The Board Memebers Vs M K Lingaraju

THE CHAIRMAN AND DISCIPLINARY AUTHORITY, BANGALORE WATER SUPPLY AND SEWARAGE BOARD, 1^ST FLOOR,CAUVERY BHAVAN, BANGALORE - 560 009. REPRESENTED BY APPELLANT NO.1

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…APPELLANTS

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(BY SRI. B.S. SRINIVAS, ADVOCATE FOR SRI. SANJEEV B L.,ADVOCATE)

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AND:

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SRI. C. GOUTHAM KUMAR, AGED ABOUT 70 YEARS, S/O LATE A CHINNAIH, EXECUTIVE ENGINEER, BANGALORE WATER SUPPLY AND SEWERAGE BOARD, (SINCE DOOR NO.303, POLICE LAYOUT, KACHARNAYAKANAHALLI, BOMMASANDRA, HOSUR ROAD BANGALORE - 560 105.

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…RESPONDENT (BY MS. B.V. VIDYULATHA, ADVOCATE FOR R1) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT,1961, PRAYING TO SET ASIDE THE ORDER DATED:04.12.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP No.47257/2013 (S-DIS) AND CONSEQUENTLY DISMISS THE SAID WRIT PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN WA NO. 808/2024

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BETWEEN:

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THE BOARD MEMEBERS, BANGALORE WATER SUPPLY AND SEWARAGE BOARD, 1^ST FLOOR,CAUVERY BHAVAN, KEMPEGOUDA ROAD, BANGALORE - 560 009. REPRESENTED BY ITS CHAIRMAN

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THE BANGALORE WATER SUPPLY AND SEWARAGE BOARD,

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1^ST FLOOR, CAUVERY BHAVAN, KEMPEGOUDA ROAD, BANGALORE - 560 009. REPRESENTED BY ITS C.A.O. AND SECRETARY. NOTE: APPELLANT NO.1 IS REPRESENTED BY APPELLANT NO.2.

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...APPELLANTS

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(BY SRI. SRINIVAS, ADVOCATE FOR SRI. SANJEEV B.L., ADVOCATE) AND: M.K. LINGARAJU, S/O LATE SRI. D. KEMPAIAH, AGED ABOUT 69 YEARS, (ASST. ACCOUNTS OFFICER) (UNDER ORDER OF DISMISSAL) R/AT NO. 266/305, 9^TH 'A' MAIN ROAD, KOTTIGEPALYA, RANGASWAMY EXTENSION, SRIGANDADAKAVALU, BANGALORE - 560 091.

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...RESPONDENT

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(BY SRI. SATISH. K., ADVOCATE)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED:04.12.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.50051/2013 AND CONSEQUENTLY DISMISS THE SAID WRIT PETITION.

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THESE APPEALS ARE COMING ON FOR ADMISSION, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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

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These two intra-Court appeals are by Bengaluru

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Water Supply and Sewage Board¹ , assailing the common order dated 04.12.2023 passed by the Writ Court in W.P.No.47257/2013 C/w W.P.No.50051/2013.

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The Writ Court by the impugned order, allowed

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W.P.No.47257/2013, directing the BWSSB to pay arrears

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of salary for the remaining period of service existing at the time of dismissal of the petitioner and also directed to grant all the consequential benefits to which the petitioner Mr.C.Goutham Kumar is entitled. So far as Mr.M.K.Lingaraju is concerned, disposed of

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W.P.No.50051/2013 and modified the order of dismissal

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with that of compulsory retirement entitling him for all

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1 the BWSSB, for short

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other consequential benefits and directed the BWSSB to settle all the benefits in a time bound manner.

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The parties are referred to as per their ranking before the Writ Court.

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Facts germane to file these two appeals are as under:

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4.1 Sri.C.Goutham Kumar, filed W.P.No.47257/2013

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seeking following reliefs:

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(i) Call for the entire records relating to concerning and connected with the disciplinary proceedings held against him under and in pursuance of Articles of Charge bearing No.B.Ja.Mum/MuAaAa-Ka/07-1108/3694/2008-09 dated 12.1.2009 vide Annexure-J issued by the 2^nd respondent and culminating in the impugned order of dismissal from the service of the Board vide Notification bearing No.B.Ja.Mum/MuAaAa-Ka/162013 794/2013-14 dated 3.6.2013 vide Annexure-AB passed by the 2^nd respondent and the latter resolution of rejection of the Review Petition bearing

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HC-KAR

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No.B.Ja.Mum/MuAaAa-Ka/16-

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2013/2486/2013-14 dated 28.9.2013 vide Annexure-AD passed by the 1^st respondent, peruse the same and declare and quash the same as arbitrary, irrational and unsustainable in law;

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(ii) Issue a consequential direction in the nature of a writ of mandamus commanding the respondents to reinstate the petitioner into the active service of the 1^st respondent - Board making available to him all the consequential benefits including the financial benefits flowing therefrom;

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and

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(iii) Pass such other orders as this Hon'ble Court may deem fit in the circumstances of the case, including the award of the costs of this petition, in the interest of justice and equity.

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4.2 Sri.M.K.Lingaraju, filed W.P.No.50051/2013 seeking following reliefs:

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(i) Issue a writ of Certiorari quashing the order bearing No.BeJaMa/MuAaAKa/16-2013/790/2013-14 dated 3- 05/06-2013 (Annexure-F) and proceedings bearing No. Nil dated 28-

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HC-KAR

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08-2013/ 06-09-2013 (Annexure-H) passed by the respondents and direct the respondents to grant all consequential service and monetary benefits to the petitioner, flowing from quashing the said orders.

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(ii) Pass any other order that this Hon'ble Court deems fit, in the circumstances of the case, in the interest of justice and equity.

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4.3 Petitioner Mr.C.Goutham Kumar was working as an Executive Engineer and Mr.M.K.Lingaraju as Accounts Superintendent, with the board.

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4.4 In an annual audit conducted for the year 2007-08, certain discrepancies were noticed, which led to issuance of show-cause notice to both Mr.Goutham Kumar, Mr.M.K.Lingaraju and one Mr.Somesh Bairy, who was working as a Superintendent.

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4.5 To the show cause notice, Office Superintendent Mr.Somesh Bairy, submitted a letter, wherein, he has confessed to have misappropriated the amount to the tune of Rs.13,00,000/- by withdrawing cash from

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the bank account of the Board. The confession letter

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which is produced at Annexure-B in W.P.No.47257/2013 is extracted in paragraph No.3

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of the order, which reads as follows:

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“C£ÀÄ§AzsÀ-3

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©.¸ÉÆÃªÉÄÃ±ï ¨Á¬Äj CzÀåPÀë£ÁzÀ £Á£ÀÄ ¤«ÄäAzÀ ¤ÃrgÀÄªÀ «ªÀgÀuÉ PÉÃ½ £ÉÆÃn¸ïUÉ PÉ¼ÀV£ÀAvÉ GvÀÛj¸ÀÄwÛzÉÝÃ£É.

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£À£ÀUÉ ªÀÄ£É PÀqÉ §ºÀ¼À vÉÆAzÀgÉ CVzÀÄÝzÀjAzÀ ºÁUÀÆ ¸Á®UÀ¼À ¨ÁzÉ ºÉZÁÑVzÀÄÝjAzÀ, C¤ªÁAiÀÄðªÁV ¤ªÀÄUÉ UÉÆwÛ®èzÀ jÃwAiÀÄ°è ªÀÄAqÀ½UÉ ªÉÆÃ¸À ªÀiÁr £ÀUÀzÀÄ ªÀÄÆ®PÀ ¨ÁåAQ£À°è ¸ÀÄªÀiÁgÀÄ 13 ®PÀëzÀªÀgÉUÉ ¨ÉÃgÉ¨ÉÃgÉ ªÀiÁºÉUÀ¼À°è ºÁUÀÆ ««zsÀ jÃwAiÀÄ ºÀAvÀUÀ¼À°è qÁæªÀiÁrgÀÄvÉÛÃ£É.

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F vÀ¥ÀÄà ²PÁëºÀðªÉAzÀÄ w½¢zÀÄÝ C¤ªÁðAiÀÄvÉ¬ÄAzÀ vÀ¥Éà¸ÀVgÀÄvÉÛÃ£É. E¯ÁSÉ¬ÄAzÀ F §UÉÎ ¤ÃqÀÄªÀ zÀAqÀ£ÉUÉ M¦àgÀÄvÉÛÃ£É. ºÁUÀÆ ªÉÄÃ°£ÀAvÉ §¼À¹PÉÆArgÀÄªÀ ªÉÆvÀÛªÀ£ÀÄß 2 wAUÀ¼À M¼ÀUÁV ªÀÄAqÀ½UÉ ¥ÀÆtðªÁV ªÁ¥À¸ÀÄì ¨sÀj¸ÀÄvÉÛÃ£É. E£ÀÄßªÀÄÄAzÉ AiÀiÁªÀÅzÉÃ jÃwAiÀÄ vÀ¥ÀÄà ªÀiÁqÀÄªÀÅ¢®è. F ¨Áj £À£Àß£ÀÄßPÀë«Ä¹ PÀvÀðªÀåªÀ£ÀÄßªÀÄÄAzÀÄªÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ®Ä C£ÀÄªÀÄw PÉÆÃgÀÄvÉÛÃ£É.

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£ÀUÀzÀÄ UÀÄªÀiÁ¸ÀÛ£ÁV £ÀUÀzÀÄ ±ÁSÉAiÀÄ ¤ªÀðºÀtÂAiÀÄ dªÁ¨ÁÝj ¥ÀÆwð £À£ÀßzÉ CVzÀÄÝ £À£Àß CªÀ¢üAiÀÄ°è CVgÀÄªÀ zÀÄ§ð¼ÀPÉUÉ ¥ÀÆtðªÁV £Á£ÉÃ dªÁ¨ÁÝgÀ£ÁVgÀÄvÉÛÃ£É. ¯ÉPÀÌ C¢üÃPÀëPÀgÁUÀ°, PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÁUÀ° CxÀªÁ EvÀgÉÃ ¹§âA¢UÀ¼ÁUÀ° F zÀÄ§ð¼ÀPÉAiÀÄ°è CªÀgÀÄ ¨sÁVAiÀiÁVgÀÄªÀÅ¢®è, ¸ÀA¥ÀÆtðªÁV £Á£ÉÆÃ§£ÉÃ F zÀÄ§ð¼ÀPÉ ªÀiÁrgÀÄvÉÛÃ£É.

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F ¥ÀæPÀgÀt¢AzÀ £À£ÀUÉ ¨ÉÃeÁgÁVgÀÄzÉÃ£ÉÆÃ ¤d CzÀgÉ EzÀPÉÌ £Á£ÀÄ ªÉÊAiÀÄÄQÛPÀªÁV AiÀiÁªÀÅzÉÃ jÃwAiÀÄ C£Á£ÀÄPÀÆ®ªÀ£ÀÄß GAlÄ ªÀiÁrPÉÆ¼ÀÄªÀÅ¢®è, ªÀÄAqÀ½UÉ ¨sÀj¸À¨ÉÃPÁAvÀºÀ zÀÄ§ð¼ÀPÉAiÀÄ ¥ÀÆtð ªÉÆvÀÛªÀ£ÀÄß £À£Àß°ègÀÄªÀ £ÀUÀzÀÄ, ¹ÜgÀ C¹Û ºÁUÀÆ ZÀgÀ C¹ÛUÀ¼À «¯ÉÃªÁj¬ÄAzÀ ªÉÄÃ¯É w½¸ÀÄªÀ 3 wAUÀ¼À°è wÃgÀÄ¸ÀÄvÉÛÃ£É.”

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(In Kannada vernacular, as it is in the order passed by the Writ Court)

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"Annexure-3

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B. Somesh Bairy, Superintendent,

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received your show cause notice and reply as hereunder.

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There are lot of problems in our house also loan problems, due to unavoidable circumstances without bringing to your knowledge played a fraud on the board and drawn the cash from the Bank up to Rs.13 lakhs and on different months at different stages drawn the money.

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I know it is punishable offence and due to unavoidable circumstances, the said mistake taken place and I admit the punishment that may be given by the Department. Within 2 months I will return the entire amount. Hereinafter no such mistake will be committed. This time I may be pardoned and seek permission to continue my duty.

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I being the Cashier of the cash branch and the entire responsibility is upon me and the misappropriation taken place during my period for which I will be held responsible. Either the Cash Superintendent, Executive Engineer or any subordinates have not taken part in this misappropriation and I alone have misused the same in full.

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It is true I felt bad in this case, but I have not caused inconvenience personally in any manner, I will deposit the amount which is due to the board by selling my movable and immovable within the three months."

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(English translation, as provided by learned counsel for the Board in the Writ Appeal)

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4.6 Both Mr.Goutham Kumar and Mr.M.K.Lingaraju, submitted their reply to the Show cause notice. The discipline authority not satisfied with the reply submitted by Mr.Goutham Kumar as well as Mr.M.K.Lingaraju, though the fraudulent act of Mr.Somesh Bairy has been reported by the said Mr.Goutham Kumar to the Board, an enquiry was constituted against both the officers Mr.Goutham Kumar as well as Mr.M.K.Lingaraju. The Inquiry

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Officer on consideration of evidence and submissions

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made, proceeded to come to a conclusion against

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Mr.Goutham Kumar in the following terms:

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“Though, A.G.O.No.1 is not a privy to the fact of misappropriation of B.W.S.S.B. funds by A.G.O.No.4, he cannot escape the responsibility for lack of effective control of the division staff and in regard to the discharge of his duties, both pertaining to administration and accounts. Therefore, on a consideration of the evidence on record, I hold that A.G.O.No.1 is answerable for the omissions and commissions of A.G.O.No.2 to 4 and in that view of the matter, I hold that charge at item No.3, second para is established. As regards, other charges, A.G.O.No.1 cannot be held responsible and for misappropriation alleged therein the said cannot be attributed to A.G.O.No.1 and the said charges are not established.”

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4.7 So far as Mr.M.K.Lingaraju is concerned, in the following terms:

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“As confessed by A.G.O.No.4, Exhibit M13, it is he who is responsible for the misappropriation and in view of the fact that the cheques were in the custody of the cashier

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as evident from the mahazar at Exhibit M46, and for the deliberate omissions and commissions of A.G.O.No.4 and cashier, A.G.O.No.2 cannot be held responsible for the misdeeds of A.G.O.No.2 cannot be held responsible for the misdeeds of A.G.O.No.4. In the absence of evidence of entrustment of cash to the A.G.O.No.2, he cannot be accused of misappropriation or any misconduct on his part.”

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“There is no evidence to hold that A.G.O.No.2 was a party to the misappropriation of the funds of B.W.S.S.B. but there is evidence as to neglect of duties which had led to huge misappropriation of funds and he is liable to answer the same. On a consideration of the evidence on record, I hold that A.G.O.No.2 has failed to exercise checks as required under P.W.D. Accounts Code, 19 to 25, 76 to 81 and 88 to 90. He has also failed in his duty in not taking register and he is responsible for the payment of amount to Visweswarayya Grameena Bank and other financial institutions causing loss to a sum of Rs.3.73,890/- paid towards loan instalments though not actually recovered from the salary of the staff. Therefore, I hold that charge mentioned in para 2, 3 and 5 of Annexure-1 of the articles of charges are

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established. Charge at para 4 is not established.”

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4.8 A perusal of the said findings clearly postulates that both Mr.Goutham Kumar and Mr.M.K.Lingaraju were not responsible for misappropriation of the amount. However, both of them were held responsible, Mr.Goutham Kumar was held responsible for the omissions and commissions of the other two delinquents being the Division Head, and Mr.M.K.Lingaraju is concerned, the Inquiry Officer has stated that though there was no evidence of entrustment of cash to him and therefore he cannot be accused of misappropriation, however he has failed to exercise his duties as required under the PWD Accounts Code and failed in discharging his duty, for which he is held to be guilty.

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4.9 On the report of the Inquiry Officer, the Board on 20.02.2013, upon consideration of reply to the second show cause notice issued after furnishing the

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copy of the Inquiry Officer report, took a decision to accept the inquiry report and imposed the punishment of dismissal on both Mr.Goutham Kumar as well as Mr.M.K.Lingaraju.

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4.10 A Review Petition was filed by both the petitioners, which came to be dismissed. Aggrieved by the order, they were before the Writ Court in separate Writ Petition seeking the relief stated supra.

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4.11 The Writ Court having considered the entire material,

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considering the fact that the real culprit Mr.Somesh Bairy having categorically admitted that he was alone responsible for the illegal withdrawal of cash from the bank account of the Board and responsible for the misappropriation, held that the action contemplated against Mr.Goutham Kumar only on the ground that he being the Divisional Head is responsible for non-examination of Divisional Stock Register of Cheque Books, held as responsible for the

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wrongdoing of Mr.Somesh Bairy, is bad in law. Although Mr.Goutham Kumar was the Division Head, but he is essentially trained to discharge technical aspects of working of the Division. Therefore, an Executive Engineer cannot be expected to examine or supervise the accounts of the concerned branch. Even if he were to supervise the accounts, he would not possess the expertise to detect any anomalies or discrepancies in the accounts for the simple reason that he would not be trained in the field of accounts. In view of the said finding, the Writ Court held that the allegation that the charges proved against Mr.Goutham Kumar for lack of regular supervision of accounts, is not justified and the order of dismissal from service, is bad in law. Accordingly, set aside the order of dismissal passed against Mr.Goutham Kumar

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and having considered that he was 59 years at the time of passing of the order, with 01 year of service remained to superannuation, instead of reinstating

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him, as he had crossed the age of superannuation,

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directed the Board to pay the arrears of salary for the remaining period of service existing at the time of dismissal and also directed the Board to settle all

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his retrial benefits for which he is entitled in law, in a time bound manner.

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4.12 So far as Mr.M.K.Lingaraju is concerned, the Writ

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Court has held that there is some responsibility on the Account Superintendent, which he has failed in accounting malpractices committed by Mr.Somesh Bairy. However, in view of the finding that there was

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no entrustment of cash to him by the Inquiry Officer and he was no way responsible for misappropriation, the order of dismissal passed against Mr.M.K.Lingaraju was held to be shockingly disproportionate and excessively harsh to the charges of improper supervision of accounting practices being followed in the concerned branch, and in view of Mr.Somesh Bairy accepting his guilt

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and as Mr.M.K.Lingaraju failed in his supervision on

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Mr.Somesh Bairy being the Account Superintendent, the Writ Court substituted the penalty of dismissal with that of compulsory retirement and directed the

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Board to settle all the retrial benefits in a time bound manner as stated supra. It is this common order passed by the Writ Court is called in question in these appeals.

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Heard, Sri.B.S.Srinivasa, learned counsel

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appearing for Sri.B.L.Sanjeev, learned counsel for the Board and Smt.B.V.Vidyulatha, learned counsel appearing for respondent No.1 in W.A.No.778/2024, Sri.Satish.K, learned counsel appearing for the respondent and Sri.Ashoka.T, learned counsel appearing for impleading respondent on I.A.No.1/2026 in W.A.No.808/2024.

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Sri.B.S.Srinivas, learned counsel with all

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vehemence submits that Writ Court has exceeded its jurisdiction of judicial review while going into the findings

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of the Inquiry report. He further submits that in catena of

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judgments the Supreme Court has time and again reminded that the High Court cannot exercise its jurisdiction under Article 226 which is limited jurisdiction

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only to the extent of judicial review so far as departmental inquiry is concerned as it is not sitting as an Appellate Authority to consider the findings of the Discipline Authority. Learned counsel further submits that the Discipline Authority having found in the Inquiry Report that the charges alleged against the petitioners having been proved, and both the parties, one being the Division Head and another being the Account Superintendent, had failed to maintain their duty in the accounts, though there is no misappropriation of charges against them, but for the dereliction of duty which has caused loss to the establishment, passed an order of dismissal, as the said dereliction of duty amounts to major misconduct. The Writ Court, only on the ground that another delinquent has admitted the guilt that he is responsible for the

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misappropriation, swayed by the said statement to hold

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that there is no dereliction of duty on the part of Mr.Goutham Kumar in its entirety and in respect of Mr.M.K.Lingaraju only an error or some irregularity in supervision, which is against the documents and evidence produced, in that view of the matter, the order passed by the Writ Court required to be set aside and the petitions be dismissed confirming the order of dismissal.

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On the other hand, Smt.B.V.Vidyulatha, and

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Sri.K.Satish, learned counsel appearing for the respective petitioner, argued in support of the order passed by the

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Writ Court stressing more on the admission of guilt by Mr.Somesh Bairy and non-involvement of both the petitioners, the Writ Court has properly considered and passed appropriate order and the same does not suffer from any infirmities which requires any interference at the hands of this Court.

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We having considered the rival submissions are

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of the considered opinion that the order passed by the Writ Court does not suffer from any infirmities, which require any interference at our hands, inasmuch as the real culprit has come forward and admitted all the guilt/charges leveled stating that he is responsible for the misappropriation and withdrawal of cash illegally.

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The mere fact that Mr.Goutham Kumar was the Division Head, cannot be held guilty of misconduct as he was discharging the duty as a Technical Head and not well versed in the accounts. Even if he were to supervise, he

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may not be in a position to detect the anomalies and discrepancies found in the accounting as rightly held by the Writ Court. Therefore, we find no infirmities in the order passed by the Writ Court in so far as Mr.Goutham Kumar is concerned. Accordingly, we dismiss the appeal filed by the Board against Mr.Goutham Kumar.

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In so far as Mr.M.K.Lingaraju is concerned, the Writ Court having found that he being the Account Superintendent is responsible for supervision of the Office Accountant/ Superintendent Mr.Somesh Bairy, which he has failed in his duties. But mere failure of supervision when there is no allegation of misappropriation or withdrawal of cash against the said person, the Writ Court having found these important aspects even as per the Inquiry Report, has held that the order of dismissal passed against Mr.M.K.Lingaraju is disproportionately and shockingly harsh to the alleged misconduct and accordingly, substituted the punishment from that of dismissal to compulsory retirement. We find no infirmities in the said order also. Accordingly, the appeal filed by the Board against Mr.M.K.Lingaraju is also dismissed .

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In view of dismissal of the appeals, we confirm the order passed by the Writ Court. Accordingly, the Board is hereby directed to settle the entire benefits if not already settled in terms of the order passed by the Writ

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