Sri Shishupala K Vs the Commissioner

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED: 03.02.2017 BEARING NO: ADM 7/AP 10/16-17 PASSED BY THE R-1 PRODUCED VIDE ANNEXURE-H AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

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ORAL ORDER

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This writ petition is filed under Articles 226 & 227 of the Constitution of India, challenging the order dated 03.02.2017 vide Annexure-H passed by the appellate authority, confirming the order passed by the disciplinary authority dated 29.06.2016 vide Annexure-G, dismissing the petitioner from the service.

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The petitioner was working as a Second Division Assistant in the fourth respondent - Temple. When he was in service, the disciplinary enquiry has been initiated against him for misappropriation of the funds of the temple. The enquiry officer has been appointed. The

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enquiry officer submitted a report on 30.04.2016 vide Annexure-F. On the basis of the enquiry officer’s report, the impugned order has been passed and the petitioner has been dismissed from the service.

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The learned counsel for the petitioner raised the following contentions:

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(i) Firstly, the impugned order vide Annexure-G is passed by the incompetent authority, the Executive officer has no power to impose penalty on the petitioner. The

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same is contrary to Rule 17 of the Karnataka Hindu Religious Institutions and Charitable Endowment Rules, 2002 (for short, ‘2002 Rules’).

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(ii) Secondly, after the enquiry officer submitted the report, the copy of that report has not been furnished to the petitioner and before imposing the penalty, no notice has been given. In support of his contention, he relied on the judgment of the Apex Court in the case of STATE OF

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UTTAR PRADESH THROUGH PRINCIPAL SECRETARY,

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4 -

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DEPARTMENT OF PANCHAYATI RAJ, LUCKNOW vs. RAM PRAKASH SINGH reported in 2025 SCC Online SC

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891. Hence, he sought to allow the writ petition.

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The learned counsel appearing for the second and fourth respondents has raised the following contentions:

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(i) Firstly, after the initiation of the departmental enquiry against the petitioner, notice has been given, the petitioner has submitted a reply. Thereafter, the enquiry officer has been appointed. On submission of the report by the enquiry officer, all the records along with the enquiry report has been placed before the Administrator of the fourth respondent. After going through the enquiry report and the records, he has taken a decision to remove the petitioner from the service. The order of the fourth respondent has been communicated by the Executive Officer of the Temple. Therefore, as per Rule 17 of the 2002 Rules, the competent authority has passed the impugned order of dismissal.

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(ii) Secondly, the petitioner has taken a contention that enquiry report has not been furnished to him and no opportunity has been given to submit a reply before imposing the penalty. This ground has not been taken before the appellate authority, for the first time, it has been taken before this Court and it is not in the pleadings also. Hence, the same is untenable and sought for dismissal of the writ petition.

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Heard the learned counsel for the parties and perused the petition papers.

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When the petitioner was working as a Second Division Assistant, a departmental enquiry has been initiated and he has been kept under suspension. On 20.08.2015 (Annexure-A), a show cause notice has been issued to the petitioner for initiation of the departmental enquiry. Pursuant to the said notice, the petitioner submitted his reply on 21.08.2015 (Annexure-B). On not being satisfied with the reply, the respondent has

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appointed the enquiry officer. The enquiry officer, after giving opportunity to the petitioner has submitted a report on 30.04.2016 vide Annexure-F holding that the charges against the petitioner was proved. The said report has been placed before the Administrator on 13.06.2015 and the Administrator has taken a decision to dismiss the petitioner from service. That order has been communicated to the petitioner by the Executive Officer on 29.06.2016 vide Annexure-G.

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Before imposing the penalty of dismissal vide Annexure-G, the enquiry report has not been furnished to the petitioner and no opportunity has been given to the petitioner. The Apex Court in the case of RAM PRAKASH SINGH (supra) has held that even if the disciplinary rules are silent on providing the enquiry report to the delinquent employee or prohibit it, the employee still has a right to get the enquiry report. Denying the report means denying

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a fair chance to defend oneself.

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Admittedly, the enquiry report has not been furnished to the petitioner. On the short ground of violation of the principles of natural justice, the impugned order requires to be quashed.

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In view of the above, the following order is

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passed:

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(i) The writ petition stands disposed of. (ii) The impugned orders dated 29.06.2016 and 03.02.2017 vide Annexures G and H, respectively, are quashed.

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(iii) Since the petitioner is already out of service, the respondent is directed to furnish the enquiry report along with the second show cause notice to the petitioner, within four weeks from the date of receipt of a copy of this order.

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(iv) If the petitioner has any reply to the same, he can submit the same within two weeks

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from the date of receipt of the notice. Thereafter, the respondent is directed to pass an order within four weeks from the date of receipt of the reply.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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CM LIST NO.: 1 SL NO.: 29

Sri Shishupala K v. the Commissioner

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Sri Shishupala K v. the Commissioner

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