Karnataka High Court
Sri R V Buthappa vs The Karnataka State Industrial & on 10 September, 2018
Bench: Chief Justice, S G Pandit
W.A.No.2540/2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE S.G. PANDIT
WRIT APPEAL No.2540 OF 2015 (S-DE)
BETWEEN:
SRI. R. V. BUTHAPPA
S/O VENKATARAMANAPPA
AGED ABOUT 51 YEARS
ASSISSTANT GENERAL MANAGER
K.S.I.I.D.C. LTD.,
#407, 3RD FLOOR, MAHENDRA
ARACADE,
KUDMAL RANGA RAO ROAD
KARANGALPADY
MANGALORE-575 003. ... APPELLANT
(BY SRI. RAJESWARA. P. N. ADVOCATE)
AND:
1. THE KARNATAKA STATE INDUSTRIAL &
INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD.,
NO.49, 4TH FLOOR, EAST WING
RACE COURSE ROAD
BANGALORE-560 001.
REPRESENTED BY ITS CHAIRMAN.
2. THE MANAGING DIRECTOR
AND DISCIPLINARY AUTHORITY
THE KARNATAKA STATE INDUSTRIAL &
INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD., NO.49, 4TH FLOOR
EAST WING, RACE COURSE ROAD
W.A.No.2540/2015
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BANGALORE-560 001.
3. SRI. S. RAVI SHANKAR
GENERAL MANAGER
AGE ABOUT 59 YEARS
THE KARNATAKA STATE INDUSTRIAL &
INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD., NO.49, 4TH FLOOR
EAST WING, RACE COURSE ROAD
BANGALORE-560 001. ... RESPONDENTS
(BY SRI. PUTHIGE R. RAMESH, ADVOCATE FOR R1 & R2.
R3 IS SERVED.)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION 50313/2014
DATED 07/07/2015.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, S.G.PANDIT, J, DELIVERED THE
FOLLOWING:
ORDER
This writ appeal is directed against the order dated 07.07.2015 in W.P.No.50313/2014, whereby the learned Single Judge has dismissed the writ petition confirming the order passed by the Appellate Authority - Board of the 1st respondent - Corporation.
W.A.No.2540/2015-3-
2. Brief facts of the case are that :
The appellant/petitioner while working as Assistant General Manager in the 1st respondent - Corporation was issued with charge-sheet dated 28.09.2010. In the charge-
sheet two charges were alleged against the appellant/petitioner, which reads as follows :-
"Charge No.1:
You, Sri.R.V.Buthappa after taking into possession the said secured premises of M/s. Shakthi Cotton Process Pvt. Ltd., (SCPPL) under Section 29 of SFC's Act on 06.02.2008, have clandestinely permitted Sri.Thimma Reddy, Managing Director of SCPPL and his wife Smt. Sujatha to sub-let/rent out two go-downs at the above factory premises to KSWC from 13.3.2009 to 22/29.8.2009 and to collect total rent of Rs.87,775/- (at Rs.2.25 per sft) from KSWC. Again in the year 2010 they have been permitted to similar sub-letting/renting out of the go-downs to KSWC from 11.3.2010 onwards and allowed Sri.Thimma Reddy and his wife Smt. Sujatha to rent out the premises under your possession and have caused damage to the security of the Corporation. You have also not visited the factory premises of SCPPL during the period from 13.3.2009 to 22/29.8.2009 for the reasons known to you. The above act prima-facie shows that the assets of SCPPL were being unauthorizedly utilized for storing maize and other food grains. Thus, you have failed to protect the interest of the Corporation. Hence, the Charge."
Charge No.2 was as under:
W.A.No.2540/2015-4-
"You took into possession the secured premises of M/s.Shakthi Cotton Process Pvt. Ltd. (SCPPL) having its factory premises at Sy.Nos.6/4 B and 6/4 C, Medehalli , Chitradurga Taluk which comprised of the factory premises and industrial godowns (both closed and open) under Section 29 of SFC's act on 06.02.2008 and entrusted security work of guarding the assets so taken over to M/s. Panther Associates, Hubli. Thereafter, you have informed in your Inter Office Notes (ION) recommending payment of Security bills to M/s.
Panther Associates, stating that the security personnel appointed at SCPPL are present and there is no damage whatsoever or theft in the said factory premises, amongst other units coming under the jurisdiction of Hubli Zonal Office. Thus, you have falsely recommended payment of security bills in respect of SCPPL.
From the above, it is clear that the security bills are falsely recommended by you for payment.
By this act of negligence, you have not protected the interest of the Corporation. This is a violation under the Service Rules of the Corporation. Hence the charge."
3. The appellant denied the charges, which necessitated the Board to appoint Enquiry Officer to enquire into the charges levelled against the appellant. Enquiry Officer submitted his report holding that the charges are proved against the appellant. The appellant was issued with second show-cause notice, which was replied by him. The Disciplinary Authority / the Managing Director on W.A.No.2540/2015 -5- consideration of the enquiry report and the reply filed by the appellant herein, by his order dated 28.11.2011 imposed punishment of dismissal of the appellant-petitioner. Aggrieved by the said order of dismissal, the appellant preferred an appeal before the Appellate Authority i.e., Board of the 1st respondent - Corporation.
4. The Appellate Authority - Board allowed the appeal in part and modified the punishment of dismissal to that of demotion to lower grade, bringing his pay to the minimum of the time scale in the cadre of Assistant General Manager and further withholding next three annual increments in the said scale of pay with cumulative effect. Further, it also directed to treat the period from the date of dismissal of the appellant from service till he reports back to duty as leave without pay.
5. Pursuant to the order of the appellate authority, the appellant reported back to duty on 10.06.2013 and thereafter filed review petition before the Board. On 25.11.2013 endorsement was issued stating that there was nothing to reconsider in the matter. Thereafter the appellant/writ petitioner approached this Court in W.P.No.50313/2014 W.A.No.2540/2015 -6- challenging the order dated 05.06.2013 of the Board- Appellate Authority. The learned Single Judge by order dated 07.07.2015 dismissed the writ petition holding that under Article 226 of the Constitution of India, the Court cannot go into factual findings of the case, and that modification of punishment by the Board is not shockingly disproportionate to the misconduct of the appellant/petitioner, against which the instant writ appeal is filed.
6. Heard the learned counsel for the petitioner and learned counsel for the respondents.
7. The learned counsel for the appellant / petitioner urged one and only ground that the Appellate Authority - Board has not considered the ground raised by the appellant in his appeal memorandum and has not applied its mind while taking a decision on his appeal. The learned counsel for the appellant invites our attention to Annexure-A order of the Board, wherein it is only stated that the finding of the Disciplinary Authority to the effect that the charges are proved cannot be disturbed. Further it is noticed from the impugned W.A.No.2540/2015 -7- order of the Appellate Authority that the Board delegated its appellate power to Board's Sub-Committee to hear the appeal. The Committee recommendation was placed before the Board and based on the recommendation of the Board's Sub-Committee, the Board took decision on the appeal filed by the appellant.
8. Per contra, learned counsel for the respondents submits that the Board has considered the appeal of the appellant and on consideration of the appeal, it is partly allowed. The Appellate Authority modified the punishment, from dismissal to that of reinstatement with demotion to lower grade and withholding three annual increments with cumulative effect, on the proved misconduct. Hence, he prays for dismissal of the appeal.
9. We have gone through the order passed by the learned Single Judge as well as the order passed by the Appellate Authority - the 1st respondent. Learned Single Judge was right in holding that this Court under Article 226 cannot go into the factual findings of the case and that the modification of punishment is not shockingly disproportionate to the W.A.No.2540/2015 -8- misconduct committed by the petitioner. But On going through the order of the Appellate Authority, the 1st respondent - Corporation, it is seen that the appellate authority has not at all applied its mind while considering the appeal filed by the petitioner/ appellant. The 1st respondent / Board by one sentence i.e., the finding of the disciplinary authority to the effect that the charges framed are proved cannot be disturbed, modified the punishment of dismissal to that of reinstatement with demotion to lower grade and withholding three annual increments with cumulative effect. The appeal memo filed by the appellant before the Board is produced as Annexure-L to this writ appeal. On going through the appeal memorandum, it is seen that the appellant has taken several grounds in support of his appeal, which have not been considered by the Appellate Authority of the 1st respondent.
10. Further it is noticed from the impugned order of the Appellate Authority at Annexure-A, that the Board delegated its appellate power to the Sub-Committee to consider the appeal, and appellant was given an opportunity by the Sub- Committee of the Board. The recommendation of the Sub- W.A.No.2540/2015 -9- Committee was placed before the Board based on which the 1st respondent took decision on the appeal. The Board of the 1st respondent could not have referred the appeal to the Sub- Committee formed by it, for consideration of the appeal filed by the appellant. The Board is acting as Appellate Authority under The Karnataka State Industrial and Infrastructure Development Corporation Ltd., Service Rules, 1990. Moreover, it is seen that the Board has not independently applied its mind to the material placed before it, while taking a decision on the appeal of the appellant. A duty is cast on the Appellate Authority to pass orders by giving reasons on considering the grounds raised by the appellant in support of his appeal. The order of the Appellate Authority on the face of it, would indicate that the grounds raised by the appellant has not been considered.
11. Therefore, we are of the opinion, that the impugned order dated 05.06.2013 of the 1st respondent - Board, Annexure-A, is liable to be set aside for reconsideration by the 1st respondent - Board in accordance with law. W.A.No.2540/2015
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12. It is informed that the respondent No.3 has since retired from service, even otherwise, looking to the subject matter, we find that the presence of the respondent No.3 is not required in this matter.
13. Accordingly, the impugned order dated 07.07.2015 is set aside and W.P.No.50313/2014 filed by the petitioner is allowed to the extent and in the manner that the impugned order of the Appellate Authority dated 05.06.2013 is set aside and the appeal filed by the appellant/petitioner against the order dated 28.11.2011 is restored for reconsideration of the Board.
14. It is informed that pursuant to the order dated 05.06.2013, the petitioner/appellant has been reinstated in service, albeit at the lower grade, and is continuing in service, Hence, in the interest of justice, it is also provided that the status of the appellant, as existing today, shall be maintained until disposal of the appeal by the Board. However, further terms of the appellant's service shall depend upon the final decision of the Appellate Authority.
W.A.No.2540/2015
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15. It would be expected of the Appellate Authority to take a final decision expeditiously, preferably within 90 days from today.
No order as to costs.
The pending interlocutory applications also stand disposed of.
Sd/ CHIEF JUSTICE Sd/-
JUDGE NG* CT:SK