Karnataka High Court

G S Mahadevappa vs The Managing Director, Karnataka ... on 27 May, 2021

Author: Alok Aradhe Chandangoudar

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH DAY OF MAY 2021

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

                W.A. NO.2768 OF 2013
                          IN
             W.P. NO.7946 OF 2009 (S-RES)


BETWEEN:

G.S.MAHADEVAPPA
S/O LATE JAVARAIAH
AGED ABOUT 60 YEAR
WORKING AS STORE KEEPER GR.II
DIVISIONAL STORES
ON DEPUTATION TO KARNATAKA POWER
CORPORATION LIMITED
SHIVASAMUDRAM
MANDYA DISTRICT
R/AT NO.328,
SIDDALINGESHWARA LAYOUT
J.P.NAGAR
MYSORE- 570 008.
                                        ... APPELLANT
(BY MR.SUBBA RAO SR.ADV. FOR
    MR.SATHEESHA K.N., ADV.)
AND:

1.     THE MANAGING DIRECTOR
       KARNATAKA POWER
       CORPORATION LIMITED
       SHAKTI BHAVAN
       RACE COURSE ROAD
                                 2



     BANGALORE - 560 001.

2.   THE EXECUTIVE ENGINEER (ELECTRICAL)
     & STORE OFFICER - DIVISIONAL STORES
     KARNATAKA POWER CORPORATION LIMITED
     SHIVASAMUDRAM
     MANDYA DISTRICT - 571 437.

                                         ... RESPONDENTS

(BY MR.B.ROOPESHA ADV. FOR R1 & R2)
                          ---

     THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN
THE WRIT PETITION NO.7496/2009 DATED 22.02.2013.

     THIS W.A. COMING ON FOR HEARING,              THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                          JUDGMENT

In this intra court appeal under Section 4 of the

Karnataka High Court Act, 1961 has been filed against of

the order dated 22.02.2013 passed by the learned

Single Judge, by which writ petition preferred by the

appellant against order dated 11.03.2009, by which a

penalty of withholding of four annual increments and for

recovery of an amount of Rs.13,56,269/-, has been

dismissed. In order to appreciate the appellant's

challenge to the impugned order, relevant facts need

mention, which are stated hereinafter.

2. The Karnataka Power Corporation Limited

(hereinafter referred to as 'the Corporation' for short) is

a Government of Karnataka undertaking, which is

engaged in generation and supply of electricity to

Karnataka Power Transmission Corporation Limited

(hereinafter referred to as 'the KPTCL Act' for short)

and Others. The Corporation has generating various

stations in the State of Karnataka and one such

generating station is at Shivsamudram. The aforesaid

generating station was initially operated by KPTCL and

thereafter by an independent Autonomous Company

viz., Vishweshwaraiah Vidyuth Nigam Limited. In the

year 2006, the said company merged with the

Corporation. The appellant was an employee of KPTCL

and was continued on deputation in Vishweshwaraiah

Vidyuth Nigam Limited. The services of the appellant

was treated as on deputation and the appellant at the

relevant time was posted as Store-Keeper Grade-II in

Shivsamudram generating plant.

3. One Sri.K.N.Sheshadri was posted as Stores

Officer of Shivsamudram generating plant. Sometime in

the year 2001, work of upgradation and renovation of

Shivsamudram generating plant was taken up and the

work of dismantling of 2.2 KV, 25 Cycles of Lead

Covered Copper Cable was entrusted by an order dated

28.03.2001 to M/s ABB Company. The aforesaid

company after completion of the work, dismantled 2.2

KV, 25 Cycles Lead Covered Copper Cable numbering

1146 pieces measuring 5460.84 meters. The Company

shifted the cables from the bottom of the valley to the

hill top through trolleys and stored them in godown

under the supervision of the then Stores Officer,

Sri.K.N.Sheshasdri. The aforesaid Mr.K.N.Sheshadri

retried on 31.03.2004 and after his superannuation

approximately after eight months from the date of his

superannuation on 21.11.2004, handed over the charge

of aforesaid materials along with other goods to the

appellant, which was duly acknowledged by the

appellant.

4. The material viz., lead covered copper cable

of 1146 pieces measuring 5460.84 meters was included

in the tender Notification dated 20.06.2006. The tender

was awarded to one M/s Metcorp, Bangalore, which

remitted a sum of Rs.1,04,02,829/- to respondents

towards the entire value of the material. The Company

on payment of the amount was permitted to lift the

material. However, on perusal of the records, viz., the

entry / gate passes, it was found that only 4749 meters

of Lead Covered Copper Cable was delivered to the M/s

Metcorp who by a communication dated 31.10.2006

informed the authorities that they have taken delivery of

4749 meters of Lead Covered Copper Cable scrap worth

Rs.90,48,175/-.

5. The appellant at the relevant time was

posted as Store-Keeper in Shivsamudram Project. The

Executive Engineer issued a show cause notice dated

31.10.2006 to the appellant to explain the reasons for

shortage of 711 meters of Lead Covered Copper Cable.

The purchaser viz., M/s Metcorp by communication

dated 28.11.2006 requested the respondents to refund

the excess amount. The respondents thereupon

refunded the excess amount of Rs.13,54,645/- to the

said Company by cheque. Thereafter, a charge memo

dated 23.02.2007 was issued to the appellant, by which

following charges were leveled against the appellant:

1. Theft, fraud or dishonesty or misappropriation of

Corporation 's property.

2. Causing willful damage or loss to the

Corporation's articles or property.

The appellant was apprised that the enquiry would

be held under KPTCL Employee (classification Control

and Appeals) Regulations, 1987. One

Mr.S.Narsimhamurthy was appointed as presenting

officer and one Sri.Annaji Rao Jadhav, Retired Assistant

Labour Commissioner was appointed as an Enquiry

Officer. IN the enquiry, Sri.K.N.Sheshadri, Retired

Assistant Executive Engineer and Sri.Satyanarayan,

Assistant Executive Engineer was examined as witnesses

whereas, the appellant got examined four witnesses viz.,

M.K.Nagaraja, K.N.Nanjundaiah, Mutthaiah and

P.S.Mahadev. The Enquiry Officer submitted an enquiry

report dated 25.06.2007, in which charges against the

appellant were found to be proved. Thereafter, the

Disciplinary Authority issued a show cause notice dated

07.07.2008, by which the appellant was asked to show

cause as to why the report of enquiry officer be not

accepted. The appellant submitted a reply. The

Disciplinary Authority by an order dated 11.03.2009

imposed the penalty of withholding of four increments

without cumulative effect and recovery of loss of

Rs.13,56,269/- from the appellant.

6. The aforesaid order was challenged by the

appellant in a writ petition before the learned Single

Judge. The learned Single Judge by an order dated

22.02.2013 inter alia held that the respondent No.2 had

the jurisdiction to initiate and conduct the disciplinary

proceedings against the appellant and the disciplinary

proceeding initiated against the appellant does not

suffer from any infirmity. It was further held that

appellant was Store-Keeper and it was his responsibility

to ensure goods and materials are properly accounted

for and admittedly, the appellant had taken charge of

the materials and had signed the same and therefore,

the contention of the appellant that materials were not

measured, weighed or accounted for, even if it is

assumed to be correct does not absolve him from the

charges leveled against him. In the result, the writ

petition was dismissed. In the aforesaid factual

background, this appeal has been filed.

7. Learned Senior counsel for the appellant

submitted that the appellant was an employee of KPTCL

and was not the employee of the Corporation. Therefore,

the respondents could not have either initiated any

disciplinary action against him or could have imposed

the penalty on him under KPTCL Employees

(Classification Control and Appeals) Regulations, 1987.

It is further submitted that there is no consultation

between the borrowing and lending authority and the

finding recorded by the enquiry officer is based on

surmises and conjectures and is perverse. It is also

pointed out that no finding has been recorded by the

enquiry officer with regard to negligence of breach of

order on the part of the appellant. It is also pointed out

that the enquiry officer has not recorded a finding that

the appellant is responsible for shortage of material and

under the Regulations, the penalty of recovery of the

amount can only be imposed only in case of negligence

or breach of order and in the absence of any finding in

this regard, the aforesaid penalty in any case, could not

have been imposed. In support of aforesaid

submissions, reliance has been placed on decisions in

'RAJENDRA KUMAR KINDRA VS. DELHI

ADMINISTRATION', AIR 1984 (SC) 1805,

'CENTRAL BANK OF INDIA VS. PC JAIN', AIR 1969

(SC) 983, 'SHER BAHADUR VS. UNION OF INDIA',

AIR 2002 (SC) 3030, 'UNION OF INDIA VS.

K.A.KITTU', 2001(1) SCC 65, 'BIJLANI VS. UNION

OF INDIA', 2006 (5) SCC 88, 'COMMISSIONER OF

POLICE, DELHI VS. JAI BHAGWAN', 2011 (6) SCC

376, 'ROOP SINGH NEGI VS PNB', 2009 (2) SCC

570, 'UNION OF INDIA VS. PAUL GEORGE', 2014

(1) SCC 353, and 'K.S.SOMASUNDRAN VS. KPC',

1985 LAB.I.C. 573.

8. On the other hand, learned counsel for

respondents submitted that there was a consultation

between the borrowing and lending authority before

initiating the disciplinary proceedings against the

appellant as well as before imposition of penalty and the

proceeding have been initiated and penalty has been

imposed on the appellant strictly in accordance with

KPTCL Employee (classification Control and Appeals)

Regulations, 1987. it is further submitted that

admittedly, the appellant had taken over the charge on

21.11.2004 from Sri.K.N.Sheshadri, Retired Assistant

Executive Engineer in respect of the material in question

and the appellant being the Store-Keeper was

responsible to account for the material, which was

stored. It is also submitted that the order passed by the

learned Single Judge does not call for any interference in

this intra court appeal.

9. We have considered the submissions made

by learned counsel for the parties and have perused the

record. The appellant was an employee of KPTCL and at

the relevant time was on deputation with Corporation.

The action against the appellant has been taken under

KPTCL Employee (Classification Control and Appeals)

Regulations, 1987. Regulation 2(b) and (c) respectively

define the expressions 'Disciplinary Authority' and 'Board

/ Corporation Employee, which read as under:

2(b) Disciplinary Authority in relation to the imposition of a penalty on a Board / Corporation employee means the authority competent under these Regulation to impose on him that penalty.

(c) Board / Corporation Employee means a person on monthly 'Rate or Pay' in any establishment in the Board/ Corporation and includes any person whose services are temporarily placed at the disposal of the Central / State Government or a Local Authority, whether working in the Board / Corporation or on deputation to the Government or any other organization.

The appellant is covered under the definition of

Board / Corporation Employee. Regulation 15(1) and

relevant extract of 15(2)(i), are reproduced below for

the facility of reference:

15. Provisions regarding Lent Officers:

(1) Where the services of a Board / Corporation employee are lent to the Central Government, State Government or to Local

or other Authority (hereinafter in this Regulation referred to as 'the Borrowing Authority'), the 'Borrowing Authority' shall have the powers of the 'Appointing Authority' for the purpose of placing him under suspension and of the 'Disciplinary Authority' for the purpose of taking a 'Disciplinary Proceedings' against him.

Provided that the 'Borrowing Authority' shall not take any 'Disciplinary Proceedings' against such Board / Corporation employee or place him under suspension without the prior approval of the 'Lending Authority'.

2. In the light of the in findings in the 'Disciplinary Proceeding' taken against the Board / Corporation employee:

(i) If the 'Borrowing Authority' is of the opinion that any of the penalties specified in clause (i) to (iv)(a) of Regulation - 9 should be imposed on him, it may, in consultation with the 'Lending Authority', pass such orders on the case as it deems necessary;

Provided that in the event of a difference

of opinion between the 'Borrowing Authority, and the 'Lending Authority', the services of the Board / Corporation employee shall be replaced at the disposal of the 'Lending Authority'.

Thus, it is evident that the action against the

appellant can be taken under the Regulations, 1987

provided the requirement contained in Regulation 15 is

complied with. In the instant case, the aforesaid

requirement has been complied with, which is axiomatic

from the communication dated 23.01.2007 and

16.02.2009 between the borrowing and lending

department, the relevant extract of which are

reproduced below for facility of reference:

Reference is invited towards the letters referred above on the subject. Approval has been given to initiate departmental enquiry against Shri.G.S.Mahadevappa, Store Keeper Gr-II working in the VVNL / KPC Ltd., at Shivanasamudra, as per rules since the charges leveled against him have prima facie

been proved. In this regard, it is requested to follow the guidelines issued under Condition -

15 of the KEB Employees (C.C&A) Rules, 1987.

Reference is invited to the letter at (4) above. In the departmental enquiry ordered against Shri.G.S.Mahadevappa, Store Keeper Gr-II KPCL, working as Store Keeper at Shivasamudra, into the charges of negligence committed by him, there are provisions the Borrowing Authority to impose one or more penalties as specified in clauses - 9(i) to 9(iv) of the KEB Employees (C.C.&A) Rules, 1987 after negotiating with the Lending Authority as per Clause 15(2)(i).

Since, it has bee decided to recover the losses caused to the Corporation due to the theft of 711 mts of Lead Covered Copper Cable and the proposal to withhold two future annual increments of Shri.G.S.Mahadevappa, Store Keeper Gr-II, KPCL, with cumulative effect for the negligence / misconduct is left to the discretion of the Disciplinary authority,

suitable penalty may be imposed after considering the Report of Enquiry, Second Show Cause Notice, the explanation offered and all other records pertaining to the case.

Thus, it is axiomatic that action against the

appellant has been taken in accordance with the

requirement contained in the Regulation 15 of the

Regulations and therefore, the disciplinary proceeding

initiated against the appellant does not suffer from

jurisdictional infirmity. The onus of proof rests upon the

appellant who has alleged the invalidity of the order.

[See: 'MINISTER OF NATIONAL REVENUE VS.

WRIGHT'S CANADIAN ROPES LTD.,', 1947 AC 109

122 (PC)]. The appellant has failed to discharge the

onus of proof that the order imposing penalty suffers

from any invalidity. Therefore, the contention of the

appellant that no action under the Regulation, 1987

could have been taken against the appellant sans

substance and does not deserve acceptance.

10. Now we may advert to the quantum of

punishment imposed on the appellant. We are conscious

of the fact that this court cannot sit as court of appeal on

the issue of quantum of punishment awarded in a

disciplinary proceeding. However, it is trite law that the

findings recorded by the enquiry officer is required to be

recorded on the basis of material available on record and

in case, the findings are based on no evidence and are

based on surmises and conjectures, the finding being

perverse this court can interfere with such findings of

fact. [SEE: 'B.C.CHATHURVEDI VS. UNION OF

INDIA', (1995) 6 SCC 749, 'M.V.BIJLANI VS.

UNION OF INDIA AND OTHERS', (2006) 5 SCC 88

AND 'ARULVELU VS. STATE', (2009) 10 SCC 206

and 'DIRECTOR GENERAL OF POLICE, RAILWAY

PROTECTION FORCES VS. RAJENDRA KUMAR

DUBEY', 2020 SCC ONLINE SC 954]. Regulation 9

prescribes the nature of penalties, which can be imposed

on Board / Corporation Employee for good and sufficient

reasons. The relevant extract of Regulation 9 reads as

under:

Minor Penalties:

(iii) Withholding of increments, with or without cumulative effect.

(iv) Recovery from Pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Board / Corporation or to the State Government , the Central Government, any Person, Body or Authority, to whom the services of the officer had been lent.

Thus, the sine qua non for imposition of penalty of

recovery from Pay in respect of pecuniary loss has to be

caused by negligence or breach of orders on the part of

the employee. At this stage, we may refer to the finding

recorded by the enquiry officer, the relevant extract of

which reads as under:

The contention of Sri.P.Jayappa, Defence Assistant though seems to be correct to some

extent, a duty is also cast on the Store- Keeper who is accountable and answerable for any excess or shortage in the Stores. But merely the Superintending Engineer directed the Store-Keeper to accept the Materials as per the Return invoices, he should not have accepted the materials unless he is satisfied with its correctness as a responsible Store- Keeper who is accountable for any excess or shortage of Materials under his custody. Sri.G.S.Mahadevappa, Store-Keeper has acknowledged Return invoice given by Sri.K.N.Sheshadri, Retired AEE vide exhibit M- 3 dated 1.12.2004 and accounted in the ledger vide No.SRC-43 as contended by the Presenting Officer for the Disciplinary Authority. A perusal of the ledger confirms the contention of the Presenting Officer. To this extent Sri.G.S.Mahadevappa, Store- Keeper has failed in his duties to discharge.

The oral and documentary evidence adduced before me in the Inquiry amply proves the charges made against the Delinquent. I therefore for the foregoing reasons hold that the charges made against

him have been established and proved.

11. Thus, from perusal of the relevant extract of

the enquiry report, it is evident that the enquiry officer

has found that the appellant should not have accepted

the material unless he is satisfied with its correctness as

a Store-Keeper and the appellant is accountable to any

excess or shortage of material under his custody and to

the said extent, it has been found that the appellant has

failed to discharge his duties. However, in the

subsequent para, the enquiry officer without assigning

any reasons has recorded the conclusion and has held

that the charges against the appellant are proved. The