THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 23.11.2020 PASSED BY THE R1 AUTHORITY VIDE ANNEXURE-A1 HOLDING THE SAME IS ILLEGAL AND ARBITRARY AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, KRISHNA S DIXIT J., MADE THE FOLLOWING:

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ORDER

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Petitioner, a civil servant was arrayed as one of the delinquents along with twelve others in a disciplinary proceeding for certain misconducts. The Enquiry Officer found inter alia the petitioner guilty, submitted his report. Having had the version of the petitioner, the Disciplinary Authority accepted the Enquiry Report pursuant to proceedings entrusted to Lokayukta under Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, levied a punishment of dismissal from service. Petitioner's Application

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No.7258/2013, having been turned down by the Karnataka State Administrative Tribunal vide order dated 28.1.2019, he is knocking at the doors of this Court.

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Learned counsel for the petitioner seeks to falter the impugned order of the Tribunal as also order of dismissal from service contending that: the joint enquiry without compliance of pre-requisites could not have been held; the enquiry was ordered without furnishing preliminary enquiry report; the initiation of enquiry was enormously delayed to the disadvantage of delinquent; though there were twelve other co-delinquents, grave charges were framed only against the petitioner and this is discriminatory. So arguing, he seeks voiding of the Tribunal's order and the order of punishment.

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Learned AGA on request, appearing for the respondent Nos.1, 3 & 4 and learned Panel Counsel Sri.Venkatesh S Arbatti appearing for the office of Lokayukta, resist the petition making submission in support of impugned order of Tribunal as also levy of punishment of dismissal. They contend that this court exercising a limited supervisory jurisdiction constitutionally vested u/a 227, is not a court of

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appeal and therefore, the focal point of examination should be the decision making process as distinguished from decision itself; the Enquiry Report found inter alia the petitioner guilty of grave charges; petitioner's say was had on the same and only thereafter, the punishment order has been passed, regard being had to proven misconduct of grave nature. Repelling the submission of learned counsel for the petitioner, they seek dismissal of the Writ Petition.

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Having heard learned counsel for the parties and having perused the Petition papers, this court is broadly in agreement made on behalf of the respondents. The Tribunal comprising of experts, who have the advantage of accumulated wisdom in matters like this, have upheld the findings adversely recorded against the petitioner and also found that the punishment of dismissal awarded to him is perfectly in accord with the gravity of proven misconduct. This court exercising a limited supervisory jurisdiction constitutionally vested u/a 227, cannot undertake a deeper examination of the contention advanced at the Bar, as if it is a court of appeal vide SADHANA LODH vs. NATIONAL INSURANCE COMPANY LIMITD, (2003) 3 SCC 524.

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The first contention of the petitioner's counsel that his client was not furnished a report of preliminary enquiry and therefore, enquiry proceedings are vitiated is difficult to countenance. A preliminary enquiry is held to decide whether matter merits a full fledged disciplinary enquiry and at that stage, ordinarily, the suspects are not notified. Justice Rama Jois in his 'Services under the State' N.M. TRIPATI, 1987 at page 446, writes:

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"Administrative instructions to providing for the holding of a preliminary enquiry to find out whether there is any prima facie case made out against the government servant concerned for instituting a departmental enquiry, are only of an administrative nature and do not affect the validity of the disciplinary proceedings instituted against an official without first holding a preliminary enquiry. A departmental enquiry proceeding cannot be challenged on the ground that no preliminary enquiry was held. "

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The second contention that there could not have

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been a joint enquiry in the matter when several delinquents of different cadres and participation were implicated, is again bit difficult to countenance. The allegations were as to misappropriation of huge funds of the respondent-College;

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there were as many as thirteen delinquent employees who after a preliminary enquiry were suspected to be involved in the episode. Each one of them apparently had a role that was investigated into in the joint enquiry. It has been a settled position of law that when a number of officers belonging to different cadres are jointly in involved in misconduct, it is competent for the government to institute disciplinary proceedings jointly against all the officers. In such a case, the disciplinary authority which is competent to dismiss the highest officer involved, would be the authority competent to institute disciplinary proceedings against all the officers involved. This view gains support from RACHAIAH vs. DIG OF POLICE, (1979) 2 KAR.L.J. 203. The decision cited by the learned counsel for the petitioner namely STATE OF KARNATAKA VS. RAVI KUMAR in WP Nos.29818 & 56278 of 2013 (S-KAT) disposed off by a Coordinate Bench of this Court vide order dated 10.04.2014, does not much come to his aid since it was rendered specific to the facts. Its arguable ratio does not support contention of the kind.

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The third contention of the petitioner was as to

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enormity of the delay in initiating and concluding the

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disciplinary proceedings. His contention that delay defeats equity & justice and therefore, on that ground alone, the impugned order of dismissal from service is liable to be voided, does not merit countenance. Ordinarily, a disciplinary proceeding has to be initiated & accomplished within an outer limit of one year, is true. However, that is not a Thumb Rule; secondly, where funds involved in misappropriation are huge and suspects are plural in number, and further an avalanche of records needs to be looked into, adhering to the timeline is nearly impossible. In such cases, delay cannot be a sufficient ground for quashment of very enquiry proceedings that culminated into dismissal order.

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The last contention of the petitioner that he alone

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has been singled out for grave charges and gravest punishment namely dismissal, all others having been framed with lesser allegations, does not merit acceptance. In a joint enquiry concerning a series of transactions that resulted into huge misappropriation of public funds naturally involves several delinquent persons; it is not that every delinquent employee should be charged with the same allegations in a joint enquiry; it all depends upon the role played by each of them; at times,

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these roles are different qua the persons involved. Learned AGA is more than justified in contending that it is open to the competent authorities to frame different charges against persons implicated in the enquiry depending upon the role played by each of them and the evidentiary material available in support thereof. This view gains support from the decision of Apex Court in State of Uttar Pradesh Vs. Rajit Singh in 2022 SCC Online SC 341 .

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In the above circumstances, the petition being devoid of merits is liable to be dismissed and accordingly, it is, costs having been made easy.

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Sd/JUDGE

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Sd/JUDGE

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MEG List No.: 1 Sl No.: 17 CT:SNN

B R Swamy v. State of Karnataka

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B R Swamy v. State of Karnataka

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