B. K. KANAVI v. STATE OF KARNATAKA — 1993 DIGILAW 206 (KAR)

G. P. SHIVAPRAKASH, J. ( 1 ) THIS petition under article 226 of the Constitution of India is presented by the petitioner who belonged to the Karnataka judicial service. Disciplinary inquiry was instituted against him in departmental enquiry case No. 6/88 while he was in the cadre of civil judges to answer the following four charges:"charge-I. YOU being a civil judge started constructing the first floor to your building on the site bearing No. 11/8 in xiii ward, dharwad, under licence No. Hdc/30/bli/83, dated 31st july, 1985 issued by hubli-dharwad corporation and completed the construction of the first floor before may 1987 without prior permission of the high court and thereby you have violated Rule 23 (2) of the Karnataka civil services (conduct) rules, 1966. ""charge-II. YOU completed the construction of the first floor to your building on the site bearing No. 11/8 in xiii ward, dharwad, without disclosing complete source for the construction of the first floor and the said acquisition exceeds known sources of income. ""charge-III. YOU being a civil judge purchased a t. v. s. moped for Rs. 4,000/- without sending a report to the high court by disclosing the source to purchase the said vehicle and thereby you have violated Rule 23 (3) of the Karnataka civil services (conduct) rules, 1966. ""charge-IV. YOU being a civil judge raised a loan of Rs. 30,000/- on a pronote from Sri b. r. biradar of kannadi village without obtaining a prior permission from the high court and thereby you have violated Rule 21 (4) of the Karnataka civil services (conduct) rules of 1966. " ( 2 ) THE statement of imputation in support of the charges, the list of documents, and the list of witnesses were furnished to the petitioner. The petitioner submitted his written statement on 2-6-1988 denying all the charges. The disciplinary authority on consideration of the statement filed by the petitioner decided to hold an inquiry in respect of the charges and an inquiring authority was appointed under Rule 11 (5) (b) read with Rule 11 (2) of the Karnataka civil services (classification, control and appeal) rules, 1957. The inquiring authority after holding the inquiry found that the petitioner was guilty of charges 1 to 3. The inquiring authority after holding the inquiry found that the petitioner was guilty of charges 1 to 3. On the basis of the report of the inquiring authority, the disciplinary authority resolved to accept the report of the inquiring authority and to recommend the imposition of the penalty of compulsory retirement. Since the penalty recommended against the petitioner was required to be imposed by the governor of Karnataka, a reference was made in this behalf. The governor of Karnataka after consideration"of the report of the inquiring authority, records of the case and recommendation of the High Court of karnataka" has imposed the penalty of compulsory retirement as per the government order dated 3-10-1991, copy of which is marked as Annexure-D. The said order was serveed on the petitioner on 8-10-1991. ( 3 ) IN this petition, the petitioner questions the legality and validity of the inquiry report and the aforesaid government order dated 3-10-1991. ( 4 ) THE petitioner was relieved of his duties as civil judge (leavereserve) High Court of Karnataka, Bangalore, from the forenoon of 8-10-1991 pursuant to the impugned government order and the letter dated 5-10-1991 of the special officer of the high court vide Annexure-C. ( 5 ) 1 may state here that this petition was presented on 8-10-1991. In the original petition there was no prayer for quashing of the impugned government order. However, on the application, ia. l, filed by the petitioner, this court permitted the petitioner to amend the petition to raise supplementary grounds and seek additional reliefs by order dated 11-10-1991. ( 6 ) SRI c. m. basavarya, learned counsel appearing for the petitioner submitted that the impugned order dated 3-10-1991, marked as Annexure-C , cannot be sustained in view of the fact that admittedly copy of the inquiry report on the basis of which the disciplinary authority recommended the punishment of compulsory retirement of the petitioner was not furnished to the petitioner despite the fact that the petitioner had given a representation dated 7-11-1990, copy of which is marked as annexure-b, requesting for copy of the report. The learned counsel relying on the decision of the Supreme Court in union of India and others v mohd. Ramzan khan, reported in AIR 1991 SC 471 , submitted that non-furnishing of the inquiry report amounts to violation of rules of natural Justice and therefore the impugned order is liable to be set aside. The learned counsel relying on the decision of the Supreme Court in union of India and others v mohd. Ramzan khan, reported in AIR 1991 SC 471 , submitted that non-furnishing of the inquiry report amounts to violation of rules of natural Justice and therefore the impugned order is liable to be set aside. ( 7 ) IN the aforesaid decision, the Supreme Court while considering the effect of 42nd amendment of the Constitution under which sub-article (2) of article 31 was substantially altered has ruled thus:"13. Several pronouncements of this court dealing with article 311 (2) of the Constitution have laid down the test of natural Justice in the matter of meeting the charges. This court on one occasion has stated that two phases of the inquiry contemplated under article 311 (2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi'judicial and attract the principles of natural justice. As this court rightly pointed out in the gujarat case, AIR 1969 SC 1294 , the disciplinary authority is very often influenced by the conclusions of the inquiry officer and even by the recommendations relating to the nature of punishment to be inflicted. With the forty-second amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the inquiry officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the inquiry officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the inquiry officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. The report is an adverse material if the inquiry officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural Justice would be affected. Prof. Wade has pointed out:"the concept of natural Justice has existed for many centuries and it has crystallised into two rules: that no man should suffer without first being given a fair hearing. They (the courts) have been developing and extending the principles of natural Justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that parliament always intends powers to be exercised fairly. " (administrative law)"14. This court in mazharul islam hashmi v state of U. P. , (1979) 4 SCC 537 : AIR 1979 SC 1237 pointed out: every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural Justice will have to be proved. ""15. Deletion of the second opportunity from the scheme of article 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in article 31 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the inquiry officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the inquiry officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. For doing away with the effect of the enquiry report or to meet the recommendations of the inquiry officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural Justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural Justice out of the proceedings and the series of pronouncements of this court making rules of natural Justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural Justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The forty-second amendment has not brought about any change in this position. ""16. At the hearing some argument had been advanced on the basis of article 14 of the constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation in as much as where the disciplinary authority is the inquiry officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the inquiry officer can easily be classified into two separate groups - one, where there is no inquiry report on account of the fact that the disciplinary authority is the inquiry officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the inquiry officer. That itself would be a reasonable classification keeping away the application of article 14 of the constitution. ""17. . . . . . . " "18. That itself would be a reasonable classification keeping away the application of article 14 of the constitution. ""17. . . . . . . " "18. We make it clear that wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural Justice and make the final order liable to challenge hereafter. " (emphasis supplied) ( 8 ) THE learned counsel urged that in view of the fact that the inquiry report was not furnished to the petitioner before imposing the punishment but was furnished to him while communicating the order of compulsory retirement on 8-10-1991 there has been violation of principles of natural Justice and therefore the impugned order compulsorily retiring the petitioner has to be quashed. ( 9 ) SRI s. Shivaram, learned government advocate, appearing for the respondents, in view of the judgment of the Supreme Court in ramzan's case had difficulty in supporting the impugned order. Nevertheless, the learned government Advocate contended that the Supreme Court in union of India and others v c. l verma, 1993 (2) SCC 195 , while considering the decision in mohd, ramzan's case has noticed that there was conflict of decisions of two benches of the Supreme Court regarding the question of furnishing the report of the inquiry in disciplinary proceedings after the 42nd amendment and therefore the matter has now been referred to a larger bench. In view of the fact that this question has been referred to a larger bench, the learned government Advocate submitted that pending disposal of the matter by the larger bench, no relief be granted to the petitioner and this petition be kept pending awaiting the decision of the larger bench. ( 10 ) IT is not possible to accede to this submission. Mohd. Ramzan's case is a later decision of the Supreme Court. The matter referred to the larger bench would take a long time for disposal as observed by the Supreme Court itself in verma's case. ( 10 ) IT is not possible to accede to this submission. Mohd. Ramzan's case is a later decision of the Supreme Court. The matter referred to the larger bench would take a long time for disposal as observed by the Supreme Court itself in verma's case. ( 11 ) THE learned counsel for the petitioner sought to strongly animadvertupon the inquiry report pointing out that the finding of the inquiring authority that the petitioner is not guilty of charge 4, though he has admitted having taken the loan, is done for the sake of sustaining the finding in respect of charge No. 2. He urged that when the petitioner has admitted the charge, the inquiring authority holding otherwise relying upon certain documents produced by the petitioner, as if the delinquent officer was required to prove the charge, is "something unknown to our jurisprudence". The learned counsel also pointed out certain factual mistakes, which according to him have contributed to the finding of guilt in respect of charges 1 to 3. ( 12 ) IT is not necessary to consider the aforesaid questions in view of the fact that this petition has to succeed on the ground of non-furnishing of inquiry report before the imposition of punishment in the light of the decision of the Supreme Court cited above. Hence, all other contentions raised in the petition are left open. ( 13 ) IN the result, i make the following order: (I) Rule made absolute. (ii) the impugned order No. Law 170 lac 90, dated 3rd october, 1991, is quashed reserving liberty to the disciplinary authority to take such action as it deems appropriate in accordance with law from the stage of supply of inquiry report to the petitioner. (iii) since impugned order is quashed, the first respondent is directed to reinstate the petitioner in service within one month hereof, with consequential reliefs. (iv) no costs. --- *** --- .