Karnataka High Court
B S Ramaswamy vs State Of Karnataka on 13 January, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.5838/2020 (S-RES)
BETWEEN
SRI B. S. RAMASWAMY
S/O LATE SAVALEGOWDA,
AGED ABOUT 65 YEARS,
R/AT DOOR NO.1668,
E & F BLOCK,
8TH CROSS, RAMAKRISHNA NAGAR,
MYSORE-560023. ... PETITIONER
[BY SRI. MURUGESH H.M. ADVOCATE FOR
SRI. MANJESH H.M., ADVOCATE
(PHYSICAL HEARING)]
AND
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT,
URBAN DEVELOPMENT DEPARTMENT,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B. ROAD,
MYSORE-570 001.
BY ITS COMMISSIONER.
2
3. SRI B. SRINIVAS RAO
THE ENQUIRY OFFICER,
NO.6, 3RD BLOCK, 2ND CROSS,
BEML LAYOUT,
SRIRAMPURAM,
MYSORE-570 008.
4. SRI SIDDEGOWDA
RTD. DISTRICT JUDGE,
THE ENQUIRY OFFICER,
MYSORE URBAN DEVELOPMENT AUTHORITY,
J.L.B. ROAD,
MYSORE-570 001.
RESPONDENTS NO.3 AND 4
ARE DELETED AS PER
THE ORDER OF THIS COURT
DATED 13.03.2020 ... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ENQUIRY PROCEEDINGS
INITIATED AND APPOINTED THE R-4 BY THE R-2 DATED
27.06.2018 WHICH IS PRODUCED AND MARKED AS
ANNEXURE-K TO THE WRIT PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioner in this writ petition has called in
question the order dated 27.06.2018, by which a
denovo enquiry is directed to be initiated against the
petitioner by appointment of a new Enquiry Officer on
the same charge sheet that was issued earlier.
2. Brief facts leading to the filing of present
petition are that, the petitioner was appointed as a
First Division Assistant in respondent No.2 - Mysore
Urban Development Authority (hereinafter referred to
as 'Authority' for short) in the year 1996 and when the
petitioner was functioning as a First Division Assistant,
owing to certain omissions and commissions, by an
official memorandum dated 09.12.2003, the
Disciplinary Authority placed the petitioner along with
others on suspension in contemplation of disciplinary
proceedings. It transpires that in the year 2005, after
about two years, the order of suspension was revoked
and petitioner was reinstated into services, after
which, a charge sheet came to be issued against the
petitioner on 06.04.2005. Four years after the
issuance of charge sheet, the second respondent on
21.04.2009 appointed the Enquiry Officer and the
Presenting Officer directing enquiry proceedings to be
held in terms of the charge sheet dated 06.04.2005
and to be completed within three months.
3. The Enquiry Officer commenced the
enquiry proceedings on 04.07.2009. After about 9
years when the Enquiry Officer encountered no co-
operation from the hands of the Authority by either
producing any document or witness in furtherance of
the charge sheet, closed the enquiry and held the
petitioner not guilty of the allegations and submitted a
report on 03.03.2018 holding the petitioner not guilty
of the allegations.
4. On receipt of the report of the Enquiry
Officer, the Disciplinary Authority - the Commissioner
of Mysore Urban Development Authority again issued
an order on 27.06.2018 directing a denovo enquiry to
be conducted against the petitioner and others on the
very same charge sheet that was issued on
06.04.2005, 13 years after the issuance of the charge
sheet, pursuant to which, the enquiry proceedings are
now conducted. The learned counsel appearing for
respondent No.2 informs this Court that the enquiry
proceedings are concluded and the Enquiry Officer has
submitted his report on 28.10.2020. It is the order
dated 27.06.2018 by which the Disciplinary Authority
directed for initiation of a denovo enquiry against the
petitioner that is called in question in the writ petition.
5. Heard the learned counsel, Sri.Murugesh
H.M., appearing for the petitioner and the learned
Additional Government Advocate, Smt. M.C.
Nagashree, appearing for respondent No.1 and the
learned counsel, Sri. T.P. Vivekananda, appearing for
respondent No.2.
6. Learned counsel, Sri. Murugesh would
submit that the charge sheet though was issued on
06.04.2005, the enquiry commenced only on
04.07.2009, after about 4 years of issuance of charge
sheet. The proceedings went on upto 03.03.2018 for
thirteen years at the Enquiry Officer finding that the
second respondent has not produced any document to
prove the allegations levelled against the petitioner
and others for nine long years, closed the enquiry and
held the petitioner not guilty of the allegations, a
denovo enquiry on the same set of facts by a different
Enquiry Officer is without authority of law. On the
ground that the disciplinary proceedings are pending
none of the terminal benefits that the petitioner is
entitled to is settled despite the petitioner retiring on
attaining the age of superannuation during the
pendency of the said enquiry proceedings on
31.01.2012.
7. On the other hand, the learned counsel,
Sri.T.P. Vivekananda appearing for the second
respondent would submit that pursuant to the denovo
enquiry, the petitioner has participated in the enquiry
proceedings and the enquiry Officer has submitted his
report on 28.10.2020 and the Court, at this stage,
should not interfere with the proceedings as it is
premature, no order is passed by the Disciplinary
Authority pursuant to the report of the Enquiry Officer.
8. I have given my anxious consideration to
the respective submissions made by the learned
counsel and perused the material on record.
9. The dates and events are not in dispute.
The petitioner was initially placed under suspension
contemplation of disciplinary proceedings on
09.12.2003 and the same was revoked in the year
2005 after issuance of charge sheet on 06.04.2005.
The Disciplinary Authority took four long years to
appoint an Enquiry Officer and a Presenting Officer to
hold enquiry proceedings against the petitioner which
was by an order dated 20.04.2009 with a direction to
complete the enquiry and submit a report within three
months. It is on this brief the Enquiry Officer
commended his proceedings on 04.07.2009.
10. A perusal at the order sheet produced -
Annexure 'F' would indicate that for nine long years
the Presenting Officer went on seeking time for
production of evidence on behalf of the second
respondent. It is at that stage the petitioner
approached this Court in W.P.No.25788/2017 seeking
a direction to the second respondent to complete the
enquiry. This Court by its order dated 20.09.2017
directed completion of enquiry within three months
after noticing the fact that the proceedings were
pending for the last eight years. It is after the order
passed by this Court, the Enquiry Officer who had a
brief to complete in three months waiting for nine
years concluded the proceedings holding that the
petitioner was not guilty of the allegations.
11. It is to be noticed that the proceedings were
protracted for thirteen years after issuance of the
charge sheet not on account of the petitioner, but on
account of delay at every stage by the second
respondent. At the outset, the second respondent
took four years to appoint an Enquiry Officer to
conduct proceedings against the petitioner in terms of
the charge sheet and the Presenting Officer failed to
produce any evidence for nine long years thereafter.
Strangely, the Disciplinary Authority on receipt of the
report of the Enquiry Officer dated 03.03.2018, who
held the petitioner not guilty of the allegations as
there was no evidence produced by the second
respondent, appointed a new Enquiry Officer to
conduct a denovo enquiry on the same charge sheet
dated 06.04.2005 after 13 years of issuance of the
said charge sheet.
12. The proceedings which are directed to be
initiated pursuant to the order of denovo enquiry are
vitiated on two settled principles of law, first being,
conduct of a denovo enquiry by a different Enquiry
Officer merely because the Disciplinary Authority does
not accept the findings of the Enquiry Officer in the
light of the law laid down by the Apex Court in the
case of K.R. Deb v. CCE reported in (1971) 2 SCC
102 wherein it is held as follows:
"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."
Later, the Apex Court following the afore-extracted
judgment in the case of Vijay Shankar Pandey v.
Union of India reported in (2014) 10 SCC 589,
has held as follows:
"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 applied)
Therefore, the act of the Disciplinary Authority in
directing conduct of a denovo enquiry because the
authority did not accept the findings of the Enquiry
Officer, is vitiated on account of the law laid down by
the Apex Court in the afore-extracted cases qua the
facts obtaining in the case at hand.
13. The next principle on which the present
proceedings, impugned, would stand vitiated is on
account of delay in directing conduct of a denovo
enquiry, as it seeks to enquire into a chargesheet of
the year 2005 in the year 2018. The law in this
regard is again well settled that delay in initiation of
enquiry or its continuance would prejudice and be
agonizing to the employee. The Apex Court in the
case of P.V. Mahadevan v. Managing Director,
T.N. Housing Board reported in (2005) 6 SCC 636
has held as follows:
"11. Under the circumstances, we are
of the opinion that allowing the respondent
to proceed further with the departmental
proceedings at this distance of time will be
very prejudicial to the appellant. Keeping a
higher government official under charges of
corruption and disputed integrity would
cause unbearable mental agony and
distress to the officer concerned. The
protracted disciplinary enquiry against
a government employee should,
therefore, be avoided not only in the
interests of the government employee
but in public interest and also in the
interests of inspiring confidence in the
minds of the government employees.
At this stage, it is necessary to draw
the curtain and to put an end to the
enquiry. The appellant had already
suffered enough and more on account
of the disciplinary proceedings. As a
matter of fact, the mental agony and
sufferings of the appellant due to the
protracted disciplinary proceedings
would be much more than the
punishment. For the mistakes
committed by the department in the
procedure for initiating the disciplinary
proceedings, the appellant should not
be made to suffer.
12. We, therefore, have no hesitation
to quash the charge memo issued against
the appellant. The appeal is allowed. The
appellant will be entitled to all the retiral
benefits in accordance with law. The retiral
benefits shall be disbursed within three
months from this date. No costs."
(Emphasis applied)
14. In the light of enunciation of law by the
Apex Court, the present proceedings are hit by delay
as well. The case at hand is not a case where the
second respondent did not have jurisdiction to enquiry
into the allegations, but a case of losing jurisdiction on
account of gross delay. If the second respondent
could not prove the allegations leveled against the
petitioner in an enquiry that protracted for thirteen
long years, it would be unjust and unfair to let the
employee be put through the rigmarole of conduct of
disciplinary proceedings, all over again, more so, in
the light of the fact that the petitioner has long ago
retired on attaining the age of superannuation on
31.01.2012.
15. This Court notices with pain in umpteen
number of cases where disciplinary proceedings are
initiated by issuance of charge sheet and are not
concluded within reasonable time and the employee
against whom proceedings are pending is always kept
on the tenterhooks of the proceedings and denied
service and terminal benefits that would become
available to him, but for the pendency and protraction
of such proceedings apart from causing immense
mental agony. It is not that the Government has not
taken any steps to address this issue. The
Government has issued official memoranda from time
to time fixing time limits for conduct and conclusion of
departmental enquiries. The relevant official
memorandum of this kind was issued on 31.05.1997
wherein the maximum time limit for conclusion of a
departmental enquiry against a Government servant
was capped at 21 months. This came to be
subsequently modified by another official
memorandum dated 28.06.2001 capping the time
limit for conclusion of the enquiry on its initiation to 9
months. The aforesaid official memoranda read as
follows:
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The aforesaid official memoranda is again reiterated
by another official memorandum issued on
09.11.2020. In terms of the afore-extracted official
memoranda, enquiry proceedings against a delinquent
employee is required to be completed within nine
months from its initiation i.e., issuance of charge
sheet.
16. Though the said official memoranda has
been in existence, it is seldom followed by the State
or its instrumentalities, most conspicuously seldom in
the case at hand. Therefore, it has become
imperative to issue a direction to the State and its
instrumentalities to adhere to the timeline stipulated
in the aforesaid official memoranda in its letter and
spirit and not place the same in cold storage.
Therefore, the State Government and all its
instrumentalities shall adhere to the timeline
stipulated in the aforesaid memoranda including
departmental enquiries that are entrusted to the
Lokayukta by the Government in terms of Rule 14-A
of the KCS(CCA) Rules. Any deviation from the
timeline stipulated can only be for reasons to be
recorded in writing, failing which, there would be
mushrooming of cases of the nature of the one that is
at hand.
17. The petitioner retired on attaining the age
of superannuation on 31.01.2012, on the ground that
disciplinary proceedings are pending no terminal
benefits are paid for nine long years for no fault of the
petitioner and now under the guise of conduct of a
denovo enquiry, the payment of any terminal benefit
is further deferred driving a retired employee to
insurmountable hardship and mental agony as he is
denied any benefit after his retirement. It is a fit case
where the second respondent has to be mulcted for
dealing with its employee in the manner narrated
hereinabove. For the aforesaid reasons, the following:
ORDER
(i) The writ petition is allowed with costs of
Rs.25,000/- to be paid to the petitioner.
(ii) The order dated 27.06.2018 passed by
respondent No.2 is quashed.
(iii) All further proceedings taken up pursuant
to the order directing denovo enquiry dated
27.06.2018 are quashed.
(iv) Sequentially, the petitioner is held entitled
to all the benefits that would flow from
quashing of the order.
(v) Respondent No.2 is directed to release all
terminal benefits to the petitioner on his
retirement, which are yet to be settled,
within fifteen days from the date of receipt
of copy of this order, failing which, the
petitioner would be entitled to interest @
6% from the date it fell due till the date of
its payment.
(vi) The petitioner shall also be entitled to
notional promotion, if any, withheld on
account of pendency of the proceedings.
(vii) Copy of this order shall be sent to the
Secretary, Department of Personnel and
Administrative Reforms.
Sd/-
JUDGE
SJK
