IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE P. B. BAJANTHRI WRIT PETITION NO.17877/2015 (S-DIS) BETWEEN:
V. MANIVANNAN S/o VEERARAGHAVAN, AGED ABOUT 47 YEARS RESIDING AT No.249, BELLAVATHA, RBI POST, MYSORE-570 003. ... PETITIONER (By SRI. M MANIVANNAN, PARTY-IN-PERSON) AND 1. MANAGING DRIECTOR BHARATIYA RESERVE BANK NOTE MUDRAN (P) LIMITED No.2 & 3, 1ST STAGE, I PHASE, BTM LAYOUT, POST BOX No.2924 NEAR JAL BHAVAN, BANNERGHATTA ROAD, BANGALORE-560 029.
2. THE GENERAL MANAGER BHARATIYA RESERVE BANK NOTE MUDRAN (P) LIMITED, MUDRANNAGAR, MYSORE-570 003. ... RESPONDENTS (BY SRI. T SURYANARAYANA, KING & PATRIDGE ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENTS, QUASH THE IMPUGNED ORDERS OF DISMISSAL DATED 27.1.2015 PASSED BY THE R-2 VIDE ANN-M, AND ALSO THE IMPUGNED ORDER DATED 26.3.2015 PASSED BY THE R-1 APPELLATE AUTHORITY VIDE ANN-P AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In the instant petition, the petitioner (party-in- person) has assailed the orders of Disciplinary Authority dated 27.01.2015 (Annexure-M) and Appellate Authority dated 26.03.2015 (Annexure-P).
2. The petitioner was subjected to four enquiries by framing Articles of Charges on 12.08.2013, 21.12.2013, 28.08.2014 and 20.09.2014 respectively, whereas two Enquiring Officers namely, Mr. Sreedhara and Mr. B.G.Prasad, furnished four Enquiring Officers’ Reports. After receipt of the four Enquiring officers’ reports, Disciplinary Authority proceeded to issue show cause notice to the petitioner and after receipt of the petitioner’s explanation, proceeded to pass the order of dismissal from service on 27.01.2015. Feeling aggrieved and dissatisfied by the order of dismissal, petitioner filed an appeal and Appellate Authority passed order on 27.01.2015, while confirming the order dated 26.03.2015 of the Disciplinary Authority. Hence, the present petition.
3. On perusal of Annexure-M dated 27.01.2015 - order of dismissal, it is evident that Disciplinary Authority has considered extraneous materials i.e, the past events has been taken into consideration for the purpose of imposing penalty or dismissal. That apart, Rule 68 of BRBNMPL Service Rules (for short ‘Service Rules’) do not provide for common penalty in respect of four enquiries initiated dated (Supra). In other words, Disciplinary Authority who has not passed an independent orders pursuant to each of the Enquiring Officers’ reports, there is no provision to club the enquiry proceedings (four multiplied by one) and to proceed to impose a particular penalty. On the issue of extraneous material, which is not part of article of charge, the Hon’ble Supreme Court in the case of The State of Mysore v. K. Manche Gowda reported in AIR 1964 SC 506 (Constitution Bench) in paragraph No.9 held as under:
“9. In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 & 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art.311 (2) of the Constitution as interpreted by Court.”
4. That apart, as per Rule 68 of Service Rules, there is no provision for the Disciplinary Authority to examine the past events or records. Thus, there is a clear violation of Rule 68 by the Disciplinary Authority. The Hon’ble Supreme Court in the case of Dhanajaya Reddy V/s State of Karnataka reported in (2001) 4 SCC 9, in paragraph No.23 held as under:
“23. It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of U.P. v. Singhara Singh: (AIR p.361, para 8) held “A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down.”
5. Consequently, order of the Disciplinary Authority is liable to be set aside, so also the order of the Appellate Authority.
6. In view of these facts and circumstance, Annexure-M - order of Disciplinary Authority and Annexure-P – order of Appellate Authority are set aside. Writ petition stands allowed, reserving liberty to the Disciplinary Authority to proceed from the defective stage after giving due opportunity to the petitioner in respect of proposal to take action on each of the Enquiring Officers’ reports.
7. The petitioner is entitled to arrears of salary from the date of dismissal till passing of another order by the Disciplinary Authority. The same shall be calculated and disbursed to the petitioner. In this regard, it is to be noted that if an order is quashed, in such an event the law laid down by the Hon’ble Supreme Court has to be followed, rendered in the case of Shree Chamundi Mopeds Ltd., V/s Church of South India Trust Association CSI Cinod Secretariat, Madras reported in (1992) 3 SCC 1, wherein, it was held at para No.10, which reads as under:
“10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed”.
In the aforesaid decision, it is held that effect of quashing of an order would be restoring the original position, in other words, as if the order is not existing in the eye of law.
8. Thus, the respondents are liable to pay arrears of salary within stipulated period stated (Supra).
9. The above observation shall be kept in mind and pass an appropriate orders within a period of six months from the date of receipt of this order.
Sd/- JUDGE HA/-