IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1311 OF 2018 (S-RES) BETWEEN:
SRI. H. K. NAGARAJA AGED ABOUT 60 YEARS, SON OF MANCHAIAH, ALIAS KARIGOWDA, RESIDING AT NO.80/B, VINAYAKA LAYOUT, KARASAVADI ROAD, MANDYA TALUK AND DISTRICT, RETIRED FIRST DIVISION ASSISTANT, MANDYA URBAN DEVELOPMENT AUTHORITY (MUDA), MANDYA - 571401. ...APPELLANT (BY SRI. S.B. MUKKANNAPPA, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASASOUDHA, BENGALURU - 560001.
2. MANDYA URBAN DEVELOPMENT AUTHORITY (MUDA), MANDYA - 571401. REPRESENTED BY ITS COMMISSIONER ...RESPONDENTS (BY SRI. S.S.MAHENDRA, AGA FOR RESPONDENT No.1) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 12/02/2018 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION No.1672/2018 AND CONSEQUENTLY ALLOW THE WRIT PETITION No. 1672/2018 AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 12.02.2018 passed by the learned Single Judge in Writ Petition No.1672 OF 2018, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner, who was working as First Division Assistant (for short ‘the FDA’) in the 2nd respondent - Mandya Urban Development Authority (for short ‘the MUDA’) approached this Court under Articles 226 and 227 of the Constitution of India, praying to quash the findings of Enquiry Report dated 28.09.2016 in Enquiry No.SCI/19- 2016 and the order dated 7.12.2017 passed by the 1st respondent – State of Karnataka in order No.NAE.454 MyAaPrA 2015 and for a direction to release his statutory and service benefits from the date of his suspension. It is stated that the petitioner was appointed by the 2nd respondent – MUDA and he has put in more than 30 years of service with the 2nd respondent – Authority. The petitioner was in-charge of the accounts section. He was issued with show-cause notice dated 09.10.2015 enclosing articles of charge alleging that during the period of February 2013 to July 2013 he committed misconduct and that he got issued five cheques of Rs.1,00,00,000/- Crore each from the account of MUDA towards investment in Fixed deposits on the false pretext of getting loan facility for MUDA, handed over cheques to private parties, facilitated the misuse of those cheques and received fake fixed deposit receipts which resulted in wrongful loss of Rs.5,00,00,000/- to MUDA. The petitioner replied to the said show-cause notice by reply dated 05.02.2016. Being not satisfied with the explanation offered, the Enquiry Officer was appointed to enquire into the charges leveled against the petitioner. The Enquiry Officer after enquiry submitted his enquiry report dated 28.09.2016. The petitioner was issued with second show cause notice dated 18.11.2016 and the petitioner replied to the second show cause notice on 13.01.2017. The 1st respondent – State Government by order dated 07.12.2017 imposed punishment of dismissal in exercise of its power under Rule 8(viii) of the Karnataka Civil Services (CCA ) Rules 1957. The petitioner aggrieved by the order of punishment of dismissal filed instant writ petition. The learned Single Judge by order dated 12.02.2018 dismissed the writ petition holding that the respondents are legally justified in dismissing the petitioner from service. Hence, the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned Additional Government Advocate for the 1st respondent. Perused the appeal papers.
4. Learned counsel for the appellant would submit that the learned Single Judge without considering the grounds urged erroneously dismissed the writ petition. That the learned Single Judge failed to look into the evidence and the proportionality of punishment. The reasoning assigned by the learned Single Judge is erroneous and contrary to material evidence on record. The Enquiry Officer without appreciating the evidence on record strangely exonerated the Ex-Commissioner of MUDA and held the charge leveled against the petitioner as proved. It is his contention that the Commissioner of MUDA had taken the responsibility of deposit of Rs.5,00,00,000/- and he had handed over the cheques to one Sri. Ramaswamy, Manager, Indian Bank. The petitioner has acted in accordance with the instructions of the Commissioner, hence, there is no material to prove the charge against the petitioner. The petitioner has put in more than 30 years of unblemished service and the petitioner ought not to have been dismissed from service.
5. Per contra, learned Additional Government Advocate for the 1st respondent supports the order of the learned Single Judge. It is contended that the charge leveled against the petitioner is proved based on the cogent evidence on record and that the petitioner was in-charge of the Accounts Section and he has failed to discharge his official duties in a proper manner. On the complaint of the MUDA, the investigation was entrusted to the CBI and the CBI has filed charge-sheet against the petitioner and others in RC.05(A)/2014. Hence, prays for dismissal of the appeal.
6. Having heard the learned counsels for the parties, looking into the nature of the alleged charges and the entire material on record, we are of the view, that the order passed by the learned Single Judge is neither perverse nor erroneous so as to warrant interfere. The petitioner was FDA in 2nd respondent – MUDA, and was in- charge of the entire accounts section. The charge leveled against the petitioner reads as follows :-
“That Shri H.K. Nagaraja, while working as First Division Assistant at Mandya Urban Development Authority, Mandya and being incharge of the Accounts Section of the Authority during the period February, 2013 to July, 2013 committed official misconduct in as much as, he got issued five cheques of Rs.1.00 Crore each from the account of MUDA at Allahabad Bank, Mandya branch towards investment in fixed deposits at Indian Bank, Mandya branch on the false pretext of getting loan facility for MUDA, handed over these cheques to private parties, facilitated the misuse of these cheques and received fake FD receipts which resulted in wrongful loss of Rs.5.00 crores to MUDA.”
The sum and substances of the above charge is that the petitioner got issued five cheques of Rs.1,00,00,000/- each towards investment in the Fixed deposit in Indian Bank on the pretext of getting loan facility, handed over cheques to private parties and received fake Fixed Deposit receipts, which resulted in loss of Rs.5,00,00,000/- to MUDA. In support of the charge, the Disciplinary Authority examined 12 witnesses and 118 documents were marked. On behalf of the delinquent official one witness was examined and Exs.D1 to D9 were marked. The evidence on record would show that the 2nd respondent – MUDA had issued five cheques each for a sum of Rs.1,00,00,000/- drawn on Allahabad Bank to the Indian Bank for investment in fixed deposit, but the said five cheques were handed over to 5 private persons, who had drawn the amount which is clear from the evidence of both the Bank Managers, who have been examined before the Enquiry Officer. It is noted that after the Indian Bank, Mandya is written on the cheques, subsequently Account Numbers of individuals are inserted. The petitioner, who was incharge of the Accounts Section ought to have personally handed over the cheques to the Indian Bank. Seventh witness one Sri. S.N. Lokesh, Accounts Superintendent, MUDA, examined on behalf of the Disciplinary Authority, states that the petitioner was looking after the Accounts Section prior to, he coming to MUDA. He further states that as per the distribution of work Ex.P23, it was the duty of the petitioner to personally hand over to the Bank, the signed letter and cheques to the Bank and to show the fixed deposit receipts to the Commissioner and to file the same. He further states before the Enquiry Officer that after the expiry of the Fixed Deposit period, the petitioner has not placed the same before the Commissioner for further extension or to receive the amount. The Commissioner–Sri.H.S. Shivaram, who has examined himself as DW.1 has categorically stated that the petitioner was looking after the entire Accounts Department, and the cash book, cheque book and related books were in the custody of the petitioner. He further states that the petitioner on the pretext of getting loan to the MUDA, which requires certain amount to be deposited in Fixed Deposit, got issued five cheques of Rs.1,00,00,000/- each, which were handed over to the petitioner, who in turn had placed fake Fixed Deposit receipts. Therefore, on examination of the material on record, it is seen that there is sufficient material to hold that the charge is proved as against the petitioner. As contended by the petitioner that the findings are erroneous and arbitrary, cannot be accepted. From looking into the above evidence, the contention that the petitioner acted according to the instruction of the Ex-Commissioner, MUDA, also cannot be accepted.
7. The scope of interference in a matter of departmental enquiry under Article 226 of the Constitution of India is very limited. The Hon'ble Supreme Court in a case reported in the case of APPAREL EXPORT PROMOTION COUNCIL v/s A.K.CHOPRA reported in (1999) 1 SCC 759 at paragraphs 16 and 17 has held as follows:
“16. The High Court appears to have over- looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the
adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well- settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans, observed :
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.”
17. Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review, must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority.”
8. The learned Single Judge relying upon decision in UNION OF INDIA AND OTHERS Vs. P. GUNASEKARAN [(2015) 2 SCC 610] was of the opinion that under Article 226 of the Constitution of India, the Court is not permitted to re-appreciate the evidence and to interfere with the conclusions in the enquiry. The relevant portion of the said decision at paragraphs 19, 20 and 21 has held as follows:-
“19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, ipenness, sincerety, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values 21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India, Union of India v. G.Coop. Bank v. Employees Assn. Coal India Ltd. vs. Mukul Kumar Choudhuri and the recent one in Chennai Metropolitan Water Supply.”
9. Keeping in mind the principles laid down by the Hon’ble Supreme Court ,we are of the view, that the order passed by the learned Single Judge is in accordance with law and no ground is made out to interfere with the said order. Accordingly, writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* CT:bms