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Judgment
Narayana Swamy, J.—The petitioners were working in this High Court as F.D.A. and S.D.A. respectively. They were placed under suspension by an order dated 24.11.2008 on the allegations made against them listing out as many as three charges. The charges are: while they were so working, the petitioner in the "second writ petition introduced one Sri E. Chandrappa complainant-petitioner in Writ Petitions No. 20601/2002 and 24595/2002 to the first petitioner stating that he knows about the facts of the case and has close contact with the officers, Hon''ble Judges, Court Officers and he can get judgment in those writ petitions in favour of the complainant on monetary consideration, the first petitioner is the person entrusted with the work of listing cases for hearing before the Court, he is to be looked after well. The petitioner in the second writ petition collected certain amounts from the complainant in all a sum of Rs. 45,000/- and the first petitioner demanded a site as noted in the charge sheet as a gratification for getting him favourable order. Thereafter they were frequently contacting him over mobile phone pressurizing ''him for the money and registration of the site and after dismissal of the said cases on 24.7.2008 when the complainant approached the petitioners, they staged a sarcastic look at him and after much pleading, they advised the complainant to file either revision petition or an appeal and that they would see that the said cases are decided in favour of the complainant if only the complainant satisfies their demand for site, 50% of the cost of the site was payable to petitioner in the second writ petition. Further the first petitioner mentioned in the sale agreement cost of site @ Rs. 1,800/- per sq. ft, is Rs. 21,60,000/- and against the same, Rs. 20 lakhs is shown to have been paid as advance, neither the prior permission from High Court for purchase of the said site is obtained nor intimated as to the source for making payment of the said sum thereby the petitioners failed to maintain honesty, integrity and committed an act of unbecoming of High Court Servants which amounts to misconduct within the meaning of Rule 22 of the High Court of Karnataka Services (Conditions of Service and Recruitment) Rules, 1973. In the enquiry, deposition of the witnesses was recorded, the parties filed their written brief. The petitioners were issued show cause notice that the charges against them are established. The petitioners submitted their reply. The petitioners were issued with an order dated 1.10.2010 dismissing them from service.
The petitioners filed review petitions seeking review of the order dated 1.10.2010. The said review petition also came to be dismissed by the order dated 7.12.2010. Hence the petitioners have filed these writ petitions.
I have heard the learned counsel for the petitioners and the learned Additional Government Advocate for the respondents and perused the entire records.
The learned counsel for the petitioners submitted that none of the contentions raised in the reply are considered while passing the order accepting the report. It is contended that the enquiry proceedings was conducted in violation of the principles of natural justice, the charges framed against the petitioners were vague, the enquiry report is biased, that decision was taken to hold an enquiry before the charge memo is issued on the petitioners. It is submitted that the enquiry report is based on presumptions and assumptions. There are serious inconsistencies considering the complaint, deposition, articles of charges said to have been issued on the basis of the complaint. The alleged agreement did not bear the signature and it is a fabricated document. It is evident from the call records that no calls were made to Mobile No. 9880374446 by the complainant and vice versa. There are inconsistencies in the deposition of PW-2 which are not appreciated by the Enquiry Officer. The version of the complainant cannot be believed because even though first delinquent was on leave on 6.7.2007, he has stated that he has met him in the Court. The enquiry officer has proceeded on the footing that Ex. P7 & Ex. P7(a) are admitted which is not correct. It is further contended that the Reviewing Authority has failed assign any reasons, just accepted the dismissal order. Even as per the say of the complainant, Rs. 10,000/- he has paid to RCM Agency and therefore complainant cannot say that this amount is also paid to the 2nd petitioner. The complaint filed by the complainant is false, which ought to have been rejected. Since no appeal is provided, reconsideration of the materials was very much available which duty the Reviewing Authority has failed to discharge. Hence he prays for allowing the writ petitions.
On the contrary, the learned Additional Government Advocate submits to dismiss the writ petitions. The scope of jurisdiction of this Court as against the order passed by the employer in a departmental enquiry is very limited, there is abundant material to show the dishonest acts by the petitioners and the order of dismissal of an employee cannot be easily interfered. Hence he prays for dismissal of the writ petitions.
The point that arises for my consideration in these writ petitions is, whether the orders impugned herein suffer from any legal infirmity so as to call for interference from this Court? My answer would be in the negative for the following reasons.
It is not in dispute that the first petitioner was working as F.D.A. and second petitioner as S.D.A. in this High Court. It is also not in dispute that both the petitioners and complainant have admitted their possessing the respective mobile phones. The petitioners have called the complainant over their respective mobiles repeatedly, though the petitioners claim that the purpose of their calling is quite different than the charges framed against them. There was an acquaintance No permission is taken from the office either to purchase the site or to make payment towards the site mentioning the source of so much of money with the first petitioner. However, the first petitioner claimed that no money was paid by him but the money was paid by his brother in a sum of Rs. 1,50,000/- as an advance.
The evidence of the complainant who was examined as PW-1 is exhaustive and in detail he has deposed as to payment of money on different dates to second petitioner, conversation took place between himself, first and second petitioner. PW-1 has stated that on the first date when the writ petitions were posted, the second petitioner called him, informed about posting of the cases and instructed him to bring Rs. 15,000/-, which he has paid. In 2007 the second petitioner got the cases posted for hearing before the Court and again demanded Rs. 15,000/- which was also paid. He further deposed that he paid Rs. 10,000/- to the second petitioner towards getting the records and Rs. 4,500/- towards getting membership with RCM Company at the instance of second petitioner. The second petitioner also insisted the complainant to get membership to his son also and accordingly, the complainant had to take such membership by paying Rs. 4,500/-. Membership application is signed by the second petitioner.
PW-1 further deposed that the petitioners came to him with a sale agreement and represented to him that 10% of the amount mentioned in the sale agreement would be paid before the Sub-Registrar and 90% is shown to have been received outside. When PW-1 asked, why they are insisting to execute the sale agreement, the first petitioner told him that the second petitioner got vast property, if the sale agreement is registered in his wife''s name, whatever amount is payable to the second petitioner would be paid by him. In order to trap the second petitioner, a call was made to him from his mobile from Police Commissioner''s office. The second petitioner received the call but told to contact the first petitioner. The telephonic conversation between PW-1 and the first petitioner was recorded by PW-2, the Dy. S.P. attached to Vigilance Branch.
Both PW-1 and PW-2 were cross-examined by the petitioners. PW-1 was suggested that no money was paid to the second petitioner and there was no demand for registration of the sale agreement in respect of the site by both the petitioners. The dates on which payments were made by the complainant were asked for which the complainant has stated the amounts were paid as stated in the complaint. The first petitioner set up a defence that his brother sought to purchase the site through the complainant. The second petitioner set up a defence that in connection with marriage alliance to daughters and son of the complainant, there was acquaintance and several calls had to be made to PW-1. These defences have not been substantiated by the petitioners. Therefore, there is nothing in the cross-examination of PW-1 so as to discredit his evidence.
The petitioners also sought to point out inconsistency in the deposition of PW-2 where he states at one breath conversation was recorded near Milk Booth and in another breath at Police Commissioner''s office. No much importance can be attached to this type of small discrepancy. What is to be seen is the substantial deposition and whether it is worth believing or not.
The material on record such as Ex. P7 & 7(a) Xerox copy of the sale agreement and the original agreement and deposition of petitioner No. 1 show that there was some transaction between the complainant and the petitioners. The defence set up by the petitioners, they have failed to substantiate by leading evidence of anybody in this regard. The call sheet produced in the case establishes there were several calls from the mobile phones of the petitioners to that of the complainant. In the absence of any rebutting material, the only inference that could be drawn is that of the transaction as alleged in the charges framed against the petitioners.
The petitioners have not specifically denied the receipt of a sum of Rs. 15,000/- on three occasions in their cross-examination on different dates as spoken to by the complainant.
Apart from the oral evidence, there is documentary evidence placed on record such as Ex. P1 to P4 complaint copies, Ex. P5 RCM business application form, Ex. P6 acknowledgement given by RCM business, Ex. P7 agreement of sale between Smt. Meerabhai & Sri R. Balaraju, Ex. P7(a) original sale agreement, Ex. P8 & 9 statements of complainant, Ex. P10 to Ex. P12 call particulars relating to telephonic conversation for mobile No. 9448975081, 9880937359, 9880374446 for different periods, Ex. P13 to P22 the telephone call particulars, Ex. P23 letter dated 30.7.2008 from Dy. S.P. regarding call particulars and Ex. P24 call particulars as to telephonic conversation.
The charges in a departmental proceedings are not required to be proved like a criminal trial i.e., beyond all reasonable doubts. What is required is only preponderance of probability to prove the charges on the basis of materials on record. The'' Enquiry Officer 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. The Enquiry Officer has applied his mind to all these aspects, appreciated the oral evidence and the circumstances and arrived at right conclusion that the charges against the petitioners have been proved and they are guilty of the charges framed against them.
It is to be mentioned here that there is no appeal provided as against the order passed by the Disciplinary Authority and only Review is provided. When a review petition is preferred by the petitioners, the Reviewing Authority is duty bound to discharge the functions of the appellate authority also by assigning the detailed reasons and considering the contentions raised by the petitioners. The reasons assigned by the Reviewing Authority though lacks consideration and assignment of reasons as required by law, the Reviewing authority was not disagreeing with the enquiry report or the order passed by the Disciplinary Authority and therefore though detailed reasons are not forthcoming, that by itself will not invalidate the order as it is only accepting the earlier order of dismissal based on the Enquiry Report. That means the reasons assigned by the Enquiry Officer to reach a conclusion that the charges are proved, would hold good for the order that is passed by the Reviewing Authority.
I have gone through the charges framed as against the petitioners. There is nothing in it so as to categorize that the charges are vague. The charges are specific, overt-acts are clearly spelt as against the petitioners and therefore, it cannot be categorized as vague. The petitioners how they have proceeded clearly demonstrates, they have understood the charges and there is nothing like injustice being caused on that score to the petitioners.
The proceedings sheet produced by the respondents clearly demonstrates that sufficient opportunity has been extended to the petitioners and they have also cross-examined the witnesses on number of occasions. In view of the available materials on record, I am of the view that there is nothing to disbelieve the case as against the petitioners. The petitioners have committed a serious misconduct thereby there is no possibility of changing the extreme punishment imposed on them. In the result, there is no merit in the writ petitions and they are accordingly dismissed.