- 1 - NC: 2025:KHC:4778 WP No. 3453 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO.3453 OF 2022 (S-RES) BETWEEN: SRI. LINGAIAH C.L S/O LATE NANJAPPA AGED ABOUT 64 YEARS, NO.5/79, 5TH CROSS, 20TH MAIN, GIRINAGAR T BLOCK BANGALORE-560085. …PETITIONER (BY SRI. SRINIVASA K., ADV.) AND: 1. THE GENERAL MANAGER (A AND HR) BESCOM, K.R.CIRCLE, BANGALORE-560 001. 2. THE CHIEF ENGINEER (EL) BESCOM, BRAZ, ABB COMPLEX, RAJAJINAGAR INDUSTRIAL AREA, BANGALORE-560 010. 3. THE SUPERINTENDING ENGINEER (ELE) O AND M BESCOM, RAMANAGAR CIRLCE, KENGERI, BANGALORE-560 060. 4. THE EXECUTIVE ENGINEER (ELE) BESCOM, CHANDAPURA DIVISION, SURYANAGAR, ANEKAL TALUK, BANGLAORE-560 100. …RESPONDENTS (BY SRI.H.N.PRAHAL SIDDU, ADV. FOR SRI B.L. SANJEEV, ADV. FOR R1 TO R4) Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4778 WP No. 3453 of 2022 THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OFFICIAL MEMORANDUM DATED 11.08.2017 PASSED BY THE R-4 VIDE ANNX-D AND DIRECT THE R-4 TO REFUND THE ENTIRE AMOUNT OF RS.7,18,236/- ALONG WITH INTEREST AT THE RATE OF 12 PERCENT PER ANNUM FROM 01.06.2017 TILL THE DATE OF THE PAYMENT. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER The petitioner, a retired Assistant Engineer is before this Court under Article 226 of the Constitution of India, questioning the correctness and legality of the Official Memorandum Bearing No.PÁ¤EA(«)/ ÉC/J¸ï.¦.J/ZÀA/2017- 18/3907-08 dated 11.08.2017 (Annexure-D) by which recovery is ordered and also praying for a writ of mandamus directing respondent No.4 to refund the entire amount of Rs.7,18,236/- along with interest at the rate of 12% per annum from 01.06.2017 till the date of payment. 2. Brief facts of the case are that the petitioner was working as Assistant Engineer in the respondent- BESCOM. He retired from service on attaining the age of - 3 - NC: 2025:KHC:4778 WP No. 3453 of 2022 superannuation on 31.05.2017. Prior to his retirement, the respondent-BESCOM i.e., 4th respondent had issued Annexure-A, Notice under Rule 12 of the KEB Employees’ (Classification, Disciplinary, Control and Appeal) Regulations, 1987, asking the petitioner to reply within seven days alleging that petitioner while working in Chandapura Sub-Division, removed transformers installed at Karnataka Housing Board, Suryanagara Phase-1 Layout, but had failed to reinstall them. Thus, caused loss to the respondent-BESCOM. 3. The petitioner submitted Annexure-B reply denying the allegation and specifically contending that the petitioner has not removed any transformers in Karnataka Housing Board, Suryanagara Phase-1 Layout and he has not committed any misconduct. The said reply is acknowledged by the respondents on 08.09.2016. 4. Thereafter, one more show-cause notice dated 21.09.2016 (Annexure-C) with the same allegation, which stated that if the petitioner fails to reply, appropriate - 4 - NC: 2025:KHC:4778 WP No. 3453 of 2022 disciplinary action would be taken against the petitioner for causing loss to the respondent-Company. Thereafter, under Annexure-D dated 11.08.2017, respondent No.4 passed order to recover a sum of Rs.7,18,236/- from the petitioner who was retired by that time. The said order of recovery is given effect to under Annexure-R dated 18.11.2021. Aggrieved by order of recovery at Annexure-D dated 11.08.2017 and Annexure-R dated 18.11.2021, the petitioner is before this Court in this writ petition. 5. Heard learned counsel Sri.Srinivasa.K., for petitioner and learned counsel Sri.H.N.Prahal Siddu for Sri.B.L.Sanjeev, learned counsel for respondents. Perused the writ petition papers. 6. Learned counsel Sri.K.Srinivasa would submit that the amount ordered to be recovered under Annexure-D is not an amount determined in any enquiry by affording opportunity to the petitioner. Learned counsel would further contend that Regulation 12 of 1987 - 5 - NC: 2025:KHC:4778 WP No. 3453 of 2022 Regulations would prescribe the procedure to be followed for imposing minor penalty. It requires issuing show cause notice calling upon for explanation from the delinquent official, recording finding on each misconduct or misbehavior. It is further submitted that when charges are denied and there is disputed question of fact, enquiry would be necessary. Regulation 12 of 1987 Regulations permits conduct of enquiry in terms of Regulation 12(1)(b) of 1987 Regulations. Learned counsel would submit that in the instant case the petitioner had denied the removal of Transformers and to prove that the petitioner had removed the Transformers, the respondents ought to have conducted a proper enquiry in terms of Regulation 11 of 1987 Regulations. Learned counsel would submit that without conducting proper enquiry, fourth respondent could not have ordered for recovery. Moreover, he submits that in respect of the petitioner, first respondent is the Disciplinary Authority and the order passed by the fourth respondent is without jurisdiction. Thus, he prays for allowing the writ petition by quashing the impugned order - 6 - NC: 2025:KHC:4778 WP No. 3453 of 2022 with a direction to refund the amount recovered with interest. 7. Per contra, learned counsel Sri.H.N.Prahal Siddu for Sri.B.L.Sanjeev, learned counsel for respondents taking through the statement of objections filed submits that, the petitioner failed to submit his reply, therefore the fourth respondent proceeded in accordance with Regulation 12 of 1987 Regulations. Further, learned counsel would submit that the respondents conducted preliminary enquiry at the Divisional Office Level and found that the petitioner was responsible for removal of Transformers and has caused loss to the respondent-BESCOM. Therefore, the amount of loss is ordered to recover from the pensionary benefits of the petitioner. 8. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, the only point which would arise for consideration is as to, - 7 - NC: 2025:KHC:4778 WP No. 3453 of 2022 Whether the recovery ordered by the respondents under Annexure-D, O.M. dated 11.08.2017 is legally sustainable? 9. The answer to the above point would be that the recovery under O.M., dated 11.08.2017 is not legally sustainable and the petitioner would be entitled for the relief as prayed in the writ petition for the following reasons: The petitioner is an Assistant Engineer retired from respondent-BESCOM on attaining the age of superannuation on 31.05.2017. Prior to his retirement, a notice under Regulation 12 of 1987 Regulations calling upon the petitioner to submit his reply within 7 days alleging that the petitioner had removed two numbers of 250KVA and two numbers 100 KVA Transformers and has failed to install same and thus caused loss to the respondent-BESCOM. The petitioner submitted explanation under Annexure-B on 08.09.2016 which is acknowledged by fourth respondent’s office. Thereafter, one more show cause notice dated 21.09.2016 was issued against the - 8 - NC: 2025:KHC:4778 WP No. 3453 of 2022 petitioner calling upon him to explain alleging removal of Transformers and not installing the same and failing which, it was stated that proper disciplinary action would be initiated against the petitioner for recovery of loss caused to the respondent-BESCOM. Thereafter, admittedly no enquiry whatsoever is conducted and impugned OM as at Annexure-D dated 11.08.2017 is passed by the fourth respondent to recover a sum of Rs.7,18,236/- from the petitioner’s retiral benefits. The action of the fourth respondent is totally contrary to Regulation 12 of 1987 Regulations. 10. Regulation 12 of 1987 Regulations reads as under: “12. PROCEDURE FOR IMPOSING MINOR PENALTIES: 1) Subject to the provisions of Sub-Regulation-3 of Regulation-11(A). no order imposing on a Corporation employee any of the penalties specified in clauses (i) to (iv)(a) of Regulation-9 shail be made except after :- a) informing the Corporation employee, in writing, of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it - 9 - NC: 2025:KHC:4778 WP No. 3453 of 2022 is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; b) holding an enquiry in the manner laid down in Sub. Regulation-3 to 23 of Regulation-11, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary: c) taking the representation, if any, submitted by the Corporation employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration. d) recording a finding on each imputation of misconduct or mishehavior. and, e) consulting the Corporation where such consultation is necessary. 2) The record of the proceedings in such case shall include:- i) a copy of the intimation to the Corporation employee of the proposal to take action against him: ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him: iii) his representation if any iv) the evidence produced during the inquiry: - 10 - NC: 2025:KHC:4778 WP No. 3453 of 2022 v) the finding on each imputation of misconduct or misbehavior and vi) the orders on the case together with the reasons there-for. 11. Regulation 12 prescribes procedure for imposing minor penalty. It empowers the competent authority to issue show cause notice and on receiving the reply from the delinquent official, if it comes to the conclusion that enquiry would be necessary, conduct enquiry in terms of Regulation 11 and if it is of the opinion that enquiry is not necessary consider the reply submitted by such delinquent official, record finding on each imputation of misconduct or misbehavior and pass such order. 12. But, in the instant case, when the petitioner has specifically denied removal of Transformers under Annexure-B, reply dated 08.11.2016, to prove that the petitioner is responsible for removal of Transformers and caused loss to the Corporation, enquiry was necessary in - 11 - NC: 2025:KHC:4778 WP No. 3453 of 2022 terms of Regulation 12(1)(b) of 1987 Regulations. No reasons are recorded for not conducting enquiry. Moreover, show cause notice dated 21.09.2016 states that failing to reply, enquiry would be conducted. But no enquiry is conducted and as required under Regulation 12, no reasons are recorded for dispensing enquiry, in the fact situation of the case. 13. The Division Bench of this Court in V.SRINIVASA RAO VS. STATE OF KARNATAKA reported in ILR 1989 KAR 3455 was considering identical Rule 12 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. While considering the said Rule, it is observed as follows: “The learned Counsel submitted that having regard to the nature of the replies furnished by the appellant in respect of each item of shortage it was impossible to fix the liability on the appellant unless a regular inquiry was held in which all the concerned persons were examined as witnesses and he was given an opportunity of cross- examining them, and that therefore the disciplinary - 12 - NC: 2025:KHC:4778 WP No. 3453 of 2022 authority ought to have held an inquiry as required under Rule 12(1)(b) of the Rules instead of proceeding under Rule 12(1)(a). He further submitted that though Rule 12(1)(b) states that the disciplinary authority should hold an inquiry if in its opinion holding of such inquiry is necessary, such an opinion has to be formed on a rational basis, and if the facts and circumstances of the case demand holding of an inquiry it is obligatory on the part of the disciplinary authority to hold an inquiry. In support of his submission the learned Counsel relied on the Judgment of the Kerala High Court in C.R. Warrier v. State of Kerala*. In the said case also the question for consideration was whether holding of an inquiry under Kerala CCA Rules before imposing a minor penalty was essential or not; the Court held that the charge levelled against the delinquent was such as could be established only after a detailed enquiry and therefore, though a minor penalty was imposed, the procedure prescribed for imposing major penalty ought to have been followed.” 14. Further, it is noticed that in terms of Schedule- VI(A) of 1987 Regulations, for Assistant Engineer, the authority empowered to appoint is the Director (A&HR) i.e., first respondent herein and the authority empowered - 13 - NC: 2025:KHC:4778 WP No. 3453 of 2022 to impose penalty is Superintending Engineer (Electrical) (Circle/Unit). In the instant case, the fourth respondent Executive Engineer is neither the Appointing Authority nor the Disciplinary Authority insofar as petitioner is concerned. Therefore, the fourth respondent had no jurisdiction to pass impugned order at Annexure-D dated 11.08.2017. 15. Since the amount ordered to be recovered from the petitioner is not determined in a properly constituted enquiry and as the fourth respondent had no jurisdiction over the petitioner to pass any order of penalty, writ petition deserves to be allowed. Hence, the following: ORDER a) Annexure-D, O.M., bearing No.PÁ¤EA(«)/ ¯ÉC/J¸ï¦J/ZÀA/2017-18/ 3907-08 dated 11.08.2017 is quashed. b) A writ of mandamus is issued to the respondent Nos.1 to 4 to refund an amount - 14 - NC: 2025:KHC:4778 WP No. 3453 of 2022 of Rs.7,18,236/- recovered from the petitioner along with interest at the rate of 6% p.a., till payment. c) Time for compliance: Three months from today. Sd/- (S.G.PANDIT) JUDGE SMJ,NC CT:bms, List No.: 1 Sl No.: 22