IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.4202 OF 2017 (S-RES) C/W WRIT APPEAL No.4203 OF 2017 (S-RES) IN WRIT APPEAL No.4202 OF 2017:
BETWEEN:
SRI RAJASHEKARAIAH SON OF SRI BETTAIAH AGED ABOUT 47 YEARS DOOR NO.12/2 2ND CROSS, AYYANA SHETTY LAYOUT BYATARAYANAPURA, OPP: KAVIKA MYSRUTU ROAD BENGALURU – 560 026.
ALSO WORKED AS SDA HIGH COURT OF KARNATAKA BENGALURU. ...APPELLANT (BY SRI M.P. SRIKANTH, ADVOCATE) AND:
1. THE HON’BLE CHIEF JUSTICE HIGH COURT OF KARNATAKA BENGALURU -560 001 REPRESENTED BT ITS REGISTRAR GENERAL.
2. THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU -560 001 THE REGISTRAR (ADMINISTRATION) & THE ENQUIRY OFFICER HIGH COURT OF KARNATAKA BENGALURU -560 001 ...RESPONDENTS (BY SRI.S.S. MAHENDRA, AGA) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 09.10.2013 PASSED IN THE WRIT PETITION 2259/2011.
IN WRIT APPEAL No.4203 OF 2017 (S-RES): BETWEEN:
SRI R. BALARAJU SON OF SRI RANGAPPA AGED ABOUT 42 YEARS RESIDENT OF NO.1097/1 3RD MAIN, ‘E’ BLOCK 2ND STAGE RAJAJINAGAR BENGALURU – 560 010 ALSO WORKED AS FDA HIGH COURT OF KARNATAKA BENGALURU. ...APPELLANT (BY SRI M.P. SRIKANTH, ADVOCATE) AND:
1. THE HON’BLE CHIEF JUSTICE HIGH COURT OF KARNATAKA BENGALURU -560 001 REPRESENTED BT ITS REGISTRAR GENERAL.
2. THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU -560 001 THE REGISTRAR (ADMINISTRATION) & THE ENQUIRY OFFICER HIGH COURT OF KARNATAKA BENGALURU -560 001 ...RESPONDENTS (BY SRI.S.S. MAHENDRA, AGA) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 09.10.2013 PASSED IN THE WRIT PETITION 2258/2011.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT Aggrieved by the impugned order dated 09.10.2013 passed by the learned Single Judge in W.P. Nos.2258 and 2259 of 2011, by which the petitions were dismissed, the writ petitioners are in appeal.
2. Since both the writ appeals arise out of a common order passed in the above writ petitions, both the appeals are taken up together and disposed off by this common judgment. I.A.No.1 of 2017 is filed in both the writ appeals for condonation of 1308 days and 1314 days delay respectively in filing the appeals. Both the appeals are heard on merits as well as for condonation of delay.
3. The petitioners filed the Writ Petition No.2258 of 2011 and Writ Petition No.2259 of 2011 respectively under Articles 226 and 227 of the Constitution of India challenging the common order and praying for identical reliefs which are as follows :-
“a) Quash the order bearing HCE No.1117/2008 dated 1.10.2010, passed by the Respondent No.1, vide Annexure-K.
b) Quash the order bearing HCE No.1117/2008 dated 7.12.2010, passed by the respondent No.1, vide Annexure-M.
c) Direct reinstatement of the petitioner into services with all consequential benefits.”
4. Petitioners state that they were working as FDA and SDA respectively in the High Court of Karnataka. The 2nd respondent – the Registrar General, High Court of Karnataka, Bengaluru, by order dated 24.11.2008 kept the petitioners along with one Sri.B.R. Shivaramaiah, Court Officer under suspension alleging serious mis-conduct i.e., extortion of money from the complainant (party), on the pretext that they can manage a case and obtain favourable orders, and harassment to the complainant. In the said order itself Sri. I.S. Antin, Registrar (Administration) was appointed as Inquiring Authority under Rule 17(2) of the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 (for short ‘the Rules’) to enquire into the allegations made against the petitioners. Thereafter on 26.02.2009, the 2nd respondent issued separate articles of charges to the petitioners herein and to one Sri.B. Shivaramaiah, Court Officer. As the Inquiring Authority Sri.I.S. Antin was transferred from the post of Registrar (Administration), the 2nd respondent by order dated 28.04.2009 appointed Registrar (Administration), as Specially Empowered Authority. The petitioners submitted their reply to the charge-memo denying the allegation, wherein they contended that charge is vague, false and baseless. The Inquiring Authority conducted enquiry wherein two witnesses PWs.1 and 2 were examined and documents Exs.P1 to P24 were marked on behalf of the Disciplinary Authority. The petitioners as well as Sri.B.R. Shivaramaiah examined themselves as DWs.1 to 3 and marked Exs.D1 and D2 on their behalf. The Enquiry Officer submitted his report dated 22.10.2009 to the Disciplinary Authority holding that the articles of charge stands proved and they have failed to maintain honesty, integrity and committed an act of unbecoming of a High Court servant which amounts to misconduct. Thereafter, the petitioners were issued with second show-cause notice dated 13.09.2010. On receipt of the same, the petitioners submitted their reply dated 27.09.2010. The Disciplinary Authority by order dated 01.10.2010 imposed punishment of dismissal from service on all the three delinquent officials. The petitioners filed review under Rule 21 of the Rules, against the order of dismissal, which was also dismissed by memo dated 07.12.2010. Assailing both the orders of the Disciplinary Authority and Reviewing Authority the petitioners filed instant writ petitions. The learned Single Judge after hearing both the sides dismissed the writ petitions. While dismissing the writ petitions the learned Single Judge has observed that the petitioners were given sufficient opportunity, cross- examined witnesses and based on material on record, there is nothing to disbelieve the case against the petitioners. Hence the petitioners are in appeal.
5. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the appeal papers.
6. Learned counsel for the appellants would submit that the learned Single Judge committed an error in dismissing the writ petitions of the petitioners without examining the grounds urged by the petitioners. It is contended that identical charge was leveled against the petitioners and one B.R. Shivaramaiah, Court Officer, whereas the learned Single Judge allowed the writ petition of Sri. B.R. Shivaramaiah and set aside the order of dismissal, but dismissed the writ petitions of the petitioners. The petitioners were also entitled for the same relief and treatment as that of B.R. Shivaramaiah, whose order of dismissal was set aside. Further learned counsel submits that the initiation of enquiry proceedings itself is contrary to Rule 17 of the Rules. The learned counsel submits that the enquiry report is based on presumptions, assumptions and surmises and conjectures. There are serious inconsistencies in the report of the Enquiry Officer. Hence, prays for allowing the writ appeals.
7. Per contra, learned AGA would support the order passed by the learned Single Judge and submits that the petitioners cannot seek treatment on par with one Sri.B.R. Shivaramaiah, Court Officer, since there was no evidence against him and the learned Single Judge rightly allowed writ petition in his favour. The scope of interference under Articles 226 of the Constitution of India is very limited and this Court cannot re-appreciate the evidence. The mis-conduct committed by the petitioners is very serious and the Disciplinary Authority has rightly imposed the punishment of dismissal. Thus prays for dismissal of the appeals.
8. Having heard the learned counsels for the parties and on perusal of the appeal papers, we are of the view, that the order of the learned Single Judge would not suffer from either perversity or erroneousness so as to call for interference. The petitioners are imposed with the punishment of dismissal after a detailed departmental enquiry wherein the petitioners cross-examined the witnesses examined on behalf of the Disciplinary Authority and petitioners themselves examined as DWs.2 and 3 before the enquiry officer. The enquiry report would indicate that the petitioners were afforded sufficient opportunity to defend themselves in the enquiry. When it is found that the enquiry is conducted in accordance with rule by providing sufficient opportunity to the delinquent officials, the judicial review would be very limited. The judicial review would be only to find out whether the authority has arrived at the conclusion after following the prescribed procedure and after following the principles of natural justice. 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 recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. 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.”
9. The Hon’ble Supreme Court in the decision of UNION OF INDIA AND OTHERS Vs. P. GUNASEKARAN reported in [(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 of 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.”
10. Keeping in mind the principles laid by the Hon’ble Supreme Court in the above two decisions the contentions of the petitioners shall have to be examined. It is not for this Court under Article 226 of the Constitution of India to re-appreciate the entire evidence on record. It is not the contention of the petitioners that it is a case of no evidence. The adequacy or inadequacy of evidence cannot be gone into in the writ petitions, since it is not an appeal.
11. The learned counsel for the petitioners contended that the initiation of enquiry proceedings itself is contrary to Rule 17 of the Rules. We find no merit in the said contention. Rule 17 (1) to (4) of the Rules, which are relevant for the purpose of the present case reads as follows :-
“17. Procedure for imposing major penalties.-
(1) No order imposing on a Court Servant any of the penalties specified in clauses (iv) to (viii) of Rule 15 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided.
(2) The Disciplinary Authority or any authority specially empowered by it in this behalf (hereinafter this rule referred to as ‘Specially Empowered Authority’) shall frame definite charges on the basis of the allegations which the enquiry is proposed to be held. Such charges together with a statement of the allegations or which they are based, shall be communicated in writing to the Court Servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority or any authority specially empowered by it in this behalf a written statement of his defence and also to state whether he desires to be heard in person.
(3) The Court Servant shall for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify provided that such permission may be refused if, for the reasons to be recorded in writing, in the opinion of the Disciplinary Authority or Specially Empowered Authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto.
(4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the Disciplinary Authority or Specially Empowered Authority may (x x x) inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose.”
Rule 17 provides procedure for imposing major penalties. It states that the major penalties shall be imposed after conducting an enquiry as far as may be in the manner provided thereunder. Sub-rule (2) states that the Disciplinary Authority or any Authority Specifically Empowered shall frame definite charges on the allegations on which the enquiry is proposed. It is for the delinquent court servant to submit his reply on communication of the charge memo. On receipt of the reply, on expiry of the period for submission of reply to the charge memo the Disciplinary Authority or the Specially Empowered Authority may enquire into the charges, which are not admitted or appoint an Enquiry Officer for the purpose. In the case on hand, the petitioners were kept under suspension by order dated 24.11.2008. In the same order Sri.I.S. Antin, Registrar (Administration) was appointed as Inquiring Authority. On 26.02.2009 the 2nd respondent- Disciplinary Authority framed charges and served on the petitioners. In the meanwhile, Sri I.S. Antin – Registrar (Administration) was transferred out of High Court, hence, by order dated 28.04.2009, Registrar (Administration), by designation was appointed as Specially Empowered Authority to proceed further in the departmental enquiry and to submit his report. Accordingly, the Specially Empowered Authority i.e., Registrar (Administration) proceeded to conduct the enquiry and submitted his report. We find no procedural irregularity as contended by the learned counsel for the petitioners.
12. The learned counsel for the petitioners lastly contended that the enquiry was initiated and penalty of dismissal was imposed on three delinquent officials including the petitioners. Whereas all the three persons i.e., the petitioners and B.R. Shivaramaiah, Court Officer, challenged the order of dismissal by filing writ petitions No.2258 and 2259 of 2011 and B.R. Shivaramaiah filed writ petition No.6288 of 2011. Whereas the writ petition filed by B.R. Shivaramaiah, Court Officer was allowed and the writ petitions filed by the petitioners were dismissed. It is his submission that while allowing the writ petition of B.R. Shivaramaiah, the writ petitions of the petitioners could not have been dismissed as the order of dismissal was based on the same facts and evidence. The learned counsel seeks for similar treatment and similar relief granted to B.R. Shivaramaiah, Court Officer.
13. We have carefully considered the above contention of the learned counsel for the petitioners. We have also gone through the order passed by this Court in Writ Petition No.6288 of 2011 in the case of B.R. Shivaramaiah, Court Officer. This Court while considering the case of B.R. Shivaramaiah, Court Officer, was of the view, that there is no evidence against B.R. Shivaramaiah, Court Officer, to prove the charge. Further it is to be noted that the said B.R. Shivaramaiah, Court Officer, has produced Ex.D1 notification wherein he was sanctioned leave for the period from 25.06.2007 to 13.07.2007 for the marriage of his daughter, during which period the alleged incident had taken place. Further the complainant himself in his cross- examination has stated as follows :-
Question : Do you have any material to substantiate the allegation made by you in your complaint against delinquent No.1 Sri.B.R. Shivaramaiah ?
Answer: I don’t have material particularly against Sri.B.R. Shivaramaiah, but my main allegation is against Sri.Rajashekaraiah (delinquent No.3).
14. Taking note of the above evidence and as there was no material against Sri.B.R. Shivaramaiah this Court allowed the writ petition. Whereas the petitioners are not entitled for the said benefit and the case against the petitioners stand on entirely a different footing. As stated by the complainant his grievance is against the petitioners. The petitioners assured the complainant that they will look after his case well and get the judgment in his favour and demanded site free of cost and also collected certain amount from the complainant on different dates assuring him to get his cases posted for hearing and favourable orders are passed in the said case. The said allegation is proved by evidence on record. The complainant in his evidence is clear about his allegation against the petitioners.
15. The petitioners are Court servants. The proved charge against the petitioners are very serious. Public have confidence in Courts. If persons like the petitioners are not dealt with seriously for their illegal acts, the public would lose confidence. For the proved misconduct the Disciplinary Authority has rightly imposed the punishment of dismissal from service, which in our view, is an appropriate punishment as the petitioners would not deserve any sympathy. The petitioners have not made out any ground to interfere with the order of the learned Single Judge. The petitioners have not made out any ground to condone the inordinate delay of 1308 and 1314 days respectively in filing the writ appeals. Accordingly writ appeals are dismissed. Consequently the applications for condoning the delay also stands dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* CT:bms