Allowed

The Director v. Sri Umeshaiah

Karnataka HC15 Mar 2021WA/727/2020

Case brief

AI extract

What is this about?

The High Court allowed a writ appeal against a Single Judge order that set aside a departmental punishment. The Court held that while judicial review cannot involve re-appreciating evidence, the Single Judge erred in treating the finding as perverse. Evidence proved the employee's guilt, so the punishment was restored.

What did the court decide?

The order of the learned Single Judge setting aside the punishment was set aside; the writ appeal was allowed and the employee is to face the original punishment.

The Director Vs Sri Umeshaiah — Corruption | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON’BLE MR.JUSTICE S.VISHWAJITH SHETTY

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WRIT APPEAL NO.727 OF 2020 (S-DE)

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BETWEEN:

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THE DIRECTOR

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(ADM AND HRD) KARNATAKA POWER TRANSMISSION CORPORATION LTD.

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CAUVERY BHAVAN

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BENGALURU-560009

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THE MANAGING DIRECTOR

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KARNATAKA POWER TRANSMISSION CORPORATION LTD. CORPORATE OFFICE, CAUVERY BHAVAN BENGALURU-560009

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...APPELLANTS

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(BY SRI.S.R.DODAWAD, ADVOCATE)

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AND:

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SRI UMESHAIAH S/O HONNASHAMAIAH AGED ABOUT 56 YEARS WORKING AS ASSISTANT ENGINEER BESCOM, K.R. CIRCLE CORPORATE OFFICE

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BENGALURU-560001 R/AT NO.99, 2^ND MAIN ROAD RANGANATHAPURA BENGALURU-560079

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…RESPONDENT

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(BY SRI.M.RAGHAVENDRA, ADVOCATE - ABSENT)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 10/03/2020, RENDERED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN W.P. NO.12505/2014(S-DE).

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THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, SATISH CHANDRA SHARMA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Shri S.R.Dodawad, learned counsel for the

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appellant is present. Inspite of service of notice, there is no appearance on behalf of the respondent. In addition to service of notice to the respondent, a copy of complete set of documents was also handed over to the counsel who has appeared before the learned Single Judge. Unfortunately, there is no appearance on behalf of the respondent inspite of the aforesaid. Therefore, this Court has heard the matter finally on merits.

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The present writ appeal is arising out of an order dated 10.03.2020 passed in W.P.No.12505/2014 (Umeshaiah vs. The Director, ADM and HRD, Karnataka Power Transmission Corporation Limited and Another), by which the writ petition preferred by the sole respondent has been allowed setting aside the order of punishment imposed upon him dated 17.01.2013.

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The facts of the case reveal that the respondent before this Court is an employee serving on the post of Assistant Engineer in the services of Bengaluru Electricity Supply Company Limited (BESCOM). On 09.06.2009, he was assigned certain duty for transportation of some material like Rabbit wire and Guy wire and allegedly an attempt was made to divert the property of the respondent-Corporation by transferring it into a private luggage auto. The imputation of misconduct against the respondent - Shri Umeshaiah, Assistant Engineer as reflected from the charge sheet reads as under:

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"The charges made against Sri Umeshaiah, Assistant Engineer (Ele), Central-7 Sub-division, BESCOM, Bangalore:

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You, Sri Umeshaiah, Assistant Engineer (Ele) while working in Central-7 Sub-division, BESCOM, Bangalore, on date:09-06-2009 has prepared indent for taking 700M (147-Kg) rabbit conductor, taken rabbit conductor by submitting the indent to the Store Keeper, Central Store Division, BESCOM, Bangalore. But, as working in a responsible post in the Company, while taking the materials has not weighed the conductors and has not taken invoice and gate pass for the materials taken from the store. While transporting the materials taken from store in the company vehicle No:KA-04-A5376, on the way near Government Primary School, Malleshwaram has shifted and transported 3 bundles rabbit conductor and 2 bundles guy wires to the private luggage auto No:KA02-D 6961 from company vehicle with the help of Sri Nanjundaswamy, Driver, Central Store Division and Sri H.M.Lakkegowda, Driver, C-7 Subdivision through Sri M.Kantaraju, temporary Majdhur labour and committed delinquency in discharging duty and sent remaining 94 kg Rabbit Conductor to your sub-division in Company vehicle.

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This behaviour of yours is considered as misconduct as per K.E.Board Employees Service (Conduct) Rules 1988 under Rule 3(1)(i)(ii) and as mentioned in Rule 33 as per Annexure 'B' Sl.No:(i)."

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A Departmental Enquiry took place in the

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matter and the Enquiry Officer has held the respondent

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guilty of the alleged misconduct. Another important aspect of the case is that that the Departmental Enquiry was held against five persons and out of the five persons, four of them have been punished by BESCOM and out of the four employees punished by the department, it is the present respondent alone who has filed the writ petition before this Court. The learned Single Judge after appreciating the evidence has allowed the writ petition holding that the charge alleged against the respondent could not have been proved as there was no cogent material produced before the enquiry officer.

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Learned counsel for the appellant has argued before this Court that the learned Single Judge has transgressed his jurisdiction by appreciating the evidence on record and by holding that there was no cogent material. He has argued before this Court that the scope of interference with the Departmental Enquiry is very limited and there was no procedural

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irregularity committed in the matter while conducting the Departmental Enquiry by the employer. It is not the case of perverse findings and in fact, charge was very much proved as reflected from the enquiry report. He has drawn the attention of this Court towards the order passed by the learned Single Judge. Paragraphs 12, 13, 14, 15 and 16 of the order passed by the learned Single Judge reads as under:

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"12. Learned Counsel for the respondents would make an attempt to state that the invoice that is referred to is the invoice from the Rajajinagar Stores. The statement of the petitioner clearly reveals that the material was collected not only from Rajajinagar but also from Malleshwaram. Various items have been collected from various stores. Admittedly, rabbit wire was collected from Rajajinagar Stores. It is not the case of the employer that there is difference in the quantity of the material available from the quantity released to the delinquent officer. If the statement of the petitioner is viewed in this background, the statement and defence that the Store Keeper promised to hand over the invoice the next day, appears to be a plausible and believable statement.

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13. As regards the other aspect of the charge i.e., gate pass, it is common practice and common knowledge that gate pass would be handed over to the persons who are transporting the vehicle. In the instant case, it

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is the said Kantharaju – Casual Labourer and Lakkegowda – Driver. It is also common knowledge that the practice that is generally adopted is that the gate pass would be handed over to the gate keeper or the security who permits the ingress and egress of the vehicle. In the instant case, the employer has failed to examine any security officer or the gate keeper in this regard to demonstrate that no gate pass was handed over to them and that the material was removed from the stores without the gate pass being issued. That apart, there is no iota of evidence that there was practice of issuing gate pass. Viewed in this background, the defence of the petitioner that there was no practice of issuing gate pass prevailing at that point of time appears plausible and a justifiable defence.

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14. This Court has examined the evidence let in on behalf of the Corporation. There is no specific allegation that the petitioner had accompanied the vehicle or has been involved in any misdemeanors. That apart, before imposing the penalty, the Disciplinary Authority has failed to look into the antecedents and the past history of the petitioner. There is no allegation that the petitioner has been guilty of any such similar misconducts or any other serious misdemeanors.

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15. In that view of the matter and in the light of the above discussion, this Court is of the considered opinion that the penalty imposed is wholly unjustified. This Court finds that the charge alleged against the petitioner is not proved with cogent material. Hence, the imposition of penalty in the absence of any material demonstrating the charge, is rendered perverse. The appellate authority has failed to consider any of these lacunas

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observed by this Court and has merely proceeded to affirm the penalties imposed on the petitioner without adverting to any of these aspects. In that view of the matter, the petition requires to be allowed.

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16. Accordingly, the petition is allowed. The impugned produced at Annexures-J & L are set aside in so far as it pertains to the petitioner alone. In the light of the above relief granted to the petitioner, the petitioner shall be entitled to all consequential reliefs including service and monetary benefits. The respondents shall look into the same and expedite the same within two months from today."

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Learned counsel for the appellant has drawn the attention of this Court towards paragraph 14 and his contention is that an erroneous finding has been given by the learned Single Judge that the respondent/employee had not accompanied the vehicle nor has been involved in any misdemeanor. He has straight away drawn the attention of this Court towards PW.4 who has categorically stated that when the goods are being transferred into a private vehicle, the respondent/employee was very much present. The

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relevant statement of PW.4 and his cross-examination

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are reproduced as under:

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"Examination in Chief - by PO

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During the year 2009 I was working in works unit, C-7 subdivision, Bescom I know all the accused persons, on 09-06-2009 at about 9.30 am. I went to the office, chidanandha swamy, (JE), Works unit asked me to accompany Lakkegowda. We, accused Lakkegowda and myself went to Rajajinagar store by Lorry to pickup oil drums. We took 3 oil drums in the Rajajinagar store in a Lorry. From there we went to malleshwaram store. We loaded ACSR Wire, Guywire and other related materials, store keeper, venkateshaachar was present at the time of loading the materials. Therewere 4 coils of ACSR and 2 coils of Guywire in the Lorry, Lakkegowda and Nanjunda swamy ad myself unloaded the two coils of Guywire and two coils of ACSR and same loaded to the private auto. We were presnet there at the time of loading these two materials to the auto Lakkegowda (driver), Nanjunda swamy (driver), and Umeshaiah (Asst Engineer). One month later I was called by the police vigilence I have given my statement as per Exp17. store keeper told me and lakkegowda that the materials to be dumbed at the Hebbal office. Nanjundaswamy instructed me and Lakkegowda to unload those Hebbal materials here only to the privet vehicle our Lorry left the place to go to Vidyanyapura. We reached vidyaranyapura at 3 p.m. we unloaded certain line materials at vidyaranyapura and we went other places to unload the materials.

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I do not remember the Lorry number which we loaded the materials I cant give details of materials loaded to the Lorry. We loaded the privet 3 wheeler auto with two coiles of ACSR, and two

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coiles Guywire. I do not know the registration number of the 3 wheeler auto.

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Cross Examination - by C.Jayappa for Umeshaiah, Chidanandhaswamy and Lakkegowda.

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Chidanandhaswamy instructed me to accompany Lorry with Lakkegowda, Chidanandhaswamy told me meet at the stores. Umeshaiah was present at Rajajinagar store. materials were half loaded in the lorry. It was 1.30 pm when we went for lunch on that day, by the time we return after meals, three wheeler auto was already present at the spot. Umeshaiah had also come with us to take meals Umeshaiah was with us. umeshaiah came by motor bike we did not go to Hebbal on that day."

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7. Meaning thereby, the respondent/employee

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was very much involved in the alleged misconduct and the Enquiry Officer has rightly held him guilty. The Enquiry Officer based upon the enquiry report, after serving copy and after issuing proper show cause notice, has inflicted a minor punishment. The learned Single Judge has also observed that the antecedents and the past history of the employee was not looked into while inflicting the punishment.

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8. In the considered opinion of this Court, the

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punishment inflicted by the Departmental Enquiry was

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based upon the misconduct which was proved during the Departmental Enquiry. In the considered opinion of this Court, the employee has been dealt with great leniency by the employer by inflicting the punishment of withholding of two annual increments with cumulative effect and therefore, as no procedural irregularity was committed while holding the Departmental Enquiry, there is no violation of principles of natural justice.

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The Hon'ble Supreme Court in the case of

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State of Andhra Pradesh & Ors. vs. S. Sree Rama

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Rao reported in AIR 1963 SC 1723 , had held that

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the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are violated or not. This view

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has been affirmed by the Apex Court in the case of

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B.C. Chaturvedi vs. Union of India & Ors. reported

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in (1995) 6 SCC 749 as well. Nonetheless, in High Court of Judicature at Bombay through its Registrar vs. Shashikant S. Patil & Anr. reported in (2000) 1

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SCC 416 , the Supreme Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution.

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These judgments have been echoed in several other cases of similar nature which had come before the Supreme Court. In Union of India vs.

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P.Gunasekaran reported in (2015) 2 SCC 610 , the

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Supreme Court held that the High Court cannot act as an appellate authority in the matter of disciplinary proceedings while re-appreciating evidence. The

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Hon'ble Supreme Court has laid down certain

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parameters as to what the High Court should not do when interfering in the disciplinary proceedings while exercising jurisdiction under Article 226 or 227, and same are detailed as under:-

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(i) re-appreciate the evidence;

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(ii)interfere with the conclusions in the

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enquiry, in case the same has been conducted in

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accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence

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on which findings can be based.

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(vi) correct the error of fact however grave it

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may appear to be;

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(vii) go into the proportionality of punishment

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unless it shocks its conscience.”

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The supreme Court in Himachal Pradesh

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State Electricity Board Limited v. Mahesh Dahiya

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reported in (2017) 1 SCC 768 was consistent with its view in B.C. Chaturvedi case ( supra ) and observed that the disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel reported in (1964) 4 SCR 718 , it has been held that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

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The principles concerning judicial review in the matter of departmental enquiries had been

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summarised by the Supreme Court in Allahabad Bank and Ors. vs. Krishna Narayana Tewari reported in (2017) 2 SCC 308 , where it was held that writ courts must be slow in interfering with findings of fact recorded by departmental authority on basis of evidence. However, if findings are unsupported by evidence or are such as no reasonable person would arrive at, then writ court is justified if not duty-bound to examine the matter. If the enquiry itself is vitiated for violation of principles of natural justice then writ court can interfere with disciplinary enquiry or resultant orders. Further, where authority (i) has not applied its mind; or (ii) has not assigned reasons for its conclusions, then writ courts can interfere with orders of punishment. This had also been restated by the Supreme Court in State of Karnataka and Anr. vs. N.Gangaraj rendered in Civil Appeal No.8071/2014 dated 14.02.2020.

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In Pravin Kumar vs. Union of India

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reported in (2020) 9 SCC 471 , the Supreme Court further stated that judicial review can be done to correct manifest errors of law or procedure which might result in significant injustice or violation of principles of natural justice. The same view had been taken by the Apex Court in Deputy General Manager (Appellate Authority) and Ors. vs. Ajai Kumar Srivastava reported in 2021 SCC Online SC 4 .

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On the basis of the aforementioned

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judgments of the Supreme Court which clarifies the principles on the concerned issue, The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. However, the scope

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of judicial review cannot be extended to the

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examination of correctness or reasonableness of a decision of authority as a matter of fact.

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In the light of the aforesaid as there is sufficient evidence on record to hold the employee guilty. The order passed by the learned Single Judge is hereby set aside. The writ appeal is allowed.

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No order as to costs.

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The pending interlocutory application does not

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survive for consideration and stands disposed of.

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Sd/JUDGE

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Sd/-

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JUDGE