IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT WRIT PETITION No.52484/2014 (S-DE) BETWEEN: SRI ASHOK A MIRJI S/O MR. AMMANNA AGED ABOUT 51 YEARS RESIDING NEAR KHAJA AMEN DARAGA (NEAR CENTRAL JAIL) BORJI BHAVI ORII, DARGA BIJAPUR – 586103. ...PETITIONER (BY SMT. PARINA LALLA, ADV.) AND: 1. THE REGISTRAR (VIGILANCE) HIGH COURT OF KARNATAKA AMBEDKAR VEEDHI BANGALORE-560001. 2. THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND THE DISCIPLINARY AUTHORITY BIJAPUR DISTRICT COURT COMPLEX BAGALKOT ROAD, KEERTI NAGAR BIJAPUR-586109. ...RESPONDENTS (BY SRI. M.S. RAJENDRA, ADV. FOR SRI VIVEK HOLLA, ADV. FOR R1 & R2) 2 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.06.2012 PASSED BY THE R1 IN HV/E & A 3/2011 (ANNEX-G) AND THE IMPUGNED ORDER DATED 01.09.2010 PASSED BY THE R2 IN DEPARTMENTAL ENQUIRY NO.4/2009 (ANNEX-F) PASSED BY THE R1. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 23/01/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT CAV ORER The petitioner, a compulsorily retired Typist of the second respondent-Principal District and Sessions Court, Bijapur is before this Court under Article 226 of the Constitution of India, questioning the legality and correctness of the enquiry report dated 16.08.2010 and order of penalty dated 01.09.2010 in D.E.No.4/2009 compulsorily retiring the petitioner in respect of charge Nos.1 and 2 and Censure in respect of charge No.4. 2. The brief facts of the case are that: 3 The petitioner was working as Typist in the second respondent-District Court at Bijapur. While the petitioner was working as such, a departmental enquiry was initiated by issuing charge memo dated 29.07.2009, alleging four charges against the petitioner. Charge Nos.1 to 3 were related to demanding bribe from one Sri.Husainappa Kademani and Sri.R.S.Patil, promising them to get the post of Typist and 4th charge relates to purchase of mobile phone without permission from the higher authorities. On the same day, the petitioner was kept under suspension in terms of order dated 29.07.2009 (Annexure-D). A detailed enquiry was held against the petitioner and the Enquiry Officer submitted his report in D.E.No.4/2009 on 16.08.2010 (Annexure- E) holding that charge Nos.1 to 3 levelled against the petitioner are not proved and charge No.4 regarding purchase of mobile phone without permission as proved. The second respondent-Disciplinary Authority, by order 4 dated 01.09.2010 (Annexure-F) in D.E.No.4/2009 imposed punishment of compulsory retirement in respect of charge Nos.1 and 2, and Censure in respect of charge No.4 on the petitioner, by disagreeing with the findings of the Enquiry Officer. Questioning the order of punishment, the petitioner filed appeal before the High Court and by communication dated 11.06.2012 (Annexure-G), the petitioner was informed that his appeal is dismissed. Questioning the report of the Enquiry Officer as well as order of penalty, petitioner is before this Court in this writ petition. 3. Heard learned counsel Smt.Paren Lalla for petitioner and learned counsel Sri.M.S.Rajendra for Sri.Vivek Holla, learned counsel for respondents. Perused the entire writ petition papers. 4. Learned counsel for the petitioner contends that the Enquiry Office rightly held that charge Nos.1 to 3 5 leveled against the petitioner as not proved, but the Disciplinary Authority disagreeing with the findings of the Enquiry Officer, imposed major penalty of compulsory retirement on the petitioner without affording any opportunity to him to have his say when the enquiry report was in his favour. Learned counsel would submit that respondents failed to issue second show-cause notice recording reasons for disagreeing with the findings of the Enquiry Officer. Had petitioner been provided with an opportunity by issuing second show-cause notice, recording reasons for disagreeing with the findings of the Enquiry Officer, the petitioner would have explained the circumstances under which, Enquiry Officer held charge Nos.1 to 3 as not proved. 5. Learned counsel for the petitioner would submit that admittedly, the enquiry is held under the provisions of Karnataka Civil Services (Classification, Control and Appeals) Rules, 1957 (for short “1957 Rules”) and 6 submits that Rule 11-A requires the Disciplinary Authority if it disagrees with the findings of the Enquiring Authority on any article of charge record its own finding on such charge, if the evidence on record is sufficient for the purpose. But, it is submitted that no such finding is recorded and communicated to the petitioner to have his say. Learned counsel in support of her contention placed reliance on the decision of the Hon’ble Apex Court in PUNJAB NATIONAL BANK AND OTHERS v/s KUNJ BEHARI MISRA reported in (1998) 7 SCC 84. 6. Per contra, learned counsel Sri.Rajendra for respondents would submit that before passing final order and imposing punishment of compulsory retirement, the petitioner was heard. As such, it is not open for him to contend that he had no opportunity. 7 7. During the course of hearing, this Court by order dated 10.01.2025 directed learned counsel for respondents to file an affidavit of second respondent, indicating as to whether second show-cause notice was issued to the petitioner recording reasons for disagreement with the findings of the Enquiry Officer. Accordingly, affidavit dated 21.01.2025 of the second respondent is filed stating that, on receipt of enquiry report dated 16.08.2010, second show-cause notice was not issued, but opportunity of personal hearing was granted. 8. In view of long lapse of time, learned counsel for the petitioner requested not to remand the matter back and to set aside the order, granting all consequential benefits to the petitioner. 9. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point 8 which falls for consideration is as to whether penalty imposed without issuing second show-cause notice by the Disciplinary Authority, recording reasons for disagreeing with the findings of the Enquiry Officer is legally sustainable and whether the order of punishment requires interference? 10. Answer to the above point would be in the affirmative and the order of punishment requires interference at the hands of this Court, for the following reasons: While the petitioner was working as Typist in the second respondent-District Court, a departmental proceedings was initiated against the petitioner by issuing charge memo dated 29.07.2009. The charge memo contained four charges. The charges alleged against the petitioner reads as follows: “1) ¤ÃªÀÅ ¢£ÁAPÀ 7.8.2008 gÀAzÀÄ ªÀÄÄAeÁ£É 11.00 UÀAmÉUÉ, ²æà Dgï.J¸ï. ¥Ánî ºÉqï PÁ£ïìmÉç¯ï, «íf¯É£ïì ¸É¯ï, PÀ£ÁðlPÀ 9 GZÀÒ £ÁåAiÀiÁ®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀÄ mÉʦ¸ïÖ ºÀÄzÉÝAiÀÄ£ÀÄß PÉÆr¸ÀĪÀ PÀÄjvÀÄ vÀªÀÄä ªÉÆèÉÊ¯ï ¸ÀASÉå 9448519543 ¤AzÀ ¤ªÀÄä ªÉÆèÉÊ¯ï ¸ÀASÉå 9740725399 PÉÌ PÀgÉ ªÀiÁrzÁUÀ ¸ÀzÀj PÀgÉAiÀÄ£ÀÄß ¤ÃªÀÅ ¹éÃPÀj¹ F PɼÀV£ÀAvÉ ¸ÀA¨sÁµÀuÉAiÀÄ£ÀÄß ªÀiÁrgÀÄwÛÃj. Dgï.J¸ï. ¥ÁnÃ¯ï ªÀiÁvÀ£Ár: £ÀªÀĸÁÌgÀ ¸Àgï, £Á£ï gÁAiÀÄZÀÆgï ºÀÄqÀΣÀ §UÉÎ vÀªÀÄä ªÀĤ PÀqÉ §A¢zÀÄÝ, ¥sÉÆãï£À°è ªÀiÁvÁrzÀß¯ï ¸Àgï, C±ÉÆÃPÀ «Äfð ªÀiÁvÀ£Ár: ¤ÃªÀÅ AiÀiÁPï vÀqÀªÀiÁqÀPÀwÛÃj DzÀµÀÄÖ ¨ÉÃUÀ §jæ, F ¢£À ¸ÁAiÀħÄæ ¨ÉAUÀ¼ÀÆjUÉ ºÉÆAmÁjæ £Á£ï ¦üæÃAiÀiÁUÀ CzÁ£ï jà Dgï.J¸ï. ¥ÁnÃ¯ï ªÀiÁvÀ£Ár: FUÀ JµÀÄÖ ºÉÆA¢¸ÉÆÌAqÀÄ §gÀ¨ÉÃQæ JAzÁUÀ C±ÉÆÃPÀ «Äfð MlÖ JgÀqÀÄ E¥ÀàvÉÊzÀÄ DUÀvÉÛ, ªÀÄÆgÀªÀÄlÖ £ÀqÉvÉÊw JAzÁUÀ ¥ÀÄ£ÀB ¥ÁnÃ¯ï ªÀiÁvÀ£Ár FUÀ ¸ÀzÀåPÉÌ MAzÀÄ ®PÀë gÉr Lw, G½¢zÀÄÝ, ¸ÉÆêÀiÁgÀ ªÀÄlÖ ºÉÆA¢¹ÛÃ£ï ¸Àgï, CAvÁ EvÁå¢AiÀiÁV E£ÀÆß »aÑ£À ¸ÀA¨sÁµÀuÉ £ÀqɹgÀĪÀ §UÉÎ ªÉÄÊPÉÆæ PÁå¸Émï jPÁqïðgï¤AzÀ «íf¯É£ïì ¸É¯ï, PÀ£ÁðlPÀ GZÀÒ £ÁåAiÀiÁ®AiÀÄ ¨ÉAUÀ¼ÀÆgÀÄgÀªÀgÀÄ jPÁqïð ªÀiÁrPÉÆArgÀÄvÁÛgÉ. ¤ÃªÀÅ mÉʦ¸ïÖ ºÀÄzÉÝ PÉÆr¸ÀĪÀ PÀÄjvÀÄ ºÀtzÀ D«ÄµÀPÉÌ ©zÀÄÝ ®AZÀ 10 vÉUÉzÀÄPÉƼÀî¨ÉÃPÉA§ D¸É¬ÄAzÀ F ªÉÄÃ¯É ºÉýzÀ ¸ÀA¨sÁµÀuÉAiÀÄ°è ®AZÀªÀ£ÀÄß PÉýgÀÄwÛÃj ªÀÄvÀÄÛ ¸ÀgÀPÁj £ËPÀgÀ¤UÉ ¸À®èzÀAvÀºÀ zÀÄ£ÀðqÀvÉ J¸ÀVgÀÄwÛÃj. 2) ¤ÃªÀÅ gÁAiÀÄZÀÆgÀ f¯ÉèAiÀÄ C¨sÀåyð ²æà ºÀĸÉãÀ¥Àà PÀqÉêÀĤ ºÁUÀÆ ²æà Dgï.J¸ï. ¥ÁnÃ¯ï ºÉZï.¹. EªÀgÀÄ §AzÀÄ ¤ªÀÄUÉ mÉʦ¸ïÖ ºÀÄzÉÝ PÉÆr¹zÀgÉ ºÀtªÀ£ÀÄß MzÀV¸ÀÄvÉÛÃªÉ JAzÀÄ ºÉýzÁUÀ ¤ÃªÀÅ DAiÀÄÄÛ ¥ÀæAiÀÄvÀß ªÀiÁqÀÄvÉÛÃ£É JAzÀÄ ºÉý ²æà Dgï.J¸ï. ¥Ánî CªÀjAzÀ ºÀtªÀ£ÀÄß (®AZÀªÀ£ÀÄß) ¥ÀqÉAiÀÄĪÀ GzÉÝñÀ¢AzÀ CªÀgÀ ªÉƨÉÊ¯ï £ÀA§gÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀÄwÛÃj ªÀÄvÀÄÛ ¸ÀgÀPÁj £ËPÀgÀ¤UÉ ¸À®èzÀAvÀºÀ zÀÄ£ÀðqÀvÉ J¸ÀVgÀÄwÛÃj. 3) ¤ÃªÀÅ mÉʦ¸ïÖ £ÉêÀÄPÁw ªÀiÁrPÉƼÀÄîªÀ PÀÄjvÀÄ PÉ®¸ÀªÀ£ÀÄß ¤ªÀð»¸ÀÄwÛzÀÄÝ, ¤ÃªÀÅ ®AZÀªÀ£ÀÄß ¥ÀqÉAiÀÄĪÀ zÀÄgÀÄzÉÝñÀ¢AzÀ C¨sÀåyðUÀ½UÉ mÉʦ¸ïÖ ºÀÄzÉÝAiÀÄ£ÀÄß PÉÆr¸ÀÄvÉÛÃ£É JAzÀÄ D«ÄñÀªÀ£ÉÆßrØ ¤ÃªÀÅ ¤ªÀÄä ªÉƨÉÊ¯ï £ÀA.9740725399 ¢AzÀ C¨sÀåyðUÀ½UÉ PÀgÉUÀ¼À£ÀÄß ªÀiÁrgÀÄwÛÃj ºÁUÀÆ ¹éÃPÀj¹gÀÄwÛÃj. F jÃw ¸ÀgÀPÁj £ËPÀgÀ¤UÉ ¸À®èzÀAvÀºÀ zÀÄ£ÀðqÀvÉ J¸ÀVgÀÄwÛÃj. 4) ¤ÃªÀÅ ¤ªÀÄä ºÉ¸Àj£À°è ¥ÀƪÁð£ÀĪÀÄw E®èzÉà ¤ªÀÄä ªÉƨÉÊ¯ï £ÀA. 9740725399 £ÀÄß Rjâ¹zÀÄÝ ºÁUÀÆ RjâAiÀiÁzÀ £ÀAvÀgÀ ªÉƨÉÊ®£ÀÄß ElÄÖPÉÆAqÀ §UÉÎ ¤ªÀÄä ªÉÄïÁ¢üPÁjUÀ½UÉ AiÀiÁªÀÅzÉà jÃw ªÀiÁ»wAiÀÄ£ÀÄß ¸ÀºÀ ¤ÃrgÀĪÀÅ¢®è. F jÃw ¸ÀgÀPÁj £ËPÀgÀ¤UÉ ¸À®èzÀAvÀºÀ zÀÄ£ÀðqÀvÉ J¸ÀVgÀÄwÛÃj.” 11 11. The Enquiry Officer appointed to conduct the enquiry held a detailed enquiry wherein P.W.1 and P.W.2 were examined on behalf of the Disciplinary Authority and Ex.P1 to Ex.P6 were marked. On behalf of the petitioner, delinquent official himself got examined as R.W.1. 12. The Enquiry Officer submitted his report dated 16.08.2010 holding that the charge Nos.1 to 3 leveled against the petitioner/DGO are not proved and charge No.4 regarding purchase of mobile phone without permission as proved. While coming to the conclusion that the charges 1 to 3 are not proved, the Enquiry Officer has observed that even by preponderance of probability, it cannot be concluded that the DGO was involved in the acts of misconduct i.e., demanding money from third parties, giving assurance to secure job for the post of Typist. 12 13. Be that as it may, when the second respondent- Disciplinary Authority received the enquiry report and when the enquiry is held under 1957 Rules, Rule 11-A of the said Rules required the Disciplinary Authority, if it disagrees with the findings of the Enquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. Relevant Rule 11-A of 1957 Rules reads as follows: “11-A. Action on the inquiry report. -(1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 11 as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge record its reasons for such 13 disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (3) If the Disciplinary Authority having regard to its findings, on all or any of the articles of charge is of the opinion that [one or more of the penalties specified in Rule 8] should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 12, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government Servant and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant.” 14. When the second respondent proceeded to impose punishment of compulsory retirement on charge Nos.1 to 3 whereby the Enquiry Officer has held that the charges 1 to 3 are not proved, it is deemed that the 14 Disciplinary Authority has disagreed with the findings of the Enquiry Officer. Moreover, on careful scrutiny, order of penalty dated 01.09.2010 (Annexure-F) reveals that, after discussion of the evidence on record at paragraph (26), the Disciplinary Authority has held that charge Nos.1 and 2 are proved against the DGO and disagree with the findings of the Enquiry Officer on the said charges. Paragraph (26) reads as follows: “26. From the above discussion, I hold that the Charge Nos.1 and 2 are proved against the DGO and I disagree with the findings of the Inquiring Officer on the said charges.” 15. Admittedly, the findings of the Enquiry Officer in respect of charge Nos.1 and 2 was in favour of the petitioner. When the Disciplinary Authority disagreed with the findings of the Enquiry Officer on charge Nos.1 and 2, it ought to have provided an opportunity to the petitioner to have his say in the matter, by issuing second show-cause notice along with the enquiry report, 15 recording its own findings on the available evidence. Having not issued second show cause notice in the instant case would be violative of Rule-11-A(2) of 1957 Rules and is in violation of principles of natural justice. 16. The Hon’ble Apex Court in KUNJ BEHARI MISRA (supra) was considering identical provision like Rule 11-A of 1957 Rules and at paragraph 19 has held that whenever the Disciplinary Authority disagrees with the Enquiry Authority on any article of charge, then, before it records its own findings on such charge, it must record its tentative reason for such disagreement and give to the delinquent official an opportunity to represent before it records its findings. Relevant paragraph 19 reads as follows: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority 16 on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charges of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 17. From the affidavit filed by second respondent it is clear that the second respondent has not issued second show-cause notice on receiving the enquiry report. Without issuing second show-cause notice recording reasons for disagreement, providing opportunity of hearing would be a futile exercise. The delinquent 17 official would not be in a position to answer and he would not be knowing the reasons for disagreement with the findings of the Enquiry Officer. 18. For the reasons recorded above, the writ petition deserves to be allowed in part, remanding the matter to the Disciplinary Authority to consider the case afresh, from the stage where the lacuna has occurred. 19. Learned counsel for the petitioner had made a submission not to remand the matter. But the said submission cannot be accepted since in the instant case, the lacuna is, not recording finding for disagreeing with the findings of the Enquiry Officer and not providing opportunity to the petitioner. The recording of findings for disagreement with the findings of Enquiry Officer would depend on the evidence on record. Rule 11-A(2) of 1957 Rules, requires the Disciplinary Authority to record its own findings, if it disagrees with the findings 18 of the Enquiry Officer, based on the evidence on record. Therefore, if the Disciplinary Authority finds that there is no evidence, it may not proceed further in the matter. When the charge is of very serious in nature it requires logical end to the enquiry. 20. Hence, the following order: (i) The writ petition is allowed in part. The order dated 01.09.2010 in D.E. No.4/2009 of the second respondent (Annexure-F) is quashed. (ii) The matter is remanded back to the second respondent-Disciplinary Authority to take action in terms of Rule 11-A of 1957 Rules to record its own findings if it decides to disagree with the findings of the Enquiry Officer based on the evidence on record and to proceed further or to drop the proceedings by accepting the report of the Enquiry Officer. 19 (iii) The consequential benefits/arrears of salary would depend on the decision to be taken by the Disciplinary Authority. (iv) The petitioner would not be entitled for arrears of salary for the present, since on his compulsory retirement, he would be receiving pension. Sd/- (S.G.PANDIT) JUDGE mpk/-* CT:bms