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Judgment
Mr. B. Veerappa, J. - The petitioner who is working as a Divisional Mechanical Engineer under the respondents'' authorities had filed the above writ petition to quash the Order bearing No. NEKRTC/CO/HUB/DISC/52/10/768, dated 30-6-2011 passed by the second respondent vide Annexure-D and Order bearing No. KSRTC/CO/DISC/AP-595/1211/2012-13, dated 27-11-2012 passed by the first respondent vide Annexure-F.
It is the case of the petitioner that he is a permanent employee of the respondent-Corporation presently working as a Divisional Mechanical Engineer in Bangalore Metropolitan Transport Corporation (South) at Bangalore. When he was working as a Divisional Mechanical Engineer in Bagalkot Division, the second respondent had issued articles of charges on 14-10-2010 which reads as under:
"You being the Divisional Mechanical Engineer in Gadag Division, has not taken any steps to increase/rise the KMPL in between the period from April 2010 to July 2010, during which period earned 4.93 KMPL as against 5.04 KMPL earned for the previous year has resulted in reduction of 1.15 KMPL for the current year and thereby increasing a loss of Rs. 45.59 lakhs to the corporation which is a misconduct."
The petitioner submitted his reply to the said articles of charge on 24-12-2010 and explained the circumstances in which, the Kilometer per Liter (KMPL) had been reduced during the period as specified in the articles of charge by enclosing all necessary documents in support of his defense and also contended that considering the good service performed by the petitioner, respondent-Corporation has issued an appreciation letter as well as cash award to the petitioner and the same is at Annexure-C.
It is further the case of the petitioner that the first respondent without holding any enquiry on the alleged misconduct and without proper appreciation of the explanation offered by the petitioner, imposed the punishment on 30-6-2011 withholding one annual increment of the petitioner permanently. The said order was challenged before the first respondent-Appellate Authority. The first respondent-Appellate Authority after considering the appeal filed by the petitioner, by the impugned order dated 27-11-2012, has modified the order passed by the first respondent and reduced the withholding of one ensuing annual increment for a period of one year without cumulative effect. Hence, the petitioner has filed the present petition.
I have heard the learned Counsel for the parties to the lis.
Sri Naveen Kumar for Sri S.B. Mukkannappa, learned Counsel for the petitioner contended that the first respondent has passed the order at Annexure-D, imposing penalty of withholding one annual increment with cumulative effect and the said order had been modified by the second respondent, wherein he has reduced the withholding of one ensuing annual increment for a period of one year without cumulative effect is a punitive order and no enquiry is held by the respondent before passing the impugned orders. Therefore, the impugned orders passed by the respondents are contrary to the mandatory provisions of Regulation 22 of Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 and the respondents have not assigned any valid reasons to dispense with the enquiry. Therefore, the very imposition of penalty is contrary to law in the facts and circumstances of case and therefore he sought to set aside the impugned orders passed by the respondents.
Per contra, Sri Hareesh Bhandary T., learned Counsel for the respondents sought to justify the impugned order and contended that the second respondent while imposing tire penalty has specifically stated in the impugned order that there is no necessity of holding the enquiry and reasons have been assigned for dispensation of enquiry. Therefore, he sought to dismiss the writ petition.
I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.
It is an admitted fact that the petitioner is working as Divisional Mechanical Engineer in the respondent-Corporation and in the year 2010, charges came to be issued to the petitioner to the effect that "the petitioner has not taken any steps to increase/rise the KMPL in between April 2010 to July 2010. During which period earned 4.93 KMPL as against 5.04 KMPL earned for the previous year has resulted in reduction of 1.15 KMPL for the current year and thereby'' increasing a loss of Rs. 45.59 lakhs to the corporation which is a misconduct."
A plain reading of the charge, is a serious charge and misconduct requires enquiry. In the present petition admittedly, the respondents have not initiated disciplinary enquiry before passing the impugned orders. Regulation 22 of the KSRTC Servants (Conduct and Discipline) Regulations, 1971, which reads as under:
"Procedure for imposing minor penalties.-(1) Subject to the provisions of sub-regulation (26) of Regulation 23 and Regulation 15, no order imposing on a Corporation servant any of the penalties specified in clauses (i) to (viii) of Regulation 18 shall be made except after:
(a) informing the Corporation servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-regulations (3) to (23) of Regulation 23, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Corporation servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; and
(d) recording a finding on each imputation of misconduct or misbehaviour.
(2) The record of the proceedings in such cases shall include.-
(i) a copy of the intimation to the Corporation servant of the proposal to take action against him;
(ii) his representation, if any;
(iii) the evidence produced during the inquiry, if any;
(iv) the findings on each imputation of misconduct or misbehaviour; and
(v) the orders on the case together with reasons therefore."
A plain reading of the Regulation 22 of the said regulation makes it dear that the minor penalty like one imposed upon the petitioner in this case can only be informed in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it was proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. Clause (b) of the Regulation 22(1) further requires that penalties can be imposed only after enquiry into the matter conducted in accordance with sub-regulation (3) of Regulation 23, in every case in which the Disciplinary Authority may be of the opinion that conducting of such enquiry is necessary. In other words, before minor penalties can be imposed, it is obligatory on the part of the Disciplinary Authority to consider the question of holding or dispensing with enquiry into the matter. An enquiry would become unnecessary only in case the Disciplinary Authority considered it to be so and recorded its opinion in express terms on the said issue. Needless to say that while considering any such question of either holding or dispensing with an enquiry, the Disciplinary Authority was bound to consider in a fair and objective manner not only the nature of the charges levelled against the employees but also the nature of the defence set up by him.
Admittedly, in the present cast there is no separate order passed by the respondents to dispense with the enquiry or holding of the enquiry as contemplated under Regulation 22 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971. While passing the order an observation is made by respondent No. 2 that enquiry is dispensed with but no valid reasons are assigned to dispense with the enquiry. Enquiry dispensed with does not amounts to following the procedure contemplated under Regulation 22 of the said Regulation.
The material on record discloses that the impugned order at Annexure-D passed by the second respondent and Annexure-F passed by the first respondent without holding any enquiry without giving an opportunity to the petitioner of being heard and no reasons are assigned in the impugned orders except enquiry is dispensed with. The impugned orders passed by the authorities is in utter violation of Regulation 22 of the KSRTC Servants (Conduct and Discipline) Regulations, 1971.
This Court while considering the provisions of Regulation 22 of the KSRTC Servants (Conduct and Discipline) Regulations, 1971 in the case of Ankappn v. Management of Karnataka State Road Transport Corporation, Bangalore and others, 1996 (7) Kar. L.J. 264 : ILR 1996 Kar. 3050, specifically held at paragraph 4 as under:
"In the instant case however, the respondents have not been able to demonstrate that the Disciplinary Authority had actually applied its mind to the question of either holding or dispensing with the conduct of the enquiry into the allegations made against the petitioners. Neither the order of punishment issued by the respondents nor any other record for that matter demonstrates either application of mind on the part of the Disciplinary Authority or a conscious decision to dispense with the holding of an enquiry, looking to the nature of the allegations made in the charge-sheets. There is therefore no escape from the conclusion that the Disciplinary Authority had palpably failed in the discharge of the obligation cast upon it under Regulation 22-B and in proceeding to impose a punishment without recording a finding that the holding of an enquiry was unnecessary. The impugned orders are thus unsustainable and have therefore to be quashed."
In view of the aforesaid reasons, writ petition is allowed, the impugned Order bearing No. NEKRTC/CO/HUB/DISC/52/10/768, dated 30-6-2011 (Annexure-D) passed by the second respondent and Order bearing No. KSRTC/CO/DIS/AP-595/1211/2012-13, dated 27-11-2012 (Annexure-F) passed by the first respondent are hereby quashed, with liberty to the respondents to take action against the petitioner in accordance with law.