Karnataka High Court

Dr Pushpa Sarkar vs The State Of Karnataka on 4 January, 2021

Author: M.Nagaprasanna

                           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

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

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

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

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

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

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

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

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

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,

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

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

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

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