Karnataka High Court
Sri V Narayana vs The Karnatka Power Transmission on 9 December, 2015
Bench: Mohan M. Shantanagoudar, B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2015
PRESENT
THE HON' BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No. 24273/2015 (GM-KLA)
BETWEEN:
SRI. V. NARAYANA,
AGED 54 YEARS,
S/O VENKATEGOWDA,
ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL),
OPERATION AND MAINTENANCE SUB-DIVISION,
CESCOM, CHENNARAYAPATNA-573 116,
HASSAN DISTRICT. ... PETITIONER
(BY SRI. SUBRAMANYA JOIS, SR. COUNSEL FOR
SRI. K. C. SHANTHAKUMAR, ADVOCATE)
AND:
1. THE KARNATKA POWER TRANSMISSION
CORPORATION LTD.,
CAUVERY BHAVAN,
K. G. ROAD,
BANGALORE-560 009.
REPRESENTED BY ITS MANAGING DIRECTOR,
2. THE DIRECTOR (ADMN & HUMAN RESOURCES),
KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
CAUVERY BHAVAN, K. G. ROAD,
BANGALORE-560 009.
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3. THE KARNATAKA LOKAYUKTA,
M. S. BUILDING, VIDHANA VEEDHI,
BANGALORE-560 001
REPRESENTED BY ITS REGISTRAR,
4. THE UPA-LOKAYUKTA,
KARNATAKA STATE,
M. S. BUILDING,
VIDHANA VEEDHI,
BANGALORE-560 001.
5. THE ADDITIONAL REGISTRAR
OF ENQUIRES-10,
KARNATAKA LOKAYUKTA,
M. S. BUILDING,
VIDHANA VEEDHI,
BANGALORE-560 001.
6. THE STATE OF KARNATAKA,
DEPARTMENT OF ENERGY,
VIDHANA SOUDHA,
VIDHANA VEEDHI,
BANGALORE-560 001.
REPRESENTED BY ITS,
PRINCIPAL SECRETARY, ... RESPONDENTS
(BY SRI. I.G. GACHCHINAMATH, ADVOCATE FOR
SRI. GURUDEV I GACHCHINAMATH, ADVOCATE
FOR R-1 & R-2, SRI. G. DEVRAJ, ADVOCATE FOR R-3 to R-
5, SRI. H.B. MAHESH HCGP FOR R6)
*******
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE ENTIRE RECORDS RELATING TO CONCERNING AND
CONNECTED WITH ENQUIRY REPORT DATED 29.11.2014 VIDE
ANNEXURE-L PASSED BY RESPONDENT NO.5
RECOMMENDATION DATED 10.12.2014 VIDE ANNEXURE-M
PASSED BY THE RESPONDENT NO.4 AND FINAL NOTICE DATED
15.5.2015 VIDE ANNEXURE-N PASSED BY THE RESPONDENT
NO.2, PERUSE THE SAME AND DECLARE THEM AS DEVOID OF
THE AUTHORITY OF LAW AND HENCE UNSUSTAINABLE IN LAW.
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THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED IS COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING:
ORDER
The above writ petition is filed for seeking to quash the enquiry report, recommendation and final notice contending that he was an officer subordinate to the Executive Engineer (Electrical) [only a recommending authority in respect of estimates and works to be undertaken by the Karnataka Power Transmission Corporation Ltd., (hereinafter referred to as the 'KPTCL' for short)]; and he had completed his part of duty as an Assistant Executive Engineer on 7.12.2009 itself, whereas a day later, knowingly a false complaint having been lodged against him, he was prosecuted and tried before the District and Sessions Judge, Chamarajanagar in Special Case No.7/2011; during the pendency of said case, a parallel proceedings were initiated before the Lokayukta; a charge sheet was 4 issued against him to which, he had replied; after conducting the enquiry, the enquiry officer submitted a report on 29.11.2014 holding that the charges are proved against him. On the basis of the enquiry report, the Upalokayukta by a recommendation dated 10.12.2014 agreeing with the enquiry report, recommended the Disciplinary Authority to impose major penalty of removal of Delinquent Government Officer (hereinafter referred to as the 'DGO' for short) from service in terms of the provisions of Rule 8(viii) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short hereinafter referred to as the 'KCS (CCA) Rules, 1957). On the basis of the enquiry report and the recommendation made, the Disciplinary Authority issued a final notice on 15th May, 2015 along with enquiry report and issued a show cause as to why action should not be taken against the petitioner within 15 days, against which, the present writ petition is filed.
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2. We have heard the learned Counsel for the parties to the lis.
3. Sri Subramanya Jois, learned Senior Counsel appearing for Sri K.C. Shantakumar, advocate for the petitioner vehemently contended that the impugned orders passed by the respondents are arbitrary; they have not appreciated that there is no incriminating evidence to bring home the guilt of the charges leveled against him; the evidence of some of the witnesses have been critically examined by the District and Sessions Judge which has resulted in acquitting him in a criminal case; and the said aspect of acquittal have not been considered by the authorities while proceeding to pass the impugned orders. He also contended that the report of enquiry officer and recommendation are without any basis; the enquiry report as well as recommendation border on perversity as well. He further placed reliance on the dictum of the 6 Division Bench of this Court in the case of KPTCL -vs- Javarai Gowda and Another made in Writ Appeal No.8594/2012 [D.D. 18thFebruary 2015] to contend that the Upalokayukta has no power to sit in judgment over the report of the Enquiry Officer and the recommendation made to impose penalty is bad in law and is not sustainable. Therefore, he sought to set aside the impugned orders passed by the respondents.
4. Per contra, Sri I.G. Gachchinamath for Sri Gurudev I. Gachchinamath, learned Counsel for respondent Nos. 1 and 2; G. Devaraj, learned Counsel for respondent Nos. 3 to 5 and H.B. Mahesh, learned HCGP for respondent No.6 sought to justify the impugned action of the respondents contending that the very writ petition filed by the petitioner is premature; he was trapped on 9.12.2009 by the Upalokayukta Police while accepting illegal gratification of Rs.2,000/- from one Girisha of Uddanuru village, Kollegal Taluk to show 7 official favour for replacing of the burnt transformers. Therefore, they sought for dismissal of the writ petition.
5. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.
6. It is not in dispute that a trap was laid and the petitioner had been arrested, in pursuance of which, a criminal case has been lodged against him. It is no doubt true that in the criminal Special Case No.7/2011 by an order dated 13th December, 2013, the petitioner has been acquitted holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore, the accused is entitled for the benefit of doubt and consequently, acquittal.
7. Mere acquittal in a criminal case is not a bar to initiate departmental enquiry independently. Accordingly, by virtue of the order passed by the State 8 Government on 8.8.2011, the matter was entrusted to the Upalokayukta to hold enquiry. Accordingly, the enquiry officer issued the following Articles of Charge to the petitioner on 9.2.2012, that:
"while he was working as an Executive Engineer (Electrical) of CESCOM at Hunuru Sub-Division, Kollegal Taluk, Chamarajanagar District, about 1 ½ months earlier to 8.12.2009 a transformer of 63 KV had been installed for supply of electricity at Uddanur village to some I.P. Sets including I.P. set of the complainant, and as that much capacity was not sufficient, about 20 days earlier to 8.12.2009, the complainant had filed a complaint along with his villagers requesting for installation of another transformer and in the meantime, the earlier transformer was burnt and therefore, the complainant and others requested the petitioner to install the transformers of 63 KV each for which the petitioner demanded bribe of Rs.3,000/- to install two transformers 9 and then the complainant pleaded inability and paid Rs. 1000/- to him; while accepting the balance of Rs.2000/, he was trapped and thereby, he had failed to maintain absolute integrity and devotion to duty. He was also issued with statement of imputations of misconduct along with Articles of Charges."
Thereafter, a notice was issued to the petitioner to file his defence. He was permitted to produce the documentary evidence and also to verify the records. The petitioner filed his reply and participated in the enquiry proceedings.
8. The Disciplinary Authority examined itself as P.W.1 and 3 other witnesses as P.Ws.2, 3 and 4. The DGO examined himself as D.W.2 and another witness on his behalf as D.W.1 - Sri K.M. Ramalingaiah. The DGO engaged an advocate - Sri KMM, on his behalf and all the witnesses - P.Ws.1 to 4 were cross-examined. 10 After detailed enquiry, the enquiry report was submitted on 29.11.2014 after following all the procedures as contemplated.
9. The enquiry officer after considering the entire oral evidence of P.Ws. 1 to 4, D.Ws. 1 to 2 and the documentary evidence Exs.P.1 to 7 and Exs.D.1 to 5 held that, on close scrutiny of the evidence of D.W.2 (DGO), he has admitted the presence of investigating officer, panchas, place and time and the seizure of the amount from his chambers. The defence of the DGO is that the bait amount was kept on the table and it was seized, but whereas it is the case of the Disciplinary Authority that this DGO demanded the bribe and accepted it, thereafter counted the notes, kept them in his shirt pocket which amount is produced by the DGO before the investigating officer and panchas, and the same is seized. It has also observed that the acquittal of the DGO in a regular criminal case has nothing to do 11 with the disciplinary proceedings. Both are distinct and different. Accordingly, it held that there is proof of demanding and accepting bribe amounting to misconduct. Accordingly, he held that the charge levelled against the petitioner is proved. The report was submitted to the Upalokayukta by the enquiry officer.
10. The recommendations made by the Upalokayukta shall have to be treated as report as contemplated under the provisions of Section 12(3) of the Lokayukta Act and ultimately, it is left to the Disciplinary Authority to accept the said enquiry report or disagree with the recommendation. Therefore, the Disciplinary Authority issued show cause notice to the DGO/petitioner to file objections, if any. Instead of filing objections to the said show cause notice, the present petition is filed.
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11. The very approach of the petitioner challenging the enquiry report, recommendation made by the 2ndrespondent and the notice, is premature and the same cannot be quashed at the initial stage. The writ petition filed by the petitioner is not maintainable at this stage and the same is liable to be dismissed.
12. It is not in dispute that on the basis of the enquiry report and recommendation, now the Disciplinary Authority has issued final notice. It is for the petitioner to explain and file objections to the said show cause notice issued by the Disciplinary Authority and thereafter, it is left for the Disciplinary Authority to consider the said objections and pass orders after giving an opportunity to the petitioner in the interest of justice. Instead of submitting an explanation, the petitioner has straight away approached this Court under Articles 226 and 227 of the Constitution of India 13 which is misconceived and hence, the writ petition is a premature.
13. The Hon'ble Supreme Court in the case of State of Uttar Pradesh -vs- Brahm Datt Sharma reported in 1987 SCC (2) 179 has held that when a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice shown have been issued palpably without any authority of law. Otherwise the very writ petition filed by the petitioner was not maintainable. The same view has been reiterated by the Hon'ble Supreme Court in the case of Union of India -vs- Kunisetty Satyanarayana reported in (2007) 2 SCC (L & S) page 304 wherein at paragraphs 13 14 to 16 it has held that a writ petition against the show cause notice is not maintainable.
14. The Apex Court while considering the provisions of Articles 311 and 226 of the Constitution of India in the case of Secretary, Ministry of Defence -vs- Prabhash Chandra Mirdha reported in AIR 2012 SC 2250 has held as under:
"13. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings 15 had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
15. Though the learned Senior Counsel relied upon a judgment of a Division Bench of this Court in the case KPTCL -vs- Javarai Gowda and Another in WA No. 8594/2012 [D.D. 18th February, 2015] wherein the enquiry officer submitted a report holding that the charges levelled against the DGO has not been proved and in spite of the same, the Upalokayukta, on his own opinion, has disagreed with the finding of the enquiry officer holding that the charges are proved and recommended the Disciplinary Authority to impose punishment of compulsory retirement and under those circumstances, this Court has held that the Upalokayukta has no power to sit over a report of the 16 enquiry officer and the recommendation made by him is bad in law.
16. In the present case admittedly, the petitioner has participated in the enquiry proceedings and he has not raised any finger in the enquiry proceedings and ultimately, the enquiry report is submitted holding that the charges are proved. The report was accepted by the Upalokayukta and a recommendation was made to the Disciplinary Authority. Now the Disciplinary Authority has issued a final notice and ultimately, it is for the Disciplinary Authority to take a decision in accordance with law. Therefore, in the facts and circumstances of the present case, the facts of the judgment relied upon by the learned Senior Counsel for appellant has no application to the present case. Therefore, the writ petition is not maintainable. Accordingly the writ petition is liable to be dismissed.
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17. In view of the aforesaid reasons, we pass the following:
ORDER
a) Writ Petition filed by the petitioner against the enquiry report, recommendation and final notice issued by the Disciplinary Authority is dismissed as premature;
b) We make it clear that, the recommendation made by the Upalokayukta shall be treated as the report under the provisions of Section 12(3) of the Lokayukta Act, 1984;
c) The petitioner is permitted to file objections to the final show cause notice within 15 days from the date of receipt of a copy of this order;
and
d) The Disciplinary Authority is directed to consider the objections and after giving an 18 opportunity to the petitioner, pass orders in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-