Partly allowed

Sri P Divakar v. the Chairman

Karnataka HC5 Jun 2024WP/13993/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka held that an office order dismissing a contract employee without a second show cause notice violated natural justice. The court quashed the dismissal order and directed that the disputed notices be treated as a valid second show cause notice, allowing the petitioner a chance to respond.

What did the court decide?

The communication dated 11.01.2024 quashed; the Notice and Office Order dated 16.05.2022 directed to be read as the second show cause notice.

Sri P Divakar Vs the Chairman — Service and Employment | Karnataka HC (2024)

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 13993 OF 2024 (S-RES)

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BETWEEN:

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SRI P DIVAKAR AGED ABOUT 51 YEARS, S/O LATE H PUTTASWAMY, RESIDING AT NO 676, NIT LAYOUT, 2ND PHASE, RAJIV GANDHI NAGAR, BENGALURU 560097

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…PETITIONER

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(BY SRI. VIVEKANANDA T P., ADVOCATE)

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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AND:

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THE CHAIRMAN KARNATAKA STATE POLLUTION CONTROL BOARD, PARISARA BHAVANA, NO 49 CHURCH STREET, BENGALURU 560001

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THE KARNATAKA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS MEMBER SECRETARY

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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PARISARA BHAVANA, NO 49 CHURCH STREET, BENGALURU 560001

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…RESPONDENTS

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(BY SRI. GURURAJ JOSHI, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO QUASH THE OFFICE ORDER BEARING NO. PCB/23/ADA/12/333 DATED 16/05/2022 AT ANNEXURE-V1 ISSUED BY THE FIRST RESPONDENT AND THE COMMUNICATION BEARING NO. PCB/23/ADA/12/1789 DATED 11/01/2024 ISSUED BY THE FIRST RESPONDENT AT ANNEXURE-X; DIRECT THE RESPONDENTS TO FORTHWITH RE-IN-STATE THE PETITIONER INTO SERVICE AND PAY BACK WAGES / DAMAGES FOR ILLEGALLY PREVENTING THE PETITIONER FROM DISCHARGING THE DUTIES ATTACHED TO THE POST OF LAW ASSISTANT IN THE R1 IN SPITE OF EXONERATION IN THE DISCIPLINARY PROCEEDINGS.

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THIS PETITION, COMING ON FOR

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PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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ORDER

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The petitioner, who has faced criminal prosecution and departmental proceedings consequent to certain action taken under the provisions of the Prevention of Corruption Act 1988, has repeatedly invoked jurisdiction of this Court under Article 226 of the Constitution of India. Instead of recording in detail the different proceedings commenced by the petitioner as aforesaid, for the purposes of the present writ petition, it would suffice for this Court to record some of the material details. The petitioner has the advantage of the order dated 18.02.2013 in Crl.P.No.5981/2012 which draws curtains on the allegation for penal consequences, and the inquiry in the departmental proceedings is concluded with the Inquiry Report dated 03.09.2018 holding that the charges against the petitioner are not proved.

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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The employer - the second respondent has

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issued the Communication dated 26.08.2020 informing the petitioner that he cannot be reinstated consequent to such report because he was taken on rolls on a contract. This Court has interfered with such Communication in W.P.No.7888/2020 [S-RES], and next, the second respondent has issued the Endorsement dated 04.12.2020 disagreeing with the Inquiry Report dated 03.09.2018 and informing the petitioner that he cannot be reinstated. This Court, while considering the merits of such Endorsement in the petitioner’s next writ petition in W.P.No.895/2021 [S-RES], has remitted the matter back for reconsideration from the stage of considering the Inquiry Report dated 03.09.2018 observing that the Disciplinary Authority shall act based on the Inquiry Report in the light of certain observations as regards the need of second show cause notice.

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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It is after these proceedings, the second respondent has issued impugned Notice and Office Order, and both of these are dated 16.05.2022. Sri. T. P. Vivekananda, the learned counsel for the petitioner, submits that the respondents, in the light of this Court's observations in the order dated 28.03.2022 in W.P.No.895/2021 [S-RES], cannot dispute that the petitioner is entitled for second show cause notice which must essentially be a reasonable opportunity to show why the Inquiry Report must be accepted, and that with the simultaneous issuance of the Notice and the Office Order dated 16.05.2022, the petitioner is denied such opportunity.

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Sri. Gururaj Joshi, the learned counsel for the respondents, submits that if the Notice is issued by the Member Secretary, the Office Order is issued by the Chairman; that the petitioner has indeed been extended an opportunity as is contemplated vide Notice dated 16.05.2022 and that this is seen in the

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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issuance of the Communication dated 11.01.2024 [Annexure – X] to the petitioner. Sri. Gururaj Joshi emphasizes that the petitioner, who is only hired on contractual basis, cannot insist upon a right to be reinstated.

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This Court must opine that none of these contentions meet the grounds raised by the petitioner in this petition. It remains indisputable that the petitioner has not had the opportunity that would be a necessary concomitant of the second show cause notice as enabled by this Court while disposing of the earlier writ petition in W.P.No.895/2021 [S-RES]. Further, it is too trite that post decisional opportunity cannot be due opportunity when such requirement is deemed to be an essential part of the process. Therefore, the petitioner must succeed.

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However, given the nature of the litigation

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and the petitioner's contention that despite the Inquiry Report in the year 2018, a decision has not

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NC: 2024:KHC:19357 WP No. 13993 of 2024

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been taken in a manner that would pass muster in law, this Court is of the considered view that the petition must be disposed of reading both the impugned Notice and the Office Order dated 16.05.2022 as the second show cause notice with reasonable opportunity to the petitioner to respond to the same. This Court must also observe that the respondents, this time shall not act in haste and will be just and reasonable in their decision making process to prevent avoidable litigation as only this can abode well in law and escape censure. In the light of the above, the following:

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ORDER

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a) The petition is allowed in part. The Communication dated 11.01.2024 [ Annexure-X ] is quashed, and the impugned Notice and the Office Order dated 16.05.2022 [ Annexures - V and V1 ] are directed to be read/construed as the second show cause notice

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8 - NC: 2024:KHC:19357 WP No. 13993 of 2024

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issued by the respondents in

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compliance with this Court's order dated 28.03.2022 in W.P.No.895/2021 [S-RES].

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b) The petitioner will be at liberty to file response to such show cause notice within four [4] weeks from today. The first and second respondents shall consider such response strictly in accordance with law within a period of eight [8] weeks from the date of receipt of response from the petitioner.

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Sd/JUDGE

Sri P Divakar v. the Chairman

Case brief

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Sri P Divakar v. the Chairman

Case brief

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