1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.29600/2018 (S - DE)
BETWEEN
1. DR. PUSHPA SARKAR
W/O RAMESH SARKAR,
AGED ABOUT 57 YEARS,
WORKING AS DIRECTOR,
RAJEEV GANDHI UNIVERSITY OF
HEALTH SCIENCES,
BENGALURU - 560 041.
2. DR.B.DEVANAND
S/O LATE B.P.OBAIAH,
AGED ABOUT 54 YEARS,
WORKING AS PROFESSOR AND
HEAD OF THE DEPARTMENT,
DEPARTMENT OF ANAESTHESIA,
KOPPAL INSTITUTE OF MEDICAL SCIENCES,
KOPPAL - 583 231.
3. DR.G.GURUSHANKAR
S/O LATE GURUVAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT NO.3601, 70TH CROSS,
14TH MAIN, 2ND STAGE,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
4. DR.K.M.SHIVAKUMAR
2
S/O LATE K.MARIGOWDA,
AGED ABOUT 56 YEARS,
WORKING AS PROFESSOR AND
HEAD OF THE DEPARTMENT,
DEPARTMENT OF GENERAL MEDICINE,
MANDYA INSTITUTE OF MEDICAL SCIENCES,
MANDYA - 571 401.
... PETITIONERS
(BY SRI M.S.BHAGWAT, ADVOCATE
(VIDEO CONFERENCING))
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION),
REPRSENTED BY
ADDITIONAL CHIEF SECRETARY,
M.S.BUILDING, BENGALURU - 560 001.
2. THE GOVERNMENT COUNCIL
MANDYA INSTITUTE OF MEDICAL SCIENCES,
REPRESENTED BY ITS CHAIRMAN,
MANDYA - 571 401.
3. MANDYA INSTITUTE OF MEDICAL SCIENCES
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER,
MANDYA - 571 401.
4. THE VICE - CHAIRMAN
MANDYA INSTITUTE OF MEDICAL SCIENCES,
EX-OFFICIO ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION),
M.S.BUILDING, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI R.SRINIVASA GOWDA, AGA FOR
3
R1 (PHYSICAL HEARING;
SRI SATISH M.DODDAMANI, ADVOCATE FOR
R2 TO R4 (VIDEO CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DTD 25.06.2018 PASSED BY THE R-4 [ANNEXURE-A] .
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.11.2020, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDER
The petitioners have filed this writ petition calling in question the order dated 25.06.2018, passed by the fourth respondent directing conduct of a de novo enquiry on the same charge sheet by a different Enquiry Officer.
2. Filtering out unnecessary details, the facts that are germane for consideration in the writ petition are as follows:
The first petitioner was appointed on 06.06.2006, as a Professor and Head of the Department in Biochemistry in the third respondent - Mandya Institute of Medical Sciences (hereinafter referred to as 'the Institute' for short). The second petitioner was appointed as a Director and discharged his duties in the Institute from 02.07.2012 to 20.03.2013 and 4 is presently working as Professor and Head of the Department in the Department of Anaesthesia, Koppal Institute of Medical Sciences, Koppal. The third petitioner was also appointed as a Director of the Institute has worked from 25.05.2011 upto 02.07.2012 and now has retired on attaining the age of superannuation. The fourth petitioner was appointed as Medical Superintendent in the Institute on 28.06.2012 and functioned as such upto 21.11.2015 and presently working in the Institute as Professor and Head of the Department in the Department of General Medicine of the said Institute.
3. It is said that during the years 2012-2015, the Institute took a decision to purchase medicines and various other medical supplies. The Finance Committee of the Institute approved 39 subjects of the kind on 19.06.2014. The Purchase Committee of the Institute took several decisions to purchase medicines by way of tender in terms of its resolution dated 11.07.2014. Pursuant to all the aforesaid proceedings, the Governing Council of the Institute by a 5 resolution dated 22.08.2014, approved the decision of the Finance Committee.
4. After all the aforesaid proceedings, a complaint was lodged by one Venkatesh before the first respondent - Government against the petitioners alleging that they were responsible for several irregularities. It is said that the first respondent examined the file and closed the enquiry in the year 2015. The complainant did not stop at that, he again registered a complaint before the second respondent - Governing Council of the Institute to hold an enquiry against the petitioners during the respective period of their functioning in their respective posts in the Institute.
5. In furtherance of the said complaint, the fourth respondent - the Vice Chairman and Ex-Officio Additional Chief Secretary of the Government issued a charge sheet against all the petitioners on 29.07.2015. On 16.11.2015, it appears that the matter was placed before the Governing 6 Council who resolved to appoint a retired District Judge as an Enquiry Officer to hold enquiry against the petitioners in terms of the charge sheet dated 29.07.2015. The Institute examined as many as 20 witnesses and marked about 34 documents against the petitioners and on submission of the defence statements, the enquiry was concluded. On consideration of the brief of the Presenting Officer and the defence statements of the petitioners, the Enquiry Officer held that the charges levelled against the petitioners as not proved. Notwithstanding the clear findings of the Enquiry Officer, the first respondent - Government directed the same Enquiry Officer on 08.01.2018, to hold further enquiry on the basis of a Vigilance Report. The Enquiry Officer after examining the Vigilance Report, submitted that no further enquiry can be held as the Enquiry Officer has conducted a full fledged enquiry. The fourth respondent then appointed a new Enquiry Officer to conduct a de novo enquiry against the petitioners on the same charges by his order dated 25.06.2018. It is this 7 order that is called in question by the petitioners in the writ petition.
6. Heard Sri M.S.Bhagwat, learned counsel for petitioners, Sri Srinivasa Gouda, learned Additional Government Advocate for the first respondent and Sri Satish M. Doddamani, learned counsel for second to fourth respondents.
7. Sri M.S.Bhagwat, learned counsel for the petitioners would vehemently argue and contend that the Enquiry Officer who was appointed by the Institute to hold an enquiry had submitted a detailed enquiry report holding the petitioners not guilty of the charges. The report of the Enquiry Officer runs into about 50 pages and on elaborate reasoning, has rendered his findings. The Disciplinary Authority who did not accept the findings of the Enquiry Officer directed to conduct a de novo enquiry on the same charges by a different Enquiry Officer, which is contrary to law as there can be no enquiry for same 8 set of charges which is already conducted by one Enquiry Officer. The impugned order directing de novo enquiry by different Enquiry Officer is contrary to the law laid down by the Apex Court in the case of K.R.DEB VS. THE COLLECTOR OF CENTRAL EXCISE, SHILLONG reported in 1971 (2) SCC 102, CSHA UNIVERSITY AND ANOTHER VS. B.D.GOYAL reported in (2010) 15 SCC 776 and so also in the case of VIJAY SHANKAR PANDEY VS. UNION OF INDIA AND OTHERS reported in 2014 (10) SCC 589.
8. On the other hand, learned Additional Government Advocate appearing for the State and learned counsel for second to fourth respondents, Sri Satish M. Doddamani, would in unison submit that it was always open to the Disciplinary Authority to direct for conduct of a further enquiry as the Enquiry Officer has not taken into consideration certain aspects which ought to have been taken into consideration in terms of the charges leveled against the petitioners. They would submit that there is no illegality or infirmity in the 9 impugned order directing conduct of de novo enquiry at the hands of a new Enquiry Officer as the Enquiry Officer who has exonerated the petitioners chose not to conduct any further enquiry. They would further submit that the writ petition is premature as no enquiry or findings or any penalty is imposed upon the petitioners pursuant to the impugned order.
9. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
10. The only issue that falls for my consideration in the writ petition is, whether in the facts and circumstances of the case, a de novo enquiry ordered by the fourth respondent at the hands of a different Enquiry Officer is legal and valid?
11. Facts are not in dispute. Charge sheet was issued against the petitioners pursuant to the resolution of the Governing Council and an Enquiry Officer by name 10 Sri M.S.Hegde Nagre, a retired judge was appointed to conduct the enquiry against the petitioners. The enquiry proceedings commenced against the petitioners in terms of the charge sheet dated 29.07.2015, and the Enquiry Officer by his detailed report held that the allegations levelled against the petitioners in the charge sheet were not proved, by his report dated 01.10.2016. After submission of the enquiry report, the Disciplinary Authority on 16.08.2017, communicated that the Lokayuktha has submitted a vigilance report and directed further enquiry to be conducted under Rule 11A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as 'the KCS(CCA) Rules' for short). To this communication, the vigilance report of the Lokayuktha was also annexed. The Enquiry Officer after examining the vigilance report submitted, declined by his communication dated 06.09.2017, to hold further enquiry on the ground that he has been directed to withdraw the earlier findings and conduct further enquiry as 11 also on the ground that his enquiry report does not suffer from any infirmity.
12. After the refusal of the Enquiry Officer to hold further enquiry, the fourth respondent passed the impugned order. The operative portion of which reads as follows:
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(emphasis supplied) A perusal at the extracted portion of the impugned order would in unmistakable terms indicate that a de novo enquiry / second enquiry was directed to be conducted by a new Enquiry officer. This is clearly impermissible in law in the light of the law laid down by the Apex Court in the following judgments:
a. K.R. DEB v. THE COLLECTOR OF CENTRAL EXCISE, SHILLONG reported in (1971) 2 SCC 102 at page 105:
"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time 14 of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9."
b. CSHA UNIVERSITY AND ANOTHER v. B.D. GOYAL reported in (2010) 15 SCC 776:
"6. Mr Mahabir Singh appearing for the University contended that the aforesaid conclusion of the High Court must be held to be erroneous, more so, it was the Vice-Chancellor, in the case in hand, who had recorded his reasons and grounds for a de novo enquiry through a different enquiring officer. We had called upon Shri Singh to produce the relevant orders of the Vice-Chancellor whereunder he has disagreed with the conclusions of the enquiring officer, and today he has produced before us the relevant order, in the order-sheet containing the Vice-Chancellor's order. Having examined the same, we are unable to accept the contentions that the Vice- Chancellor has recorded in writing his reasons for disagreement with the finding of the enquiring officer and for directing afresh de novo enquiry through another enquiring officer.
7. It is no doubt true that the punishing authority or any higher authority could have disagreed with the finding of the enquiring officer, 15 but in such a case the authority concerned is duty- bound to record reasons in writing and not on ipse dixit can alter the finding of an enquiring officer. The order of the Vice-Chancellor, which was produced before us does not satisfy the requirements of law in the matter of differing with the findings of an enquiring officer. In that view of the matter, we do not find any infirmity with the impugned judgment so as to be interfered with by this Court. This appeal accordingly fails and is dismissed."
(emphasis supplied) c. Vijay Shankar Pandey v. Union of India, reported in (2014) 10 SCC 589:
"24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the enquiry already undertaken and resort to appointment of a fresh enquiring authority (multi-member)? The issue is not really whether the enquiring authority should be a single member or a multi-member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. CCE [K.R. Deb v. CCE, (1971) 2 SCC 102] , examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a Sub-
Inspector, Central Excise (the appellant before this Court). The enquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another enquiry officer "to conduct a supplementary 16 open inquiry". Such supplementary inquiry was conducted and a report that there was "no conclusive proof" to "establish the charge" was made. Not satisfied, the disciplinary authority thought it fit that "another enquiry officer should be appointed to inquire afresh into the charge".
25. The Court in K.R. Deb [K.R. Deb v. CCE, (1971) 2 SCC 102] held that: (SCC p. 105, paras 12-13) "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not 17 warranted by the Rules but was harassing to the appellant."
(emphasis supplied) and allowed the appeal of K.R. Deb [K.R.
Deb v. CCE, (1971) 2 SCC 102] .
26. It can be seen from the above that the normal rule is that there can be only one enquiry. This Court has also recognised the possibility of a further enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the report submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry.
(emphasis supplied) In the light of the law laid down by the Apex Court in the afore-extracted judgments, a de novo / second enquiry is impermissible in law merely because the Disciplinary Authority does not accept the findings of a particular Enquiry Officer. The law laid down by the Apex Court in the said cases is applicable to the facts of the case at hand on all fours and the impugned order directing a de novo enquiry against the 18 petitioners on the same charge sheet by a different Enquiry Officer falls foul of the law laid down by the Apex Court in the said cases. As a consequence, the order impugned will have to be set aside, setting aside of the order impugned will not however, be an impediment to the Disciplinary Authority to take action on the enquiry report submitted by the earlier Enquiry Officer, in accordance with law. Therefore, the following:
ORDER a. The writ petition is allowed.
b. The impugned order dated 25.06.2018 in bearing No.AaaKuKa 176 MPS 2015 is hereby quashed.
c. The fourth respondent is reserved liberty to proceed further, in accordance with law, on the findings of the Enquiry Officer dated 01.10.2016.
d. No order as to costs.
Sd/-
JUDGE nvj CT:MJ