3) (2006) 5 SCC 446 G.M Tank v. State of Gujarat (Ref) 6 4. (2001) 2 SCC 386 : AIR 2000 Supreme Court 3689 [(2002) 2 SCC 386] Omkumar v. Union of India (Ref) 8

Sri N.S Prasad Advocate for Petitioner.

Sri P.G.C Chengappa AGA Advocate for Respondents.

Gopala Gowda, J.:—

The unsuccessful applicant before the Karnataka Administrative Tribunal, “K.A.T” for short, has filed this writ petition questioning the correctness of its order dated 18-6-1997 passed in Application No. 5358/1995 in dismissing the same by not interfering with the order of dismissal passed against him by the disciplinary authority vide order dated 17-9-1993, urging various legal contentions and prayed to set-aside and quash the order of the disciplinary authority and appellate authority.

2. Except the relevant facts and rival legal contentions, since the K.A.T Has elaborately adverted to the facts and evidence adduced before the enquiry officer, we do not propose to elaborately refer to the aforesaid aspects.

3. The petitioner was working as a Chief Officer Grade-IV, in the Karnataka Municipal Administrative Service. At the time of passing of an order of dismissal against him; he was working as a chief Officer, Sakleshpur Town Muncipal Council. The disciplinary proceedings were initiated against him at the instance of one Mr. N.D Ramesh, who had approached him on 26-7-1989 for grant of licence for construction of a hotel, on the basis of the complaint given by Mr. Ramesh that the petitioner had demanded illegal gratification for the sanction of license in his favour. Lokayukta Police Inspector sent a report to Lokayukta on 24-10-1989. On the basis of the said report, the first respondent passed an order dated 6-6-1990 directing a detailed enquiry by the Upalokayukta into the conduct of the petitioner. Thereupon another order was passed by the Upalokayukta on 21-8-1990 under Rule 14-A of the KCS (CCA) Rules, 1957 appointing the Deputy Registrar, Enquiries-3, Lokayukta, Bangalore as the enquiry officer to frame charges and conduct enquiry against the petitioner. Articles of charges dated 26-11-1990 along with the statement of imputation, notice of enquiry was issued to him. The sum and substance of the charge is that he has demanded illegal gratification from Ramesh for issuance of licence for construction of a hotel at Sakaleshpura. This charge was denied by the petitioner. Therefore a detailed enquiry was conducted by the third respondent in compliance with the rules referred to supra and principles of natural justice by affording a fair and reasonable opportunity to him. He submitted the report on 28-2-1992 to the Upalokayukta the respondent No. 2 herein and in turn he had forwarded the report to the first respondent along with his own remarks on 27-4-1992 recommending awarding a punishment of removal of petitioner from service. The copy of the report were forwarded to the petitioner along with the recommendation of the second respondent and also a second show-cause notice dated 19-9-1992 calling upon the petitioner as to why recommendations of the second respondent to remove him from service by accepting the findings of the Enquiry Officer should not be passed for which a detailed reply dated 27-12-1992 was submitted by the petitioner explaining the circumstances that the findings of the Enquiry Officer are not based on proper appreciation of legal evidence on record and findings recorded by him are erroneous in law which aspect of the matter has not been taken into consideration by the second respondent while forwarding a report along with his recommendation for his removal and the petitioner therefore requested the first respondent to drop the proceedings against him. Despite the said explanation, the first respondent imposed penalty of removal from service dated 17-9-1993, against which order an appeal was filed before the first respondent which appeal also came to be dismissed by the first respondent on 22-8-1994 and again the petitioner submitted another appeal to the Governor and that was also rejected by issuing an endorsement dated 26-6-1995 stating that there is no provision under the Rules to entertain second appeal. Therefore, the petitioner approached the K.A.T By filing original application to determine his rights and prayed to quash the order of removal and the order passed by the first respondent in the statutory appeal filed by the petitioner questioning the correctness of the procedure followed by the Enquiry Officer in conducting the enquiry and correctness of the evidence recorded by the first respondent contending that there is no legal evidence or some evidence on record to impose the order of removal holding that the misconduct alleged against him was proved. The findings of the enquiry report has been accepted by the second respondent without applying his mind and forwarded the same with his recommendations to the first respondent for imposing penalty of removal and the same has been mechanically accepted by the first respondent without examining the material on record and whether there are extenuating and mitigating circumstances to impose such penalty upon him. Therefore, it was contended by the petitioner in the original application that the order of removal passed against him is not only vitiated, but also suffers from procedural irregularities and illegalities as the findings recorded by the Enquiry Officer on the alleged misconduct are erroneous in law, hence the same are liable to be quashed. Both the respondents 1 and 2 have not applied their mind to the facts of the case and legal evidence on record, while passing the impugned order of removal passed against the petitioner. Further the first respondent has not considered the tenable explanation submitted by the petitioner to the second show-cause notice. All these grounds were urged in the statutory appeal filed by him before the first respondent under the Rules, praying the appellate authority to reconsider the facts and material evidence on record with reference to the evidence produced before the enquiry officer, but that has not been done by him. Therefore, the petitioner prayed the K.A.T to exercise its original jurisdiction and quash the impugned order and grant relief of reinstatement with all consequential benefits for which he is entitled to in law.

4. The respondents herein sought to justify the impugned orders, interalia contending that having regard to the serious nature of charge made against the petitioner which is grave in nature, domestic enquiry was conducted by the third respondent in accordance with the discipline and conduct rules and principles of natural justice by affording a fair and reasonable opportunity to the petitioner to defend himself in the enquiry proceedings and imposed appropriate penalty of removal which was warranted in the case against him and therefore the same does not call for interference by this Court, as the K.A.T In exercise of its original jurisdiction after careful examination of all aspects of the case has rightly rejected the original application by affirming the order of removal passed against the petitioner. The respondent's counsel further submitted that though the K.A.T Has got original jurisdiction to reexamine the case on the grounds urged by the petitioner herein it was not a case for interference by the K.A.T And therefore requested for dismissal of the application and accordingly it has dismissed the same by assigning its reasons for affirming the order impugned in the original application.

5. The K.A.T On the basis of the rival legal contentions urged by the Learned Counsel in the case, perusing the enquiry record, referring to the decisions cited for and against the legal contentions urged by them on behalf of the parties, has preferred to accept the case pleaded in the statement of objections on behalf of the respondents and recorded a finding of fact holding that the order of removal was preceded by a legal and valid enquiry in compliance with the discipline and conduct rules and principles of natural justice and therefore, the order of removal and order of Appellate Authority was not interfered with by the K.A.T By recording its reasons and rejected the original application.

6. The correctness of the said order is questioned before this Court urging various legal contentions. The learned counsel for the petitioner Sri. N.S Prasad placed strong reliance on the judgment of the Supreme Court in the case of Sher Bahadur v. Union of India . 2002 7 SCC 142. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., . 1999 3 SCC 679 paragraphs 34 and 36, which judgment has been referred to by the Supreme Court in the subsequent judgment in the case of G.M Tank v. State of Gujarat . 2006 5 SCC 446.. In that case, the departmental proceedings and the criminal case were based on similar set of facts and similar charges were leveled against the delinquent employee. In the criminal case, the criminal Court honourably acquitted the employee during the pendency of the disciplinary proceedings, which is filed before the appropriate authority. The Supreme Court held that if, in the disciplinary proceedings a finding is recorded contrary to the judicial findings in the criminal case on similar charges it would be unjust, unfair and oppressive and the order of dismissal is not sustainable in law and the same is required to be set-aside and this view is taken by the Apex Court after referring to its earlier decisions which are extensively referred to in the aforesaid decision. This important and relevant aspect of the matter not considered by the K.A.T, while passing the impugned order. Therefore, the learned counsel for the petitioner Sri. Prasad submitted that this is a fit case to apply the law and observations made in the aforesaid cases to the fact situation of the present case and grant the relief as prayed in the original application by quashing the orders impugned therein. The second submission made by the learned counsel is that the findings recorded by the third respondent in the domestic enquiry proceedings is not supported by either legal evidence or some evidence on record to justify the same in holding that the charge of misconduct alleged is proved against the petitioner. Therefore the learned counsel submits that the findings are vitiated in law was in important aspect of the case to be gone through by the first respondent before passing the order though it was brought to his notice in reply to the second show-cause notice. The first respondent had not exercised its power properly, after careful consideration of the enquiry report, explanation of the petitioner to the second show-cause notice, therefore statutory appeal was preferred before the first respondent-Appellate Authority and again the case was not considered by it in proper perspective. Therefore an order of removal and order passed in the appeal by the Appellate Authority are not only erroneous in law, but it also suffers from error in law as the same are contrary to the decisions of the Apex Court upon which reliance is placed by the petitioner's counsel. Therefore the learned counsel had requested this Court to examine the matter and grant the reliefs. The learned counsel brought to our notice the order of the Division Bench of this Court on 27-5-2002, which has heard the matter, wherein it has been observed as under:

“After the matter is heard for sometime, learned counsel for the petitioner submitted without prejudice to his contentions that if the order for removal is to be set aside, he will not press for backwages.

Learned AGA to ascertain whether respondents are agreeable for the proposal made by the petitioner without prejudice to his contentions.

Liston 10-6-2002.”

In view of the observations made by the Division Bench of this Court, the learned counsel filed an affidavit of the petitioner, wherein it is stated:

“3. I submit that for this duration for which I do not claim salary, I may be kindly awarded leave without pay and continuity in service. This service is necessary for the purpose of ultimately claiming pension and other benefits to which I am entitled.

I respectively pray that this Hon'ble Court may kindly be pleased to consider my request and appropriate orders in that regard may kindly be passed in the interest of justice and equity.”

7. The learned counsel Mr. P.G.C Chengappa submitted that the order passed by the K.A.T On the grounds urged before it in the original application is perfectly justified and that it is not a fit matter for interference by this Court under Article 226 and 227 of Constitution of India and therefore prayed for dismissal of the writ petition.

8. We have heard the learned counsel on behalf of the parties at length. We have gone through the order of removal and the Appellate Authority order. With reference to the rival legal contentions, we have also perused the enquiry report and evidence on record to find out whether the impugned order passed by the K.A.T In dismissing original application is legal and valid in background of the case law referred to supra upon which strong reliance is rightly placed by Mr. Prasad on behalf of the petitioner. Our answer to the aforesaid question would be in the positive for the following reasons:

As could be seen from the charges and statement of imputations in the disciplinary proceedings and criminal case which was registered under the provisions of Section 7, 12(1)(d) read with Section 13(2) of Prevention of Corruption Act 1988 against the petitioner are on same set of facts and charges are similar. It is also an undisputed fact that there was a special case registered against the petitioner in the Special Case No. 3/91 on the similar charges as has been alleged in the disciplinary proceedings. Disciplinary proceedings were initiated by the first respondent by appointing the third respondent as the enquiry officer on the same set of facts and allegations and enquiry proceedings were concluded by the enquiry officer during the pendency of criminal cases. The findings of the enquiry officer is that charge of demand of illegal gratification by the petitioner from one Mr. Ramesh who was an applicant before him seeking grant of license and sanction plan for construction of hotel building at Sakleshpur town was the basis on which the disciplinary proceedings were initiated by the first respondent on the report of the second respondent. On the basis of the evidence on record the enquiry officer respondent No. 3 has submitted his findings holding him as guilty of the charge and the same was proved by the disciplinary authority which findings are accepted by the disciplinary authority and order of removal was passed which order was affirmed by the Appellate Authority. Order dated 18-6-1997 in Application No. 5358/1995 was passed by the KAT during the pendency of the special case No. 3/1991 against the petitioner on similar set of facts and charges. The Sessions Judge passed judgment dated 2-6-1999 during the pendency of the writ petition not only honourably acquitting the petitioner but also on merits he has been acquitted on the similar criminal charge leveled against him by recording valid and cogent reasons and on appreciation of legal evidence adduced before it which copy of the judgment is produced in this writ petition and requested this Court placing reliance upon the decision in Paul Anthony's case and subsequently decisions which have been rendered by the Apex Court that judicial decision rendered by the District Judge must be preferred to the findings and reasons recorded in the disciplinary enquiry proceedings to impose penalty under discipline and conduct Rules in exercise of this Court's original jurisdiction and supervisory jurisdiction having regard to the undisputed facts involved and the charge leveled in both the departmental enquiry proceedings and criminal case are similar and having regard to the undertaking affidavit filed before this Court by Sri M.H Datar, learned counsel who appeared on behalf of the petitioner before his Court. This legal submission of the learned counsel Sri Prasad is very sound as the Supreme Court on similar set of facts examined the legal submission made in the case of Paul Anthony with reference to its earlier decisions extensively referred to it in the said judgment and made observations at paragraphs 34 and 36 of the said judgment, which observations has been subsequently followed by the Apex Court in the case referred to supra. We have carefully gone through the same. We have examined the relevant paragraphs of the said decision. The said decisions of the Supreme Court in the aforesaid case with all force applicable to the fact situation of the case on hand for the reason that the Supreme Court in unequivocal terms has made an observation that if the charge of misconduct and criminal charge are framed on the same set of charge in the disciplinary and criminal proceedings and in the criminal case the delinquent employee is honourably acquitted, then the decision rendered by the judicial officer must be preferred to the findings and reasons recorded by the enquiry officer in enquiry proceedings as his jurisdiction is quasi judicial in nature. In view of the observations made by the Supreme Court in the aforementioned i.e, cases upon which reliance is rightly placed by the learned counsel Sri Prasad, the order of removal passed against the petitioner according to us is oppressive, unfair and unjust. Under these circumstances, the petitioner hoping that he may get some relief in the case, on 27-5-2002 made a statement before this Court that he would prefer to forego the backwages if continuity of service is ordered by sustituting the order of removal. The litigation has been going on for last sixteen years. He has got another seven years of service to be rendered in the first respondent-state. In our considered view, the law laid down by the Apex Court in Paul Anthony's case, which was followed in the subsequent decisions of the Supreme Court referred to supra upon which strong reliance is placed by the petitioner's counsel is required to be applied to the case on hand. In that case, though the question of undertaking given to this Court on the basis of which affidavit is filed before this Court may not be necessary but still having regard to the facts and circumstances of the case we re also not inclined to award backwages which may run to lacks of rupees. Having regard to the nature of the allegations, though we are not accepting that allegations are proved against the petitioner, the statement made on behalf of the learned counsel for the petitioner placing reliance on the decision of the Supreme Court in Paul Anthony's case on the legal principle is well-founded and therefore we accept the same and apply to the case on hand. For the reasons stated supra by us we are required to apply the said decision in support of the case of the petitioner. The observations made in the decision of Paul Anthony's case which decision has been referred to in the subsequent decisions of the Supreme Court was not brought to the notice of the K.A.T And therefore the K.A.T Had no benefit of considering the petitioner's case in this perspective and the decision of the criminal Court was not available as the same was passed in the year 1999 during pendency of this writ petition. These are the factors which are in favour of the petitioner and therefore we are required to set-aside the order of the K.A.T and quash the order of removal passed by the disciplinary authority and appellate authority. On the basis of legal evidence even assuming that evidence recorded by the enquiry authority is correct which is accepted by the second respondent and the disciplinary authority, the disciplinary authority was required to examine the service record of the petitioner to impose an appropriate penalty as stipulated under the service rules keeping in view the doctrine the proportionality in imposing penalty as held in the case of Omkumar v. Union of India . 2001 2 SCC 386 is applicable to the facts of the case.

9. For the reasons stated supra, the writ petition is allowed. The order impugned in the writ petition is set-aside and the order impugned in the original application quashed by allowing the original application. The first respondent is hereby directed to reinstate the petitioner without back-salary and with continuity of service.