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2017 DIGILAW 1224 (KAR)

V. Lingaiah, S/o Late Yankappa v. State of Karnataka

2017-09-06

B.VEERAPPA

body2017
ORDER : 1. The petitioner, who was dismissed from service as Senior Assistant is before this Court for a writ of certiorari quashing the findings of respondent No.4 as per Annexure-AG; the impugned order No. KaAaNaSaNiNi/Kashi/36/36A/2012-13/13-14 as per Annexure-AK passed by the 2nd respondent; the findings of the Enquiry Officer on enquiry report dated 31.8.2011 as per Annexure-AN; and the impugned order dated 2.7.2014 passed by the Appellate Authority as per Annexure-AP. 2. It is the case of the petitioner that while he was working as Senior Assistant in the office of the District Manager, Karnataka Food and Civil Supplies Corporation Ltd., (for short hereinafter referred to as ‘KFCS’) Shimoga during the year 2011, he was served with a charge sheet dated 13.6.2011 in which he was leveled with four charges by the General Manager of KFCS, who is disciplinary authority. The petitioner filed his reply to the charge sheet. Not being satisfied with the reply, the Disciplinary Authority appointed an enquiry officer to enquire into the charges. The petitioner participated in the enquiry proceedings. The enquiry officer after considering the entire material on record submitted a report on 8.3.2013 holding that charge Nos.1 and 3 are proved and charge Nos.2 and 4 are not proved. The second show cause notice was issued to the petitioner and thereafter, the Disciplinary Authority considering the entire material on record rejected the findings of the enquiry officer in respect of charge Nos. 1 and 3 and accepted the findings on charge Nos. 2 and 4 and proceeded to dismiss the petitioner from service on 4.1.2014 as per Annexure-AK. Aggrieved by the said order passed by the Disciplinary Authority, the petitioner filed an appeal before the Appellate Authority under the provisions of Rule 8(viii) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The Appellate Authority considering the material on record by the impugned order dated 2.7.2014 issued an endorsement dismissing the appeal. Therefore, the present writ petition is filed. 3. Sri Vivek Subba Reddy, learned Senior Counsel appearing for the petitioner vehemently contended that the order passed by the Appellate Authority vide Annexure-AP is not a speaking order. Except stating that after considering the entire material on record, the original authority was justified in dismissing the petitioner from service and absolutely no reason is assigned. 3. Sri Vivek Subba Reddy, learned Senior Counsel appearing for the petitioner vehemently contended that the order passed by the Appellate Authority vide Annexure-AP is not a speaking order. Except stating that after considering the entire material on record, the original authority was justified in dismissing the petitioner from service and absolutely no reason is assigned. The order passed by the Appellate Authority is contrary to the very provisions of appeal in view of the fact that when an appeal is preferred, the Appellate Authority has to consider the contentions raised by the appellant and assign reasons, but the same has not been done. The Appellate Authority cannot simply adopt the language employed by the Disciplinary Authority in an appeal. In support of his contentions, he relied upon a judgment of the Hon’ble Supreme Court in the case of Chairman, Life Insurance Corporation of India and Others –vs- A. Masilamani reported in (2013)6 SCC 530 wherein it has been held that the order of the Appellate Authority itself should reveal such application of mind and it cannot simply adopt the language employed by the Disciplinary Authority and proceed to affirm its order. Therefore, he sought for quashing of the impugned order passed by the Appellate Authority and to remand the matter to the Appellate Authority for reconsideration of the appeal and to pass orders assigning independent reasons in accordance with law. 4. Per contra, Sri M.V. Charati, learned Counsel for respondent Nos. 2 and 3 sought to justify the impugned order and contended that while confirming the order passed by the Disciplinary Authority, there is no need to assign any detailed reason by the Appellate Authority if it agrees or concurs with the findings of fact recorded by the Disciplinary Authority. He further contended that in the statement of objections, it is stated that how the Appellate Authority has considered in detail and an endorsement has been issued vide Annexure-AP. Therefore, he sought to dismiss the writ petition. 5. The learned Government Advocate supported the case of respondent Nos.2 and 3. 6. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioner was appointed as Senior Assistant in the office of respondent Nos.2 and 3. Therefore, he sought to dismiss the writ petition. 5. The learned Government Advocate supported the case of respondent Nos.2 and 3. 6. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioner was appointed as Senior Assistant in the office of respondent Nos.2 and 3. It is also not in dispute that during the year 2011, charge memo was issued containing two disciplinary proceedings: one containing four charges and another containing eight charges to which the petitioner had replied. Not being satisfied with the same, an enquiry officer was appointed. On the basis of the enquiry report, the Disciplinary Authority rejected the findings of the enquiry officer in respect of charge Nos. 1 and 3 and accepted the findings on charge Nos. 2 and 4 and ultimately dismissed the petitioner from service. It is also not in dispute that the petitioner filed an appeal under the provisions of Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 raising various grounds. The Appellate Authority while reiterating the statements made has held that xxx xxx xxx 7. It is a well settled principle that when the petitioner has filed an appeal before the Appellate Authority raising various grounds against the Disciplinary Authority, it is the duty of the Appellate Authority to apply its mind independently and pass orders in accordance with law. Admittedly, in the present case, the Appellate Authority has held in one line order that considering the appeal in detail, no ground to interfere. Accordingly, an endorsement was issued but the learned Counsel for respondent Nos. 2 and 3 submits that, the consideration made by the Appellate Authority has been stated in the statement of objections in detail but issuing of an endorsement has not been included. Therefore, the said contention cannot be accepted. What is not stated in the impugned order passed by the Appellate Authority cannot be added by way of statement of objections. 8. The Hon’ble Supreme Court while considering the powers of the Appellate Authority in the case of Chairman, Life Insurance Corporation of India and Others –vs- A. Masilamani reported in (2013)6 SCC 530 at paragraph 19 has held as under: “The word “consider”, is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Director, Marketing, Indian Oil Corpn. Ltd. v. Santosh Kumar, (2006) 11 SCC 147 ; and Bhikhubhai Vithlabhai Patel v. State of Gujarat, AIR 2008 SC 1771 ).” 9. In view of the aforesaid reasons it clearly depicts that the Appellate Authority has not applied its mind to the grounds raised and the relevant material produced before it and it has simply adopted the reasoning of the Disciplinary Authority and in one line it has recorded a finding that on detail consideration, no ground is made out and hence, the appeal is dismissed which is erroneous and contrary to the provisions of law and the dictum of the Hon’ble Supreme Court stated supra. 10. In view of the above, writ petition is allowed in part. The impugned order dated 2.7.2014 passed by the Appellate Authority vide Annexure-AP is quashed. The matter is remitted to the Appellate Authority to decide the appeal afresh after giving opportunity to both the parties and pass a detailed order in the light of the judgment of the Apex Court stated supra within a period of three months from the date of receipt of a copy of this order. 11. The challenge with regard to the order passed by the Disciplinary Authority as well as the enquiry report remains in tact which shall be agitated by the petitioner only after disposal of the appeal by the Appellate Authority. 12. However, it is made clear that all the contentions raised by both the parties are left open and the same shall be agitated before the Appellate Authority.