Sri. M. R. Srinivasa Reddy vs The State Of Karnataka
2021 Latest Caselaw 126 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

               W.P.No.41410/2017 (S - KAT)

BETWEEN :

SRI M.R.SRINIVASA REDDY
S/O M.RAMAREDDY,
AGED ABOUT 65 YEARS,
RETIRED AUDIT OFFICER
R/AT NO.775, SRINIVASA NILAYA,
ANNAIAHAPPA LAYOUT,
KONENA AGRAHARA, HAL POST
BENGALURU -560 017                              ...PETITIONER

               (BY SRI S.B.MUKKANNAPPA, ADV.)

AND :

1.      THE STATE OF KARNATAKA
        REP BY ITS PRINCIPAL SECRETARY,
        WATER RESOURCES DEPARTMENT
        VIKASA SOUDHA,
        BENGALURU-560 001

2.      THE CONTROLLER OF STATE ACCOUNTS
        6TH FLOOR, CAUVERY BHAVAN,
        K.G. ROAD,
        BENGALURU-560 001
                         -2-

3.    THE EXECUTIVE ENGINEER
      MANCHANABELE PROJECT DIVISION,
      RAMANAGARA DISTRICT,
      BENGALURU-562 159                  ...RESPONDENTS

           (BY SRI A.C.BALARAJ, AGA FOR R-1 & R-2;
     VIDE COURT ORDER DATED 09.11.2020 NOTICE TO R-3
                       DISPENSED WITH.)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 21.04.2017 PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL IN SO FAR AS RELATES TO
APPLICATION No.3682/2011 OF THE PETITIONER AND AS WELL
AS THE REVIEW APPLICATION ORDER DATED 21.07.2017
PASSED    IN   REVIEW     APPLICATION   No.92/2017   AND
CONSEQUENTLY ALLOW THE APPLICATION No.3682/2011.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, S. SUJATHA, J., MADE THE
FOLLOWING:

                       ORDER

The petitioner has called in question the order

dated 21.04.2017 insofar as it relates to Application

No.3682/2011 as well as the order dated 21.07.2017

passed in Review Application No.92/2017 passed by the

Karnataka State Administrative Tribunal at Bengaluru.

2. The petitioner is a retired Audit Officer. He

was working as an Audit Officer in the State Accounts

Department. The petitioner claims to have worked at

Bennethora Project, IPC Division No.1, Gulbarga for the

period from 08.09.2003 to 19.11.2004 for a period of

one year three months. That when he was working on

deputation in Irrigation Department in the Office of the

Executive Engineer, Manchanabele Project Division,

Ramanagara, the respondent No.1 has initiated the

disciplinary proceedings against the petitioner and

served with Articles of Charge dated 04.04.2008. The

gist of the charges leveled against the petitioner is that

when he was working as Audit Officer at Bennethora

Project, IPC Division No.1, Gulbarga, he has not

remitted the subscription amount of the employees of

the Gulbarga Division and its sub-divisions relating to

GPF, KGID, EGIS, PT, Income Tax and other deductions

to its concerned head and he is responsible for misuse

of amount of Rs.25,88,386/-. He being an Audit Officer

has not taken any action against the concerned even

though it came to his knowledge that the amount were

not credited to the various heads of the accounts as

alleged which amounts to misconduct.

3. The petitioner has submitted his reply to the

Articles of Charges on 22.05.2008 denying the same. It

was specifically contended that the alleged

misappropriation amount reported was for the period

from 20.11.2004 to 10.05.2005 during which period he

was not working in that division. Hence, sought for

exoneration from the alleged charges. The Vigilance Cell

has submitted report on 03.04.2007 pursuant to the

directions issued by the respondent No.1. A joint

enquiry was conducted along with the 13 others. The

petitioner remained ex-parte before the Enquiry Officer.

The Enquiry Officer submitted a report holding the

petitioner guilty of the charges leveled against him. On

receipt of the enquiry report, the Disciplinary Authority

issued second show-cause notice to the petitioner along

with the enquiry report asking the petitioner to submit

his representation, if any, on the findings of the Enquiry

Officer pursuant to which the petitioner has submitted

his reply to the second show-cause notice on

09.02.2010 stating that during the period from

08.09.2003 to 19.11.2004, the amounts deducted

towards GPF, KGID, EGIS, PT, Income Tax etc., from

the employees salary has been credited to the respective

heads and he is not responsible for any

misappropriation occurred during the period February,

2005 to July, 2006. The disciplinary authority

accepting the findings of the Enquiry Officer exonerated

10 officials out of 14 officials against whom the joint

enquiry was initiated and imposed a punishment of

recovery of Rs.5,17,677/- with interest at the rate of 8%

per annum and withholding two annual increment with

cumulative effect as far as the present petitioner is

concerned.

4. The petitioner being aggrieved by the

punishment order dated 23.03.2011 has approached

the Karnataka State Administrative Tribunal,

Bengaluru, in Application No.3682/2011 which was

clubbed with the identical matters. The Tribunal by a

common order dated 21.04.2017 dismissed the

application filed by the petitioner. The petitioner filed

Review Application No.92/2017 before the Tribunal

under Regulation No.3 of the Karnataka State

Administration Tribunal (Review Applications)

Regulation, 1994 which came to be rejected on

21.07.2017.

5. Being aggrieved by the aforesaid orders of

the Tribunal, the petitioner has preferred the present

petition.

6. Learned counsel for the petitioner submitted

that the documents would demonstrate that the alleged

misappropriation of the funds occurred during

February, 2005 to July, 2006; the petitioner had worked

in the Office of the Executive Engineer, Bennethora

Project, IPC Division No.1, Gulbarga during 08.09.2003

to 19.11.2004, but the disciplinary proceedings were

initiated against the petitioner and others on the basis

of the report of the Inspector General of Police, Vigilance

Cell, Water Resources Department dated 03.04.2007

which discloses the misappropriation of funds due to

non-remittance of GPF, KGID, PT, arrears of salary for

the period from February, 2005 to July, 2006. This vital

aspect has not been considered properly by the Enquiry

Officer or the Disciplinary Authority. The Tribunal has

not properly appreciated the same. The Tribunal

without considering the individual cases on the facts

has passed the common order. The reasoning of the

Tribunal in rejecting the application is not sustainable.

Further the review application filed by the petitioner has

been rejected sans appreciating the grounds of review.

7. Learned counsel inviting the attention of the

Court to Annexure - A5, the evidence recorded before

the Enquiry Officer argued that in the cross-

examination of the Executive Engineer, he has

unequivocally stated that the alleged misappropriation

of funds to an extent of Rs.23,37,600/- was relating to

the period, February 2005 to July 2006 and the same

was not examined for the previous years. It was pointed

out that the statement of imputation at Appendix - 2 is

different from the charges at Appendix - 1. In the

statement of imputation, the period of alleged

misappropriation of funds is mentioned as 20.11.2004

to 10.05.2005 though in the Articles of charge, the

period was mentioned as 08.09.2003 to 19.11.2004 for

which the petitioner has replied as per the reply dated

22.05.2008 submitting that he was not working during

the relevant period in which the alleged

misappropriation had taken place. The Enquiry Officer

has failed to consider the explanation of the petitioner.

The findings of the Enquiry Officer is without

application of mind and he has recorded a perverse

finding of guilt. It was argued that even in the reply to

the second show-cause notice a consistent stand was

taken that the petitioner was not working during the

relevant period from February 2005 to July 2006 at

Bennethora Project, IPC Division No.1, Gulbarga. But

ignoring the same, the Enquiry Officer as well as the

Disciplinary Authority have proceeded to impose the

penalty order which ought to have been considered by

the Tribunal examining the facts of each case. The

Tribunal grossly erred in dismissing the application as

well as the review application.

8. Learned Additional Government Advocate

supporting the impugned order of the Tribunal

submitted that the petitioner having not participated

before the Enquiry Officer cannot rely upon the cross-

examination of the Executive Engineer before the

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Enquiry Officer by the accused No.1. Indeed, Articles of

Charge made against the petitioner would indicate that

the relevant period was from 08.09.2003 to 19.11.2004.

The enquiry report clearly specifies that the

misappropriation of funds was for the period

08.09.2003 to 19.11.2004 as far as this petitioner is

concerned.

9. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

10. The main controversy is relating to the

period of the alleged misappropriation of funds and the

inconsistency found in the Article of Charges vis-à-vis

the statement of imputation. As per Appendix - 1

(Articles of charge) and Appendix - 2 (Statement of

imputation), the period is mentioned as 08.09.2003 to

19.11.2004 and 20.11.2004 to 10.05.2005 respectively.

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11. At this juncture, it is apt to refer to relevant

portion of Rule 11 of the Karnataka Civil Services (CCA)

Rules, 1957 ('Rules' for short), which reads thus:-,

"(11) The Inquiring Authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence;

(i) inspect within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in sub-rule (3);

(ii) submit a list of witnesses to be examined on his behalf;

(iii) apply orally or in writing to inspect and take extracts of the statements, if any, of witnesses mentioned in the list referred to in sub-rule (3) and the Inquiring Authority shall permit him to take such extracts as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority.

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(iv) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3):-

Provided that the Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government."

"(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-

(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;

(b) the defence of the Government servant in respect of each articles of charge;

(c) an assessment of the evidence in respect of each article of charge.

(d) the findings on each article of charge and the reasons therefor."

12. As could be seen, the statement of

imputations is not in conformity with the Articles of

Charges as far as the period is concerned. The Vigilance

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Report dated 03.04.2007 specifies the period from

February 2005 to July 2006 and the petitioner's name

is not figured in the list of officers/employees found

guilty of misappropriation of funds. Though the

petitioner has not participated in the enquiry

proceedings, the reply submitted by him to the Articles

of Charges and statement of imputations as well as to

the second show-cause notice makes it clear that the

specific stand taken by the petitioner was that he was

not working in the said division of Bennethora Project,

IPC Division No.1, Gulbarga during the relevant period

from February 2005 to July 2006. It is significant to

note that the enquiry report though refers to the period

08.09.2003 to 19.11.2004 as far as this petitioner is

concerned, the Chief Auditor's Inspection Report

referred to therein discloses that no deposited details

relating to Rs.65,234/- for the period October 2003 to

January 2005 is found. Even in O.S.No.88/2007

proceedings instituted by the State of Karnataka for the

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recovery of misappropriated sum of Rs.24,70,550/-, this

petitioner was not arrayed as a party to the proceedings

and the said suit has been decreed in part with costs

against defendant Nos.5(a) to (e) therein, i.e., the legal

heirs of late Malkanna Belkote and the suit against the

other defendant Nos.1 to 4 therein, has been dismissed

without costs. It has been held that the State is entitled

to recover a sum of Rs.24,70,550/- with interest at the

rate of 6% per annum from the defendant Nos.5(a) to (e)

i.e., legal representatives of late Malkanna Belkote from

the month of February, 2005 till the realisation of the

entire decreetal sum.

13. It is apparent that the applications were

considered by the Tribunal mainly on the

maintainability of the disciplinary proceedings initiated

by the Disciplinary Authority and the competency of the

authority in passing the order imposing the punishment

in view of the pendency of the criminal and civil

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proceedings said to have been initiated by the parties.

The bone of contention of the applicants was that

O.S.No.88/2007 instituted by the State of Karnataka

against the officers/employees for the recovery of the

amount pursuant to the punishment order passed was

under consideration.

14. In the present proceedings, learned counsel

for the appellant has filed the certified copy of the

judgment and decree passed in O.S.No.88/2007 along

with I.A.No.1/2019. There is no cavil on the proposition

that the pendency of proceedings pending before the

civil or criminal Court would not prohibit the competent

authority to initiate disciplinary proceedings against the

an erring employee. The Tribunal proceeded to

adjudicate on this issue which was focused by the

applicants in general. But the factual aspect relating to

the case of the petitioner being slightly different, the

Tribunal ought to have addressed the issue raised by

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the petitioner relating to the relevant period based on

which the articles of charge were issued.

15. These aspects would certainly have been

examined by the Tribunal as far as this petitioner is

concerned. Review petition filed by the petitioner is also

rejected by the Tribunal. There being no such analysis

of facts on these aspects, we deem it appropriate to set

aside the impugned order and remand the matter to the

Tribunal for re-consideration to address on this issue

having regard to the material evidence on record.

     16.   Hence, the following

                            ORDER


     i)    Writ petition is allowed.

ii) The impugned order dated 21.04.2017 in so

far as Application No.3682/2011 as well as

order dated 21.07.2017 passed in Review

Application No.92/2017 by the Karnataka

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Administrative Tribunal at Bangalore are set

aside. The matter is remanded to the

Tribunal for re-consideration.

iii) All the rights and contentions of the parties

are left open.

iv) The Tribunal shall re-consider the matter in

accordance with law and pass a speaking

order as expeditiously as possible.

v) Since the parties are represented by their

respective counsel, the parties are directed

to appear before the Karnataka

Administrative Tribunal on 25.01.2021

without waiting for any notice and shall take

further orders.

Sd/-

JUDGE

Sd/-

JUDGE

PMR/NC