Karnataka High Court
The State Of Karnataka vs Sri. T H Jamadar S/O. Hassan Jamadar on 1 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
-1-
NC: 2023:KHC-D:8063-DB
WP No. 104653 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 104653 OF 2021 (S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA,
R/BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT,
M.S. BUILDING,
BENGALURU-560001.
2. THE COMMISSIONER OF SURVEY,
SETTLEMENT AND LAND RECORDS,
K.R. CIRCLE, BENGALURU-560001.
3. THE ASSISTANT DIRECTOR OF LAND RECORDS,
DEPARTMENT OF SURVEY,
SETTLEMENT AND LAND RECORDS,
HUKKERI-591309,
ROHAN BELAGAVI DISTRICT.
HADIMANI
T ...PETITIONERS
Digitally signed by
ROHAN HADIMANI
T (BY SRI G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)
Location:
HIGHCOURT OF
KARNATAKA-
DHARWAD BENCH
Date: 2023.08.08
10:30:12 +0530 AND:
SRI T.H. JAMADAR S/O. HASSAN JAMADAR,
AGED ABOUT 43 YEARS,
SURVEYOR (NOW UNDER DISMISSAL),
OFFICE OF THE ASSISTANT,
DIRECTOR OF LAND RECORDS,
DEPARTMENT OF SURVEY,
-2-
NC: 2023:KHC-D:8063-DB
WP No. 104653 of 2021
SETTLEMENT AND LAND RECORDS,
HUKKERI-591309, BELAGAVI DISTRICT.
...RESPONDENT
(BY SRI SUNIL S. DESAI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION PRAYING TO SET ASIDE THE
ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED
ORDER PASSED BY HON'BLE KARNATAKA STATTE
ADMINSITRATIVE TRIBUNAL BELAGAVI BENCH IN
APPLICATION NO.3099/2019 DATED 21.07.2020 VIDE
ANNEXURE-C.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S.R. KRISHNA KUMAR, J., MADE THE
FOLLOWING:
ORDER
This petition by the State is directed against the impugned order dated 21.07.2020 passed by the Karnataka State Administrative Tribunal, Belagavi (for short, 'KSAT'), whereby the Application No.3099/2019 filed by the respondent seeking quashing of the order dated 15.05.2018 passed by the 2nd petitioner and the order dated 08.04.2019 passed by the 1st petitioner/state were set aside by the KSAT.
2. The material on record discloses that pursuant to the a complaint lodged jointly against the respondent/Surveyor and the Assistant Director of Land Records (ADLR), a joint enquiry was conducted which culminated in the order dated 15.05.2018 -3- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 passed by the Commissioner of Survey, Settlement and Land Records, whereby it was held that charges leveled against the ADLR were not proved, a joint enquiry was sought to be initiated against the respondent and the ADLR, who challenges the same before the KSAT in Application No.165/2016 which was allowed vide order dated 08.11.2016 setting aside the enquiry only insofar ADLR is concerned. Accordingly, the enquiry proceedings continued as against the respondent herein (Taluka Surveyor) which culminated in the order dated 15.05.2018 passed by the 2nd petitioner and subsequent order dated 08.04.2019 passed by the 1st petitioner/State by virtue of which, the respondent was dismissed from the service.
3. Aggrieved by the same, the respondent preferred the instant Application No.3099/2019 before the KSAT Belagavi. After hearing the parties, the KSAT came to the conclusion that the charge No.1 which was held to be proved as against the respondent was based on erroneous and improper appreciation of the material on record as well as without following the proper procedure and consequently, the KSAT proceeded to pass the impugned order allowing the Application No.3099/2019 and setting aside the orders dated 15.05.2018 -4- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 and 08.04.2019 passed against the respondent by holding as under :
"9. The enquiry officer while holding that second part of the allegation No.3 is proved that allegation is the applicant before entering their names required to follow procedure contemplated under Sections 127 & 128 of Karnataka Land Revenue Act and if necessary by inspecting the spot required to make entries is the first part, if that part is not proved holding that he has issued the notice, thereafter obtained signatures and passed the orders. Whereas in the second part made by the enquiry officer is that he required to obtain the permission as required under Section 17 & 41-C of Karnataka Town and Country Plan Act and obtaining the blue print from the said authority, which allegation is proved holding that it is not obtained. The enquiry officer failed to consider that the applicant is a concerned surveyor, he required to effect the changes based on the order passed by the higher authorities i.e., ADLR. That being the situation, he is in respect of said charge for not obtaining, on the other hand, if such a thing is required to be obtained, the ADLR who is the authority who ordered for change before passing the order required to be obtain such permission & Blue print. On the other hand, the said ADLR upon retirement he was let out the applicant who obeys the order of the ADLR has effected the entries, thus conclusion that allegations have proved is erroneous & same is without evidence. On the other hand, very same entries after knowing the fact that the letter based on which the entries have been made found that said letter is fake letters, immediately thereafter, based on the directions of the ADLR, he cancelled the said entries, if such a cancel is upheld to be valid as he being surveyor, now finding fault with the initial action holding that the same is perverse is not permissible. That being the fact, without considering the same, submitting the finding holding him guilty is erroneous. Even -5- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 otherwise, in view of the facts, nothing is happened for having cancelled the said entries upon finding that it is based on fake letters, that fake letters has come to light only after entries have been made upon the receipt of subsequent letter, which aspect is accepted by the witnesses, as such the action initiated to dismiss the applicant from service on such allegation is excessive which takes away his livelihood for having followed the necessary directions issued by the higher authorities and subsequently, it is rectified based on the direction of very same higher authorities. Under the circumstances, the punishment imposed is shocks the conscious of anybody and this Tribunal as he was kept out of service and his livelihood is taken away as none of the witness has stated that the motive behind making such an entry, in the absence of such an evidence, ultimately it amount to dereliction of duty thereby the punishment is shocking. circumstances, it calls for interference.
10. The contention raised by the applicant with regard to non- consideration of materials which are available and which is brought to the notice when second show cause notice is issued by submitting the explanation at Annexures-A12 dated 28.03.2018. It is settled principle of law that once the explanation is given to- the second show cause notice bringing to the notice that how the report of enquiry officer is perverse and same is without being any legal admissible evidence, on such submission, it is required to consider by recording reasons. This aspect of the matter is considered by this Tribunal in the case of Yuvaraj Naik cited supra and Hon'ble High Court in H.R.Ravindranath Vs. Syndicate Bank (ILR 2005 KAR 2350) in which High Court referring to various decisions i.e., Managing Director, ECII VS. B.Karunakar (AIR 1994 SC 1075), Punjab National Banks ors Vs. Kunj Behari Misra (AIR 1998 SC 2713), State Bank of Patiala & ors VS. S.K.Sharma (AIR 1996 SC 1669), Canara Bank & ors Vs. Sri Debasis Das & others (AIR 2003 SC 2041) and Alexander Machinery (Dudley) Ltd. Vs. Crabtree -6- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 (1974 ICR 120) and other cases. Wherein it is held at paras 17 & 18 which reads as hereunder:
. 17. Even before issue of second show cause notice and considering the representation of the delinquent employee, the disciplinary authority should not come to any definite conclusion or finding. It should keep an open mind. It must record its tentative reasons for differing from the findings of the enquiry officer, to enable the delinquent to know the mind of the disciplinary authority, so that he has an opportunity to persuade to change the mind. But, if the authority makes up its mind before issue of second show cause notice and embarks upon a post decisional hearing, it will naturally proceed with a closed mind and there is hardly any chance of getting a proper.
consideration at a post decisional opportunity. Once a decisión has been taken there is a tendency to uphold it. and/ representation may not really yield any fruitful purpose.
18. The order holding the delinquent guilty should contain reasons. Giving reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice.
Reasons are live-links between the mind of the decision taker to the controversy in question and the decision or conclusions arrived at. Reasons substitute subjectivity by objectivity. Right to reasons is an indispensable part of a sound judicial system. Reasons at least sufficient to indicate an application of mind to the matter dealt with, so that the affected party can know why the decision has gone against him.
11. From the said decision and on perusal of the order dated 15.05.2018 (Annexure-A13) it is clear that the 1st respondent has simply referred to -7- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 the fact that applicant has filed the explanation to the second show cause notice. On the other hand, it is not considered as required under law. Thereby, it can be held that the authority has not considered the representation or explanation, thereby it calls for interference and the same is contrary to law. Similarly, 1st respondent has not considered the- Appeal as required under Rule 25 of KCS(CCA) Rules. On the other hand, simply entered/endorsed the remarks given by the 2nd respondent and stating that the enquiry officer has considered the materials and find him guilty, thereby that does not call for interference and rejected the Appeal filed by the applicant. From the order, it can be construed that same is not in-conformity with Rule 25 of KCS(CCA) Rules. Hence, it also calls for interference Under the circumstances, by considering all the materials following order is passed.
ORDER The application is allowed and the order bearing No.sibbandi.sistu(Bel)33/2011-12 15.05.2018 (Annexure-A13) passed by the 2nd respondent and order bearing No.Kam.e.414 Boodane (3) 2018 dated 08.04.2019 (Annexure-A16) passed by the 1st respondent are hereby set aside.
Official respondents are at liberty to hold the fresh enquiry in the matter, if necessary."
4. Upon re-appreciation and re-evaluation of the entire material on record, we are of the considered opinion that the KSAT has correctly and properly considered and appreciated the entire material on record and has arrived at a correct conclusion that the respondent was not guilty of the charges leveled against him. Under these circumstances, we are of the -8- NC: 2023:KHC-D:8063-DB WP No. 104653 of 2021 view that the impugned order passed by the KSAT does not suffer from any illegality or infirmity nor can be same be said to be perverse, capricious or contrary to the material on record warranting interference by this Court in the present petition. Accordingly, petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE CKK