Sri Krishna Kumar Vs the Additional Chief Secretary

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN SO FAR AS IMPUGNED PENALTY ORDER PASSED BY RESPONDENT NO-1 VIDE ITS ORDER BEARING No.Kam.e.17 BDP 2018 BENGALURU DATED 04.08.2023 PRODUCED HEREWITH AS PER ANNEXUREA13b) SET ASIDE THE IMPUGNED ORDER DATED 20.08.2024 PASSED BY THE HONBLE KSAT BANGALORE IN A.No-4359/2023 (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE APPLICATION No-4359/2023 (ANNEXURE-B) FILED BY THE PETITIONER/ APPLICANT BEFORE THE HONBLE TRIBUNAL IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE B.M SHYAM PRASAD AND HON'BLE MR. JUSTICE T.M.NADAF

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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The unsuccessful applicant is before this Court under

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Articles 226 and 227 of the Constitution of India, calling in question the order dated 20.08.2024 in Application No.4359/2023, passed by the Karnataka State Administrative Tribunal, Bengaluru (‘the Tribunal’ for short). The Tribunal by the impugned order dismissed the application and declined to grant the relief sought in the application.

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The parties are referred to as per their rankings before the Tribunal.

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A brief factual matrix leading to the filing of this petition is as under:

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The applicant was working as a Village Accountant at Mudigere Taluk Office, Mudigere Taluk, Chikkamagaluru District, at the relevant point of time when the incident

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leading to holding of enquiry had taken place. One Puttaswamy S/o Lingegowda of Kannehalli Village Post, Gononbeedu Hobli, Mudigere Taluk, Chikkmagaluru District had filed a complaint before respondent No.2-Lokayukta alleging a demand of Rs.2,50,000/- as illegal gratification for allotment of five acres of land in Survey No.52 of Kannehalli Village, Gononbeedu Hobli, Mudigere Taluk, under the provisions of the Land Revenue Act. However, it was alleged that the applicant had received Rs.3,00,000/- from a rival claimant by name A.S. Harish and allotted the property in his name.

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On the complaint, an investigation under Section 9 of the Karnataka Lokayukta Act, 1984 (‘Act of 1984’ for short) was taken up by the second respondent. A note was issued to the applicant for his submission against the allegations, to which the applicant submitted his reply dated 22.02.2018, stating that due to urgent necessities he had availed a loan of Rs.2,50,000/- and issued a cheque as security in that regard. Subsequently, he had paid the entire amount along with interest to the complainant in the

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presence of Sri.Ravi of Bakki Village, Mudigere Taluk and Sri.Mallikarjuna, who was working as a Village Accountant in the same department and got the cheque returned. However, the complainant was insisting on more interest on the amount and since the same was not considered by the applicant, a false complaint alleging illegal gratification was registered against him. He further stated that he had prepared the file as per the order of the Superior Authority i.e., Assistant Commissioner, Chikkamagaluru and that he had no right to allot the land, therefore, sought to drop the proceedings.

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Dissatisfied with the reply, the second respondent - Karnataka Lokayukta forwarded a report under Section 12(3) of Act of 1984 to the Government with a recommendation to entrust the enquiry. Upon receipt of the report, the Government passed an order entrusting the enquiry under Rule 14-A of the Karnataka Civil Service (Classification, Control and Appeal) Rules 1957, (‘CCA Rules’ for short) with the second respondent.

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Upon entrustment, the second respondent

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appointed an Enquiry Officer to conduct an enquiry against the applicant. The Enquiry Officer on 12.10.2018 issued the Articles of Charges.

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The Articles of Charge issued read as under:

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“You the DGO, Sri Krishna Kumar, Village Accountat O/o Tahsildar, Mudigere, while working as such, has committed the following misconduct since failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and the details of your such misconduct are as follows:

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According to the complaint filed by Sri C.L. Putta Swamy Gowda of Kannehally Village of Gonibeedu Hobli, Mudigere Taluk of Chikkamagaluru district, he is in unauthorized occupation of 2.28 acres of Government Kharab land and cultivating the said land which is situated abutting to his land in sy.no. 52 of Kannehally village. According to him, you, on promising him that, the said land which is in his unauthorized occupation will be regularised in his favour and persuaded him and demanded and received Rs. 2.5 lakhs from him by way of illegal gratification and towards guarantee to do such act of regularizing his unauthoirsed occupation of the said land, you have issued him/C.L. Puttaswamy Gowda an undated cheque for Rs. 2.5 lakhs bearing no. 888509 drawn on Syndicate Bank, Mandya Branch. Since he came to know that, you are trying to get the said land allotted in favour of Sri K.S. Harish, on receiving higher amount of illegal gratification, he filed a complaint to this institution complaining against you and your act of demanding and receiving 2.5 lakhs from him, by way of illegal gratification, to do an official act.

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In your reply, you have claimed that, you have borrowed Rs. 2.50 lakhs as loan from him and issued him the said cheque by way of security for repayment

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and you have claimed in your reply that, you have repaid the said loan and taken back cheque from him.

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But on considering your reply dated 22.2.2018 in the light of the allegations made against you by the complainant, you have not obtained prior permission of the competent authority to borrow loan and you never intimated the borrowing and repayment of alleged loan claimed to have been borrowed from the complainant, to him, the purpose for which you have borrowed the said alleged loan and the source from where you have repaid the said loan and further you have failed to declare the said loan transaction in your annual assets and liabilities statement, thus you have contravened Rule 21(4)(i)(a) of KCS(Conduct) Rules 1966 and thereby acted in a manner unbecoming of a Government servant, and failed to maintain absolute integrity, exhibited negligence and lack of devotion to duty and committed an act of misconduct under Rule 3(1)(i) to (ii) of KCS (Conduct)Rules 1966.”

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The applicant submitted his reply, reiterating the contentions stated in his reply to the Office Note issued by the second respondent. Not satisfied with the reply, the Enquiry Officer proceeded to hold the enquiry.

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The Department in order to substantiate the charges against the applicant examined the complainant as PW.1 and produced seven documents and marked them as Exs.P1 to P7. It is further submitted by the applicant that he has no evidence on his behalf. A statement of the applicant has been recorded on 12.01.2022 as per Rule 11(18) KCS

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(CC&A) Rules 1957. The applicant in response claimed that the evidence led is false. Subsequently, both sides were heard and the Enquiry Officer after going through the evidence both oral as well as documentary came to the conclusion that the charges leveled against the applicant has been proved.

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The Enquiry Officer in his report observed that, the DGO has not stated anything indicating that the complainant as his family member, relative or friend. Further that the applicant has not led any evidence to substantiate his stand taken, either in reply to the Office Note issued under Section 9 of the Act of 1984 or to the Articles of Charge. The Enquiry Officer submitted his report along with findings to the second respondent holding that charge leveled has been proved. Upon receipt of the enquiry report, the Karnataka Lokayukta forwarded the same to the first respondent-Government along with a recommendation for imposing penalty of compulsory retirement.

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The first respondent-Government, subsequent to

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the receipt of report along with the recommendation issued a second show cause notice along with copies of enquiry report and recommendation to the applicant calling upon him to submit his reply to the enquiry report as well as recommendation. At the first instance, the applicant sought a month's time to submit his reply by letter dated 14.11.2022. Subsequently, on 22.12.2022 he has submitted his reply, which has been extracted in the final order passed by the first respondent-Government at Annexure–A13 dated 04.08.2023. The first respondent-Government was not satisfied with the reply and after going through the entire report, evidence both oral and documentary so also recommendation, was of the opinion that it found no other suitable penalty except the one recommended by the second respondent-Lokayukta and passed an order of compulsory retirement against the applicant. Subsequent to the order passed by the first respondent, an Official Memorandum dated 04.08.2023 was issued by the fourth respondent,

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removing the applicant from the service on compulsory retirement.

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Aggrieved by the impugned order of compulsory retirement dated 04.08.2023 (Annexure-A13), the enquiry report dated 12.08.2022 (Annexure-A9) and the recommendation dated 19.08.2022 (Annexure-A10), the applicant was before the Tribunal in Application No.4359/2023.

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Before the Tribunal, the applicant has contented

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that the amount of Rs.2,50,000/- was taken as a loan, for which a cheque was issued as security. After repayment of the entire loan amount along with interest and in the presence of persons known to both applicant and the complainant, the cheque was returned. The complainant retained a xerox copy of the cheque with mala fide intention. As the demand of the complainant for payment of amount in excess of what had already been repaid, he had approached the second respondent-Lokayukta, with the awful motive of harassing the applicant.

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It was further contented that, the applicant

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submitted his reply to the Office Note issued by the second respondent on the complaint, stating clearly that it was only a loan transaction and not any demand and receipt of money. However, the same was not considered either by the Lokayukta or by the Government, while issuing the report under Section 12(3) or while entrusting the matter for departmental enquiry. The Government, without application of mind while exercising its powers under Section 12(4) of Act of 1984, entrusted the matter to the second respondentLokayukta under Rule 14-A of CCA Rules.

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He has further stated that even the Enquiry Officer did not properly considered the reply submitted to the Articles of Charge. As both oral as well as documentary evidence were not properly considered/appreciated, the finding of the Enquiry Officer suffers from perversity. Accordingly, the applicant has sought to allow the application by setting aside the impugned order and grant the reliefs sought in the application.

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The first and fourth respondent-Government have

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filed their reply, supporting the enquiry report and contending that the order passed by the Government was just and proper and in accordance with the Rules prescribed under the CCA Rules. The second and third respondents also filed their statement of objections, stating that the applicant was given a fair opportunity in the enquiry.

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They further contended that, the charges levelled has been proved by leading both oral as well as documentary evidence. The applicant, despite providing ample opportunities did not choose to lead any evidence in support of his contentions either in response to the Office Note under Section 9 of the Act of 1984, or to the Articles of Charge or the second show cause notice. In the absence of substantial material supporting his contentions, the Enquiry Officer, after considering the entire materials found that the charge levelled against the applicant has been proved and submitted the report in accordance with the provisions of the CCA Rules. The Government, after issuing the second show cause notice and considering the applicant’s reply

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passed the impugned order, which does not suffer from any infirmity and is in accordance with the Rules supra. Accordingly, both the Government and the Karnataka Lokayukta have sought to dismiss the application.

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The Tribunal, after hearing the rival submission held that the enquiry conducted was fair and proper, after providing ample opportunities to the applicant. Further observed that the order passed by the Government, after considering the applicant’s reply to the second show cause notice, does not suffer from any infirmities and is in accordance with the provisions of the CCA Rules, as there was no contra evidence placed by the applicant in support of his contentions taken, either before the Karnataka Lokayukta in reply to the Office Note under Section 9, or in response to the Articles of Charge. The Tribunal found that, in the absence of any counter-evidence, the applicant’s claim that the findings of the Enquiry Officer were perverse does not hold any water.

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The Tribunal also referred to several judgments of the Hon'ble Apex Court regarding judicial review of Tribunals on departmental enquiries and observed that, both the enquiry report and the order passed by the Government are just and proper, recording reasons more particularly at paragraph Nos.7 and 8 of the order, resultantly, the Tribunal dismissed the application, holding that the applicant has failed to make out any case warranting interference. It is this order passed by the Tribunal, is called into question in this petition.

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Sri.Naik Venkatraman, learned counsel for the appellant reiterating the same contentions urged before the Tribunal, with all vehemence submitted that the Enquiry Officer has not considered the points raised either in the earlier reply or in response to the Articles of Charge.

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The Tribunal has not properly appreciated the evidence of PW-1 and the documents produced by the said witness. In these circumstances, the finding of the Enquiry Officer suffers from perversity. Further, the applicant/

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petitioner relied on the circular issued by the Government regarding the imposition of penalty for proved misconduct and referred to Item No.19, which states that 'obtaining loans or investments, paying and receiving loan without prior permission under the KCS (Conduct) Rules, 1966, constitutes misconduct'. The circular provides that the punishment against such misconduct at item No.19 is reduction of pay at the time of initial appointment, referring to the charge framed, which we have already extracted, wherein it is stated that, the applicant claimed that the amount of Rs.2,50,000/- was borrowed as a loan with the issuance of a cheque as security was repaid and the cheque was returned and contended that this charge has not been considered.

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As per the Articles of Charge, the Enquiry Officer found that, the loan transaction was not shown in the annual assets and liability statement, which amounts to a contravention of Rule 21(4)(i)(a), of KCS(Conduct) Rules, 1966, and amounts to manner/behavior unbecoming of a

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Government servant, showing negligence, lack of devotion to duty and failure to maintain absolute integrity and falling under misconduct as contemplated under Rule 3(1)(i)to(iii) of KCS (Conduct) Rules, 1966.

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The contention of the applicant before us is that the transaction alleged was a loan transaction and the same has been repaid. The non-obtaining of prior permission for borrowing loan is squarely covered and may not be a gross misconduct as contemplated under Rule 3 stated supra, which demands imposition of compulsory retirement as ordered by the Government. However, the same may be modified to reduction of pay to the lower level in terms of the circular dated 14.09.2021. Accordingly, he sought the indulgence of this Court for modifying the punishment from compulsory retirement to the one stated in the Circular supra.

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We have gone through the entire materials placed before us in the writ petition. Before the Enquiry Officer, the applicant has not produced any evidence to show that the

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amount had been borrowed by him as a loan as contented in his reply. He has stated that the amount, which was borrowed as loan by way of issuing a cheque as security had been repaid in the presence of two witnesses and the cheque had been returned back. However, no witnesses have been examined to substantiate his statement. What is stated in the Articles of charge referred by the petitioner is with respect to charge memo regarding non-taking of permission based on the reply, in the event the same is true.

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However, to the query of the Court, the learned counsel is unable to place before us any record to show that he had produced any materials to show that the charge alleged against him is a loan transaction. He has not examined any witness before the Enquiry Officer. The part of the charge memo referred by the petitioner, is in the event the applicant proves that the amount involved and alleged against him, is a loan transaction. In the absence of proof to that effect, since the first part of the charge has been proved in the manner known to law, we are of the opinion that the

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circular relied on by the applicant do not come to the aid of the applicant, as the circular is very specific with respect to a misconduct to a particular charge.

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In this case, there is nothing on the record to show that the applicant has substantiated his defence of availing loan and repayment in contravention of Rule 24 stated supra. In the absence of any contrary evidence, the Enquiry Officer, relying on the materials placed before him oral as well as documentary, has given his findings that the charge has been proved. We have gone through the evidence of PW.1 and also the cross-examination, except certain suggestions which are not at all concerned with the defence taken, nothing worthwhile has been elicited to discard the evidence of PW.1, in consonance with the defence taken by the applicant.

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We are not inclined to accept the arguments advanced by the learned counsel appearing for the applicant, either on the perversity of the findings of the

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Enquiry Officer or on the modification of penalty in terms of the circular stated supra.

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We find that the order passed by the Government upon consideration of materials and enquiry report as well as the reply by the applicant is a reasoned one in factual background, and same is rightly considered by the Tribunal. The Tribunal, after going through the entire material placed before it, has properly come to the conclusion that there is no perverse finding as alleged by the applicant in the enquiry report and order of penalty is as per the provision of CCA Rules, 1957.

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