Karnataka High Court

Hirekerur Taluka Vidyavardhak vs Veerappa S/O Veerabasappa ... on 15 February, 2023

Bench: E.S.Indiresh

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                                                                 WP No. 146924 OF 2020




                                      IN THE HIGH COURT OF KARNATAKA,
                                                DHARWAD BENCH
                                 DATED THIS THE 15TH DAY OF FEBRUARY, 2023

                                                      BEFORE
                                    THE HON'BLE MR JUSTICE E.S.INDIRESH
                                 WRIT PETITION NO. 146924 OF 2020 (EDN-RES)
                            BETWEEN:

                            1.     HIREKERUR TALUKA VIDYAVARDHAK
                                   SOUHARDHA SAHAKARI LTD,
                                   HIREKERUR, DIST: HAVERI
                                   BY ITS SECRETARY

                            2.     THE PRESIDENT/CHAIRMAN HIREKERUR TALUKA
                                   VIDYAVARDHAK SOUHARDHA SAHAKARI LTD.,
                                   HIREKERUR, DIST: HAVERI

                            3.     THE HONORARY SECRETARY, HIREKERUR
                                   TALUKA VIDYAVARDHAK SOUHARDHA SAHAKARI LTD,
                                   HIREKERUR, REPRESENTED BY S.S. PATIL,
                                   AGE: ABOUT 78 YEARS,
                                   R/O: HIREKERUR

CHANDRASHEKAR
                            4.     THE HEAD MASTER
LAXMAN
KATTIMANI                          S.N.K. PRIMARY SCHOOL, HIREKERUR,
Digitally signed by
                                   REPRESENTED BY B.V. SANNER,
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH COURT OF
KARNATAKA DHARWAD
                                   AGE: ABOUT 53 YEARS,
Date: 2023.02.15 14:59:29
+0530
                                   R/O: HIREKERUR, DIST: HAVERI
                                                                         ...PETITIONERS
                            (BY SRI. SUNIL S. DESAI, ADVOCATE)

                            AND:

                            1.     VEERAPPA S/O VEERABASAPPA HITTALAMANI
                                   AGE: ABOUT 63 YEARS, OCC: RTD. LIFE,
                                   R/O: TAMBAKADA NAGAR,
                                   HIREKERUR, DIST: HAVERI 581 110
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                                        WP No. 146924 OF 2020




2.    THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
      HAVERI, DIST: HAVERI 581 110.
                                            ...RESPONDENTS
(BY SRI.ANANT P. SAVADI, ADVOCATE FOR C/R1;
  SRI. M. H. PATIL, ADVOCATE FOR R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OR DIRECTION IN THE NATURE OF CERTIORARI AND BE PLEASED
TO SET ASIDE AND CANCEL THE JUDGMENT AND ORDER DATED
19.02.2020 PASSED BY THE PRL.DISTIRCT AND SESSIONS JUDGE,
HAVERI, IN M.A(E.A.T) NO.01/2008 WHICH IS AS PER ANNEXURE-
"A" AND DISMISS THE APPEAL OF THE RESPONDENT NO.1 IN
M.A(E.A.T) NO.01/2008.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.02.2023, COMING ON FOR 'PRONOUCEMENT
OF ORDERS' THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
                             ORDER

In this writ petition, the petitioner has challenged

impugned order dated 19.02.2020 (Annexure-A) passed

by the Principal District and Sessions Judge, Haveri, in

M.A.(E.A.T) No.01/2008, allowing the petition filed by the

1st respondent - employee.

2. Brief facts in nut shell are that, the respondent,

while working as Head Master in Shaha Narayanaji Khanji

Primary School, run by the petitioner Management,

received the communication from the petitioner

WP No. 146924 OF 2020

Management, whereby, certain charges have been leveled

against the 1st respondent herein. Thereafter, enquiry was

conducted and the Enquiry Officer found that the charges

leveled against the respondent are proved and

accordingly, the petitioner Management, dismissed the 1st

respondent from service on 14.01.2008. Being aggrieved

by the same, the 1st respondent has filed M.A.(EAT)

No.1/2008, before the District Judge and Educational

Appellate Tribunal, Haveri and the Tribunal by its order

dated 19.03.2010, dismissed the appeal filed by the

respondent herein vide Annexure-H. Feeling aggrieved by

the same, the 1st respondent herein has filed

W.P.No.66490/2011 before this Court and this Court by

order dated 27.04.2016, allowed the writ petition and

remanded the matter to the Tribunal for fresh

consideration after affording fair opportunity to the 1st

respondent herein. Pursuant to order passed by this

Court, the Tribunal, reheard the matter afresh and passed

impugned order dated 19.02.2020 (Annexure-A), allowing

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the appeal and being aggrieved by the same, the

petitioner Management has presented this writ petition.

3. I have heard Sri. Sunil S. Desai, learned

counsel appearing for the petitioner Management,

Sri.Anant P. Savadi, learned counsel appearing for the 1st

respondent - delinquent and Sri. M. H. Patil, learned

Additional Government Advocate for the 2nd respondent

State.

4. Sri. Sunil S. Desai, learned counsel appearing

for the petitioners contended that, the Tribunal, solely

relied upon the four criminal cases pending consideration

before the competent court and arrived at a conclusion to

exonerate the 1st respondent and the said finding is

incorrect. He further contended that, the Tribunal has not

properly assessed the evidence on record and therefore,

the impugned order is not a speaking order. It is the

argument of the learned counsel appearing for the

petitioner that, Ex.P28 and Ex.P29 are the charges leveled

against the respondent herein, which are specific and clear

WP No. 146924 OF 2020

and therefore, the Tribunal ought to have looked into the

imputation of charges, before arriving at the conclusion to

justify the action of the petitioner Management. He

further contended that, enquiry has been conducted fairly

after affording opportunity to the 1st respondent -

delinquent and therefore, the finding recorded by the

Tribunal requires to be interfered in this writ petition.

5. Per contra, Sri. Anant P. Savadi, learned

counsel appearing for the 1st respondent - delinquent,

argued that, the Tribunal, after considering the material on

record, arrived at a conclusion, which cannot be disturbed

in the writ proceedings. He further contended that, no

notice was issued prior to issuance of the charge memo

produced at Annexure-B to the writ petition and therefore,

the Management has predetermined to remove the

respondent from the service and therefore he contended

that, the Tribunal is justified in setting aside the order of

the petitioner Management. He further contended that,

though the Tribunal has made an observation relating to

the criminal cases pending consideration before the

WP No. 146924 OF 2020

competent court, however, the same cannot be equated

with the proceedings before the departmental enquiry, as

the nature of the proceedings, evidence, and assessment

of the evidence is quite distinct and therefore, the

Tribunal, after considering the material, which are made

available before the Enquiry Officer, has looked into and

rightly set aside the order of removal. In this regard, he

relied upon the judgment of the Hon'ble Apex Court in the

case of State of Punjab Vs. V. K. Khanna and Others

reported in (2001) 2 SCC 330 and in the case of G. V.

Ashwathanarayana Vs. Central Bank of India reported

in ILR 2003 KAR 3066 and argued that, the mindset of

the petitioner Management was to victimize the 1st

respondent delinquent and the biased approach has been

shown from the beginning of the proceedings and

therefore, sought for dismissal of the writ petition.

6. In the light of the submission made by the

learned counsel appearing for the parties, it is not in

dispute that the 1st respondent herein was working as the

Head Master in the school run by the petitioner

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Management. Annexure-B is the charge memo issued to

the 1st respondent. It is admitted by the learned counsel

appearing for the petitioner Management that, no show

cause notice was issued before issuing the charge memo

dated 04.10.2007 (Annexure-B). On careful examination

of the charge memo would indicate that, the petitioner

Management has made up a mind to sack the respondent

from the service. Perusal of the charge memo would

further indicate that, opportunity was not extended to the

1st respondent delinquent before issuing the charge memo

and on this ground alone, in the absence of the reply

made by the 1st respondent - delinquent before issuing the

charge memo, the procedure adopted by the petitioner

Management is incorrect and liable to be set aside.

7. In this regard, the Hon'ble Apex Court in the

case of V. K. Khanna's case (supra), at paragraph 16 and

34 held as follows:

"16. Absence of malice has been the main thirst of submissions in support of the appeal and adaptation of a simple method of disciplinary inquiry is the key issue as urged by the appellants. Shri Khanna,

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respondent No.1, on the other hand contended that the entire set of facts if analysed in a proper perspective then and in that event gross violation of basic tenets by reason of malice ipso facto would be apparent enough to reach the same conclusion as has the High Court. Shri Khanna alleges that the issuance of the charge-sheet against him is the direct outcome of the reference of the two cases to the CBI and is overtly malafide. It would thus be convenient to assess the facts pertaining to above-

noted two cases at this juncture.

34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge- sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event

WP No. 146924 OF 2020

upon deliberations and due considerations it is in the affirmative the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record".

8. It is also relevant to extract the paragraph 8 in

G. V. Ashwath Narayana's case (supra), whereby the

Division Bench of this Court held as under:

"8. It is trite that charge-sheet is the charter of disciplinary action. The domestic/departmental enquiry commences with the service of the charge- sheet. In other words, before proceeding with the departmental or domestic enquiry against a delinquent official, he must be informed clearly, precisely and accurately of the charges levelled against him. The charge-sheet should specifically set out all charges which the delinquent is called upon to show-cause against and should also state all relevant particulars and details without which he cannot defend himself. The object of this requirement is that the delinquent employee must know what he is charged with and have the adequate opportunity to meet the charge and to

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defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged; otherwise, it will amount to his being condemned unheard. Fair hearing pre-

supposes a precise and definite catalogue of charges so that the person charged my understand and effectively meet it. If the charges are imprecise and indefinite or vague or unintelligible, the person charged could not be able to understand them and defend himself effectively and in those circumstances, the subsequent enquiry would not be a fair and just enquiry. The charged official ought to be informed of the charges levelled against him as also the grounds upon which they are based. Charge of misconduct should not be vague. The charge-sheet must be specific and must set out all the necessary particulars and details irrespective of the fact whether the delinquent knows it or not; he must have told about the charges and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge. However, it is true that the charge need not be framed with the precision of a charge in criminal proceeding. But, at the same time, it must not be vague or so general as to make it impossible of being traversed. Therefore, the test is whether the charge conveys to the delinquent employee, the exact nature of the alleged misconduct in a way that would enable him

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to meet the charge effectively. It is well established that if a vague charge is given to a delinquent, it is a fatal defect, which vitiates the entire proceedings. It is also relevant to notice that the vagueness in the charge is not excused on the plea that the employee concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine what the charges against him are and it is for the employer to frame specific charges with full particulars."

9. Following the declaration of law made by the

Hon'ble Supreme Court, I am of the view that, the mind

set of the petitioner Management is to remove the

petitioner from the service. I have also noticed from the

arguments advanced by the learned counsel with regard to

pendency of criminal case, however, it is well settled

principle in law that, there is no impediment for

conducting departmental proceedings during the pendency

of the criminal proceedings, as the standard of proof in the

criminal proceeding is completely different from the

standard of proof that is required to be proved in the

departmental proceedings, as the former being one of