Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1947 (KAR)

B. Doddakariyappa v. Regional Commissioner

2019-09-04

L.NARAYANA SWAMY, R.DEVDAS

body2019
JUDGMENT : R DEVDAS, J. 1. The grievance of the petitioner is that the period for which he was prevented to work as a Village Accountant i.e., from 06.12.1976 to 04.07.1990, which was treated as Leave Without Allowance, is contrary to the Principles of law. 2. The petitioner who was working as a Village Accountant at Ponnasamudra Village Panchayat, Pavagada taluk was issued with a charge memo alleging that he collected a sum of Rs.33-24 on 11.10.1973 from one Adinarayana Setty towards land revenue in respect of Khatha No.65, but he failed to remit the amount to Government and misappropriated the same and that he unauthorizedly remained absent from duty with effect from 06.12.1976 till 04.07.1990. The petitioner approached the Karnataka State Administrative Tribunal in Application No.2094/1990 which was disposed of by the Tribunal by order dated 08.06.1990 directing the Department to take back the petitioner to duty and accordingly in the month of July,1990 the petitioner was taken for duty. 3. So far as the charge relating to misappropriation of amount is concerned, the Department had initiated a criminal case against the petitioner and the Criminal Court had acquitted the petitioner. As regards the charge of unauthorized absence for nearly 14 years, the Deputy Commissioner by order dated 17.08.1991 imposed penalty of "Warning" and treated the period as Leave Without Allowance. The petitioner preferred an appeal before the Divisional Commissioner, Bengaluru Division on 17.03.2001. The Appellate Authority issued an endorsement to the petitioner on 14.02.2002 and dismissed the appeal on the ground that the appeal should have been preferred within a period of three months in terms of Rule 20 of the CCA Rules. 4. Being aggrieved, the petitioner approached the Tribunal in application No.8385/2003 challenging the orders passed by the Deputy Commissioner and Divisional Commissioner. The Tribunal, by order dated 19.08.2016 allowed the Application in part by quashing the endorsement dated 14.02.2002 and remanded the matter to the Appellate Authority and directed the Appellate Authority to consider the grounds of appeal. Thereafter the petitioner herein also submitted a representation to the Appellate Authority for reconsideration of the appeal. The Tribunal, by order dated 19.08.2016 allowed the Application in part by quashing the endorsement dated 14.02.2002 and remanded the matter to the Appellate Authority and directed the Appellate Authority to consider the grounds of appeal. Thereafter the petitioner herein also submitted a representation to the Appellate Authority for reconsideration of the appeal. The Appellate Authority i.e., Regional Commissioner, by order dated 26.07.2017 rejected the appeal holding that the petitioner had unauthorizedly remained absent from duty from 06.12.1976 to 04.07.1990 and that the petitioner had not discharged duties during the said period and hence there is no provision in Rules to count the said period as on duty. 5. Being aggrieved, the petitioner once again approached the Tribunal. The Tribunal, by order dated 24.05.2018 rejected the application made by the petitioner herein. Therefore, being aggrieved the petitioner has preferred this writ petition. 6. Sri.N.F. Amarad, learned counsel appearing for the petitioner submits that the Deputy Commissioner, Appellate Authority, Regional Commissioner and the Tribunal have erred in not considering the fact that the petitioner was indeed prevented from joining duty. In this regard, the learned counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of O.K.Bharadwaj vs. Union of India and others, (2001) 9 SCC 180 to submit that even in case of minor penalty, the Principles of Audi Alteram Partem could not be dispensed with. In other words, it is contended that the Deputy Commissioner did not conduct enquiry and did not give an opportunity to the petitioner of being heard. Therefore, the orders passed by the Deputy Commissioner, Appellate Authority and Tribunal require to be set aside. 7. Per contra, the learned Additional Government Advocate would support the orders passed by the Deputy Commissioner, Appellate Authority, Regional Commissioner and the Tribunal. 8. We have heard the learned counsel for both side and perused the writ papers. 9. On going through the writ papers, we find that though the charge memo/Article of Charges were issued on 18.02.1981, it was found that the petitioner remained absent unauthorizedly since 06.12.1976. The petitioner seems to have slept over the matter since 1976 till 1990- 1991 and he moved the Tribunal and thereafter the Deputy Commissioner to pass order on the departmental enquiry initiated by the respondents. The petitioner seems to have slept over the matter since 1976 till 1990- 1991 and he moved the Tribunal and thereafter the Deputy Commissioner to pass order on the departmental enquiry initiated by the respondents. We find that the decisions arrived at by the Regional Commissioner and the Tribunal that what the petitioner did in the year 1990-91 could have been done in the year 1976 itself, cannot be held as unreasonable. When it was alleged that he was prevented from joining duty, the petitioner should have initiated appropriate action. 10. The submission of the learned counsel for the petitioner that since the petitioner was prevented from joining duty, he was unable to discharge his duty and therefore, no fault could be found against the petitioner as unauthorizedly absent to his duty, cannot be accepted. It is also a fact that consequent to the order passed by the Deputy Commissioner directing that the period of absence be treated as 'Leave Without Payment' and permitted the petitioner to join duty, the petitioner has immediately joined duty and has already retired from services as on 31.03.1996. The petitioner has been receiving pension and it is only after a lapse of ten years, the petitioner has approached the Appellate Authority by preferring the appeal against the order passed by the Deputy Commissioner in the year 1991. We find that the dismissal of the appeal filed by the petitioner after a lapse of ten years, in contravention to Rule 20 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, also requires to be upheld. There is no explanation on the part of the petitioner for the belated approach. Even after the matter was remanded to the Regional Commissioner, Regional Commissioner has considered all these submissions and taken note of the above fact and has rightly rejected the appeal filed by the petitioner. We also find that by the impugned order, the Tribunal has taken note of all these facts and dismissed the Application filed by the petitioner. 11. In the light of the above, we do not find any merit in the petition and accordingly, reject the same.