IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT PETITION Nos.60383-60385 OF 2014 (GM-KLA) BETWEEN:
SRI DINESH SON OF B. KHANNA, AGED ABOUT 41 YEARS WORKING AS JUNIOR ENGINEER (ELECTRICAL) MANGALURU ELECTRICITY SUPPLY COMPANY LIMITED (MESCOM) TRANSMISSION LINE SECTION KPTCL, JOG FALLS SHIVAMOGGA DISTRICT-577401.
(BY SRI.R.S. RAVI, ADVOCATE FOR SRI.B ROOPESHA, ADVOCATE) AND:
1. KARNATAKA LOK-AYUKTA REPRESENTED BY ITS ... PETITIONER ADDITIONAL REGISTRAR OF ENQUIRIES-3 M.S. BUILDING BENGALURU -560001.
2. THE UPALOKAYUKTA MULTI STORIED BUILDING DR. AMBEDKAR VEEDHI BENGALURU – 560001.
REPRESENTED BY ITS REGISTRAR.
3. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED KAVERI BHAVAN, K.G. ROAD BENGALURU - 560009 REPRESENTED BY ITS MANAGING DIRECTOR.
... RESPONDENTS (BY SRI.VENKATESH S ARABATTI, ADVOCATE FOR RESPONDENT Nos.1 AND 2 SRI G.I.GACHCHINAMATH, ADVOCATE FOR RESPONDENT No.3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS RELATING TO THE ENQUIRY REPORT DATED 15.02.2014 PASSED BY THE R-1 VIDE ANNX-M AND THE DECISION TAKEN BY THE R-3 FOR COMPULSORY RETIREMENT OF THE PETITIONER, IN THE 91ST BOARD MEETING WHICH WAS HELD ON 18.11.2014 IN SUBJECT NO.91/23 VIDE ANNX-R.
S.G.PANDIT J., PASSED THE FOLLOWING:
ORDER Petitioner is before this Court under Articles 226 and 227 of the Constitution of India praying for the following reliefs:-
“i) Call for the records relating to the enquiry report dated:15/02/2014 passed by the 1st respondent in No.Lok/ARE-3/ENQ-43/2008-09 Vide Annexure-M and the decision taken by the 3rd respondent for compulsory retirement of the petitioner, in the 91st Board Meeting which was held on 18/11/2014 in subject No.91/23 Vide Annexure –R.
ii) Issue any appropriate order or direction or a Writ in the nature of Certiorari and to quash Enquiry report dated:15/02/2014 passed by the 1st respondent in No.Lok/ARE-3/ ENQ-43/2008-09 Vide Annexure-M, the recommendation letter dated:25/02/2014 issued by the 2nd respondent in No.Lok/ARE- 3/ENQ-43/2008 Vide Annexure-N and the decision taken by the 3rd respondent for compulsory retirement of the petitioner, in the 91st Board Meeting which was held on 18/11/2014 in subject No.91/23 Vide Annexure-R.”
2. Annexure-M is enquiry report dated 15.02.2014, Annexure-N is recommendation of the 2nd respondent - Upa-lokayukta dated 25.02.2014 and Annexure-R is Resolution dated 11.12.2014 of the 3rd respondent - Board to compulsorily retire the petitioner.
3. Petitioner was working as Junior Engineer (Electrical) in the 3rd respondent – Karnataka Power Transmission Corporation Limited (for short ‘the KPTCL’). He was appointed on 01.09.1997 as Junior Engineer. When he was working as Junior Engineer – (Electrical), Transmission Line Section, Jog falls, one A. Manjappa – Class I Contractor was entrusted with the work of drawing new electrical lines in the place of old ones. For the work entrusted to the contractor, the materials were supplied and the contractor on supply of materials was to execute the work. It is stated that the said contractor on 03.04.2006 had borrowed a sum of Rs.1,000/- from the petitioner. The petitioner had issued notice to the said contractor for return of materials which had not been returned on completion of certain works and the notice had indicated that failing which, action would be initiated against him. The said contractor filed false complaint before the respondent Nos.1 and 2 stating that the petitioner had demanded a sum of Rs.2,000/- and he had paid Rs.1,000/- on 22.07.2006 and the petitioner is demanding for balance amount of Rs.1,000/-. The case was registered against the petitioner and based on the complaint, trap was laid while the petitioner was receiving Rs.1,000/-. Immediately the petitioner gave voluntary statement that the contractor had paid Rs.1,000/- towards return of the loan taken by him.
4. Based on the incident of trap the 2nd respondent submitted report under Section 12(3) of the Karnataka Lokayukta Act, 1984, recommending initiation of departmental enquiry against the petitioner. The 3rd respondent – Board on examination of the report submitted by the 2nd respondent under Section 12(4) of the Act and by its order dated 13.01.2009 referred the enquiry to the 2nd respondent under Rule 14(A) of the Karnataka Power Transmission Corporation Limited Employees’ (Classification, Disciplinary Control and Appeal) Regulations, 1987. The Enquiry Officer nominated by the 2nd respondent issued article of charges on 25.04.2009 against the petitioner. The Enquiry Officer conducted detailed enquiry and submitted his report holding the charge as proved. The 2nd respondent with his recommendation forwarded the enquiry report to the 3rd respondent – Board. The 3rd respondent - Board issued second show-cause notice dated 10.07.2014 to the petitioner enclosing the report as well as the recommendation of the second respondent. The petitioner submitted his reply to the second show-cause notice dated 01.09.2014. The 3rd respondent - Board in its meeting dated 18.11.2014 resolved to impose the penalty of compulsory retirement under Regulation 9(6) of the Regulations. The petitioner aggrieved by the enquiry report, the recommendation of the 2nd respondent Upa- lokayukta as well as the resolution to compulsorily retire the petitioner, is before this Court in this petition.
5. The respondent No.3 has filed its statement of objections stating that after giving ample and adequate opportunity to defend the case the enquiry was conducted. The petitioner is imposed with penalty of compulsory retirement for the proved mis-conduct of receiving illegal gratification. Hence, prays for dismissal of the writ petition.
6. Heard the learned counsel Sri R.S. Ravi for the petitioner, learned counsel for the respondent Nos.1 and 2 and respondent No.3. Perused the writ petition papers.
7. Learned counsel for the petitioner submits that a false case was foisted against the petitioner and trap was laid. The contractor had taken hand loan from the petitioner for which the contractor had issued acknowledgment dated 03.04.2006 which is at Annexure – C. The petitioner had issued notice to the contractor – Sri. A. Manjappa to return the excess materials within seven days failing which, to initiate action. The said notice is the root cause for the incident. There is no evidence to prove the charge. The panch witness have not supported the case of the prosecution and their evidence is not properly appreciated by the Enquiry Officer. The Enquiry Officer particularly, has not looked into the evidence of DW.2 – Assistant Engineer. The learned counsel further contends that to the cadre of Junior Engineer, the Superintendent Engineer is the Disciplinary Authority and in the case on hand, the Appellate Authority the Corporation itself has inflicted the punishment, thereby, the petitioner is denied of an opportunity of appeal. In support of his contention the learned counsel for the petitioner relies on the judgments of the Hon’ble Supreme Court in A SUDHAKAR Vs. POST MASTER GENERAL HYDERABAD AND ANR reported in (2006) 4 SCC 348 and in SURJIT GOSH Vs. CHAIRMAN AND MANAGING DIRECTOR, UNITED COMMERCIAL BANK AND OTHERS reported in (1995) 2 SCC 474. Further the learned counsel contends that the punishment imposed is too harsh and is not commensurate with the alleged charge. The facts of the present case is that the 3rd respondent ought to have been lenient and imposed a lesser punishment. In support of his contention he relies on the decision of the Hon’ble Supreme Court in RANJIT THAKUR Vs. UNION OF INDIA AND OTHERS reported in (1987) 4 SCC 611 .
8. Per contra, learned counsel for the respondent Nos.1 and 2 would submit that the petitioner was trapped while receiving a sum of Rs.1,000/- on 24.07.2006 and his hand has turned pink. The material on record prove that the petitioner has received illegal gratification from the complainant – contractor Sri. A. Manjappa. It is further submitted that the contention of the learned counsel for the petitioner that the petitioner is deprived of opportunity of an appeal, is liable to rejected in view of Rule 14(A) of the Regulations. It is submitted that the 2nd respondent had recommended for imposing the punishment of removal and the 3rd respondent – Corporation has imposed a lesser punishment of compulsory retirement. The counsel for the 3rd respondent submits that the petitioner was given opportunity to defend his case and punishment imposed is commensurate with the gravity of charge.
9. At the relevant point of time, the petitioner was working as Junior Engineer (Electrical), Transmission Lines Section, Jogfalls. It is also an admitted fact that the complainant Class I Contractor Sri. A. Manjappa was entrusted with the work relating to installation of transformer and drawing new electrical lines in place of old ones. The said Sri. A. Manjappa filed complaint before the respondents 1 and 2 stating that the petitioner demanded Rs.2,000/- for an official favour, out of which Rs.1,000/- was paid and demanding for the balance amount of Rs.1,000/-. On 24.07.2006 the said complaint was registered and the trap was laid, while the petitioner was receiving Rs.1,000/- from the complainant – Sri. A. Manjappa. As stated above the enquiry was entrusted to the 2nd respondent - Upa-lokayukta in respect of the incident. The Enquiry Officer nominated by the 2nd respondent – Upa-lokayukta issued articles of charges. The charge against the petitioner reads as follows :-
“That you the DGO Sri. Dinesh, while working as Junior Engineer, (Electricals), O & M Unit, MESCOM, Avinahalli, Sagar Sub-Division demanded and accepted an illegal gratification of Rs.1,000/- on 24.07.2006 from the complainant Sri A. Manjappa S/o. Amruthappa, aged 39 years, Electrical Contractor, R/o Near Narayana Ashrama (Agadimat) Sagar Town (hereinafter referred to as complainant) to get the bills of complainant sanctioned and thereby you have failed to maintain absolute integrity, devotion to duty and also did an act of unbecoming of the Board Employee under Regulation 3(1)(i) to (iii) of KEB) KPTCL, Employees Service (Conduct) Regulation, 1988 read with Regulation No.9 of the KEB Employees (Classification, Disciplinary, Control and Appeal) Regulation, 1987.”
10. The Disciplinary Authority examined PWs.1 to 4 and marked Ex.P.1 to 16 and the petitioner examined himself as DW.1 and also examined Assistant Engineer as DW.2 and got marked Exs.D.1 to D.10 in his favour. Both the hands of the petitioner and the shirt pocket turned pink and the trap was successful. The shadow witnesses have stated that they have heard the conversation that took place between the petitioner and the complainant. The complainant PW.3 in his evidence stated that when he asked the petitioner to prepare bills for the completed work the petitioner demanded Rs.2,000/- as bribe for preparing the Bills. The petitioner has cross-examined the complainant but nothing is elicited in favour of the petitioner. The complainant in his evidence has denied the suggestion of the petitioner that on 24.07.2006 he had paid Rs.1,000/- towards the repayment of loan. The evidence of DW.2 would not in any way assist the case of the petitioner. The Enquiry Officer on consideration of the material on record has held that the charge is proved against the petitioner. The Enquiry Officer in his report has noted that in reply to the charge memo, the petitioner has not taken the defence of repayment of hand loan received by the complainant on 24.07.2006. On analyzing the evidence on record the Enquiry Officer was of the view, that the amount received by the petitioner was towards illegal gratification and held that the charge is proved. The 2nd respondent based on the report of the Enquiry Officer recommended punishment of removal from service, but the 3rd respondent instead of imposing the punishment of removal has imposed a lesser punishment of compulsory retirement. The charge of acceptance of illegal gratification, is proved. For the proved misconduct of accepting illegal gratification, major punishment is warranted.
11. Learned counsel for the petitioner has contended that in view of the order passed by the 3rd respondent – Corporation, the petitioner has lost an opportunity of appeal. It is his case that to the cadre of Junior Engineer the appointing authority is Superintending Engineer. Superintending Engineer ought to have passed order of punishment and he could have filed an appeal against such an order. The enquiry against the petitioner is not an enquiry in the normal course. The petitioner was trapped by the Lokayukta and investigation was conducted by the Lokayukta. After completion of investigation the Lokayukta submitted report under Section 12 (3) of the Lokayukta Act to the 3rd respondent. The 3rd respondent examined the said report as required under Section 12 (4) of the Act. The 3rd respondent by order dated 13.01.2009 referred the enquiry to the 2nd respondent – Upa-lokayukta under Rule 14(A) of the Regulation. Rule 14(A) of the Regulation reads as follows :-
“14(A) SPECIAL PROCEDURE IN CERTAIN CASES OF MISCONDUCT:
1) The following provisions shall, not- withstanding anything contained in Regulations – 10 to 11(A) and 13 be applicable for purposes of proceeding against Corporation employees whose alleged misconduct has been investigated into by the Vigilance Commission / Lokayukta / Upa-lokayukta either suo-moto or on a reference from the Corporation or from any other authority, viz.”
a) Where on investigation into any allegation against:
i) a member of the Corporation services Group A, B, C or D in respect of an allegation of a serious nature; the Vigilance Commissioner / Lokayukta / Upa-lokayukta or any officer of the Vigilance Commission / Lokayukta / Upa- lokayukta authorized by him in writing under sub-rule-2 of Rule-5 of Karnataka State Vigilance Commission’s Rules, 1980 / Rule-12 of the Karnataka Lokayukta / Upa-lokayukta Act 1948 is of the opinion that ‘Disciplinary Proceedings’ shall be taken, he shall forward the record of investigation along with his recommendations to the Corporation, and the Corporation after examining such records, may either direct an inquiry into the case by the Vigilance Commission / Lokayukta / Upa- lokayukta or direct the appropriate ‘Disciplinary Authority’ to take action in accordance with Regulation-11.
b) Where the Vigilance Commission / Lokayukta / Upa-lokayukta is directed to hold an inquiry into a case under clause (a), the inquiry may be conducted either by the Vigilance Commissioner / Lokayukta / Upa- lokayukta or by an Officer of the Vigilance Commission / Lokayukta / Upa-lokayukta authorised by the Vigilance Commissioner / Lokayukta/ Upa-lokayukta to conduct the inquiry.
Provided that the inquiry of a case relating to a Corporation employee shall not be conducted by an officer lower in rank than that of such Corporation employee;
c) The Vigilance Commissioner / Lokayukta / Upa-lokayukta or the officer authorised to conduct the inquiry under clause (b) shall conduct the inquiry in accordance with the provisions of Sub-Regulation-2 to 20 and Sub- regulation-23 of Regulation-11 and for the purposes of conducting such inquiry, shall have the power of he ‘Disciplinary Authority’ referred to in the said Regulation.
d) After the inquiry is completed, the records of the case with the findings of the inquiring officer and the recommendations of the Vigilance Commissioner / Lokayukta/ Upa- lokayukta shall be sent to the Corporation.
e) On receipt of the records under clause (d), the Corporation shall take action in accordance with the provisions of Sub-Regulation-21 and Sub-Regulation-23 of Regulation-11 and Regulation-11(A), and in all such cases the Corporation shall be competent to impose any of the penalties specified in Regulation-9.
e)* However, in respect of cases of ‘Criminal Prosecution’ investigated either by the Lokayukta or by any other Authorities, the ‘Appointing Authorities’ specified in the Schedules to these Regulations, competent to impose the penalty of removal on the accused employee shall, if they deem fit after verifying the records, accord sanction to prosecute the accused employee. On the outcome of the said criminal case, the ‘Appointing Authority’ of the post of the said criminal case, the ‘Appointing Authority’ of the post of the said employee shall be competent to take further action.
(*Sub-clause included vide Order No:KPTCL/ B37/B21/5710/2001-02 dated 20.03.2002.) Explanation: In this Regulation, the expressions ‘Vigilance Commission/ Lokayukta/ Upa-lokayukta’ and ‘Vigilance Commissioner / Lokayukta / Upa-lokayukta’ shall respectively have the meanings assigned to them in the respective Rules/ Act and further amendments made to the above from time to time.”
When an investigation is made by the Lokayukta or Upa- lokayukta in respect of an allegation and is of the opinion that Disciplinary proceedings shall be initiated, on report submitted by the Lokayukta or Upa-lokayukta, the Corporation can either direct an enquiry by the Lokayukta or Upa-lokayukta or direct the enquiry by the appropriate Disciplinary Authority. In the case on hand, the enquiry is entrusted to the 2nd respondent Upa-lokayukta. When enquiry is entrusted to Upa-lokayukta and enquiry report is received along with findings of the Enquiry Officer and recommendations of the Lokayukta or Upa-lokayukta, action shall be initiated under Sub-Regulation (e) of Regulation 14(A) of the Regulation. Under Sub-Regulation (e) only Corporation shall be competent to impose any of the penalties specified in Regulation 9 of the Regulations. In the case on hand, also on investigation by the UpaLokayukta, UpaLokayukta submitted report recommending Disciplinary proceedings. The Corporation entrusted the enquiry to the 2nd respondent Upa-lokayukta. On receipt of the enquiry report the Corporation has taken action in accordance with Sub- Regulation (e) of Regulation 14(A) of the Regulations. Hence, there is no merit in the contention of the Learned counsel for the petitioner that the Superintendent Engineer ought to have taken decision on the enquiry report and not the Corporation. The decision cited supra in support of his contention would lay down a principle that in the normal circumstances, if the Appellate Authority itself passes an order or punishment then, the delinquent would be deprived of an opportunity to file an appeal. But in the instant case, the facts are entirely different and in view of Regulation 14(A) of the Regulations, the 3rd respondent - Corporation becomes Disciplinary Authority. Hence, those decisions would not assist the petitioner. Lastly the counsel for the petitioner contended that the punishment imposed is not commensurate with the alleged charge. The charge against the petitioner is acceptance of illegal gratification, which is proved in the enquiry. The Upa- lokayukta 2nd respondent had recommended punishment of removal from service. But the 3rd respondent Corporation has imposed a lesser punishment of compulsory retirement for the best reasons known to it. Hence, we do not find any merit in the contention of the petitioner.
12. The petitioner has not made out any ground to interfere with the Enquiry Officer’s report, recommendation of the 2nd respondent and Resolution of the Corporation to compulsorily retire the petitioner. Accordingly, writ petitions are dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* ct:bms