Karnataka High Court
G.T. Raju vs Karnataka State Road Transport ... on 10 November, 1995
Equivalent citations: 1996(1)KARLJ215, (1996)IILLJ181KANT
ORDER M.F. Saldanha, J.
1. This case raises an interesting issue of some significance as far as the field or service law is concerned.
2. The brief facts relevant to the controversy are that the petitioner, at the relevant time, was functioning as Executive Engineer in the C.E. Division at Gulbarga of the Karnataka State Road Transport Corporation. It is alleged that in relation to certain payments that were due to contractors, that on May 5, 1993 he issued cheques aggregating to Rs. 26,55,565/- and that on the relevant date, the Corporation had a bank balance of only Rs. 2,71,565/-. The added aspect of the matter which is of some significance is that the petitioner had been entrusted with the functions of that post only in the month of April of that year and the record indicates that he was virtually officiating in the post, though he was entrusted with full powers. The regular appointee had arrived in Gulbarga on May 5, 1993 and ultimately took charge on May 13, 1993. The Corporation contends that the petitioner was downright wrong in having issued cheques for such a larger amount, without the requisite funds having been available and that the petitioner was, therefore, charge-sheeted on two counts which substantially lay down that he had misconducted himself, insofar as he had not acted in the best interest of the Corporation.
3. The petitioner's defence was that there was absolutely no doubt about the fact that these amounts were genuinely due and outstanding to the contractors. He contends that, therefore, it was just a matter of clearing the payments and that he had taken two very important precautions, the first being that it has come on record that he had been asking for the funds to be made available and secondly, that he had obtained written assurances from the contractors, that they would not present those cheques for encashment, until the Corporation had made provision for the requisite funds. It is his contention that the last of these facts very clearly demonstrates his bona fides and the fact that he was acting in the best interests of the Corporation and that it was, therefore, wholly impermissible for the authorities to have found fault with his actions. The petitioner had further contended in his defence that the action in question can never constitute misconduct and that the enquiry itself was not competent. The Enquiry Officer submitted an adverse report holding among other things, that the petitioner was a responsible officer of the Corporation and that he was exposing the Corporation to serious risk of litigation and possible prosecution, by issuing cheques, without there being adequate bank balance and that merely obtaining assurances from the contractors that the cheques would not be presented for encashment until financial provision was made, was hopelessly inadequate. The Enquiry Officer held that the conduct of the petitioner did constitute an act of grave misconduct.
4. The Disciplinary Authority, after considering the representation filed by the petitioner against the enquiry report, imposed a punishment of reversion to the post of Assistant Engineer for a period of four years and also held that the period of suspension shall be treated as such. It is this order that has been challenged in the present writ petition.
5. I need to mention here that this Court had declined to grant interim relief and that, therefore, the punishment order had taken effect. An application was made and the matter was argued before me, on an earlier occasion, when it was contended on behalf of the petitioner that this proceeding would be rendered infructuous, since the punishment imposed was already taking effect and therefore, that the order should be stayed. On a careful consideration of the facts, I had refused to vacate the stay order, insofar as I had held in that order, that if the Courts were to stay the punishment order, in the facts and circumstances of this case, it would virtually amount to the quashing of that order, because the petitioner would have had to be restored to the position of Executive Engineer. However, having regard to the fact that the matter required an early decision, it was set down for hearing.
6. The facts are not in dispute and the petitioner's learned Advocate has very vehemently submitted that the charge sheet itself is totally misconceived in law. The principle thrust on his argument is that an act of misconduct must necessarily result in some damaging consequences. But, more importantly, what he contends is that, misconduct presupposes either gross negligence or dereliction of duty or culpable acts of such a nature that require punishment. He contends that where a responsible officer, who is entrusted with the task of making payments to the Corporation's contractors, finds that the payments are in fact due or over due and where he issues the cheques in anticipation of receipt of funds and takes the precaution of ensuring that these cheques are held until the funds are made available, can, under no circumstances be said to have committed any act of misconduct. Learned Advocate submits that the petitioner acted bona fide and in good faith and that every act committed by him was in the discharge of his normal duties, that he has acted honestly at all times, that the Corporation has not been subjected to any loss and in this background of the matter, that the punishment order in question requires to be quashed.
7. On behalf of the Corporation, the learned Advocate has submitted that there was no need for the petitioner to have issued the cheques at all. He states that his successor was to take charge within the next few days, that the petitioner was only holding charge, that undoubtedly he had asked for the funds and that even if the contractors were pressing him for the payments, all that he had to tell them was that these would be released as soon as the funds were made available. The learned Advocate submits that this Court will have to draw its own inference from the aspect of hurry that was demonstrated in this case and from the fact that the amount involved was very large. He also submits that there was no special ground or reason that has been put forth for the sudden payment of this huge amount of money and that consequently, in cases of this type, the Court will have to draw an adverse inference. The learned Advocate has relied on a decision of the Supreme Court in Union of India and Ors. v J. Ahmed, (1979-II-LLJ-14). The Supreme Court in this case was dealing with a public servant and had occasion to examine in great detail, the various ingredients of the concept of misconduct. The Court had occasion to examine the definition of misconduct as it appears in Stroud's Judicial Dictionary, wherein the learned author had occasion to illustrate as to what acts do not conslitute misconduct. What is submitted by the learned Advocate is, as indicated by the Supreme Court in that decision, that it is not always necessary in all cases to demonstrate that serious loss or damage had, in fact, resulted. But he submits that, even if the action comes in the category of those instances which expose the employer or organisation to the possibility of such adverse situations, that the employee cannot be said to be acting in the best interests of the Corporation. He, therefore, submits that on an overall consideration of the facts of this case, the Court ought not to interfere insofar as the misconduct was relatively serious and the petitioner has got away only with an order of demotion. ' Learned Advocate did raise a second objection, namely, that the petitioner ought to have availed of the appeal remedy. I do concede that where an alternate remedy is available, the writ jurisdiction would be barred, but to my mind, it is rather late in the day to raise this objection, which ought to be put forth at the earliest point of time, so that the matter could have been remanded to the appropriate authority. That course of action having not been followed and the matter having been heard by this Court, this is hardly the stage at which a remand is advisable. This does not, however, mean that it will constitute a licence to other litigants to bye-pass the alternate remedy and approach this Court directly.
8. The issue before me is within a very narrow compass. It is undoubtedly true that the petitioner possessed the power to make the payments in question and I do agree that there is some substance in the arguments canvassed on his behalf that the payment due from a public authority should not be kept pending unnecessarily. In fact, such a course of action is what would adversely affect the stature and standing of the Corporation, but, at the same time, one needs to take cognisance of the fact that all persons holding a position such as the one that the officer occupied are required to function at all times with an extremely high degree of responsibility and integrity. It is at these levels that the responsibility of dealing with large amounts of money arises and it is at these levels that the responsibility of dealing with large amounts of money arises and it is at these levels that the officers must also take serious note of the consequences or the possible consequences of their acts. It is true that the amounts had to be paid to the contractors and it is true that the petitioner did ask for the provision of the funds. The fact remains that on May 5, 1993, those funds were not available and to my mind, therefore, the Corporation is justified in its objection, when it states that the cheques in question ought not to have been issued, without the requisite funds being available. The petitioner has undoubtedly obtained assurances from the contractors that the cheques would not be presented for payment, unless the funds were made available. Those assurances are only paper assurances and would not have prevented the contractors from enforcing their claims, if they desired to do so, in which case, the Corporation could have opened itself to a series of litigations and prosecutions or other embarrassing consequences. The fact that this did not happen is fortunate, because, if it had happened, then the petitioner would undoubtedly have been held responsible for that situation. Even as the matter stands, however, I am unable to accept the plea that there was 100% justification for the issuance of cheques on that date. Even the exercise of powers, to my mind, requires that it must be properly exercised and to that extent, the fault does undoubtedly lie with the petitioner.
9. The only question that calls for determination in this case is whether that in a situation such as the present one, which is virtually a border line case, and where, to my mind, ultimately the charges are nothing more than technicalities, as to how grave should the consequences of that action be. The record indicates that the petitioner was placed under suspension and he has consequently suffered considerably. Thereafter, the punishment order has taken effect and the same is still in operation. The petitioner has been working in the lower post and has, therefore, lost a considerable amount of money as a result of this. To my mind, having regard to the fact that the charges would ultimately be rendered virtually technical and the fact that no loss, damage or prejudice occurred to the Corporation, an appropriate order would be that even though the Court does not interfere with the findings recorded against the petitioner, except to the extent that they are diluted by virtue of the observations of this Court that the order should be limited up to December 31, 1995. As a necessary consequence, the petitioner would have to be restored to the post of Assistant Executive Engineer, with effect from January 1, 1996.
10. The petition partially succeeds. The order passed by the Managing Director of the Corporation is modified to the extent that it is directed that the petitioner shall be restored to the post of Assistant Executive Engineer with effect from January 1, 1996 and not from any later date.
The petition accordingly stands disposed of. In the circumstances of the case, there will be no order as to costs.