IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF AUGUST 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.772/2014 (S-R) BETWEEN :
SRI. M. R. RANGASWAMY S/O. M. L. RAMEGOWDA, AGED ABOUT 52 YEARS, SECOND DIVISION CLERK (U/S) CITY CIVIL COURT, BANGALORE, R/AT NO.13, ‘A’ BLOCK NGO QUARTERS, RAJAJINAGAR, 6TH BLOCK, BANGALORE-560044. ... PETITIONER (BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL WITH SRI A. K. SUBBAIAH, ADV.) AND:
1. THE REGISTRAR (VIGILANCE) HIGH COURT OF KARNATAKA, BANGALORE-560001.
2. THE PRINCIPAL CITY CIVIL & SESSIONS JUDGE BANGALORE-560001, & INQUIRING AUTHORITY. ... RESPONDENTS (BY SMT. SHILPA S. GOGI, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.10.2013 PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-B AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.08.2017, POSTED FOR BEING SPOKEN TO ON 19.08.2017, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Aggrieved by the order dated 11.10.2013, passed by the Registrar (Vigilance), High Court of Karnataka, whereby the petitioner has been punished with compulsory retirement from service, the petitioner has approached this Court.
2. Briefly the facts of the case are that while the petitioner was working as a Second Division Assistant in the City Civil Court, Bengaluru, one Mr. Mylarappa filed a complaint against him. Mr. Mylarappa alleged that the petitioner was collecting money from the public for running a chit fund. He claimed that he had paid the petitioner a total sum of Rs.30,000/-, by paying Rs.1,000/- per month, from 27.4.1997 to 29.03.1999. The payment was made both by cash and by cheques. According to the complainant, the petitioner had promised him that he would give the benefit of the chit amount to the complainant after the completion of the last chit. However, despite his repeated request to pay the same, the petitioner had declined to do so.
3. On the basis of the said complaint, a departmental enquiry was initiated against the petitioner. On 26.03.2001, the petitioner was served with Articles of Charges. Since the petitioner denied the charges, on 23.04.2001, the Disciplinary Authority appointed the II Additional City Civil and Sessions Judge, Bangalore, as the Enquiry Officer under Section 11 (2) of the Karnataka Civil Services (CCA) Rules, 1957. On behalf of the Department, two witnesses, namely the complainant, Mr. Mylarappa, and Mr. G. Girish Kumar, were examined. The department also submitted two documents. The petitioner also examined two witnesses, namely himself as DW-1, and one Mr. Rajesh as DW-2. After going through the oral and documentary evidence, the Enquiry Officer found the petitioner guilty of the alleged charge.
4. On 18.10.2003, the Disciplinary Authority issued the second show-cause notice to the petitioner. After giving an opportunity of hearing to the petitioner, by order dated 26.4.2008, the Disciplinary Authority imposed the punishment of withholding of two future increments without cumulative effect under Rule 8 (3) of the KCS (CC & A) Rules, and also withholding promotion to the next higher cadre for one year from the date of order, or from the date on which the petitioner becomes eligible to promotion, whichever was later.
5. Since the petitioner was aggrieved by the order dated 26.04.2008, he filed a departmental appeal. The said appeal was placed before the concerned Administrative Judge of the High Court. The learned Administrative Judge, however, was of the opinion that the Disciplinary Authority was "too liberal" in imposing the punishment. Therefore, the petitioner was given an opportunity of hearing before enhancing the punishment. According to the order dated 23.09.2013, the learned Administrative Judge was of the opinion that considering the Government Circular dated 14.09.2001, the petitioner should be compulsorily retired from his service. Consequently, the learned Administrative Judge, as the Appellate Authority, enhanced the punishment to compulsory retirement. Resultantly, by order dated 11.10.2013, the petitioner has been compulsorily retired from his service. Hence, the present petition before this Court.
6. Although Mr. Dhyan Chinnappa, the learned Senior counsel for the petitioner, has raised a number of contentions, but this case can be decided on his frontal attack, namely that while the Disciplinary Authority had imposed the punishment of withholding of two future increment without cumulative effect, and withholding promotion for a period of one year to the higher cadre, the Appellate Authority has disagreed with the said punishment. In turn, the Appellate Authority has enhanced the punishment to compulsory retirement from service. However, while enhancing the punishment, the Appellate Authority has not given any cogent reasons for doing so. The Appellate Authority has merely relied on a Government Circular dated 14.09.2001, where different punishments have been prescribed for different misconducts. Serial No.16 of the said Circular deals with the misconduct of "receiving donations, or funds or to collect the funds in another way by cash or by terms or other collections by violating the provisions of KCS (Conduct) Rules, 1966". The punishment provided for the said misconduct is "Lowering the Time bound Scale of the post to the lower level". However, Serial No.18 deals with a more grave misconduct and prescribes a harsher penalty. It deals with the misconduct of "involving in any business or trade or any employment by violating the provisions of KCS (Conduct) Rules 1966." And the harsher penalty is "Compulsory Retirement from the Government Service".
7. According to the charge-sheet, the petitioner was involved in collecting money while running a chit fund transaction. There was no charge that he was running a "business". Moreover, the complainant had clearly stated in his deposition that he had never attended any meeting of the chit fund. Furthermore, although the complainant claimed that about 20 to 30 persons were involved in giving money to the petitioner for the purpose of running a chit fund, but not a single person was identified by the complainant. Furthermore, the Department did not examine any other person who claimed that the petitioner was running a "business". Therefore, the Enquiry Officer was justified in concluding that the petitioner is guilty of "raising funds, or other collections in cash without seeking the previous sanction of the Government. His misconduct is prohibited by Rule 13 of the KCS (Conduct) Rules 1966". Thus, according to the Enquiry Officer, the petitioner's misconduct fell within the scope and ambit of Serial No. 16 of the Circular.
8. Furthermore, while disagreeing with the punishment imposed by the Disciplinary Authority, the Appellate Authority has not given any reasons for concluding that it is not merely a case of “collecting funds”, but is a case of doing "business". Without assigning any reasons, the Appellate Authority has mechanically brought the case under Serial No. 18 of the Circular. The Appellate Authority has merely concluded that "looking to the gravity of the charge, the petitioner deserves to be compulsorily retired from the service". Therefore, the order passed by the Appellate Authority suffers from being a non-speaking order. Hence, it deserves to be set aside. In order to buttress the plea that giving of a reasoned order is part of principles of natural justice, and is an essential requirement before an adverse order can be passed, the learned Senior Counsel has relied on the case of CCT v. Shukla & Bros [ (2010) 4 SCC 785].
9. On the other hand, Ms. Shilpa S. Gogi, the learned HCGP, has pleaded that the Appellate Authority has relied on the Circular dated 14.09.2001, to conclude that the petitioner was involved in "business" of chit fund. Therefore, in order to give clarity in the matter of imposition of sentence on public servants, and taking into consideration the gravity of the misconduct committed by the petitioner, the Appellate Authority has imposed the more grave punishment of compulsory retirement. Thus, the Appellate Authority has given cogent reasons for imposing the punishment of compulsory retirement upon the petitioner. Hence, the learned HCGP has justified the impugned order.
10. Heard the learned counsel for the parties, and perused the impugned order.
11. The principles of natural justice have an ancient ancestry, and a modern application. Besides the first two principles of natural justice, namely that a person cannot be a judge in his own case (the rule against bias), and to hear the other side (audi alteram partem), a third principle has also been added in modern times: to give reasons for one's decision. Since both judicial and administrative orders adversely affect the lives of the people, therefore the parties involved in the lis, or parties before an Administrative Authority have a right to know the reasons why a particular order has been passed against one of the parties. The reasons also reveal the mind of the authority. Since a judicial, quasi-judicial, and an administrative order are subject to a challenge before a higher authority, it is imperative that reasons be stated which would clearly reveal the mind of the author. In case, the impugned order does not contain any reasons, both the parties to the dispute, and the Appellate Authority would be at a loss. Therefore, principles of natural justice and procedural fairness demand and dictate that the reasons for passing an order should clearly be expressed in the order itself. Furthermore, to state a conclusion without reason is not to fulfill the requirement of a reasoned decision. For, conclusions do not reveal the reasons. It is the reasons which reveal the basis on which a conclusion is drawn. Thus, it is reasons which are fundamental, and essential for a speaking order.
12. In the present case, the petitioner was charged for indulging a chit fund "transactions" and for “collecting funds”. The petitioner was not charged for indulging in a "business". Moreover, the complainant had merely stated that he had paid the petitioner Rs.30,000/- mostly in cash, and twice through cheques. The Disciplinary Authority had concluded that the petitioner had indulged in the misconduct of collecting "funds", that too, without the prior approval of the Government. Thus, the Disciplinary Authority had concluded that the petitioner had committed the misconduct of “collecting funds”. The said conclusion is justified as the complainant had clearly stated that he had never attended a chit fund meeting. Moreover, although the complainant had claimed that “petitioner was collecting chit fund amount from other persons", the complainant had not named a single person who was giving any chit fund amount to the petitioner. Furthermore, the department had not examined any other witness who would depose that he, too, had given any amount to the petitioner for carrying out the chit fund business. Therefore, the Disciplinary Authority was justified in concluding that the petitioner is guilty of “collecting funds", and in imposing punishment of withholding of two increment without cumulative effect, and denying promotion for one year.
13. The Government Circular dated 14.09.2001 does prescribe different punishments to be meted out to Government Servants for different kinds of misconduct. Serial No.16 and Serial No.18 are as under:
16 Receiving donations or involving in collection of funds or to collect the funds in other way by cash or by terms or other collections by violating the provisions of KCS (Conduct) Rules, 1966 Lowering the time bound scale of the post to the lower level 18 Involving in any Business or Trade or any employment by violating the provisions of KCS (Conduct) Rules, 1966 Compulsory retirement from Government Service 14. A bare perusal of the Circular clearly reveals that Serial Number 16 deals with minor misconduct of "collecting funds", whereas Serial Number 18, deals with the more grave misconduct of doing "business, or running a trade". Therefore, before bringing the alleged misconduct of the petitioner into the more grave misconduct, spelt out in Serial Number 18, reasons have to be assigned by the Appellate Authority. For, the Appellate Authority is required to make a distinction between "collecting funds", and "doing business". Until and unless this fine distinction is made, the Appellate Authority would not be justified in imposing the harsher punishment of compulsory retirement upon the petitioner. In catena of cases, the Hon'ble Supreme Court has opined that before the harshest penalties of termination, removal, or compulsory retirement can be imposed, reasons have to be assigned by the Authority imposing such punishment.
15. The reasons assigned by the Appellate Authority are that "considering the gravity of the offence, and wanting to keep parity in imposing the sentence, the harshious penalty of compulsory retirement is imposed." However, as the Appellate Authority has failed to distinguish between "collecting funds", and "doing business", it has failed to give reasons for its conclusion that the misconduct committed by the petitioner is a grave one. Therefore, the conclusion that "considering the gravity of misconduct" is without any reason.
16. Before one can deal with the parity of sentence, the Appellate Authority has to justify, and to give reasons as to how the case falls within the scope and ambit of Serial Number 18 of the Circular dated 14.09.2001. Since, the Appellate Authority has failed to give reasons, the impugned order suffers from being a non-speaking order.
17. For the reasons stated above, the order dated 11.10.2013 is set aside. The case is remanded back to the Appellate Authority with a direction to reconsider the entire case, to give an opportunity of personal hearing to the petitioner, before passing a reasoned order. The said exercise shall be carried out within a period of two months from the date of receipt of the certified copy of this order. Since, the order dated 11.10.2013 is set aside, the petitioner shall be re-instated in service. But he shall not be entitled to any back wages, or to any consequential benefits. Since the petitioner was under suspension during the course of the enquiry, he shall continue to be under suspension till the order is passed by the Appellate Authority. No order as to costs.
Sd/- JUDGE bk/Np