarily contended that the initiation of the disciplinary proceedings by the Society was contrary to sub- rule (2) of Rule 28 of the Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-aid etc.) Rules, 2006 (for short, 'the Rules, 2006'). The Reviewing Authority was pleased to allow the petition by way of an order dated 22.03.2011 holding that the enquiry into the alleged charges relating to misappropriation of Government funds and examination malpractice had to be conducted by the respondent No.1 alone and not by the Society. -5-
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 2.2 Being aggrieved by the said order, the Society filed W.P. No.14885/2011. During the course of hearing the writ petition, the Society stated that amongst the articles of charge, charge Nos.1, 2, 8, 9, 10, 11, 12 and 21 related to misappropriation of Government funds and examination malpractice and that the remaining charges alleged against the petitioner related to misconduct and that it had the jurisdiction as the Disciplinary Authority to hold an enquiry in respect of those charges i.e., charge Nos.3, 14, 15, 16, 17, 19 and 20. The writ petition was disposed off in terms of the order passed by a coordinate Bench of this Court dated 21.04.2011. The relevant portion of the order reads as follows:
"Heard Shri. S. N. Murthy, Senior Advocate appearing for the Counsel for the petitioner.
2. It is stated that the petitioner which is a Society has initiated enquiry against the respondent no.4, after obtaining approval from the State Government. However, on the basis of an objection raised by the fourth respondent, the State Government has passed an order to contend that the Rule 28(2) of the Karnataka Pre-University (Academic, Administration, Grant-in-aid, Registration and etc) Rules, 2006 which provides -6- NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 that the Managing Committee shall be competent to initiate disciplinary proceedings against its employee in accordance with the Rules. However, the Director shall be competent to initiate a disciplinary enquiry and impose punishment on any employee of a Private Aided Pre-University College, whose salary grants are released by the Government on the grounds of misappropriation or misutilisation of Government funds or on charges of examination mal practices, etc. The petitioner itself has classified 21 charges of which, 8, even according to the petitioner, would be covered under sub-rule (2) of Rule 28 and that it would be competent for the Director alone to initiate a disciplinary enquiry and would submit that it would not be averse to deleting the said charges, 1, 2, 8, 9, 10, 11, 12 and 21, which according to the learned Senior Advocate would be charges in respect of which a Director alone is competent to initiate disciplinary proceedings and therefore, would submit that the said charges be deleted and the proceedings may be directed to continue after such deletion.
3. However, the learned Counsel for the respondent would contend that out of the remaining charges, the tenor of many of the charges is such that it is only the Director who -7- NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 would be competent to initiate an enquiry, in respect of these charges.
4. This is a question which cannot be addressed by this Court, as it would require findings of fact and an examination of the charges themselves. It is therefore open to the respondent no.4 to raise any such objection before the Enquiry Officer, who would be competent to examine whether the charges are such that which only the Director would be competent to initiate disciplinary proceedings and to pass appropriate orders. With this direction, the petition is disposed of, while the Enquiry Officer shall delete the aforesaid eight charges in respect of which only the Director can initiate the disciplinary proceedings. Accordingly, the impugned order to that extent stands quashed."
2.3 This Court directed the Enquiry Officer to delete the aforesaid eight charges in respect of which only the Director of Pre-University Education could initiate disciplinary proceedings. After the aforesaid order dated 21.04.2011 was passed by this Court, the petitioner submitted a representation before the respondent No.3 / Enquiry Officer on 28.05.2011 to drop the charge Nos.3, 14, 15, 17 and 20 on the ground that they too related to misappropriation of Government funds and -8- NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 examination malpractice and that the Competent Authority to conduct disciplinary proceedings was the respondent No.1 and not the Society. However, the respondent No.3 rejected the representation of petitioner in terms of the order dated 11.06.2011 and proceeded with the enquiry in respect of 7 charges. The petitioner therefore being aggrieved by the said order and disciplinary proceedings initiated by the respondent No.3 has filed this writ petition.
3. The writ petition is opposed by the respondent No.2 who contends that the charges namely charge Nos.1, 2, 8, 9, 10, 11, 12 and 21 were given up before this Court in W.P. No.14885/2011 as it was the respondent No.1 who was the competent authority to initiate proceedings under sub-rule (2) of Rule 28 of the Rules, 2006. He contended that of the 21 charges framed against the petitioner, six charges were dropped by the Management of the Society and in respect of the remaining 15 charges, a submission was made before this Court in W.P. No.14885/2011 that eight charges would be deleted and were accordingly deleted in terms of the order passed by this Court dated 21.04.2011 in W.P. No.14885/2011 and the enquiry was restricted to seven charges which did not -9- NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 relate to misappropriation or misutilization of the Government funds and examination malpractice. He contended that the Competent Authority to conduct an enquiry in respect of the seven charges was the Society itself and not respondent No.1 and therefore, the Enquiry Officer rightly proceeded with the enquiry into the seven charges. He, therefore, contended that it is not the respondent No.1 who had to initiate disciplinary proceedings and appoint an Enquiry Officer in respect of the seven charges.
4. The learned counsel for the petitioner invited the attention of the Court to the seven charges and contended that one of the charges related to the petitioner not depositing the amounts collected from the students and therefore, that was a charge relating to misappropriation or misutilization of the funds of the State Government. He also submits that charge No.19 related to receipt of a sum of Rs.40,000/- from a co- worker for delaying his submission of the salary bill. He contends that this too was nothing but misappropriation of the funds of the Government and therefore, contended that the Enquiry Officer without realistically considering the gravamen of the charges had held that he was competent to enquire into it.
- 10 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011
5. Per contra, the learned counsel for the respondent Nos.2 and 3 invited the attention of the Court to the seven charges which are as follows:
"D¥ÁzÀ£É-3 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ ²æà ¦æÃvÀªÀiï JA§ ¥ÀæxÀªÀÄ ¦.AiÀÄÄ.¹. «zÁåyðAiÀÄÄ 2009gÀ ªÉÄãÀ°è £ÀqÉzÀ ¥ÀjÃPÉëUÉ ±ÀÄ®Ì PÀnÖzÀÝgÀÆ ¸ÀºÁ ¸ÀzÀj «zÁåyðUÉ ¸ÀPÁ®zÀ°è ¥ÀæªÉñÀ ¥ÀvÀæªÀ£ÀÄß ¤ÃrgÀĪÀÅ¢®è. EzÀjAzÁV ¸ÀzÀj «zÁåyðUÉ ¥ÀjÃPÉë §gÉAiÀįÁUÀzÉ, CªÀjUÉ MAzÀÄ ªÀµÀðzÀ ¨sÀ«µÀå ºÁ¼ÁUÀĪÀÅzÀPÉÌ PÁgÀtgÁVgÀÄwÛÃj. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(b)(i) & 25(3)(b) EªÀÅUÀ¼À£ÀÄß G®èAX¹gÀĪÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-14 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ, JgÀqÀÄ D¯ïªÉÄÊgÁUÀ¼À£ÀÄß Rjâ ªÀiÁrzÀÄÝ PÉÆmÉõÀ£ï ¤AiÀĪÀÄUÀ¼À£ÀÄß C£ÀĸÀj¹gÀĪÀÅ¢®è. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91
- 11 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.,) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(a) & 25(2)(b)(i) EªÀÅUÀ¼À£ÀÄß ²æà ±ÀAPÀgï DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-15 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ vÀªÀÄä CªÀ¢üAiÀÄ°è ¸ÀAUÀ滹zÀ ±ÀĮ̪À£ÀÄß ¨ÁåAQUÉ dªÀiÁ ªÀiÁrgÀĪÀÅ¢®è ºÁUÀÆ ZÀ®£ï ªÀÄÄSÁAvÀgÀ dªÀiÁ ªÀiÁrzÀ ªÉÆvÀÛ ¨ÁåAPï ¥Á¸ï ¥ÀĸÀÛPÀzÀ°è £ÀªÀÄÆzÁUÀzÉ EzÀÄÝ zÀæªÁå¥ÀºÀgÀt ªÀiÁrgÀÄwÛÃj. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(a) & 25(2)(b)(i) EªÀÅUÀ¼À£ÀÄß ²æà ±ÀAPÀgï DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-16 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ, ¥ÀzÉà ¥ÀzÉà gÀeÉUÀ¼À£ÀÄß
- 12 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 Cfð ¸À°è¸ÀĪÀ ºÀªÁå¸À ªÀiÁrPÉÆArgÀÄwÛÃj. gÀeÉ ªÀÄAdÆgÁV®è¢zÀÝgÀÆ ¸ÀºÁ ªÀÄvÀÄÛ CzÀgÀ §UÉÎ w½¹zÀÝgÀÆ ¸ÀºÁ PÀvÀðªÀåPÉÌ ¤ÃªÀÅ ºÁdgÁVgÀĪÀÅ¢®è. C®èzÉà gÀeÉ ¥ÀqÉAiÀÄ®Ä SÉÆnÖ ªÉÊzÀåQÃAiÀÄ ¥ÀvÀæUÀ¼À£ÀÄß ¤Ãr Qæ«Ä£À¯ï C¥ÀgÁzÀªÀ£ÀÆß ¸ÀºÁ ªÀiÁrgÀÄwÛÃj. PÁAiÀÄðzÉÆvÀÛqÀ ºÉZÁÑVgÀĪÀ ¸ÀªÀÄAiÀÄ £ÉÆÃr gÀeÉ ºÁQgÀÄwÛÃj. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(a) & 25(2)(b)(i) &
(ii) EªÀÅUÀ¼À£ÀÄß ²æà ±ÀAPÀgï DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-17 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ, ¯ÉPÀÌ ¥ÀvÀæUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ ZÁmÉðqï CPËAmÉAmï CªÀjAzÀ Drmï ªÀiÁrj¹gÀĪÀÅ¢®è. ªÀiÁå£ÉÃeïªÉÄAmïUÉ w½¹ ZÁmÉðqï CPËAmÉAmï CªÀjAzÀ Drmï ªÀiÁr¸ÀzÉ PÀvÀðªÀå¯ÉÆÃ¥À ªÀiÁrgÀÄvÁÛgÉ. dAnà ¤zÉÃð±ÀPÀgÀ vÀ¤SÁ «ZÁgÀuÁ ¥ÀvÀæUÀ¼À°è PÉýgÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß MzÀV¹gÀĪÀÅ¢®è. vÀ¤SÁ «ZÁgÀuÁ ¥ÀvÀæUÀ¼À°è PÉýzÀ AiÀiÁªÀÅzÉà CA±ÀUÀ½UÀÆ GvÀÛgÀ ¤ÃqÀzÉ, zÁR¯ÉUÀ¼À£ÀÄß ªÀiÁvÀæ CzÀÆ ¸ÀºÁ C¥ÀÆtðªÁV MzÀV¹gÀÄwÛÃj. EzÀjAzÁV ¤ÃªÀÅ ¥ÀzÀ«¥ÀƪÀð ²PÀët DAiÀÄÄPÀÛgÀÄ PÀbÉÃj¬ÄAzÀ
- 13 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 vÀ¤SÉUÁV §AzÀ 5 d£À ¹§âA¢UÀ¼À CªÀÄÆ®å ¸ÀªÀÄAiÀĪÀ£ÀÄß ªÀåxÀð ªÀiÁrgÀÄwÛÃj. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(a) & 25(2)(b)(i) EªÀÅUÀ¼À£ÀÄß ²æÃ. ±ÀAPÀgï DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-19 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ, ²æà JA. ªÀįÉèñï, G¥À£Áå¸ÀPÀgÀÄ, EªÀjAzÀ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV gÀÆ.40,000 ºÀt ¥ÀqÉzÀÄ ªÉÃvÀ£À ©®è£ÀÄß «¼ÀA§ªÁV G¥À¤zÉÃð±ÀPÀgÀ PÀbÉÃjUÉ PÀ½¹gÀÄwÛÃj. ²æà ¸Áé«Ä, ªÁtÂdå G¥À£Áå¸ÀPÀgÀÄ EªÀgÀ £ÉêÀÄPÁwAiÀÄ£ÀÄß SÁAiÀÄAUÉƽ¸À®Ä ¤ÃªÀÅ gÀÆ. 3 ®PÀë ºÀt PÉýgÀĪÀÅzÀÄ ªÀÄvÀÄÛ CªÀjUÉ eÁw¤AzÀ£É zÀÆgÀ£ÀÄß ¤ÃrgÀĪÀÅzÁV ¤ÃªÀÅ ¨ÉzÀjPÉ MrØgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant- in-Aid etc.,) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25 (1), 25(2)(a), 25(2)(b)(i) & 25(3)(b) EªÀÅUÀ¼À£ÀÄß ²æÃ. ±ÀAPÀgï
- 14 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À.
D¥ÁzÀ£É-20 ²æà PÉ.±ÀAPÀgï, ¥ÁæA±ÀÄ¥Á®gÀÄ, ªÀĺÁd£À ¥ÀzÀ«¥ÀƪÀð PÁ¯ÉÃdÄ, dAiÀÄ®QëöäÃ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ DzÀ ¤ÃªÀÅ, 2006-07£Éà ¸Á°£À°è «zÁåyðUÀ½AzÀ ¸ÀAUÀ滸ÀĪÀ MlÄÖ ºÀtzÀ°è ±ÉÃ. 50gÀµÀÄÖ ºÀtªÀ£ÀÄß PÁAiÀÄðzÀ²ð, ReÁAaUÀ¼À PÀbÉÃj, PÀ£ÁðlPÀ gÁdå «zÁåyðUÀ¼À PÉëêÀiÁ©üªÀÈ¢Þ ²PÀëPÀgÀ ¨sÀªÀ£À CªÀjUÉ PÀqÁØAiÀĪÁV PÀ¼ÀÄ»¹PÉÆqÀ¨ÉÃPÁVvÀÄÛ. DzÀgÉ gÀÆ.9030-00 £ÀÄß ªÀiÁvÀæ «zÁåyðUÀ¼À PÀ¯Áåt ¤¢üUÉ PÀ¼ÀÄ»¸ÀzÉ «zÁåyðUÀ½UÉ C£ÁåAiÀÄ ªÀiÁrgÀÄwÛÃj. EzÉà jÃw ¤ÃªÀÅ 2007-08£Éà ¸Á°UÉ gÀÆ.8872- 00 £ÀÄß PÁAiÀÄðzÀ²ð «zÁåyðUÀ¼À PÉëêÀiÁ©üªÀÈ¢Þ CªÀjUÉ PÀ¼ÀÄ»¹gÀĪÀÅ¢®è. The Karnataka Education Act, 1983 EzÀgÀ°è£À ¸ÉPÀë£ï 91 (1) & 92(1)(b) ºÁUÀÆ The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-Aid etc.) Rules, 2006 EzÀgÀrAiÀÄ°è£À ¤AiÀĪÀÄ 25(1), 25(2)(a), 25(2)(b)(i) & 25(3)(b) EªÀÅUÀ¼À£ÀÄß ²æÃ. ±ÀAPÀgï DzÀ ¤ÃªÀÅ G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. DzÀÝjAzÀ F DgÉÆÃ¥À. He contended that none of the charges referred above related to misappropriation or misutilization of the Government funds or examination malpractice and therefore was outside the
- 15 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 scope of sub-rule (2) of Rule 28 of the Rules, 2006. Thus he contends that the impugned order passed by the respondent No.3 rejecting the representation of the petitioner and to proceed with the enquiry is just and proper and does not call for any interference.
6. The learned Additional Government Advocate contended that in respect of 8 charges, where the petitioner was accused of misappropriation of Government funds and examination malpractice, the respondent has already initiated an enquiry. However, he contends that the institution had conducted an enquiry in respect of seven charges.
7. I have considered the submissions made by the learned counsel for the petitioner as well as the learned Additional Government Advocate and learned counsel for the respondent Nos.2 and 3.
8. It is not in dispute that the petitioner was employed as a Principal in Mahajana Pre-University College, which is an aided Institution, run by the Society. In so far as the procedure for conducting disciplinary enquiry against the employees
- 16 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 working in aided posts, a detailed procedure is set out in Rule 28 of the Rules, 2006 which is extracted below:
"28. Procedure of conducting disciplinary enquiries:-
(1) The managing committee shall be competent to impose penalties specified in Rule 27.
Provided that in case of employees working in aided posts, the managing committee shall obtain the prior approval of the Director, Pre-University Education for imposing any of the penalties on any employee.
(2) A managing committee shall be competent to initiate disciplinary proceedings against its employees in accordance with these rules. However, the Director shall be competent to initiate a disciplinary enquiry and impose punishment on any employee of a private aided Pre-University college whose salary grants are released by the Government, on the grounds of misappropriation or mis-utilisation of Government funds or on charges of examination malpractice. The Director is also competent to initiate domestic enquiry against employees whenever the managing committee gives up the right in favour of the Director in accordance with the Pre-University Course State Level Examination Rules, 1997.
- 17 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 (3) In all the disciplinary proceedings, the Director shall be competent to appoint the enquiry officer either suo motu if the enquiry is ordered by him under sub-rule (2) or on a proposal by a managing committee if the charges are framed by the managing committee.
(4) Where the enquiry is ordered by the Director suo motu, then the enquiry officer shall be a serving Government servant. If the enquiry is proposed by the managing committee then the enquiry officer may be a serving or retired Government servant or a legal practitioner. If a retired government servant or a legal practitioner is appointed as the enquiry officer, then the managing committee shall deposit an amount of Rs.2,000/- with the Director and the same shall be payable to the person appointed as enquiry officer upon completion of the enquiry and submission of the report to the Director. (5) The Director shall take a decision on the report if the enquiry is ordered by him or send the report to the managing committee for a decision if the enquiry had been sought by the managing committee. An appeal shall lie on the said decision to the Education Appellate Tribunal."
9. A perusal of the sub-rule (2) of Rule 28 of the Rules, 2006 leaves no doubt that whenever there are any
- 18 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 allegations of misappropriation or misutilization of Government funds or examination malpractice against an employee of an aided institution, it is only the Director / respondent No.1 who would be competent to initiate a disciplinary enquiry and impose punishment on him/her. In respect of all other charges which are not relating to misappropriation or misutilization of the Government funds or charges of examination malpractice, it is the Institution which alone is entitled to initiate a disciplinary enquiry and impose punishment on any employee, subject however to the condition that such order of punishment is reserved for approval by the competent Authority.
10. A perusal of the seven charges into which the Enquiry Officer has conducted an enquiry shows that they did not even remotely concern to the misappropriation or misutilization of Government funds or examination malpractice. Consequently, the order of the respondent No.3 in rejecting the representation of petitioner to drop the charge Nos.3, 14, 15, 17 and 20 and continuing the enquiry against the petitioner is just and proper and does not call for any interference in this petition. Consequently, this petition does not merit consideration.
- 19 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011
11. It is now stated at the bar that the Enquiry Officer has concluded his enquiry and has submitted a report to the Disciplinary Authority who has not passed any order on the enquiry report but has forwarded a copy of the enquiry report to the petitioner for his comments. It is contended that the Disciplinary Authority has issued a second show cause notice but the petitioner has not submitted his explanation against the action proposed. Therefore, it is prayed that an opportunity be granted to the petitioner to offer his comments on the enquiry report as well as to the show cause notice that is issued by the respondent No.2 to the petitioner.
12. In view of the above, this writ petition is disposed off upholding not only the impugned order dated 11.06.2011 passed by the respondent No.3 but also validity of the enquiry held by respondent No.3 into the seven charges mentioned supra. However, now that it is stated that the report of enquiry is furnished to petitioner, the Disciplinary Authority of the Mahajana Education Society shall issue a second show cause notice, if not already issued, putting the petitioner on notice about the action that it intends to take based on the findings of the respondent No.3. The petitioner is at liberty to submit his
- 20 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 comments on the enquiry report, as well as reply to the second show cause notice, if not already done. After the receipt of the reply of the petitioner and / or if the petitioner has already replied, the Disciplinary Authority of the Mahajana Education Society is directed to proceed in accordance with law. This shall be complied within a period of three months from the date of receipt of a certified copy of this order. IN W.P.No.13658/2014
13. The petitioner, an aided institution has challenged the correctness of an order dated 25.02.2014 passed by the respondent No.3 in Revision Petition No.52/2011 by which he set aside a memo dated 08.11.2010 issued by the petitioner to the respondent No.1.
14. The petitioner, an institution drawing aid from the State, contends that the respondent No.1 was employed as a Principal at one of its aided institutions.
14.1 It alleged that on 16.12.2008, the students of the College went on strike because of the irregularities, malpractices indulged in by the respondent No.1. The petitioner
- 21 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 therefore, was constrained to issue a show cause notice dated 25.04.2009 to the respondent No.1. The respondent No.1 however did not reply to the show cause notice. The respondent No.2 after looking into the allegations against respondent No.1 by letter dated 21.08.2009 recommended to the Secretary, Government of Karnataka, Primary and Secondary Education, Bangalore to grant approval to keep the respondent No.1 under suspension. The Secretary to the Government of Karnataka by letter dated 23.09.2009, granted permission to place the respondent No.1 under suspension pending an enquiry. Consequently, the respondent No.1 was placed under suspension and the articles of charge was issued by the petitioner to the respondent No.1 on 20.10.2009.
14.2 The petitioner thereafter appointed an Advocate as an Enquiry Officer on 08.11.2010. The respondent No.1 filed a statutory Review Petition No.13/2010 under Section 132 of Karnataka Education Act, 1983 challenging the order of his suspension from service as well as the order proposing to conduct a disciplinary enquiry against him.
- 22 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 14.3 In the meanwhile, the respondent No.2 submitted a report dated 01.01.2011 requesting the Reviewing Authority to dismiss the petition filed by the respondent No.1. After hearing the parties, the Reviewing authority passed an order dated 22.03.2011 and allowed the revision petition and directed the respondent No.2 to continue the enquiry.
14.4 The petitioner being aggrieved by the said order, filed W.P No.14855/2011. This Court in terms of the order dated 21.04.2011, held that out of 21 charges framed against the respondent No.1 herein, only 15 charges were pressed. By the said order, charge Nos.1, 2, 8, 9, 10, 11, 12 and 21 were ordered to be deleted as those charges related to misappropriation of Government funds and examination malpractice. It was held that the petitioner was competent to hold an enquiry only in respect of seven charges which did not relate to misappropriation of government funds or examination malpractice. However, this Court reserved liberty to the respondent No.1 herein to raise such contentions before the Enquiry Officer as are available against the seven charges including the contention that the petitioner was not competent to inquire into.
- 23 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 14.5 The petitioner contends that in the meanwhile, a retired District Judge was appointed as the Enquiry Officer by the Government of Karnataka to conduct an enquiry in respect of eight charges which related to the misappropriation and misutilization and examination malpractice allegedly committed by the respondent No.1.
14.6 The petitioner proceeded with the enquiry in respect of the seven charges which did not relate to misappropriation or misutilization or examination malpractice and did not fall within the ambit of sub-rule (2) of Rule 28 of the Rules, 2006.
14.7 When things stood thus, the respondent No.1 by a representation dated 28.05.2011 requested the Enquiry Officer to drop the charge Nos.3, 14, 15, 17 and 20 on the ground that they also related to misappropriation of Government funds and examination malpractice. The representation of the respondent No.1 was considered by the Enquiry Officer on 11.06.2011, who held that the said seven charges did not relate to or pertain to misutilization, misappropriation of Government funds or examination malpractice and therefore the enquiry could proceed against the respondent No.1 herein. The said order
- 24 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 was challenged by the respondent No.1 herein in W.P. No.22800/2011.
14.8 The Enquiry Officer appointed by the petitioner thereafter conducted an enquiry and submitted a report on 30.08.2012 while an Enquiry Officer appointed by the State Government also submitted his report.
14.9 When things stood thus, the respondent No.1 filed Revision Petition No.52/2011 before the respondent No.3 challenging the memo dated 08.11.2010 issued by the respondent No.2 and contended that the appointment of the Enquiry Officer by the petitioner was contrary to sub-rules (2) and (3) of Rule 28 of the Rules, 2006. This revision petition was contested by the petitioner herein. Nonetheless, the respondent No.3 passed an order dated 25.02.2014 setting aside the memo dated 08.11.2010 issued by the petitioner herein appointing the Enquiry Officer.
15. The petitioner contends that the basis on which the respondent No.3 has passed the impugned order is that all the seven charges that were enquired into by the Enquiry Officer also related to misappropriation, misutilization of Government
- 25 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 funds and examination malpractice. He also proceeded to hold that a separate enquiry ought to have been conducted in respect of the seven charges. The petitioner contended that when the seven charges did not relate to or pertain to misappropriation / misutilization of funds or examination malpractice, the petitioner was entitled to pursue the enquiry.
16. Learned counsel for the petitioner submitted that when the charges did not relate to or pertain to misappropriation, misutilization of Government funds and examination malpractice, the petitioner was entitled to pursue the enquiry. He also contended that when the respondent No.1 had appeared and contested W.P.No.14885/2011, he did not challenge the order passed by the Coordinate Bench of this Court permitting the enquiry in respect of seven charges subject to satisfaction by the enquiry officer. He contended that respondent No.1 is therefore, estopped from challenging the memo appointing the enquiry officer to enquire into the seven charges.
17. Per contra, learned counsel for the caveator/respondent No.1 contended that a perusal of the
- 26 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 Charge No.3 related to the examination malpractice, while Charge No.15 related to non-remitting of certain amounts, which invariably related to misappropriation of Government funds. He also contended that Charge No.19 also related to financial misappropriation of funds. He therefore, contended that the impugned order passed by the respondent No.3 is just and proper and does not warrant any interference. He however, submits that when once the petitioner had conceded before this Court that of the twenty one charges only seven charges did not relate to misappropriation, misutilization of Government funds or examination malpractice, it was incumbent upon the petitioner to frame fresh Articles of Charge. He contends that since that was not done, the respondent No.3 was justified in passing the impugned order.
18. I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the caveator/respondent No.1.
19. As rightly contended by the learned counsel for the petitioner, this Court in W.P.No.14885/2011 had examined the fifteen charges that were pressed against respondent No.1 and
- 27 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 found that eight charges related to misappropriation, misutilization of Government funds and examination malpractice and therefore, held that it is the respondent No.2, who alone is competent to conduct an enquiry in view of Rule 28(2) of the Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-aid etc.,) Rules, 2006. In so far as remaining seven charges were concerned, it reserved liberty to the respondent No.1 to file appropriate representations before the enquiry officer, who was directed to consider whether they related or pertained to misappropriation, misutilization of Government funds and examination malpractice. The respondent No.1 did not challenge the order passed in W.P.No.14885/2011. However, by accepting the order, the respondent No.1 filed a representation before the enquiry officer, who was appointed to enquire into the seven charges. The enquiry officer after perusing the contentions urged by the respondent No.1 as well as contents of seven charges, held that it did not in any way relate to or pertain to misappropriation, misutilization of Government funds and examination malpractice and proceeded with the enquiry. The revisional authority/respondent No.3, who entertained a
- 28 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 revision petition filed by the respondent No.1, had unsettled the appointment of the enquiry officer on the premise that W.P.No.22800/2011 is pending consideration before this Court relating to the question whether the Director of Pre-University Education is alone entitled to enquire into the charges framed in view of Rule 28(3) of the Rules, 2006. He also held that unless the petitioner amended the order by issuing suitable corrigendum authorizing the enquiry officer to enquire into seven charges, the appointment of the enquiry officer made pursuant to the memo dated 08.11.2010 issued by the petitioner is not sustainable.
20. A perusal of Rule 28(2) of Rules, 2006 shows that an enquiry against an employee of an aided institution should in all cases be conducted by the Management of the said institution. However, when the allegations relates to misappropriation, misutilization of Government funds and examination malpractice, it is the Director of Pre-university Education Board, who alone is entitled to initiate disciplinary action and pass an order of penalty against the employee.
- 29 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011
21. As rightly contended by the learned counsel for the petitioner, of the fifteen charges that were pressed against respondent No.1, eight charges related to the above and therefore, the said charges were given up by the Management and the enquiry was restricted to seven charges, which did not in any way relate to misappropriation, misutilization of Government funds and examination malpractice. The enquiry in so far as eight charges which related to misappropriation, misutilization of Government funds and examination malpractice was instituted by the respondent No.2 by appointing a retired District Judge, who has now submitted a report. Similarly, enquiry officer, who was appointed to conduct an enquiry in respect of seven charges, which did not relate to misappropriation, misutilization of Government funds and examination malpractice, after carefully considering the charges, has returned a finding that it did not relate to misappropriation, misutilization of Government funds and examination malpractice. The revisional authority/respondent No.3 committed an error of sorts in holding that all the charges had to be enquired into by the respondent No.2.
- 30 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011
22. A perusal of Rule 28(3) of Rules, 2006 shows that in all disciplinary proceedings, it is the Director, who shall be the competent authority to appoint enquiry officer either suo-moto, if the enquiry is ordered by him under sub-rule (2) or on a proposal by a Managing Committee if the charges are framed by the Managing Committee. In the case on hand, in so far as seven charges that were framed against the petitioner, Managing Committee has not proposed to the respondent No.2 to conduct an enquiry. Therefore, it is the petitioner alone who is entitled to conduct an enquiry and impose prescribed punishment on the respondent No.1. The respondent No.3 therefore, committed an error in holding that all the charges had to be enquired by the Director. In that view of the matter, the order passed by the respondent No.3 warrants interference and consequently, deserves to be set aside.
23. In view of the above, this writ petition is allowed. The impugned order dated 25.02.2014 passed by the respondent No.3 in Revision Petition No.52/2011 is set aside. The petitioner is permitted to proceed with the consideration of the report of the enquiry in the manner know to law and in accordance with law, which shall be done within a period of
- 31 -
NC: 2024:KHC:34084 WP No. 13658 of 2014 C/W WP No. 22800 of 2011 three months from the date of receipt of a certified copy of this Order.
24. In view of disposal of the writ petition, pending I.As., if any, do not survive for consideration and the same stand disposed off.
Sd/-
(R. NATARAJ) JUDGE SMA-para Nos.1 to 15 PMR - para No.16 till the end List No.: 1 Sl No.: 1 CT:PH