Karnataka High Court
Sri. K.N. Khanappanavar, vs The State Of Karnataka on 19 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 19 T H DAY OF JANUA RY 2018
BEFORE
THE HON'BLE MRS . J USTICE K.S .MUDAGAL
WRIT PETITION N OS. 104090- 099/ 2016 (S-KSRTC)
BETWEEN:
1. SRI K.N . KHANA PPANAVAR,
AGE: 59 YEARS , OCC: DIRECTOR
FINANCE & FINAN CIAL ADVISER,
NORTH EAST ERN K ARNATAKA ROAD
TRANSPORT CORPORATION,
CENTRAL OFFICE, SARIGE SADAN ,
MAIN ROAD, KALA BURAGI ,
DIST: KALABURA GI.
2. SRI T.D .PRAD EEP KUMAR,
AGE: 54 YEARS , OCC: ASSISTANT
MECHANICAL ENGI NEER,
N.E.K.R.T.C REGIONAL WORK SHOP,
YADAGIRI, DIST: KALABURAGI .
3. SRI CHITTAWADIGEPPA,
AGE: 48 YEARS ,
OCC: ACCOUNTS S UPERINTEND ENT,
N.E.K.R.T.C. KOPPAL DIVISION ,
KOPPAL, DIST: K OPPA L.
4. SRI T.R.MANJUNAT H,
AGE: 41 YEARS ,
OCC: ASSISTANT ACCOUNTS OFFI CER,
K.S.R.T.C. DAVAN AGERE DIVISION,
DAVANAGERE, DIS T: DAVANAGERE.
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5. SRI R.V .PURANIK,
AGE: 41 YEARS ,
OCC: DIVISIONAL MECHANICAL ENGI NEER,
N.E.K.R.T.C. CENTRAL OFFICES ,
SARIGE SADAN , M AIN ROAD ,
KALABURAGI , DIS T: KALABURA GI.
6. SRI B.S .GADDIKERI,
AGE: 59 YEARS , OCC: W ORKS MANA GER,
N.W.K .R.T.C. REGI ONAL W ORK S HOP,
HUBBALLI, DIST: DHARWAD.
7. SMT..MANJULA H. DANDIGADASAR,
AGE: 45 YEARS , OCC: ST ORE OFFICER,
N.W.K .R.T.C. HUBBALLI DIVISI ON,
HUBBALLI, DIST: DHARWAD.
8. SRI G.SURES H,
AGE: 52 YEARS ,
OCC: DEPOT MANA GER PAWAGAD ,
K.S.R.T.C. TUMAK UR DIVISION ,
TUMAKUR, DIST: T UMAKUR.
9. SRI NAGESH PRAS ANNA,
AGE: 31 YEARS ,
OCC: ASSISTANT MECHANICAL ENGI NEER,
N.E.K.R.T.C. DIVI SIONAL W ORK SHOP,
HOSPETH DIVISION, HOSPETH,
DIST: BALLARI .
10. SRI CHANDRAKAN T.M. HOSMANI,
AGE: 55 YEARS , OCC: ST ORE K EEPER,
N.W.K .R.T.C. REGI ONAL W ORK S HOP,
HUBBALLI, DIST: DHARWAD.
... PETITIONERS
(BY SRI M S HARA VI, ADV OCATE.)
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AND:
1. THE STATE OF KARNATAKA
REPRES ENTED BY ITS SECRETARY
TO TRANSPORT D EPARTMENT,
M.S. BUILDIN G, BENGALURU- 560001.
2. THE MANAGING DI RECTOR/
DISCIPLINARY A UT HORITY,
K.S.R.T.C. CENTRAL OFFI CES ,
K.H.ROAD , SHANT I NAGAR,
BENGALURU- 560027.
3. THE MANAGING DI RECTOR,
NORTH EAST ERN K ARNATAKA ROAD
TRANSPORT CORPORATION,
CENTRAL OFFICES , SARI GE SADAN
MAIN ROAD, KALA BURAGI- 585102.
4. THE DIVISIONAL CONTROLLER,
N.E.K.R.T.C. KOPPAL DIVISION
KOPPAL, DIST: K OPPA L.
... RES PONDENTS
(BY SMT.VEENA HEGDE, ADD L. GOV ERNMENT ADVOCA TE,
FOR R.1;
SRI SHIVAKUMAR S. BADAWADA GI, ADVOCATE, F OR R.2;
SRI RAVI V . HOSM ANI, ADV OCATE, F OR R.3 AND R.4.)
THESE WRIT PETI TIONS ARE FI LED UNDER ARTICLES
226 AND 227 OF T HE CONSTITUTI ON OF INDIA, PRAYING TO
QUASH THE CHARGE SHEET DATED 05/07.04.2016 I SSUED
BY THE 2 N D RES PONDENT AS PER AN NEXURE- Q, ETC.,.
THESE PETITIONS COMING ON FOR F URTHER HEARIN G
THIS DAY, T HE COURT MADE THE F OLLOWING:
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ORDER
Heard.
2. The petitioners are working under 3rd respondent in various posts. Vide resolution Annexure-G dated 8.11.2004, the 3rd respondent decided to establish Regional Workshop of Yadgiri temporarily at Koppal. The petitioners were incharge of the affairs of the said Regional Workshop in various capacities. The said Regional Workshop was in operation from 1.4.2005 to 30.9.2008.
3. In January 2014, the third respondent reported to the 1st respondent that in Regional Workshop, Koppal defalcation of funds has taken place and the matter be investigated. Having regard to such report, the 1 s t respondent under Government Order dated 10.02.2014 constituted a Five Members Committee to conduct inquiry into the matter and submit the report.
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4. The said Committee conducted the inquiry and submitted the report Annexure-P. In the said report, the Committee opined that 22 officers named therein including the petitioners have committed misappropriation and embezzlement to the tune of about Rs.2,92,97,508/-. Based on such report, the 2 n d respondent initiated D.E. and issued Annexure-Q the charge sheet dated 5/7.04.2016 to the petitioners and others.
5. The petitioners assail Annexure-Q the charge sheet in the above writ petitions on the following grounds:
(i) Respondent No.2 is not competent to initiate disciplinary inquiry against the 1 s t petitioner;
(ii) There is inordinate delay in initiating disciplinary proceedings. Therefore Annexure-Q is vitiated; 6
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(iii) The charges issued against the petitioners are unspecific/ambiguous;
(iv) The charges are all false.
6. Sri M.S.Haravi, the learned counsel for the petitioners reiterating the grounds of the petition seeks to assail the charge sheet Annexure-Q on the following grounds:
(i) That petitioner No.1 and respondent No.2 are the officers of the same cadre.
Therefore, respondent No.2 is
incompetent to initiate disciplinary
enquiry;
(ii) The alleged misappropriation has taken
place between 2005 and 2008, but the disciplinary enquiry is initiated in 2016, that is after about 10 years. Therefore, Annexure 'Q' the charge sheet is vitiated;7
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(iii) The charges framed against the petitioner are all vague and against all the petitioners very similar charges are framed;
(iv) The charges are all baseless and false;
(v) Some of the employees who are retired are already exonerated. Therefore, continuation of the disciplinary proceedings against the petitioners amounts to discrimination.
7. In support of his contentions, he relies upon the following judgments:
(a) State of Madhya Pradesh Vs. Bani Singh and Another, 1990 Supp SCC 738;
(b) P.V.Mahadevan Vs. Managing
Director, T.N.Housing Board,
(2005) 6 SCC 636;
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(c) Anant Kulkarni Vs. Y.P.Education
Society and others, (2013) 6 SCC 515;
(d) B.Hanumanthappa Vs. Management of KSRTC, Bangalore, (1997) 1 KarLJ 65.
8. Smt.Veena Hegde, learned AGA for respondent No.1, Sri.Shivakumar S.Badawadagi, learned counsel for respondent No.2 and Sri.Ravi V.Hosamani, learned counsel for respondent Nos.3 and 4 seek to sustain Annexure 'Q' and oppose the petition on the following grounds:
I) Mere issuance of the charge sheet does not affect the right of the petitioners.
Therefore, they cannot maintain the petitions;
II) Petitioner No.1 is an employee of the 2 n d respondent. As per Karnataka State Road Transport Corporation Servants (Conduct 9 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 and Discipline) Regulations, 1961, respondent No.2 is the disciplinary authority for all the petitioners including petitioner No.1. Therefore, he is competent to issue the charge sheet Annexure 'Q'. III) So far as the delay, at the relevant time petitioner No.1 was the Chief Accounts Officer and the Financial Adviser and the embezzlement was surfaced only when the Vigilance Officer by name Sri.S.T.Doddamani reported the same in 2014. Thereafter, the Government constituted a Committee in 2014 and report Annexure 'P' was received in 2015. Only on receipt of report Annexure 'P', the misconduct was surfaced. Thereafter, the Government scrutinized Annexure 'P' and took decision by following its administrative procedure. Immediately, 10 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 thereafter the charge sheet Annexure 'Q' is issued. Therefore, there is no intentional delay on the part of respondents in initiating the departmental enquiry; IV) Annexure 'Q' shows that against each of the employees, specific charges are framed and served. Even otherwise they can raise that defence in the inquiry. No case of prejudice is made out by the petitioners for initiation of the proceedings;
V) In a matter involving grave charges, the delay becomes inconsequential. In such cases, generally the charge sheet shall not be quashed;
VI) In support of their contentions they rely upon the following judgments:
(a) Secretary, Ministry of
Defence and Others vs.
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Prabhash Chandra Mirdha,
(2012) 11 SCC 565;
(b) Anant Kulkarni Vs.
Y.P.Education Society and
others, (2013) 6 SCC 515;
REG. COMPETENCE OF RESPONDENT No.2:
9. It is contended that under Annexure 'H', the Governor has appointed petitioner No.1, therefore, he is the employee under the State of Karnataka, therefore, he is governed by the Karnataka Civil Service Rules, 1957 and not by the KSRTC (Cadre and Recruitment) Regulations, KSRTC (Conduct and Discipline) Regulations, the Road Transport Corporation Rules and KSRTC Rules.
10. In paragraph 4 of the petition, the petitioner No.1 himself admits that he was basically an employee of the Corporation and he is only promoted to the post of Chief Accounts Officer. Thus, as per his own admission, till his promotion, he was 12 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 governed by the KSRTC (C&R) Regulations. The post of Chief Accounts Officer Class-I is created under the KSRTC (C&R) Regulations only.
11. The mode of recruitment to the said post in the said Regulations is stated as follows:
"2. CATEGORY:- CHIEF ACCOUNTS OFFICER (CLASS-I SELECTION GRADE) By promotion Must have rendered a By Selection service of not less than three(3) years as Class-
I Senior Officer in accounts Department or with lien in Accounts Department.
OR
By Direct (a) A post Graduate
Recruitment Degree in Commerce or
Under MBA in Finance from a
Regulations-3(4) University established by law or Chartered Accountancy or Associationship of Indian Institute of Cost and Works Accounts.
(b) Experience of not less than ten (10) years in Financial Management in a Commercial Undertaking.13
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(c) Knowledge in Computer Application is essential.
(d) Must not be above 45 years of age."
12. The above Rule makes it clear that the post of Chief Accounts Officer either could be by selection by promotion or by direct recruitment under Regulation No.3(4).
13. Regulation No.3 deals with the method of recruitment. Regulation No.3(4) states that appointment to a post in the Corporation shall be made by promotion, transfer, etc. and direct recruitment can be made only where suitable candidates by promotion are not available. The criteria for selection by promotion and by direct recruitment are totally different. Petitioner No.1 is selected as Chief Accounts Officer Class-I Selection grade i.e., as an in service candidate by promotion. 14
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14. Rule 18 of Karnataka State Road Transport Corporation Rules, 1961 is relied upon by the learned counsel for the petitioners to contend that they are governed by KCSRs and not by the Boards Regulations. Rule 18 reads as follows:
"18. Disciplinary Action:- The Managing Director or the Chief Accounts Officer and Financial Adviser or Chief Accounts Officer-cum- Financial Adviser as the case may be who:-
a) is a Government servant deputed to the Corporation, so long as he is in Government service on the recommendation of the Board shall be subject to disciplinary action by the Government according to the rules applicable to Government Officers;
and
b) is not a Government Servant or being a Government servant has ceased to be in Government Service, shall be subject to disciplinary action by the Board."
15. A reading of the above provision makes it clear that if a Government servant is deputed to the Corporation, then the Rules applicable to the 15 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 Government officers relating to the disciplinary action applies to him. Rule 18(b) makes it clear that, if the Chief Accounts Officer and Financial Adviser or Chief Accounts Officer-cum-Financial Adviser is not a Government servant, he shall be subject to disciplinary action by the Board. Therefore, there is no merit in the contention that petitioner No.1 is governed by the KCSRs and not by the KSRTC (C&D) Regulations and Recruitment Rules of the 2nd respondent Corporation.
16. KSRTC (C&D) Regulations, 1971 prescribes the disciplinary authority and appellate authority for different classes of officers/officials. As per entry No.1 of the schedule to the said Regulations for Class-I, Senior and above officers, the Managing Director of the Corporation is the disciplinary authority and the Board of Directors of the Corporation are the appellate authority. 16
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17. Petitioner No.1 has not challenged those Regulations. Thus, he is governed by the same Regulations. Therefore, as per the said Regulations, the disciplinary authority for petitioner No.1. Having regard to that, there is no merit in the contention that respondent No.2 is not competent to issue articles of charges Annexure 'Q' to petitioner No.1.
18. So far as other petitioners, there is no dispute that respondent No.2 is the competent officer and the disciplinary authority. Therefore, the contention that articles of charges Annexure 'Q' are issued by the incompetent officer and hence vitiated, is unsustainable.
REG. DELAY:
19. Admittedly, petitioner No.1 himself was the Chief Accounts Officer and Financial Adviser of respondent No.3 and when the temporary regional 17 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 workshop at Koppal was established from 2005 to 2008, the petitioners were looking after the affairs of the same. Though the petitioners contend that petitioner No.1 himself reported some irregularities in the operation in Koppal Regional Workshop and since then, no action was taken, the perusal of Annexure 'K' report shows that the said irregularities were not reported to the higher officers of the Corporation. Annexure 'K' is only an internal communication between petitioner No.1 and his subordinates. Therefore, the knowledge of the same cannot be imputed to the respondents.
20. There is no dispute that the report regarding alleged misappropriation and embezzlement was submitted to respondent No.3 in the year 2014 by the Vigilance Officer. Thereafter, the high level committee is constituted under the Government Order dated 20 t h February 2014. The Committee has 18 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 submitted report on 27 t h January 2015 as at Annexure 'P'.
21. Then the Government has examined the report and accepted the same. Therefore, article of charges Annexure 'Q' is issued on 05 t h April 2016. All this process has occupied a period of about two years. The alleged misappropriation and embezzlement was spread over for a period of three to four years. The alleged amount of misappropriation is around Rs.3,00,00,000/-. The employees involved in such misconduct are 22 in all. All these facts indicate the magnitude of the work involved in submitting the report and taking the decision. Therefore, it cannot be said that there was any undue intentional delay on the part of the respondents in initiating the disciplinary enquiry. The huge amount of Rs.3,00,00,000/- involved in the case shows the gravity of the matter.
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22. In Anant Kulkarni's case and Secretary, Ministry of Defence and others case, referred to supra, the Hon'ble Supreme Court has held that mere delay in initiating the disciplinary action does not entail quashing of the proceedings. The legal principles in the matter are summarized in paragraph 12 of the judgment in Ministry of Defence case referred supra as follows:
"(1) Thus, the law on the issue can be summarised to the effect that charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings;
(2) Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it would be a 20 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 premature stage to deal with the issues;
(3) Proceedings are not liable to be
quashed on the grounds that
proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee;
(4) Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
(Emphasis supplied)
23. Even in the judgments relied upon by the learned counsel for the petitioners on delay aspects, it is held that the unexplained delay may be a cause for quashing the proceedings, but not the delay in all the cases. In this case, the respondents have explained the delay in initiating the proceedings. Having regard to the facts of the case and the 21 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 judgments referred to supra, the contention that the delay has vitiated the charge-sheet Annexure 'Q' is unsustainable.
REG. UNSPECIFIC CHARGE:
24. It is contended that the charges are vague and unspecific, therefore, they are liable to be quashed. The perusal of Annexure 'Q' shows that against each of the petitioners, separate charges are framed. It is not that the identical charges against all the petitioners in a cyclostyled form are issued. Even otherwise, it is open to the petitioners to appear before the inquiry officer and take all the contentions available to them. That has not prejudiced their defence. This Court while exercising the power of superintendence under Articles 226 & 227 of Constitution of India cannot relegate itself to the position of an enquiry officer or disciplinary authority 22 W. P .N o s .1 0 4 0 9 0 - 0 9 9 / 2 0 1 6 and sift all minute aspects of the article of charges issued against the petitioners.
REG. DESCRIMINATION:
25. Nine other employees who were indicted in the report are already exonerated. Regulation No.18 of KSRTC (C&R) Regulations of the respondent Corporation provides for conducting the disciplinary enquiry and imposing penalty on a Corporation servant and not on an former servant of the Corporation or a retired servant of the Corporation. Therefore, by operation of the said Regulations, the retired employees are exonerated from the rigors of the disciplinary enquiry or the penalty. It is not the designed or intentional exoneration by the respondent Corporation. Therefore, it cannot be said that the Corporation has discriminated between the petitioners and the retired employees. Therefore, there is no merit in that contention also.
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26. Having regard to the aforesaid facts and the legal principles enunciated in the Ministry of Defence case referred to supra, there are no grounds to interfere. Therefore, the petitions are dismissed.
Sd/-
JUDGE Para 1-4: MRK/-
Para 5-end: RK/-