Karnataka High Court
The State Of Karnataka vs Sri M J Thimmegowda on 1 August, 2024
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WP No. 20191 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
WRIT PETITION NO. 20191 OF 2024 (S-KSAT)
BETWEEN:
THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYATH RAJ
M.S. BUILDING
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560 001
...PETITIONER
(BY SRI. REUBEN JACOB, AAG, A/W.
SRI. VIKAS ROJIPURA, AGA)
AND:
Digitally signed SRI. M.J. THIMMEGOWDA
by
CHANNEGOWDA S/O LATE JAVAREGOWDA
PREMA
Location: High AGED ABOUT 70 YEARS
Court of
Karnataka RETIRED AS EXECUTIVE OFFICER
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYATH RAJ
R/AT. NO.44/1, MELAHALLY
PERIYAPATNA POST
MYSURU DISTRICT-577 107
...RESPONDENT
(BY SRI. M. NAGARAJAN, ADVOCATE &
SRI. SATHEESH K.N., ADVOCATE FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO (a) CALL
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WP No. 20191 of 2024
FOR THE RECORDS PERTAINING TO THE ORDER DATED
16.08.2023 IN APPLICATION No.4420/2022 PASSED BY THE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT
BENGALURU (ANNEXURE-A) AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This writ petition is filed by the State of Karnataka
seeking the following prayers:-
i. "Call for the records pertaining to the Order dated
16.08.2023 in Application No.4420/2022 passed by
the Karnataka State Administrative Tribunal, at
Bengaluru (Annexure - A);
ii. Issue writ of certiorari or any other appropriate
writ, order, or direction for quashing/setting aside
the Order dated 16.08.2023 in Application
No.4420/2022 passed by the Karnataka State
Administrative Tribunal, at Bengaluru
(Annexure - A)."
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2. We have heard the learned Additional Advocate
General appearing for the petitioner as well as learned
counsel appearing for the private respondent.
3. It is submitted by the learned Additional Advocate
General that the real reasons for filing this writ petition is
only with regard to the right of the petitioner to correct
the technical defects found by the Tribunal in the second
Show Cause Notice issued to the private respondent and
its right to re-start the proceedings at the stage where it
stood vitiated. It is submitted that an enquiry has been
conducted as against the private respondent and the
charges against him were found to be not proved in the
enquiry. The disciplinary authority did not agree with the
findings in the enquiry and had issued a Show Cause
Notice dated 20.01.2016 seeking to differ with the findings
in the enquiry. It is submitted that after considering the
contentions advanced, the Tribunal came to the conclusion
that said Show Cause Notice did not record reasons for
differing from the findings in the enquiry. It is submitted
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that the Show Cause Notice dated 20.01.2016 and the
further proceedings on the basis of the same were set
aside by the Tribunal. However, it is contended that since
the finding was specifically that the reasons were not
recorded in the second Show Cause Notice, petitioner
ought to have been given an opportunity to record the
reasons, if there were such reasons available and to
continue with the proceedings, which was not done in the
instant case on the ground that the petitioner had
defended and justified the Show Cause Notice issued in
the pleadings before the Tribunal. It is therefore
contended that the petitioner may be given an opportunity
to issue a proper notice recording the reasons, if such
reasons are available and to continue with the
proceedings.
4. Learned counsel for the petitioner relies on the
decision of the Hon'ble Apex Court in the case of
Chairman, Life Insurance Corporation of India and
others vs. A.Masilamani reported in (2013) 6 SCC 530
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to contend that the Apex Court has clearly held in several
decisions that in case there is a technical defect noticed at
any stage of the disciplinary proceedings, the authority is
entitled to continue the proceedings from the stage where
they stand vitiated by such error.
5. Learned counsel appearing for the private
respondent, on the other hand, contends that there were
absolutely no reasons available for differing from the
findings in the enquiry. It is submitted that pleadings
placed on record before the Tribunal would show that the
petitioner herein was relying on material which was
extraneous to the enquiry proceedings for proceeding
against the private respondent. It is submitted that going
by the provisions of Rule 11-A of the Karnataka Civil
Services (CCA) Rules, 1957 (hereinafter referred to as
'KCS (CCA) Rules' for short) any differing from the finding
of the Enquiry Officer must be confined to the material
which is available in the enquiry and extraneous material
cannot be relied on for such purpose. It is contended that
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after considering the contentions raised on behalf of the
petitioner before the Tribunal, the Tribunal had held that
there is no scope for permitting the issuance of the second
Show Cause Notice afresh in the instant case. It is
submitted that pleadings would show that the petitioner
was seeking to rely on other materials which were not
placed in the enquiry for the purpose of proceeding as
against the respondent.
6. Learned counsel for the respondent would place
reliance on the decision of the Hon'ble Apex Court in the
case of Punjab National Bank and others vs. Kunj
Behari Misra reported in AIR 1998 SC 2718 to contend
that where the disciplinary authority differs with a view of
the Enquiry Officer and proposes to come to a different
conclusion, there is no reason why an opportunity of
hearing should not be granted and finally, that it is only on
material available in the enquiry that the reasons to be
recorded for differing from the finding of the Enquiry
Officer can be raised.
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7. Having considered the contentions advanced, we
notice that the second Show Cause Notice issued to the
private respondent on 23.11.2018 only records a
disagreement with the findings in the enquiry. It does not
record the reasons for such disagreement. We are
therefore in agreement with the Tribunal that the said
Show Cause Notice issued was not in accordance with Rule
11-A of the KCS (CCA) Rules. However, it is clear that it is
on account of the fact that proper reasons had not been
recorded in the second Show Cause Notice that the
Tribunal had set aside the Show Cause Notice and further
proceedings issued on the basis of the same.
8. In the said circumstances, we are of the opinion
that the petitioner is entitled to an opportunity to examine
whether there are proper reasons available to differ from
the findings of the Enquiry Officer on the basis of the
materials, which were available in the inquiry. If such
reasons are available, it is open for them to issue a second
Show Cause Notice. However, it is to be noticed that after
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issuance of the second Show Cause Notice, which has now
been found against by the Tribunal, the private respondent
has retired from service in the year 2020. Therefore, the
provisions of Rules 2 and 4 of the KCS (CCA) Rules shall
also be borne in mind by the petitioner. It is made clear
that in case, the petitioner comes to a conclusion that the
proceedings have to be continued after issuance of second
Show Cause Notice, such notice will be confined to reasons
to be recorded on the basis of the materials on record in
the enquiry and no extraneous material shall be relied on.
9. We therefore, order in this writ petition directing
that in case, there is reason available on the basis of the
material produced before the Enquiry Officer to differ from
the findings of the Enquiry Officer, the petitioner shall
examine the matter and issue a Show Cause Notice
recording the reasons for differing from the findings of the
Enquiry Officer. However, such Show Cause Notice shall
be issued within a period of six weeks from the date of
receipt of copy of this order. If such Show Cause Notice is
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not issued within six weeks, it will be considered that there
is no reason for differing from the findings of the enquiry
and the respondent will be entitled for all his retirement
benefits. In case, the petitioner issues the second Show
Cause Notice within six weeks as provided, the
proceedings shall be completed within a period of two
months thereafter. The private respondent shall also co-
operate for the completion of the enquiry within the said
time. The direction issued by the Tribunal with regard to
settling the retirement benefits shall stand modified as
directed above. The writ petition is accordingly disposed
of.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
MH/-
