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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF APRIL, 2013
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.5071/2012 (S-DE)
BETWEEN: Sri.K.B.Lenkennavar
Aged about 58 years, S/o B.M.Lenkennavar Former District & Sessions Judge Residing at “Malaprabha”, No.205, National Games Village, Koramangala,
Bangalore – 560 047. ..Petitioner
(By Sri.S.V.Narasimhan, Advocate)
AND:
1. State of Karnataka By its Secretary, DPAR, Vidhana Soudha, Bangalore – 560 001. 2. Registrar General
High Court of Karnataka, Bangalore – 560 001. ..Respondents
(By Sri.Raghavendra G.Gayathri, AGA)
R
2
This writ petition is filed under Article 226 of the
Constitution of India praying to call for the records pertaining to Government Order dated 28.04.2009 of the R-1 vide Annexure-J and peruse the same, quash
the order dated 28.04.2009 of the R-1 at Annexure-J and direct the respondents to reinstate the petitioner into service with all consequential service and monetary benefits by issue of a writ of mandamus to the respondents.
This writ petition coming on for final hearing this
day, the Court made the following:
ORDER Petitioner (hereinafter referred to as DJO –
Delinquent Judicial Officer) was appointed to the post of
District Judge in Sub-ordinate judiciary by direct
recruitment on 15.05.1996. He was dismissed from
services by invoking Rule 8 (viii) of Karnataka Civil
Services (Classification, Control and Appeal) Rules,
1957 (hereinafter referred to as CCA Rules) by order
dated 28.04.2009 Annexure-J. DJO is seeking for
quashing of the said order dated 28.04.2009 Annexure-
J by issue of writ of certiorari and for consequential
directions to the respondents to reinstate him into
3
service with consequential service and monetary
benefits by issue of writ of mandamus.
2. DJO was issued with articles of charges on
06.09.2005 Annexure-A by High Court of Karnataka
(hereinafter referred to as Disciplinary Authority)
Bangalore and nine charges were levelled against the
DJO. On receipt of articles of charges DJO has
submitted his written statement or reply to the articles
of charge on 17.10.2005. Reply submitted by DJO to the
charges, came to be considered by the Administrative
Committee-I (AC-I) in its meeting held on 14.11.2005
and it was resolved to recommend to the full court to
keep the DJO under suspension with immediate effect.
Administrative Committee-I had also recommended
appointment of Justice Sri.R.Gururajan as the inquiring
authority. Said recommendation of Administrative
Committee-I was accepted by full court in its meeting
held on 23.11.2005. Accordingly DJO was placed under
4
suspension with effect from 30.11.2005. High Court by
notification dated 01.12.2005 appointed a sitting Judge
of this court namely Justice Sri.R.Gururajan as
inquiring authority to inquire into charges levelled
against the DJO. Inquiry was held and on behalf of
prosecution 12 witnesses were examined and 62
documents came to be marked. On behalf of DJO he
got himself examined and got marked 27 documents.
After considering the oral and documentary evidence
and taking note of the arguments advanced by
respective learned advocates appearing for the parties,
inquiry authority held that charges 1 to 6 as proved and
charges 7 to 9 were held as not proved by giving benefit
of doubt to DJO. A report dated 30.04.2007 Annexure-
E came to be submitted by inquiring authority to the
competent authority. Said report came to be placed
before the Administrative Committee-I which considered
the report submitted by inquiring authority and agreed
with the findings of the inquiring authority and
5
accepted the report. Said committee was of the view
that penalty of dismissal from service should be levied
on DJO (under suspension) and it was resolved to issue
a notice to delinquent officer in terms of Rule 11(A)(4) of
CCA Rules, 1957.
3. Pursuant to the said resolution of
Administrative Committee-I, a show cause notice was
issued to DJO on 11.10.2007 whereunder the DJO has
been notified that High court has decided to accept the
report submitted by inquiry authority and had proposed
to impose punishment of dismissal from service and as
such called upon DJO to show cause as to why
punishment of dismissal as per Rule 8(viii) of CCA Rules
should not be imposed on him for proved misconduct.
In reply to said show cause notice DJO submitted his
statement on 26.10.2007 as per Annexure-G. Said
reply came to be considered by Administrative
Committee-I in its meeting held on 28.08.2008 and it
6
was of the view that reply to the show cause notice
submitted by DJO is not satisfactory and as such it was
of the opinion that it is a fit case to confirm the
proposed punishment. However, taking a lenient view
in the matter it recommended for compulsory retirement
under Rule 8(VI) of CCA Rules instead of dismissal and
recommended the same to the full court. Full court in
its meeting held on 04.10.2008 considered the reports
and relevant material on record and resolved to confirm
the punishment of dismissal of DJO and Full-Court was
also of the view that there is no need to take any lenient
view considering the gravity and seriousness of charges
which was proved in the enquiry. Pursuant to said
resolution Registrar General vide communication dated
18.12.2008 Annexure-M requested the Government for
imposition of penalty of dismissal of DJO by enclosing a
copy of draft order for adoption with such modification
as deemed fit. However, on account of erroneous sub-
rule having been mentioned in the said communication
7
dated 18.12.2008 i.e., sub-rule (vii) instead of sub-rule
(viii) of Rule 8 of CCA Rules, the Government of
Karnataka sought for clarification in this regard vide
communication dated 31.01.2009 Annexure-N. The
Registrar General, High Court of Karnataka by reply
dated 19.02.2009 Annexure-O clarified that Full Court
had proposed imposition of penalty of dismissal from
service on DJO as contemplated under Rule 8(viii) of
CCA Rules and by oversight while recommending it had
been mentioned as imposition of penalty of dismissal
from service under Sub-Rule(vii) of Rule 8 of KCS (C&A)
Rules. Said order was communicated to the Governor of
Karnataka by way of submission note from office of
Secretary to Government (DPAR) bearing No.DPAR 90
SHC 2008 dated 31.01.2009 which submission note is
said to have been approved by Hon’ble Chief Minister
and as such Government sought for approval of the
appointing authority i.e., Governor under Article 233 of
the Constitution of India. Said submission note came to
8
be placed before the Secretary to Governor which came
to be approved on 31.03.2009 and thereafter his
excellency Governor of Karnataka approved the note on
31.03.2009. Pursuant to said approval of
recommendation made by High Court of Karnataka note
was approved by the appointing authority namely His
Excellency Governor of Karnataka. The order of
dismissal dated 28.04.2009 Annexure-J came to be
issued by the appointing authority. It is this order
which is challenged in the present writ petition by the
DJO.
4. I have heard the arguments of
Sri.S.V.Narasimhan, learned counsel appearing for
petitioner and Sri.Raghavendra G.Gayatri, learned
Additional Government Advocate appearing for
respondent. I have perused the impugned order as also
the entire original records relating to inquiry as well as
file relating to the approval sought for by the
9
Government while forwarding the same to the Governor
of Karnataka.
CONTENTIONS RAISED ON BEHALF OF PETITIONER: 5. It is the contention of Sri.S.V.Narasimhan,
learned counsel appearing for petitioner that under
Articles of Charges dated 06.09.2005 inquiry was
conducted and a report came to be submitted by the
inquiry officer on 30.04.2007, pursuant to which
Administrative Committee-I of High Court of Karnataka
considered the report and accepted the same and
recommended for dismissal of the petitioner by following
Rule 11(A)(4) of CCA Rules and thereafter second show
cause notice dated 11.10.2007 (Annexure-D) came to be
issued to the petitioner as to why order of dismissal
under Rule 8 (viii) should not be passed against the
petitioner. He contends that Administrative Committee-
I has not considered the fact charges 7 to 9 against the
10
petitioner was not proved and this aspect has not been
taken into consideration at all by the respondents.
6. He contends that it is the decision making
process which is being challenged and not the decision
itself inasmuch as the decision making process being
vitiated the decision arrived thereon also has to be
rendered void and elaborating his submission in this
regard he contends that Rule 11(A)(4) of CCA Rules
provide for pre-decisional punishment and by virtue of
the said rule having been removed vide notification
No.KGD 20/dated 20.01.1977 GS 49 the second show
cause notice dated 11.10.2007 could not have been
issued by disciplinary authority and perusal of the said
show cause notice would indicate that disciplinary
authority had already formed a opinion to impose
punishment of dismissal against the petitioner and as
such it was a post decisional hearing and issuance of
second show cause notice was only an empty formality.
11
He would also contend that subsequent to formation of
said opinion the disciplinary authority would not be
sitting with an open mind to examine the reply
submitted by the petitioner to the second show cause
notice as well as the inquiry report inasmuch as it
would have already formed an opinion and there being
error in decision making process and decision
consequently rendered would have to be held contrary
to statutory provisions and in support of his submission
he has relied upon the decision of this Court in the case
of H.R.Ravindranath Vs Syndicate Bank represented by
its General Manager reported in ILR 2005 KAR 2350.
7. Sri.S.V.Narasimhan, would further contend
that while passing the order of dismissal dated
28.04.2009 (Annexure-J) the appointing authority
namely the State has not considered the objections filed
by the petitioner on 26.10.2007 (Annexure-G) to the
second show cause notice and in a mechanical manner
12
it has passed the impugned order. He would contend
that after the report came to be submitted by the
Inquiry Officer on 30.04.2007, second show cause
notice dated 11.10.2007 came to be issued, which was
duly replied by petitioner on 26.10.2007 and it came to
be considered by the Administrative Committee-I on
28.08.2008, whereunder, said committee had accepted
the findings of Inquiry Officer and reply submitted to
the second show cause notice by the DJO as not being
satisfactory, but still opined that it is a fit case for
taking a lenient view by imposing punishment of
compulsory retirement instead of dismissal which was
not accepted by the Full Court in its meeting held on
04.10.2008 (Annexure R-4) and when communication
from the Registrar General, High Court of Karnataka
dated 18.12.2008 and clarification on 19.02.2009 came
to be issued the Appointing Authority had two options
before it namely; (1) it could have accepted the
recommendation of Disciplinary Authority and passed
13
an order of dismissal under Rule 8 (viii); and (2) in the
alternate, if it had examined the entire matter
independently then it ought to have considered the reply
given by petitioner to the second show cause notice on
26.10.2007 (Annexure – G) as otherwise, it has to be
necessarily held that impugned order is vitiated for want
of such scrutiny and examination by Appointing
Authority to the reply submitted to second show cause
notice by the petitioner. He would also bring to the
notice of this Court the penultimate paragraph of the
impugned order whereunder Appointing Authority has
stated that it has considered the reply dated 26.10.2007
(Annexure-G) to contend that it is an empty formality
and no reasons are forthcoming with regard to
consideration of reply submitted by petitioner on
26.10.2007 and that by itself would clearly establish
that there has been total non-application of mind by the
Appointing Authority while passing the impugned order.
On account of non-consideration of reply submitted by
14
petitioner on 26.10.2007 (Annexure-G) by the
Appointing Authority, impugned order is liable to be set
aside.
8. At this juncture Sri. S.V.Narasimhan,
learned counsel appearing for petitioner would fairly
admit that insofar as petitioner is concerned the
Disciplinary Authority is the High Court and Appointing
Authority is the Government of Karnataka.
9. Sri. S.V.Narasimhan, learned counsel would
submit that a memo had been filed by the petitioner
before the Disciplinary Authority on 08.05.2009 vide
Annexure – K requesting for furnishing of certain
documents and on account of non-furnishing of
documents sought for by the petitioner, inquiry is
vitiated as also consequential order of dismissal passed
against the petitioner. He would also contend that non-
furnishing of the documents annexed to the report while
15
furnishing the enquiry report to a Delinquent Officer
would vitiate the Inquiry proceedings. In support of his
submissions he has relied upon following judgments:
1. ILR 2005 KAR 2350 - H.R. RAVINDRANATH V/S
SYNDICATE BANK
2. 1999 (5) K.L.J 428 (DB)- MADHAVA RAJA RAO
V/S GENERAL MANGER
(PERSONNEL WING),
3. (1976) 4 SCC 745 EQ.
AIR 1976 SC 1964 - STATE OF ANDRA
PRADESH V/S S.N.
NIZAMUDDIN ALI KHAN
4. (2008) 8 SCC 236 - STATE OF UTTARANCHAL
AND OTHERS V/S KHARAK
SINGH
CONTENTIONS RAISED ON BEHALF OF RESPONDENTS: 10. Sri.Raghavendra, learned AGA appearing for
respondents would submit that charges levelled against
16
the DJO is serious in nature and there was financial
transactions made by DJO and not reported for a period
of 5 to 6 years which was required to be reported under
Rule 23(2)(3)(4) of Karnataka Civil Service (Conduct)
Rules 1966 and on account of non furnishing of details
and not reporting the financial transactions carried out
was unbecoming of a judicial officer, lack of integrity,
devotion to duty, not obtaining the permission of High
Court and thereby committed misconduct within the
meaning of Karnataka Civil Service (Conduct) Rules,
1966 (hereinafter referred to as KCSR Rules) and as
such articles of charges came to be issued against the
DJO. He admits that sub-rule (4) of Rule 11(A) of CCA
Rules is not there in the statute book and it has been
deleted with effect from 20.01.1977 and despite such
deletion DJO was furnished with a copy of inquiry
report and as such applicability or non applicability of
Rule 11(A)(4) as urged by the learned counsel for
petitioner would be of no consequence and even
17
otherwise he would contend that such a ground has not
been urged in the writ petition and same should not be
taken note of by this Court.
10.1. He would submit that until there is a
disagreement with the views of the inquiring authority
by the disciplinary authority and while issuing second
show cause notice the disciplinary authority or the
competent authority as the case may be should not
form an opinion regarding the nature of punishment
that is to be proposed as otherwise competent authority
would be within its domain to notify about the proposed
imposition of punishment and seek for reply which was
the only exercise carried out in the instant case and as
such mere mentioning Rule 11(A)(4) by Administrative
Committee-I in its resolution dated 08.10.2007 and
consequential issue of second show cause notice to the
petitioner would be of not consequence and it would not
prejudice the DJO in any manner until and unless DJO
18
is able to establish that on account of such procedural
lapse even if any it has resulted in prejudice or in the
alternate if he is able to demonstrate that there was any
other possible view which could have been taken by
competent authority, the order of punishment of
dismissal imposed on DJO should not be interfered
with.
10.2. In reply to the arguments of learned counsel
for petitioner, Sri.Raghavendra, learned AGA would
submit that Administrative Committee-I is only a
holding hand and as per the extant rules of CCA Rules
as it stood at the undisputed point of time no notice was
required to be issued to the DJO and despite such
position the DJO was issued with a second show cause
notice enclosing the inquiry report in view of Judgment
of Hon’ble Apex Court in the case of Managing Director,
ECIL, Hyderabad and others Vs B.Karunakar and
others reported in (1993) 4 SCC 727 whereunder
19
issuance of second show cause notice has been
prescribed in order to do substantial justice to a
delinquent. Hence, he contends no prejudice whatsoever
has occasioned to the petitioner by issuance of second
show cause notice. He would also submit that the DJO
has not questioned the decision of Administrative
Committee-I or full court and the order passed by the
Governor i.e., appointing authority is only a formal
order as has been held by the Hon’ble Apex Court in the
case of Registrar (Admn.), High Court of Orissa, Cuttack
Vs Sisir Kanta Satapathy (Dead) by Lrs and anr
reported in (1999)7 SCC 725 paragraph 17 and as such
he submits that impugned order does not suffer from
any vice either on facts or on law.
10.3. He would further elaborate his submission
by contending that no prejudice is caused to the
petitioner by these alleged violations or infractions even
if any though not admitted, since petitioner has not
20
proved that such violation or infraction of any rules has
resulted in prejudice and as such he contends this
court should not interfere with the order of punishment
imposed on DJO by dismissing from service by relying
upon the Judgment of Hon’ble Apex Court in the case of
Union of India and others Vs Alok Kumar reported in
(2010) 5 SCC 349 by particularly referring to
paragraphs 84, 85 and 90 of said judgment. He would
also contend that interference by this court in the
matter of departmental inquiry for breach of principles
of natural justice alone is not sufficient unless it is
established by the DJO that on account of such breach
of natural justice it has resulted in prejudice as
otherwise interference with the quantum of punishment
imposed does not arise. He would also contend that
decision of Administrative Committee-I was placed
before the full court which also confirmed the findings
of the inquiring authority and DJO having not alleged
any bias this court should not interfere with the
21
decision of Full Court. In support of his submission he
has relied upon the following judgments:
1. (1978) 2 SCC 102 – State of Uttar Pradesh Vs Batuk Devopati
2. Chief Justice of Andhra Pradesh and others Vs L.V.Dexit, (1979) 2 SCC 34
3. Registrar, High Court of Orissa Vs Sisir
Khan Satapathy (1999) 7 SCC 725 4. R.C.Chandel Vs High Court of Madhya
Pradesh and anr (2012) 2 SCC (L & S) 469
5. State of Bihar Vs Balamukund, (2000)
4 SCC 640 6. Managing Director ESCL Vs
B.Karunakar (1993) 4 SCC 727
7. Punjab National Bank and others Vs
Kunjbihari Mishra, (1998) 7 SCC 84 8. Union of India Vs Alok Kumar, (2010) 5
SCC 349 9. Burdwan Central Co-operative Bank Vs
Asin Chatterji, (2012) 2 SCC 641 10. Chairman, Ganga Yamuna Gramina
Bank Vs Devisuhai, (2009) 2 SCC (L &
S) 618 11. Union of India Vs B.C.Chaturvedi 1995
22
6 SCC 750 12. Sub-Divisional Officer Vs Maharaja
Singh 2003 SCC L & S 1172
13. Administrator Union Territory of Dadra
and Nagarahaveli Gulabhia M. Lad, 2010 2 SCC L & S 101.
14. High Court of Judicature of Bombay Vs
Udayasingh, (1997) 5 SCC 129 15. Pyari Mohanlal Vs State of Jharkhand
(2010) 10 SCC 693
11. Having heard the learned advocates
appearing for the parties and on perusal of the
impugned order as also original records made available
by the learned Additional Government Advocate, I am of
the considered view that following points would arise for
my consideration:
“1. Whether there is any infraction of CCA Rules by the competent authority or the appointing authority resulting in prejudice being caused to the petitioner? 2. Whether the order of dismissal passed
against the DJO on 28.04.2009 suffers from any vice or there has been infraction of any
23
provision of law or impugned order is contrary to law?”
12. In order to answer the points formulated herein
above I am of the considered view that provisions of law
pressed into service by learned advocates appearing for
the parties requires to be extracted since it would have
a direct bearing and impact on the contentions raised
by learned advocates and it would also be necessary to
analyse and adjudicate the contentions raised by them
and as such they are extracted herein below:
LAWS GOVERNING APPOINTMENT OF DISTRICT
JUDGES AND CONDITIONS OF SERVICE:
CONSTITUTION OF INDIA
CHAPTER-VI - SUBORDINATE COURTS
233. Appointment of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to
such State.
24
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or
a pleader and is recommended by the High Court for appointment. 234. Recruitment of persons other than district judges to the judicial service. - Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation
to such State. 235. Control over subordinate courts.- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to,
persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
236. Interpretation. - In this Chapter-
25
(a) the expression “district judge” includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court,
chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge; (b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
237. Application of the provisions of this Chapter to certain class or classes of magistrates.- The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such
date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification. 13. It has been held by Apex Court in GAUHATI
HIGH COURT Vs. KULADHAR PHUKAN (2002)4 SCC
524, that doctrine of separation of powers and the need
26
for having an independent judiciary as a bulwark of
constitutional democracy persuaded the founding
fathers of the constitution of India to assign a place of
distinction to the judiciary. Chapter VI of the
Constitution dealing with subordinate courts seeks to
achieve the avowed object of insulating even the
subordinate judiciary from the influences of the
executive and the legislature. Appointment of District
Judges in a State is made by the Governor of the State
in consultation with the High Court under Article 233.
The Constitution of India though provides direct
recruitment as one of the sources of appointment to the
cadre of district judges, has not prescribed any fixed
quota for it. Different states have different quota system
for direct recruitment. In cases where quota is not fixed
under the rule, such statutory rules can be
supplemented by administrative instructions and the
state Government in consultation with the High Court is
competent to prescribe quota for two sources of
27
recruitment to the service by administrative orders.
However, in order to bring uniformity in this regard, the
Apex court, in All India Judges Association Vs Union
of India reported in (2002) 4 SCC 247, relying on
Justice Shetty Commission’s recommendation, has
directed that quota for direct recruitment shall be fixed
at 25% of the posts in the cadre of district judges. The
provisions for consultation with the high court is
incorporated since the high court is expected to have
superior knowledge in regard to the suitability of a
person belonging either to the judicial service or to the
bar to be appointed as a district judge. The duty to
consult with the high court is so integrated with the
exercise of the power to appoint a district judge that the
power can be exercised only in consultation with the
high court. “Consultation” with the high court in this
article means on the recommendation of the high court.
The object underlying this provision is to secure and
maintain independence of the subordinate judiciary.
28
The high court would be the best judge of the
requirements of proper and efficient judicial
administration.
14. Under Article 235 the control over district
courts and courts subordinate thereto including posting
and promotion and grant of leave to persons belonging
to judicial service of a State is vested in the High Court.
14.1 Article 237 brings all the Magistrates under
the control of High Court.
14.2 Under Article 309 of the Constitution, power
is conferred on the appropriate legislature to regulate
the recruitment and condition of service of persons
appointed to public services and posts in connection
with the affairs of the Union or of any State. The
recruitment and the conditions of service of persons
appointed to judicial service falls within the purview of
Article 309.
29
15. Under entry 41 of state list in VII schedule,
the subject “State Public Service- State Public
Service Commission” is included and as such the state
could legislate in respect of all matters concerning the
members of judicial service. Article 309 is a general
provision relating to regulation of recruitment and
conditions of service of persons appointed to public
service under the union and the state. The members of
judicial service are appointed to Public Service and,
therefore, subject to provision of Articles 233, 234 &
235 and as such the President or the Governor, or as
case may be, is empowered to frame Rules of
recruitment and conditions of service for judicial
service.
15.1. In exercise of power vested under Article
309 the Governor has framed the Karnataka Civil
Services (Conduct) Rules, 1966 which would govern the
30
District Judges. Relevant Provisions necessary for
answering the point formulated hereinabove are as
under:
Karnataka Civil Services (Conduct) Rules, 1966 (KCSR Rules 1966) – 21(4)(i) No Government Servant shall [except with the previous sanction of the Government and] save in the ordinary course of business with a bank or a firm of standing duly authorised to conduct banking business either himself or through any
member of his family or any other person acting on his behalf-
(a) Lend or borrow money as principal or agent, to or from any person within the local limits of his authority or with whom he is likely to
have official dealings, or otherwise place himself under any pecuniary obligation to such person; or
(b) Lend money to any person at interest or in a
manner whereby return in money or in kind
is charged or paid:
Provided that a Government Servant may give to, or accept from, a relative or personal
friend, a purely temporary loan of [an amount not exceeding his total monthly emoluments] free of interest, or operate, a
31
credit account with a bonafide tradesman or make an advance of pay to his private employee.
(ii) When a Government Servant is appointed or transferred to a post of such nature as would involve him in the breach of any of the provisions of sub-rule (2) or sub-rule (4), he shall forthwith report the circumstances to the Government and shall thereafter act in accordance with such order as may be made by the Government.
23(2) – No Government Servant (or any member of his family) shall, except with the
previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family:
Provided that the previous sanction of the prescribed authority shall be obtained by the Government Servant if any such transaction is –
(i) with a person having official dealings with the Government Servant; or
(ii) otherwise than through a regular or reputed dealer:
[Provided further that nothing in this sub-rule shall apply to the transactions entered into by a member of the family of the
32
Government servant out of his or her own funds (including gifts, inheritance, etc.), as distinct from the funds of the Government servant himself/herself, in his or her own
name and in his or her own right.]
(3) Every Government Servant shall report to the prescribed authority every transaction concerning movable property owned or held by him (or any member of his family) either in his own name or in the name of a member of his family, if the value of such property
exceeds (ten thousand rupees) in the case of a Government Servant holding any (Group “A”) or (Group “B”) post or [five thousand rupees] in the case of a Government Servant holding any [Group “C”) or (Group “D”) post:
19. Provided that the previous sanction of the prescribed authority shall be obtained if any such transaction is –
(i) with a person having official dealings with the Government Servant; or
(ii) otherwise than through a regular or reputed
dealer: (Provided further that nothing in this sub-
rule shall apply to the transactions entered into by a member of the family of the Government Servant out of his or her own funds (including gifts, inheritance, etc.,) as distinct from the funds of the Government Servant himself/herself, in his or her own name and in his or her own right)
33
23(4) The Government or the prescribed authority may at any time by general or special order, require a Government Servant to furnish, within a period specified in the order, a full and complete statement of such movable or immovable property held or acquired by him [or any member of his family] or on his behalf or by any member of his family as may be specified in the order. Such statement shall if so required by the Government or by the prescribed authority
include the details of the means by which, or the source from which such property was acquired.
15.2. Rules relating to appointing authority,
controlling authority, disciplinary authority and
appellate authority are concerned, rules have been
framed by the Governor in exercise of power under
Article 309 of the Constitution of India, known and
called as Karnataka Civil Services (Classification,
Control and Appeal) Rules, 1957 and relevant provision
which would have bearing on the facts of the case are
extracted herein below:
34
The Karnataka Civil Service (Classification, Control and Appeal) Rules 1957, CCA Rules
11-A. Action on the inquiry report. - (1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring
Authority on any article of charge record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having
regard to its findings, on all or any of the articles of charge is of the opinion that one or more of the penalties specified in Rule 8 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 12, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the
Commission for its advice on the penalties proposed to be imposed on the Government Servant and such advice shall be taken into
35
consideration before making any order imposing any penalty on the Government Servant.
(4) (i) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed on the Government servant, it shall.- (a) furnish to the Government Servant a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an Inquiring Authority, appointed by it, a copy of the
report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the Inquiring Authority and where the inquiry is held by the (Lokayukta or an Uplokayukta) under
Rule 14-A, a copy of the findings of the Inquiring Officer with the recommendations of the (Lokayukta or an Uplokayukta, as the case may be); and (b) give the Government Servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may with to make on the proposed
penalty on the basis of the evidence adduced during the inquiry held under Rule 11.
36
(ii) (a) In every case in which it is necessary to consult the Commission, the record of the inquiry, together with a copy of the notice given under clause (i) and the representation
made in pursuance of such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government Servant. (b) The Disciplinary Authority shall after considering the representation, if any, made by the Government Servant, and the advice given by the Commission, determine what penalty, if any, should be imposed on the Government Servant and make such order
as it may deem fit. (iii) Where it is not necessary to consult the Commission the Disciplinary Authority shall consider the representation, if any, made by the Government Servant in
pursuance of the notice given to him under clause (i)and determine what penalty, if any, should be imposed on him and make such order as it may deem fit. 28 D. Provision regarding members of the Karnataka Judicial Service, etc. - Notwithstanding anything contained in these rules, references to the Governor or the Government in these rules shall, insofar as they relate to the control over the District
Courts and Courts subordinate thereto by the High Court of Karnataka under Article 235 of the Constitution of India, be
37
construed as reference to the High Court of Karnataka: Provided that nothing in this rule shall affect
the powers of the Governor under the Constitution of India in respect of members of the Judicial Services or the right of an appeal which a person may have under the law regulating his conditions of service. 16. In the background of constitutional frame
work as noticed and discussed hereinabove, Article 235
of Constitution vests in a High Court the control over the
subordinate judiciary within the state. To place the
subordinate judiciary beyond executive interference was
felt as early as in the year 1933-34 when the joint-
parliamentary committee made the following
observations:
It is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges.
38
17. It has been held by the Apex Court in
Chandra Mohan V/s State of UP reported in AIR 1966
SC 1987 at page 1993 that importance of a strong and
independent judicial system at lower levels is recognized
by these special provisions incorporated in the
constitution. Judicial services are placed on different
pedestal, different from other services under the State.
Having been so insulated, judges who hold the public
office are expected to discharge their function on public
trust and all independence. Judges discharge their
functions while exercising the sovereign judicial power
of the state and as such their honesty and integrity is
expected to be beyond pale of any doubt. The fact that
subordinate judiciary is the formulation of the Judicial
System, persons who man it should reflect their honesty
and integrity by their explicit deeds and actions. They
should ensure that no such smoke screen would engulf
giving rise to iota of doubt. The mandate of Article 235
of Constitution is that the High Court has to maintain
39
constant vigil on subordinate judiciary. The following
judgments of the Hon’ble Apex Court would fortify this
view.
(i) In All India Judges Association (II) Vs Union of India reported in (1993) 4 SCC 288 has held as follows:
“The judicial service is not service in the sense of employment. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the
members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted
to the three organs of the State and each one of them in turn represents the authority of the State”.
(ii) Again the Apex court in All India Judges’ Association and others Vs Union of India and others reported in 2002 (4)SCC 247 is has observed to the following effect: “The subordinate judiciary is the foundation of the edifice of the judicial system. It is,
therefore, imperative that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate
40
judiciary. While the Supreme Court has accepted the recommendation of Justice Shetty Commission, which will result in the increase in the pay scales of the subordinate judiciary,
it is at the same time necessary that the judicial officers become more efficient. There has to be certain minimum standards, objectively adjudged, for officers who are to enter the higher judicial service as Additional District Judges and District Judges. While Justice Shetty Commission is right in recommending that the recruitment to the higher judicial service i.e., the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both
written and viva voce, it is necessary that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to higher judicial services. Furthermore, there should also be an incentive amongst the relatively junior and other officers
to improve and compete with each other so as to excel and get quicker promotion”.
(iii) The Apex court while examining the correctness of an order of compulsory retirement passed against the judicial officer of the State of Madhya Pradesh in the case of R.C.Chandel Vs High Court of Madhya Pradesh and another reported in 2012 (8) SCC 58 has observed as under:
“Judicial service is not an ordinary Government service and the Judges are not employees as such. Judges hold the
41
public office; their function is one of the essential functions of the state. In discharge of their functions and duties, the Judges represent the State. The
office that a judge holds is an office of public trust. A judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary
man. This is no excuse that since the standards in the society have fallen the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar’s wife,
must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty”.
These are the basic principles under which a Judge
should function and discharge his judicial functions.
Keeping the contours laid down by Apex Court in the
42
judgments referred to supra the facts on hand are
required to be examined.
FACTUAL MATRIX:
18. The DJO in the instant case was appointed as
a District Judge by direct recruitment in the year 1996.
Pursuant to the selection made by the High Court of
Karnataka the appointing authority namely Governor of
Karnataka issued the appointment order to petitioner-
DJO. The said DJO has worked in various capacities in
the places he was posted. On 06.09.2005 articles of
charges came to be issued against the DJO alleging
misconduct namely not intimating the High Court about
the availment of loans and closure of the said accounts
when he did not possess known source of income to
repay the said loan; though obtained permission from
the High Court to purchase a Maruthi Esteem Car did
not purchase the said car from the savings or raising
loan from judicial officers association as informed and
43
though permitted to avail the said loan from State Bank
of India, Madikeri by suppressing said fact of obtaining
the permission from the High Court, and obtaining
various loans from different banks without obtaining
prior permission from the High Court. Certain amounts
of cash having been deposited intermittently to his
savings bank account by not declaring the receipts of
this amount or source from which they were received;
had spent certain amounts by drawing from the GPF
without intimating to the High Court; giving false
information to the High Court stating that except two
loans he did not possess any other loan though he had
availed loans frequently without obtaining permission of
the High Court and was in the habit of giving false
information to the High Court in the statement of assets
and liabilities and having financial dealings/entering
into financial transactions with financial institutions
and had made repayments of the loans by not disclosing
the source; passing an order of extension of bail even a
44
day prior to handing over charge after transferred from
Madikeri to Karwar and under suspicious
circumstances; granted anticipatory bail to certain
accused persons a day prior to handing over charge of
PDJ, Madikeri after order of transfer from Madikeri to
Karwar was duly communicated to DJO on 06.05.2005
by High Court of Karnataka and passing orders for
extraneous and monetary consideration. On these lines
imputation of charges namely articles of charges was
issued by the disciplinary authority to the DJO on
06.09.2005 vide Annexure-A. Written statement came
to be filed by DJO on 17.10.2005. Not satisfied with the
reply the Administrative Committee-I resolved to initiate
inquiry by appointing Inquiring Authority namely
Hon’ble Justice Sri.R.Gururajan apart from appointing
the Presenting officer and also recommended to the full
court to keep the petitioner/DJO under suspension with
immediate effect in its meeting held on 23.11.2005
pending disposal of inquiry. Full court accepted the
45
decision of Administrative Committee-I for appointment
of Justice Sri.R.Gururajan as inquiry officer as well as
suspension of petitioner vide resolution dated
23.11.2005 and petitioner-DJO was kept under
suspension from 30.11.2005. Thereafter a notification
came to be issued on 01.12.2005 appointing the
inquiring authority to inquire into the charges levelled
against the DJO. Pursuant to the said notification
inquiring authority entered appearance and issued
notice to the parties. Both prosecution as well as DJO
appeared before the Inquiry Authority and they were
represented by their respective learned advocates. Both
the parties tendered oral and documentary evidence and
on evaluation of the same inquiring authority held that
charges 1 to 6 levelled against DJO are proved and
charges 7 to 9 are not proved by giving benefit of doubt
to DJO. Said report came to be placed before the
Administrative Committee-I and the said committee
considered the report submitted by inquiring authority
46
and agreed with the inquiring authority and accepted
the report. Said committee was of the considered view
that the order of dismissal from service should be
imposed on DJO and as such it resolved in its meeting
held on 08.10.2007 (Annexure-R-2)to issue a notice to
the said DJO in terms of Rule 11(A)(4) of CCA Rules.
Pursuant to the said resolution of the Administrative
Committee-I second show cause notice came to be
issued on 11.10.2007 Annexure-D to the DJO and he in
turn submitted his reply on 26.10.2007 Annexure-G.
Said report of the inquiring authority and reply
submitted by DJO came to be placed before the
Administrative Committee-I for consideration. In its
meeting held on 28.08.2008 reply given by DJO was
examined and found that it was not satisfactory and
after considering all the material and reply submitted by
DJO to show cause notice, though committee was of the
considered view that it was a fit case to confirm the
proposed punishment, it however took a lenient view in
47
the matter and recommended to the full court to impose
the punishment of compulsory retirement under Rule 8
(viii) of CCA Rules instead of dismissal. Said
recommendation came to be placed before the full court
in its meeting held on 04.10.2008 and it was resolved
by the full court to confirm the proposed punishment
i.e., dismissal of DJO after careful consideration of
reports and relevant materials and Full Court was also
of the view that there was no need to take any lenient
view considering the gravity and seriousness of the
proved charges.
19. Pursuant to said resolution and
recommendation of the Full Court, the Registrar
General intimated to the State Government of the
resolution passed by the full court and requested the
State Government to pass necessary orders for
dismissal by communication dated 18.12.2008
Annexure-M. On account of there being an error in
48
mentioning the Rule namely sub-rule (vii) instead of
sub-rule (viii) the Secretary DPAR sought for
clarification in this regard from the Registrar General
vide communication dated 31.01.2009 Annexure-N. It
came to be clarified by the Registrar General, High
Court of Karnataka on 19.02.2009 Annexure-O
clarifying that order of dismissal has to be passed under
Rule 8(viii) of KCS Rules 1957. Pursuant to the same, a
submission note was forwarded to the Governor of
Karnataka by Secretary, DPAR and Governor of
Karnataka approved the same on 31.03.2009 and
thereafter the appointing authority passed the order of
dismissal dated 28.04.2009 vide Annexure-J.
SCOPE OF INTERFERENCE: 20. The Power of High Court under Article 226
of Constitution of India to interfere with the findings of
the inquiring authority is very limited. The
extraordinary jurisdiction vested in the High Court
49
requires to be sparingly exercised and for cogent and
sufficient reasons as otherwise the interference would
be limited. Reappraisal of evidence is impermissible
and while exercising supervisory jurisdiction this Court
would not exercise appellate jurisdiction and as such
this court would be slow in interfering with the findings
recorded by the inquiring authority, until and unless it
is established prima facie that such finding could not
have been arrived at on the basis of available evidence
or the evidence available on record would clearly
indicate that the findings recorded by the inquiring
authority is contrary to it or it is perverse. Even with
regard to the quantum of punishment imposed by the
appointing authority would not be interfered by this
court until and unless it is shockingly disproportionate
to the proved charge of misconduct. The following case
laws would fortify this view:
50
1. (1995) 6 SCC 750 – Union of India and anr Vs B.C.Chaturvedi
“12. Judicial review is not an appeal from a
decision but a review of the manner in which the decision is made. Power of judicial review
is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the
authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation
of statutory rules prescribing the mode of
51
inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
2. 2003 SCC (L & S) 1172 – Sub-Divisional Officer,
Konch Vs Maharaj Singh
“5. In view of the submissions made at the Bar, we have scrutinised the impugned order of the High Court. A bare perusal of the same
makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has re-appreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not appellate
one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court
exceeded its jurisdiction under Article 226 in interfering with the findings arrived at by the enquiring authority by re-appreciation of the
52
evidence adduced before the said enquiring authority. We, therefore, set aside the impugned order of the High Court and the Writ Petition filed stands dismissed. This
appeal is allowed. 3. (2010) 2 SCC (L & S) 101 – Administrator, Union Territory of Dadra and Nagar Haveli Vs Gulabhia M. Lad
“14. The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of
punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or
Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts.”
RE: POINT NOS. 1 & 2:
21. Any finding that would be given on one point
would have a bearing on the other. Since these two
53
points are interlinked and interconnected they are being
delved upon together and answered.
22. It is the contention of Sri. S.V.Narasimhan,
learned counsel for petitioner that Administrative
Committee-I in its meeting held on 08.10.2007
(Annexure R-2) had resolved to accept the report and it
had further resolved to issue a notice to the Delinquent
Officer in terms of Rule 11-A (4) of CCA Rules which
rule was not existing and as such there is infraction in
the decision making process and thereby consequential
order of dismissal passed on 28.04.2000 (Annexure-J) is
also void. He contends that show cause notice issued
on 01.10.2007 as per Annexure-D is an empty formality
since Administrative Committee-I had already resolved
to dismiss the petitioner from service and as such it is a
pre-decisional hearing. In support of his submission he
has relied upon the judgment of Coordinate Bench of
this Court in the case of H.R. RAVINDRANATH VS.
54
SYNDICATE BANK reported in ILR 2005 KAR. 2350
whereunder it has been held that even before issue of a
second show cause notice and considering the reply
given thereto by an delinquent employee the disciplinary
authority should not come to a conclusion and it should
have an open mind. Finding recorded by Co-ordinate
Bench of this court reads as under:
“17. Even before issue of second show cause notice and considering the representation of
the delinquent employee, the disciplinary authority should not come to any definite conclusion or finding. It should keep an open mind. It must record its tentative reasons for differing from the findings of the Inquiry officer, to enable the delinquent to
know the mind of the disciplinary authority, so that he has an opportunity to persuade to change the mind. But, if the authority makes up its mind before issue of second show cause notice and embarks upon a post decisional hearing, it will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration at a post decisional opportunity. Once a decision has been taken there is a tendency to uphold it, and representation may not really yield any fruitful purpose.”
55
23. In the said judgment it is noticed that
petitioner therein was working as a Manager in
respondent-bank and was issued with chargesheet
alleging that he had demanded ` 1,000/- from five
persons and had released loans to three persons after
accepting bribe from them. Defence statement was
submitted by the employee. Not satisfied with the
defence set up, Inquiry was instituted and Inquiry
Officer conducted the Inquiry before whom oral and
documentary evidence was adduced by both the parties
and a report came to be submitted holding that charges
levelled against the delinquent employee were not
proved by giving detailed reasons. However,
Disciplinary Authority issued a communication dated
24.08.1998 enclosing copy of the Inquiry report and
appending the grounds on which Disciplinary
Authority was disagreeing with the findings of the
Inquiry Officer and also arriving at a conclusion
56
that petitioner is guilty of charges levelled against
him.
(Emphasis supplied by me)
24. In this background it was contended before
this Court that finding had already been recorded by the
Disciplinary Authority and any amount of calling for
explanation from the petitioner would only be an empty
formality and it would be a pre-decisional hearing. On
examination of extant rules applicable to such enquiry
which was governing the bank and also accepting the
plea of the petitioner therein, this Court has taken a
view that second show cause notice issued to petitioner
cannot be sustained and quashed the same, reserving
liberty to the Disciplinary Authority to issue a second
show cause notice and proceed with the matter with an
open mind.
25. In the background of above case law let me
examine as to whether contents of the show cause
57
notice issued to the DJO in the instant case is fraught
with any lacuna. The said show cause notice reads as
under:
“ SHOW CAUSE NOTICE
The Hon’ble High Court, after considering the report of the Inquiring Authority in D.I.No.10/2005 against you and taking into consideration the evidence on record, has decided to accept the report submitted by the Inquiring Authority. Having regard to the nature of charges, the Hon’ble High Court has proposed to impose a
punishment of dismissal from service. Hence, as directed this notice is issued to you to show cause as to why the penalty of dismissal from service as per Rule 8(viii) of the Karnataka Civil Services (Clarification
Control and Appeal) Rules, 1957 should not be imposed for misconduct. You are requested to submit your reply within 15 days from the date of receipt of this notice, failing which the matter will be considered and decided as if your have nothing to say in the matter. Copy of the Inquiry Report is enclosed herewith.”
26. In the instant case it can be noticed that
totally 9 charges were leveled against the DJO. Charges
58
1 to 6 were held to be proved by the Inquiring Authority
and DJO was exonerated in respect of charges 7 to 9.
Said Inquiry Report dated 30.04.2007 came to be placed
before the Administrative Committee -I which is a
helping hand or extended hand of the High Court of
Karnataka. Said committee in its meeting held on
08.10.2007 resolved to accept the Inquiry report.
However, before imposing order of punishment it was of
the view that show cause notice is to be issued, in view
of the judgment rendered by the Apex Court in the case
of MANAGING DIRECTOR, ECIL, HYDERABAD AND
OTHERS VS. B. KARUNAKAR AND OTHERS reported
in 1993 (4) SCC 727, wherein the Apex Court had
formulated the following questions for its adjudication.
They read as under:
“2. The basic question of law which arises in these matters is whether the report of the Inquiry officer/authority who/which is appointed by the disciplinary authority to
hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to
59
make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the
punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions: (i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?
(ii) Whether the report of the Inquiry officer is required to be furnished to the
delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?
(iii) Whether the obligation to furnish the
report is only when the employee asks for the same or whether it exists even otherwise?
(iv) Whether the law laid down in Mohd. Ramzan Khan case will apply to all
establishments – Government and non-Government, public and private sector undertakings?
(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?
60
(vi) From what date the law requiring furnishing of the report, should come into operation?
(vii) Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990?”
27. It has been held in the said judgment by the
Hon’ble Apex Court by majority judgment that in a
disciplinary proceeding there are two stages i.e., the
first stage ends when the Disciplinary Authority gives its
report by arriving at a conclusion on the basis of the
evidence of the parties and the delinquent employee’s
reply to it and the second stage begins when the
Disciplinary Authority decides to impose penalty on the
basis of its conclusion. The first right is the right to
prove innocence. The second right is to plead for either
no penalty or a lesser penalty although the conclusion
61
regarding guilt is accepted. It is the second right
exercisable at the second stage which was taken away
by the 42nd amendment which consisted of issuance of
notice to show cause against the proposed penalty and
on considering the reply to the notice, decide upon the
penalty. It has been held that what has been dispensed
with is the opportunity of making representation on the
penalty proposed and not of opportunity of making
representation on the report of Inquiry Officer. It has
been further held that latter right is always there and as
such it has been held that disciplinary authority has to
consider the representation of the employee against the
report before it arrives at its conclusion with regard to
his guilt or innocence in respect of the charges. An
essential part of the reasonable opportunity required at
the first stage and also the principle of natural justice is
that the findings recorded by the Inquiry Officer form an
important material before Disciplinary Authority which
62
along with evidence is taken into consideration by it to
come to its conclusion.
28. In the instant case sub-rule (4) of Rule 11-A
of CCA Rules as it then stood casts an obligation on the
Disciplinary Authority to furnish a copy of the report of
Inquiry and the findings of each article of charges in the
event of its disagreement, if any, with the findings of the
Inquiring Authority under Clause (i) (a) and a notice
under clause (i)(b) stating the penalty proposed to be
imposed on him and in every case in which it is
necessary to consult the Commission, the record of
Inquiry together with a copy of notice given under
clause (i) and representation made by employee thereto
for its advise on the penalties proposed to be imposed
under Clause (ii) (a) and thereafter determined the
penalty to be imposed under Clause (ii)(b). This sub-
rule (4) has been undisputedly removed from the statute
book vide notification No. KGD dated 20.01.1977 GSR –
63
29. As to whether issue of 2nd show cause notice by the
disciplinary authority to the DJO has vitiated the order
of dismissal on the ground it is a pre-decisional hearing.
29. Hon’ble Apex Court in the case of PUNJAB
NATIONAL BANK AND OTHERS VS. KUNJ BEHARI
MISRA reported in 1998 (7) SCC 84 had an occasion to
consider as to the stages of Inquiry and the process in
which the representation of the Delinquent Officer has
to be considered. It has been held to the following
effect:
“17. These observations are clearly in
tune with the observations in Bimal Kumar Pandit's case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been
granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent
64
officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary
authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present
case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for
otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the findings of the disciplinary authority”.
30. In the said case Disciplinary Authority
disagreed with the findings of Inquiring Authority and
the extant regulation which governed the parties did not
specifically state that Disciplinary Authority should give
a hearing to the Delinquent Officer when disagreeing
65
with the findings of Inquiring Authority and when it
records its own reasons for such disagreement. As such
Apex Court held by applying the principles laid down in
B.Karunakar’s case referred to supra that an
opportunity is to be given when the Disciplinary
Authority disagree with the findings of the Inquiring
Authority by supplying the reasons and giving an
opportunity to the delinquent employee and thereafter
decide on evaluation of both namely the Inquiry Officer’s
report and reply given by the Delinquent Officer and
then decide on the quantum of punishment to be
imposed, as otherwise it would be a pre-decisional
hearing.
31. Perusal of the judgment in Ravindranath’s
case referred to supra would indicate under the extant
rules governing the petitioner therein second show
cause notice was required to be issued to the delinquent
employee in the event of disciplinary authority
66
disagreeing with the views expressed by the Inquiring
authority. On the facts and circumstances it was found
in the said decision that inquiry officer had exonerated
the delinquent employee of all charges. However, said
finding was not agreed to by the disciplinary authority
and while disagreeing with the findings of Inquiring
authority and assigning the reasons thereof by
intimating delinquent employee Bank issued second
show cause notice calling for explanation. However,
disciplinary authority had also formed an opinion to
impose the penalty of dismissal and this was reflected in
the second show cause notice. In this background it
was held by Co-ordinate Bench of this court that while
issuing second show cause notice, disciplinary authority
had to indicate only its reasons for disagreement and an
opportunity to represent had to be extended to the
delinquent employee to enable the disciplinary authority
to record its findings and it could not have formed an
opinion to impose punishment of dismissal. On the
67
ground that this step will enable the delinquent
employee to persuade the disciplinary authority to
accept his reply and arrive at a favourable conclusion as
arrived by the inquiry officer. It has been held therein,
only after consideration of explanation offered by the
delinquent employee the disciplinary authority had to
record its conclusion as to why explanation given by the
delinquent employee was not being accepted and not
before such explanation was offered. In this background
it has been held that issuing of second show cause
notice and giving of an opportunity to the delinquent
officer is to enable the delinquent employee to persuade
the disciplinary authority to accept the finding of the
inquiry officer and such step cannot be an idle
formality. It has been held therein, if such opportunity
is not extended to a delinquent employee and a decision
has already been arrived at by the disciplinary
authority, issuance of second show cause notice would
become an empty formality.
68
32. In the instant case sub rule (3) of Rule 11(A)
provides for imposition of penalty specified in Rule 11(A)
on a Government servant notwithstanding anything
contained in Rule 12. Sub-rule (2) of Rule 11 enables
the disciplinary authority to record its own findings on
such charge if the findings on record is sufficient for the
said purpose when it disagrees with the findings of
enquiring authority on any articles of charges and while
doing so it has to record its reasons. In the facts of the
present case it is noticed that inquiring authority has
recorded a finding that articles of charges 1 to 6 are
proved and the Administrative Committee -I has also
accepted the said report of the inquiring authority.
There is no disagreement by Administrative Committee-I
on the findings of the inquiry authority either in respect
of articles of charges 1 to 6 or 7 to 9.
33. As noticed hereinabove in the instant case
after the Inquiry Officer submitted the report on
69
30.04.2007 it was placed before the Administrative
Committee-I and in its meeting held on 08.10.2007 and
said committee accepted the findings of the Inquiring
Authority and was of the opinion that the penalty of
dismissal from service should be imposed on DJO and
resolved to issue a notice to Delinquent Officer under
Rule 11-A (4). It is true that said rule was not in the
statute book on the said date as already noticed
hereinabove and as rightly contended by Sri. S.V.
Narasimhan. However, by issuing of said show cause
notice pursuant to the resolution of Administrative
Committee-I dated 08.10.2007 (Annexure-R-2) the
prejudice that has been caused to the petitioner by
following the said rule has not been established.
Sri.Narasimhan would have been justified in his
submission in the event of Inquiring Authority had held
the charges either as not proved or if the Inquiring
Authority had exonerated the DJO from all the charges
leveled against him and the Administrative Committee-I
70
was disagreeing with the findings of the Inquiring
Authority by substituting its own reasons and
supplementing its reasons for ordering dismissal from
service to be passed against the DJO. Said factual
matrix is conspicuously absent in the instant case. On
the other hand the report of Inquiring Authority has
been accepted by the Administrative Committee-I in
toto. In other words charges 7 to 9 of which the DJO
came to be exonerated also came to be accepted by the
said committee. However, taking into consideration the
evidence recorded by the Inquiring Authority and the
conclusion arrived thereat by holding charges 1 to 6
were proved, the Administrative Committee-I was of the
considered view that the order of dismissal was required
to be passed against DJO. Though Sub-Rule (4) of Rule
11 of CCA Rules was not available on the statute book,
yet again a notice came to be issued which has been
construed as second show cause notice. Said show
cause notice which is extracted hereinabove would
71
indicate that copy of the Inquiry Report was also
appended/annexed to the said show cause notice to
which the DJO has submitted reply in detail on
26.10.2007 as per Annexure-G. Neither in the said
reply given to the show cause notice dated 11.10.2007
nor in the present writ petition a ground has been
raised with regard to prejudice that has been caused to
him on account of issuance of second show cause notice
dated 11.10.2007. On the other hand Disciplinary
Authority in order to ensure that there is no infraction
of principles of natural justice at any level and obviously
by way of abundant caution has issued a 2nd show
cause notice dated 11.10.2007 enclosing the Inquiry
report. As such, I am of the considered view that
judgment relied upon by the learned counsel appearing
for the petitioner in H.R. RAVINDRANATH vs.
SYNDICATE BANK’s case referred to supra would not
be of any assistance to the petitioner in the instant case
72
and as such contention of learned counsel appearing for
petitioner cannot be accepted and it stands rejected.
34. It is the further contention of
Sri.S.V.Narasimhan that Administrative Committee-I
could not have examined the report of Inquiring
Authority and it ought to have gone before the Full
Court and on account of this procedural infraction it
has resulted in order of dismissal passed against DJO
erroneously. At this juncture it is to be noticed that
DJO has submitted a detailed reply on 26.10.2007
(Annexure-G) to the show cause notice dated
11.10.2007 (Annexure-D) denying the findings recorded
by Inquiring Authority on charges 1 to 6. There is not
even a whisper with regard to alleged procedural
infraction in this regard. In other words petitioner has
accepted the second show cause notice to be in
consonance with the extant rules. Even otherwise, after
the Inquiry Report was placed before the Administrative
73
Committee-I and its acceptance thereof it did not end at
it, but went before the Full Court for consideration. Full
Court after deliberation resolved to confirm the
punishment of dismissal. The power to impose major
penalties such as dismissal, removal, compulsory
retirement or reduction in rank against all members of
judicial service including district judges is vested in the
Governor, but in view of the effective control over them
having been vested in the High Court, the High Court
alone is competent to initiate and hold disciplinary
proceedings and the penalties could be imposed only in
accordance with the recommendation of the High Court.
The power of the High Court to have exclusive
jurisdiction over subordinate judiciary by virtue of
Article 235 of the Constitution came to be explained by
the Apex Court in the case of CHIEF JUSTICE OF
ANDHRA PRADESH AND OTHERS vs L.V.A.DIXITULU
AND OTHERS reported in 1979 (2) SCC 234 and it has
been held as under:
74
“29. Now, let us see what is the ambit and scope of the power of “appointment” in Article 229 (1). In the context of Article 229, read as a whole, this power is of wide
amplitude. The word “appointment” in Article 229(1) is to be construed according to axiom that the greater includes the less. This cardinal canon of interpretation underlies Section 16 of the General Clauses Act which has been made applicable by Article 317(1) of the Constitution. Construed in the light of this juristic principle, the power of “appointment” conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short,
in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of
service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Court.”
(Emphasis supplied by me)
75
35. The power of control over the Subordinate
Courts which is vested in the High Court comprises of
numerous matters often involving consideration of
details of the minute nature and as to whether the
whole Court is required to consider every one of those
matters was held to cause delay and confusion in the
administration of justice in the State and it has been
held by the Apex Court in the case of STATE OF
UTTAR PRADESH vs. BATUK DEO PATI TRIPATHI
AND ANOTHER reported in 1978 (2) SCC 102 to the
following effect:
“15. Yet another misconception may now be cleared. It is urged on behalf of the respondent by his learned counsel Shri Misra that under Article 216, ‘High Court’ means the entire body of Judges appointed to the Court and therefore, the control over the subordinate judiciary which is vested by Article 235 in the High Court must be exercised by the whole body of Judges. The thrust of the argument is that the High Court cannot delegate its functions or power to a Judge or a smaller body of Judges of the Court. This argument requires consideration of the question whether any delegation as such is involved in the process whereby a
76
Judge or a Committee of Judges of the court, like the Administrative Committee in the instant case, is authorized by the whole court to act on behalf of the court.
16. For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Courts comprises such numerous matters, often involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the
administration of justice in the State. A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, is so far as possible, to be avoided. The control vested in the High Courts by that article comprehends,
according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within Article 311, decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within Article 311, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters
pertaining to the High Court’s administrative affairs will pile into arrears like court arrears. In fact, it is no exaggeration to say
77
that the control will be better and more effectively exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within
the purview of Article 235. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterize as ‘delegation’ the process whereby the entire High Court authorizes a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorization effectuates the purpose of Article 235 and indeed without it the control vested in the High Courts over the subordinate courts will tend gradually to
become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court’s constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judge’s time. For balancing
these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brook no such sharing of responsibilities by any instrumentality. 17. The High Court has not by its Rule authorized any extraneous authority, as in Shamsher Singh, to do what the Constitution enables and empowers it to do. The Administrative Judge or the Administrative Committee is a mere instrumentality through which the entire Court acts for the more convenient transaction of its business.
78
The assumed basis of the arrangement being that such instrumentalities will only act in furtherance of the broad policies evolved from time to time by the High Court as a
whole. Each Judge of the High Court is an integral limb of the Court. He is its alterego. It is therefore inappropriate to say that a Judge or a Committee of Judges of the High Court authorized by the Court to act on its
behalf is a delegate of the Court.”
36. In the instant case as noticed hereinabove
the Administrative Committee-I in its meeting held on
28.08.2008 not only found that the reply given by the
DJO to the Inquiry Report being not satisfactory it was
also of the considered view that it was a fit case to
confirm the proposed punishment of dismissal.
However, it was also of the considered view that a
lenient view has to be taken to impose punishment of
compulsory retirement instead of dismissal and as such
recommended the same to the Full Court. Thus, it can
be seen that Administrative Committee –I has only
recommended to the Full Court and said
recommendations came to be considered, scrutinized,
79
analysed and thereafter decision was arrived at by the
Full Court. Full Court after careful consideration of the
reports and relevant material placed before it resolved
that it was a fit case to confirm the proposed
punishment namely dismissal of DJO from service and
it does not warrant taking a lenient view. As such the
contention of Sri. S.V.Narasimhan that there was
procedural irregularity namely Administrative
Committee-I could not have considered the report of the
Inquiring Authority and it was the Full Court alone
which ought to have considered the said report cannot
be accepted.
37. Now turning my attention to the next ground
urged by Sri. S.V.Narasimhan that the Appointing
Authority has considered the reply given to the show
cause notice dated 11.10.2007 by reply dated
26.10.2007 which was not in its domain or the
Disciplinary Authority alone ought to have considered
80
the reply and when the Appointing Authority examines
the said reply given by the DJO it should have
meaningfully considered the DJO’s reply and contends
that by reading of the impugned order it would clearly
indicate that there has been total non-application of
mind and non-consideration of the contentions raised
by the DJO in his reply dated 26.10.2007, since no
discussion has been made on the contentions raised by
the DJO in his reply to the second show cause notice
and as such the order of dismissal passed by the
Appointing Authority is fraught with lack of fairness. He
would also bring to the notice of this Court the
penultimate paragraph of the impugned order
whereunder Appointing Authority has stated that it has
considered the reply dated 26.10.2007 (Annexure-G) to
contend that it is an empty formality and no reasons are
forthcoming with regard to consideration of reply
submitted by petitioner on 26.10.2007 and that by itself
would clearly establish that there has been total non-
81
application of mind by the Appointing Authority while
passing the impugned order. On account of non-
consideration of reply submitted by petitioner on
26.10.2007 (Annexure-G) by the Appointing Authority,
impugned order is liable to be set aside. In support of
his submission he has relied upon the dicta laid down
by the Division Bench of this Court in the case of
MADHAVA RAJA RAO V/S GENERAL MANAGER
(PERSONNEL WING), HEAD OFFICE, CANARA BANK
reported in 1999 (5) KLJ 428 which is to the following
effect:
“We find substance in the submission of the learned Counsel for the appellant that the Disciplinary Authority had not at all considered the defence of the employee or the evidence led by him in support thereof. The learned Counsel for the respondent-Bank submits that the words “Considering other relevant factors” are sufficient to point out that all circumstances including the evidence led by the appellant was considered by the Disciplinary Authority before passing the order.”
82
38. In Madhava Raja Rao’s case referred to
supra Division Bench found on examination of facts
that order of Disciplinary Authority ought to have
indicated that it had applied its mind to the facts and
circumstances of case independently before forming an
opinion to impose the penalty and found on the facts of
the said case that it was lacking. In the instant case it
is not the contention of Sri.S.V.Narasimhan that there
has been non-application of mind by the Disciplinary
Authority, but on the other hand it is his contention
that there is non-application of mind by the Appointing
Authority while passing the impugned order. The
resolution of Administrative Committee-I dated
28.08.2008 as per Annexure R-3 would indicate that
said Committee has considered the materials and reply
to the show cause notice submitted by the DJO and
found that it was satisfactory. It was also of the
considered view that it is a fit case to confirm the
proposed punishment (order of dismissal) but however,
83
took a lenient view in the matter and recommended to
the Full Court by proposing to impose punishment of
compulsory retirement under Rule 8 (vi) of Karnataka
Civil Services (Classification, Control and Appeal) Rules,
1957. Said recommendation has been considered by the
Full Court in its meeting held on 04.10.2008 as per
Annexure R-4 and on careful consideration of the
reports and relevant material it resolved to confirm the
proposed punishment namely dismissal of petitioner.
Impugned order passed by the Appointing Authority on
28.04.2009 would indicate that the Appointing
Authority has made a passing reference about
consideration and scrutiny of reply dated 26.10.2007
(Annexure-G) submitted by petitioner to the second
show cause notice. This would not vitiate the decision
arrived by the disciplinary authority i.e., High Court.
39. Sri. S.V.Narasimhan, learned counsel has
also contended that when Full Court while disagreeing
84
with the view or recommendations of Administrative
Committee-I, opportunity ought to have been afforded to
the petitioner and has relied upon the judgment of the
Apex Court in the case of STATE OF ANDHRA
PRADESH VS S.M.NIZAMUDDIN ALI KHAN reported in
1976 (4) SCC 745, whereunder the High Court had
taken a view that there was violation of Article 311(2) on
the administrative side and it was found by the Apex
Court that High Court had taken into consideration
certain extraneous matters while arriving at a decision
and as such it was held by Apex Court that it deprived
the Delinquent Officer of a reasonable opportunity. At
Paragraph 19 the Apex Court has held as under:
“The perusal of the said judgment would indicate that while the respondent therein should had been appointed a Munsiff Magistrate was proceeded against departmental by initiating Inquiry and a judge of the High Court of Andhra Pradesh was appointed as the Inquiry Officer who found on Inquiry that the charges Nos. 1 to
3 has proved and recommended for issuing “warrant”. The Hon’ble Chief Justice on his own examination of the evidence confirmed
85
the findings of the Inquiry Officer he recommended for compulsory retirement. The Government issued a second show cause notice enclosing the report of the
Inquiry Officer but not with of the Chief Justice. And it was protested to by the Judicial Officer that Chief Justice had not authority to add his own remarks and findings as such arrived at by the Chief Justice was without hearing respondent. The Public Service Commission on matter being referred to approve the compulsory retirement and accordingly the respondent therein was compulsorily retired. Thereafter suit came to be filed which came to be decreed in finding of the Delinquent
Officer to the High Court held that since the report of the Chief Justice formed a integral part of the Inquiry and the Delinquent Officer had been denied of a reasonable opportunity came to a conclusion that the order of compulsory retirement was bad
and this order was assailed by the State before the Apex Court and on examination of facts the Apex Court found that the report of the Chief Justice was based to large extent on “secret information” obtained which culminated in the order of compulsory retirement being passed against the DJO and this decision went into the decision making process was not forwarded to the Delinquent Officer and as such he had not opportunity of meeting the said remarks or the report and as such if
affirmed the judgment of the High Court.”
86
40. In the instant case petitioner has nowhere
contended that there has been any extraneous inputs
which have gone into the decision or the decision
making process which has culminated in the impugned
order dated 28.04.2009 passed against him. The
resolution of Administrative Committee-I as well as Full
Court would also not indicate that any other material
having gone into at the time of arriving at a decision to
accept the report of Inquiry Officer.
41. In the instant case Inquiring Authority
undisputedly arrived at a conclusion that charges 1 to 6
are proved and exonerated the petitioner of charges 7 to
9. Administrative Committee-I in its meeting held on
28.08.2008 not only rejected the reply given by the DJO
as not satisfactory but was also of the considered view
that it is a fit case to confirm the proposed punishment.
To this extent alone the petitioner DJO is aggrieved.
87
42. The second limb of the resolution of
Administrative Committee-I would indicate that it
extended a olive branch to the petitioner namely it was
of the opinion that a lenient view is to be taken and
punishment of compulsory retirement was proposed.
This view of Administrative Committee-I is sought to be
contended as just and proper by learned counsel for
petitioner and contends said recommendation ought to
have been accepted by the disciplinary as well as
Appointing Authority. In other words learned counsel
for petitioner by way of alternate submission has
contended that atleast the recommendation of
Administrative Committee-I ought to have been
accepted by the Full Court. This would clearly indicate
that petitioner is trying to rely upon only that portion of
the recommendation of Administrative Committee-I
which is in his favour and attempts to challenge the
other portion which is not in his favour. The resolution
88
of Administrative Committee –I is required to be read in
its entirety and not in piecemeal.
43. Be that as it may. As noticed hereinabove
the Administrative Committee-I which is the limb of the
High Court or the extended hand of the High Court i.e.,
Full Court has made only a recommendation and its
resolution dated 28.08.2002 (Annexure – R-3) was only
recommendatory in nature. Approving or disagreeing
with the views of Administrative Committee-I was in the
domain of the Full Court. As such matter came to be
placed before the Full Court and after evaluation of the
entire material available on record Full court resolved
to accept the report of the Inquiring Authority (which in
fact had also been accepted by Administrative
Committee –I) and rejected the recommendation made
by Administrative Committee-I for taking a lenient view
and as such it was resolved by full court to confirm the
proposed punishment of dismissal of DJO from service.
89
In that view of the matter, it cannot be said that there is
no consideration of reply given by the DJO either by
Administrative Committee-I or by the Full Court.
44. Insofar as the contention regarding re-
examination of reply given by the DJO to the Inquiry
Report by the appointing authority is concerned, the
order of dismissal may give such an indication. In the
order of dismissal it has been recorded as under:
“²æÃ. PÉ.©.¯ÉAPÀtÚªÀgï, CªÀgÀÄ ªÉÄÃ¯É (4) gÀ°è NzÀ¯ÁzÀ ¢£ÁAPÀ.26.10.2007 gÀ GvÀÛgÀ ¸À°è¹ 1 jAzÀ 6 gÀªÀgÉV£À
DgÉÆÃ¥ÀUÀ¼ÀÄ ¸Á©ÃvÁVªÉ JA§ «ZÁgÀuÁ¢üPÁjUÀ¼À
¤tðAiÀĪÀ£ÀÄß ¤gÁPÀj¹zÁÝgÉ CªÀgÀ GvÀÛgÀªÀ£ÀÄß ¥Àj²Ã°¸À¯ÁV CªÀgÀÄ F »AzÉ «ZÁgÀuÉ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄAr¹zÀ CA±ÀUÀ¼ÉÃ
DVªÉ. CªÀÅUÀ¼À°è ¥Àj²Ã®£ÁºÀð CA±ÀUÀ¼ÀÄ AiÀiÁªÀŪÀÇ
EgÀĪÀÅ¢®è. DzÀÝjAzÀ 1 jAzÀ 66 gÀªÀgÉV£À DgÉÆÃ¥ÀUÀ¼ÀÄ ¸Á©ÃvÁVªÉ JA§ «ZÁgÀuÁ ªÀgÀ¢AiÀÄ£ÀÄß M¦àPÉÆAqÀÄ F ªÀÄÄA¢£ÀAvÉ DzÉò¹zÉ.”
45. It would indicate that Appointing Authority
has examined the reply given by the DJO. The original
file made available by the learned Additional
Government Advocate during the course of the hearing
would clearly indicate that after the resolution came to
90
be passed by the Full Court recommending dismissal of
the petitioner from judicial service it was communicated
by the Registrar General, High Court to the Secretary –
Law Department enclosing a draft order for adoption
with such modification vide communication dated
18.12.2008 (Annexure-M). In the said communication
Sub- Rule (vii) of Rule 8 had been mentioned for
imposition of penalty of dismissal from service which
was not the relevant rule applicable for passing an order
of dismissal and as such the Secretary-DPAR sought for
clarification vide communication dated 31.01.2009,
Annexure-N from Registrar General, High Court of
Karnataka and same came to be clarified by the
Registrar General, High Court of Karnataka on
19.02.2009 clarifying that order of dismissal is to be
passed under Rule 8 (viii). The original records would
indicate that on receiving such clarification from the
High Court, file has been forwarded from the Office of
DPAR to the Office of Chief Secretary and thereafter to
91
the Chief Minister Secretariat and it would also indicate
that both the Chief Secretary and the Chief Minister
have accorded their approval on 07.03.2009 and
thereafter note is forwarded to the Governor of
Karnataka by the Secretary-DPAR for approval.
Undisputedly, Governor being the Appointing Authority
order of dismissal was required to be approved by the
said Appointing Authority and accordingly same has
been approved on 31.03.2009 by the then Governor of
Karnataka as evidenced from the original records.
Pursuant thereto order of dismissal has been passed on
28.04.2009, Annexure-J. As noticed hereinabove the
draft order itself emanated from the High Court which
was required to be passed by the Appointing Authority.
Insofar as the High Court’s power of compulsorily
retiring, dismissing, initiation of disciplinary
proceedings, as well as the administrative control is
concerned is undisputedly vested with the High Court
and Governor exercises his power on the
92
recommendation or the resolution passed by the High
Court. Imposition of major penalty has to be made by
the Governor, being the appointing authority in view of
clause (1) of Article 311 of Constitution of India, though
in view of Article 235 the recommendation of the High
Court in that behalf is binding on the Governor.
Decision taken and recommendation made by the High
Court to impose any major penalty on a member of
judicial service is final and binding on the Governor.
This view has been reiterated by the Hon’ble Apex Court
in the case of REGISTRAR GENERAL, HIGH COURT
OF ORISSA, CUTTACK V/S SISIR KANTA
SATHPATHY AND OTHERS reported in (1999)7 SCC
72, it has been held to the following effect:
“15. On going through the judgments of this Court right from Shyamlal V/s State of U.P down to High Court of Judicature for Rajasthan V/s Ramesh Chand Paliwal one cannot but reach one conclusion regarding the power of the High Court in the matter of
ordering compulsory retirement. That conclusion is that the High Courts are vested with the disciplinary control as well
93
as administrative control over the members of the judicial service exclusively, but that does not mean that they can also pass orders of dismissal, removal, reduction in
rank or termination from service while exercising administrative and disciplinary control over the members of the judicial service. Undoubtedly, the High Courts alone are entitled to initiate, to hold Inquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of this
Court that the recommendation of the High Court is binding on the State Government/Governor (vide para 18 in Inder Prakash Anand case). 16. We are clearly of the view that while the
High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order (Vide Inder Prakash Anand case and
Rajiah case.)
94
17. In the instant case, the decision of the Orissa High Court dated 4.2.1987 (on the administrative side) was required to be forwarded to the Governor for passing an
order of compulsory retirement. That was not done. It was wrong for the High Court to have passed the order of compulsory retirement itself. The Judicial side of the High Court rightly decided the writ petition in favour of the judicial officers and held the order dated 5.2.1987 to be bad. In the words of the Division Bench of the High Court: “there is a stronger constitutional objection to accept the submission of Shri Nayak for regarding the High Court
as the appointing authority of the Chief Judicial Magistrate on the basis of what has been provided in Rule 10 of the Orissa Superior Judicial Service Rules, 1963, inasmuch as it has been laid down in Article 234 of the constitution
that appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with the rules made by him in that behalf. The aforesaid rules are one set of such rules. So, no provision in the rules could have altered the constitutional position that the Governor of the State is the appointing authority of persons other than District Judges also. Conferment of this power
on the High Court by virtue of what is stated in Rule 10 of the Orissa Superior Judicial Service Rules would have
95
clashed with the constitutional mandate. We would, therefore, not accept because of what is stated in Rule 10 that the High Court is the
appointing authority of a Chief Judicial Magistrate.”
In view of all that is stated above, we would hold that the High Court is not the appointing authority of Chief Judicial Magistrates to clothe it with the power of compulsory retirement conferred by the first proviso to Rule 71(a) of the Orissa Service Code. In this connection, may we also point out that it would be really incongruous where; though the High Court cannot retire a Munsiff, or for that matter a District Judge, as fairly conceded by Shri Nayak it would be in a position to retire a Chief Judicial Magistrate. We do not think if the concerned provisions permit us to take this view. Before closing this aspect of the discussion, we may say that we are conscious of the legal position that passing of an order of compulsory retirement by the Governor is a formal matter as stated in Rajiah case because, according to this decision, the Governor in such cases merely acts on the recommendation of the High court by signing an order in that regard; but the procedure of the Governor formally passing an order of retirement has to be complied with. So long as there is no formal order of the Governor, the compulsory retirement as directed by the high court cannot take effect, as pined in Rajiah case itself.
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Having come to the aforesaid conclusion, it is not necessary to deal with the second submission of Shri Ray that there were no materials in the present case to order for the compulsory retirement of the petitioner……..”
46. In the said case Orissa High Court (on the
administrative side) had passed an order of compulsory
retirement against DJO without forwarding the same to
the Governor and as such it was found by the Apex
Court that it was wrong on the part of the High Court to
have passed the order of compulsory retirement and as
such the verdict of the High Court was not accepted and
writ petition was decided in favour of the Judicial
Officer by setting aside the order of compulsory
retirement dated 05.02.1987. While moulding the relief
ultimately Apex court found that certain subsequent
developments have taken place namely the Full Court
on the administrative side had decided to make a
recommendation to the appointing authority to
compulsorily retire the judicial officer concerned and
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same came to be forwarded to the Government.
However, it was not processed by the Government on
account of the pendency of the matter before the Apex
Court. In this background a suggestion made by the
learned Advocate appearing for the judicial officer which
was to the effect that Governor may be requested to
pass order of compulsory retirement with effect from the
date of recommendation received by the Government
i.e., on 02.02.1991, came to be accepted by the learned
Advocate General appearing for the State as well as
counsel appearing for High Court and as such Apex
Court ordered that the Officers therein would be entitled
for their salary and allowances and other beneficial
benefits till 02.12.1991 i.e., date on which the Governor
accorded his approval for compulsory retirement of the
judicial officers therein. In the instant case, High Court
undisputedly has not passed any such order of
dismissal against petitioner –DJO, but on the other
hand Full Court had resolved by resolution dated
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04.10.2008 proposed the punishment of dismissal from
service on the petitioner and said resolution of Full
Court was forwarded to the Government which in turn
came to be placed before the Governor, who has
accorded the sanction or approval on 31.01.2009 and
thereafter order of dismissal dated 28.04.2009
(Annexure-J) came to be passed. Hence, it cannot be
construed that there is any infraction of any Rule in this
regard either by the disciplinary authority or the
appointing authority.
47. The Hon’ble Apex Court in catena of
decisions has held that the High Courts should be slow
in interfering with the quantum of punishment imposed
until and unless it has been established that decision
making process is wrong or erroneous or in the course
of arriving at a decision there has been infraction in the
decision making process. It has also been held that
violation of principles of natural justice would not
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entitle the Delinquent Officer to seek for quashing of the
order until and unless he has established that on
account of such infraction it has resulted in prejudice to
his rights. In the following judgments it has been held
as under:
1. 2010 (5) SCC 349 :– UNION OF INDIA AND OTHERS V/S ALOK KUMAR-
“89. The well-established cannos controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice.
2. 2012 (2) SCC 641:- BURDWAN CENTRAL CO OPERATIVE BANK LIMITED AND ANOTHER V/S ASIM CHATTERJEE AND OTHERS-
“19. However, there is one aspect of the
matter which cannot be ignored. In B.Karunakar case, despite holding that non-supply of a copy of the report of the Inquiry officer to the employee facing a disciplinary proceeding, amount to denial of natural
100
justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the Inquiry
report has to be considered in the facts of each case. It was observed that where the furnishing of the Inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits. “20. It was also observed in B.Karunakar case that in the event the Inquiry officer’s report had not been furnished to the
employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should
not be set aside mechanically on the ground that the copy of the Inquiry report had not been supplied to the employee.
3. 2009 (2) SCC (L & S) 618 :- CHAIRMAN GANGA YAMUNA GRAMIN BANK AND OTHERS V/S DEVI SAHAI
“22. In any event, the respondent does not show how he was prejudiced. He was supplied with a copy of the report of the inquiry officer. He even did not submit any reply thereto. As indicated hereinbefore, notices had not only been published asking the respondent to take part in the disciplinary proceedings but also chance
101
after chance had been given to him to respond to the report of the inquiry officer. We, therefore, are of the opinion that the NABARD guidelines having been issued only for the guidance of the Regional Rural Banks, the same were not mandatory in character and in any event the respondent was not prejudiced by reason of non-compliance therewith.”
48. In the instant case petitioner contends that on
account of non furnishing of requisite documents along
with Inquiry Report it has resulted in prejudice to his
rights. Petitioner contends as per requisitions dated
08.05.2009 and 28.01.2011, Annexure-K & P
respectively following documents had been sought for
and none of them were furnished.
1. Copies of the Articles of charges
2. Copies of the all deposition
3. Copies of the Inquiry report
4. Copies of the show cause notice
5. Copies of the all exhibits
Petitioner does not dispute the receipt of Article of
charges, show cause notice, Inquiry report even prior to
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filing of above said requisitions. It is not in dispute that
DJO has submitted his reply to the articles of charges
on 17.10.2005. It is also not in dispute that DJO has
submitted a detailed reply to the Inquiry report as well
as to the show cause notice on 26.10.2007 vide
Annexure-G. Nowhere, petitioner has contended that
the Disciplinary Authority has not furnished the
documents sought for by him. The original records
made available by the Additional Government Advocate
would also indicate that under Rule 11 of CCA Rules an
application came to be filed by the petitioner on
22.09.2006 seeking for copies of depositions of P.W.8 to
P.W.12 and it has been furnished to him and learned
Advocate appearing on behalf of DJO has acknowledged
the receipt of same on the copy application itself, which
would indicate that DJO has received those documents.
Subsequently on 09.06.2009 i.e., after the order of
dismissal came to be passed certain documents were
sought for by the petitioner and same has also been
103
furnished as evidenced from the note sheet maintained
by the Disciplinary Authority, which file is made
available by the learned Additional Government
Advocate for perusal by this court. These facts would
clearly establish that as and when DJO has sought for
documents it has been furnished to him and at no point
of time he has complained on this issue.
49. At this juncture it would be appropriate to
examine the contention of Sri.S.V.Narasimhan that on
account of non furnishing of requisite documents
petitioner’s defense as well as his right to defend himself
effectively has been truncated by relying upon the
judgment of STATE OF UTTARANCHAL AND OTHERS
V/S KHARAK SINGH reported in 2008 (8) SCC 236
whereunder it has been held as follows:
“20. A reading of the Inquiry report also shows that the respondent herein was not furnished with the required documents. The Department’s witnesses were not examined in his presence.
Though the respondent who was the writ petitioner specifically stated so in the affidavit
104
before the High Court in the writ proceedings, those averments were specifically controverted in the reply-affidavit filed by the Department. Mere denial for the sake of denial is not an
answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the Inquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all theses infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the Inquiry officer and disciplinary authority to
support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.
50. On facts it has been noticed by their
lordships in the above referred judgment that document
which was sought for by the Delinquent Officer during
the course of Inquiry was not furnished to him. It was
also found that departmental witnesses were not
examined in the presence of the delinquent employee.
The averments made and grounds urged in the writ
petition by the delinquent employee in this regard before
105
the High Court was not controverted or denied by the
department. There was no material available on record
to establish that Inquiry Report was furnished to the
delinquent employee. As such Apex Court found that
there were infirmities in the domestic enquiry which
had also been brought to the notice of the appellate
authority by delinquent employee and not addressed to
and as such order of dismissal came to be interfered. In
the instant case as noticed from facts, at no point of
time petitioner had raised his little finger to pin point
that he has not been furnished with copies of
documents sought for by him or on account of non
furnishing of such documents he had been handicapped
to proceed with the Inquiry. Petitioner contends a memo
had been filed before the Disciplinary Authority on
08.05.2009 vide Annexure – K requesting for furnishing
of documents therein and that on account of non-
furnishing of documents sought for by petitioner Inquiry
106
was vitiated as also consequential order of dismissal
passed against the petitioner.
51. In fact as rightly pointed out by the learned
Additional Government Advocate even during the
pendency of the Inquiry, certain documents were sought
for by the DJO by submitting a copy application under
Rule 11 CCA Rules and same had been furnished to
him and it was duly acknowledged by his learned
Advocate. Insofar as Inquiry report is concerned there
cannot be any dispute with regard to the fact that
inquiry report has been received by the DJO himself.
Undisputedly articles of charges dated 06.09.2005 came
to be replied by the DJO himself on 17.10.2005.
52. It can also be noticed that in the instant
case when petitioner submitted a reply to the second
show cause notice on 26.10.2007 Annexure-G no
contention has been raised regarding non-furnishing of
documents, but on the other hand he has taken up said
107
ground in the present writ petition. The Inquiry Report
has been furnished along with the show cause notice
dated 11.10.2007 Annexure-D and it has been duly
acknowledged by the DJO himself and replied to the
same on 26.10.2007 as per Annexure-G. In the
objection statement Annexure-G, DJO does not state or
contend that he had sought for grant of copies and
same had not been furnished to him and as such he
has been prejudiced. He does not state in his reply
dated 26.10.2007 Annexure-G as to what are the
documents he sought for either during the course of the
Inquiry or immediately thereafter which has been
denied to him.
53. In the writ petition no ground is urged in
this regard about non furnishing of documents. Even
otherwise mere pleading would not be sufficient.
Petitioner has to establish that on account of non
furnishing of documents or those documents on which
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he intended to rely upon was not made available to him
which had resulted in great prejudice and petitioner is
also required to demonstrate that charges imputed
against him were false and on account of non furnishing
of these documents he was unable to defend himself
effectively and as such it has resulted in prejudice to his
rights. Essential requirement is the prejudice that is
being caused on account of non furnishing of these
documents. In the instant case petitioner has utterly
failed to demonstrate:
(1) Though he made prayer seeking
for documents it was not
furnished;
(2) Non furnishing of same by the
Disciplinary Authority despite
application or request being
made; and,
(3) On account of non-furnishing of
those documents it has caused
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him prejudice, and thereby
enquiry is bad and consequently
order of dismissal is vitiated.
None of these ingredients are present in the instant
case.
54. In view of the discussion made hereinabove,
I am of the considered view that points 1 and 2
formulated hereinabove has to be answered against
petitioner.
Hence, I pass the following:
ORDER
(i) Writ petition is hereby dismissed.
(ii) Order dated 28.04.2009, Annexure –J is
hereby affirmed.
(iii) No costs.
(iv) Rule discharged.
Sd/-
JUDGE SBN/DR