STATE OF KARNATAKA v. B. YESHWANTH KUMAR — 1999 DIGILAW 498 (KAR)

ASHOK BHAN, J. ( 1 ) 1. State of Karnataka and the High Court of Karnataka have filled this appeal challenging the order of the Single Judge in W. P. No. 24458/93 dated 19. 4. 96, wherein the Single Judge has quashed the government order No. LAW 260 LAC 91 dated 25. 9. 92 removing the respondent-petitioner (hereinafter referred to as the respondent )from service as a measure of penalty in consequence of disciplinary enquiry conducted against him. ( 2 ) RESPONDENT was working as Munsiff and Judicial Magistrate First Class, Bhalki in Bidar District. He was served with a charge sheet dated 17. 10. 89 accusing him of abuse of powers and conduct unbecoming of his position and status as a judicial officer. Respondent denied the charges and pleaded innocence. The explanation rendered by the respondent was not accepted and an enquiry was orders District and Session Judge, Chitradurga was appointed as an inquiring officer. ( 3 ) A perusal of the record shows that enquiry was fixed for the evidence of the prosecution on 16. 2. 91 on which day the presenting officer gave-up C. Ws 4 and 5 and closed the prosecution case against the respondent. The prosecution had cited 20 witnesses. Ten witnesses were examined and other ten who had been cited were given-up as unnecessary. Respondent was then asked to submit his statement of defence and file the list of witnesses. Time till the end of February 1991, was granted by the Enquiry Officer for this purpose, and the enquiry proceedings adjourned to 2. 3. 91. Respondent's case is that his counsel had gone to Bombay and therefore he could not finalise his statement of defence and file the list of defence witnesses. ( 4 ) ON 02. 3,91, respondent made a request for a short adjournment to file the list of witnesses and to submit the statement of defence. Respondent was not assisted by his counsel on 2. 3. 91 as he had been held-up at Bangalore in connection with the state case for which he had been appointed as a state public prosecutor. The request for adjournment was refused by the Enquiry Officer on the ground that the High Court has fixed time for submission of the report and that he was under an obligation to finish the enquiry by the end of march 1991 without fail. The request for adjournment was refused by the Enquiry Officer on the ground that the High Court has fixed time for submission of the report and that he was under an obligation to finish the enquiry by the end of march 1991 without fail. After declining the adjournment the Enquiry Officer proceeded to record the respondent's statement under Rule-11 Sub-Rule 18 of CCA Rules. Respondent's case is that Enquiry officer had kept the questions typed and ready with blanks left in between for writing the answers of the respondent thereby indicating that the Enquiry Officer had already made-up his mind to close the case on the 2. 3. 91 itself. Respondent had reiterated his desire to examine witness in his defence. No opportunity was however granted for the purpose and the matter was posted to 14. 3. 91 for final arguments. ( 5 ) ON 14. 3. 91 respondent and his counsel Sri Laxmipathy Reddy met with an accident while they were proceeding towards Chitradurga from Bangalore by car to attend the enquiry. In the accident Sri laxmipathy Reddy sustained a bleeding head injury, Respondent escaped with minor injury on the chest. Sri Laxmipathy Reddy had to be hospitalised at Chitradurga and having done so respondent appeared before Enquiry Officer and sought an adjournment stating that the respondent and his counsel had met with an accident. He informed the Enquiry officer that his counsel was admitted in the hospital. As per averments made in the Writ Petition the Enquiry officer telephoned the hospital authorities and even when it was confirmed that Sri Laxmipathi Reddy, had been injured and was treated for head injury the adjournment was declined on the ground that he was to submit his report by the end of March 91 without fail. According to the respondent the Enquiry officer then asked respondent to submit his written argument if any, otherwise he will close the enquiry with a note chat the respondent did not want to file any statement of defence or written submissions. That the respondent rushed to the place of accident and after retrieving the case file from the car and after hurriedly scribing the written arguments submitted them to the Enquiry officer. ( 6 ) ENQUIRY officer on 25. 3. 91 submitted his report holding the respondent guilty of the charges levelled against him. That the respondent rushed to the place of accident and after retrieving the case file from the car and after hurriedly scribing the written arguments submitted them to the Enquiry officer. ( 6 ) ENQUIRY officer on 25. 3. 91 submitted his report holding the respondent guilty of the charges levelled against him. Disciplinary authority issued notice to the respondent to showcause as to why enquiry report should not be accepted. Respondent submitted his objections which were not accepted by the Disciplinary Authority. Report of enquiry officer was accepted in its entirety and punishment of removal from service was proposed to be imposed and accordingly a recommendation was made to the Governor to remove the respondent from service. The Governor accepted the report of the high Court and ordered the removal of respondent from service by the order dated 25. 9. 92 which was impugned by the respondent by filing the Writ Petition. ( 7 ) APART from raising certain points on merits of the dispute, respondent raised the point that he has not been given a reasonable opportunity to defend himself. On the basis of the facts narrated above it was contended on behalf of respondent that the Enquiry officer proceeded in a hurry as if he was under a compulsion to submit the report by the end of March 91 and refused to adjourn the case under any circumstances without going into the question as to whether the request made was genuine or not. ( 8 ) LEARNED Single Judge found substance in the submissions made by the respondent. It was held that the Enquiry officer had failed to give reasonable opportunity to the respondent to defend himself. That the Enquiry Officer had gravtly erred in not adjourning the case although a case for adjournment had been made out. Single judge came to the conclusion that the respondent was not given a fair opportunity to produce his witnesses. Inspite of specific requests made by the respondent that he would like to produce his witnesses in defence, he was not allowed to produce his evidence. Single judge further found that the Enquiry officer had erred gravely in not adjourning the case on 14. 3. 91 although the respondent while travelling alongwith his Advocate had met with an accident and the advocate of the respondent had been hospitalised. Single judge further found that the Enquiry officer had erred gravely in not adjourning the case on 14. 3. 91 although the respondent while travelling alongwith his Advocate had met with an accident and the advocate of the respondent had been hospitalised. Learned Single judge noted the fact that the Advocate General who was appearing for the appellants before the Single Judge had fairly conceded that he could support the course of action adopted by the Enquiry Officer and had urged that in the context of peculiar facts of the case a reasonable opportunity appears to have been denied to the delinquent official. Based on these findings the learned single Judge allowed the Writ petition reserving the liberty to respondent-2 (High court of Karnataka) to continue the enquiry proceeding from the stage of evidence of the respondent. ( 9 ) WE have heard Mr. A. Nagarajappa, AGA appearing for the Appellants and Mr. Narasimha Murthy, Senior Advocate, appearing for respondent at length. ( 10 ) AFTER going through the entire record we are inclined to agree with the finding recorded by the Single judge. As noted in the narration of facts the matter was fixed before the Enquiry Officer for the evidence of prosecution on 16. 2. 91 on which date the presenting officer gave-up C. W. 4 and 5 and closed the prosecution case against the respondent. Respondent was asked to submit his statement of defences and file list of witnesses, till the end of February 1991. proceedings were adjourned to 2. 3. 91. Respondent could not finalise his statement of defence and file the list of defence witness as his counsel had gone to Bombay. On 2. 3. 91 his request for adjournment to file the list of witnesses and submit the statement of defence, was declined on the ground that the Enquiry officer was under an obligation to finalize the enquiry and submit report by 31. 3. 91. Respondent had specifically stated that he would like to examine his witnesses in defence. Inspite of that the Enquiry officer closed the defence of the respondent and fixed the date for final arguments on 14. 3. 91, The Enquiry Officer in his order has not said that the request made by the respondent was not genuine. 3. 91. Respondent had specifically stated that he would like to examine his witnesses in defence. Inspite of that the Enquiry officer closed the defence of the respondent and fixed the date for final arguments on 14. 3. 91, The Enquiry Officer in his order has not said that the request made by the respondent was not genuine. He refused to grant the adjournment because he was under a direction by the high Court to conclude enquiry by the end of March 91. Only one opportunity had been granted to respondents to submit his statement of defence and list of witnesses. The request made for adjournment was genuine and should have been accepted. It amounts to denial of fair opportunity to the respondent to lead his defence. In our view on these facts, no inference other than the one arrived at by the single judge that the Enquiry officer had failed to give proper opportunity to the respondent can be drawn. ( 11 ) ON 14. 3. 91 while respondent alongwith his Advocate Sri Laxmipathi Reddy, was proceeding to Chitradurga to attend the enquiry met with an accident in which Sri Laxmipathi Reddy, advocate, sustained head injury and was admitted in the hospital. Genuine request made by the respondent under the circumstances for adjournment was declined. Respondent was made to retrieve the file from the place of accident and submit the written arguments. The written arguments were scribed by the respondent in a hurry. Respondent must have been under a shock. His counsel was admitted in the hospital. We are of the opinion that the Enquiry Officer denied a fair opportunity to the respondent to present his case before him. We are unable to appreciate the rationale behind the haste shown by the Enquiry Officer in concluding the proceedings. The enquiry Officer could have come to the same conclusion even after granting the adjournment but the question is not whether he would have come to the same conclusion or some other. The question is whether the respondent had been granted a proper opportunity to put up his defence. It is well settled that justice must not only be done, but must appear to have been done. The respondent was entitled to a fair opportunity to lead his defence and make his submissions. The question is whether the respondent had been granted a proper opportunity to put up his defence. It is well settled that justice must not only be done, but must appear to have been done. The respondent was entitled to a fair opportunity to lead his defence and make his submissions. We agree with the view taken by the Single Judge on these facts that the respondent was denied a fair opportunity of putting up his defence. ( 12 ) THE learned Advocate General who had appeared for the Appellants (respondents before the Single Judge) had fairly conceded proceedings was vitiated in as much as proper opportunity was not afforded to the delinquent official to put up his defence the findings recorded by the Disciplinary Authority and the Punishing Authority are also set aside. Order of the Single Judge is upheld. Liberty is reserved to appellant (High Court) to continue with the enquiry proceedings from the stage of defence witnesses of delinquent official. ( 13 ) 16. The next question in regarding the rein statement of the respondent and the consequential benefits. Supreme Court of India in MANAGING DIRECTOR, ECIL, HYDERABAD ETC. ETC. , vs B. KARUNAKAR ETC. ETC. has ruled that in such case a proper relief would be :"where after following the above procedure, the Courts/ tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of benefits, he will be entitled. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. " ( 14 ) ACCORDINGLY, we direct that appellant-2 (High Court) shall be at liberty to take a decision with regard to the reinstatement and release of other consequential benefits in terms of the observations made by the Supreme Court in the case cited supra. ( 15 ) THE appeal is dismissed. No costs. --- *** --- .