K. R. LAKSHMANA RAO v. GOVERNOR OF KARNATAKA — 1977 DIGILAW 181 (KAR)

( 1 ) IN this writ petition under Article 226 of the Constitution of India (42nd Amendment) the petitioner has sought for the issue of a writ of certiorari or any other writ, direction or order for quashing the order passed by the 2nd respondent the State of Karnataka and also for his re-instatement in service with all the benefits to which he is entitled. ( 2 ) THE petitioner assumed charge as Tahsildar of Chickballapur Taluk on 27-5-1971. There were about 77 land grant cases (Darkhast) pending disposal. Withi three months, he disposed of all the cases granting 654 acres 12 guntas of land to 238 beneficiaries. The records in those cases were built up before he assumed the charge as Tahsildar of the taluk. On 27-8-1971 the petitioner passed orders granting 2 acres of land to each of the 7 applicants out of Sy No. 40 of Keshavara Village, nandi Hobli, Chickballapur Taluk. Before passing those orders, he had received petitions from some villagers objecting to the grant of the land for cultivation on the ground of insufficiency of gomal. He inspected the spot and found that it was not useful for grazing and that hardly 14 acres remain out of gomal, he rejected the objections and made the aforesaid grant. He thereafter issued 'saguvali chits'. Against this order, petitions were presented by the villagers alleging that the grantees were ineligible to obtain grants on the ground that some of them own lands and pump-sets. On receipt of these petitions the petitioner held a detailed enquiry as required under the Land Grant Rules, recorded the statement of all grantees, verified their statements with ahwal Takhtee and other revenue records regarding the lands owned by them. He found four of them were landless and that remaining three were insufficient holders. Therefore, he, bona fide believed that the grants were not liable to be set aside and he ordered the issue of 'saguvali Chits'. Aggrieved persons filed an appeal in RA. 3 of 1972-73 before the Assit Commr, Chickballapur Sub Divn, Chickballapur. Further, (Karnataka) Land Revenue Act, 1964 (to be hereinafter called the 'act') for cancellation of the grant made in favour of the 7 persons. The deputy Commr of Kolar, called for the records from the Asst Commr and cancelled the grants. The order of the Deputy Commr was challenged by the grantees before the Divl Commr. Further, (Karnataka) Land Revenue Act, 1964 (to be hereinafter called the 'act') for cancellation of the grant made in favour of the 7 persons. The deputy Commr of Kolar, called for the records from the Asst Commr and cancelled the grants. The order of the Deputy Commr was challenged by the grantees before the Divl Commr. Bangalore, who set aside foe order of the Deputy Commr and remanded the case to the Assistant commr for disposal according to law. The matter is still pending before the Asst Commr, Chickballapur Sub Divn, under Sec. 49 of the Mysore upon a certain complaint made to the Govt, the Govt ordered departmental enquiry to be held by the State Vigilance Commissioner, under rule 14a (1) (a) of the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957 (to be hereinfater referred to as the CCA 'rules'), against the petitioner in respect of certain acts of misconduct alleged to have been committed by the petitioner with regard to the grant of land to the seven applicants. The Vigilance Commr nominated the Asst Director of Vigilance as Enquiry Officer to hold the enquiry. ( 3 ) HE served the petitioner the article of charge and statement of allegations as per Ext. 'a'. The articles of charge against the petitioner is that while he was working as Tahsildar in Chickballapur Taluk on 28-8-1971 granted 2 acres of land in Sy No. 40 of Keshavara Village to each of the seven applicants among seventy applicants though all the grantees possessed other lands ana nve of them possessed irrigation pump-sets by making the grant in violation or disregard of the Karnataka Land Grant Rules 3 and 8 (5) of the Rules of 1969 and the orovisions of the Prevention of fragmentation and Consolidation of Holdings Act, 1966 (to be called a the 'fragmentation Act' ). The petitioner submitted his reply stating that he is not guilty of the charge and that he has not violated any Rules and that the grantees vere all eligible for grant of lands and he also brought to the notice of the Enquiry Officer that the matter is pending before the appellate authority. The Enquiry Officer held the enquiry and submitted his report of enquiry to the Vigilance Commr. The Enquiry Officer held the enquiry and submitted his report of enquiry to the Vigilance Commr. His findings are that Rule 3 of the land Grant Rules and the provisions of the Fragmentation Act, are not violated, and that the petitioner has acted in utter disregard of Rules 5, 6, 8 (4) and 8 (5) and also 25 of the Land Grant Rules. ( 4 ) THE Vigilance Commr, in his report dt. 21-2-1975 opined that there is no evidence to substantiate the charge framed against the petitioner but held that three imputations of misconduct are established against the petitioner and recommended to the Govt for imposing any of the major penalties. The Govt agreeing with the recommennation of the Vigilance commr, recorded the findings that the imputations 1 to 3 in the statement of allegation are proved by its order dt. 16-12-1976 and served a show cause notice on the petitioner as required under Art. 311 (2) of the constitution of India, directing him to show cause why he should not be compulsorily retired from service. The petitioner submitted a reply wherein he brought to the notice of the Govt as to how the charge is unsustainable and the finding on the imputations 1 to 3 in the statement of allegation are bad in law being opposed to the principles of natural justice and that the appeal preferred by the villagers is still pending before the appellate authority. Thereafter the Govt passed orders on 3-7-1976 as per Ext. 'e' imposing the punishment of compulsory retirement from service upon the petitioner with immediate effect. The petitioner at that time was working as Karnataka Administrative Service class I (Junior Scale) Officer, in the Social Welfare Dept. He filed an appeal before the 1st respondent, the Governor. By an order dt. 29-1-77 the Governor rejectel the application. ( 5 ) MR. R. S. Mahendra, learned Advocate for the petitioner, firstly contended that the Govt have no competency to impose any major penalty unless the articles of charge is established against the Govt servant as required under Rule 11a of the CCA Rules. He pointed out that Rule 11a of the CCA Rules, provides for imposition of major penalty only when a finding is recorded by the disciplinary authority that the charge is established. He further urged that the Govt have not recorded their finding that the charge is established against the petitioner. He pointed out that Rule 11a of the CCA Rules, provides for imposition of major penalty only when a finding is recorded by the disciplinary authority that the charge is established. He further urged that the Govt have not recorded their finding that the charge is established against the petitioner. Secondly, he contended that the disciplinary authority has not applied its mind to the relevant points for consideration as also the grounds urged by the petitioner in his reply to the show cause notice as required under Rule 11 (a) of the CCA Rules. Thirdly, he contended that the appellate authority had not considered the appeal as required under rule 25 of the. CCA Rules and rejected the same. Therefore, he urged that the orders at Ext. 'e' dt. 3-7-1976 and Ext. R1 dt. 29-1-1977 are not sustainable and they are liable to be quashed. ( 6 ) MR. Puttaswamy, learned Advocate for the Govt, while conceding that the articles of charge framed against the petitioner has not been established, contended that failure to establish articles of charge does not vitiate the imposition of major penalty when the imputations found in the statement of allegations are held to have been proved. According to him, articles of charge and the statement of allegations are one and the same and that if any one is proved, it is open to the Disciplinary authority to impose a major penalty on the petitioner. In other words, he contended that if the disciplinary proceedings are initiated for a major penalty and the articles of charge are not proved, the Disciplinary authority, can impose major penalty if imputations are proved. He further urged that the petitioner had the opportunity to meet the imputations set out in the statement of allegations which was supplied to him along with the articles of charge. He placed reliance upon the decision of the Supreme Cour in State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723 . for the proposition that the charge and the statement of facts form part of the single document and on the basis of which proceedings are started. He placed reliance upon the decision of the Supreme Cour in State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723 . for the proposition that the charge and the statement of facts form part of the single document and on the basis of which proceedings are started. From the contentions raised on behalf of the parties, the questoins which arise for decision are; (1) Whether the Govt has no competence to impose any major penalty unless the articles of charge is established against the petitioner as required under Rule 11a of the CCA Rules. (2) When the articles of charge is not established whether it is permissible under Rule 11a of the CCA Rules, to impose a major penalty if merely imputations found in the statement of allegations are established. (3) Whether the penalty now imposed on the petitioner is without competence and hence invalid. ( 7 ) THE Vigilance Commr disagreed with the finding of the Enquiry officer that the articles of charge under Rule 8 (5) of the Rules is proved. While disagreeing with the finding, the Vigilance Comnir, in the course of his report observed thus :"but unfortunately, there is no specific charge or statement of imputations on this misconduct diclosed during the inquiry. It is firmly settled law that a Govt servant cannot be held guilty of a charge other than the one for which he was charged. But the charge in this case is not to the effect that AGO after he came to know of the fraud instead of cancelling the grant under Rule 25, issued saguvali Chits on a whimsical or untenable ground of the grantees being insufficient holders. The charge framed against him is one of violation Rule 8 (5) of the Land Grant Rules. This means that the AGO, at the time he granted lands to the 7 applicants knew that all of them at least six of them were not eligible for being granted the lands and AGO knowing the same, granted the lands and thus violated Rule 8 (5) of the Land Grant Rules. But there is no evidence to prove the aforesaid facts to substantiate the charge framed against him. " ( 8 ) HOWEVER, the Vigilance Commr held that the following imputations in the statement of allegations are proved. But there is no evidence to prove the aforesaid facts to substantiate the charge framed against him. " ( 8 ) HOWEVER, the Vigilance Commr held that the following imputations in the statement of allegations are proved. (1) That the petitioner issued cultivation chits (Saguvali Chits) to the seven grantees without proper enquiry though the petitions were sent by the ryots of Keshavara Village on 12-9-1971, 15-9-1971 and 10-10-1971 questioning the grant on the ground of ineligibility of the grantees. (2) The petitioner made grants without obtaining Ahwal Taktha of the grantees from the Revenue Inspector and he did not pass orders on each of the 70 applications which had been filed for grant of land in survey No. 40 of Keshavara Village. (3) The need of the landless persons and rules of priority were ignored by him in making the grants. ( 9 ) THE Vigilance Commr was of the view that all the three imputations were established against the petitioner. Imputation- No. 1 is grave enough and in the circumstances of the case, it calls for imposition of a severe punishment. Therefore, he recommenddd to the Disciplinary authority that the imputations Nos. 1 to 3 in the statement of allegations are proved against the petitioner and having regard to the gravity of the misconduct involved, particularly with reference to the first imputation, recommended to the Govt to impose any major penalty as prescribed under the CCA Rules The Vigilance Commr appears to have laboured under a misconception that the 1st statement of imputation is found in the statement of allegations. In the statement of allegation with reference to the petitions sent by the Ryots of Keshavara village on 12-9-1971, 15-9-71 and 10-10-71 the allegation against the petitioner is that he issued "saguvali Chits" to seven grantees who were ineligible for the grant without proper enquiry. Therefore, the allegation that the petitioner without proper enquiry issued "saguvali chits" to the grantees on 18-1-1972 is referable to the ineligibility of the seven grantees to obtain the lands granted to them. This is the gravamen in the articles of charge which is held not proved by the Enquiry officer and the Vigilance Commr, in view of the fact that out of the seven grantees some were landless and some were insufficient holders who were eligible for the grant. This is the gravamen in the articles of charge which is held not proved by the Enquiry officer and the Vigilance Commr, in view of the fact that out of the seven grantees some were landless and some were insufficient holders who were eligible for the grant. The imputation with reference to the several petitions of complaint against the grant is that the petitioner did not investigate the truth of the allegations in the petition. There is no evidence, consequently no finding was given by the Enquiry Officer. Therefore the 1st imputation, which is held to be grave and which called for imposition of severe punishment is misconceived and the finding thereon given by the Vigilance Commissioner is vitiated. ( 10 ) AS regards the second imputation held to have been proved, the allegation in the statement of imputations is that, "ahwal Takhta" of two grantees was not obtained prior to the grant and that he did not pass orders on each of the 70 applications for the grant of land. The learned Govt Advocate is unable to point out any Rule in the land Grant Rules, which required the petitioner to obtain the 'ahwal takhta' prior to the grant. But it is submitted by the Govt Advocate that the practice required him to do so. It is significant to note that the enquiry Officer has referred to the Ahwal Takhtas Exts. PS, P6 and p24 secured by the petitioner. Inspite of this, the Vigilance Commr gives a finding that the grants were made without obtaining Ahwal takhtas of the grantees. This finding is the result of misconception and misunderstanding of the material on record. ( 11 ) FURTHER it is not in dispute that the petitioner passed orders on all the 70 applications for the grant. The enquiry officer has stated in his report that the petitioner failed in his duty to scrutinise all the applications for grant and rejected 63 applications in an objectionable manner. This observation was lost sight of by the Vigilance Commissioner, while reaching the conclusion that the petitioner did not pass orders on each of the 70 applications which had been filed for grant of land in Survey no. 40 of Keshavara village. This observation was lost sight of by the Vigilance Commissioner, while reaching the conclusion that the petitioner did not pass orders on each of the 70 applications which had been filed for grant of land in Survey no. 40 of Keshavara village. Therefore, the finding on the 2nd imputation is also vitiated as regards the 3rd imputation there is an allegation that the need of the landless persons and the Rules of priority were disregarded by the petitioner. But in the articles of charge framed against the petitioner there is no specific reference to violation of any Rule relating to the need and priority to be given to the landless persons. Presently, I will deal with the question whether the proof of this imputation empowered the disciplinary authority to impose a maior penalty under Rr. 8 (v) to 8 (viii) of the C. C. A. Rules ( 12 ) MR. MAHENDRA, contended that the Government have no competency to impose any major penalty unless the articles of charge is established against the Government servant as required under Rule 11a of the c,c. A. Rules, which provides for imposition of major penalty only when a finding is recorded by the disciplinary authority that the articles of charge is established. HP pointed out that the Enquiry Officer held that Rule 3 of the Land Grant Rules and the provisions of the Fragmentation Act, are not violated. But has erred in holding that the petitioner acted in utter disregard to Rules, 5, 6, 8 (4) and 25 of the Land Grant rules, in the absence of any articles of charge served on the petitioner. He pointed out that there is no reference for the violation of the rules 5, 6, 8 (4) and 25, in the articles of charge framed against the petitioner. Nevertheless, the enquiry officer wrongly held that the petitioner had acted in utter disregard of those rules by the denial of opportunity to the petitioner to meet the charge. He further pointed out that the vigilance Commissioner held that the articles of charge relating to Rule 8 (5) of the Land Grant Rules, is held not proved, but three imputations already referred to above have been proved. He commented that a roving enquiry as to whether any other Rule is violated had been held by the enquiry officer and the Vigilance Commissioner. He commented that a roving enquiry as to whether any other Rule is violated had been held by the enquiry officer and the Vigilance Commissioner. The disciplinary authority recorded the findings in respect of the charges framed against the petitioner and sent a copy thereof and also issued a show cause notice under Art. 311 (2) of the Constitution of Indi'a, as per Ext. 'c'. A show cause notice dated 16-12-1975 has been served on the petitioner by the Government. The show cause notice further discloses that the Government proposed to impose 'on the petitioner the penalty of compulsory retirement assuming that the articles of charge is established. But the Government by its order No. GAD197 SHC 75 dated 16th december, 1975 has accepted the finding of the Vigilance Commissioner that the three imputations have been proved against the petitioner. Therefore, he argued that the disciplinary authority issued the show cause notice under a misconception that there is a finding in respect of the charge framed against the petitioner. He pointed out that the petitioner's reply to the show cause notice that the articles of charge has not been established is totally ignored by the disciplinary authority while issuing the notification imposing a major penalty of compulsory retirement, as per Exhibit 'e'. The appellate authority, His Excellency the Governor of Karnataka has merely dismissed the appeal on the same grounds on which the disciplinary authority imposed the said punishment. In view of these infirmities, it is urged that the petitioner should be exonerated and punishment imposed is incompetent under Rule 11-A of the C. C. A. Rules. ( 13 ) THEREFORE, the question for determination is whether the disciplinary authority had competency under the law to impose a major penality of compulsory retirement under Rule 11-A of the C. C. A. Rules. Rule 11-A deals with the action on the inquiry report. The relevant portion of the Rule 11-A, for the purpose of this case is Rule 11-A (2) to 4 (1) (b ). It reads thus:"11-A. (1) (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any articles of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. It reads thus:"11-A. (1) (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any articles of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv-e) of Rule 8, should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 12, make an order imposing such penalty. (4) (i) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed on the Government servant, it shall,- (a) furnish to the Government servant a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an Inquiring Authority, appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the inquiry authority and where the inquiry is held by the Vigilance Commission under rule 14-A, a copy of the findings of the Inquiring Officer with the recommendations of the Vigilance Commissioner; and (b) give the Government servant a notice stating that penality proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced, during the inquiry held under Rule 11. (ii) (a) (b) The Disciplinary Authority shall after considering the representation, if any made by the Government Servant, and the advice given by the Commission, determine what penalty, if any should be imposed on the Government servant and make such order as it may deem fit. (ii) (a) (b) The Disciplinary Authority shall after considering the representation, if any made by the Government Servant, and the advice given by the Commission, determine what penalty, if any should be imposed on the Government servant and make such order as it may deem fit. " ( 14 ) IT is seen from the Italics portions in Rule 11-A of C. C. A. Rules, definitely and specifically refer to the findings by the Disciplinary authority on all or any of the articles of charge before imposing any penalty specified in clauses (i) to (iv-e) of Rule 8, on a Government servant, notwithstanding anything contained in Rule 12, make an order imposing such penalty. ( 15 ) FROM sub-rule 4 (i) to (i) (e) of Rule 11-A of CCA Rules it is clear that if the disciplinary authority having regard to its finding on all or any of the articles of charge is of the opinion that any of the penalties specified in clai -,es (v) to (viii) of Rule 8 should be imposed on a government servant, it shall follow the procedure laid down in sub-rule (4) (i), (a) and (b) of Rule 11-A of the CCA Rules. The penalties specified in clauses (i) tc (iv-a) of Rule 8 are minor penalties. The procedure to impose minor penalties is laid down in Rule 12. It reads thus. . "12 (1 ). Subject to the provisions of sub-rule (3) ot Rule 11-A, no order imposing on a Government servant any of the penalties specified in clauses (1) to (iv-a) of Rule 8 shall be made except after. (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct of misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 11, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary ; (c) taking the representation, if any, submitted by the government servant under clause (a) and the record of inquiry if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour. " The rest of the clauses are unnecessary for the purpose of this case. ( 16 ) A careful reading of the provisions of Rule 12, quoted above makes it abundantly clear that if an inquiry is held under Rule 11 and the articles of charge is not established the disciplinary authority is competent to impose minor penalties in case imputations of misconduct or misbehaviour is established against the petitioner. Even while doing so, the disciplinary authority must have recourse to the Explanation to the proviso to sub-rule (23) of Rule 11. The Explanation reads thus:"if in the opinion of the inquiring authority the proceeding of the inquiry established any article of charge different from the original articles of the charge, it may record its findings on such article of charge: provided that the findings on such articles of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. " ( 17 ) IT is not the case of the respondents that before the Vigilance commissioner found that "the three imputations have been proved against the petitioner that any reasonable opportunity was given to the petitioner to defend himself against such articles of charge. Failure to furnish reasonable opportunity to the petitioner to defend himself against such articles of charge would offend the principles of natural justice. But as pointed out above, it was not a different article of charge which is held proved, but the 3 imputations are held to have been proved by the Vigilance Commissioner and affirmed by the disciplinary authority. Out of the three imputations the first and the second imputations are already shown to be vitiated. What remains is the 3rd imputation that the needs of the landless persons and the rules of priority were ignored by him in making the grants. We must remember that the articles of charge did not refer to the violation of any specific rule relating to this imputation. It was merely stated in the statement of allegations vaguely. The attention of the petitioner could not be directed in his defence on this imputation since it was merely an imputation in the statement of allegations. We must remember that the articles of charge did not refer to the violation of any specific rule relating to this imputation. It was merely stated in the statement of allegations vaguely. The attention of the petitioner could not be directed in his defence on this imputation since it was merely an imputation in the statement of allegations. Before recording a finding on the 3rd imputation, if it amounted to a different article of charge, to impose a major penalty compliance with the explanation to sub-rule (23) of rule 11 of C. C. A. Rules is necessary. The Vigilance Commissioner has failed to comply with sub-rule (23) of Rule 11 of C. C. A. Rules. The disciplinary authority has failed to notice it. Assuming that the imputation on that point is proved the disciplinary authority in law was not competent to impose a major penalty like compulsory retirement without compliance of the rule pointed out above. Therefore, as rightly contended by Mr. Mahendra, the Government has no competence to impose any major penalty under Rule 11-A of CCA Rules, when articles of charge against the petitioner is not established. Further, the imposition of major penalty when an imputation is proved, is not permissible under Rule 11-A of C. C. A. Rules. Therefore, I am of the opinion, that the major penalty of compulsory retirement imposed upon the petitioner is without competence and therefore invalid. ( 18 ) WHEN the enquiring officer's findings are wholly vitiated for the reason stated above, the subsequent confirmation of those findings by the disciplinary authority and the appellate authority cannot be sustained. Therefore, the entire enquiry from its inception is liable to be quashed. Accordingly, it is quashed. The facts and circumstances of the case are such that no fresh enquiry against the petitioner is necessary. Hence, it is directed that no fresh enquiry shall be held against the petitioner and he shall be restored to the position which he was holding at the time of his compulsory retirement but for the impugned order and he shall be given all monetary and other benefits to which he is entitled. Therefore, issue a writ of mandamus to the respondents as prayed for in this writ petition. In the result, writ petition is allowed. No costs. --- *** --- .