Smt. Rathnamma Vs State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE SHOW CAUSE NOTICE ALONG WITH ARTICLE OF CHARGES (ANNEXURE-1 TO 4) DATED 16.07.22 IN NO. Na.Aa.E/16/TU.MA.PA/2018 ISSUED BY THE 1ST RESPONDENT MARKED AT ANNEXURE-G.

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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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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioner filed this writ petition seeking for

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following reliefs:

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"(a) issue an order or direction or writ in the nature of writ of certiorari quashing the show cause notice along with Article of charges (Annexure-1 to 4) dated 16.7.2022 in No.Na.Aa.E/16/Tu.Ma.Pa /2018 issued by the 1st respondent marked at Annexure-G.

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(b) issue any order or orders as deems fit and proper including the cost of the proceedings in the interest of justice and equity."

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Brief facts leading rise to the filing of this writ petition are as follows:

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2.1. The petitioner was appointed as a Second Division

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Assistant in 1998 and posted in the respondent-Department at Tumkur City Corporation and thereafter, he was promoted as a First Division Assistant (FDA) in 2016. During the period of service as FDA at City Corporation, Tumkur, a resolution

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was passed by the City Corporation, Tumkur, for 2017-18 regarding calling a tender for gas connection and supply of

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stove and cylinder through an agency called B.R.Indane Agency. The supply of said stove and cylinder and also gas connection is an object invoked pursuant to a circular issued by the Government on 30.07.2015 for the purpose of extending the financial assistance to the depressed class of society i.e., scheduled castes, scheduled tribes and OBC. Thereafter, the City Corporation, Tumkur invited quotation by way of paper publication dated 20.06.2017. Respondent No.3 issued a comparative chart of persons who have quoted the price which is fair and proper as per the Corporation. Accordingly, a comparative chart of tender as well as the work order was issued to B.R.Indane Gas service. All of a sudden, respondent No.1 issued a show-cause notice alleging that there is a dereliction of duty on the part of the petitioner and others in inviting a tender as per the Karnataka Transparency and Public Procurement Act, 1999, instead of calling a tender by way of quotation. The said show-cause notice was issued after lapse of nearly five years along with the article of charges to initiate an enquiry under the Karnataka Civil Services (CCA) Rules, 1957. The petitioner

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submitted a reply to the article of charges on 17.08.2022 and has taken a specific stand that the said benefit was extended to the SC and ST, and as per the circular, it is a financial benefit and not inviting tender for disposal of the property, nor utilizing the said fund for roads or drainages as the circular itself contemplates Sahaya Dhana . The petitioner, aggrieved by the issuance of article of charges against him, filed this writ petition.

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Despite granting sufficient opportunity, the respondents have not filed a statement of objections.

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Heard the arguments of the learned counsel for the petitioner and also the learned Additional Government Advocate for the respondents.

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Learned counsel for the petitioner submits that, the show cause notice and article of charges were issued after five years from the date of the alleged violation. He submits that, the action of the respondent in issuing a showcause notice and the article of charges is contrary to the proposition of law laid down by this Court in the case of Sri.

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HC-KAR

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Ashaad-ur-Rehman Shariff Vs. The State of Karnataka

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and others¹ , wherein the Division Bench has set aside the article of charges on the ground of delay and laches. Hence, on these grounds, he prays to allow the writ petition.

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6. Per contra , the learned Additional Government Advocate supports the show-cause notice and the article of charges issued to the petitioner in view of violation of rules and guidelines. Hence, on these grounds, she prays to dismiss the writ petition.

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Perused the records and considered the submissions of learned counsel for the parties.

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Although the alleged violation took place in 2017, admittedly the respondent has issued a show-cause notice on 16.07.2022, after the lapse of five years from the date of the alleged violation of rules and regulations. The respondent has not explained the reasons for issuing article of charges after five years from the date of the alleged violation. The

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1 Writ Petition No.12246/2023 and connected matter, disposed of on 16.12.2024

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HC-KAR

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Hon'ble Supreme Court in the case of State Bank of Andhra Pradesh Vs. N.Radhakrishnan² , has observed in paragraphs No.18 and 19 as follows:

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"18. In State of Punjab v. Chaman Lal Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546] State of Punjab was aggrieved by the order of the High Court of Punjab and Haryana quashing memo of charges against Goyal and also the order appointing Enquiry Officer to inquire into those charges. In this case the incident, which was the subject-matter of charge, happened in December 1986 and in early January 1987, when Goyal was working as Superintendent of Nabha High Security Jail. It was only on 9-7-1992 that memo of charges was issued to Goyal. He submitted his explanation on 4-1-1993 denying the charges. Enquiry Officer was appointed on 20-7-1993 and soon thereafter Goyal filed writ petition in the High Court on 24-8-1993. The High Court quashed the memo of charges on the principal ground of delay of five and a half years in serving the memo of charges, for which there was no acceptable explanation. This Court examined the factual position as to how the delay occurred and if Goyal had been prejudiced in any way on account of delay. ... ... ...

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19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings.

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2 (1998) 4 SCC 154

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Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. ... ... ..."

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Further, the Division Bench, placing reliance on the judgments of the Hon'ble Supreme Court in the cases of

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P.V. Mahadevan Vs. MD, T.N. Housing Board³ and The

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3 (2005) 6 SCC 636

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HC-KAR

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Secretary, Minister of Defence Vs. Prabhash Chandra

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Mirdha⁴ , held as follows:

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"5.6. ... ... ... (i) long and unexplained delay could be one of the grounds to interfere on a challenge to the charge memo (ii) the charge memo should not be permitted to be challenged as a matter of course. Upon a reading of the said provision, what emerges is that, delay in issuing the charge memo by itself is prejudicial, if there is no explanation for the delay brooked, especially when it creates a cloud career advancement of the delinquent Official, who otherwise has unblemished service record. The case of the petitioner eminently fits into the parameters of the rationes. Many juniors of the petitioner are promoted and the case of the petitioner is kept in a sealed cover. ... ... ..."

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The Division Bench of this Court has quashed the charge memo on the ground of delay and latches.

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Admittedly in the instant case also, there is a delay of five years in issuing an article of charges. The issues involved in this case is squarely covered by the order passed by the Division Bench in the case of Ashaad-ur-Rehman

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Shariff (Supra).

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4 (2012) 11 SCC 165

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