IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE R.DEVDAS WRIT PETITION NO.42040 OF 2017 (S-RES) BETWEEN SRI K.SRINIVASA S/O SRI.KEDIRAPPA, AGED ABOUT 70 YEARS, NO.92, BELAKU NILAYA, 2ND CROSS, BALAJI LAYOUT, SUBRAMANYAPURA POST, UTTARAHALLI, BANGALORE-560 061. ... PETITIONER (BY SRI L.M.CHIDANANDAYYA, ADVOCATE) AND M/S. MYSORE MINERALS LIMITED (A GOVT OF KARNATAKA UNDERTAKING) A COMPANY REGISTERED UNDER THE COMPANIES ACT, REPRESENTED BY ITS MANAGING DIRECTOR T.T.M.C. BUILDING, ‘A’ BLOCK, 5TH FLOOR, B.M.T.C. SHANTHINAGAR, BANGALORE-560 027. ... RESPONDENT (BY SRI A.K.VASANTH AND D.V.GIRISH, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.7.2017 PASSED BY RESPONDENT AT ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
Though the matter is coming up for ‘Hearing on Interlocutory Application’, with the consent of the learned counsels on both the sides, the matter is heard and disposed of finally.
2. The petitioner was an employee of the respondent Company, which is an undertaking of the Government of Karnataka. It is an admitted fact that the petitioner attained the age of superannuation on 31.08.2005, while he was holding the post of Deputy General Manager. Just before the petitioner retired from the services of the respondent Company, on 21.6.2004, a charge sheet was issued alleging that the petitioner supplied 13142.118 metric tones of iron ore fines from Jambunathanahalli Iron Ore Mines to M/s.Integral Logistic Company Pvt. Ltd., through Narayana Mines Private Limited without office order from the head office and without collecting the cost of the materials. Admittedly, an inquiry was initiated and by order dated 21.06.2005, issued by the Disciplinary Authority and Managing Director of the respondent company, the petitioner was exonerated from the charge leveled against him. It appears that thereafter the Karnataka Lokayuktha submitted a report to the State Government on 18.12.2008, where once again allegation is made against the petitioner that he has caused financial loss of Rs.14,84,31,833/- to the respondent Company along with the Managing Director of the Company and therefore fresh inquiry was ordered to be initiated against the petitioner.
3. The petitioner contends that at the instance of the Hon’ble Lokayuktha and the State Government, the Managing Director of the respondent Company submitted a report to the State Government, wherein it is stated that the petitioner has not caused any financial loss to the respondent Company. The said report is dated 20.03.2009. Nevertheless, a show-cause notice was issued to the petitioner and the petitioner approached this Court in W.P.No.11291/2010. The said writ petition was disposed of by the Division Bench on 06.02.2015 directing the petitioner to participate in the inquiry and the Inquiry Officer was directed to complete the inquiry proceedings expeditiously. Therefore, the petitioner participated in the disciplinary inquiry proceedings and the Inquiry Officer, after conducting the inquiry, submitted a report on 19.02.2016, once again exonerating the petitioner on both the charges that were leveled against the petitioner. Since the respondent did not pass any orders on the report that was submitted by the Inquiry Officer, the petitioner was once again forced to approach this Court in W.P.No.40192/2010. By order dated 03.03.2017, the said writ petition was disposed of while directing the respondents to take a decision on the report of the Inquiry Officer and consider the case of the petitioner and release all terminal benefits within a period of three months. The petitioner once again made a representation dated 24.03.2017 to the respondent Company to accept the report of the Inquiry Officer and release the terminal benefits, as the petitioner is suffering from Cancer. Instead of accepting the report submitted by the Inquiry Officer, the Disciplinary Authority of the respondent Company issued a second show cause notice dated 08.06.2017 stating that the inquiry conducted by the Inquiry Officer was vitiated on account of certain discrepancies. The discrepancies have been specified in the show cause notice. Thereafter, by communication dated 27.07.2017, another Inquiry Officer was appointed to conduct the inquiry afresh. Being aggrieved, the petitioner is before this Court.
4. Learned counsel for the petitioner submits that the impugned communication at Annexure-A and the second show cause notice issued by the respondent Company is without authority of law. The learned counsel relied upon a judgment of this Court in the case of M.Venkatappa /vs./ Bangalore Mahanagara Palike and another reported in ILR 2005 KAR 5042.
5. The learned counsel submits that in the case of M.Venkatappa (supra), the disciplinary authority, without taking any action on the report submitted by the Enquiry Officer, proceeded to serve another charge sheet on the delinquent officer in respect of the same charge and ordered an enquiry to be conducted by appointing another Enquiry Officer. It is therefore submitted that under similar circumstances, this Court in the case of M.Venkatapa (supra) held that there is absolutely no sanction in law to take recourse to such an action.
6. Learned counsel further relied on another judgment of this Court in the case of Sri Sannegowda /vs./ Managing Director, Karnataka State Road Transport Corporation and Others reported in ILR 2009 KAR 318. Here again, it is submitted by the learned counsel for the petitioner that this Court has held that the Disciplinary Authority has no jurisdiction to initiate a re-enquiry or a fresh enquiry in respect of the very same charges.
7. Reliance is also placed on the judgments of the Hon’ble Supreme Court in the case of Nagaraj Shivarao Karjagi /vs./ Syndicate Bank, Head Office, Manipal and another reported in (1991) 3 SCC 219 and in the case of Nand Kumar Verma /vs./ State of Jharkhand and Others reported in (2012) 3 SCC 580. In the case of Nagaraj Shivarao Karjagi, it is held that advise tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission. Learned counsel for the petitioner relies on this judgment since the respondent company has issued the second show cause notice based on the observation of the Lokayukta and therefore the learned counsel submits that the respondent Company should not have issued the second show cause notice simply because the Hon’ble Lokayukta has opined that inquiry conducted by the Inquiry Officer is vitiated.
8. In the case of Nand Kumar Verma (supra), it is once again reiterated that there is no justification of conducting second enquiry on the very same charges which were earlier been dropped. It is also held that even though the principle of double jeopardy is not applicable, the law permits only disciplinary proceedings and not harassment. It was also held that allowing such practice is not in the interest of public service.
9. Per contra, learned counsel for the respondent Company submits that second show cause notice issued by the respondent Company is not a second inquiry but it is initiation of fresh inquiry since the inquiry conducted by the Inquiry Officer is held to be vitiated for the reasons stated in the second show cause notice. Learned counsel points out to the observations of this Court in the case of M.Venkatappa (supra) which was relied upon by the learned counsel for the petitioner. In the case of M.Venkatappa (supra) Rule 11-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as Rules, 1957) was taken note of, and it was held that the said Rule provides for fresh inquiry from the stage where defects were noticed.
10. Having heard the learned counsels and on perusing the writ papers, the question that arises for consideration is; “whether the second show cause notice dated 08.06.2017 would be considered as a second inquiry as asserted by the learned counsel for the petitioner?”.
11. The sub-clause (1) of Rule 11-A of Rules, 1957, provides that 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 further inquiry according to the provisions Rule 11 as far as may be.
12. The contention of the learned counsel for the petitioner that the issuance of second show cause notice is nothing but a second inquiry initiated by the respondent Company does not hold any water. In the second show cause notice, the Disciplinary Authority has cited the discrepancies that had occurred in the inquiry and therefore a new Inquiry Officer is appointed to inquire into the matter afresh. This cannot be considered as a second inquiry. What the Disciplinary Authority is done is initiation of fresh inquiry or further inquiry on the same charges, which is provided as per Rule 11-A of the Rules. In the case of M.Venkatappa (supra) a co-ordinate bench of this Court has held that if the Disciplinary Authority comes to the conclusion that enquiry is vitiated on account of certain illegalities committed, procedural or otherwise in the conduct of the enquiry he can set aside the findings and remit the matter to the “same Enquiry Officer” to conduct an enquiry afresh from the stage where the defects are noticed. The word used in Rule 11-A is that the matter should be remitted to the Inquiring Authority for further inquiry and report; and the Inquiring Authority shall thereupon proceed to hold ‘further inquiry’ according to the provisions of Rule 11-A as far as may be.
13. On going through the discrepancies pointed out in the second show cause notice dated 08.06.2017, it is seen that the discrepancies are such that a fresh inquiry would be necessary. If the respondent Company is of the opinion that a new Inquiry Officer is necessary to inquire into the matter afresh, this Court cannot interfere with the wisdom of the respondent Company in appointing a new Inquiry Officer.
14. For the reasons stated above, the writ petition deserves to be dismissed and is accordingly dismissed.
15. At this juncture, learned counsel for the petitioner submits that though the petitioner retired in the year 2005, he has not received terminal benefits and he has been representing to the respondent that he has suffering from Cancer and the petitioner is in dire need of funds for his treatment.
16. In that view of the matter, the respondent Company is directed to complete the inquiry as expeditiously as possible and pass an order in accordance with law and at any rate, within an outer limit of four months from the date of receipt of certified copy of this order.
Sd/- JUDGE KLY/