IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.5006 OF 2016 (S-DE) BETWEEN:
SRI. SOMARAJ SON OF LATE PUTTAIAH AGED ABOUT 60 YEARS SHERISTEDAR (COMPULSORILY RETD.,) CIVIL JUDGE (JR. DN.) & J.M.F.C., K.R.PET AND RESIDING AT NO.2408, 4TH CROSS, GANDHINAGAR, MANDYA - 571 401.
... APPELLANT (BY SRI. P N NANJA REDDY, ADVOCATE) AND:
1. HIGH COURT OF KARNATAKA REPRESENTED BY ITS REGISTRAR (VIGILANCE) BENGALURU - 560 001.
2. DISTRICT AND SESSIONS JUDGE MANDYA DISTRICT MANDYA - 571 401.
(BY SRI.LAXMINARAYAN, AGA) ... RESPONDENTS THIS APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.18369/2014 DATED 02/11/2016.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 02.11.2016 passed by the learned Single Judge in W.P.No.18369 of 2014, by which the writ petition was dismissed, the petitioner has preferred this appeal.
2. The petitioner filed writ petition challenging the order dated 30.03.2012 passed by the second respondent- District and Sessions Judge, Mandya, imposing penalty of compulsory retirement and recovery of a sum of Rs.3,20,861/- and the Appellate order dated 26.03.2014 passed by the first respondent. The petitioner was appointed on 11.08.1988 as First Division Assistant and worked at various places. Between 01.04.2003 to 08.06.2007, the petitioner was working as a Sheristhedar in the Court of Principal Civil Judge (Jr.Dn.), Maddur. A special audit team conducted audit for the said period and found certain irregularities and misappropriation of revenue by the petitioner as well as by one Mr.Dasappa, FDA. Based on the audit report, a notice dated 03.01.2008 was issued to the petitioner to which he replied on 16.01.2008. Thereafter a show cause notice dated 26.12.2007 was issued alleging that the petitioner entrusted the Accounts Branch work to FDA Sri.Dasappa during the relevant period and has received charge allowance for the said period. It is also alleged that the petitioner failed to credit a sum of Rs.2,500/- duty and penalty collected in O.S.No.44 of 2002. The petitioner also replied to the said show cause notice. One more show cause notice dated 28.03.2008 was issued to the petitioner alleging that a sum of Rs.500/- towards the cost imposed in Misc.Petition No.6 of 2002 was received by the petitioner was not taken to account in the ‘D' register maintained in the Accounts Branch. The petitioner submitted his reply that the he had received Rs.500/- in the absence of Sri.Dasappa, Accounts Sheristhedar and immediately on his return, he handed over the cash to him.
3. The second respondent/Disciplinary Authority not being satisfied with the explanation submitted by the petitioner issued Articles of Charges on 27.03.2008 alleging misappropriation of a sum of Rs.6,36,722/- as indicated in the Special Audit Report for the period from 01.04.2003 to 08.06.2007. In addition to the said charge, other six charges were also leveled against the petitioner. The petitioner submitted his reply that he had no knowledge about misappropriation of the amount to the extent of Rs.6,36,722/-. Further stated that the Presiding Officer never consulted him and taken him into confidence in respect of the office work particularly of the Accounts Branch. The Additional District Judge, Mandya was appointed as Enquiry Authority to conduct the enquiry. Before the Enquiry authority, the Disciplinary Authority examined 8 witnesses and marked documents Ex.P1 to Ex.P25. The DGO i.e. petitioner examined himself as D.W.1 and marked one document as Ex.D1. The Enquiry Officer considering the material on record both oral and documentary and on analyzing the evidence, by his report dated 20.05.2010 held charge Nos.1, 2, 4, 7, 8 as proved.
4. On receipt of the enquiry report, the Disciplinary Authority-second respondent issued second show cause notice dated 24.05.2010 to the petitioner. The petitioner submitted a detailed reply to the second show cause notice on 14.06.2010. The second respondent-Disciplinary Authority, by impugned order dated 30.03.2012 imposed punishment of compulsory retirement and recovery of a sum of Rs.3,20,861/- towards the loss caused by him. The petitioner aggrieved by the said order of punishment filed the appeal before the first respondent. The first respondent by order dated 26.03.2014 dismissed the appeal confirming the order passed by the second respondent-Disciplinary Authority. Both the orders passed by the Disciplinary Authority as well as Appellate Authority are impugned in the writ petition. The learned Single Judge after hearing the parties to the lis, by order dated 02.11.2016 dismissed the writ petition and held that looking into the nature of allegation, reasonable punishment of compulsory retirement is imposed which is not shockingly disproportionate. Hence, the petitioner is in appeal before this Court.
5. Heard the learned counsel for the appellant and learned Government Advocate for Respondents. Perused the writ appeal papers.
6. The learned counsel for the appellant submits that the order passed by the learned Single Judge is opposed to material on record. Further it is contended that the Disciplinary Authority imposed punishment of compulsory retirement without looking into the material before it and the petitioner has not committed any mistake or misconduct as alleged in the charge sheet. It is petitioner’s case that the other co-accused Dasappa admitted to have committed misappropriation, therefore, the charge against the petitioner would not stand to reasons. Learned counsel further submits that there is no order for joint enquiry under Rule 13 of Karnataka CCA Rules as such, the entire enquiry is vitiated. It is also the case of the petitioner that the punishment imposed is shockingly disproportionate for the gravity of charge alleged against him.
7. Per contra, learned AGA supports the order passed by the learned Single Judge and submits that the scope of judicial review in departmental proceedings is very limited. It is his further submission that it is not the case of the petitioner that there is any violation of principles of natural justice nor it is a case of no evidence.
Further, he submits that the punishment imposed is commensurate with the gravity of charge. As such, no interference is required.
8. The petitioner has assailed the order of punishment and order of the Appellate Authority under Article 226 of the Constitution of India. The scope of interference with the disciplinary proceedings 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 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. Keeping in mind the principles laid down in the above decision the case of the petitioner will have to be examined. The petitioner was working as Sheristhedar in the Court of Principal Civil Judge (Jr.Dn.) Maddur, during the period from 01.04.2003 to 08.06.2007. Special Audit conducted for the said period pointed out the petitioner and one Dasappa, Accounts Sheristedar for misappropriation of amount. Thrice show cause notices were issued to the petitioner giving him sufficient opportunity to explain his case. Thereafter articles of charge is issued as per Annexure-H. The charge leveled against the petitioner and Sri.Dasappa reads as follows:
“That you Delinquent Govt. Official No.1 and 2 being Government Servants, while working as Chief Ministerial Officer and Accounts Sheristedar respectively in the Court of Civil Judge (Jr.Dn.) & JMFC, Maddur, have misappropriated a sum of Rs.6,36,722-50 as noticed and indicated in Special Audit Report No.LCA.III.Spl.Audit 142/07 dated 12.12.2007 of High Court of Karnataka, Bangalore, on the Account of the Civil Judge (Jr.Dn). & JMFC, Maddur, during the period from 01.04.2003 to 30.6.2007 in which period you were working as Chief Ministerial Officer and Sheristedar respectively of that Court and both of you are responsible for the said misappropriation.
Further, that you Delinquent Govt. Official No.1 while incharge of Accounts branch of the said court on 30.8.2006 had received a sum of Rs.2,500/- towards duty and penalty amount in O.S.44/2002, but not remitted to Govt. and you have misappropriated the said amount.
Further, on 31.5.2006, you Delinquent Govt. Official No.II, while working as Accounts Sheristedar of said court received a sum of Rs.2,000/- being the fine amount in CC.1276/2003 and you have not passed ‘Q’ Receipt and not taken said amount to relevant cash register and did not also remit it to bank and thus you have misappropriated the said Government money.
Further, on 7.7.2006, you Delinquent Govt. Officer No.II while working as Accounts Sheristedar of said court received Rs.20,000/- from the Accused in CC.1276/2003 as imposed fine amount and deposited under R.O.No.0533864/CRCD.8/06 dated 10.7.06 and issued a cheque No.045169 on 24.1.2007 for Rs.10,000/- to one Mahadeva without orders of the Court, though said Mahadeva was not complainant of said case and was not entitled to said payment and thereby allowed said amount to be misappropriated.
Further, you Delinquent Govt. Official No.II, received Rs.25/- towards penalty in C.C.261/2005 on 19.11.2005 and not passed ‘Q’ receipt and not accounted for it in cash register and not credited it to bank and thereby you have misappropriated the said Govt. money.
Further, you Delinquent Govt. Official No.II, had received 1) Rs.4,500/- in OS.328/98 on 26.12.2005 2) Rs.500/- in OS.368/97 on 20.2.2006 3) Rs.660/- in OS.169/01 on 20.2.2006 4) Rs.200/- in Ex.52/04 on 20.2.2006 After getting entered the above amounts in the ‘D' register and subsequently you deliberately and intentionally struck off/erased the said entries in D-register and you did not carryout said entries in ‘G’ Cash Register and you have misappropriated the said amounts.
Thus, you Delinquent Govt. Official No.1 have misappropriated Government money to the extent of Rs.6,39,222.50 exhibited dereliction of your duties in not scrutinizing the works and Registers of Account Branch and negligence in discharging of your duties as Chief Ministerial Officer and thereby exhibited unbecoming conduct of a Govt. servant under Rule 3 of KCS (Conduct) Rules, 1966 and Rule 3, 28, 29, note(1) and (2), 40 and 111 of Accounts Rules.
Thus, you Delinquent Govt.Official No.II misappropriated in all Rs.6,74,607-50 and falsified the records, exhibited dereliction of your duties shown negligence in discharge of your duties as Accounts Sheristedar and thereby acted in a manner unbecoming of a Govt. servant under Rule 3 of KCS (Conduct) Rules, 1966 and Rule 3, 28, 29, note (1) and (2), 40, 111 of Accounts Rules.”
10. The sum and substance of the charge against the petitioner is that he along with delinquent official Dasappa misappropriated a sum of Rs.6,36,722/- as indicated in the Audit Report for the period from 01.04.2003 to 30.06.2007. Further, charge is that the petitioner had received Rs.2,500/- towards duty and penalty amount in O.S.No.44 of 2002 which he did not remit it to the Government. To substantiate the charge leveled against the petitioner, the Disciplinary Authority examined 8 witnesses and marked documents in support of their case.
P.W.1 was the head of Audit Team who audited the accounts of the Court of Civil Judge (Jr.Dn.) and JMFC, Maddur for the period from 01.04.2003 to 30.06.2007, during which period, the petitioner was working as Sheristhedar. P.W.4 was the Presiding Officer of the Court of Principal Civil Judge (Jr.Dn.) and JMFC, Maddur when the enquiry was initiated. P.W.5 was the Sheristhedar as on the date of enquiry. The Enquiry Officer on analyzing the evidence on record as well as Ex.P1-Audit Report, held that the charges 1, 2, 4, 7 and 8 are proved against the petitioner. The misappropriation of amount from the Accounts of Civil Judge (Jr.Dn.) and JMFC, Maddur is proved. The petitioner was issued second show cause notice which was replied by him. The Disciplinary Authority by assigning reasons for accepting the Enquiry Report, imposed punishment of compulsory retirement and recovery of a sum of Rs.3,20,861/- on the petitioner.
11. It is not a case of no evidence. There is sufficient material evidence to prove the charge. It is also not the case of the petitioner that he has not been provided adequate opportunity to defend his case. The petitioner is afforded with opportunity at every stage of the enquiry which could be seen from the sequence of events stated above. The findings of the Enquiry Officer are not perverse nor erroneous.
12. The contention that the petitioner has not committed any mistake nor misconduct and the co- delinquent Dasappa has admitted to have committed misappropriation, the charge against him would not stand, has no merit. The petitioner was Sheristhedar and Dasappa was working under him as Accounts Sheristhedar. Ex.P1-Audit report points both petitioner as well as Dasappa as responsible for misappropriation. P.W.1- auditor is examined, who is author of audit report.
13. The next contention that there is no order under Rule 13 of CCA Rules would not merit any consideration. Rule 13 requires, where two or more Government Servants are concerned, the Authority which is competent to impose penalty of dismissal shall pass orders directing disciplinary action. In the case on hand, the second respondent is the Disciplinary Authority competent to impose the penalty of dismissal on both the delinquents. The contention that the punishment is disproportionate to the nature of charges alleged against the petitioner is also merit less. The charge against the petitioner is misappropriation of amount and the same is proved. Proved misappropriation of amount attracts major penalty, that too, in a judicial department. Certain discipline is to be maintained within the judiciary. The petitioner is imposed with the penalty of compulsory retirement and not dismissal or removal. The punishment of compulsory retirement for the proved charge of misappropriation of amount would not be shockingly disproportionate.
14. The Appellate Authority on hearing the learned counsel appearing for the petitioner and on perusal of entire appeal papers by its reasoned order has rejected the appeal. From perusal of the order of the Appellate Authority, it indicates proper application of mind by the Appellate Authority. The learned Single Judge has rightly come to the conclusion that the petitioner who was working as Sheristhedar that too in the Accounts Section is legally bound to ensure that those who are working under him are discharging their duties strictly in accordance with law. The learned Single Judge further observed that the punishment of compulsory retirement is imposed keeping in mind that the petitioner may still be entitled for his retirement benefits.
15. No ground is made out to interfere with the well reasoned order of the learned Single Judge. For the reasons recorded above, the writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE mpk/-* CT:bms