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Judgment
L. Narayana Swamy, J.—The petitioner in this petition has challenged the Enquiry Officer''s report and its finding in DE No. 14 of 2008 passed by the Registrar (Administration) and Specially Empowered Authority, High Court of Karnataka and he has further challenged the order of dismissal dated 1st October 2010 and rejection of Review Petition dated 7th December 2010 and sought for quashing the said orders. An enquiry was initiated against the petitioner on the basis of the complaint made by PW1-Chandrappa, by issuing charge-sheet in Departmental Enquiry No. 14 of 2008. The charge framed against the petitioner is that while he was working as Court Officer, he had received an amount of Rs. 15,000/- from the complainant through Rajashekaraiah, Second Division Assistant on 6th July, 2007 and he had acknowledged the receipt of the said amount and assured him that he would look after the case. It is alleged that the petitioner failed to maintain honesty, integrity and committed an act of unbecoming a High Court servant, which amounts to misconduct within the meaning of Rule 22 of the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 (for short, hereinafter referred to as ''the Rules). The Articles of charge refers and furnishes the list of witnesses. The Complainant himself was examined and got marked seven documents. Articles of charge are supported by statement of imputations. The charge leveled against the petitioner has been denied submitting reply dated 13th March 2009. In his reply, the petitioner had stated that at the relevant time he was on leave for a considerable period due to personal reasons. He has stated that as per Annexure-D1, leave was granted by the competent authority by its Notification in No. HCE 310/2007 dated 2nd July 2007. The period, in which the petitioner is alleged to have committed misconduct, for the purpose of Rule 22 of the Rules does not arise since he was not on duty. Instead of dropping the proceedings against the petitioner, enquiry proceeded, found him guilty and the petitioner has been visited with the order of dismissal from service. An Enquiry Authority, under Rule 17(2) of the Rules has been appointed to make a report within four weeks.
The enquiry proceedings and the order of dismissal and rejection of review petition has been challenged in this petition. The learned counsel appearing for the petitioner has taken following grounds:
That the charge leveled against the petitioner is in contravention of Rule 17(2) of the Rules. The said Rule requires a definite charge to be framed on the basis of materials available. The charge that the petitioner has accepted Rs. 15,000/- through the other delinquent official is a vague one as it could be seen and no material could be found out from the charge. The learned counsel submitted that PW1 in his cross-examination has specifically elicited that he has no materials, particularly, against this petitioner in support of his complaint and the charge made against the petitioner. In the light of the deposition of PW1 to the effect that he has no materials in support of the charge, instead of dropping the proceedings, for no reasons, the enquiry proceeded further. He further submitted that furtherance of enquiry is bad in law and is violation of Rule 17(2) of the Rules. The report submitted by the enquiry officer holding that the petitioner has committed offence, is without there being any evidence and materials, is an error of law and fact. It is not an option on the part of the enquiry authority to snub or evade the reasons, he is duty-bound to place on record the evidence portion as well as the materials. The enquiry officer committed an error in making his report. Evidence of PW1 oriented only against the delinquents no. 2 and 3 and if at all, the enquiry officer has to come to that conclusion, it should have been against the delinquent officials No. 2 and 3 and not against the petitioner. After the submission of the enquiry report, the Rules require that the Disciplinary authority would communicate and supply a copy of the report along with statement of its findings together with proof and reasons, to the delinquent for disagreement if any. Unless it is done, Rule 18 of the Rules contemplates issuance of second show-cause notice. Before passing an order, consideration of representation is required. In response to the notice, the petitioner has made a detailed representation highlighting the lapses committed in the enquiry report and none of his defence has been considered by the disciplinary authority. The Rules further provide to make a review application by conferring power upon the disciplinary authority. As per the said provision, the petitioner made a review application and the same has been rejected without a speaking order.
The learned Additional Government Advocate appearing for the respondent has filed statement of objections. He submitted that the Enquiry officer has given fullest opportunity to the petitioner and the petitioner has cross-examined PW1 and also PW2, who is the Deputy Superintendent of Police (Vigilance). The finding of the enquiry office is on the basis of the materials and evidence and there is no error committed by the Enquiry Officer. Since the rules do not permit to prefer an appeal and it provides reviewing power on the disciplinary authority, the disciplinary authority has considered in detail and rejected the review petition. He further submitted that the petitioner has committed grave misconduct and he should not be permitted to continue in service and accordingly supports the impugned order passed by the respondent.
Heard both. The foundation for initiation of enquiry is the compliant made by PW1. Two complaints have been made; one is on 16th July 2008 made to the Registrar General and the second was made on 29th July 2008 and one more complaint was made on 22nd October 2008. In all these complaints, the complainant refers the name of the petitioner as it is revealed by delinquents No. 2 and 3. While demanding bribe from the complainant, he has revealed the name of the petitioner, who was working as Court Officer of that court. He further refers the name of the petitioner in making demand for registration of a site for which he has to keep Shivaramiah in good books. Except these references, PW1 does not speak specifically as to whether the petitioner has made a demand or accepted the bribe. He has further stated in the complaint that on a particular date, he went along with the petitioner to the Canteen. In the complaint, PW1 has confined his grievance only against delinquents No. 2 and 3. On the basis of the complaint, it was referred to vigilance branch and further or, the basis of the vigilance report, the Articles of charge were framed. In order to issue a charge against a person, Rule 17(2) of the Rules mandates that the Specially Empowered Authority shall frame a definite charge on the basis of the allegations. That means to say that there shall be a definiteness in framing charges and to frame the charge there must be an allegation. As already stated, in the complaint made by PW1, there are no specific allegations made against the petitioner. The reference of the name of the petitioner on two occasions by delinquent officials No. 2 and 3, itself does not constitute an offence and the same is insufficient to frame the charge. Accordingly, the foundation has not been properly taken in initiating enquiry. The petitioner was only an accessory to the incident and he cannot be found guilty from the principal offenders, viz. delinquent officials No. 2 and 3. The charge of allegation is odious and is not to be presumed. If the complainant had stated that the petitioner had accepted, demanded an amount of Rs. 15,000/- to favour him, then it should have been different.
The Articles of charge, if examined, the same is framed as if the petitioner has accepted the amount from the complainant. It states that the petitioner had accepted Rs. 15,000/- through Rajashekaraiah, Second Division Assistant on 6th July 2007 and the same does not make out any specific and definite charge against the petitioner. The petitioner had not accepted the bribe and no material to that extent is available as to whether the petitioner has accepted the amount. Nobody can make out as to what exactly is the case that is made against the petitioner. Under these circumstances, the Articles of charge is vague as the same cannot be termed as a definite charge framed against the petitioner. Hence, the framing of Article of Charge or issue of charge against the petitioner is contrary to Rule 17(2) of the Rules. In response to the issuance of Article of charge, a reply has been made by the petitioner on 13th March 2009. In his reply, the petitioner has specifically stated that at the relevant time, viz. on 6th July 2007, he was on leave for a considerable period of time for personal reasons. The very important aspect that should have been looked into is to whether the petitioner was working as a Court Officer on that date? In support of his defence, the petitioner marked document Annexure-D1 the Notification issued by the competent-authority sanctioning leave to him. This notification should have been examined by the enquiry officer. He has turned blind-eye on the same or evaded from looking into the said document. When it is the case of the petitioner that he was not working and was on leave during that relevant time, there should have been specific finding given in the report, but the enquiry officer has not made that effort, however, he has proceeded further.
In the evidence of PW1 who is the complainant, and in his chief-examination dated 15th May 2008, he has deposed that "during the lunch interval on that day the said Rajashekaraiah introduced me to Court Officer Shri Shivaramiah. The said Shri Shivaramiah was the Court Officer of the Court where my case had been posted for hearing on that day. Rajashekaraiah asked me to take care of Shivaramiah properly and he also assured that the case would be decided in my favour. After Shivaramiah was introduced to me by Rajashekaraiah, the said Shivaramiah returned to the Court Hall. Thereafter, Rajashekaraiah told me that Shivaramiah is close to the Judge and that I should properly take care of Shivaramiah." In another paragraph, the complainant has deposed that "on that day myself, the said Shri Balraju and Shivaramiah together went to Canteen and took food. At that time, Shivaramiah told me that money was not paid by Rajashekaraiah." Except these two piece of evidence, there are no other evidence available to the Enquiry Officer. If it is his evidence that Shivaramiah was introduced by Rajashekaraiah, both of them went to canteen, it does not make out any sense for making allegation against the petitioner. If at all something has been stated it should have been against Rajashekaraiah and certainly not against Shivaramiah, the petitioner herein. His evidence that Shivaramiah told him that he has not been paid money by Rajashekaraiah, is the version of the complainant. But it has not been stated in the complaint. On the basis of these evidence ''and without any material, nobody could make out any complaint or the allegation against the petitioner. PW1 was cross-examined by the petitioner. In the cross-examination, the petitioner put a question, "do you have any material to substantiate the allegation made by you in your complaint against the delinquent No. 1-Shri B.R. Shivaramiah?" has been answered as, "I do not have any material particularly against Shri B.R. Shivaramiah, but my allegations is against Rajashekaraiah". This evidence, if read with the evidence in chief-examination and the contents in the complaint, it makes out that there is no specific complaint to frame a definite charge against the petitioner. Accordingly, the charge framed is in violation of Rule 17(2) of the Rules.
PW2 is the Deputy Superintendent of Police attached to Vigilance Section in the High Court Vigilance Branch. His evidence is also not relevant since it is not useful against the petitioner, because, there is no specific foundation laid by the complainant. The show-cause notice was issued on 13th September 2010 along with the enquiry report. The enquiry report, has been held against the delinquents. The enquiry officer has relied much on the evidence of PW1. PW1, in his evidence has already discussed that he was introduced by Rajashekaraiah and the said Rajashekaraiah further told to complainant to take care properly and he also assured that the case would be decided in his favour. This is the evidence of PW1. If at all he has been introduced by Rajashekaraiah, the same cannot be attributed against the petitioner, unless there is evidence. The petitioner going with accused 2 and 3 to the canteen itself does not constitute an offence. In the evidence of PW1, it is stated that "Shivaramiah the petitioner herein, told him that he has not been paid" has not been substantiated by any other materials and/or evidence. Further the enquiry officer committed an error in holding that Shivaramiah was the Court Officer on that day when the Court was functioning, has no basis since Annexure-D1 was issued by the competent authority. These lapses have been highlighted in the reply to the show-cause notice. The notification, dated 2nd July 2007 marked as Annexure D1, clarifies that the petitioner was granted earned leave for nineteen days from 25th June 2007 to 13th July 2007 ''and further permitted the petitioner to avail general holidays on 14th July 2007 and 15th July 2007. The alleged date 6th July 2007 falls between the said nineteen days, in which earned leave was granted. It is not the case of the respondent that the notification, in which the leave was granted was cancelled or despite granting leave, the petitioner functioned as Court Officer by entering into Court Hall. These things have not been examined by the disciplinary authority. The reply to the show-cause notice dated 25th September, 2010 has not been examined, whereas, the Registrar (Administration) is duty-bound to examine each and every statement and the defence taken in the reply. However, the disciplinary authority has issued dismissal order dated 1st October 2010. The reply dated 25th September 2010 given to the show-case notice should have been examined meticulously and endorsement should have been issued as to why the defence taken therein has not been accepted or it is false. Contrary to the same disciplinary authority has issued the impugned order of dismissal, which is also illegal and contrary to law.
Dismissal from service is a capital punishment in service jurisprudence. Along with the dismissal order, the disciplinary authority should keep in mind that the family members of the delinquent are going to be deprived of their fundamental rights; school going children will have to be discontinued and the future of the children as well as the innocent family members would be deprived of their livelihood. That the dismissal order calls for such harsh punishment, maximum care should have been taken by the disciplinary authority. Here, I find that no such care or caution has been taken. Review is permitted under Rule 21 of the Rules. Since the dismissal order has been passed by Hon''ble the Chief Justice in his Administrative capacity, no appeal is provided. However, it is permitted to review its order. Again the petitioner has made a detailed review petition and narrated how the evidence of PW1 would not attract the issuance of dismissal order or the enquiry report holding charges proved against the petitioner is bad in law. But the reviewing authority has not considered any of the grounds taken in the review petition. The Enquiry Authority, the Disciplinary Authority and the Reviewing Authority are quasi-judicial authorities. The rights of the parties are to be deprived in accordance with law, i.e. as per the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973. While reviewing the order under the provisions of Rules, there shall be a finding furnished in the endorsement. However, the memo dated 7th December 2010 has been issued rejecting the review application stating that there is no basis or ground to review. The said one line order in the instant case is arbitrary and violative of Articles 14 and 16 of the Constitution of India. Even for the'' purpose of taking disciplinary action, while dismissing their case fullest reasons have to be assigned. Mere stating that charges are of extremely grave nature and there is no-basis to review the case, is not at all in accordance with the spirit of law in the existing fact situation. The reviewing authority should have examined right from the complaint as to whether there is any specific complaint made against the petitioner and the vague articles of charge framed is not a correct foundation of initiation of disciplinary enquiry and enquiry report submitted holding the charges are proved are without appreciating the evidence of PW1 and without examining the records, particularly Annexure-D1 and the reasons given that there is no basis to review is not at all a proper endorsement.
Under these circumstances, it is relevant to refer the judgment of the Hon''ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India (UOI) and Another, wherein at paragraph 21 of the judgment it is observed thus:
The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani Vs. Union of India (UOI) and Others, wherein this Court held:
It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
In the light of the abovesaid judgment of the Hon''ble Supreme Court what is to be understood is that the Authority, which frames the charges must satisfy that it could frame a definite charge and before issuing charge it should satisfy itself whether the materials are sufficient to frame the charge.
Secondly, after accepting the reply to the charge, again it should give a relook as to whether the defence taken in the reply is sufficient to drop the proceedings. If it is of the opinion that the defence taken is insufficient, then also the enquiry officer is duty-bound to take consideration of the evidence. Evading from assigning reasons itself is a denial of right of a litigant and the enquiry officer should not forget that he is a quasi-judicial authority and must give reasons. This reasoning of mine is fortified by the judgment of the Hon''ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others, wherein it is observed thus:
Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with
Further, it is observed that in his cross-examination, PW1 has stated that he has no material against the petitioner. The same is sufficient and it should have been taken a serious note while submitting the enquiry report. Ei incumbit probatio qui dicit, non qui negat, i.e. the burden of proof lies upon him who affirms, not he who denies. Hence, it is the Enquiry Officer who has to prove the charge not the petitioner.
Reviewing Authority is also duty bound to. review the same in its entirety. If these statutory and constitutional obligations are not discharged, and if the said non-compliance act results in dismissal of a person from service, it is certainly to be said as arbitrary, unconstitutional and violative of Articles 14 and 311 of the Constitution of India. In this regard, it is useful to refer to a Latin Legal Maxim Lex non a rege est violanda means the law must not be violated even by the King.
In view of the observations made above and in the light of reasons assigned, I do not hesitate to hold that action of the respondent-Disciplinary Authority is arbitrary and not in accordance with the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973. Hence, I pass the following:
ORDER
Writ petition is allowed.
Order Annexure-H1 dated 22nd October 2009 passed in DE No. 14/2008 (HCE No. 1117 of 2008; Order Annexure M dated 1st October 2010 passed in HCE No. 1117/2008; and order Annexure N1 dated 7th December 2010 passed in HCE No. 1117/2008 are hereby quashed. The respondents are directed to treat the petitioner as on duty till superannuation and to pass appropriate orders as to consequential benefits within a period of three weeks from the date of receipt of a copy of this order.