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D.M. Madashetty Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 11038 of 1978
Judge
Reported inILR1985KAR2642
ActsKarnataka Civil Services (Classification, Control and Appeal) Rules, 1957 - Rule 11
AppellantD.M. Madashetty
RespondentState of Karnataka
Appellant AdvocateYamuna Sridharan, Adv. for ;B.G. Sridharan, Adv.
Respondent AdvocateN. Devadas, HCGP
DispositionPetition dismissed
Excerpt:
.....before appellate or revisional authority, failure of disciplinary authority to furnish copy of enquiry report immaterial and order in appeal/revision not vitiated.;order of compulsory retirement made by government was reviewed by governor and affirmed. contended inter alia that enquiry report not having been furnished by disciplinary authority opportunity of making representation was denied; per contra contended that petitioner having taken the opportunity before next higher authority i.e. the governor, question as to furnishing copy of enquiry report by disciplinary authority does not arise.;the very purpose of furnishing the enquiry report to the delinquent official is to give him an opportunity to make out his points as to why the findings recorded in the enquiry should not be..........of the state government has presented this petition praying for quashing the order of the state government imposing the penalty of compulsory retirement against* w. p. no. 11038 of 1978 dated 7th march 1985him, which order had been confirmed by the governor on a review petition presented by the petitioner.2. the facts of the case, in brief, are as follows :the petitioner was a revenue inspector in mysore city during 1976. a departmental enquiry was held against him by the state vigilance commission on the following charge:'that you sri d. m. madasetty, while working as revenue inspector, mysore city on 26-2-1976 at about 4 p.m. in your office demanded and accepted an illegal gratification of rs. 20/- from sri k. s. raju son of k. p. raju of mysore for recommending the issue of.....
Judgment:
ORDER

Rama Jois, J.

1. The petitioner an ex-Revenue Inspector of the Revenue Department of the State Government has presented this Petition praying for quashing the order of the State Government imposing the penalty of compulsory retirement against* W. P. No. 11038 of 1978 dated 7th March 1985him, which order had been confirmed by the Governor on a review petition presented by the petitioner.

2. The facts of the case, in brief, are as follows :

The petitioner was a Revenue Inspector in Mysore City during 1976. A departmental enquiry was held against him by the State Vigilance Commission on the following charge:

'That you Sri D. M. Madasetty, while working as Revenue inspector, Mysore City on 26-2-1976 at about 4 p.m. in your office demanded and accepted an illegal gratification of Rs. 20/- from Sri K. S. Raju son of K. P. Raju of Mysore for recommending the issue of Backward Class Certificate in respect of his sister Smt. Prabhavathi and thus you are guilty of grave misconduct.'

The Asst. Director of Vigilance who was nominated as the Enquiry Officer by the Vigilance Commission held the enquiry against the petitioner. He recorded a finding to the effect that the petitioner was guilty of the charge. The Vigilance Commissioner also sent the Enquiry Report to the State Government with his recommendation for accepting the findings recorded by the Enquiry Officer. The State Government made an order on 4th/9th January 1978, imposing the penalty of compulsory retirement against the petitioner. A copy of the order made by the State Government was communicated to the petitioner along with the copy of the Enquiry Report, copy of the recommendations of the State Vigilance Commission, the finding recorded by the State Government and a copy of the recommendation of the Karnataka Public Service Commission. After the receipt of the above order, the petitioner preferred a review petition before the Governor. In the review petition, the petitioner contested the finding recorded by the Enquiry Officer. On considering the grounds urged in the review petition, the Governor rejected the review petition by his order dated 10th August, 1978 (Annexure-D). Aggrieved by this order, the petitioner has presented this petition.

3. The learned Counsel for the petitioner urged the following contentions:

(i) The defence statement of the petitioner given before the Enquiry Officer was not considered;

(ii) one mahazar witness was not examined; and

(iii) the Enquiry Report was not furnished to the petitioner by the Disciplinary Authority and thereby an opportunity of making representation against the findings recorded in the enquiry was denied.

4. As regards the first point, it is not correct to state that defence statement of the petitioner was not considered. In paragraph-19 of the report, the statement given by the petitioner at the time of trap as also the statement given by him before the Enquiry Officer have been considered. The Enquiry Officer opined that there has been inconsistency in the stand taken by the petitioner and therefore, he disbelieved his plea. Apart from this it should be pointed out that the finding recorded against the petitioner was on the basis of the evidence viz., of P.Ws. 1 to 5, as also the mahazar documents. Therefore, as the finding of fact is based upon such evidence, the same cannot be interfered with.

5. The second contention of the petitioner is one mahazar witness was not examined. So long as the evidence adduced in the enquiry is sufficient to record a finding of guilt against the petitioner and the finding cannot be considered as perverse having regard to the evidence on record, the fact that some more evidence cited was not adduced is no ground to set aside the finding Therefore, I find no substance in this contention also.

6. The third contention urged for the petitioner was that the Enquiry Report was not furnished. In support of this submission, the learned Counsel relied upon the judgmentof this Court in Mahabaleshwar Pandrinath Naik v. State of Karnataka, 1982(1) KLJ 105. The learned Counsel pointed out that in the said case, it had been held that after the enquiry was held and before the punishment was imposed copy of the enquiry report should be furnished to the delinquent and he should be afforded an opportunity of making representation. There is no dispute that the enquiry report was not given to the petitioner before the Government Order was passed.

7. Learned Counsel for the State, however, submitted that if the petitioner had approached this Court immediately after the order of the disciplinary authority was made, the contention would have been valid. But in this case after the enquiry report and the report of the Vigilance Commission as also the report of the Public Service Commission was furnished to the petitioner, he submitted a detailed Petition for review before the Governor in which the petitioner had full opportunity of contesting the findings recorded in the enquiry. After considering the points urged by the petitioner with reference to the enquiry report, the Governor has rejected the points urged by the petitioner. Therefore, there is no question of the disciplinary authority now furnishing a copy of the enquiry report to the petitioner and giving him an opportunity of contesting the findings recorded in the enquiry report when the petitioner had taken the said opportunity before the next higher authority, viz., the Governor.

8. The submission made by the Learned Counsel for the State is well-founded. The very purpose of furnishing the enquiry report to the delinquent official is to give him an opportunity to make cut his points as to why the findings recorded in the enquiry should not be accepted. That purpose is achieved if an official against whom an order has been made by the disciplinary authority urges all the grounds available to him before the Appellate Authority or the reviewing authority and these grounds are considered by the said authority. This is the law laid down by the Supreme Court in the case of Somanath Sahu v. The State of Orissa, 1969 SCWR 851, 855 Relevant part of the Judgment reads :

'6. We shall, however, assume in favour of the appellant that the order of respondent No. 4 dated the 31 th March 1960 was illegal because no enquiry into the alleged misconduct was made, before making that order. Even on that assumption we arc of opinion that the appellant is not entitled to the grant of a writ under Article 226 of the Constitution. The reason is that the appellant preferred an appeal to the State Government against the order of respondent No. 4 under Rule 6(2) of the Orissa Welfare Officers' (Recruitment and Conditions of Service) Rules, 1961. The appellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order dated the 2nd January 1962. In these circumstances we are of opinion that the order of respondent No. 4 dated the 11h March, I960 has merged in the appellate order of the State Government dated the 2nd January, 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dated the 11th March I960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a Tribunal the decision of the Appellate Authority is the operative decision in law if the Appellate Authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of ihe Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the Appellate Authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (See the decisions of this Court C.I.T. -vs- Amritlal Bhagilal & Co., 1959 S.C.R. 713 and Madan Gopal Rungta -vs- Secretary to the Government of Urissa 1962 Supp. 3 SCR 906)'.

If the finding recorded by the Appellate Authority or reviewing authority is itself liable to be set aside on any valid ground that would be a different matter. But as far as the opportunity of making representation against the enquiry report is concerned, that stands fulfilled by the concerned official urging all the grounds available to him against the report before the Appellate Authority or reviewing authority. Therefore, on the facts and circumstances of the case, and in view of the order passed by the Governor on the review Petition after considering the grounds urged by the petitioner with reference to the inquiry report, the impugned order cannot be set aside on the ground that a copy of the inquiry report was not furnished by the disciplinary authority.

9. As far as the reasons given by the Governor in his order for rejecting the points raised by the petitioner, are concerned, they are valid, and no case js made out to interfere with that order.

10. In the result, I make the following order:

(i) Rule discharged.

(ii) Petition dismissed.

(iii) No costs.


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