ORDER
H.L. Dattu, J.
1. Petitioner was a Regional Manager of Karnataka Leather Industries Development Corporation Limited (for brevity referred to as 'Corporation'). By an order dated 30.8.1990 passed by Board of Directors of the said Corporation, petitioner was dismissed from the services of the Corporation. Aggrieved by this order, petitioner is before this Court in a petition filed under Article 226 of the Constitution of India.
2. While working as Branch Manager and Show Room Manager of Lidkar Emporium at Mysore, petitioner was kept under suspension pending enquiry on 24.7.1984. The articles of charges was served on the petitioner which contains ten charges. Charges are in the nature of irregularities, mal-practice, mismanagement said to have been committed as Branch Manager at Mysore. The charge memo is dated 14.8.1984. Along with the memo, petitioner was also supplied with statement of imputations, list of witnesses and documents in support of the charges. Petitioner denied the charges by his reply dated 27.8.1984, denying that he had committed the acts of misconduct alleged in the charge memo on the various dates which constituted his dishonesty, lack of integrity, unbecoming of an Officer of the Corporation. By an order dated 22.12.1984, one Sri Nirmal Prasad, Company Secretary was appointed as an Enquiry Officer to inquire into the charges alleged in the charge memo. According to the petitioner, the enquiry officer so appointed did not take any action to finalise the enquiry proceedings.
3. Since there was some delay in completing the proceedings, the respondent-Corporation revoked the order of suspension of the petitioner and reinstated him into service. Nothing happened in between 8.4.1985 to March, 1989 and it is only on 21.3.1989, one Sri Ravi, Advocate was appointed as Enquiry Officer to proceed with the inquiry. During the proceedings on 18.12.1989, additional charge memo was served on the delinquent. The additional charges pertained to shortages in the stocks of Show Room at Mysore and the alleged shortage was to an extent of Rs. 1,97,000/- Petitioner denied this charge also by his reply dated 31.12.1989.
4. The Enquiry Officer submitted his report and the findings thereon, after holding an enquiry. He was of the view that all the charges are proved except charge Nos.5,6,9 and 10 and also the additional charges in his report dated 15.6.1990, submitted to the Board of the Corporation. The Board accepting the report in its Meeting held on 20.6.1990, kept the petitioner once again under suspension by its notice dated 23.6.1990 and was further pleased to direct the petitioner to show cause why major penalty of dismissal from service should not be imposed for the proved charges in the charge memo. Petitioner filed his reply by his explanation letter dated 17.3.1990. Not being satisfied with the explanation Board by its order dated 30.8.1990 dismissed the petitioner from the services of the respondent corporation. While passing this order, Board observes that the charges proved in the enquiry proceedings amounts to serious misconduct and the petitioner is liable for major punishment as provided in Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for brevity CCA Rules). It is aggrieved by this decision, the present petition has been preferred.
5. Some grievances have been made by the petitioner in support of the prayer for quashing the impugned order. They mainly relates to the supposed illegalities in the conduct of disciplinary proceedings but what has been really pressed into service by the learned Counsel for the petitioner Sri Kumar is, the contention that the petitioner was deprived of an opportunity to prefer an appeal as provided under CCA Rules, since the Board itself has passed the impugned order, it suffers from inherent defect. The other ancillary contentions are that the Board without proper application of mind to the report and the findings of the enquiry officer could not have concurred with the findings and therefore, the impugned order is bad and invalid. Thirdly, the charges are misconceived and the alleged acts of commissions and omissions said to have been committed by the petitioner would not amount to misconduct, since all those allegations at the most are only in the nature of innocent mistakes and the errors of judgment and the Board has not suffered any pecuniary loss. The fourth contention is that there is inordinate unexplained delay from the date of initiation of the proceedings till the completion of it, therefore, the proceedings are vitiated and requires to be set aside and lastly, the punishment imposed by the disciplinary authority is not in commensuration with the gravity of the charges alleged and proved in the enquiry proceedings and therefore, it is submitted, the punishment imposed requires to be modified if not annulled by this Court.
6. This Court as well as other High Courts and the Supreme Court had occasion to consider the scope of writ jurisdiction in respect of departmental enquiry proceedings. The consistent view seems to be that the powers of the High Court under Article 226 of the Constitution in exercise of Writ Jurisdiction in disciplinary proceedings is very much limited. It is only in cases where either the principles of natural justice is violated or there are procedural irregularities or findings are perverse or without any evidence, then, the court can interfere with the decision arrived in the departmental enquiry proceedings. Keeping in view this settled legal position of law, let me now advert to the legal contentions raised by learned Counsels for the parties.
7. Sri Kumar, learned Counsel for petitioner, in respect of first ground urged, submits that since the Board has passed the impugned order, petitioner's right to appeal against the said order is denied to him and therefore, the proceedings suffer from inherent defect. Sri Somashekhar, learned Counsel for the Corporation contends that since the order is made by the highest authority of the Corporation, no injustice is caused to the delinquent and it was also contended that there is no right of appeal unless it is provided under the Rules or Regulations of the Corporation.
8. The undisputed facts are that respondent Corporation does not have its own Conduct and Discipline Rules or Regulations. They have only their Service Rules. In that, it is stated that in respect of conduct, discipline and other matters not covered by Service Rules, the employees of the Corporation are governed by existing rules and practice of the Corporation. The practice of the Corporation with regard to conduct and discipline of its employees was to follow CCA Rules. This is indicated in their impugned order. The respondent Corporation has observed that the punishment on the delinquent on the proved charges in the inquiry proceedings, which according to them are serious misconduct, the delinquent is liable for major penalty as per CCA Rules.
9. Part IV of CCA Rules, provides for discipline and penalties on Government servants. Rule 8 speaks of nature of penalties. Rule 9 envisages the disciplinary authorities. Among various authorities prescribed, it includes the Governor of the State to empower to impose any of the penalties prescribed under Rule 8. Rule 10A provides for authorities to institute disciplinary proceedings. It says that the Governor or any other authority empowered by him by general or special order may institute proceedings against Government servant. Rules 11 and 12 prescribe the procedure for imposing major and minor penalties provided under Rule 8 of CCA Rules. Then, we have Chapter V which provides for appeals. Rule 17 says that no appeal lies against any order made by the Governor and Rule 18 provides for appeals against order imposing penalties. In the case of members of State Civil Services, if the order imposing penalty, is made by an authority subordinate to the appointing authority, then appeal lies to the appointing authority and to the Governor against an order made by any other authority imposing any of the penalties specified in Rule 8. Rules make a clear distinction in the cases where penalties specified in Rule 8 is to be imposed by the Governor of the State and that of any other appointing and disciplinary authority. Even under CCA Rules, if the order imposing any of the penalties specified is made by the highest authority of the State viz., the Governor, then, no appeal lies notwithstanding any other provision in the CCA Rules.
10. Now, coming back to the case on hand, the Corporation does not have its own conduct and discipline rules. The Corporation had not named any appellate authority. The Board had initiated disciplinary proceedings against the petitioner and it is the Board, which is higher authority in the set up of respondent Corporation, has passed the impugned order against the petitioner dismissing him from services of the respondent Corporation. Since no appeal is provided against the impugned order, it cannot be said that the order suffers from inherent defect. It is not one of those cases, where Rules or Regulations provide for an appeal remedy and inspite of it, that authority acting as disciplinary authority has imposed certain punishments depriving the delinquent/aggrieved person to have the recourse to appeal remedy, which is substantive right given to him. Therefore, it cannot be said that the order passed by the Board suffers from inherent defect. The Apex Court had an occasion to consider a case where rules provided for appeal remedy to the higher authority but the appellate authority had passed an order imposing certain punishments by exercising the powers of the disciplinary authority. In such a situation the Court in the case of SURJIT GOSH v. CHAIRMAN AND MANAGING DIRECTOR, UNITED COMMERCIAL BANK, 1995(2) SLR 11, was pleased to observe as under :
'5. The respondent Bank in its submission contended that although it is true that the Deputy General Manager had acted as the disciplinary authority when he was in fact named under the Regulations as an appellate authority, no prejudice is caused to the appellant because the Deputy General Manager is higher in rank than the disciplinary authority, namely, the Divisional Manager/AGM (Personnel). According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. It was also contended that there is no right to appeal unless it is provided under the Rules or Regulations. Although the argument looks attractive at first sight, its weakness lies in the fact that it tries to place the Rules/Regulations which provide no appeal on par with the Rules/ Regulations where appeal is provided. It is true that when an authority higher than the disciplinary authority itself imposes the punishment the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there is no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence, we are of the view that the contention advanced on behalf of the respondent Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted.
The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside.'
11. Keeping in view the observations made by the Apex Court in the aforesaid decision, it cannot be said that since the Board has passed the impugned order, the petitioner was deprived of an opportunity to prefer an appeal and the order of dismissal suffers from an inherent defect.
12. The other contention is that the charges are misconceived and the alleged acts of commissions and omissions said to have been committed by the delinquent would not amount to misconduct and those allegations are only in the nature of innocent mistakes and the errors of Judgment and the Board has not suffered any pecuniary loss. In my view, the said contention has no merit whatsoever. A perusal of the charge memo clearly indicates that the petitioner had deliberately floated the instructions of the Head Office and committed acts of malpractices and mismanagement in connection with the affairs of the Corporation. The Supreme Court in the case of DISCIPLINARY AUTHORITY-CUM-REGIONAL MANAGER AND ORS. v. NIKUNJA BIHARI PATNAIK, : (1996)IILLJ379SC , was pleased to hold that acting beyond one's authority by itself would be breach of discipline and constitutes misconduct and really, there need not be further proof of loss to the employer. In the said decision, the Court was pleased to observe as under :
'In acting beyond one's authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in the instant case, there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit they are no less blameworthy. It is wrong to characterise them as errors of judgment. It is not suggested that the respondent being a Class I Officer was not aware of the limits of his authority or of his powers. In spite of instructions by the Regional Office to stop such practice, the respondent continued to indulge in such acts. The inquiry officer has recorded a clear finding that the respondent did flout the said instructions and thereby committed an act of disobedience of lawful orders. Similarly, in spite of reminders, the respondent did not submit 'Control Returns' to the Regional Office. All this could not be characterised as errors of judgment and not as misconduct as defined by the Regulations.'
13. The third issue that was canvassed by the learned Counsel for the petitioner is that there was no application of mind by the disciplinary authority before concurring with the findings of the enquiry officer and before imposing punishment of dismissal from service. In the instant case, disciplinary authority accepts the findings of the enquiry officer. The finding was that the delinquent has committed various irregularities and mismanaged the affairs of the Corporation. As observed by the Supreme Court in Upendra Singh's case, this Court while exercising its writ jurisdiction cannot go into correctness or otherwise of the charges framed against the delinquent. In the said decision, the Court further observed held that the Tribunal or the Court can interfere only, if on the charges no misconduct or other irregularity alleged can be said to have been made out or the charges are contrary to law. In so far as non-application of mind by the disciplinary authority is concerned, the learned Counsel for the petitioner submits that when the enquiry officer had not observed in his findings that all the charges are proved against the deliquent, the disciplinary authority could not have observed in its order that all the charges are proved except one charge. This act of the disciplinary authority is much commented upon by the learned Counsel for the petitioner and says it definitely proves that there was no application much less proper application of mind by the disciplinary authority. A stray observation made by the disciplinary authority, in my view, would not vitiate the entire enquiry proceedings and the orders made by the disciplinary authority. In the instant case, disciplinary authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings. Just because the disciplinary authority has stated that the enquiry officer has given a report that all the charges are proved, in fact when it is not so, still the order of the disciplinary authority cannot be held to be bad. On perusal of the entire order, I find that the disciplinary authority before concurring with the findings of the enquiry officer, has gone through the entire proceedings and applied his mind thereto. In that view of the matter, it cannot be said that the disciplinary authority has not applied his mind before concurring with the findings of the enquiry officer and therefore, the impugned order is bad and invalid, cannot be accepted and accordingly, this contention of the learned Counsel for the petitioner is rejected.
14. In so far as judicial review of the punishment imposed by the disciplinary authorities are concerned, the law is now well settled. In a recent decision, the Supreme Court, in the case of UNION OF INDIA AND ANR. v. GANAYUTHAM, : (2000)IILLJ648SC , was pleased to observe as under :
'32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of 'proportionality'. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to 'irrationality', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in 'outrageous' defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain 'Ranjit Thakur'.
33. In Ranjit Thakur, this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wends burry and CCSU tests were satisfied. In another case, in B.C. CHATURVEDI v. UNION OF INDIA a three judge Bench said the same thing as follows : (SCC p. 762, para 18)
'18.. The High Court/Tribunal while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reason in support thereof.'
Similar view was taken in INDIAN OIL CORPORATION LTD., v. ASHOK KUMAR ARORA that the Court will not intervene unless the punishment is wholly disproportionate.
34. In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. CHATURVEDI case that the court might - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the Competent Authority. (In B.C. CHATURVEDI and other cases referred to therein it has however been made clear that the power of this court under Article 136 is different). For the reasons given above, the case cited for the respondent, namely, STATE OF MAHARASHTRA v. M.H. MAZUMDAR cannot be of any help.'
15. In the instant case to contend that the punishment imposed by the disciplinary authority wholly disproportionate, of the charges alleged and proved, the learned Counsel for the petitioner submits that by acts of ommissions and commissions said to have been committed by the delinquent, the Corporation has not incurred any pecuniary loss and at the most the so called omissions could be only administrative lapses and errors of judgment. Even this contention, in my view, has no merit whatsoever. Some of the charges alleged against the delinquent are that payments were made without even obtaining supporting bills, non-accounting of imprest money in the Branch Office, allowing of discount to VIPs and other without approval of the competent authority. These acts are sufficient to hold that the petitioner as a Asst. Manager of the Corporation exceeded his brief and acted beyond his authority. These instances are sufficient to hold that the acts alleged and proved against the delinquent would definitely constitute misconduct and the punishment imposed by the disciplinary authority cannot be characterised outrageous, defiance of logic, perverse or irrational. The punishment imposed by the disciplinary authority does not shock the conscience of this Court and therefore, in my view, the punishment imposed need not be interfered with.
16. Lastly, a feeble contention was raised by learned Counsel for petitioner to suggest that the unexplained delay from the date of initiating proceedings till the passing of impugned order would vitiate the entire proceedings. In support of this contention, it was submitted that the petitioner was kept under suspension pending departmental enquiry sometime in the year 1984 and the charge memo was issued on 14th August, 1984 and the impugned order was made nearly after six years. It is not disputed that delinquent was kept under suspension in the year 1984 pending enquiry and the charge sheet was served in the month of August, 1984. Since respondents could not complete the enquiry proceedings within a reasonable time, an order came to be passed revoking the order of suspension, sometime in the year 1985 itself and petitioner was reinstated into service and petitioner was working till the impugned orders were made by respondents. The delay in completing the proceedings has not caused any prejudice to the petitioner and in fact, it was beneficial to him. In that view of the matter, it cannot be said delay in completing the enquiry proceedings has vitiated the entire proceedings.
17. These are only the contentions raised by learned Counsel for petitioner and since, I have negatived all the contentions, this petition deserves to be dismissed. Accordingly, it is dismissed. In the facts and circumstances of the case, parties are directed to bear their own costs.