Sri Togya Naik Vs the State of Karnataka

THE STATE OF KARNATAKA REPRESENTED BY IT'S UNDER SECRETARY DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATH RAJ ENGINEERING M.S.BUILDING BENGALURU 560 001

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THE ADDITIONAL REGISTRAR OF ENQUIRIES -14 KARNATAKA LOKAYUKTA M.S BUILDING BENGALURU-560 001

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THE EXECUTIVE ENGINEER PANCHAYATH RAJ ENGINEERING DIVISION CHITRADURGA DISTRICT-585 202

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…RESPONDENTS

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(BY SRI. VIKAS ROJIPURA, AGA FOR R1 TO R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORD IN APPLICATION No. 3611/2022 ON THE FILE OF HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT BENGALURU, IN THE INTEREST OF JUSTICE AND EQUITY AND ISSUE A WRIT OF CERTIORARI OR ANY APPROPRIATE ORDER BY QUASHING THE IMPUGNED ORDER DATED 27.05.2023 IN APPLICATION No. 3611/2022 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT BENGALURU AS PER ANNEXURE-B, AND CONSEQUENTLY QUASHING THE IMPUGNED ORDER DATED 10.03.2022, BEARING Sl.No.GRA.AA.PA/96/ENQ/2021, PASSED BY THE 1^ST RESPONDENT, AS PER ANNEXURE-A10 AND ALLOW THE APPLICATION FILED BY THE PETITIONER AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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The present writ petition is filed by the petitioner under Article 226 and 227 of the Constitution of India, challenging the order dated 27.5.2023 passed by the Karnataka State Administrative Tribunal (hereinafter referred to the Tribunal') in Application NO.3611/2022, whereby, the Tribunal dismissed the petitioner's application seeking to quash the penalty order dated 10.3.2022. The petitioner, a Junior Engineer in the Panchayath Raj Engineering Sub-Division, Hiriyuru, Chitradurga District, was imposed a penalty of withholding one annual increment for alleged misconduct under Rule 3(1)(i) to (iii) of the Karnataka Civil Services (Conduct) Rules, 1966 (in short the Rules').

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Factual Matrix:

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2. The factual backdrop of the case, as culled

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out from the pleadings and documents on record, is as

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follows:

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The petitioner was serving as a Junior Engineer in the Panchayath Raj Engineering Sub-Division, Hiriyuru, Chitradurga District, during the years between 2006 and 2007.

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A complaint was lodged by one Smt.Gangamma before the Karnataka Lokayukta on 1.9.2007, alleging that petitioner along with two other officials had misappropriated Govt.funds by drawing bills without executing the work of constructing check bunds in Sy.No.53, Vaddagere Village, H.D.Kote Grama Panchayath. It is alleged in the complaint that petitioner and other Government Employees had shown excess measurement in the work done,

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thereby caused monetary loss of Rs.33,102/- to the Government.

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Based on the complaint, a charge sheet was issued on 27.6.2016, alleging, that petitioner and other two officials were responsible for the excess payment of Rs.33,102/- due to an excess measurement of 592.71 cms. in the construction of a check dam. Charges were framed under Rule 3(1)(i) to(iii) of Rules, for misconduct, dereliction of duty and failure to maintain integrity.

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the petitioner filed a detailed statement of objections denying the charges and specifically contended, that the work was executed as per the guidelines under the National Rural Employment Guarantee Scheme (NREGS) (hereinafter referred as `Scheme') and that no excess payment or measurement was made.

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An enquiry was conducted, during which, the complainant (PW.1)

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admitted that she did not know the contents of the complaint and had signed it on her husband's instructions. PW.2, Superintendent Engineer has stated that, he could not verify the original measurement due to the lapse of time and vegetation growth at the site.

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Despite petitioner's objections and lack of direct evidence, the enquiry officer submitted a report dated 2.9.2021 holding that the charges are proved. The Upalokayukta recommended withholding one annual increment of the petitioner which was subsequently imposed by the disciplinary authority vide orders dated 10.3.2022.

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The petitioner challenged the aforesaid penalty order before the Tribunal which dismissed the application on 27.5.2023 by upholding the findings of the enquiry officer and the penalty imposed.

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This is how now the petitioner is before this Court seeking the aforesaid reliefs by filing this petition under Article 226 and 227 of Constitution of India.

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Submissions of the Counsel for the Petitioner:

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The learned counsel for the petitioner in

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addition to the facts so narrated in the petition as well as findings of the Tribunal took this Court to the various evidence conducted before the Enquiry Officer. His submissions are set out as under:

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The complainant (PW.1) has denied the contents of the complaint and admitted that

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she had signed the complaint at the instructions of her husband but, the enquiry officer has failed to examine the husband rendering the findings unsustainable.

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• PW.2, a Superintendent Engineer has stated in his evidence that he could not identify the original measurements due to lapse of time

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and vegetation growth. Despite this evidence, the Enquiry Officer has wrongly held that the charges are proved though there is no sufficient evidence.

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• It is further submitted that the work was executed as per the guidelines and the payments were made through RTGS through labourer's Account. He submits that there is no evidence of excess payment or dereliction

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of duty.

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The impugned orders are arbitrary, illegal and violated the principles of natural justice.

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It is prayed to allow the petition.

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Submissions of the Counsel for the Respondents:

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The submissions of the counsel for the respondents are as under:

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The enquiry officer's report is purely based on evidence including the complainant's signature and panchanaa Ex.P4. The petitioner has failed to disprove the charges and thereby, the penalty so imposed by the Disciplinary Authority is proportionate to the misconduct.

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The Tribunal has rightly dismissed the application of the petitioner after considering the evidence placed on record.

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Principles of natural justice were duly followed and this petitioner was given ample, sufficient opportunity to present his case and crossexamine the witnesses.

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The scope of judicial review in disciplinary matters is limited and this Court cannot reappreciate the evidence and cannot act as an Appellate Authority. Hence, it is prayed to

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dismiss the petition.

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Findings and Analysis:

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After hearing the arguments of both the

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side and on perusal of the records, we are of the considered view that the petition is liable to be dismissed for the following reasons:

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As could be seen from the records placed on record by both the side, the petitioner was afforded a fair and reasonable opportunity to present his defence, to file his objections and cross-examine the witnesses before the Enquiry Officer. The complainant (PW.1) was treated as a hostile witness and her cross-examination was conducted in accordance with law. Even the petitioner was given opportunity to present his evidence and to submit his arguments before the Enquiry Officer, Disciplinary Authority and the Tribunal. Thus, the principles of natural

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justice which is now questioned by the petitioner were scrupulously followed by the authorities concerned and

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thus, there is no violation of the petitioner's right in this regard.

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The Enquiry Officer has relied upon the complainant's signature and the panchanama (Ex.P4) to conclude that the charges so levelled against the petitioner and other DGOs are proved. Though the complainant denied the contents of the complainant, it is observed that, her admission of her signature and the pancahnama prepared in the presence of DGO, it provided

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a credible basis for the findings by the Enquiry Officer.

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Therefore, from the records, it can be stated that, the report of the enquiry officer is not based on any mere conjunctures or surmises but, it is based on documentary evidence which carries significant weight in the disciplinary proceedings.

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PW.2, a Superintendent Engineer has

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stated that he could not identify the original measurements due the lapse of time and vegetation

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growth. However, as per the materials placed on record, as rightly observed by the Enquiry Officer and affirmed by the Disciplinary Authority, this does not invalidate the findings of the enquiry officer. The panchanama and other documents so placed on record constitute sufficient evidence to support the charges. The inability to verify the measurements after a long lapse of time does not absolve the petitioner of the alleged misconduct especially when other corroborative evidence is very much available on record.

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The penalty of withholding one annual

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increment is a minor punishment and is proportionate to the misconduct alleged. It does not amount to a severe or disproportionate penalty. While imposing such penalty, the disciplinary authority exercised its discretion judiciously and we find no reason to interfere with the quantum of punishment as because, the scope of judicial review in disciplinary matters is inherently limited. While exercising the jurisdiction under Articles 226 and 227 of

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Constitution of India, the Courts do not sit as an Appellate Authorities over the findings of disciplinary proceedings.

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The role of this Court under Article 226 and 227 is not to

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re-appreciate the evidence or to substitute its own view for that of the enquiry officer or disciplinary authority. Instead of that, the court's function is confined ensuring that the principles of natural justice have been followed or not and whether the findings are based on no evidence and further the Court has to look into the decision that whether it is perverse or arbitrary. As per the plethora of judgments of the Hon'ble Apex Court and judgments of this Court, the standard of proof required is, not as stringent as in criminal cases wherein, the charges in criminal cases must be proved "beyond all reasonable doubt". In case of disciplinary proceedings, the principle that is applicable is "preponderance of probabilities". This principle implies that the Enquiry Officer or the Disciplinary Authority must determine whether the charges are more likely to be true than not, which must be based on evidence presented before them. It is a lower

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threshold of proof which allows for a decision to be made even if there is some degree of uncertainty, provided that, the evidence tilts the balance in favour of one conclusion over the other.

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The complainant PW.1 denied the contents of

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the complaint and states that, she has signed it on her husband's instructions and she did not deny her signature on the complaint. The Enquiry Officer, relying upon the panchanama Ex.P4 and other documentary evidence has come to the conclusion that, the complainant was credible despite denial of its contents by the complainant. Thus, preponderance of probabilities tilted in faovur of Disciplinary Authority as the signature on the complaint and the panchanama provided sufficient corroboration. Even the evidence of PW.2 shows that, because of lapse of time and vegetation growth at the site he could not verify the original measurement. But, however, this did not negate the documentary evidence such as the measurement book (MB books) and the panchanama

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which do demonstrate about the excess measurements. The enquiry officer, applying the principles of preponderance of probabilities, has rightly concluded that the evidence on record supported the charges. The enquiry officer relied upon the panchanama, measurement books and other documents to conclude that the petitioner had shown excess measurements which lead to excess payment of Rs.33,102/-. Though the petitioner contended that the work was executed as per the guidelines and no excess payment is made, but, the documentary evidence prima facie tilted in favour of the disciplinary authority. The petitioner, by way of his defence evidence examined witnesses and produced documents to state that the work was executed as per the guidelines and the payments were made through RTGS to the labourers. However, the enquiry officer, after weighing the evidence found that the defence evidence did not outweigh the evidence presented by the disciplinary authority. The principles of preponderance of

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probabilities was rightly applied to conclude that charges

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are proved and which is more likely to be true than not.

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The Tribunal, in its adjudicatory capacity, meticulously has scrutinized and evaluated the entirety of the evidentiary material and has considered the submissions of both the side before dismissing the application of the petitioner. On scrupulous reading of the Tribunal's order, it is judicially reasoned, meticulously balanced and devoid of any legal infirmity or procedural irregularity. The Tribunal in its wisdom appropriately affirmed the findings of the enquiry officer and the Disciplinary Authority which were grounded in a cogent analysis of evidence on record. In the light of the foregoing discussion, we find no compelling justification or legal basis to interfere with or overturn the Tribunal's well-considered decision.

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In the light of the foregoing analysis, we

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are of the considered opinion that impugned orders dated

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10.3.2022 and 27.5.2023 are legally tenable, procedurally sound and in consonance with the principles of natural justice. The charges leveled against the petitioner were substantiated on the strength of evidentiary material adduced during enquiry proceedings and the penalty imposed is commensurate with the gravity of the proved misconduct. The petitioner is unable to establish any manifest perversity, jurisdictional error or legal infirmity in the findings rendered by the Enquiry Officer, the disciplinary Authority or the Tribunal. Consequentially, no interference is called for with the impugned orders.

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