Secretary to Government, Education Department and Others vs G. Mudalagiraiah

G. Narendra, J.—The above writ petition is preferred impugning the order of the Hon''ble Karnataka Administrative Tribunal, Bangalore dated 02.01.2014 rendered in O.A.NO.4065/2004. The respondent herein had preferred the application impugning the order of dismissal dated 28.6.2014 passed by the Government.

The petitioners in this writ petition are the State represented by its Secretary to Government, Education Department and the Principal, Government Pre-University College, Madhugiri, Tumkur District.

The undisputed facts are that the respondent, who was earlier working as a Lecturer with the second petitioner-Institution, was placed on deputation with the Department of Kannada and Culture, with effect from 17.7.1995 to 29.3.1996 and on 29.3.1996, he met with a serious accident and consequently he was relieved from duties. During this period, when the respondent was officiating in the post of Assistant Director of Kannada and Culture, Department, he is alleged to have indulged in certain irregularities resulting in the issuance of a charge memo consisting of 6 charges and a show cause notice dated 2.4.1997 came to be issued to the delinquent respondent. On 24.09.1998, the Deputy Director of Public Instructions, Tumkur, came to be appointed as the Enquiry Officer and the Assistant Director, Department of Kannada and Culture, Tumkur was appointed as the Presenting Officer and the Enquiry Officer was directed to submit a report. Pursuant to the same, enquiry came to be held on various dates i.e. on 21.12.2000, 17.1.2001, 8.2.2001 and 17.3.2001.

A perusal of the charges show that, in sum and substance, the respondent has indulged in irregularities or rather resorted to procedures which are contrary to the provisions of the Karnataka Financial Code. The respondent submitted his reply to the show cause notice denying all the allegations.

Thereafter pursuant to the enquiry the Enquiry Officer submitted a report holding that 5 out of 6 charges stood proved and charge No. 4 relating to opening of a bank account in a Private Bank was not proved as the said account had been opened and operated by the respondent''s predecessor. A perusal of the show cause notice and the charges does not disclose any allegation of financial misappropriation/embezzlement or fraud. No charge alleging misappropriation has been alleged against the respondent.

After the conclusion of the enquiry on 17.3.2001 the Enquiry Officer submitted his report on 11.1.2002. A perusal of the enquiry report also does not disclose any finding regarding embezzlement or misappropriation of official public funds. On the contrary the report reveals that in respect of the first charge, the clerk, who was required to maintain the accounts, has failed to up date the accounts and the respondent has been held responsible for the same as it is part of his supervisory duty to ensure that the accounts are maintained regularly and as he has failed to ensure the same, he has been held guilty of the said charge of not making or updating the entries in the books of account etc.

As regards the second charge is concerned, it is found that the respondent has submitted vouchers but the same has not been accounted for nor taken into account. But the fact remains that subsequently accounts have been finalized on the basis of vouchers which were available in the office records by the respondents successor.

The third charge is regarding the final statement. It is found by the Enquiry Officer that though bills have been raised, the same have not been entered in the Register but the successor of the respondent has relied upon the same bills to complete the final statement.

Thus viewed from any angle, charges 2 and 3 are merely procedural irregularities and are not substantial or grave enough to warrant a harsh punishment. As stated earlier the fourth charge is found to be not proved.

As regards the 5th charge the same relates to obtaining rate list from 3 firms for the purchase of musical instruments. The allegation is that though rate list have been obtained from three firms purchase orders have been placed only with two firms. It is not the case of the petitioners that the purchases are at inflated rates or have caused serious financial burden to the exchequer. The charge also does not disclose as to how the same is violative of the duties cast upon the respondent.

The 6th charge relates to improper maintenance of the stock register. Rather the allegation is that the stock register is not properly maintained and not signed. The enquiry officer also finds that the respondent''s predecessor has made entries in the stock register upto 23.8.1995 but he has not signed the same. It is neither explained by the department nor the enquiry officer as to how the said Shankarappa has been authorized to make entries in the stock register even after the respondent took charge on 17.7.1995. It is also found by the enquiry officer that the predecessor of the respondent has made an entry on page 14 dated 18.11.1994 and the respondent has also made an entry on the said page. This glaring consistency is not explained in the enquiry report. It is perplexing as to how the respondent who took charge only 17.7.1995 could make an entry on 18.11.1994. Thus as stated supra the allegations are in the nature of procedural irregularities and the same have been found to be proved.

After the receipt of the Enquiry report dated 11.12.2002 the petitioners have not proceeded further. The respondent attained superannuation on 30.6.2004. On 5.7.2004 a copy of the dismissal memo was issued (Annexure A9). The same is dated 29.6.2004 whereby the respondent herein is intimated about the order of dismissal passed by the Government on 28.6.2004. Thus it is apparent that the petitioners took almost 2 1/2 years to pass the order of dismissal.

Aggrieved by the same, the respondent approached the Karnataka Administrative Tribunal by way of application No. 4065/2004.

The respondent who had raised several plausible defences/contentions during the enquiry reiterated the same before the Tribunal and that apart it was also contended by him that the enquiry is vitiated, as being violative of the principles of natural justice and that it is also vitiated on the ground of non furnishing of relied upon documents and certain procedural irregularities. That apart, it was specifically contended by the respondent before the Tribunal that the order is without jurisdiction as the same has been passed after his superannuation i.e. after the date of retirement, as the same has been served on him on 5.7.2004. It is his specific allegation that the impugned order is back dated or ante dated.

The petitioners, who are the respondents before the tribunal, have trotted out an ambiguous reply. It is not in dispute that the order was communicated only on 5.7.2004, i.e. after the date of his retirement. The petitioners have averred before the Hon''ble Tribunal as below:--

"In this regard the respondents submit that the penalty order was passed on 28.6.2004 which came in to effect on the date of passing the impugned order. The said order is just and proper. The date of superannuation of the applicant is 30.6.2004 and the penalty order is well before the applicant''s retirement.

The applicant has not produced any cogent materials to show that the department then decided to pass the order back-dating the impugned order as 28.6.2004. The said contention is false and baseless. However, there may be some delay in passing the final order after issuing the second show cause notice to the applicant on various administrative reasons. On that ground alone the applicant cannot escape from the imposition of penalty.

It is an admitted fact that the offences was imposed after 9 years. Though there may be some lapse, the Disciplinary Authority has passed the final order after following due procedures and principles of natural justice."

In the above facts and circumstances the Tribunal was pleased to render a finding that the charges leveled against the respondent herein are not serious enough to warrant the harshest form of punishment i.e., dismissal from service. The Tribunal concluded that the punishment is disproportionate to the irregularities alleged against the delinquent officer and also the tribunal has concluded that there is no serious charge like misappropriation or embezzlement of public funds. The defence of the respondent that he met with an accident and hence could not complete the task of making entries in the cash book and stock registers was accepted and consequently the Tribunal has found that the punishment meted out to the respondent is grossly excessive and not in proportion to the irregularities alleged against the delinquent officer. It is also found that the punishment of dismissal is not warranted in the facts and circumstances of the case. The Tribunal has also appreciated the contention of the respondent-applicant that he was permitted to discharge his duties till he attained the age of superannuation and the order of superannuation was served only after his retirement i.e. on 5.7.2004.

In the light of these findings, the Tribunal was pleased to modify and alter the punishment of dismissal to one of compulsory retirement. Aggrieved by the same, the petitioners are before this Court.

Learned AGA appearing for the petitioners contended that the finding and alteration of punishment to one of compulsory retirement is illegal. He would further contend that the conclusion of the Tribunal that the punishment of dismissal from service compared to the gravity of the irregularities alleged is not commensurate is unsubstantiated, ill-founded and unsustainable in law.

Per contra, the respondent''s counsel would assert that not only is the reasoning of the tribunal sound but also legal and warrants no interference. The respondent would also reiterate his allegation that the impugned order of dismissal is vitiated by vindictiveness and has been passed after the retirement of the respondent-officer but has been ante dated to show as if it has been passed during the term of office of the respondent.

A perusal of the grounds in the writ petition and the statement of objections filed before the Tribunal does not disclose any material, pleading or fact by the petitioners/State to substantiate their assertion that the order has been passed prior to the retirement of the respondent-officer. Though the order of dismissal and the consequent memo are stated to have been sent by registered post, no material has been furnished by the petitioners demonstrating that the order of dismissal has been dispatched by registered post. Even the memo served upon the respondent/officer, though carries a stamp denoting that the same is forwarded by registered post, no document or acknowledgement for service of the same by post is produced before the tribunal or before this Court. These circumstances lend credence to the contention of the respondent that the order of dismissal from service has been passed after the date of retirement or after he attained superannuation.

The endorsement by the respondent on the memo served upon him on 5.7.2004 amply demonstrates that the order has not been communicated to him on any earlier date. No proceeding would partake the character of an order unless and until it is communicated, that is, dispatched. It was incumbent upon the petitioner to demonstrate that the impugned order of dismissal was communicated prior to the date of superannuation. Hence, the ambiguous stand of the petitioners that the order was passed prior to the respondent''s date of retirement cannot be accepted and acted upon and we are constrained to conclude that the order of dismissal has been passed after the respondent has attained superannuation.

We also concur with the findings of the Tribunal that the punishment meted to the respondent is too severe and wholly disproportionate to the irregularities alleged against the respondent. As rightly held by the Tribunal, the authority which has the right to impose penalty carries with it a duty to act justly and any penalty imposed must be commensurate with the gravity of the misconduct being otherwise would be violative of Article 14 of the Constitution. The respondent having not chosen to contest the findings of the Tribunal, no further relief can be granted.

Viewed from any angle the above writ petition is misconceived and devoid of merits and is accordingly dismissed. The petitioners shall forthwith release all pensionary benefits to the respondent.

In the facts and circumstances there shall be no order as to costs.