(BY SRI VIKAS ROJIPURA, AGA FOR R1 & R2
SRI K PRASANNA SHETTY, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO I.
CALL FOR THE ENTIRE RECORDS IN APPLICATION NO.
17/2021 ON THE FILE OF THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU AND II. ISSUE
AN ORDER OR WRIT IN THE NATURE OF CERTIORARI,
QUASHING THE ORDER PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN
APPLICATION NO.17/2021 DATED 17.08.2022
(ANNEXURE-A IN A. NO.4409/2021 C/W A. NO. 17/2021)
AND ETC.
...PETITIONER
(BY SRI. C.M. NAGABUSHAN, ADV.)
...RESPONDENTS
(BY SRI. VIKAS ROJIPURA, AGA FOR R1 & R3
SRI K PRASANNA SHETTY, ADV. FOR R2)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO I)
ISSUE A WRIT IN THE NATURE OF CERTIORARI BY
QUASHING THE ORDER DATED 17/08/2022 IN
APPLICATION NO.4409/2021 PASSED BY THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL, BANGALORE (VIDE
ANNEXURE-D), IN SO FAR IT RELATES TO THE
PETITIONER IS CONCERNED AND ETC..
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 02.06.2025 COMING ON THIS
DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE T.M.NADAF
CAV ORDER
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
In the above two writ petitions, the petitioners
are challenging the common order dated 17.08.2022
passed in Application No.4409/2021 c/w Application
No.17/2021, passed by the Karnataka State
Administrative Tribunal at Bengaluru (for short
"Tribunal") rejecting their applications, questioning the
imposition of penalty of withholding 4 annual
increments with cumulative effect and withholding
promotion for a period of 4 years from the date they
become eligible for promotion under Government
Order dated 20.07.2020.
2. The brief facts of the case are that:
At the relevant point of time, the petitioner in
W.P.No.25759/2024 was working as Forest Guard and
petitioner in W.P.No.21666/2022 was working as
Range Forest Officer at Sakaleshpura. On the
complaint of one Suresh D.K., who was working as
Watchman on daily wage basis, investigation was
taken up by the 3rd respondent and thereafter,
considering the report of the Upa Lokayukta, the 1st
respondent-state entrusted the enquiry to the 3rd
respondent. The 3rd respondent issued common
Articles of Charge to the petitioners dated 04.01.2017
alleging that while they were working as Forest Guard
and Range Forest Officer respectively during the year
2011 have failed to discharge their duties diligently
resulting in cutting and moving of certain valuable
produce of cut trees in Sakaleshpura Forest. Thus,
they have failed to maintain absolute integrity besides
devotion to duty and thus misconducted themselves
under Rule 3(1) of Karnataka Civil Service (Conduct)
Rules 1966. The 3rd respondent conducted enquiry.
3. During the course of enquiry, the Disciplinary
Authority examined P.W.1 and P.W.2 i.e., the
complainant and Sri.G.Venkatesh, Assistant
Conservator of Forest and Investigation Officer who
had submitted Ex.P6 (Annexure-A3 in
W.P.No.25759/2024) and marked as many as 12
documents as Ex.P1 to Ex.P12, whereas the
petitioners-accused Government Servants examined
themselves as D.W.1 and D.W.2 apart from marking
Ex.D1 to Ex.D9.
4. The Enquiry Officer under report dated
29.06.2019 recorded a finding that the charge is
proved and the petitioners have failed to maintain
absolute integrity and devotion to duty. The
petitioners were issued with second show-cause notice
along with enquiry report and recommendation of
Upa-Lokayuktha. The petitioners said to have
submitted their explanation to the second show-cause
notice. The first respondent-State Government, under
impugned Government Order dated 20.07.2020
imposed punishment of withholding 4 annual
increments with cumulative effect and withholding of
promotion for a period of 4 years from the date they
become eligible for promotion. Aggrieved by the said
order of punishment, the petitioners were before the
Tribunal in the above stated applications. The
Tribunal, observing that re-appreciation of material
placed before the Enquiry Officer is not permissible
and came to the conclusion that the finding arrived at
by the Enquiry Officer is based on materials. Being
aggrieved, the petitioners are before this Court in
these two writ petitions.
5. Heard learned senior counsel Sri.P.S.Rajgopal
along with Sri.Amruthesh C., learned counsel for the
petitioner in W.P.No.25759/2024 as well as learned
senior counsel Professor C.M.Nagabhushana, for
petitioner in W.P.No.21666/2022; Sri.Vikas Rojipura
for respondents No.1 and 2 and Sri.K.Prasanna
Shetty, learned counsel for respondent No.3. Perused
the entire writ petition papers.
6. Learned senior counsels appearing for the
petitioners would submit that the finding of the
Enquiry Officer and consequent imposition of
punishment is opposed to the material on record and
is the result of non-application of mind. Learned
senior counsels for the petitioners mainly contended
that the charge leveled against the petitioners are
vague and that the author of Ex.P6/report of the
Assistant Conservator of Forest which is the basis for
proving the charge is not examined and there was no
opportunity for the petitioners to cross-examine on
the said report which would amount to denial of
proper opportunity to defend themselves in the
enquiry.
7. Learned senior counsels for the petitioners
referring to the Articles of Charge would submit that
the charge leveled against the petitioners would not
contain any details and it would not disclose area in
which the trees are cut and what is the value of the
cut trees. In the absence of details, the petitioners
were not in a position to explain and defend
themselves.
8. Learned senior counsel for the petitioners would
further submit that Ex.P6 and Ex.P12 are the reports
of the two different Assistant Conservator of Forest
which were produced before the Enquiry Officer in
support of the case of the Disciplinary Authority. It is
submitted that the author of Ex.P12 was examined
and it is specifically submitted that there is no finding
against the petitioners in Ex.P12. On other hand, it is
submitted that the report would state that the
petitioners have not participated in cutting the trees.
However, it is submitted that in Ex.P6 there is
allegation against the petitioners that there is
unauthorized cutting of trees. When such allegations
are made against the petitioners, the author of the
report ought to have been examined. Non-
examination of the author of Ex.P6 has resulted in
denial of proper opportunity to the petitioners. In
that, they are denied opportunity to cross-examine
the author of Ex.P6. Non-examination of author of
Ex.P6 has prejudiced the cases of the petitioners.
Further, it is submitted that both the enquiry officer as
well as the Disciplinary Authority has failed to take
note of the said contention raised by the petitioners
and failed to examine as to whether non-examination
of the author of Ex.P6 has resulted prejudice to the
petitioners. Thus, they pray for allowing the writ
petitions.
9. Per contra, learned AGA as well as learned
counsel appearing for respondent No.3 would support
the report of the enquiry officer and they also justify
the punishment imposed on the petitioners. It is
submitted that non-examination of author of Ex.P6
has not resulted in denial of opportunity to the
petitioners. Since the author of Ex.P12 has been
examined, the petitioners cannot complain that they
had no proper opportunity. Further, learned counsel
would submit that the charge against the petitioners is
serious as they are responsible for unauthorized
cutting of trees in Sakaleshpura range and as such
they submit that the punishment imposed is
proportionate to the gravity of charge. Hence, they
prayed for dismissal of the writ petitions.
10. Having heard the learned counsel for the parties
and on perusal of the writ petition papers, the
following point would arise for our consideration:
Whether the impugned order passed
by the Tribunal as well as the impugned
order of punishment dated 20.07.2020
requires interference at the hands of this
Court?
11. Answer to the above point would be in the
affirmative for the following reasons:
In a departmental proceedings/enquiry, charges
could be proved on the basis of preponderance of
probabilities. Strict rules of evidence is not applicable
to the departmental enquiry/proceedings. Strict rules
of evidence is not applicable to the departmental
enquiry, would not mean that there need not be any
evidence. There shall be some evidence to prove the
charge. The Enquiry Officer shall comply the
principles of natural justice and delinquent officer shall
be given every opportunity to defend himself in the
enquiry.
12. The common charge against the petitioners in
terms of Articles of Charge dated 04.01.2017 reads as
follows:
"That, you DGO-1 Smt.T.A.Ratnaprabha,
Range Forest Officer, Sakaleshpura, Hassan
and you DGO-2 Sri.T.H.Chandregowda, Forest
Guard, Sakaleshpura, Hassan District, while
working as Range Forest Officer and Forester
respectively during the year 2011, have failed
to discharge your duties diligently resulting in
cutting and moving of certain valuable produce
of cut trees in Sakaleshpur forest. Thus, you
DGOs 1 and 2, being Government/public
servants have failed to maintain absolute
integrity besides devotion to duty and acted in
a manner unbecoming of Government servants
and thus committed misconduct as
enumerated U/R 3(1) of Karnataka Civil
Service (Conduct) Rules, 1966."
13. A reading of the above charge would indicate
that the petitioners have failed to discharge their
duties diligently resulting in cutting and moving of
certain valuable trees in Sakaleshpura Forest. The
charge would not give any other particulars, such as,
the period during which the trees were cut, the area of
cutting trees, number of trees cut or value of the trees
cut, the date and time of the cutting trees etc. The
charge leveled against the petitioners is general in
nature. The charge shall always be specific with all
details and there shall not be any ambiguity in the
charge. Unless delinquent official is in a position to
understand the charge, he/she would not be in a
position to answer the same. As the charge is not
specific and definite, further proceedings in the
enquiry has vitiated.
14. With regard to vagueness of charge, the Hon'ble
Supreme Court in ANIL GILURKER v/s BILASPUR
RAIPUR KSHETRIYA GRAMIN BANK AND
ANOTHER reported in (2011)14 SCC 379 at
paragraphs 11 and 14 has held as follows:
11. A plain reading of the charges and the
statement of imputations reproduced above
would show that only vague allegations were
made against the appellant that he had
sanctioned loans to a large number of brick
manufacturing units by committing
irregularities, but did not disburse the entire
loan amount to the borrowers and while a
portion of the loan amount was deposited in
the account of the borrowers, the balance was
misappropriated by him and others. The details
of the loan accounts or the names of the
borrowers have not been mentioned in the
charges. The amounts of loan which were
sanctioned and the amounts which were
actually disbursed to the borrowers and the
amounts alleged to have been misappropriated
by the appellant have not been mentioned.
14. This position of law has been reiterated in
the recent case of Union of India & Ors. v.
Gyan Chand Chattar (supra) and in Para 35 of
the judgment as reported in the SCC, this
Court has observed that the law can be
summarized that an enquiry is to be conducted
against any person giving strict adherence to
the statutory provisions and principles of
natural justice and the charges should be
specific, definite and giving details of the
incident which formed the basis of charges and
no enquiry can be sustained on vague charges.
The above decision lays down that without giving the
details of the incident which are the bedrock for
charge or charges, no enquiry could be sustained.
15. Learned senior counsel appearing for the
petitioners contended that non-examination of author
of Ex.P6 would amount to denial of opportunity to
cross-examine, as the said report is the basis for
holding that the charge is proved against the
petitioners. A perusal of Ex.P6 and Ex.P12 which are
placed on record as Annexures-A4 and A3 respectively
in W.P.No.25759/2024 discloses that, under
Annexure-A3/report of the Assistant Conservator of
Forest, observed that there is unauthorized cutting of
trees in Sakaleshpur Range whereas under
Annexure-A4, the subsequent report of the Assistant
Conservator of Forest it is observed that the
petitioners have not participated in unauthorized
cutting of trees. Though the Disciplinary Authority
examined the author of Ex.P12, but failed to examine
the author of Ex.P6 wherein there is some allegation
against the petitioners. Non-examination of the
author of Ex.P6 has definitely prejudiced the cases of
the petitioners. If the petitioners were to be given an
opportunity to cross-examine the author of Ex.P6, the
petitioners would have tried to establish that they are
not involved in unauthorized cutting of trees as
alleged. The Hon'ble Apex Court in RAJIV ARORA
v/s UNION OF INDIA AND OTHERS reported in
(2008) 15 SCC 306 while dealing with the non-
examination of maker of the report in a Court Martial
proceedings has observed that the principles of
natural justice demand that the maker of the report
should be examined. It has also further observed that
non-examination of the maker of the report would
violate principles of natural justice. Relevant
paragraphs 11, 12, and 13 reads as follows:
11. The respondents never denied or
disputed the said contentions. It is, however,
urged that no prejudice has been caused to the
petitioner due to non-examination of the said
witnesses during the summary of evidence.
Such a plea has been raised on the premise
that a report had been furnished, inter alia, in
respect of charge No.2 by Shri Dipendra
Pathak and the same has been produced in the
summary of evidence by Sq. Ldr. T.S. Reddy
who was the custodian thereof.
12. Whether prejudice has been caused by
non-examination of witnesses named in the
charge-sheet is essentially a question of fact.
An inference is required to be drawn having
regard to the facts and circumstances
obtaining in each case. The charges framed as
against the appellant were specific. The
misconducts were said to have been
committed are in relation to the persons
named therein. In the proceedings, seven
witnesses were examined, namely, Air
Commander M. Bhandari, Sgt. Narender
Kumar, Flight Lieutenant S. Dasgupta, Group
Captain S.S. Kothari, Group Captain P.W.
Amberkar, Group Captain S.C. Kabra and
Squadron Leader T.S. Reddy.
13. No explanation has been offered as to
why the concerned witnesses could not be
examined. Shri Reddy, PW-7 was the
custodian of the report. He was not the maker
thereof. Effective cross-examination could have
been done as regards the correctness or
otherwise of the report, if the contents of them
were proved. The principles analogous to the
provisions of the Indian Evidence Act as also
the principles of natural justice demand that
the maker of the report should be examined,
save and except in cases where the facts are
admitted or the witnesses are not available for
cross-examination or similar situation. No
reason has been assigned as to why the
named witnesses who only could prove the
change had not been examined. Indisputably,
they were the prime witnesses.
16. The Tribunal, under impugned order proceeded
to dismiss the applications only on the ground that re-
appreciation of entire material placed before the
Enquiry Officer is not permissible, without examining
as to whether the petitioners had given proper
opportunity to defend themselves before the Enquiry
Officer and also failed to examine whether there is
violation of principles of natural justice. The Tribunal
shall look into the enquiry material to find out whether
there is some evidence. Re-appreciation of evidence
is different from finding out as to whether there is
some evidence to prove the charge/s.
17. For the reasons recorded above, the petitioners
are bound to succeed. Hence, the following order:
Both the writ petitions are allowed. Common
order dated 17.08.2022 in Application No.4409/2021
and Application No.17/2021 passed by the Tribunal is
set aside. Consequently, applications filed before the
Tribunal are allowed and common impugned order of
penalty bearing No. C¥Àfà 128 CE« 2016 dated
20.07.2020 (Annexure -A18) is quashed.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
MPK
CT: bms
