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.45115 OF 2017 (S-DE) BETWEEN SRI SHANKARALINGAIAH S/O LATE H.VEERAPPA AGED ABOUT 58 YEARS DEPUTY GENERAL MANAGER (PRODUCTION) M/S. MYSORE MINERALS LIMITED R/AT ESHWARA NILAYA NO.34, 12TH CROSS, 2ND MAIN HEALTH LAYOUT, 2ND STAGE, ANNAPURNESHWARI NAGAR BANGALORE-560 091. ... 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, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE ORDER DATED 20.7.2017 ANNEXURE-A ISSUED BY RESPONDNET; QUASH THE ORDER DATED 20.7.2017 AT ANNEXURE-A PASSED BY RESPONDENT 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 is working as Deputy General Manager in the respondent Company, which is an undertaking of the Government of Karnataka. The respondent Company, on 13.07.2009 issued a show cause notice alleging that the petitioner has caused financial loss of Rs.63,38,13,427/-. 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.63,38,13,427/- 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.5868/2010. The said writ petition was disposed of by the Division Bench on 06.02.2015 directing the competent authority under Section 12(4) of the Lokayukta Act to take a decision and pass an order within a period of two weeks. However, the petitioner was asked to participate in the inquiry proceedings. Therefore, the petitioner participated in the disciplinary proceedings. The Inquiry Officer submitted the report on 15.12.2010 to the State Government inter alia stating that the charges leveled against the petitioner are not proved. 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. The petitioner has given a representation dated 17.06.2017 requesting to withdraw second show cause notice. Thereafter, by communication dated 20.07.2017, 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.
SD/- JUDGE KLY/