Venkatesh S/O Ramachandra Soppin vs Director Of Muncipal ...
2021 Latest Caselaw 2433 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

          DATED THIS THE 28 T H DAY OF JUNE, 2021

                         BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


          WRIT PETITION No.65691/2011 (S-DIS)

BETWEEN:

VENKATESH,
S/O RAMACHANDRA SOPPIN,
AGE: 42 YEARS,
R/O KURBARI ONI,
SHIRATTI, TQ: SHIRATTI,
DISTRICT: GADAG.
                                           ... PETITIONER

(BY SRI J.S.SHETTY, ADVOCATE)

AND

1.     DIRECTOR OF MUNICIPAL ADMINISTRATION,
       OFFICE OF DIRECTORATE OF MUNICIPAL
       ADMINISTRATION, BENGALURU.

2.     CITY MUNICIPAL COUNCIL,
       GADAG, DIST: GADAG,
       BY ITS COMMISSIONER.

3.     TOWN PANCHAYATH,
       SHIRATTI, GADAG DISTRICT,
       BY ITS CHIEF OFFICER.

4.     DEPUTY COMMISSIONER,
       GADAG DISTRICT, GADAG.
                                2




5.    STATE OF KARNATAKA,
      BY ITS SECRETARY,
      DEPARTMENT OF URBAN
      DEVELOPMENT,
      VIKAS SOUDHA,
      BENGALURU.
                                            ... RESPONDENTS

(BY SRI V.S.KALASOORMATH, HCGP FOR R1, 4 & 5;
 SRI HARSH DESAI, ADVOCATE FOR R2;
 SRI LAXMAN T.MANTAGANI, ADVOCATE FOR R3)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

QUASH THE ORDER DATED 12.01.2009, PASSED BY THE

1ST   RESPONDENT    VIDE   ANNEXURE-A       AND    THE   ORDER

DATED 23.01.2009 PASSED BY THE 2 N D RESPONDENT VIDE

ANNEXURE-B AND THE ORDER DATED 31.10.2009 ISSUED

BY THE 3 R D RESPONDENT VIDE ANNEXURE-C AND ALSO

ORDER DATED 15.12.2009 VIDE ANNEXURE-T.



      THIS   WRIT   PETITION       HAVING   BEEN   HEARD   ON

17.06.2021 COMING ON FOR PRONOUNCEMENT OF ORDER,

THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                                    3




                                 ORDER

This writ petition is filed challenging the order dated

12.01.2009 passed by respondent No.1 removing

petitioner from employment as daily wager and

consequential order of relieving. Petitioner is also

challenging subsequent notices dated 30.10.2009-

Annexure-C and 15.12.2009-Annexure-T issued by the 3 r d

respondent calling upon the petitioner to show-cause

against recovery of excess payment drawn by him.

2. Brief facts leading to this case are that the

petitioner was initially appointed as a daily wage clerk in

the then Mandal Panchayath, Shirahatti in terms of its

resolution dated 19.05.1993 produced as Annexure-D. The

said Mandal Panchayath was later upgraded as a Town

Panchayath. However the petitioner's employment was

continued. Thereafter, 3 r d respondent passed a resolution

dated 23.10.1998-Annexure-E1 extending benefit of equal

pay for equal work to the petitioner and other daily wage

employees.

3. Subsequently vide resolutions dated

20.03.2002-Annexure-E2 and 30.08.2003-Annexure-E3, it

was resolved to regularize the petitioner's services and

extend revised pay scale to them after obtaining approval

of Deputy Commissioner/Government.

4. While in service as such, petitioner was issued

with articles of charge dated 22.02.2005 alleging that

petitioner had misappropriated sum of Rs.45,450.66 being

the amount of tax collected by him during 2002-03 and

failure to submit general bill book No.27, 77 and property

tax receipt book No.105, 108, 111, 112, 116, 139 and 179

for audit. Petitioner was suspended pending departmental

enquiry. In his reply dated 24.06.2005, petitioner

admitted to utilizing the tax collected for his personal

purposes, but claimed to have remitted the entire amount

to the 3 r d respondent and sought pardon. Not satisfied

with the reply, 4 t h respondent appointed enquiry officer.

On completion of enquiry with due participation of

petitioner, the enquiry officer submitted report holding

that the charges against petitioner were proved.

Thereafter petitioner was issued with a second show-cause

notice dated 31.03.2006. Petitioner submitted

representation on 14.11.2008. On consideration of the

representation, the 1 s t respondent-disciplinary authority

passed the impugned order removing the petitioner from

daily wage service.

5. After passing the order of removal, petitioner

was issued with the impugned notices 31.10.2009-

Annexure-C and 15.12.2009-Annexure-T alleging that the

petitioner had drawn excess payment while in service

unauthorisedly, and notifying about impending steps for

recovery from petitioner. Challenging the order of removal

and the recovery notices, this writ petition is filed.

6. Sri J.S.Shetty, learned counsel for petitioner at

the outset submitted that impugned order of dismissal

from service was in violation of principles of natural

justice as petitioner was not provided with opportunity to

lead evidence or cross-examine management witnesses

during the departmental proceedings. Insofar as main

charge, it was submitted the petitioner was victimized as

it was not his duty to deposit the tax amount collected,

into bank account. He was only required to collect the

same from rate payers and hand over to the Chief Officer,

which was complied with by petitioner. The

misappropriation, if any was temporary and no loss was

caused to the respondent. On the said grounds sought for

quashing the order of removal.

7. Insofar as challenge to the notices issued for

recovery of excess pay, it was submitted that petitioner

was being paid the scale to which he was entitled to and

denied excess payment.

8. Learned counsel for petitioner submitted that

petitioner was entitled for the benefit of equal pay for

equal work and the same could not be viewed as excess

pay. He relied upon the decision of the Hon'ble Supreme

Court in the case of State of Punjab and others V/s

Jagjith Singh and others reported in (2017) 1 SCC

148. Alternatively it was submitted that the payment

made to petitioner was in terms of resolution of 3rd

respondent voluntarily and therefore the same could not

be recovered. In this regard, learned counsel for

petitioner relied upon decision of the Hon'ble Supreme

Court in the case of State of Punjab and others V/s

Rafiq Masih and others reported in (2015) 4 SCC 334.

9. Learned counsel for the petitioner further

submitted that the order of removal from service passed

against petitioner was also liable for interference on the

ground of being shockingly disproportionate to the

charges held proved as it was based on a solitary instance

of misdemeanor.

10. On the other hand, Sri V.S.Kalasoormath,

learned High Court Government Pleader (HCGP) for

respondent Nos.1, 4 and 5, Sri Harsh Desai, learned

counsel for respondent No.2 and Sri Laxman T.Mantagani,

learned counsel for respondent No.3 submitted in unision

that a bare perusal of impugned order at Annexure-A

would reveal that petitioner had unequivocally accepted

utilizing the public funds for personal use and remitting

the same belatedly. In view of the unequivocal acceptance

of the charge, the petitioner was barred from challenging

the findings of enquiry officer, nor the process of enquiry

without showing prejudice even if for the sake of

argument, it be considered that there was any infraction

as contended by the petitioner. As the petitioner was in a

position handling public revenue, the conduct was

required to be above board and any loss of faith due to

financial irregularities would call for taking serious view

and therefore the order of removal from service was fully

justified.

11. Insofar as challenge to the show-cause notices

regarding recovery of excess pay, attention of this court

was drawn to the resolution dated 20.03.2002-Annexure-

E2, wherein there is a clear reference to the application

filed by the petitioner and others requesting for

regularization of service and extension of revised pay

scale to them. It was therefore submitted as the benefit of

higher pay scale was granted to the petitioner on his

representation, by the 3 r d respondent subject to approval,

petitioner cannot seek escape from recovery relying upon

the decision in Rafiq Masih's case. The petitioner's case

does not fall in any one of the instances enumerated in

the said decision.

12. Though the petitioner is challenging the order of

punishment, denying the charges, petitioner has not

produced the copy of the reply submitted by him to the

articles of charge. Thus there is no proper substantiation

of the petitioner's contention against charge. As the order

of punishment passed by the 1 s t respondent discloses a

clear admission on the part of the petitioner, the

allegation of victimization does not stand to scrutiny.

Even the contention regarding not being provided with

opportunity to cross-examine the management witnesses

would also not take the petitioner's case any further as no

prejudice would be caused to him, in view of the

unequivocal admission of the misconduct by the

petitioner. It is also relevant to state that the petitioner

has admittedly re-deposited the revenue of the 3rd

respondent collected by him a few days prior to initiation

of departmental action i.e. on 05.11.2003 and 04.12.2003

(04.12.2003 being the date on which he was placed under

suspension pending enquiry).

13. Insofar as the quantum of punishment

challenged to the order of punishment on quantum, the

Hon'ble Supreme Court in UPSRTC V/s A.K.Parul

reported in (1998) 9 SCC 416 has held that imposition of

proper punishment is within the discretion and judgment

of the disciplinary authority and though it may be open to

the appellate authority to interfere, but not the High

Court in exercise of powers under Article 226. Similar

observations are made in the case of Syndicate Bank

V/s Venkatesh Gururao Kurati reported in (2006) 3

SCC 150. It is held that charge of financial misconduct

are grievous in nature attracting removal from service

notwithstanding that the delinquent did not face any other

allegation in the past. Even the order converting the order

of removal from service into one of compulsory retirement

on the ground of proportionality has been scorned

against. Hence there is no scope for interference with the

order of punishment.

14. Insofar as the challenge to the show-cause

notices at Annexure-C and Annexure-T, it is indeed only at

the stage of show-cause notice, no order has been passed

or decision taken for recovery. The issue whether the

petitioner's case would fall within any of the enumerated

categories mentioned in Rafiq Masih's case requires

determination. Hence, without going into the merits of the

contentions on either side, it would befit the facts and

circumstances of this case to reserve liberty to the

petitioner to file objections to the show-cause notices and

direct respondent No.3 to take decision on the same

within a time frame.

15. Hence the writ petition insofar as challenge to

the impugned order of punishment at Annexure-A dated

12.01.2009 passed by the 1 s t respondent is dismissed.

16. Insofar as Annexure-C and T, the petitioner is

reserved liberty to file objections to the same within a

period of four weeks from the date of receipt of certified

copy. The respondent No.3 is directed to consider the

petitioner's objections in the light of the decision of the

Hon'ble Supreme Court in Rafiq Masih's case and to pass

appropriate orders thereon within a period of three

months thereafter by giving specific findings.

17. With the above observations, writ petition is

disposed of.

No order as to costs.

SD JUDGE

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