Sri Ramesh H vs The Special Board And Appellate ...
2023 Latest Caselaw 3075 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF JUNE, 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

           WRIT PETITION NO.1205 OF 2016 (S-R)

BETWEEN:

SRI RAMESH H.,
AGED ABOUT 50 YEARS,
S/O HANUMANTHAPPA,
SENIOR ASSISTANT,
[UNDER ORDERS OF COMPULSORY RETIREMENT]
KARNATAKA LEGISLATIVE ASSEMBLY
SECRETARIAT,
NO.57, 18TH MAIN,
BSK I STAGE, II BLOCK,
BENGALURU-560 050.

                                             ...PETITIONER

(BY SMT. TEJASWINI RAJKUMAR, ADVOCATE)

AND:

 1.    THE SPECIAL BOARD AND APPELLATE AUTHORITY
       UNDER THE KARNATAKA LEGISLATIVE ASSEMBLY
       SECRETARIAT,
       (RECRUITMENT AND CONDITIONS OF SERVICE),
       RULES, 2003, VIDHANA SOUDHA,
       DR. AMBEDKAR VEEDHI,
       BENGALURU - 560 001.

 2.    HON'BLE SPEAKER AND DISCIPLINARY AUTHORITY
       KARNATAKA LEGISLATIVE ASSEMBLY
       SECRETARIAT,
       VIDHANA SOUDHA,
       DR. AMBEDKAR VEEDHI,
       BENGALURU - 560 001.

 3.    THE SECRETARY
       KARNATAKA LEGISLATIVE ASSEMBLY
                                    2


       SECRETARIAT,
       VIDHANA SOUDHA,
       DR. AMBEDKAR VEEDHI,
       BENGALURU - 560 001.
                                                      ....RESPONDENTS

(BY SRI. M. S. NAGARAJA, AGA)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 03.11.2015 PASSED BY THE RESPONDENT 1 SPECIAL
BOARD AND APPELLATE AUTHORITY (ANNEXURE-A) AND ETC.


     IN THIS WRIT PETITION ARGUMENTS HAVING BEEN HEARD
AND    RESERVED    ON    31.05.2023, COMING   ON   FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                               ORDER

1. In this writ petition, petitioner is assailing order dated

03.11.2015 (Annexure-A) passed by the Special Board and

Appellate Authority and order dated 15.11.2014 (Annexure-B)

passed by the Disciplinary Authority, inter alia sought for writ of

mandamus to the second respondent to reinstate the petitioner into

service.

2. The relevant facts for adjudication are, that the petitioner

was appointed as 'Typist' in the Karnataka Legislative Assembly

Secretariat, in the year 1989. Thereafter, petitioner was promoted

to the post of 'Stenographer' and 'Senior Assistant', consequently

held the post of 'Senior Assistant' till the petitioner was compulsorily

retired from service by the respondents. It is further averred in the

writ petition that, the respondent has issued show-cause notice

dated 24.05.2012 seeking explanation with regard to the incident

took place on 14.05.2012. It is the case of the petitioner that, the

petitioner has tendered leave letter to the Deputy Secretary and the

petitioner has not attended the Office on 14.05.2012 and

accordingly, denied the allegation made by the respondents. It is

further stated that leave letter was submitted on 11.04.2012 (as

per Annexure-C3, inadvertently stated as 11.04.2012 instead of

11.05.2012 as argued by the petitioner) on the ground of ill-health.

It is further contended by the petitioner that the respondent has

notified the absence in their letter dated 07.08.2012 (Annexure-C4

and C5). It is further averred in the writ petition that the

respondent - authority, without considering the reply filed by the

petitioner, issued Articles of Charges under Section 11 of the

Karnataka Public Service (Classification, Control and Appeal) Rules,

1957 read with Section 9 of the Karnataka Legislative Assembly

Secretariat (Appointment and Service Conditions) Rules (Annexure-

D1). The respondent has conducted enquiry and the Enquiry Officer

filed report as per Annexure-G2 dated 28.11.2013. The Enquiry

Officer concluded that the charge made against the petitioner is

proved. Thereafter, the petitioner filed reply to the second show-

cause notice as per Annexure-G3 and the Disciplinary Authority by

its order dated 15.11.2014 (Annexure-D) accepted the enquiry

report and the petitioner was ordered to be compulsorily retired

from service. Being aggrieved by the same, petitioner filed appeal

before the Appellate Authority and the Appellate Authority by Order

dated 03.11.2015 (Annexure-A) confirmed the order passed by the

Disciplinary Authority. Feeling aggrieved by the same, the

petitioner has presented this writ petition.

3. I have heard Smt. Tejaswini Rajkumar, learned counsel for

the petitioner and Sri. M.S. Nagaraja, learned Additional

Government Advocate for the respondents.

4. Learned counsel appearing for the petitioner invited the

attention of the Court to Annexure-C3 and C4 to substantiate that

the petitioner was on leave on the ground of ill-health and

therefore, she contended that, the presence of the petitioner in the

Office on the date of incident on 14.05.2012 does not arise. She

further contended that, the allegation of indecent behaviour and

using un-Parliamentary language by the petitioner with the co-

employees is far from truth as the petitioner was absent on

14.05.2012 and the said aspect of the matter has not been

considered by the Enquiry Officer.

5. Learned counsel for the petitioner further contended that, the

Disciplinary Authority or the Appellate Authority ought to have

called for Attendance Register before issuing the impugned orders

and therefore, argued that the enquiry report is based on no

evidence and the respondents have vengeance against the

petitioner to punish somehow in the matter and therefore, sought

for interference of this Court.

6. Learned Additional Government Advocate, Sri. M.S. Nagaraja,

appearing for the respondents sought to justify the action of the

respondents and contended that the during the course of the

Departmental enquiry, full opportunity was extended to the

petitioner and further, the Enquiry Officer after considering the

material on record arrived at a conclusion that the conduct of the

petitioner is to be deprecated and accordingly, he emphasised that,

the petitioner has misbehaved in such a way with the co-employees

that is unbecoming of a State Government servant and accordingly,

sought for dismissal of the writ petition.

7. In the light of the submissions made by learned counsel

appearing for the parties, I have carefully examined the writ

papers, which would indicate that Departmental enquiry has been

initiated against the petitioner in furtherance of issuance of Show-

cause notice dated 24.05.2012 (Annexure-C1), alleging that the

petitioner has misbehaved with the lady colleagues in the

respondent-office on 14.05.2012. However, it is the argument of

the learned counsel appearing for the petitioner, that petitioner was

under medical care and he has applied for leave between

14.05.2012 to 31.05.2012. In the backdrop of these aspects,

careful examination of writ papers would indicate that as the

petitioner contended that he has tendered leave letter to the

concerned officer on 11.05.2012, however, perusal of the evidence

would indicate that the petitioner had come to the respondent-

Office on 14.05.2012 and by the time, he reached the respondent-

Office late in the morning and by the time, Attendance Register was

sent to the Deputy Secretary and further around 03.15 to 04.00

p.m., he left the office by tendering leave letter produced at

Annexure-C3 on the table of the Deputy Secretary. In this regard, I

made an attempt to read the evidence of PW1 to PW8 and all these

witnesses have deposed that the petitioner had come to the office

on 14.05.2012, misbehaved with the stenographer in the

Administrative Section-2 in the indecent manner as well as with the

Section Officer and higher Officers in the Unit. In this regard, to

rebut the said fact, the petitioner has not examined any

independent witnesses. I am conscious of the fact that this Court is

having limited scope to appreciate the evidence of the witnesses in

a departmental enquiry, however, as the learned counsel appearing

for the petitioner contended that the petitioner was absent on

14.05.2012 on health ground, I was constrained to appreciate the

evidence of the witnesses. Perusal of the Enquiry report would

indicate that the enquiry officer has appreciated the oral and

documentary evidence on record in a right perspective and has

opined at paragraphs 14 and 15 that the attitude of the petitioner

would establish the alleged misconduct on the part of the petitioner,

and in view of the said finding recorded by the enquiry officer at

Annexure-G2, I do not find any merit in the writ petition.

8. Nextly, the perusal of the writ papers would indicate that the

respondents have extended full opportunity of hearing to the

petitioner during the Departmental Enquiry and it is not the case of

the petitioner that no opportunity was extended to adduce evidence

and further petitioner himself has been examined as DW1 and got

marked Exhibits D1 to D5, and therefore, I am of the view that the

alleged conduct of the petitioner misbehaving with the women

colleagues in the respondent-Office amounts to "misconduct" under

the aforementioned Act. It is also forthcoming from the writ papers

that petitioner was warned for his misbehaviour on the earlier

occasion also by the higher officer of the respondents, and

therefore, following law declared by Hon'ble Apex Court in the case

of COL. ANIL KUMAR GUPTA Vs. UNION OF INDIA reported in

AIR 2022 SC 5626, it is held that in a Departmental Enquiry

proceedings it is the duty of the Court to exercise judicial review to

evaluate the decision making process and not the decision itself.

Therefore, I do not find any ground to interfere with the findings

recorded by the Enquiry officer, consequently, confirmed by the

disciplinary and appellate authority. It is trite law that the

interference in a Departmental Enquiry by this Court under Article

226 of the Constitution of India is limited as observed by the

Hon'ble Apex Court in the case of PRAVIN KUMAR Vs. UNION OF

INDIA reported in (2020)9 SCC 471; in the case of DEPUTY

GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS

Vs. AJAY KUMAR SRIVASTAVA reported in (2021)2 SCC 612;

and in the case of MALKEET SINGH GILL Vs. THE STATE OF

CHHATTISGARH reported in (2022) 6 SCC 563. Recently, in the

case of INDIAN OIL CORPORATION AND OTHERS Vs. AJIT

KUMAR SINGH AND ANOTHER, reported in (2023) SCC Online

SC 647, Hon'ble Supreme Court, in Civil Appeal No.3663 of 2023

decided on 17.05.2023, had an occasion to lay down the law

relating to power of judicial review in departmental enquiry and at

paragraph Nos. 6 to 8 therein, read as under:

"6. The facts of the case leading to the issuance of chargesheet, initiation of departmental inquiry, the report of the inquiry officer and the punishment inflicted upon respondent no.1 have already been narrated in the preceding paragraphs. It is not in dispute that during the course of inquiry, fair opportunity of hearing was afforded to the respondent no.1 at every stage. This was even found by the learned Single Judge while dismissing the writ petition challenging the punishment inflicted upon him. The judgment passed by the Division Bench of the High Court shows that matter was dealt with in a manner as if it was the first stage of the case, namely, the inquiry was being conducted and inquiry report was being prepared, which is not the scope in judicial review. The views expressed by this Court on the scope of judicial review in Deputy General Manager (Appellate Authority) vs. Ajai Kumar Srivastava1 , are extracted below:

"24. It is thus settled that the power of judicial review, of the constitutional courts, is evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The 1 (2021) 2 SCC 612 Page 6 of 9 Civil Appeal No. 3663 of 2023 court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

25-27 xx xx xx

28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is

such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the Page 7 of 9 Civil Appeal No. 3663 of 2023 conclusion arrived at by the departmental authority, the same has to be sustained."

(emphasis supplied)

7. Similar view was expressed in the later judgment of this Court in Ex-Const/Dvr Mukesh Kumar Raigar vs. Union of India (2023 SCC OnLine SC 27).

8. If the facts of the case are examined in the light of the settled principles of law in scope of judicial review, we find that the Division Bench of the High Court proceeded to reappreciate the entire evidence as if conviction in a criminal trial was being re-examined by the next higher court. The stand taken by the respondent no.1 was that he was on leave and there was no question of his tampering with any document. His contention was that merely because he had the duplicate key of the drawer where the documents were kept, he cannot be made responsible for any tampering. However, there was no answer to the finding recorded by the Inquiry Officer in the Inquiry Report, namely, that the changed form of quotation of M/s. Laxmi Singh contained original signature of respondent no.1. The fact that this "Form of quotation" was changed is not in dispute. When the changed form of quotation also contained signature of respondent no.1, it clearly established his involvement in the tampering of document. 2 (2023) SCC Online SC 27 Page 8 of 9 Civil

Appeal No. 3663 of 2023 This fact has not even been noticed by the Division Bench of the High Court."

9. Applying the principles evolved by the Hon'ble Apex Court in

the aforementioned cases to the facts on record, I do not find the

petitioner has made out a case for interference in this writ petition

by exercising the jurisdiction under Article 226 of the Constitution of

India.

10. In the result writ petition is rejected.

SD/-

JUDGE

sac*