Sri K B Lenkennavar vs State Of Karnataka on 9 April, 2013

[Cites 31, Cited by 0]

Karnataka High Court

Sri K B Lenkennavar vs State Of Karnataka on 9 April, 2013

Equivalent citations: 2015 (3) AKR 579

Bench: Aravind Kumar

                           1



IN THE HIGH COURT OF KARNATAKA AT BANGALORE

       DATED THIS THE 9TH DAY OF APRIL, 2013

                      BEFORE

   THE HON'BLE MR.JUSTICE ARAVIND KUMAR

             W.P.NO.5071/2012 (S-DE)
BETWEEN:

Sri.K.B.Lenkennavar
Aged about 58 years,
S/o B.M.Lenkennavar
Former District & Sessions Judge
Residing at "Malaprabha",
No.205, National Games Village,
Koramangala,
Bangalore - 560 047.                     ..Petitioner

(By Sri.S.V.Narasimhan, Advocate)

AND:

1. State of Karnataka
By its Secretary,
DPAR, Vidhana Soudha,
Bangalore - 560 001.

2. Registrar General
High Court of Karnataka,
Bangalore - 560 001.                   ..Respondents


(By Sri.Raghavendra G.Gayathri, AGA)
                            2



      This writ petition is filed under Article 226 of the
Constitution of India praying to call for the records
pertaining to Government Order dated 28.04.2009 of
the R-1 vide Annexure-J and peruse the same, quash
the order dated 28.04.2009 of the R-1 at Annexure-J
and direct the respondents to reinstate the petitioner
into service with all consequential service and monetary
benefits by issue of a writ of mandamus to the
respondents.

      This writ petition coming on for final hearing this
day, the Court made the following:

                         ORDER

Petitioner (hereinafter referred to as DJO - Delinquent Judicial Officer) was appointed to the post of District Judge in Sub-ordinate judiciary by direct recruitment on 15.05.1996. He was dismissed from services by invoking Rule 8 (viii) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as CCA Rules) by order dated 28.04.2009 Annexure-J. DJO is seeking for quashing of the said order dated 28.04.2009 Annexure- J by issue of writ of certiorari and for consequential directions to the respondents to reinstate him into 3 service with consequential service and monetary benefits by issue of writ of mandamus.

2. DJO was issued with articles of charges on 06.09.2005 Annexure-A by High Court of Karnataka (hereinafter referred to as Disciplinary Authority) Bangalore and nine charges were levelled against the DJO. On receipt of articles of charges DJO has submitted his written statement or reply to the articles of charge on 17.10.2005. Reply submitted by DJO to the charges, came to be considered by the Administrative Committee-I (AC-I) in its meeting held on 14.11.2005 and it was resolved to recommend to the full court to keep the DJO under suspension with immediate effect. Administrative Committee-I had also recommended appointment of Justice Sri.R.Gururajan as the inquiring authority. Said recommendation of Administrative Committee-I was accepted by full court in its meeting held on 23.11.2005. Accordingly DJO was placed under 4 suspension with effect from 30.11.2005. High Court by notification dated 01.12.2005 appointed a sitting Judge of this court namely Justice Sri.R.Gururajan as inquiring authority to inquire into charges levelled against the DJO. Inquiry was held and on behalf of prosecution 12 witnesses were examined and 62 documents came to be marked. On behalf of DJO he got himself examined and got marked 27 documents. After considering the oral and documentary evidence and taking note of the arguments advanced by respective learned advocates appearing for the parties, inquiry authority held that charges 1 to 6 as proved and charges 7 to 9 were held as not proved by giving benefit of doubt to DJO. A report dated 30.04.2007 Annexure- E came to be submitted by inquiring authority to the competent authority. Said report came to be placed before the Administrative Committee-I which considered the report submitted by inquiring authority and agreed with the findings of the inquiring authority and 5 accepted the report. Said committee was of the view that penalty of dismissal from service should be levied on DJO (under suspension) and it was resolved to issue a notice to delinquent officer in terms of Rule 11(A)(4) of CCA Rules, 1957.

3. Pursuant to the said resolution of Administrative Committee-I, a show cause notice was issued to DJO on 11.10.2007 whereunder the DJO has been notified that High court has decided to accept the report submitted by inquiry authority and had proposed to impose punishment of dismissal from service and as such called upon DJO to show cause as to why punishment of dismissal as per Rule 8(viii) of CCA Rules should not be imposed on him for proved misconduct. In reply to said show cause notice DJO submitted his statement on 26.10.2007 as per Annexure-G. Said reply came to be considered by Administrative Committee-I in its meeting held on 28.08.2008 and it 6 was of the view that reply to the show cause notice submitted by DJO is not satisfactory and as such it was of the opinion that it is a fit case to confirm the proposed punishment. However, taking a lenient view in the matter it recommended for compulsory retirement under Rule 8(VI) of CCA Rules instead of dismissal and recommended the same to the full court. Full court in its meeting held on 04.10.2008 considered the reports and relevant material on record and resolved to confirm the punishment of dismissal of DJO and Full-Court was also of the view that there is no need to take any lenient view considering the gravity and seriousness of charges which was proved in the enquiry. Pursuant to said resolution Registrar General vide communication dated 18.12.2008 Annexure-M requested the Government for imposition of penalty of dismissal of DJO by enclosing a copy of draft order for adoption with such modification as deemed fit. However, on account of erroneous sub- rule having been mentioned in the said communication 7 dated 18.12.2008 i.e., sub-rule (vii) instead of sub-rule

(viii) of Rule 8 of CCA Rules, the Government of Karnataka sought for clarification in this regard vide communication dated 31.01.2009 Annexure-N. The Registrar General, High Court of Karnataka by reply dated 19.02.2009 Annexure-O clarified that Full Court had proposed imposition of penalty of dismissal from service on DJO as contemplated under Rule 8(viii) of CCA Rules and by oversight while recommending it had been mentioned as imposition of penalty of dismissal from service under Sub-Rule(vii) of Rule 8 of KCS (C&A) Rules. Said order was communicated to the Governor of Karnataka by way of submission note from office of Secretary to Government (DPAR) bearing No.DPAR 90 SHC 2008 dated 31.01.2009 which submission note is said to have been approved by Hon'ble Chief Minister and as such Government sought for approval of the appointing authority i.e., Governor under Article 233 of the Constitution of India. Said submission note came to 8 be placed before the Secretary to Governor which came to be approved on 31.03.2009 and thereafter his excellency Governor of Karnataka approved the note on 31.03.2009. Pursuant to said approval of recommendation made by High Court of Karnataka note was approved by the appointing authority namely His Excellency Governor of Karnataka. The order of dismissal dated 28.04.2009 Annexure-J came to be issued by the appointing authority. It is this order which is challenged in the present writ petition by the DJO.

4. I have heard the arguments of Sri.S.V.Narasimhan, learned counsel appearing for petitioner and Sri.Raghavendra G.Gayatri, learned Additional Government Advocate appearing for respondent. I have perused the impugned order as also the entire original records relating to inquiry as well as file relating to the approval sought for by the 9 Government while forwarding the same to the Governor of Karnataka.

CONTENTIONS        RAISED       ON     BEHALF        OF
PETITIONER:

5. It is the contention of Sri.S.V.Narasimhan, learned counsel appearing for petitioner that under Articles of Charges dated 06.09.2005 inquiry was conducted and a report came to be submitted by the inquiry officer on 30.04.2007, pursuant to which Administrative Committee-I of High Court of Karnataka considered the report and accepted the same and recommended for dismissal of the petitioner by following Rule 11(A)(4) of CCA Rules and thereafter second show cause notice dated 11.10.2007 (Annexure-D) came to be issued to the petitioner as to why order of dismissal under Rule 8 (viii) should not be passed against the petitioner. He contends that Administrative Committee- I has not considered the fact charges 7 to 9 against the 10 petitioner was not proved and this aspect has not been taken into consideration at all by the respondents.

6. He contends that it is the decision making process which is being challenged and not the decision itself inasmuch as the decision making process being vitiated the decision arrived thereon also has to be rendered void and elaborating his submission in this regard he contends that Rule 11(A)(4) of CCA Rules provide for pre-decisional punishment and by virtue of the said rule having been removed vide notification No.KGD 20/dated 20.01.1977 GS 49 the second show cause notice dated 11.10.2007 could not have been issued by disciplinary authority and perusal of the said show cause notice would indicate that disciplinary authority had already formed a opinion to impose punishment of dismissal against the petitioner and as such it was a post decisional hearing and issuance of second show cause notice was only an empty formality. 11 He would also contend that subsequent to formation of said opinion the disciplinary authority would not be sitting with an open mind to examine the reply submitted by the petitioner to the second show cause notice as well as the inquiry report inasmuch as it would have already formed an opinion and there being error in decision making process and decision consequently rendered would have to be held contrary to statutory provisions and in support of his submission he has relied upon the decision of this Court in the case of H.R.Ravindranath Vs Syndicate Bank represented by its General Manager reported in ILR 2005 KAR 2350.

7. Sri.S.V.Narasimhan, would further contend that while passing the order of dismissal dated 28.04.2009 (Annexure-J) the appointing authority namely the State has not considered the objections filed by the petitioner on 26.10.2007 (Annexure-G) to the second show cause notice and in a mechanical manner 12 it has passed the impugned order. He would contend that after the report came to be submitted by the Inquiry Officer on 30.04.2007, second show cause notice dated 11.10.2007 came to be issued, which was duly replied by petitioner on 26.10.2007 and it came to be considered by the Administrative Committee-I on 28.08.2008, whereunder, said committee had accepted the findings of Inquiry Officer and reply submitted to the second show cause notice by the DJO as not being satisfactory, but still opined that it is a fit case for taking a lenient view by imposing punishment of compulsory retirement instead of dismissal which was not accepted by the Full Court in its meeting held on 04.10.2008 (Annexure R-4) and when communication from the Registrar General, High Court of Karnataka dated 18.12.2008 and clarification on 19.02.2009 came to be issued the Appointing Authority had two options before it namely; (1) it could have accepted the recommendation of Disciplinary Authority and passed 13 an order of dismissal under Rule 8 (viii); and (2) in the alternate, if it had examined the entire matter independently then it ought to have considered the reply given by petitioner to the second show cause notice on 26.10.2007 (Annexure - G) as otherwise, it has to be necessarily held that impugned order is vitiated for want of such scrutiny and examination by Appointing Authority to the reply submitted to second show cause notice by the petitioner. He would also bring to the notice of this Court the penultimate paragraph of the impugned order whereunder Appointing Authority has stated that it has considered the reply dated 26.10.2007 (Annexure-G) to contend that it is an empty formality and no reasons are forthcoming with regard to consideration of reply submitted by petitioner on 26.10.2007 and that by itself would clearly establish that there has been total non-application of mind by the Appointing Authority while passing the impugned order. On account of non-consideration of reply submitted by 14 petitioner on 26.10.2007 (Annexure-G) by the Appointing Authority, impugned order is liable to be set aside.

8. At this juncture Sri. S.V.Narasimhan, learned counsel appearing for petitioner would fairly admit that insofar as petitioner is concerned the Disciplinary Authority is the High Court and Appointing Authority is the Government of Karnataka.

9. Sri. S.V.Narasimhan, learned counsel would submit that a memo had been filed by the petitioner before the Disciplinary Authority on 08.05.2009 vide Annexure - K requesting for furnishing of certain documents and on account of non-furnishing of documents sought for by the petitioner, inquiry is vitiated as also consequential order of dismissal passed against the petitioner. He would also contend that non- furnishing of the documents annexed to the report while 15 furnishing the enquiry report to a Delinquent Officer would vitiate the Inquiry proceedings. In support of his submissions he has relied upon following judgments:

1. ILR 2005 KAR 2350 - H.R. RAVINDRANATH V/S SYNDICATE BANK

2. 1999 (5) K.L.J 428 (DB)- MADHAVA RAJA RAO V/S GENERAL MANGER (PERSONNEL WING),

3. (1976) 4 SCC 745 EQ.

  AIR 1976 SC 1964        -    STATE OF ANDRA
                               PRADESH V/S S.N.
                               NIZAMUDDIN ALI KHAN

4. (2008) 8 SCC 236   -        STATE OF UTTARANCHAL
                               AND OTHERS V/S KHARAK
                               SINGH



CONTENTIONS        RAISED         ON    BEHALF        OF
RESPONDENTS:

10. Sri.Raghavendra, learned AGA appearing for respondents would submit that charges levelled against 16 the DJO is serious in nature and there was financial transactions made by DJO and not reported for a period of 5 to 6 years which was required to be reported under Rule 23(2)(3)(4) of Karnataka Civil Service (Conduct) Rules 1966 and on account of non furnishing of details and not reporting the financial transactions carried out was unbecoming of a judicial officer, lack of integrity, devotion to duty, not obtaining the permission of High Court and thereby committed misconduct within the meaning of Karnataka Civil Service (Conduct) Rules, 1966 (hereinafter referred to as KCSR Rules) and as such articles of charges came to be issued against the DJO. He admits that sub-rule (4) of Rule 11(A) of CCA Rules is not there in the statute book and it has been deleted with effect from 20.01.1977 and despite such deletion DJO was furnished with a copy of inquiry report and as such applicability or non applicability of Rule 11(A)(4) as urged by the learned counsel for petitioner would be of no consequence and even 17 otherwise he would contend that such a ground has not been urged in the writ petition and same should not be taken note of by this Court.

10.1. He would submit that until there is a disagreement with the views of the inquiring authority by the disciplinary authority and while issuing second show cause notice the disciplinary authority or the competent authority as the case may be should not form an opinion regarding the nature of punishment that is to be proposed as otherwise competent authority would be within its domain to notify about the proposed imposition of punishment and seek for reply which was the only exercise carried out in the instant case and as such mere mentioning Rule 11(A)(4) by Administrative Committee-I in its resolution dated 08.10.2007 and consequential issue of second show cause notice to the petitioner would be of not consequence and it would not prejudice the DJO in any manner until and unless DJO 18 is able to establish that on account of such procedural lapse even if any it has resulted in prejudice or in the alternate if he is able to demonstrate that there was any other possible view which could have been taken by competent authority, the order of punishment of dismissal imposed on DJO should not be interfered with.

10.2. In reply to the arguments of learned counsel for petitioner, Sri.Raghavendra, learned AGA would submit that Administrative Committee-I is only a holding hand and as per the extant rules of CCA Rules as it stood at the undisputed point of time no notice was required to be issued to the DJO and despite such position the DJO was issued with a second show cause notice enclosing the inquiry report in view of Judgment of Hon'ble Apex Court in the case of Managing Director, ECIL, Hyderabad and others Vs B.Karunakar and others reported in (1993) 4 SCC 727 whereunder 19 issuance of second show cause notice has been prescribed in order to do substantial justice to a delinquent. Hence, he contends no prejudice whatsoever has occasioned to the petitioner by issuance of second show cause notice. He would also submit that the DJO has not questioned the decision of Administrative Committee-I or full court and the order passed by the Governor i.e., appointing authority is only a formal order as has been held by the Hon'ble Apex Court in the case of Registrar (Admn.), High Court of Orissa, Cuttack Vs Sisir Kanta Satapathy (Dead) by Lrs and anr reported in (1999)7 SCC 725 paragraph 17 and as such he submits that impugned order does not suffer from any vice either on facts or on law.

10.3. He would further elaborate his submission by contending that no prejudice is caused to the petitioner by these alleged violations or infractions even if any though not admitted, since petitioner has not 20 proved that such violation or infraction of any rules has resulted in prejudice and as such he contends this court should not interfere with the order of punishment imposed on DJO by dismissing from service by relying upon the Judgment of Hon'ble Apex Court in the case of Union of India and others Vs Alok Kumar reported in (2010) 5 SCC 349 by particularly referring to paragraphs 84, 85 and 90 of said judgment. He would also contend that interference by this court in the matter of departmental inquiry for breach of principles of natural justice alone is not sufficient unless it is established by the DJO that on account of such breach of natural justice it has resulted in prejudice as otherwise interference with the quantum of punishment imposed does not arise. He would also contend that decision of Administrative Committee-I was placed before the full court which also confirmed the findings of the inquiring authority and DJO having not alleged any bias this court should not interfere with the 21 decision of Full Court. In support of his submission he has relied upon the following judgments:

1. (1978) 2 SCC 102 - State of Uttar Pradesh Vs Batuk Devopati

2. Chief Justice of Andhra Pradesh and others Vs L.V.Dexit, (1979) 2 SCC 34

3. Registrar, High Court of Orissa Vs Sisir Khan Satapathy (1999) 7 SCC 725

4. R.C.Chandel Vs High Court of Madhya Pradesh and anr (2012) 2 SCC (L & S) 469

5. State of Bihar Vs Balamukund, (2000) 4 SCC 640

6. Managing Director ESCL Vs B.Karunakar (1993) 4 SCC 727

7. Punjab National Bank and others Vs Kunjbihari Mishra, (1998) 7 SCC 84

8. Union of India Vs Alok Kumar, (2010) 5 SCC 349

9. Burdwan Central Co-operative Bank Vs Asin Chatterji, (2012) 2 SCC 641

10. Chairman, Ganga Yamuna Gramina Bank Vs Devisuhai, (2009) 2 SCC (L & S) 618

11. Union of India Vs B.C.Chaturvedi 1995 22 6 SCC 750

12. Sub-Divisional Officer Vs Maharaja Singh 2003 SCC L & S 1172

13. Administrator Union Territory of Dadra and Nagarahaveli Gulabhia M. Lad, 2010 2 SCC L & S 101.

14. High Court of Judicature of Bombay Vs Udayasingh, (1997) 5 SCC 129

15. Pyari Mohanlal Vs State of Jharkhand (2010) 10 SCC 693

11. Having heard the learned advocates appearing for the parties and on perusal of the impugned order as also original records made available by the learned Additional Government Advocate, I am of the considered view that following points would arise for my consideration:

"1. Whether there is any infraction of CCA Rules by the competent authority or the appointing authority resulting in prejudice being caused to the petitioner?

2. Whether the order of dismissal passed against the DJO on 28.04.2009 suffers from any vice or there has been infraction of any 23 provision of law or impugned order is contrary to law?"

12. In order to answer the points formulated herein above I am of the considered view that provisions of law pressed into service by learned advocates appearing for the parties requires to be extracted since it would have a direct bearing and impact on the contentions raised by learned advocates and it would also be necessary to analyse and adjudicate the contentions raised by them and as such they are extracted herein below:

LAWS GOVERNING APPOINTMENT OF DISTRICT JUDGES AND CONDITIONS OF SERVICE:

CONSTITUTION OF INDIA CHAPTER-VI - SUBORDINATE COURTS

233. Appointment of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

234. Recruitment of persons other than district judges to the judicial service. - Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

235. Control over subordinate courts.- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

236. Interpretation. - In this Chapter- 25

(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;

(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

237. Application of the provisions of this Chapter to certain class or classes of magistrates.- The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.

13. It has been held by Apex Court in GAUHATI HIGH COURT Vs. KULADHAR PHUKAN (2002)4 SCC 524, that doctrine of separation of powers and the need 26 for having an independent judiciary as a bulwark of constitutional democracy persuaded the founding fathers of the constitution of India to assign a place of distinction to the judiciary. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influences of the executive and the legislature. Appointment of District Judges in a State is made by the Governor of the State in consultation with the High Court under Article 233. The Constitution of India though provides direct recruitment as one of the sources of appointment to the cadre of district judges, has not prescribed any fixed quota for it. Different states have different quota system for direct recruitment. In cases where quota is not fixed under the rule, such statutory rules can be supplemented by administrative instructions and the state Government in consultation with the High Court is competent to prescribe quota for two sources of 27 recruitment to the service by administrative orders. However, in order to bring uniformity in this regard, the Apex court, in All India Judges Association Vs Union of India reported in (2002) 4 SCC 247, relying on Justice Shetty Commission's recommendation, has directed that quota for direct recruitment shall be fixed at 25% of the posts in the cadre of district judges. The provisions for consultation with the high court is incorporated since the high court is expected to have superior knowledge in regard to the suitability of a person belonging either to the judicial service or to the bar to be appointed as a district judge. The duty to consult with the high court is so integrated with the exercise of the power to appoint a district judge that the power can be exercised only in consultation with the high court. "Consultation" with the high court in this article means on the recommendation of the high court. The object underlying this provision is to secure and maintain independence of the subordinate judiciary. 28 The high court would be the best judge of the requirements of proper and efficient judicial administration.

14. Under Article 235 the control over district courts and courts subordinate thereto including posting and promotion and grant of leave to persons belonging to judicial service of a State is vested in the High Court.

14.1 Article 237 brings all the Magistrates under the control of High Court.

14.2 Under Article 309 of the Constitution, power is conferred on the appropriate legislature to regulate the recruitment and condition of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The recruitment and the conditions of service of persons appointed to judicial service falls within the purview of Article 309.

15. Under entry 41 of state list in VII schedule, the subject "State Public Service- State Public Service Commission" is included and as such the state could legislate in respect of all matters concerning the members of judicial service. Article 309 is a general provision relating to regulation of recruitment and conditions of service of persons appointed to public service under the union and the state. The members of judicial service are appointed to Public Service and, therefore, subject to provision of Articles 233 , 234 & 235 and as such the President or the Governor, or as case may be, is empowered to frame Rules of recruitment and conditions of service for judicial service.

15.1. In exercise of power vested under Article 309 the Governor has framed the Karnataka Civil Services (Conduct) Rules, 1966 which would govern the 30 District Judges. Relevant Provisions necessary for answering the point formulated hereinabove are as under:

Karnataka Civil Services (Conduct) Rules, 1966 (KCSR Rules 1966) -

21(4)(i) No Government Servant shall [except with the previous sanction of the Government and] save in the ordinary course of business with a bank or a firm of standing duly authorised to conduct banking business either himself or through any member of his family or any other person acting on his behalf-

(a) Lend or borrow money as principal or agent, to or from any person within the local limits of his authority or with whom he is likely to have official dealings, or otherwise place himself under any pecuniary obligation to such person; or

(b) Lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid:

Provided that a Government Servant may give to, or accept from, a relative or personal friend, a purely temporary loan of [an amount not exceeding his total monthly emoluments] free of interest, or operate, a 31 credit account with a bonafide tradesman or make an advance of pay to his private employee.

(ii) When a Government Servant is appointed or transferred to a post of such nature as would involve him in the breach of any of the provisions of sub-rule (2) or sub-rule (4), he shall forthwith report the circumstances to the Government and shall thereafter act in accordance with such order as may be made by the Government.

23(2) - No Government Servant (or any member of his family) shall, except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family:

Provided that the previous sanction of the prescribed authority shall be obtained by the Government Servant if any such transaction is -

(i) with a person having official dealings with the Government Servant; or

(ii) otherwise than through a regular or reputed dealer:

[Provided further that nothing in this sub- rule shall apply to the transactions entered into by a member of the family of the 32 Government servant out of his or her own funds (including gifts, inheritance, etc.), as distinct from the funds of the Government servant himself/herself, in his or her own name and in his or her own right.] (3) Every Government Servant shall report to the prescribed authority every transaction concerning movable property owned or held by him (or any member of his family) either in his own name or in the name of a member of his family, if the value of such property exceeds (ten thousand rupees) in the case of a Government Servant holding any (Group "A") or (Group "B") post or [five thousand rupees] in the case of a Government Servant holding any [Group "C") or (Group "D") post:

19. Provided that the previous sanction of the prescribed authority shall be obtained if any such transaction is -

(i) with a person having official dealings with the Government Servant; or

(ii) otherwise than through a regular or reputed dealer:

(Provided further that nothing in this sub- rule shall apply to the transactions entered into by a member of the family of the Government Servant out of his or her own funds (including gifts, inheritance, etc.,) as distinct from the funds of the Government Servant himself/herself, in his or her own name and in his or her own right) 33 23(4) The Government or the prescribed authority may at any time by general or special order, require a Government Servant to furnish, within a period specified in the order, a full and complete statement of such movable or immovable property held or acquired by him [or any member of his family] or on his behalf or by any member of his family as may be specified in the order. Such statement shall if so required by the Government or by the prescribed authority include the details of the means by which, or the source from which such property was acquired.

15.2. Rules relating to appointing authority, controlling authority, disciplinary authority and appellate authority are concerned, rules have been framed by the Governor in exercise of power under Article 309 of the Constitution of India, known and called as Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 and relevant provision which would have bearing on the facts of the case are extracted herein below:

The Karnataka Civil Service (Classification, Control and Appeal) Rules 1957, CCA Rules 11-A. Action on the inquiry report. - (1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be.

(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having regard to its findings, on all or any of the articles of charge is of the opinion that one or more of the penalties specified in Rule 8 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 12, make an order imposing such penalty:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government Servant and such advice shall be taken into 35 consideration before making any order imposing any penalty on the Government Servant.

(4) (i) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (v) to

(viii) of Rule 8 should be imposed on the Government servant, it shall.-

(a) furnish to the Government Servant a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an Inquiring Authority, appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the Inquiring Authority and where the inquiry is held by the (Lokayukta or an Uplokayukta) under Rule 14-A, a copy of the findings of the Inquiring Officer with the recommendations of the (Lokayukta or an Uplokayukta, as the case may be); and

(b) give the Government Servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may with to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 11.

(ii) (a) In every case in which it is necessary to consult the Commission, the record of the inquiry, together with a copy of the notice given under clause (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government Servant.

(b) The Disciplinary Authority shall after considering the representation, if any, made by the Government Servant, and the advice given by the Commission, determine what penalty, if any, should be imposed on the Government Servant and make such order as it may deem fit.

(iii) Where it is not necessary to consult the Commission the Disciplinary Authority shall consider the representation, if any, made by the Government Servant in pursuance of the notice given to him under clause (i)and determine what penalty, if any, should be imposed on him and make such order as it may deem fit.

28 D. Provision regarding members of the Karnataka Judicial Service, etc. -

Notwithstanding anything contained in these rules, references to the Governor or the Government in these rules shall, insofar as they relate to the control over the District Courts and Courts subordinate thereto by the High Court of Karnataka under Article 235 of the Constitution of India, be 37 construed as reference to the High Court of Karnataka:

Provided that nothing in this rule shall affect the powers of the Governor under the Constitution of India in respect of members of the Judicial Services or the right of an appeal which a person may have under the law regulating his conditions of service.

16. In the background of constitutional frame work as noticed and discussed hereinabove, Article 235 of Constitution vests in a High Court the control over the subordinate judiciary within the state. To place the subordinate judiciary beyond executive interference was felt as early as in the year 1933-34 when the joint-

parliamentary committee made the following observations:

It is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges.

17. It has been held by the Apex Court in Chandra Mohan V/s State of UP reported in AIR 1966 SC 1987 at page 1993 that importance of a strong and independent judicial system at lower levels is recognized by these special provisions incorporated in the constitution. Judicial services are placed on different pedestal, different from other services under the State.

Having been so insulated, judges who hold the public office are expected to discharge their function on public trust and all independence. Judges discharge their functions while exercising the sovereign judicial power of the state and as such their honesty and integrity is expected to be beyond pale of any doubt. The fact that subordinate judiciary is the formulation of the Judicial System, persons who man it should reflect their honesty and integrity by their explicit deeds and actions. They should ensure that no such smoke screen would engulf giving rise to iota of doubt. The mandate of Article 235 of Constitution is that the High Court has to maintain 39 constant vigil on subordinate judiciary. The following judgments of the Hon'ble Apex Court would fortify this view.

(i) In All India Judges Association (II) Vs Union of India reported in (1993) 4 SCC 288 has held as follows:

"The judicial service is not service in the sense of employment. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State".

(ii) Again the Apex court in All India Judges' Association and others Vs Union of India and others reported in 2002 (4)SCC 247 is has observed to the following effect:

"The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate 40 judiciary. While the Supreme Court has accepted the recommendation of Justice Shetty Commission, which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers become more efficient. There has to be certain minimum standards, objectively adjudged, for officers who are to enter the higher judicial service as Additional District Judges and District Judges. While Justice Shetty Commission is right in recommending that the recruitment to the higher judicial service i.e., the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, it is necessary that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to higher judicial services. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and compete with each other so as to excel and get quicker promotion".

(iii) The Apex court while examining the correctness of an order of compulsory retirement passed against the judicial officer of the State of Madhya Pradesh in the case of R.C.Chandel Vs High Court of Madhya Pradesh and another reported in 2012 (8) SCC 58 has observed as under:

"Judicial service is not an ordinary Government service and the Judges are not employees as such. Judges hold the 41 public office; their function is one of the essential functions of the state. In discharge of their functions and duties, the Judges represent the State. The office that a judge holds is an office of public trust. A judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty".

These are the basic principles under which a Judge should function and discharge his judicial functions. Keeping the contours laid down by Apex Court in the 42 judgments referred to supra the facts on hand are required to be examined.

FACTUAL MATRIX:

18. The DJO in the instant case was appointed as a District Judge by direct recruitment in the year 1996.

Pursuant to the selection made by the High Court of Karnataka the appointing authority namely Governor of Karnataka issued the appointment order to petitioner- DJO. The said DJO has worked in various capacities in the places he was posted. On 06.09.2005 articles of charges came to be issued against the DJO alleging misconduct namely not intimating the High Court about the availment of loans and closure of the said accounts when he did not possess known source of income to repay the said loan; though obtained permission from the High Court to purchase a Maruthi Esteem Car did not purchase the said car from the savings or raising loan from judicial officers association as informed and 43 though permitted to avail the said loan from State Bank of India, Madikeri by suppressing said fact of obtaining the permission from the High Court, and obtaining various loans from different banks without obtaining prior permission from the High Court. Certain amounts of cash having been deposited intermittently to his savings bank account by not declaring the receipts of this amount or source from which they were received; had spent certain amounts by drawing from the GPF without intimating to the High Court; giving false information to the High Court stating that except two loans he did not possess any other loan though he had availed loans frequently without obtaining permission of the High Court and was in the habit of giving false information to the High Court in the statement of assets and liabilities and having financial dealings/entering into financial transactions with financial institutions and had made repayments of the loans by not disclosing the source; passing an order of extension of bail even a 44 day prior to handing over charge after transferred from Madikeri to Karwar and under suspicious circumstances; granted anticipatory bail to certain accused persons a day prior to handing over charge of PDJ, Madikeri after order of transfer from Madikeri to Karwar was duly communicated to DJO on 06.05.2005 by High Court of Karnataka and passing orders for extraneous and monetary consideration. On these lines imputation of charges namely articles of charges was issued by the disciplinary authority to the DJO on 06.09.2005 vide Annexure-A. Written statement came to be filed by DJO on 17.10.2005. Not satisfied with the reply the Administrative Committee-I resolved to initiate inquiry by appointing Inquiring Authority namely Hon'ble Justice Sri.R.Gururajan apart from appointing the Presenting officer and also recommended to the full court to keep the petitioner/DJO under suspension with immediate effect in its meeting held on 23.11.2005 pending disposal of inquiry. Full court accepted the 45 decision of Administrative Committee-I for appointment of Justice Sri.R.Gururajan as inquiry officer as well as suspension of petitioner vide resolution dated 23.11.2005 and petitioner-DJO was kept under suspension from 30.11.2005. Thereafter a notification came to be issued on 01.12.2005 appointing the inquiring authority to inquire into the charges levelled against the DJO. Pursuant to the said notification inquiring authority entered appearance and issued notice to the parties. Both prosecution as well as DJO appeared before the Inquiry Authority and they were represented by their respective learned advocates. Both the parties tendered oral and documentary evidence and on evaluation of the same inquiring authority held that charges 1 to 6 levelled against DJO are proved and charges 7 to 9 are not proved by giving benefit of doubt to DJO. Said report came to be placed before the Administrative Committee-I and the said committee considered the report submitted by inquiring authority 46 and agreed with the inquiring authority and accepted the report. Said committee was of the considered view that the order of dismissal from service should be imposed on DJO and as such it resolved in its meeting held on 08.10.2007 (Annexure-R-2)to issue a notice to the said DJO in terms of Rule 11(A)(4) of CCA Rules. Pursuant to the said resolution of the Administrative Committee-I second show cause notice came to be issued on 11.10.2007 Annexure-D to the DJO and he in turn submitted his reply on 26.10.2007 Annexure-G. Said report of the inquiring authority and reply submitted by DJO came to be placed before the Administrative Committee-I for consideration. In its meeting held on 28.08.2008 reply given by DJO was examined and found that it was not satisfactory and after considering all the material and reply submitted by DJO to show cause notice, though committee was of the considered view that it was a fit case to confirm the proposed punishment, it however took a lenient view in 47 the matter and recommended to the full court to impose the punishment of compulsory retirement under Rule 8

(viii) of CCA Rules instead of dismissal. Said recommendation came to be placed before the full court in its meeting held on 04.10.2008 and it was resolved by the full court to confirm the proposed punishment i.e., dismissal of DJO after careful consideration of reports and relevant materials and Full Court was also of the view that there was no need to take any lenient view considering the gravity and seriousness of the proved charges.

19. Pursuant to said resolution and recommendation of the Full Court, the Registrar General intimated to the State Government of the resolution passed by the full court and requested the State Government to pass necessary orders for dismissal by communication dated 18.12.2008 Annexure-M. On account of there being an error in 48 mentioning the Rule namely sub-rule (vii) instead of sub-rule (viii) the Secretary DPAR sought for clarification in this regard from the Registrar General vide communication dated 31.01.2009 Annexure-N. It came to be clarified by the Registrar General, High Court of Karnataka on 19.02.2009 Annexure-O clarifying that order of dismissal has to be passed under Rule 8(viii) of KCS Rules 1957. Pursuant to the same, a submission note was forwarded to the Governor of Karnataka by Secretary, DPAR and Governor of Karnataka approved the same on 31.03.2009 and thereafter the appointing authority passed the order of dismissal dated 28.04.2009 vide Annexure-J. SCOPE OF INTERFERENCE:

20. The Power of High Court under Article 226 of Constitution of India to interfere with the findings of the inquiring authority is very limited. The extraordinary jurisdiction vested in the High Court 49 requires to be sparingly exercised and for cogent and sufficient reasons as otherwise the interference would be limited. Reappraisal of evidence is impermissible and while exercising supervisory jurisdiction this Court would not exercise appellate jurisdiction and as such this court would be slow in interfering with the findings recorded by the inquiring authority, until and unless it is established prima facie that such finding could not have been arrived at on the basis of available evidence or the evidence available on record would clearly indicate that the findings recorded by the inquiring authority is contrary to it or it is perverse. Even with regard to the quantum of punishment imposed by the appointing authority would not be interfered by this court until and unless it is shockingly disproportionate to the proved charge of misconduct. The following case laws would fortify this view:

1. (1995) 6 SCC 750 - Union of India and anr Vs B.C.Chaturvedi "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of 51 inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

2. 2003 SCC (L & S) 1172 - Sub-Divisional Officer, Konch Vs Maharaj Singh "5. In view of the submissions made at the Bar, we have scrutinised the impugned order of the High Court. A bare perusal of the same makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has re-appreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not appellate one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction under Article 226 in interfering with the findings arrived at by the enquiring authority by re-appreciation of the 52 evidence adduced before the said enquiring authority. We, therefore, set aside the impugned order of the High Court and the Writ Petition filed stands dismissed. This appeal is allowed.

3. (2010) 2 SCC (L & S) 101 - Administrator, Union Territory of Dadra and Nagar Haveli Vs Gulabhia M. Lad "14. The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts." RE: POINT NOS. 1 & 2:

21. Any finding that would be given on one point would have a bearing on the other. Since these two 53 points are interlinked and interconnected they are being delved upon together and answered.

22. It is the contention of Sri. S.V.Narasimhan, learned counsel for petitioner that Administrative Committee-I in its meeting held on 08.10.2007 (Annexure R-2) had resolved to accept the report and it had further resolved to issue a notice to the Delinquent Officer in terms of Rule 11-A (4) of CCA Rules which rule was not existing and as such there is infraction in the decision making process and thereby consequential order of dismissal passed on 28.04.2000 (Annexure-J) is also void. He contends that show cause notice issued on 01.10.2007 as per Annexure-D is an empty formality since Administrative Committee-I had already resolved to dismiss the petitioner from service and as such it is a pre-decisional hearing. In support of his submission he has relied upon the judgment of Coordinate Bench of this Court in the case of H.R. RAVINDRANATH VS.

SYNDICATE BANK reported in ILR 2005 KAR. 2350 whereunder it has been held that even before issue of a second show cause notice and considering the reply given thereto by an delinquent employee the disciplinary authority should not come to a conclusion and it should have an open mind. Finding recorded by Co-ordinate Bench of this court reads as under:

"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 Inquiry 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 decision has been taken there is a tendency to uphold it, and representation may not really yield any fruitful purpose."

23. In the said judgment it is noticed that petitioner therein was working as a Manager in respondent-bank and was issued with chargesheet alleging that he had demanded ` 1,000/- from five persons and had released loans to three persons after accepting bribe from them. Defence statement was submitted by the employee. Not satisfied with the defence set up, Inquiry was instituted and Inquiry Officer conducted the Inquiry before whom oral and documentary evidence was adduced by both the parties and a report came to be submitted holding that charges levelled against the delinquent employee were not proved by giving detailed reasons. However, Disciplinary Authority issued a communication dated 24.08.1998 enclosing copy of the Inquiry report and appending the grounds on which Disciplinary Authority was disagreeing with the findings of the Inquiry Officer and also arriving at a conclusion 56 that petitioner is guilty of charges levelled against him.

(Emphasis supplied by me)

24. In this background it was contended before this Court that finding had already been recorded by the Disciplinary Authority and any amount of calling for explanation from the petitioner would only be an empty formality and it would be a pre-decisional hearing. On examination of extant rules applicable to such enquiry which was governing the bank and also accepting the plea of the petitioner therein, this Court has taken a view that second show cause notice issued to petitioner cannot be sustained and quashed the same, reserving liberty to the Disciplinary Authority to issue a second show cause notice and proceed with the matter with an open mind.

25. In the background of above case law let me examine as to whether contents of the show cause 57 notice issued to the DJO in the instant case is fraught with any lacuna. The said show cause notice reads as under:

"             SHOW CAUSE NOTICE

           The    Hon'ble   High   Court,    after

considering the report of the Inquiring Authority in D.I.No.10/2005 against you and taking into consideration the evidence on record, has decided to accept the report submitted by the Inquiring Authority. Having regard to the nature of charges, the Hon'ble High Court has proposed to impose a punishment of dismissal from service.

Hence, as directed this notice is issued to you to show cause as to why the penalty of dismissal from service as per Rule 8(viii) of the Karnataka Civil Services (Clarification Control and Appeal) Rules, 1957 should not be imposed for misconduct.

You are requested to submit your reply within 15 days from the date of receipt of this notice, failing which the matter will be considered and decided as if your have nothing to say in the matter. Copy of the Inquiry Report is enclosed herewith."

26. In the instant case it can be noticed that totally 9 charges were leveled against the DJO. Charges 58 1 to 6 were held to be proved by the Inquiring Authority and DJO was exonerated in respect of charges 7 to 9. Said Inquiry Report dated 30.04.2007 came to be placed before the Administrative Committee -I which is a helping hand or extended hand of the High Court of Karnataka. Said committee in its meeting held on 08.10.2007 resolved to accept the Inquiry report. However, before imposing order of punishment it was of the view that show cause notice is to be issued, in view of the judgment rendered by the Apex Court in the case of MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS VS. B. KARUNAKAR AND OTHERS reported in 1993 (4) SCC 727, wherein the Apex Court had formulated the following questions for its adjudication. They read as under:

"2. The basic question of law which arises in these matters is whether the report of the Inquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to 59 make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions:

(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?

(ii) Whether the report of the Inquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?

(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?

(iv) Whether the law laid down in Mohd.

Ramzan Khan case will apply to all establishments - Government and non-

Government, public and private sector undertakings?

(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?

(vi) From what date the law requiring furnishing of the report, should come into operation?

(vii) Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990?"

27. It has been held in the said judgment by the Hon'ble Apex Court by majority judgment that in a disciplinary proceeding there are two stages i.e., the first stage ends when the Disciplinary Authority gives its report by arriving at a conclusion on the basis of the evidence of the parties and the delinquent employee's reply to it and the second stage begins when the Disciplinary Authority decides to impose penalty on the basis of its conclusion. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion 61 regarding guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd amendment which consisted of issuance of notice to show cause against the proposed penalty and on considering the reply to the notice, decide upon the penalty. It has been held that what has been dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of Inquiry Officer. It has been further held that latter right is always there and as such it has been held that disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. An essential part of the reasonable opportunity required at the first stage and also the principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before Disciplinary Authority which 62 along with evidence is taken into consideration by it to come to its conclusion.

28. In the instant case sub-rule (4) of Rule 11-A of CCA Rules as it then stood casts an obligation on the Disciplinary Authority to furnish a copy of the report of Inquiry and the findings of each article of charges in the event of its disagreement, if any, with the findings of the Inquiring Authority under Clause (i) (a) and a notice under clause (i)(b) stating the penalty proposed to be imposed on him and in every case in which it is necessary to consult the Commission, the record of Inquiry together with a copy of notice given under clause (i) and representation made by employee thereto for its advise on the penalties proposed to be imposed under Clause (ii) (a) and thereafter determined the penalty to be imposed under Clause (ii)(b). This sub-

rule (4) has been undisputedly removed from the statute book vide notification No. KGD dated 20.01.1977 GSR -

29. As to whether issue of 2nd show cause notice by the disciplinary authority to the DJO has vitiated the order of dismissal on the ground it is a pre-decisional hearing.

29. Hon'ble Apex Court in the case of PUNJAB NATIONAL BANK AND OTHERS VS. KUNJ BEHARI MISRA reported in 1998 (7) SCC 84 had an occasion to consider as to the stages of Inquiry and the process in which the representation of the Delinquent Officer has to be considered. It has been held to the following effect:

"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit's case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent 64 officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the findings of the disciplinary authority".

30. In the said case Disciplinary Authority disagreed with the findings of Inquiring Authority and the extant regulation which governed the parties did not specifically state that Disciplinary Authority should give a hearing to the Delinquent Officer when disagreeing 65 with the findings of Inquiring Authority and when it records its own reasons for such disagreement. As such Apex Court held by applying the principles laid down in B.Karunakar's case referred to supra that an opportunity is to be given when the Disciplinary Authority disagree with the findings of the Inquiring Authority by supplying the reasons and giving an opportunity to the delinquent employee and thereafter decide on evaluation of both namely the Inquiry Officer's report and reply given by the Delinquent Officer and then decide on the quantum of punishment to be imposed, as otherwise it would be a pre-decisional hearing.

31. Perusal of the judgment in Ravindranath's case referred to supra would indicate under the extant rules governing the petitioner therein second show cause notice was required to be issued to the delinquent employee in the event of disciplinary authority 66 disagreeing with the views expressed by the Inquiring authority. On the facts and circumstances it was found in the said decision that inquiry officer had exonerated the delinquent employee of all charges. However, said finding was not agreed to by the disciplinary authority and while disagreeing with the findings of Inquiring authority and assigning the reasons thereof by intimating delinquent employee Bank issued second show cause notice calling for explanation. However, disciplinary authority had also formed an opinion to impose the penalty of dismissal and this was reflected in the second show cause notice. In this background it was held by Co-ordinate Bench of this court that while issuing second show cause notice, disciplinary authority had to indicate only its reasons for disagreement and an opportunity to represent had to be extended to the delinquent employee to enable the disciplinary authority to record its findings and it could not have formed an opinion to impose punishment of dismissal. On the 67 ground that this step will enable the delinquent employee to persuade the disciplinary authority to accept his reply and arrive at a favourable conclusion as arrived by the inquiry officer. It has been held therein, only after consideration of explanation offered by the delinquent employee the disciplinary authority had to record its conclusion as to why explanation given by the delinquent employee was not being accepted and not before such explanation was offered. In this background it has been held that issuing of second show cause notice and giving of an opportunity to the delinquent officer is to enable the delinquent employee to persuade the disciplinary authority to accept the finding of the inquiry officer and such step cannot be an idle formality. It has been held therein, if such opportunity is not extended to a delinquent employee and a decision has already been arrived at by the disciplinary authority, issuance of second show cause notice would become an empty formality.

32. In the instant case sub rule (3) of Rule 11(A) provides for imposition of penalty specified in Rule 11(A) on a Government servant notwithstanding anything contained in Rule 12. Sub-rule (2) of Rule 11 enables the disciplinary authority to record its own findings on such charge if the findings on record is sufficient for the said purpose when it disagrees with the findings of enquiring authority on any articles of charges and while doing so it has to record its reasons. In the facts of the present case it is noticed that inquiring authority has recorded a finding that articles of charges 1 to 6 are proved and the Administrative Committee -I has also accepted the said report of the inquiring authority. There is no disagreement by Administrative Committee-I on the findings of the inquiry authority either in respect of articles of charges 1 to 6 or 7 to 9.

33. As noticed hereinabove in the instant case after the Inquiry Officer submitted the report on 69 30.04.2007 it was placed before the Administrative Committee-I and in its meeting held on 08.10.2007 and said committee accepted the findings of the Inquiring Authority and was of the opinion that the penalty of dismissal from service should be imposed on DJO and resolved to issue a notice to Delinquent Officer under Rule 11-A (4). It is true that said rule was not in the statute book on the said date as already noticed hereinabove and as rightly contended by Sri. S.V. Narasimhan. However, by issuing of said show cause notice pursuant to the resolution of Administrative Committee-I dated 08.10.2007 (Annexure-R-2) the prejudice that has been caused to the petitioner by following the said rule has not been established. Sri.Narasimhan would have been justified in his submission in the event of Inquiring Authority had held the charges either as not proved or if the Inquiring Authority had exonerated the DJO from all the charges leveled against him and the Administrative Committee-I 70 was disagreeing with the findings of the Inquiring Authority by substituting its own reasons and supplementing its reasons for ordering dismissal from service to be passed against the DJO. Said factual matrix is conspicuously absent in the instant case. On the other hand the report of Inquiring Authority has been accepted by the Administrative Committee-I in toto. In other words charges 7 to 9 of which the DJO came to be exonerated also came to be accepted by the said committee. However, taking into consideration the evidence recorded by the Inquiring Authority and the conclusion arrived thereat by holding charges 1 to 6 were proved, the Administrative Committee-I was of the considered view that the order of dismissal was required to be passed against DJO. Though Sub-Rule (4) of Rule 11 of CCA Rules was not available on the statute book, yet again a notice came to be issued which has been construed as second show cause notice. Said show cause notice which is extracted hereinabove would 71 indicate that copy of the Inquiry Report was also appended/annexed to the said show cause notice to which the DJO has submitted reply in detail on 26.10.2007 as per Annexure-G. Neither in the said reply given to the show cause notice dated 11.10.2007 nor in the present writ petition a ground has been raised with regard to prejudice that has been caused to him on account of issuance of second show cause notice dated 11.10.2007. On the other hand Disciplinary Authority in order to ensure that there is no infraction of principles of natural justice at any level and obviously by way of abundant caution has issued a 2nd show cause notice dated 11.10.2007 enclosing the Inquiry report. As such, I am of the considered view that judgment relied upon by the learned counsel appearing for the petitioner in H.R. RAVINDRANATH vs. SYNDICATE BANK's case referred to supra would not be of any assistance to the petitioner in the instant case 72 and as such contention of learned counsel appearing for petitioner cannot be accepted and it stands rejected.

34. It is the further contention of Sri.S.V.Narasimhan that Administrative Committee-I could not have examined the report of Inquiring Authority and it ought to have gone before the Full Court and on account of this procedural infraction it has resulted in order of dismissal passed against DJO erroneously. At this juncture it is to be noticed that DJO has submitted a detailed reply on 26.10.2007 (Annexure-G) to the show cause notice dated 11.10.2007 (Annexure-D) denying the findings recorded by Inquiring Authority on charges 1 to 6. There is not even a whisper with regard to alleged procedural infraction in this regard. In other words petitioner has accepted the second show cause notice to be in consonance with the extant rules. Even otherwise, after the Inquiry Report was placed before the Administrative 73 Committee-I and its acceptance thereof it did not end at it, but went before the Full Court for consideration. Full Court after deliberation resolved to confirm the punishment of dismissal. The power to impose major penalties such as dismissal, removal, compulsory retirement or reduction in rank against all members of judicial service including district judges is vested in the Governor, but in view of the effective control over them having been vested in the High Court, the High Court alone is competent to initiate and hold disciplinary proceedings and the penalties could be imposed only in accordance with the recommendation of the High Court. The power of the High Court to have exclusive jurisdiction over subordinate judiciary by virtue of Article 235 of the Constitution came to be explained by the Apex Court in the case of CHIEF JUSTICE OF ANDHRA PRADESH AND OTHERS vs L.V.A.DIXITULU AND OTHERS reported in 1979 (2) SCC 234 and it has been held as under:

"29. Now, let us see what is the ambit and scope of the power of "appointment" in Article 229 (1). In the context of Article 229, read as a whole, this power is of wide amplitude. The word "appointment" in Article 229(1) is to be construed according to axiom that the greater includes the less. This cardinal canon of interpretation underlies Section 16 of the General Clauses Act which has been made applicable by Article 317(1) of the Constitution. Construed in the light of this juristic principle, the power of "appointment"

conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Court."

(Emphasis supplied by me) 75

35. The power of control over the Subordinate Courts which is vested in the High Court comprises of numerous matters often involving consideration of details of the minute nature and as to whether the whole Court is required to consider every one of those matters was held to cause delay and confusion in the administration of justice in the State and it has been held by the Apex Court in the case of STATE OF UTTAR PRADESH vs. BATUK DEO PATI TRIPATHI AND ANOTHER reported in 1978 (2) SCC 102 to the following effect:

"15. Yet another misconception may now be cleared. It is urged on behalf of the respondent by his learned counsel Shri Misra that under Article 216, 'High Court' means the entire body of Judges appointed to the Court and therefore, the control over the subordinate judiciary which is vested by Article 235 in the High Court must be exercised by the whole body of Judges. The thrust of the argument is that the High Court cannot delegate its functions or power to a Judge or a smaller body of Judges of the Court. This argument requires consideration of the question whether any delegation as such is involved in the process whereby a 76 Judge or a Committee of Judges of the court, like the Administrative Committee in the instant case, is authorized by the whole court to act on behalf of the court.

16. For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Courts comprises such numerous matters, often involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of justice in the State. A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, is so far as possible, to be avoided. The control vested in the High Courts by that article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within Article 311, decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within Article 311, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court's administrative affairs will pile into arrears like court arrears. In fact, it is no exaggeration to say 77 that the control will be better and more effectively exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within the purview of Article 235. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterize as 'delegation' the process whereby the entire High Court authorizes a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorization effectuates the purpose of Article 235 and indeed without it the control vested in the High Courts over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court's constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judge's time. For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brook no such sharing of responsibilities by any instrumentality.

17. The High Court has not by its Rule authorized any extraneous authority, as in Shamsher Singh, to do what the Constitution enables and empowers it to do. The Administrative Judge or the Administrative Committee is a mere instrumentality through which the entire Court acts for the more convenient transaction of its business.

The assumed basis of the arrangement being that such instrumentalities will only act in furtherance of the broad policies evolved from time to time by the High Court as a whole. Each Judge of the High Court is an integral limb of the Court. He is its alterego. It is therefore inappropriate to say that a Judge or a Committee of Judges of the High Court authorized by the Court to act on its behalf is a delegate of the Court."

36. In the instant case as noticed hereinabove the Administrative Committee-I in its meeting held on 28.08.2008 not only found that the reply given by the DJO to the Inquiry Report being not satisfactory it was also of the considered view that it was a fit case to confirm the proposed punishment of dismissal. However, it was also of the considered view that a lenient view has to be taken to impose punishment of compulsory retirement instead of dismissal and as such recommended the same to the Full Court. Thus, it can be seen that Administrative Committee -I has only recommended to the Full Court and said recommendations came to be considered, scrutinized, 79 analysed and thereafter decision was arrived at by the Full Court. Full Court after careful consideration of the reports and relevant material placed before it resolved that it was a fit case to confirm the proposed punishment namely dismissal of DJO from service and it does not warrant taking a lenient view. As such the contention of Sri. S.V.Narasimhan that there was procedural irregularity namely Administrative Committee-I could not have considered the report of the Inquiring Authority and it was the Full Court alone which ought to have considered the said report cannot be accepted.

37. Now turning my attention to the next ground urged by Sri. S.V.Narasimhan that the Appointing Authority has considered the reply given to the show cause notice dated 11.10.2007 by reply dated 26.10.2007 which was not in its domain or the Disciplinary Authority alone ought to have considered 80 the reply and when the Appointing Authority examines the said reply given by the DJO it should have meaningfully considered the DJO's reply and contends that by reading of the impugned order it would clearly indicate that there has been total non-application of mind and non-consideration of the contentions raised by the DJO in his reply dated 26.10.2007, since no discussion has been made on the contentions raised by the DJO in his reply to the second show cause notice and as such the order of dismissal passed by the Appointing Authority is fraught with lack of fairness. He would also bring to the notice of this Court the penultimate paragraph of the impugned order whereunder Appointing Authority has stated that it has considered the reply dated 26.10.2007 (Annexure-G) to contend that it is an empty formality and no reasons are forthcoming with regard to consideration of reply submitted by petitioner on 26.10.2007 and that by itself would clearly establish that there has been total non- 81 application of mind by the Appointing Authority while passing the impugned order. On account of non- consideration of reply submitted by petitioner on 26.10.2007 (Annexure-G) by the Appointing Authority, impugned order is liable to be set aside. In support of his submission he has relied upon the dicta laid down by the Division Bench of this Court in the case of MADHAVA RAJA RAO V/S GENERAL MANAGER (PERSONNEL WING), HEAD OFFICE, CANARA BANK reported in 1999 (5) KLJ 428 which is to the following effect:

"We find substance in the submission of the learned Counsel for the appellant that the Disciplinary Authority had not at all considered the defence of the employee or the evidence led by him in support thereof. The learned Counsel for the respondent- Bank submits that the words "Considering other relevant factors" are sufficient to point out that all circumstances including the evidence led by the appellant was considered by the Disciplinary Authority before passing the order."

38. In Madhava Raja Rao's case referred to supra Division Bench found on examination of facts that order of Disciplinary Authority ought to have indicated that it had applied its mind to the facts and circumstances of case independently before forming an opinion to impose the penalty and found on the facts of the said case that it was lacking. In the instant case it is not the contention of Sri.S.V.Narasimhan that there has been non-application of mind by the Disciplinary Authority, but on the other hand it is his contention that there is non-application of mind by the Appointing Authority while passing the impugned order. The resolution of Administrative Committee-I dated 28.08.2008 as per Annexure R-3 would indicate that said Committee has considered the materials and reply to the show cause notice submitted by the DJO and found that it was satisfactory. It was also of the considered view that it is a fit case to confirm the proposed punishment (order of dismissal) but however, 83 took a lenient view in the matter and recommended to the Full Court by proposing to impose punishment of compulsory retirement under Rule 8 (vi) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Said recommendation has been considered by the Full Court in its meeting held on 04.10.2008 as per Annexure R-4 and on careful consideration of the reports and relevant material it resolved to confirm the proposed punishment namely dismissal of petitioner. Impugned order passed by the Appointing Authority on 28.04.2009 would indicate that the Appointing Authority has made a passing reference about consideration and scrutiny of reply dated 26.10.2007 (Annexure-G) submitted by petitioner to the second show cause notice. This would not vitiate the decision arrived by the disciplinary authority i.e., High Court.

39. Sri. S.V.Narasimhan, learned counsel has also contended that when Full Court while disagreeing 84 with the view or recommendations of Administrative Committee-I, opportunity ought to have been afforded to the petitioner and has relied upon the judgment of the Apex Court in the case of STATE OF ANDHRA PRADESH VS S.M.NIZAMUDDIN ALI KHAN reported in 1976 (4) SCC 745, whereunder the High Court had taken a view that there was violation of Article 311(2) on the administrative side and it was found by the Apex Court that High Court had taken into consideration certain extraneous matters while arriving at a decision and as such it was held by Apex Court that it deprived the Delinquent Officer of a reasonable opportunity. At Paragraph 19 the Apex Court has held as under:

"The perusal of the said judgment would indicate that while the respondent therein should had been appointed a Munsiff Magistrate was proceeded against departmental by initiating Inquiry and a judge of the High Court of Andhra Pradesh was appointed as the Inquiry Officer who found on Inquiry that the charges Nos. 1 to 3 has proved and recommended for issuing "warrant". The Hon'ble Chief Justice on his own examination of the evidence confirmed 85 the findings of the Inquiry Officer he recommended for compulsory retirement. The Government issued a second show cause notice enclosing the report of the Inquiry Officer but not with of the Chief Justice. And it was protested to by the Judicial Officer that Chief Justice had not authority to add his own remarks and findings as such arrived at by the Chief Justice was without hearing respondent. The Public Service Commission on matter being referred to approve the compulsory retirement and accordingly the respondent therein was compulsorily retired. Thereafter suit came to be filed which came to be decreed in finding of the Delinquent Officer to the High Court held that since the report of the Chief Justice formed a integral part of the Inquiry and the Delinquent Officer had been denied of a reasonable opportunity came to a conclusion that the order of compulsory retirement was bad and this order was assailed by the State before the Apex Court and on examination of facts the Apex Court found that the report of the Chief Justice was based to large extent on "secret information"

obtained which culminated in the order of compulsory retirement being passed against the DJO and this decision went into the decision making process was not forwarded to the Delinquent Officer and as such he had not opportunity of meeting the said remarks or the report and as such if affirmed the judgment of the High Court." 86

40. In the instant case petitioner has nowhere contended that there has been any extraneous inputs which have gone into the decision or the decision making process which has culminated in the impugned order dated 28.04.2009 passed against him. The resolution of Administrative Committee-I as well as Full Court would also not indicate that any other material having gone into at the time of arriving at a decision to accept the report of Inquiry Officer.

41. In the instant case Inquiring Authority undisputedly arrived at a conclusion that charges 1 to 6 are proved and exonerated the petitioner of charges 7 to

9. Administrative Committee-I in its meeting held on 28.08.2008 not only rejected the reply given by the DJO as not satisfactory but was also of the considered view that it is a fit case to confirm the proposed punishment. To this extent alone the petitioner DJO is aggrieved. 87

42. The second limb of the resolution of Administrative Committee-I would indicate that it extended a olive branch to the petitioner namely it was of the opinion that a lenient view is to be taken and punishment of compulsory retirement was proposed. This view of Administrative Committee-I is sought to be contended as just and proper by learned counsel for petitioner and contends said recommendation ought to have been accepted by the disciplinary as well as Appointing Authority. In other words learned counsel for petitioner by way of alternate submission has contended that atleast the recommendation of Administrative Committee-I ought to have been accepted by the Full Court. This would clearly indicate that petitioner is trying to rely upon only that portion of the recommendation of Administrative Committee-I which is in his favour and attempts to challenge the other portion which is not in his favour. The resolution 88 of Administrative Committee -I is required to be read in its entirety and not in piecemeal.

43. Be that as it may. As noticed hereinabove the Administrative Committee-I which is the limb of the High Court or the extended hand of the High Court i.e., Full Court has made only a recommendation and its resolution dated 28.08.2002 (Annexure - R-3) was only recommendatory in nature. Approving or disagreeing with the views of Administrative Committee-I was in the domain of the Full Court. As such matter came to be placed before the Full Court and after evaluation of the entire material available on record Full court resolved to accept the report of the Inquiring Authority (which in fact had also been accepted by Administrative Committee -I) and rejected the recommendation made by Administrative Committee-I for taking a lenient view and as such it was resolved by full court to confirm the proposed punishment of dismissal of DJO from service. 89 In that view of the matter, it cannot be said that there is no consideration of reply given by the DJO either by Administrative Committee-I or by the Full Court.

44. Insofar as the contention regarding re- examination of reply given by the DJO to the Inquiry Report by the appointing authority is concerned, the order of dismissal may give such an indication. In the order of dismissal it has been recorded as under:

"²æÃ. PÉ.©.¯ÉAPÀtÚªg À ï, CªÀgÀÄ ªÉÄÃ¯É (4) gÀ°è NzÀ¯ÁzÀ ¢£ÁAPÀ.26.10.2007 gÀ GvÀÛgÀ ¸À°è¹ 1 jAzÀ 6 gÀªg À V É £À DgÉÆÃ¥ÀU¼ À ÀÄ ¸Á©ÃvÁVªÉ JA§ «ZÁgÀuÁ¢üPÁjUÀ¼À ¤tðAiÀÄªÀ£ÀÄß ¤gÁPÀj¹zÁÝgÉ CªÀgÀ GvÀÛgª À £ À ÀÄß ¥Àj²Ã°¸À¯ÁV CªÀgÀÄ F »AzÉ «ZÁgÀuÉ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄAr¹zÀ CA±ÀU¼ À ÃÉ DVªÉ. CªÀÅUÀ¼° À è ¥Àj²Ã®£ÁºÀð CA±ÀU¼ À ÀÄ AiÀiÁªÀÅªÀÇ EgÀÄªÀÅ¢®è. DzÀÝjAzÀ 1 jAzÀ 66 gÀªg À V É £À DgÉÆÃ¥ÀU¼ À ÀÄ ¸Á©ÃvÁVªÉ JA§ «ZÁgÀuÁ ªÀg¢ À AiÀÄ£ÀÄß M¦àPÉÆAqÀÄ F ªÀÄÄA¢£ÀAvÉ DzÉÃ²¹zÉ."

45. It would indicate that Appointing Authority has examined the reply given by the DJO. The original file made available by the learned Additional Government Advocate during the course of the hearing would clearly indicate that after the resolution came to 90 be passed by the Full Court recommending dismissal of the petitioner from judicial service it was communicated by the Registrar General, High Court to the Secretary - Law Department enclosing a draft order for adoption with such modification vide communication dated 18.12.2008 (Annexure-M). In the said communication Sub- Rule (vii) of Rule 8 had been mentioned for imposition of penalty of dismissal from service which was not the relevant rule applicable for passing an order of dismissal and as such the Secretary-DPAR sought for clarification vide communication dated 31.01.2009, Annexure-N from Registrar General, High Court of Karnataka and same came to be clarified by the Registrar General, High Court of Karnataka on 19.02.2009 clarifying that order of dismissal is to be passed under Rule 8 (viii). The original records would indicate that on receiving such clarification from the High Court, file has been forwarded from the Office of DPAR to the Office of Chief Secretary and thereafter to 91 the Chief Minister Secretariat and it would also indicate that both the Chief Secretary and the Chief Minister have accorded their approval on 07.03.2009 and thereafter note is forwarded to the Governor of Karnataka by the Secretary-DPAR for approval. Undisputedly, Governor being the Appointing Authority order of dismissal was required to be approved by the said Appointing Authority and accordingly same has been approved on 31.03.2009 by the then Governor of Karnataka as evidenced from the original records. Pursuant thereto order of dismissal has been passed on 28.04.2009, Annexure-J. As noticed hereinabove the draft order itself emanated from the High Court which was required to be passed by the Appointing Authority. Insofar as the High Court's power of compulsorily retiring, dismissing, initiation of disciplinary proceedings, as well as the administrative control is concerned is undisputedly vested with the High Court and Governor exercises his power on the 92 recommendation or the resolution passed by the High Court. Imposition of major penalty has to be made by the Governor, being the appointing authority in view of clause (1) of Article 311 of Constitution of India, though in view of Article 235 the recommendation of the High Court in that behalf is binding on the Governor. Decision taken and recommendation made by the High Court to impose any major penalty on a member of judicial service is final and binding on the Governor. This view has been reiterated by the Hon'ble Apex Court in the case of REGISTRAR GENERAL, HIGH COURT OF ORISSA, CUTTACK V/S SISIR KANTA SATHPATHY AND OTHERS reported in (1999)7 SCC 72, it has been held to the following effect:

"15. On going through the judgments of this Court right from Shyamlal V/s State of U.P down to High Court of Judicature for Rajasthan V/s Ramesh Chand Paliwal one cannot but reach one conclusion regarding the power of the High Court in the matter of ordering compulsory retirement. That conclusion is that the High Courts are vested with the disciplinary control as well 93 as administrative control over the members of the judicial service exclusively, but that does not mean that they can also pass orders of dismissal, removal, reduction in rank or termination from service while exercising administrative and disciplinary control over the members of the judicial service. Undoubtedly, the High Courts alone are entitled to initiate, to hold Inquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of this Court that the recommendation of the High Court is binding on the State Government/Governor (vide para 18 in Inder Prakash Anand case).

16. We are clearly of the view that while the High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order (Vide Inder Prakash Anand case and Rajiah case.) 94

17. In the instant case, the decision of the Orissa High Court dated 4.2.1987 (on the administrative side) was required to be forwarded to the Governor for passing an order of compulsory retirement. That was not done. It was wrong for the High Court to have passed the order of compulsory retirement itself. The Judicial side of the High Court rightly decided the writ petition in favour of the judicial officers and held the order dated 5.2.1987 to be bad. In the words of the Division Bench of the High Court:

"there is a stronger constitutional objection to accept the submission of Shri Nayak for regarding the High Court as the appointing authority of the Chief Judicial Magistrate on the basis of what has been provided in Rule 10 of the Orissa Superior Judicial Service Rules, 1963, inasmuch as it has been laid down in Article 234 of the constitution that appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with the rules made by him in that behalf. The aforesaid rules are one set of such rules. So, no provision in the rules could have altered the constitutional position that the Governor of the State is the appointing authority of persons other than District Judges also. Conferment of this power on the High Court by virtue of what is stated in Rule 10 of the Orissa Superior Judicial Service Rules would have 95 clashed with the constitutional mandate. We would, therefore, not accept because of what is stated in Rule 10 that the High Court is the appointing authority of a Chief Judicial Magistrate."

In view of all that is stated above, we would hold that the High Court is not the appointing authority of Chief Judicial Magistrates to clothe it with the power of compulsory retirement conferred by the first proviso to Rule 71(a) of the Orissa Service Code. In this connection, may we also point out that it would be really incongruous where; though the High Court cannot retire a Munsiff, or for that matter a District Judge, as fairly conceded by Shri Nayak it would be in a position to retire a Chief Judicial Magistrate. We do not think if the concerned provisions permit us to take this view.

Before closing this aspect of the discussion, we may say that we are conscious of the legal position that passing of an order of compulsory retirement by the Governor is a formal matter as stated in Rajiah case because, according to this decision, the Governor in such cases merely acts on the recommendation of the High court by signing an order in that regard; but the procedure of the Governor formally passing an order of retirement has to be complied with. So long as there is no formal order of the Governor, the compulsory retirement as directed by the high court cannot take effect, as pined in Rajiah case itself.

Having come to the aforesaid conclusion, it is not necessary to deal with the second submission of Shri Ray that there were no materials in the present case to order for the compulsory retirement of the petitioner........"

46. In the said case Orissa High Court (on the administrative side) had passed an order of compulsory retirement against DJO without forwarding the same to the Governor and as such it was found by the Apex Court that it was wrong on the part of the High Court to have passed the order of compulsory retirement and as such the verdict of the High Court was not accepted and writ petition was decided in favour of the Judicial Officer by setting aside the order of compulsory retirement dated 05.02.1987. While moulding the relief ultimately Apex court found that certain subsequent developments have taken place namely the Full Court on the administrative side had decided to make a recommendation to the appointing authority to compulsorily retire the judicial officer concerned and 97 same came to be forwarded to the Government. However, it was not processed by the Government on account of the pendency of the matter before the Apex Court. In this background a suggestion made by the learned Advocate appearing for the judicial officer which was to the effect that Governor may be requested to pass order of compulsory retirement with effect from the date of recommendation received by the Government i.e., on 02.02.1991, came to be accepted by the learned Advocate General appearing for the State as well as counsel appearing for High Court and as such Apex Court ordered that the Officers therein would be entitled for their salary and allowances and other beneficial benefits till 02.12.1991 i.e., date on which the Governor accorded his approval for compulsory retirement of the judicial officers therein. In the instant case, High Court undisputedly has not passed any such order of dismissal against petitioner -DJO, but on the other hand Full Court had resolved by resolution dated 98 04.10.2008 proposed the punishment of dismissal from service on the petitioner and said resolution of Full Court was forwarded to the Government which in turn came to be placed before the Governor, who has accorded the sanction or approval on 31.01.2009 and thereafter order of dismissal dated 28.04.2009 (Annexure-J) came to be passed. Hence, it cannot be construed that there is any infraction of any Rule in this regard either by the disciplinary authority or the appointing authority.

47. The Hon'ble Apex Court in catena of decisions has held that the High Courts should be slow in interfering with the quantum of punishment imposed until and unless it has been established that decision making process is wrong or erroneous or in the course of arriving at a decision there has been infraction in the decision making process. It has also been held that violation of principles of natural justice would not 99 entitle the Delinquent Officer to seek for quashing of the order until and unless he has established that on account of such infraction it has resulted in prejudice to his rights. In the following judgments it has been held as under:

1. 2010 (5) SCC 349 :- UNION OF INDIA AND OTHERS V/S ALOK KUMAR-

"89. The well-established cannos controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice.

2. 2012 (2) SCC 641:- BURDWAN CENTRAL CO OPERATIVE BANK LIMITED AND ANOTHER V/S ASIM CHATTERJEE AND OTHERS-

"19. However, there is one aspect of the matter which cannot be ignored. In B.Karunakar case, despite holding that non- supply of a copy of the report of the Inquiry officer to the employee facing a disciplinary proceeding, amount to denial of natural 100 justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the Inquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the Inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits.

"20. It was also observed in B.Karunakar case that in the event the Inquiry officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the Inquiry report had not been supplied to the employee.

3. 2009 (2) SCC (L & S) 618 :- CHAIRMAN GANGA YAMUNA GRAMIN BANK AND OTHERS V/S DEVI SAHAI "22. In any event, the respondent does not show how he was prejudiced. He was supplied with a copy of the report of the inquiry officer. He even did not submit any reply thereto. As indicated hereinbefore, notices had not only been published asking the respondent to take part in the disciplinary proceedings but also chance 101 after chance had been given to him to respond to the report of the inquiry officer. We, therefore, are of the opinion that the NABARD guidelines having been issued only for the guidance of the Regional Rural Banks, the same were not mandatory in character and in any event the respondent was not prejudiced by reason of non- compliance therewith."

48. In the instant case petitioner contends that on account of non furnishing of requisite documents along with Inquiry Report it has resulted in prejudice to his rights. Petitioner contends as per requisitions dated 08.05.2009 and 28.01.2011, Annexure-K & P respectively following documents had been sought for and none of them were furnished.

1. Copies of the Articles of charges

2. Copies of the all deposition

3. Copies of the Inquiry report

4. Copies of the show cause notice

5. Copies of the all exhibits Petitioner does not dispute the receipt of Article of charges, show cause notice, Inquiry report even prior to 102 filing of above said requisitions. It is not in dispute that DJO has submitted his reply to the articles of charges on 17.10.2005. It is also not in dispute that DJO has submitted a detailed reply to the Inquiry report as well as to the show cause notice on 26.10.2007 vide Annexure-G. Nowhere, petitioner has contended that the Disciplinary Authority has not furnished the documents sought for by him. The original records made available by the Additional Government Advocate would also indicate that under Rule 11 of CCA Rules an application came to be filed by the petitioner on 22.09.2006 seeking for copies of depositions of P.W.8 to P.W.12 and it has been furnished to him and learned Advocate appearing on behalf of DJO has acknowledged the receipt of same on the copy application itself, which would indicate that DJO has received those documents. Subsequently on 09.06.2009 i.e., after the order of dismissal came to be passed certain documents were sought for by the petitioner and same has also been 103 furnished as evidenced from the note sheet maintained by the Disciplinary Authority, which file is made available by the learned Additional Government Advocate for perusal by this court. These facts would clearly establish that as and when DJO has sought for documents it has been furnished to him and at no point of time he has complained on this issue.

49. At this juncture it would be appropriate to examine the contention of Sri.S.V.Narasimhan that on account of non furnishing of requisite documents petitioner's defense as well as his right to defend himself effectively has been truncated by relying upon the judgment of STATE OF UTTARANCHAL AND OTHERS V/S KHARAK SINGH reported in 2008 (8) SCC 236 whereunder it has been held as follows:

"20. A reading of the Inquiry report also shows that the respondent herein was not furnished with the required documents. The Department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit 104 before the High Court in the writ proceedings, those averments were specifically controverted in the reply-affidavit filed by the Department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the Inquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all theses infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the Inquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.

50. On facts it has been noticed by their lordships in the above referred judgment that document which was sought for by the Delinquent Officer during the course of Inquiry was not furnished to him. It was also found that departmental witnesses were not examined in the presence of the delinquent employee. The averments made and grounds urged in the writ petition by the delinquent employee in this regard before 105 the High Court was not controverted or denied by the department. There was no material available on record to establish that Inquiry Report was furnished to the delinquent employee. As such Apex Court found that there were infirmities in the domestic enquiry which had also been brought to the notice of the appellate authority by delinquent employee and not addressed to and as such order of dismissal came to be interfered. In the instant case as noticed from facts, at no point of time petitioner had raised his little finger to pin point that he has not been furnished with copies of documents sought for by him or on account of non furnishing of such documents he had been handicapped to proceed with the Inquiry. Petitioner contends a memo had been filed before the Disciplinary Authority on 08.05.2009 vide Annexure - K requesting for furnishing of documents therein and that on account of non- furnishing of documents sought for by petitioner Inquiry 106 was vitiated as also consequential order of dismissal passed against the petitioner.

51. In fact as rightly pointed out by the learned Additional Government Advocate even during the pendency of the Inquiry, certain documents were sought for by the DJO by submitting a copy application under Rule 11 CCA Rules and same had been furnished to him and it was duly acknowledged by his learned Advocate. Insofar as Inquiry report is concerned there cannot be any dispute with regard to the fact that inquiry report has been received by the DJO himself. Undisputedly articles of charges dated 06.09.2005 came to be replied by the DJO himself on 17.10.2005.

52. It can also be noticed that in the instant case when petitioner submitted a reply to the second show cause notice on 26.10.2007 Annexure-G no contention has been raised regarding non-furnishing of documents, but on the other hand he has taken up said 107 ground in the present writ petition. The Inquiry Report has been furnished along with the show cause notice dated 11.10.2007 Annexure-D and it has been duly acknowledged by the DJO himself and replied to the same on 26.10.2007 as per Annexure-G. In the objection statement Annexure-G, DJO does not state or contend that he had sought for grant of copies and same had not been furnished to him and as such he has been prejudiced. He does not state in his reply dated 26.10.2007 Annexure-G as to what are the documents he sought for either during the course of the Inquiry or immediately thereafter which has been denied to him.

53. In the writ petition no ground is urged in this regard about non furnishing of documents. Even otherwise mere pleading would not be sufficient. Petitioner has to establish that on account of non furnishing of documents or those documents on which 108 he intended to rely upon was not made available to him which had resulted in great prejudice and petitioner is also required to demonstrate that charges imputed against him were false and on account of non furnishing of these documents he was unable to defend himself effectively and as such it has resulted in prejudice to his rights. Essential requirement is the prejudice that is being caused on account of non furnishing of these documents. In the instant case petitioner has utterly failed to demonstrate:

(1) Though he made prayer seeking for documents it was not furnished;

(2) Non furnishing of same by the Disciplinary Authority despite application or request being made; and, (3) On account of non-furnishing of those documents it has caused 109 him prejudice, and thereby enquiry is bad and consequently order of dismissal is vitiated.

None of these ingredients are present in the instant case.

54. In view of the discussion made hereinabove, I am of the considered view that points 1 and 2 formulated hereinabove has to be answered against petitioner.

Hence, I pass the following:

ORDER

(i) Writ petition is hereby dismissed.

(ii) Order dated 28.04.2009, Annexure -J is hereby affirmed.

(iii) No costs.

        (iv)    Rule discharged.



                                                Sd/-
                                               JUDGE
SBN/DR

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Karnataka High Court