Sri. Dr. T. Venkateshaiah Vs the State of Karnataka

SRI. DR. T. VENKATESHAIAH S/O LATE THIMMAIAH AGED ABOUT 61 YEARS, PRESENTLY RESIDING AT NO 297, SAPTHAGIRI NILAYA, 60 FEET ROAD, THALAKAVERI LAYOUT, AMRUTHAHALLI, BELLARY ROAD, BENGALURU - 560092

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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(BY SRI. NAGARAJAPPA A., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA DEPT. OF COMMERCE AND INDUSTRIES DEPARTMENT, GOVERNMENT OF KARNATAKA, VIKAS SOUDHA, 1^ST FLOOR, DR B..R AMBEDKAR VEEDHI BANGALORE - 560001 REP. BY ITS PRINCIPAL SECRETARY

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…PETITIONER

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THE CHAIRMAN AND APPELLATE AUTHORITY KARNATAKA SOAPS AND DETERGENT LIMITED, NO 27, INDUSTRIAL SUB URB, POONA HIGHWAY

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HC-KAR

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RAJAJINAGAR BANGALORE - 560055

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THE MANAGING DIRECTOR KARNATAKA SOAPS AND DETERGENT LIMITED, (A GOVERNMENT OF KARNATAKA UNDERTAKING) NO 27, INDUSTRIAL SUB URB, BANGALORE POONA HIGHWAY RAJAJINAGAR BANGALORE - 560055

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…RESPONDENTS

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(BY SRI. G RAMESH NAIK, AGA FOR R1 SRI. B.R. PRASHANT, ADVOCATE FOR R2 & R3 SRI. B.L. SANJEEV, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING COMMUNICATION OF R3 DTD 07.07.2023 IN NO.KSDL/MA.SUM.AA/2023.24/197/3452 PRODUCED HEREWITH AND MARKED AT ANNX-AQ. DIRECTING THE RESPONDENT MORE PARTICULARLY R1 AND 3 TO CONSIDER THE REPRESENTATIONS SUBMITTED BY THE PETITIONER DTD 16.05.2023 REQUESTING FOR RELEASE OF ARREARS OF SALARY, OF 52,93,200 PLUS RS. 6,02,027 INTERESTED ON DELAYED PAYMENT PROVIDENT FUND (EMPLOYEE AND EMPLOYER CONTRIBUTION AMOUNT RS. 11,05,590 PLUS INTEREST AMOUNT OF RS. 1,39,977 FROM 25.03.2019 TO 31.03.2022 PLUS INTEREST AMOUNT OF RS. 4,18,930 ALONG WITH GRATUITY AMOUNT OF RS. 5,63,228 FROM 22.02.2015 TO 31.03.2022 MARKED AT ANNX-AP AND ANNEXURE-AP1 AND AS PER TABLE OF CALCULATION MARKED AT ANNX-AP2.

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THAT THIS HON-BLE COURT MAY KINDLY BE PLEASED TO DISPENSE WITH THE PRODUCTION OF CERTIFIED COPY OF ANNEXURE-AQ. (COPY PRODUCED)POST I.A.1/23 BEFORE REGISTRAR(J) FOR ORDERS REGARDING I.A.1/23 FOR DISPENSE WITH THE PRODUCTION OF CERTIFIED COPY OF ANNEXURE-AQVT- 25/10/2023

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

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

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ORAL ORDER

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The petitioner has filed this writ petition seeking the following reliefs:

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(a) Issue an order or orders or writ in the nature of writ of Certiorari quashing the communication of the respondent No.3 dated 07.07.2023 in No.KSDL/Ma.Sum.Aa/2023-24/197/3452 produced herewith and marked at Annexure-AQ.

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(b) Issue an order or orders or writ in the nature Writ of Mandamus directing the respondents more particularly respondent Nos.1 and 3 to consider the representations submitted by the petitioner dt: 16.05.2023 requesting for release of arrears of net salary of Rs.52,93,200/plus Rs.6,02,027/interest on delayed payment, provident fund (employee & employer contribution amount Rs.11,05,590/plus interest amount of Rs.1,39,977/- from 25.03.2019 to 31.03.2022, PL encashment amount of Rs.4,18,932/- along with gratuity amount of Rs.5,63,228/- from 22.02.2015 to 31.03.2022 marked at Annexure-AP and

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Annexure-AP1, and as per table of calculation marked at Annexure-AP2.

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(c) Issue any order or orders as deems fit and necessary to the facts and circumstances of the case, in the interest of justice and equity.

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Brief facts, leading rise to the filing of this

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petition are as follows:

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The petitioner was working in the respondentEstablishment. An enquiry came to be conducted against the petitioner. After holding an enquiry, the order of punishment came to be passed i.e., dismissal from service. The petitioner, aggrieved by the order of dismissal of service, preferred an appeal before the Board. The Board vide dated 13.01.2022 vide Annexure-AE, dismissed the appeal filed by the petitioner. Consequently, the Government issued a direction to the Board of Directors to reconsider the case of the petitioner. The Board of Directors in its 255^th meeting held on 12.11.2021, decided to work in the respondent-Establishment as Director

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(Finance). The petitioner, during his tenure, the Company

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has received awards from Institute of Cost and Works Accountant of India for the effective Cost Management of the company and received appreciation letters from the then Managing Director. The Managing Director has issued Articles of charge against the petitioner on 16.11.2017. The petitioner replied to the Articles of charge issued by the Managing Director. The Managing Director has issued an additional Articles of charge dated 10.04.2018. The petitioner replied to the additional Articles of charge dated 14.05.2018. The Managing Director issued second show cause notice along with enquiry report submitted by the Enquiry Officer. The petitioner submitted a reply to the second show cause notice. The Managing Director passed an order of dismissal from service vide order dated 25.03.2019. The petitioner submitted an appeal before the Appellate Authority. The Appellate Authority set aside the order of dismissal from service and directed the respondents to reconsider the case of the petitioner. The

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Managing Director disobeyed the order of Appellate Authority and did not allow the petitioner to work as the Director (Finance) inspite of the order passed by the Appellate Authority. The petitioner filed a writ petition. The said writ petition came to be disposed of reserving liberty to the petitioner to submit a representation and directing the Managing Director not to precipitate the action against the petitioner. Pursuant to the order of dismissal dated 25.03.2019, the petitioner submitted a representation to the Managing Director to pass an order. Pursuant to the order passed by this Court in W.P.No.16086/2019, respondent No.2 has passed an order dismissing the appeal opposing the order of dismissal from service. The petitioner, aggrieved by the order of the Appellate Authority (respondent No.2) dated 11.08.2020, approached this Court in W.P.No.10157/2020. The said writ petition was disposed of vide order dated 08.01.2021. The Appellate Authority in its 253^rd Board meeting constituted the sub-committee. Such sub-committee was

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held on 15.07.2021 and second sub-committee meeting

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was held on 29.07.2021. The petitioner, aggrieved by the order of modifying the dismissal order into compulsory retirement without reinstatement, filed a writ petition in W.P.No.3407/2022. The said writ petition was disposed of.

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The respondent issued a show cause notice to the petitioner as to why the Private Complaint Report in PCR.No.7238/2020 pending on the file of IV ACMM, Bengaluru, shall not be prosecuted within 30 days from the receipt of the notice and again issued a show cause notice on 23.02.2023. The respondents replied to the show cause notices. The respondents without considering the reply submitted by the petitioner has passed the impugned order on 07.07.2023. Hence, the petitioner aggrieved by the impugned order 07.07.2023, filed this writ petition.

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The respondents have filed the statement of objections denying the allegations made in the writ

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petition and contended that the impugned order passed by the respondents is just and proper and the respondents have considered the entire contents of the reply submitted to the show cause notice. Hence, prays to dismiss the writ petition.

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

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Learned counsel for the petitioner submits that pursuant to the order passed by this Court in W.P.No.3407/2022, a show cause notice was issued to the petitioner on 30.01.2023 by the respondents. The petitioner has replied to the said show cause notice vide Annexure-N on 22.03.2019. He submits that the respondents have raised several grounds in the reply. The respondents, without considering the grounds raised in the reply, has passed the impugned order. The impugned

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order passed by the respondent is without application of mind and it is cryptic order. He submits that before passing an impugned order, no opportunity was provided to the petitioner to put forth his case. He submits that the impugned order passed by the respondents is without application of mind and prays to quash the impugned order and remit the matter to the respondents for reconsideration.

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Per contra , learned counsel for the respondents submits that the respondents have considered the reply and passed the impugned order. He submits that if the Court is of the opinion that the respondents have not considered the reply submitted the petitioner, the respondents will reconsider the reply and pass an appropriate order in accordance with the law. Hence, on these grounds, he prays to dismiss the writ petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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It is an undisputed fact that the petitioner was working as the Director (Finance) in the respondentEstablishment. An order came to be passed for dismissal from service. The petitioner filed an appeal before the Board and the Board has dismissed the appeal filed by the petitioner. Subsequently, the order of punishment was modified from dismissal from service to the compulsory retirement. The petitioner approached this Court in W.P.Mo.3407/2022. This Court vide, in W.P.No.3407/2022 vide order dated 07.12.2022 recorded its finding in para No.10, which reads as follows:

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“10. Admittedly, a decision in favour of the petitioner was taken in its 254th Meeting to modify the punishment as compulsory retirement instead of dismissal from service and to withdraw the pending criminal case in PCR No.7238/2020 and the fine of Rs.18,89,879/- which was calculated in the Miskin Report was withdraw. The above decision in 254^th Board meeting was taken as Appellate Authority on the appeal filed by the petitioner. As is clear from Annexure-AE dated 13.01.2022, again, the Board in its 255th Meeting took a decision to authorize the Managing Director to initiate further action on the said instance. On the said authorization, the Managing Director could not have revived the earlier decision of the Board. Taking advantage of the proceedings of 255th Board Meeting held on 12.11.2021, the Managing Director could not have passed order dated

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05.12.2022, that too without any notice. Therefore, that part of the order under Office Order dated 05.12.2022 i.e., not to withdraw the case filed in PCR No.7238/2020 is quashed. Respondent Nos.2 to 4 are at liberty to issue show-cause notice in that regard and take a decision. While submitting reply to the show cause notice if any issued, it is open for the petitioner to raise jurisdictional question.”

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Admittedly, a decision in favour of the

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petitioner was taken in its 254^th Meeting to modify the punishment as compulsory retirement instead of dismissal

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from service and to withdraw the pending criminal case in PCR.No.7238/2020 and the fine of Rs.18,89,879/- which was calculated in 8 Miskin Report was withdraw. The above decision in 254^th Board meeting was taken as the Appellate Authority on the appeal filed by the petitioner. As is clear from Annexure-AE dated 13.01.2022, again, the Board it its 255^th Meeting took a decision to authorize the Managing Director to initiate further action on the said instance. On the said authorization, the Managing Director could not have revived the earlier decision of the Board. Taking advantage of the proceeding of 255^th Board

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Meeting held on 12.11.2021, the Managing Director could not have passed order dated 05.12.2022, that too without any notice. Therefore, that part of the order under Office Order dated 05.12.2022 i.e., not to withdraw the case filed in PCR No.7238/2020 is quashed. Respondent Nos.2 to 4 wherein are at liberty to issue show cause notice in that regard and take a decision. While submitting a reply to the show cause notice if any issued, it is open for the petitioner to raise jurisdictional question.

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Pursuant to the order passed by this Court in W.P.No.3407/2022 dated 07.12.2022, the respondents issued a show cause notice on 30.01.2023. The petitioner submitted a reply to the said show cause notice on 23.02.2023. The respondent has passed an order on 07.07.2023. The petitioner has raised several grounds including the jurisdictional issue. From the perusal of the impugned order, the respondent has not considered the stand taken by the petitioner in the reply notice. The

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impugned order passed by the respondent is cryptic and without application of mind. Though this Court has directed the respondent to take into consideration to the reply submitted to the show cause notice and including the jurisdictional question, the respondent has not considered the reply submitted by the petitioner dated 23.02.2023 in view of the observation made in W.P.No.3407/2022. Hence, on these grounds, alone the impugned order is liable to be quashed.

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