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2023 DIGILAW 271 (KAR)

Hirekerur Taluka Vidyavardhak v. Veerappa

2023-02-15

E.S.INDIRESH

body2023
JUDGMENT/ORDER 1. In this writ petition, the petitioner has challenged impugned order dtd. 19/2/2020 (Annexure-A) passed by the Principal District and Sessions Judge, Haveri, in M.A.(E.A.T) No.01/2008, allowing the petition filed by the 1st respondent - employee. 2. Brief facts in nut shell are that, the respondent, while working as Head Master in Shaha Narayanaji Khanji Primary School, run by the petitioner Management, received the communication from the petitioner Management, whereby, certain charges have been leveled against the 1st respondent herein. Thereafter, enquiry was conducted and the Enquiry Officer found that the charges leveled against the respondent are proved and accordingly, the petitioner Management, dismissed the 1st respondent from service on 14/1/2008. Being aggrieved by the same, the 1st respondent has filed M.A.(EAT) No.1/2008, before the District Judge and Educational Appellate Tribunal, Haveri and the Tribunal by its order dtd. 19/3/2010, dismissed the appeal filed by the respondent herein vide Annexure-H. Feeling aggrieved by the same, the 1st respondent herein has filed W.P.No.66490/2011 before this Court and this Court by order dtd. 27/4/2016, allowed the writ petition and remanded the matter to the Tribunal for fresh consideration after affording fair opportunity to the 1st respondent herein. Pursuant to order passed by this Court, the Tribunal, reheard the matter afresh and passed impugned order dtd. 19/2/2020 (Annexure-A), allowing the appeal and being aggrieved by the same, the petitioner Management has presented this writ petition. 3. I have heard Sri. Sunil S. Desai, learned counsel appearing for the petitioner Management, Sri.Anant P. Savadi, learned counsel appearing for the 1st respondent - delinquent and Sri. M. H. Patil, learned Additional Government Advocate for the 2nd respondent State. 4. Sri. Sunil S. Desai, learned counsel appearing for the petitioners contended that, the Tribunal, solely relied upon the four criminal cases pending consideration before the competent court and arrived at a conclusion to exonerate the 1st respondent and the said finding is incorrect. He further contended that, the Tribunal has not properly assessed the evidence on record and therefore, the impugned order is not a speaking order. It is the argument of the learned counsel appearing for the petitioner that, Ex.P28 and Ex.P29 are the charges leveled against the respondent herein, which are specific and clear and therefore, the Tribunal ought to have looked into the imputation of charges, before arriving at the conclusion to justify the action of the petitioner Management. It is the argument of the learned counsel appearing for the petitioner that, Ex.P28 and Ex.P29 are the charges leveled against the respondent herein, which are specific and clear and therefore, the Tribunal ought to have looked into the imputation of charges, before arriving at the conclusion to justify the action of the petitioner Management. He further contended that, enquiry has been conducted fairly after affording opportunity to the 1st respondent - delinquent and therefore, the finding recorded by the Tribunal requires to be interfered in this writ petition. 5. Per contra, Sri. Anant P. Savadi, learned counsel appearing for the 1st respondent - delinquent, argued that, the Tribunal, after considering the material on record, arrived at a conclusion, which cannot be disturbed in the writ proceedings. He further contended that, no notice was issued prior to issuance of the charge memo produced at Annexure-B to the writ petition and therefore, the Management has predetermined to remove the respondent from the service and therefore he contended that, the Tribunal is justified in setting aside the order of the petitioner Management. He further contended that, though the Tribunal has made an observation relating to the criminal cases pending consideration before the competent court, however, the same cannot be equated with the proceedings before the departmental enquiry, as the nature of the proceedings, evidence, and assessment of the evidence is quite distinct and therefore, the Tribunal, after considering the material, which are made available before the Enquiry Officer, has looked into and rightly set aside the order of removal. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of State of Punjab Vs. V. K. Khanna and Others reported in (2001) 2 SCC 330 and in the case of G. V. Ashwathanarayana Vs. Central Bank of India reported in ILR 2003 KAR 3066 and argued that, the mindset of the petitioner Management was to victimize the 1st respondent delinquent and the biased approach has been shown from the beginning of the proceedings and therefore, sought for dismissal of the writ petition. 6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the 1st respondent herein was working as the Head Master in the school run by the petitioner Management. Annexure-B is the charge memo issued to the 1st respondent. 6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the 1st respondent herein was working as the Head Master in the school run by the petitioner Management. Annexure-B is the charge memo issued to the 1st respondent. It is admitted by the learned counsel appearing for the petitioner Management that, no show cause notice was issued before issuing the charge memo dtd. 4/10/2007 (Annexure-B). On careful examination of the charge memo would indicate that, the petitioner Management has made up a mind to sack the respondent from the service. Perusal of the charge memo would further indicate that, opportunity was not extended to the 1st respondent delinquent before issuing the charge memo and on this ground alone, in the absence of the reply made by the 1st respondent - delinquent before issuing the charge memo, the procedure adopted by the petitioner Management is incorrect and liable to be set aside. 7. In this regard, the Hon'ble Apex Court in the case of V. K. Khanna's case (supra), at paragraph 16 and 34 held as follows: "16. Absence of malice has been the main thirst of submissions in support of the appeal and adaptation of a simple method of disciplinary inquiry is the key issue as urged by the appellants. Shri Khanna, respondent No.1, on the other hand contended that the entire set of facts if analysed in a proper perspective then and in that event gross violation of basic tenets by reason of malice ipso facto would be apparent enough to reach the same conclusion as has the High Court. Shri Khanna alleges that the issuance of the charge-sheet against him is the direct outcome of the reference of the two cases to the CBI and is overtly malafide. It would thus be convenient to assess the facts pertaining to above- noted two cases at this juncture. 34. Shri Khanna alleges that the issuance of the charge-sheet against him is the direct outcome of the reference of the two cases to the CBI and is overtly malafide. It would thus be convenient to assess the facts pertaining to above- noted two cases at this juncture. 34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge- sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record". 8. It is also relevant to extract the paragraph 8 in G. V. Ashwath Narayana's case (supra), whereby the Division Bench of this Court held as under: "8. It is trite that charge-sheet is the charter of disciplinary action. The domestic/departmental enquiry commences with the service of the charge- sheet. In other words, before proceeding with the departmental or domestic enquiry against a delinquent official, he must be informed clearly, precisely and accurately of the charges levelled against him. The charge-sheet should specifically set out all charges which the delinquent is called upon to show-cause against and should also state all relevant particulars and details without which he cannot defend himself. The charge-sheet should specifically set out all charges which the delinquent is called upon to show-cause against and should also state all relevant particulars and details without which he cannot defend himself. The object of this requirement is that the delinquent employee must know what he is charged with and have the adequate opportunity to meet the charge and to defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged; otherwise, it will amount to his being condemned unheard. Fair hearing pre- supposes a precise and definite catalogue of charges so that the person charged my understand and effectively meet it. If the charges are imprecise and indefinite or vague or unintelligible, the person charged could not be able to understand them and defend himself effectively and in those circumstances, the subsequent enquiry would not be a fair and just enquiry. The charged official ought to be informed of the charges levelled against him as also the grounds upon which they are based. Charge of misconduct should not be vague. The charge-sheet must be specific and must set out all the necessary particulars and details irrespective of the fact whether the delinquent knows it or not; he must have told about the charges and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge. However, it is true that the charge need not be framed with the precision of a charge in criminal proceeding. But, at the same time, it must not be vague or so general as to make it impossible of being traversed. Therefore, the test is whether the charge conveys to the delinquent employee, the exact nature of the alleged misconduct in a way that would enable him to meet the charge effectively. It is well established that if a vague charge is given to a delinquent, it is a fatal defect, which vitiates the entire proceedings. It is also relevant to notice that the vagueness in the charge is not excused on the plea that the employee concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine what the charges against him are and it is for the employer to frame specific charges with full particulars." 9. It should not be left to the delinquent official to find out or imagine what the charges against him are and it is for the employer to frame specific charges with full particulars." 9. Following the declaration of law made by the Hon'ble Supreme Court, I am of the view that, the mind set of the petitioner Management is to remove the petitioner from the service. I have also noticed from the arguments advanced by the learned counsel with regard to pendency of criminal case, however, it is well settled principle in law that, there is no impediment for conducting departmental proceedings during the pendency of the criminal proceedings, as the standard of proof in the criminal proceeding is completely different from the standard of proof that is required to be proved in the departmental proceedings, as the former being one of proof beyond reasonable doubt, whereas the later being one of preponderance of probability. 10. In that view of the matter, though I find force in the submission made by the petitioners that the Tribunal has made a remark with regard to criminal cases, however, that itself cannot be a basis to remand the matter to the Tribunal for fresh consideration as the Tribunal, as per paragraph 17 of the impugned order, observed that the entire evidence on record has been looked into. Therefore, I do not find any merit in the submission made by the learned counsel appearing for the petitioners to examine the legality of the impugned order passed by the Tribunal, by exercising jurisdiction under Article 227 of the Constitution of India, which is limited and scope of interference is only with regard to the jurisdictional aspects. Accordingly, writ petition is dismissed.