Allowed

Sri. M. R. Srinivasa Reddy v. the State of Karnataka

Karnataka HC5 Jan 2021WP/41410/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the dismissal of a disciplinary appeal by the Karnataka Administrative Tribunal. The Court found that the Tribunal failed to address factual discrepancies regarding the period of alleged misappropriation versus the petitioner's service tenure. The matter is remanded for reconsideration.

What did the court decide?

The impugned order dated 21.04.2017 and the Review Application Order dated 21.07.2017 by the Karnataka Administrative Tribunal are set aside. The matter is remanded to the Tribunal for reconsideration

Sri. M. R. Srinivasa Reddy Vs the State of… — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE M.I.ARUN

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W.P.No.41410/2017 (S – KAT)

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BETWEEN :

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SRI M.R.SRINIVASA REDDY S/O M.RAMAREDDY, AGED ABOUT 65 YEARS, RETIRED AUDIT OFFICER R/AT NO.775, SRINIVASA NILAYA, ANNAIAHAPPA LAYOUT, KONENA AGRAHARA, HAL POST BENGALURU -560 017 ...PETITIONER

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(BY SRI S.B.MUKKANNAPPA, ADV.)

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AND :

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1 . THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT VIKASA SOUDHA, BENGALURU-560 001

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2 . THE CONTROLLER OF STATE ACCOUNTS 6^TH FLOOR, CAUVERY BHAVAN, K.G. ROAD, BENGALURU-560 001

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3 . THE EXECUTIVE ENGINEER MANCHANABELE PROJECT DIVISION, RAMANAGARA DISTRICT, BENGALURU-562 159 …RESPONDENTS

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(BY SRI A.C.BALARAJ, AGA FOR R-1 & R-2; VIDE COURT ORDER DATED 09.11.2020 NOTICE TO R-3 DISPENSED WITH.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 21.04.2017 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN SO FAR AS RELATES TO APPLICATION No.3682/2011 OF THE PETITIONER AND AS WELL AS THE REVIEW APPLICATION ORDER DATED 21.07.2017 PASSED IN REVIEW APPLICATION No.92/2017 AND CONSEQUENTLY ALLOW THE APPLICATION No.3682/2011.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, S. SUJATHA, J ., MADE THE FOLLOWING:

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O R D E R

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The petitioner has called in question the order

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dated 21.04.2017 insofar as it relates to Application No.3682/2011 as well as the order dated 21.07.2017 passed in Review Application No.92/2017 passed by the Karnataka State Administrative Tribunal at Bengaluru.

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The petitioner is a retired Audit Officer. He

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was working as an Audit Officer in the State Accounts Department. The petitioner claims to have worked at

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Bennethora Project, IPC Division No.1, Gulbarga for the period from 08.09.2003 to 19.11.2004 for a period of one year three months. That when he was working on deputation in Irrigation Department in the Office of the Executive Engineer, Manchanabele Project Division, Ramanagara, the respondent No.1 has initiated the disciplinary proceedings against the petitioner and served with Articles of Charge dated 04.04.2008. The gist of the charges leveled against the petitioner is that when he was working as Audit Officer at Bennethora Project, IPC Division No.1, Gulbarga, he has not remitted the subscription amount of the employees of the Gulbarga Division and its sub-divisions relating to GPF, KGID, EGIS, PT, Income Tax and other deductions to its concerned head and he is responsible for misuse of amount of Rs.25,88,386/-. He being an Audit Officer has not taken any action against the concerned even though it came to his knowledge that the amount were

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not credited to the various heads of the accounts as

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alleged which amounts to misconduct.

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The petitioner has submitted his reply to the

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Articles of Charges on 22.05.2008 denying the same. It was specifically contended that the alleged misappropriation amount reported was for the period from 20.11.2004 to 10.05.2005 during which period he was not working in that division. Hence, sought for exoneration from the alleged charges. The Vigilance Cell has submitted report on 03.04.2007 pursuant to the directions issued by the respondent No.1. A joint enquiry was conducted along with the 13 others. The petitioner remained ex-parte before the Enquiry Officer.

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The Enquiry Officer submitted a report holding the petitioner guilty of the charges leveled against him. On receipt of the enquiry report, the Disciplinary Authority issued second show-cause notice to the petitioner along with the enquiry report asking the petitioner to submit

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his representation, if any, on the findings of the Enquiry Officer pursuant to which the petitioner has submitted

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his reply to the second show-cause notice on 09.02.2010 stating that during the period from 08.09.2003 to 19.11.2004, the amounts deducted towards GPF, KGID, EGIS, PT, Income Tax etc., from the employees salary has been credited to the respective heads and he is not responsible for any misappropriation occurred during the period February, 2005 to July, 2006. The disciplinary authority accepting the findings of the Enquiry Officer exonerated 10 officials out of 14 officials against whom the joint enquiry was initiated and imposed a punishment of recovery of Rs.5,17,677/- with interest at the rate of 8% per annum and withholding two annual increment with cumulative effect as far as the present petitioner is concerned.

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The petitioner being aggrieved by the

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punishment order dated 23.03.2011 has approached the Karnataka State Administrative Tribunal, Bengaluru, in Application No.3682/2011 which was clubbed with the identical matters. The Tribunal by a common order dated 21.04.2017 dismissed the application filed by the petitioner. The petitioner filed Review Application No.92/2017 before the Tribunal under Regulation No.3 of the Karnataka State Administration Tribunal (Review Applications) Regulation, 1994 which came to be rejected on 21.07.2017.

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Being aggrieved by the aforesaid orders of

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the Tribunal, the petitioner has preferred the present petition.

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Learned counsel for the petitioner submitted

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that the documents would demonstrate that the alleged misappropriation of the funds occurred during

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February, 2005 to July, 2006; the petitioner had worked in the Office of the Executive Engineer, Bennethora Project, IPC Division No.1, Gulbarga during 08.09.2003 to 19.11.2004, but the disciplinary proceedings were initiated against the petitioner and others on the basis of the report of the Inspector General of Police, Vigilance Cell, Water Resources Department dated 03.04.2007 which discloses the misappropriation of funds due to non-remittance of GPF, KGID, PT, arrears of salary for the period from February, 2005 to July, 2006. This vital aspect has not been considered properly by the Enquiry Officer or the Disciplinary Authority. The Tribunal has not properly appreciated the same. The Tribunal without considering the individual cases on the facts has passed the common order. The reasoning of the Tribunal in rejecting the application is not sustainable. Further the review application filed by the petitioner has been rejected sans appreciating the grounds of review.

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Learned counsel inviting the attention of the

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Court to Annexure – A5, the evidence recorded before

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the Enquiry Officer argued that in the crossexamination of the Executive Engineer, he has unequivocally stated that the alleged misappropriation of funds to an extent of Rs.23,37,600/- was relating to the period, February 2005 to July 2006 and the same was not examined for the previous years. It was pointed out that the statement of imputation at Appendix – 2 is different from the charges at Appendix – 1. In the statement of imputation, the period of alleged misappropriation of funds is mentioned as 20.11.2004 to 10.05.2005 though in the Articles of charge, the period was mentioned as 08.09.2003 to 19.11.2004 for which the petitioner has replied as per the reply dated 22.05.2008 submitting that he was not working during the relevant period in which the alleged misappropriation had taken place. The Enquiry Officer has failed to consider the explanation of the petitioner.

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The findings of the Enquiry Officer is without

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application of mind and he has recorded a perverse finding of guilt. It was argued that even in the reply to the second show-cause notice a consistent stand was taken that the petitioner was not working during the relevant period from February 2005 to July 2006 at Bennethora Project, IPC Division No.1, Gulbarga. But ignoring the same, the Enquiry Officer as well as the Disciplinary Authority have proceeded to impose the penalty order which ought to have been considered by the Tribunal examining the facts of each case. The Tribunal grossly erred in dismissing the application as well as the review application.

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Learned Additional Government Advocate supporting the impugned order of the Tribunal

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submitted that the petitioner having not participated before the Enquiry Officer cannot rely upon the crossexamination of the Executive Engineer before the

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Enquiry Officer by the accused No.1. Indeed, Articles of Charge made against the petitioner would indicate that the relevant period was from 08.09.2003 to 19.11.2004. The enquiry report clearly specifies that the misappropriation of funds was for the period 08.09.2003 to 19.11.2004 as far as this petitioner is concerned.

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We have carefully considered the rival

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submissions of the learned counsel appearing for the parties and perused the material on record.

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The main controversy is relating to the

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period of the alleged misappropriation of funds and the inconsistency found in the Article of Charges vis-à-vis the statement of imputation. As per Appendix – 1 (Articles of charge) and Appendix – 2 (Statement of imputation), the period is mentioned as 08.09.2003 to 19.11.2004 and 20.11.2004 to 10.05.2005 respectively.

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At this juncture, it is apt to refer to relevant

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portion of Rule 11 of the Karnataka Civil Services (CCA) Rules, 1957 (‘Rules’ for short), which reads thus:-,

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“(11) The Inquiring Authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence;

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(i) inspect within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in sub-rule (3);

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(ii) submit a list of witnesses to be examined on his behalf;

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(iii) apply orally or in writing to inspect and take extracts of the statements, if any, of witnesses mentioned in the list referred to in sub-rule (3) and the Inquiring Authority shall permit him to take such extracts as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority.

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(iv) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3):-

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Provided that the Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.”

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“(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-

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(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;

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(b) the defence of the Government servant in respect of each articles of charge;

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(c) an assessment of the evidence in respect of each article of charge.

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(d) the findings on each article of charge and the reasons therefor.”

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As could be seen, the statement of

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imputations is not in conformity with the Articles of Charges as far as the period is concerned. The Vigilance

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Report dated 03.04.2007 specifies the period from February 2005 to July 2006 and the petitioner’s name is not figured in the list of officers/employees found guilty of misappropriation of funds. Though the petitioner has not participated in the enquiry proceedings, the reply submitted by him to the Articles of Charges and statement of imputations as well as to the second show-cause notice makes it clear that the specific stand taken by the petitioner was that he was not working in the said division of Bennethora Project, IPC Division No.1, Gulbarga during the relevant period from February 2005 to July 2006. It is significant to note that the enquiry report though refers to the period 08.09.2003 to 19.11.2004 as far as this petitioner is concerned, the Chief Auditor’s Inspection Report referred to therein discloses that no deposited details relating to Rs.65,234/- for the period October 2003 to January 2005 is found. Even in O.S.No.88/2007 proceedings instituted by the State of Karnataka for the

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recovery of misappropriated sum of Rs.24,70,550/-, this petitioner was not arrayed as a party to the proceedings and the said suit has been decreed in part with costs against defendant Nos.5(a) to (e) therein, i.e., the legal heirs of late Malkanna Belkote and the suit against the other defendant Nos.1 to 4 therein, has been dismissed without costs. It has been held that the State is entitled to recover a sum of Rs.24,70,550/- with interest at the rate of 6% per annum from the defendant Nos.5(a) to (e) i.e., legal representatives of late Malkanna Belkote from the month of February, 2005 till the realisation of the entire decreetal sum.

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It is apparent that the applications were considered by the Tribunal mainly on the maintainability of the disciplinary proceedings initiated by the Disciplinary Authority and the competency of the authority in passing the order imposing the punishment in view of the pendency of the criminal and civil

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proceedings said to have been initiated by the parties. The bone of contention of the applicants was that O.S.No.88/2007 instituted by the State of Karnataka against the officers/employees for the recovery of the amount pursuant to the punishment order passed was under consideration.

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In the present proceedings, learned counsel for the appellant has filed the certified copy of the judgment and decree passed in O.S.No.88/2007 along with I.A.No.1/2019. There is no cavil on the proposition that the pendency of proceedings pending before the civil or criminal Court would not prohibit the competent authority to initiate disciplinary proceedings against the an erring employee. The Tribunal proceeded to adjudicate on this issue which was focused by the applicants in general. But the factual aspect relating to the case of the petitioner being slightly different, the Tribunal ought to have addressed the issue raised by

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the petitioner relating to the relevant period based on

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which the articles of charge were issued.

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These aspects would certainly have been

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examined by the Tribunal as far as this petitioner is concerned. Review petition filed by the petitioner is also rejected by the Tribunal. There being no such analysis of facts on these aspects, we deem it appropriate to set aside the impugned order and remand the matter to the Tribunal for re-consideration to address on this issue having regard to the material evidence on record.

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Hence, the following

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 21.04.2017 in so

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far as Application No.3682/2011 as well as order dated 21.07.2017 passed in Review Application No.92/2017 by the Karnataka

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Administrative Tribunal at Bangalore are set

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aside. The matter is remanded to the Tribunal for re-consideration.

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iii) All the rights and contentions of the parties are left open.

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iv) The Tribunal shall re-consider the matter in accordance with law and pass a speaking order as expeditiously as possible.

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v) Since the parties are represented by their respective counsel, the parties are directed to appear before the Karnataka Administrative Tribunal on 25.01.2021

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without waiting for any notice and shall take further orders.

Sd/-

JUDGE

Sd/JUDGE

PMR/NC

Sri. M. R. Srinivasa Reddy v. the State of Karnataka

Case brief

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Sri. M. R. Srinivasa Reddy v. the State of Karnataka

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