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2001 DIGILAW 237 (KAR)

VEERABHADRANNA v. STATE OF KARNATAKA

2001-03-12

ASHOK BHAN

body2001
ASHOK BHAN, J. ( 1 ) APPELLANT was working as a Divisional Controller in the Karnataka state Road Transport Corporation (for short, the Corporation ). Appellant was charged with certain acts of ommission and " commission. The Managing Director being the disciplinary authority issued Articles of charge Annexure-A dated 15/17. 1. 1990 containing the following charges: "i, For failure to maintain devotion to duty and absolute integrity in abusing your official position in influencing Sri S. A. Thimmapure, dme-l and Sri Venkatesh, DME-II to show a favour by awarding - passing marks to 168 candidates mentioned by you in the Trade test of Drivers which was held from 3-11-89 to 11-11-89. (The statement showing the Reg. No. of 168 candidates is enclosed ). You have betrayed thereby the confidence reposed in you by the corporation and exhibited unfaithfulness and partiality in the discharge of your official duties. II. For reprehensible conduct by demanding an illegal gratification of Rs. 5000/- from him to issue an appointment order to one Sri G. S. Police Gowdar whose appointment had been made approved on compassionate grounds by the Central Office in april,1989. Thereby you have committed an act of gross misconduct which act of yours is unbecoming a servant of the corporation. III. For abusing your official position by deputing Sri jalawadl Junior Asst. To Bellary on 29-11-89 to prevail upon Sri venkatesh, DME-ll to award more marks to 18 candidates specified by you in the trade test. Thereby you have committed an act of misconduct by violating sub-Reg. (1) of Regulation 3 of ksrtc servants (Candd) Regulations, 1971 " ( 2 ) THE said Articles of charges were accompanied by statement of imputations as also the list of documents and list of witnessess by which the charges were proposed to be established. Appellant filed his reply on 31. 5. 1990. Objections raised by the appellant were not found to be satisfactory and inquiry was directed into the charges levelled against the appellant. Sri B. Rajiv Hegde, retired District' judge, was appointed as the Inquiry Authority by order dated 16. 7. 1990. Parties led their evidence. Written arguments were also submitted. ( 3 ) THE Inquiry Authority, after a detailed consideration of the evidence, both oral and documentary, submitted the report dated 6. 4. 1992 holding that Management had proved all the three charges beyond reasonable doubt against the appellant. 7. 1990. Parties led their evidence. Written arguments were also submitted. ( 3 ) THE Inquiry Authority, after a detailed consideration of the evidence, both oral and documentary, submitted the report dated 6. 4. 1992 holding that Management had proved all the three charges beyond reasonable doubt against the appellant. Disciplinary Authority furnished the copy of the inquiry report to the appellant under cover of him letter dated 10. 4. 1992 and sought his explanation. Appellant filed the reply on 28. 4. 1992 refuting that the charges levelled against him stood proved. ( 4 ) AFTER considering the report of the Inquiry authority and the appellant's representation, the disciplinary authority passed an order dated 19. 10. 1992 exonerating the appellant of all the charges. Thereafter, the Board of Directors exercising power under Regulation 35 of the KSRTC Servants (C and D) Regulations,1971 (FOR SHORT, the REGULATIONS) suo moto called for the records. After due deliberation the order dated 19. 10. 1992 passed by the disciplinary authority was set aside interalia that on the ground that it was not a speaking order and was passed more on sympathy than reason and remitted the records back to the disciplinary authority with a direction to pass a fresh order in accordance with law, after taking into consideration the report of the Inquiry Authority. ( 5 ) THE disciplinary authority (successor in office of the Managing Director who had exonerated the appellant of the charges) issued a notice dated 5. 10. 1993 (Annexure-W) proposing to revise the order dated 19. 10. 1992 and impose the penalty of dismissal and calling upon the appellant to show-cause notice against the proposed action. Relevant portion of the said show-cause notice is extracted below: "6. Regulation 35 of the KSRTC Servants (Candd) Regulations,1971 came to be amended vide Government Order No. FTD 20 TRC 91, dated 13. 2. 1992. As per the amended Regulation-35, the corporation or any other Authority specified in this behalf by the corporation by a Special or General order may call for the records of inquiry and confirm, modify or set aside the penalty or remit the case to the authority which made the order or to any other authority directing to pass such other orders as it may deem fit. 7. 7. Accordingly the relevant records were summoned by the Board of Directors at its meeting held on 28-8-1993, and after examining the entire matter and discussing the case in thread-bare, the board of Directors resolved as under: resolution NO. 6870: a) The Disciplinary Inquiry records relating to Sri veerabhadranna, the then Divisional Controller, Bijapur division, were secured by the Board, exercising the power vested under Regulation 35 of the K. S. R. T. C servants' (C and d) (Amendment) Regulations,1992 for making suo-moto revision of the proceedings under the said Regulation. It is observed by the Board of Directors that the Disciplinary authority has passed the order vide No. KST,co. DFL 1696. 92- 93, dated 19. 10. 1992 by exonerating the grave charges levelled against Sri Veerabhadranna. b) The Directors of the Board having carefully examined the entire records culminating in passing the order by the disciplinary Authority Vide order No. KST. CO. DFL. 1696. 92-93, dated 19. 10. 1992, in this case find that the order passed by the Disciplinary Authority, is not commensurate with the gravity of the charges proved against Sri Veerabhadranna and the magnitude of the misconduct is severe and grave. The order passed against Sri Veerabhadranna, by the disciplinary Authority in exonerating him is not based on rhyme or reason and it amounts to misplaced sympathy. The disciplinary Authority has not applied his mind to the facts enumerated in the inquiry report and has not taken into consideration the findings of the Inquiring Authority. The disciplinary Authority has not set out the valid reason for not agreeing with the findings of the Inquiring Authority. Therefore the order of the Disciplinary Authority suffers with legal infirmity. c) Hence, the Board of Directors resolved that the orders passed by the Disciplinary Authority vide order No. KST. CO. DFL. 1696. 92-93, dated 19. 10. 1992, be, is hereby set aside and remit back the records to the Disciplinary Authority, ksrtc with a direction to pass fresh speaking order on Sri veerabhadranna, now serving as Works Manager, Kengeri regional Workshops, Bangalore, after taking into consideration the report of the Inquiring Authority. d) The Managing Director, KSRTC Central Offices, Bangalore-560 027 may communicate the decision of the Board to Sri veerabhadranna, now working as Works Manager, Kengeri rws, Bangalore, through the proceedings drawn in this behalf. " ( 6 ) THE appellant filed detailed objections dated 6. 11. d) The Managing Director, KSRTC Central Offices, Bangalore-560 027 may communicate the decision of the Board to Sri veerabhadranna, now working as Works Manager, Kengeri rws, Bangalore, through the proceedings drawn in this behalf. " ( 6 ) THE appellant filed detailed objections dated 6. 11. 1993 (Annexure-X) to the said show-cause notice. After considering the same, the disciplinary authority, by proceedings dated 20,4. 1994 (Anhexure-Y) accepted findings of the Inquiry Authority and imposed punishment of dismissal from service. ( 7 ) FEELING aggrieved, the appellant filed an appeal before the Appellate Authority (Board of Directors ). Appellate authority, by its order dated 3. 4,1995 (Annexure-Z (b)) rejected the appeal. Appellant filed Writ Petition No. 25200/1995 challenging the order of the disciplinary authority as well as the order of the appellate authority. This Court allowed the petition in part by order dated 4. 12. 1998. The Court did not go into the validity or correctness of the order passed by the disciplinary authority. It was held that the appellate authority did not consider the appeal in accordance with law and failed to exercise its power properly. Oder of the appellate authority was quashed and it was directed to reconsider and dispose of the appeal in accordance with the Regulations, keeping in view the observations made in the said order. ( 8 ) THEREAFTER, the appellate authority passed a fresh order dated 9th March, 1999 (Annexure-Z (d)} again rejecting the appeal. The order has been passed after recording detail reasons. ( 9 ) FEELING aggrieved, the appellant filed the Writ Petition for quashing the order of the disciplinary authority dated 20,4. 1994 (Annexure-Y) and the proceedings of the Appellate Authority dated 9. 3. 1999. He also sought for a direction to Respondents 2 and 3 to grant all consequential benefits including reinstatement with full backwages and continuity of service and other benefits. ( 10 ) BEFORE the learned single Judge, the following four contentions were raised: " (i) The Disciplinary Authority who is also a Member of the board of Directors participated in the meeting of the Board of directors (Appellate authority) which considered the appeal filed by the petitioner and therefore the entire proceedings of the appellate Authority dated 9. 3. 1999 is invalid. (ii) The procedure adopted by the Board of Directors of ksrtc while passing the resolution No. 6870 dated 28. 8. 3. 1999 is invalid. (ii) The procedure adopted by the Board of Directors of ksrtc while passing the resolution No. 6870 dated 28. 8. 1993 deciding to set aside the earlier order of the Disciplinary Authority dated 19. 10. 1992 and remitting the matter to the Disciplinary authority for fresh consideration and the order dated 20. 4. 1994 passed by the Disciplinary Authority on such fresh consideration are illegal and invalid, being contrary to Regulation 35{i) (c) of the KSRTC Servants (Conduct and Discipline) Regulations, 1971. (iii) The inquiry was opposed to principles of natural justice on two counts: a) Four documents called for by the petitioner were not made available by the management; and b) The petitioner was not permitted to examine further witnesses. (iv) The first charge that petitioner abused his official position to influence Sri S. A. Thimmapure and Sri Venkatesh (DME1 and dme 2) to show favours to certain candidates by awarding passing marks in the Trade test of Drivers ought to have been rejected as they (DME 1 and DME2 examined as PW5 and PW3 respectively) have stated that they had proceeded to conduct the test strictly on merits, ignoring the pressure brought by the petitioner. (v) The punishment imposed upon the petitioner is excessive on the facts and circumstances of the case and requires to be interfered with. " ( 11 ) BEFORE us, the counsel for the appellant did not address any arguments on contention No. 1. ( 12 ) COUNSEL for the appellant seriously challenged the findings recorded by the single Judge on contention No. 2, Sub-ciause (1) of regulation 35 of the Regulations reads as follows: "35. " ( 11 ) BEFORE us, the counsel for the appellant did not address any arguments on contention No. 1. ( 12 ) COUNSEL for the appellant seriously challenged the findings recorded by the single Judge on contention No. 2, Sub-ciause (1) of regulation 35 of the Regulations reads as follows: "35. Revision: (1) Notwithstanding anything contained in these Regulations;- (i) the Corporation; or (ii) any other Authority specified in this behalf by the corporation by a general or special order and within such time as may be prescribed in such general of special order may at any time on its own motion call far the records of any inquiry and revise any order made under these Regulations or under the Rules or Standing Orders or other provisions repealed by regulation-39 from which an appeal is allowed but from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed and may- (a) confirm, modify or set aside the orders; or (b) confirm, reduce, enhance or set aside the penally imposed by the order or impose any penalty where no penalty has been imposed, or (c) remit the case to the authority which made the order or to any other Authority directing such Authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit. Provided that no order imposing or enhancing any penalty, shall be made by any Revising Authority, unless the Corporation servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clause (ix) or (x) of Regulation-18 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in these clauses, no such penalty shall he imposed except after the inquiry, in the manner laid down in Reguiation-23". It was contended that sub-clause (c) of Regulation 35 (1) contemplates remitting the matter either to the disciplinary authority which made the order or to any other authority directing such Authority to make such 'further inquiry' as it may consider proper in the circumstances of the case. The contention raised is that unless a 'further inquiry' was necessary, power under Clause (c) could not be exercised. The contention raised is that unless a 'further inquiry' was necessary, power under Clause (c) could not be exercised. The appellate authority had remitted the matter to the disciplinary authority for its decision and not to the Inquiry authority for further inquiry and therefore the exercise of power under Regulation 35 (c) by the appellate authority was beyond the Regulations. ( 13 ) REGULATION 35 which starts with the non-obstante clause, authorises the corporation or any other authority specified in this behalf by the Corporation by a special or a general order. and within such time as may be prescribed to call for the records of any inquiry on its own motion and revise any order made under these regulations or under the Rules or Standing orders or other provisions repealed by Regulation 39 from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed. Corporation or the authority specified can either confirm, modify or set aside the orders; or confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or remit the case to the Authority which made the order or to any Bother authority directing such Authority to make such further inquiry as it may consider proper in the circumstances of the case. Thus under Regulation 35, the order passed under the Regulations could be modified, confirmed or set aside or the penalty could be reduced, confirmed or enhanced. It also authorises the revisional authority to remit the matter for 'further enquiry' as it may consider proper in the circumstances of the case, or pass such other order as it may deem fit. The revisional power is wide enough and would include the powers to set side the order and direct the Disciplinary authority to reconsider the matter with reference to the Enquiry report. ( 14 ) THE Inquiry authority had found the appellant guilty of all the three charges. Disciplinary authority initially had chosen to disagree with the findings of the Inquiry authority and exonerated the appellant. Board of Directors in exercise of revisional jurisdiction, found that there was no error in the findings of the Inquiry officer. ( 14 ) THE Inquiry authority had found the appellant guilty of all the three charges. Disciplinary authority initially had chosen to disagree with the findings of the Inquiry authority and exonerated the appellant. Board of Directors in exercise of revisional jurisdiction, found that there was no error in the findings of the Inquiry officer. On the other hand, it was found that the disciplinary authority had not applied its mind properly in appreciating the gravity of the charges or the findings recorded by the Inquiry authority thereon. It was found that the order of the disciplinary authority was not based on reason, but was basea on misplaced sympathy. Revising authority in the circumstances thought it fit to remit the matter to the disciplinary authority to consider the matter afresh in accordance with law with reference to the findings recorded by the Inquiry authority. The order of the inquiry authorty was not set aside or remitted for want of evidence or on account of irregularity or illegality in the Inquiry report. The infirmity found was that the order of the disciplinary authority was not a reasoned order it was based more on sympathy than on reasons. Accordingly the order was set aside, and, in our opinion, had nghtly been remitted to the disciplinary authority to reconsider the same. The word further enquiry' in Clause (c) when applied in the context of discplinary authority would include the power to set aside the order of disciplinary authority with a direction to consider the matter afresh in accordance with law. ( 15 ) COUNSEL for the appellant referred to a Judgment of the Supreme Court in K. R. DEB vs THE COLLECTOR OF CENTRAL excise, SHILLONG AND OTHERS1. The judgment cited before us has no relevance to the point in issue. In the sa. d case, their lordships held that if there is some defect in the inquiry conducted by the Inquiry Officer, then the disciplinary authority can direct me inquiry officer to conduct further enquiries in respect of the mane but it cannot direct a fresh inquiry to be conducted by some other officer. Such is not the position in the present case. The Supreme court had recorded the findings on the interpretation of Rule 15 of the Central Civil Services (Classification, control and Appeal) rules. 1957. Such is not the position in the present case. The Supreme court had recorded the findings on the interpretation of Rule 15 of the Central Civil Services (Classification, control and Appeal) rules. 1957. The rule which was the subject matter of interpretation before the Supreme Court is totally different from Regulat. on 35 which falls for interpretation before us. ( 16 ) COUNSEL for the appellant challenged the findings of the Single Judge recorded on Contention No. 3. It was contended that the appellant had called upon the Management to Produce four D,o letters dated 16. 12. 1989, 26. 12. 1989, 15. 3. 1990 and 15. 3-1990. An these four letters were addressed by the appellant. The first two letters are stated to have been addressed to the Chairman and managing Director, the third is addressed to the Vice Chairman and managing Director and the fourth is addressed to the Chief Security and Vigilance Officer of the Corporation. According to the appellant, in these letters he had complained that the investigation was not properly done. The grievance of the appellant is that these four documents were not produced by the Management ( 17 ) THERE is no substance in the submission made. But what he called for were the four letters said to have been written by the chairman and Managing Director, Vice Chairman and Managing Director, and Chief Security and Vigilance Officer. As the description of the documents called for was wrong, the management obviously could not furnish the said documents. The appellant had also, failed to explain or state as to why he wanted the copies of these documents. The learned single Judge has rightly rejected the contention of the appellant that the non-production of the documents called for by the appellant had prejudicially affected the rights of the appellant in any way or vitiated the inquiry. ( 18 ) IN the same context, it was next contended that the appellant submitted a list of witnesses. He had examined one E. B. Susuladi as DW 1. Other witnesses were not present and inspite of the request made by the appellant to examine the witnesses; his request was not considered by the Inquiry Authority and therefore the proceedings were conducted in violation to the principles of natural justice. ( 19 ) WE do not find any substance in this submission as well. Other witnesses were not present and inspite of the request made by the appellant to examine the witnesses; his request was not considered by the Inquiry Authority and therefore the proceedings were conducted in violation to the principles of natural justice. ( 19 ) WE do not find any substance in this submission as well. Evidence of the Management was closed on 107. 1991. Appellant stated that he wanted to examine some witnesses. On his request, the matter was adjourned to 6. 8. 1991 for production of his witnesses. He was directed to submit a list of his witnesses. On 6. 8. 1991 none of the witnesses of the appellant had turned up and op his request, the proceedings were adjourned to 21. 8. 1991. Presenting Officer on behalf of the Management made an application for examining one more witness on behalf of the Management on the same day which was declined. Thereafter, on 27. 8. 1991, the appellant examined one witness by name Susuladi. As no other witness was present, the defence side was closed and the parties were directed to file written arguments by 24. 9. 1991. ( 20 ) FROM the facts narrated above, it is clear that three adjournments were granted by the Inquiry Authority to the appellant for examining his witnesses. On 27. 8. 1991 the appellant had not sought time to produce any further witness. He had not objected to the case being posted to 24. 9. 1991 for filing the written submissions. On his request the time for filing the written submissions was extended to 22. 10. 1991, on which date the appellant filed his written submissions. He did not complain on 22. 10. 1991 that he had not been given time to produce further evidence. On these facts, it cannot be held that the Inquiry authority had not acted in a reasonable manner much less rejected the request of the appellant for grant of time. The contention of the appellant that he was not granted adequate opportunity to produce his evidence cannot be accepted. The contention raised is clearly an afterthought. ( 21 ) COUNSEL for the appellant did not address arguments on Contention No. 4. ( 22 ) THE last point raised by the counsel for the appellant by way of fifth contention is that the punishment awarded to the appellant was not commensurate with the charges proved against him. The contention raised is clearly an afterthought. ( 21 ) COUNSEL for the appellant did not address arguments on Contention No. 4. ( 22 ) THE last point raised by the counsel for the appellant by way of fifth contention is that the punishment awarded to the appellant was not commensurate with the charges proved against him. That the punishment imposed was excessive. It was argued that the appellant had rendered distinguished service to the Corporation and at the fag end of service such a severe punishment ought not to have been imposed' on him. ( 23 ) UDICIAL Review in the matter of proportionality of punishment can be invoked, as held by the Supreme Court, "only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standards". The Courts can interfere with the findings of the Inquiry officer or the competent authority only If the findings recorded are arbitrary or perverse. The courts do not exercise appellate jurisdiction in such matters. In union OF INDIA Vs PARMA NANDA it was held: "we must unequivocally state that the jurisdiction of, the tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or Rules made under the proviso to article 309 of the Constitution. If there has been an inquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal had no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. " ( 24 ) HE same view was reiterated by the Supreme Court in UNION OF INDIA AND ANOTHER vs G. GANAYUTHAM : "in such a situation unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration, It is only in very rare cases as pointed out in B. C. Chaturvedi case that the Court might-to shorten litigation- think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority, (In b. C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons givenabove the case cited for the respondent, namely, State of Maharastra vs M. H. Mazumdar cannot be of any help. " again in the case of STATE OF KARNATAKA AND OTHERS vs h. NAGARAJ4 the Supreme Court reiterated the view taken by it earlier in the Judgments referred to above. ( 25 ) APPELLANT was holding the post of Divisional Controller. The charges proved against him were that he had failed to maintain devotion to duty and absolute integrity. He has been found guilty of showing undue favour by awarding passing marks to 168 candidates. He has been found guilty of abusing his official position by deputing a Junior Assistant to Bellary on 29,11,1989 to prevail upon Sri venkatesh, DME-II to award more marks to 18 candidates specified by him in a trade test. This was an act of misconduct by violating sub- Regulation (l) of Regulation 3 of the Regulations. He has been found guilty of demanding illegal gratification of Rs. 5000/- from one sri G. S. Police Gowdar for showing official favour. This was an act of misconduct by violating sub- Regulation (l) of Regulation 3 of the Regulations. He has been found guilty of demanding illegal gratification of Rs. 5000/- from one sri G. S. Police Gowdar for showing official favour. ( 26 ) HAVING regard to the responsible post held by the appellant and the charges proved against him, it cannot be held that the punishment awarded was totally irrational or excessive warranting interference at the hands of this Court in the exerpise of jurisdiction under Article 226 of the Constitution of India. ( 27 ) FOR the reasons stated above, we do not find any merit in this appeal and dismiss the same. ( 28 ) THERE shall be no order as to costs. --- *** --- .