Ramesh Reddy - Petitioner @HASH State of Karnataka and Others

Jayant Patel, J. - These petitions are directed against the order dated 30-5-2016 passed by the Tribunal whereby, the Tribunal for the reasons recorded in the order, has dismissed the application.

We have heard Mr. Shyam Prasad B.N, Senior Counsel with Sri P.B. Ajit, learned Counsel for the petitioner.

The contention raised on behalf of the petitioner was that, the Tribunal failed to consider that as per Rule 11-A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (in short ''the Rules'') two contingencies are stipulated. One as per sub-rule (1) is that if the disciplinary authority is not satisfied with the enquiry, it may order re-enquiry or further enquiry. But if the Disciplinary Authority disagrees with the finding recorded by the Enquiry Officer that the charges are not proved, it has to record reasons for disagreement and give the opportunity to the employee concerned. In the submission of the learned Counsel for the petitioners, it was a case for falling under sub-rule (2) of Rule 11-A and therefore, the re-enquiry or further enquiry should not have been ordered. The aforesaid aspect is not properly considered by the Tribunal and hence this Court may consider in the present petitions.

3-A. We may record that in the impugned order before the Tribunal dated 30th October, 2015 copy whereof is produced at Annexure-A7 and it has been recorded in the said order of the Disciplinary Authority as under (English translation):

"If so, the question of giving the work code during this period was not there. From this the accused-officers didn''t have any powers in giving work code. Hence, it is clear that the accused had responsibility. The Enquiry Officer at the time of enquiry (1) to the accused issued on 16-11-2001 notice Annexure-3 mentioned on 4-1-2011 Special Auditor report Annexures-1 to 14 shown records should have been produced (2) and in that manner after producing on that basis under Sections 170, 170(2), 172 of Karnataka Municipal Corporations Act, 1976, the accused action should be been subjected to verification. (3) In this manner in Annexure-4 mentioned witnesses should have been called and from them under CCA Rule 11(1) and 11(2) the method of work is to be adhered and enquiry should have been held. But the Enquiry Officer have not followed any one of these, only keeping the base of the presenting officer written arguments have taken decision. Even the presenting officer keeping the base of the accused-officers statement have placed the case. In this manner when placed, the documents should have been taken up and could have conducted the hearing, but, it is found that it is not done so."

The aforesaid shows that the Disciplinary Authority was not satisfied with mode and the manner of holding the enquiry by the Enquiry Officer and it was also found that Enquiry Officer did not follow the requisite procedure and the witnesses were also not called for examination. Under these circumstances, it can be said that it was a case under sub-rule (1) of Rule 11-A of the Rules.

Tire attempt was made by the learned Counsel for the petitioner to contend that in the show-cause notice, there is no specific ground for defective enquiry or improper enquiry and he submitted that in the show-cause notice the grounds mentioned were for disagreement with the conclusion or the finding of the Enquiry Officer and therefore it could be said, as the notice under sub-rule (2) of Rule 11-A of the Rules and not under sub-rule (1) of Rule 11-A of the Rules.

We have considered the said show-cause notice. It is true that in the show-cause notice, there is also a reference to defective finding of the Enquiry Officer but, the important aspect is that, if the enquiry is improperly held, the resultant effect would also be of the defective finding. Further, had it been a notice under Rule 11-A(2), the petitioners would have been called for to show cause as to why the appropriate punishment should not be imposed by expressing view that charges were found to be proved on the basis of the reasons for disagreement. Nothing is spoken in the said show-cause notice. Under these circumstances, we are unable to accept the contention that it was not a case of show-cause notice under Rule 11-A(1). In any case, the ultimate order was challenged before the Tribunal. It deserves to be recorded that, scope and the span of observance of principles of natural justice in notice under Rule 11-A(l) and Rule 11-A(2) would not be the same and the reason being that when the employee is called upon to show cause for further enquiry or re-enquiry, he is to get the further opportunity in the event the further enquiry or re-enquiry is ordered whereas, in case of latter under Rule 11-A(2) he is not to get any opportunity during any subsequent enquiry but he has to show cause as to why the reasons recorded for disagreement and the finding that the charges are proved should not be accepted and/or as to why the punishment should not be imposed upon him. The degree of prejudice in the latter is more whereas, in case of former it is a nominal.

In any case, when the decision is taken in exercise of power under sub-rule (1) of Rule 11-A, it cannot be said that the Tribunal has committed any error in not interfering with the impugned decision.

In view of above, we do not find any case made out for interference. Hence, the petitions are dismissed. However, it is observed that during the course of the further enquiry, all rights and contentions of both sides shall remain open.