M. Anantha Mugeraya Vs. Karnataka Land Army Corporation, Bangalore and anr. - Court Judgment

Excerpt:
- education -- admissions to professional institutions: ):[huluvadi g ramesh, j] selection of candidates for admission to professional institutions rules, 2005-rule 17(2) - forfeiture of 20% of the fee amount constitutional validity of the rule 17(2) being challenged - held, rule 17(2) clearly provides for forfeiture of 20% of the amount if such surrender of seat is before the casual round. but once the casual round is over and selection process is complete, as per rule 17(3), the entire fee shall be forfeited. further, the very purpose and object of rule 17 is to enable the candidate who have got admission to pursue their courses. in the event any decision is taken well in advance to cancel such admission, in order to see that inconvenience is not caused to another candidate, penal.....orderh.l. dattu, j. 1. petitioner had joined the services of karnataka land army corporation ('corporation' for short), as assistant task force commander some time in the year 1972. during the year 1983, he was promoted as task force commander.2. petitioner while working as task force commander at sirsi, by an official memorandum bearing no. est.cr. 200/74-75, dated 11-11-1983 (annexure-a), he was kept under suspension pending departmental enquiry for dereliction of duties and negligence of executive work on his part. further, by the very same order, one sri l.c. srinivasan, deputy director (accounts), headquarters, karnataka land army corporation, bangalore, was appointed as enquiry officer to conduct a detailed enquiry and to submit his report within two months. the aforesaid order came.....

Judgment:
ORDER

H.L. Dattu, J.

1. Petitioner had joined the services of Karnataka Land Army Corporation ('Corporation' for short), as Assistant Task Force Commander some time in the year 1972. During the year 1983, he was promoted as Task Force Commander.

2. Petitioner while working as Task Force Commander at Sirsi, by an official memorandum bearing No. EST.CR. 200/74-75, dated 11-11-1983 (Annexure-A), he was kept under suspension pending departmental enquiry for dereliction of duties and negligence of executive work on his part. Further, by the very same order, one Sri L.C. Srinivasan, Deputy Director (Accounts), Headquarters, Karnataka Land Army Corporation, Bangalore, was appointed as Enquiry Officer to conduct a detailed enquiry and to submit his report within two months. The aforesaid order came to be modified by a subsequent official memorandum in No. EST.CR. 200/74-75, dated 4-1-1984 and in place of Sri L.C. Srinivasan, Deputy Director (Accounts) Headquarters, Bangalore, one Sri K.C. Rangaswamy, Deputy Director (Works), Headquarters was appointed as Enquiry Officer to conduct a detailed enquiry against the petitioner and to submit his report within one month. By a letter dated 28-2-1984, the said Enquiry Officer had directed the petitioner to appear before him for enquiry on 13th and 14th March, 1984 without even issuing a charge memo to the petitioner. Nearly after four months from the date of the order of suspension, and may be after realising his mistake, the Enquiry Officer had issued a charge memo to the petitioner dated 9-3-1984 and in that, had directed him to appear before him on 21-3-1984 to defend himself against the accusations made in the charge memo. The charge memo issued by the Enquiry Officer is as under:

'To

Mr. M. Anantha Mugeraya,

Karnataka Land Army Corporation Limited,

Sirsi Project.

(Through Deputy Director, Sirsi)

Sub: Dereliction of duties by Sri M. Anantha Mugeraya, Task Force Commander, Sirsi Project.

Ref. : (i) Headquarters Letter No. OM No. EST.CR 200/74-75, dated 4th January, 1984.

(ii) Headquarters Letter No. OM No. EST.CR. 200/74-75, dated 11th November, 1983.

(iii) DD/KLAC/SRS/EST/83-84/66-67, dated 20th June, 1983.

You are to be present in person from 21st March, 1984 at 11.00 A.M. to depend against the following charges.--

(1) With regards to the formation of road from Kudrehalla to Nagur. It was noticed that the above work was not completed even though the estimated cost of Rs. 5.00 lakhs has been expended and the expenditure exceeded the estimated cost. A sum of Rs. 2.88 lakhs has been expended for removing the tree stumps numbering 63,598 of various girths, while the probable assessment of the amount was about Rs. 1.25 lakhs (45,458 number of stumps). For this state of affairs Sri Anantha Mugeraya, TFC who has executed the work was responsible. It was also observed that there was a difference in amount of Rs. 1.62 lakhs and difference of 18,142 stumps.

(2) Besides Sri Anantha Mugeraya had also not submitted the final bills and record drawings of the completed works executed by him. He had also not submitted the final bills and record drawings of Bridge on Chandrikanala and had also not completed the work of construction of Bandhara at Hiregatta.

(3) A show-cause notice was issued and served on Sri Anantha Mugeraya on 22-6-1983 by the Deputy Director, Sirsi and he was asked to furnish his explanation on or before 26-5-1983. He did not furnish his explanation before the due date though he received the show-cause notice on 22-6-1983. However, he furnished an explanation on 29-7-1983. This is verified. It does not categorically answer any of points raised by the Deputy Director, Sirsi.

(4) It is reported that Sri M. Anantha Mugeraya has not submitted the final bills and record drawings of the completed works within the stipulated time as also those of works relating to bridge on Chandrikanala and he has not completed the work on construction of Bandhara at Hiregatta.

Failure to be present in person at the appointed date and time is liable for disciplinary proceeding ex parte.

Receipt of this letter may please be acknowledged.

Sd/-

(K.C. Rangaswamy)

Enquiry Officer,

Deputy Director (Works),

Karnataka Land Army

Corporation Limited,

(Headquarters)

Bangalore'.

3. The charge memo came to be replied by the petitioner by his reply letter dated 21-3-1984, denying the allegations made in the charge memo, to which I will make a reference at an appropriate stage.

4. The sitting of the Enquiry Officer for the purpose of holding an enquiry into the allegations made in the charge memo was only for 3 days i.e., from 21-3-1984 to 23-3-1984 and that those proceedings were nothing but question and answer sessions. Before the Enquiry Officer,no witnesses were examined and no documents were marked by the respondent-Corporation in support of the charge memo. After conclusion of the proceedings, the Enquiry Officer had submitted his enquiry report dated 24-5-1984 to the disciplinary authority of the Corporation along with the records of entire enquiry proceedings.

5. Basing on the report of the Enquiry Officer, the disciplinary authority of the Corporation had issued a show-cause notice to the petitioner dated 13-6-1984, inter alia directing him to show cause, why the findings of the Enquiry Officer should not be accepted and a major penalty should not be imposed on him. The delinquent officer by his reply letter dated 14-7-1984 had pointed out the perversities in the findings of the Enquiry Officer and had requested the disciplinary authority to exonerate him. The disciplinary authority after accepting the report of the Enquiry Officer, proceeded to pass an order dated 15-10-1984 imposing a penalty of 'dismissal from service' and also directed for recovery of Rs. 70,000/- (50% of the amount which is purported to be loss to the Corporation inflicted by the delinquent officer). The order made by the disciplinary authority is as under:

'13. In view of the above, I, Brig. G.M.S. Mallappa, VSM, Chairman and Managing Director, Karnataka Land Army Corporation, Bangalore do hereby order the dismissal from KLAC service of Sri M. Anantha Mugeraya, TFC, as charges of dereliction of duties, negligence to executive work and manipulation of accounts and cheating the Corporation to the tune of Rs. 1,40,000/- have been proved, and also direct the recovery of Rs. 70,000/- (50 per cent of the amount which is a loss to the Corporation which is misused by him) from him'.

6. Petitioner aggrieved by the aforesaid order, had preferred an appeal before the Appellate Authority as provided under Rule 9.7 of the service rules of the respondent-Corporation, who by his order dated 26-7-1985 had rejected the appeal filed by the petitioner by confirming the orders made by the disciplinary authority. The order made by the Appellate Authority is as under:

'In continuation of this office letter No. KLAC/EST/CR. 306784-85, dated 15-6-1985, you are hereby informed that your appeal petition was again placed before the Board of Directors on 29-6-1985. The Board of Directors have carefully examined the report of the Enquiry Officer, the orders passed by the Managing Director, dated 15-10-1984, and the several points raised by you in your appeal petition dated 20-11-1984. They have resolved that the order dated 15-10-1984 passed by the Managing Director is in order and that your appeal petition dated 20-11-1984 is rejected'.

7. Aggrieved by the aforesaid order, petitioner was before this Court in W.P. No. 13327 of 1985. A Division Bench of this Court by its order dated 24-6-1997 was pleased to disposed off the writ petition and was further pleased to observe as under:

'3. In W.A. No. 5889 of 1996, DD: 6-6-1997, we have held that participation of the disciplinary authority in the deliberations of the Appellate Authority is not proper nor justified. In the circumstances, it is unnecessary to examine the various other contentions that are urged in this petition. It is suffice to say that the order at Annexure-J shall stand quashed and the matter shall stand remitted to the Appellate Authority for reconsideration of the appeal filed by the petitioner afresh and if the disciplinary authority continues to be in office, he shall not participate in the proceedings of the Board of Directors while considering the appeal of the petitioner. The Board of Directors shall disposed off the appeal within a period of three months from today in accordance with law and in the light of the observations made above writ petition stands allowed accordingly. Rule made absolute'.

8. Pursuant to the directions issued by a Division Bench of this Court, the Appellate Authority has passed a fresh order dated 10/16-3-1998 once again rejecting the appeal filed by the petitioner by upholding the orders made by the disciplinary authority dated 15-10-1984. The order made by the Appellate Authority dated 10/16-3-1998 is as under:

'In accordance with the preamble above, the appeal of Sri M. Anantha Mugeraya considered consequent upon the orders of Hon'ble High Court in W.P. No. 13327 of 1985 stands rejected. It is further ordered that after having considered all aspects, the order issued by the Managing Director in this office Order No. KLAC:EST:CR-200:84-85, dated 15-10-1984 is upheld.

This order has been issued in obedience with the order of the Hon'ble High Court in W.P. No. 13327 of 1985'.

9. Aggrieved by these orders, petitioner is before this Court once over again.

10. Sri Sridhar, learned Counsel appearing for the petitioner has raised the following issues for consideration and decision of this Court. They are:

I. The procedure adopted by the Enquiry Officer during the enquiry proceedings is contrary to the statutory provisions.

II. The findings of the Enquiry Officer is wholly perverse and based on such a finding, the disciplinary authority could not have imposed any punishment much less a major punishment.

III. Punishment imposed is not in commensuration with the offences alleged and proved in the domestic enquiry proceedings.

11. Sri Chandangoudar, learned Counsel appearing for the respondent-Corporation sought to justify the impugned orders and the punishment imposed. I will notice the contentions raised by the learned Counsel while answering the issues raised by the learned Counsel for the petitioner.

12. The parties to the lis are governed by the provisions of Karnataka Land Army Corporation Service Rules ('Rules' for short).

Rule 9.4 of the Rules is relevant for the purpose of this case. It provides for procedure for imposing major penalties. It is as under:

'9.4 Procedure for imposing major penalties.--Before the imposition of the penalties specified in clauses (vi) and (vii) of Rule 9.2, the following procedure shall be adopted:

(a) The disciplinary authority or any authority empowered by it in this behalf shall frame definite charges on the basis of the allegations in which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority or any authority specially empowered by it in this behalf a written statement of his defence.

(b) The employee shall for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify provided that such permission may be refused, for reasons to be recorded in writing if in the opinion of the disciplinary authority, such records are not relevant for the purpose.

(c) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such charges or if it considers it necessary to do so, appoint a Board of inquiry or an inquiry officer for the purpose.

(d) The disciplinary authority may nominate any person to present the case in support of the charges before the authority, inquiring into the charges. The employee may present his case with the assistance of any other employee of the Corporation approved by the disciplinary authority, but may not engage a legal practitioner, for the purpose, except with the permission of the disciplinary authority.

(e) The disciplinary authority or the inquiry authority as the case may be shall in the course of inquiry consider such documentary evidence and take such oral evidence as may be material in regard to the charges. The employee shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to examine witnesses in this behalf. The person presenting the case in support of the charges shall be entitled to cross-examine the employee and the witnesses examined in his defence. The disciplinary authority may decline permission to examine any witness on the ground that his evidence is not relevant or material and in such a case it shall record its reasons in writing.

(f) If the disciplinary authority having regard to its findings on the charges if the inquiry is conducted by the disciplinary authority or on the report of the Inquiry Officer appointed for the purpose, is of the opinion that any of the penalties specified in clauses (vi) and (vii) of Rule 9.2 shall be imposed it shall-

(i) furnish to the employee a copy of the report of the inquiry held by it and its findings on each charge or where the disciplinary authority is not the inquiry authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiry authority;

(ii) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action; and

(iii) on receipt of the representation, if any received from the employee, shall determine what penalty if any, should be imposed on the employee and pass appropriate orders on the case'.

13. An analysis of the aforesaid provisions would clearly indicate the procedure that is required to be followed by the disciplinary authority for imposing major penalties on the employee/officer of the Corporation.

Rule 9.4(a) of the Rules empowers the disciplinary authority to frame definite charges on the basis of the allegations in which the inquiry is proposed to be held, and such charges together with the statement of the allegations on which they are based, shall be communicated in writing to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority or any authority specially empowered by it in this behalf a written statement of his defence.

Rule 9.4(b) of the Rules provides that the disciplinary authority should permit the employee to inspect and take extracts from such official records as he may specify for the purpose of preparing his defence. It also envisages that such permission may be refused, for reasons to be recorded in writing, if in the opinion of the disciplinary authority, such records are not relevant for the purpose.

Rule 9.4(c) of the Rules provides that on receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such charges or if it considers it necessary to do so, appoint a Board of Inquiry or an Inquiry Officer for the purpose.

Rule 9.4(d) of the Rules empowers the disciplinary authority to nominate any person to present the case in support of the charges before the authority inquiring into the charges. It also provides that the employee may present his case with the assistance of any other employee of the Corporation approved by the disciplinary authority, but may not engage a legal practitioner, for the purpose, except with the permission of the disciplinary authority.

Rule 9.4(e) of the Rules empowers the disciplinary authority or the inquiry authority as the case may be to consider documentary as well as oral evidence as may be material in regard to the charges. It also provides that the employee shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to examine witnesses on his behalf. The person presenting the case in support of the charges shall be entitled to cross-examine the employee and the witnesses examined in his defence. It also envisages that the disciplinary authority may decline permission to examine any witness on the ground that his evidence is not relevant or material and in such a case it shall record its reasons in writing.

Rule 9.4(f) of the Rules provides that if the disciplinary authority having regard to its findings on the charges if the inquiry is conducted by the disciplinary authority or on the report of the Inquiry Officer appointed for the purpose, is of the opinion that any of the penalties specified in clauses (vi) and (vii) of Rule 9.2 shall be imposed, it shall furnish to the employee a copy of the report of the inquiry held by it and its findings on each charge or where the disciplinary authority is not the inquiry authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiry authority, and give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action, and on receipt of the representation, if any received from the employee, shall determine what penalty if any, should be imposed on the employee and pass appropriate orders on the case.

14. The core issue canvassed by learned Counsel Sri Chandanagoudar for respondent-Corporation is that, since the charge-sheeted officer had accepted the guilt in his reply to the charge memo, there was absolutely no need for the disciplinary authority to have ordered for holding of inquiry proceedings to inquire into the accusations made in the charge memo by appointing an Enquiry Officer and therefore, even if there are any procedural irregularities in holding and conducting the inquiry proceedings by the Enquiry Officer, the same would not vitiate the proceedings, more so the punishment imposed.

15. To answer and appreciate the primary issue canvassed by learned Counsel for respondent-Corporation, a look at the contents of the charge memo issued by the disciplinary authority and the reply and explanation offered by the delinquent official requires to be noticed first.

16. The charge memo issued to the delinquent official contains four allegations or accusations. According to the disciplinary authority of the Corporation, the execution of the formation of road from Kudrehalla to Nagur was entrusted to the petitioner. The allegations against the delinquent official is that the work entrusted was not completed even though the estimated cost of Rs. 5.00 lakhs has been spent and further the expenditure incurred exceeded the estimated cost. In addition to this, it is alleged that a sum of Rs. 2.88 lakhs has been expended for removing tree stumps numbering 63,598 of various girths, while probable assessment of the amount was about Rs. 1.25 lakhs to remove tree stumps numbering about 45,456 of various girths and the difference of tree stumps is about 18,142 numbers.

17. The second charge is that the delinquent official had not submitted the final bills and record drawings of the completed works said to have been executed by him. Further, he had not submitted the final bills and record drawings of bridge on 'Chandrikanala' and also had not completed the work of construction of Bandhara at a place called Hiregatta.

18. Thirdly, it was alleged that in spite of receipt of the show-cause notice dated 22-6-1983 issued by the Deputy Director, Sirsi, the delinquent had failed to offer his explanation within the time provided in the notice, and the reply filed belatedly does not specifically answer the contents of the show-cause notice.

19. The fourth allegation made in the charge memo seems to be repetition of the second charge.

20. Now let me notice the reply and the explanation offered by the charge-sheeted officer in his reply letter dated 2.1-3-1984, before the Enquiry Officer. The charge-sheeted officer not only denies the allegations contained in the charge memo but also offers his explanation. Insofar as the first charge, the delinquent official asserts as under:

'In para one of the charged report framed by you it is indicated that the estimated cost of the work is Rs. 5 lakhs. 1 would like to inform that no estimated cost was framed, but only sum of Rs. 5.00 lakhs was released for this work under 'Danida Aid'. In the circumstances, the expenditure incurred had exceeded only the allotted amount and not the estimated cost.

As regards the sum of Rs. 2.88 lakhs expended for removing the tree stumps numbering 53,598 of various girth, the position is explained as follows:

Before starting the work the number of stumps to be removed were premature and entries were made in two registers, one called 'Individual Register of Different Girth' (9 volumes), another called 'Cumulative Record' of all the stumps removed'. The entries of the registers made after due checking and measurement by Sri M.V. Parthasarathy who was the then Assistant Director, Karwar, and in charge of the work. The removal of stumps started during the year December 1979 and the work of jungle clearance was completed in the month of February 1981. During the period of execution of work, a statement indicated the details of different girth was also entered in M.B. and duly checked by Assistant Director, Karwar.

The statement has been submitted showing the details of different girths of stumps entered in M.B. page No. ...., checked, initialled, dated and the cost for reference also mentioned by the in charge Assistant Director and Deputy Director, in charge Task Force Commander. The recorded registers were submitted for reference.

Regarding the payments, every month, the job bills items checked by the Assistant Director and the labour list was also sent along with the job bills to the Headquarters, Bangalore. The measurement entered in M.B. No. 10/79-80 has been submitted for reference. The stumps were stacked by the side of the road. No instructions were given for auction. During the month of October 1980, the estimate for road was prepared after making the survey work. At that time 90% of the work of jungle clearance was over. The estimate costing Rs. 4.97 lakhs was sent to Headquarters (Bangalore) for approval. In the month of September 1981, I was transferred from Karwar Project to Kumta Project along with the work under the control of the then Assistant Director Sri K.S. Aithal. At that time, the up-to-date progress was Rs. 4,99,042.00. In the estimate the K.L.A.C. charges 17% was left out and also due to miscalculation instead of 6.85 KM. length of road, only provision was made for 1.35 KM. for soling formation for which Assistant Director, Kumta submitted detailed comparative statement on 5-2-1982 costing Rs. 6,34,837.27. The variation of cost had increased not only due to variation of quantity but also due to revision of various schedule of rates.

It was decided on 17th April, 1982, by the then Chairman and Managing Director that the Assistant Director, Kumta should estimate the probable number of trees available on both sides of road and girth etc., in the presence of the then Assistant Director, Dharwar and this order was issued after 3 years. But the estimation was done only by Deputy Director, Sirsi (F.K Bidari) and Assistant Director, Kumta (KS. Aithal).

The procedure adopted by them in estimation of 45,458 number of stumps is explained as below:

The assumption in each KM. of 20M x 7M area and assuming the road width as 8 metres arrived at the figure of 45,458 numbers. The road width is actually varying from 8 to 10.5 metres. The statement submitted kilometer wise along with the sketch dated 17-3-1984 from the office of the Deputy Director, Sirsi, the sketch showing the details of survey number coming under forest area. In the assumption, the area of calculation is 6,850 M x 8 M = 54,800 sq. metres. Actually now it is worked out and arrived at 60,467 sq. metres. The statement was sent for reference. Whereas we had executed 8 categories of stump removal as per scheduled rates and the calculation of rates done of different years and expenditure arrived. Whereas in assumption only 4 categories mentioned. The estimate of probable trees was taken after 3 years by the side of the road which may not tally. I had shown more than 25% saving during the execution of work. Further M.V. Parthasarathy, Assistant Director will give further reply because the concerned Assistant Director has checked all the items of work and certified the job bills. Since it was a thick forest, the estimate was prepared only after the clearance of stumps.

In view of position explained above, the charges framed on this score may kindly be reconsidered and I may be exonerated of the above charges'.

21. The delinquent official insofar as the second charge is concerned states firstly, that he had submitted the final bills to the Assistant Director on different dates and further since he was busy with the execution work and preparation of land development estimates and NREP estimates, he could not adhere to time schedules. Even insofar as the other two charges, he not only denies the accusations but also offers his explanation.

22. Now the question that requires to be considered and decided by this Court is:--

Whether the delinquent has accepted the guilt in his reply to the charge memo and therefore, there was no necessity for ordering the enquiry into the allegations made in charge memo as contended by the learned Counsel for respondent-Corporation?'

23. The meaning of expressions like 'acceptance of fact' and 'admission of guilt' is no more debatable in view of the observations made by Apex Court in several of its decisions. The Apex Court has observed in the case of Channabasappa Basappa Happali v. State of Mysore, : [1971]2SCR645 that there is no essential distinction between admission of fact and admission of guilt. If the departmental enquiry is purely based on facts of which notice is given to the delinquent official, if he admits the facts then it is a clear case where it can be said the delinquent is guilty of the charges and I hasten to add that if the statement/replies filed/facts admitted are not clear and unambiguous, then based on those statement, a delinquent cannot be held to be guilty of the charges without holding a formal enquiry and in such enquiry, facts have to be proved and the person proceeded against must have an opportunity to cross-examine the witnesses and he should be permitted to give his own version or explanation about the evidence on which he is charged and he should also be permitted to lead his evidence in support of his defence. Even if the delinquent/charge -sheeted officer has made some statements, which may amount to admission of certain facts, it is open to doubt whether he could be dismissed from service on the strength of the alleged admission without holding a formal enquiry. In the present case, the allegations made against the petitioner is that he has not completed the formation of road from Kudrehalla to Nagur even though the estimated cost of Rs. 5 lakhs has been spent and secondly, the expenditure exceeded the estimate cost. The defence of the delinquent against this charge is that at no point of time, the estimated cost was fixed and framed but only Rs. 5 lakhs was released for the work under 'Danida Aid' programme and the expenditure incurred had exceeded only the allotted amount and not the estimated cost. The delinquent official also offers his explanation in detail for spending Rs. 2.88 lakhs for removing the tree stumps numbering 63,598 of various girths, and also with regard to difference inamount of Rs. 1.62 lakhs and difference of 18,142 stumps. Insofar as non-submitting of the final bills and record of the drawings of the completed works within the stipulated time, and the non-completion of the work of construction of 'Bandhara' at Hiregatta, the delinquent officer accepts as a matter of fact the delay in submitting the bills and record of the drawings but denies the non-submission of the same and even for delay in submission of the bills and record of the drawings, he offers his detailed explanation. Insofar as non-completion of the work of construction of Bandhara at Hiregatta, he explains by asserting that he had handed over the work to one Sri B. Muddaiah, Task Force Commander on the instructions of Assistant Director of Kumta. The plain language employed by the delinquent in his reply would clearly demonstrate that the delinquent officer had accepted only certain facts but at any rate not the guilt. Therefore, this is not one of those cases where the charge-sheeted officer admits the facts and thereby his guilt. Therefore, it was incumbent on the part of the disciplinary authority to have held an enquiry as contemplated under the Service Regulations of the Corporation. The departmental enquiry is not just an empty formality. It is a serious proceedings intended to give the officer concerned an opportunity to meet the charge and to prove his innocence. In the absence of such enquiry, it would not be fair to strain the facts against the delinquent and to hold in view of the admissions made by him., the enquiry was unnecessary and even if there are any procedural irregularities in conducting the enquiry, the same would not vitiate the inquiry proceedings. Therefore, in my opinion, the learned Counsel Sri Chandangoudar for respondent-Corporation is not justified in his submission that firstly, the inquiry was unnecessary in a case where the delinquent has accepted the facts and even if there are any procedural irregularities in conducting the inquiry proceedings, the same would not vitiate the proceedings.

24. Having answered the primary issue canvassed by the learned Counsel for respondent-Corporation, let me now remind myself the powers of judicial review of this Court in domestic enquiry proceedings. On this aspect, I need not have to search for an answer in view of the law declared by Apex Court in several decisions. In my view, it would suffice to notice the observations of Apex Court in the case of B.C. Chaturvedi v. Union of India and Ors., : (1996)ILLJ1231SC wherein the Supreme Court has fixed the parameters of judicial review of this Court and the Tribunals in domestic enquiry proceedings. The Court has observed:

'12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whetherrules of natural justice are complied with.Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Indian Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case'.

25. The declaration of law of the Apex Court is binding on me and therefore, keeping in view my limits prescribed in the aforesaid decision, let me notice the legal issues canvassed by learned Counsel for petitioner and the reply of the learned Counsel for respondent-Corporation. Firstly, the learned Counsel for petitioner would contend that the charges alleged in the charge memo are vague and therefore, the petitioner was denied a reasonable opportunity to reply the charge memo and to effectively participate in the enquiry proceedings. This submission of the learned Counsel requires to be noticed only to be rejected in view of the detailed reply furnished by the delinquent officer after receipt of the charge memo. If for any reason, petitioner was unable to understand any one of the allegations contained in the charge memo, he would have definitely either requested the Enquiry Officer or the disciplinary authority to furnish him the better particulars before filing his reply to the charge memo. This request was not made by the petitioner at any time before any forum and for the first time, such submission is advanced before this Court and the same cannot be countenanced and accepted. Even otherwise, a reading of the charge memo would definitely indicate the allegations and the accusations that is hurled upon the delinquent officer by the disciplinary authority and those accusations are simple and the delinquent officer having understood the same, has filed his detailed reply. Therefore, it cannot be said that the charges are vague, which prevented the delinquent officer from effectively participating in the enquiry proceedings.

26. The learned Counsel for petitioner nextly contends that since the charge memo that was served on the petitioner did not contain the statement of imputations, the entire inquiry proceedings are vitiated. Even this submission of the learned Counsel, in my view, has no meritwhatsoever. The Service regulations of the respondent-Corporation provides that the disciplinary authority or any authority empowered in this behalf shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held and such charges together with the statement of allegations on which they are based shall be communicated in writing to the employee. The above regulation seeks to fulfil one of the basic postulates of the rules of natural justice, that a fair, adequate and reasonable opportunity of being heard should be given to the person accused of the offence, otherwise it would not be possible for him to effectively participate in the inquiry proceedings. In the facts and circumstances of the case, I am not inclined to agree with the submissions of the learned Counsel for the petitioner that non-supply of statement of imputations has caused prejudice to the case of the petitioner in effectively participating in the inquiry proceedings since the petitioner did fully understand the accusation made against him in the charge memo and therefore, he not only replied the charge memo denying the allegations made therein but also had offered his explanation. In my opinion, there is sufficient compliance of the provisions of the Service Regulation of the Corporation and also the principles of natural justice, though not substantial compliance. Therefore, in my view, the non-supply of statement of imputations along with the charge memo has not caused any prejudice to the delinquent officer to answer the charge-sheet and therefore, it cannot be said that the enquiry proceedings are vitiated in any manner whatsoever. In matters of this nature, the Apex Court in the case of Mafatial Narandas Barot v. J.D. Rathod, Divisional Controller, State Transport, Mehsana and Anr., : (1966)ILLJ437SC has laid down the following principles:

'It is now well-settled that the furnishing of the allegations on which charges are based is a part of reasonable opportunity of making representation and therefore, an integral consistent rules of natural justice and in a case, where the charges themselves contain sufficient allegations or not wanting in particulars or otherwise sufficiently commutative. Mere absence of supplying further statement of allegations will not render the disciplinary proceedings invalid'.

27. Let me consider an issue, which was not argued by the learned Counsel for petitioner. Regulation 9.4(c) of the Service Regulations authorises the disciplinary authority to inquire into the allegations contained in the charge memo by himself or to appoint Board of Enquiry or the Inquiry Officer for that purpose. In the present case, the disciplinary authority had thought it fit to have the assistance of the Enquiry Officer, not only to frame definite charges against the delinquent official but also to hold a detailed enquiry and then submit his report.

Regulation 9.4(d) of the Service Regulations authorises the disciplinary authority to nominate the Presenting Officer to present the case before the Enquiry Officer in support of the charges. The employee/officer may have the assistance of co-employee/officer to defend himself in the enquiry proceedings. For the reasons best known only to the disciplinary authority, he dispenses the assistance of Presenting Officer and directs the Inquiry Officer to complete the inquiry proceedings against the delinquent officer, and thereby entrusts the responsibility to the Enquiry Officer to perform the 'dual functions' namely, a 'Judge' and a 'Prosecutor'. At this stage, I should definitely say that the Inquiry Officer carries out his assigned job to perfection by examining the delinquent official on all the vital aspects of accusations made in the charge-sheet against the delinquent officer. As I have already observed, that the proceedings are in the nature of question and answer session. The Enquiry Officer with his rich experience not in the domestic enquiry proceedings but how the respondent-Corporation functions would ask so many questions to the delinquent officer to get an answer from him and these questions I can definitely say are not in the name of clarifications. A perusal of evidence recorded by the Enquiry Officer would clearly demonstrate that the Inquiry Officer in the present case was not only acting as a Presenting Officer but also as a 'Judge', He not only records the statement of the accused but also cross-examines him to support the charges framed by him. The question now required to be considered is whether the Inquiry Officer could have performed the dual role namely, the 'Judge' and the 'Prosecutor'? Sri Chandangoudar, learned Counsel for respondent-Corporation tells me that since the Presenting Officer was not appointed by the disciplinary authority, the Inquiry Officer can elicit certain answers from the delinquent officer by posing and I may say so, by imposing certain questions to get certain answers to suit the accusations made in the charge memo. This thinking can never be accepted since the same is contrary to the law declared by this Court as well as Apex Court. The Apex Court has time and again observed that the Enquiry Officer cannot be 'Judge' and 'Prosecutor'. This Court in the case of Radhakrishna Setty v. Deputy General Manager (Disciplinary Authority), Indian Overseas Bank, Central Office, Madras and Anr., : ILR1998KAR897 was pleased to state as under:

'In a departmental proceedings the Enquiry Officer is an important person. When he is the key person, on him depends whether the enquiry would be fair or impartial. No doubt, the inquiry officer does not function like a Court and its proceedings also cannot be equated with the proceedings of the Court. Further strict rules of Indian Evidence Act would not apply to its proceedings but certainly the principles which are based on the rules of natural justice would definitely apply. Certainly, the Enquiry Officer may obtain all information, material for the points under enquiry from all sources and through all channels without being fettered by rules and procedure which govern the proceedings in the Court. The only obligation which the law casts upon them while eliciting the truth cannot go beyond his limit as an Enquiry Officer and play the role of a Prosecutor giving an indication thathe was not fair and that he was biased. The Supreme Court in the case of Meenglas Tea Estate v. The Workmen, : (1963)IILLJ392SC has laid down that if the Inquiry Officer also acts as a Prosecutor or witness then there is clear violation of rules of natural justice and his findings are liable to be set aside'.

28. In the enquiry proceedings that was held for three days the Enquiry Officer had examined petitioner and another delinquent officer by name Sri Parthasarathy, who was working as Assistant Director in the respondent-Corporation. A reading of the evidence recorded does not inspire any confidence and at the same time, I get a definite feeling that the Enquiry Officer was not even aware of the procedure while conducting the domestic enquiries. The Enquiry Officer puts question to the delinquent officer and elicits some answers and those questions are not in the nature of clarifications, which is permissible in the enquiry proceedings but examination-in-chief, and cross-examination. While recording the evidence, the Enquiry Officer poses such probing questions which can never be construed as questions put in order to get clarifications. For instance, in the proceedings he would ask questions like 'I wanted to know how you (Mr. Anantha Mugeraya) assessed the trees in each K.M., the pre-measurements as to the numbers, sizes, etc., were taken', and further he would record that 'after detailed enquiry it is noticed that Task Force Commander has very much delayed the construction of canals'. The question is, can these questions be said are in the nature of collection of evidence after giving fair and full opportunity to the delinquent officer? The answer should be obviously 'no'. However, learned Counsel Sri Chandanagouda for respondent-Corporation relies upon the observations made by Apex Court in the case of Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970-I-LLJ-26 (SC) to buttress his contention that when the Corporation was not represented by a Presenting Officer that the Enquiry Officer can put questions to the witnesses to elicit answers from them. In my view, the observations made by Apex Court in the aforesaid decision would not assist the respondent-Corporation in the facts and circumstances of the present case. That was a case where a Senior Labour Officer, who was appointed as an Enquiry Officer, and who in the absence of Presenting Officer had elicited certain answers from the witnesses, who were brought in as management witnesses but had allowed them to be cross-examined by the workman and had also taken the statements of the workman and also had posed few questions to the workman by way of clarification. In those circumstances, the Apex Court was pleased to state that it does not warrant the criticism that the Senior Labour Officer acted both as the Prosecutor and the Judge, when he recorded the evidence in the case. In the present case, the fact situation is totally different. The management for the reasons best known to them alone do not appoint a Presenting Officer and leaves the entire responsibility of holding the enquiry against the petitioner right from the stage of framing the charges. In the enquiry proceedings, they do not produce any witnesses nor present any document in support of the charges framed by the Enquiry Officer. The Enquiry Officer to suit the charges, directs the delinquent officer to answer a few questions by way of examination-in-chief and that forms the basis for finding the petitioner guilty of the charges alleged in the charge memo. Therefore, in the present set of facts and circumstances of the case, I can definitely say that the Enquiry Officer has not only conducted examination-in-chief of the delinquent officer but also has cross-examined him and thereby he has not merely acted as Enquiry Officer but also has played the role of a Public Prosecutor. The dual role he has played in the enquiry proceedings would clearly demonstrate that he was not fair in conducting the inquiry proceedings. Therefore, on the facts and circumstances of the case, the enquiry proceedings held by the Enquiry Officer is opposed to the maxim 'fair play in action and opposed to rules of natural justice'.

29. Regulation 9.4(e) of the Regulations authorises the disciplinary authority or the Inquiry Officer as the case may be in the course of enquiry to consider such documentary evidence and take such oral evidence as may be material in regard to the charges before concluding that the delinquent officer is guilty of the charges alleged in the charge memo. In the present case, curiously enough, the disciplinary authority does not produce any evidence, both oral and documentary in support of the charges. In spite of such serious lapse, the Inquiry Officer merely relying upon the statement of the delinquent officer proceeds to hold petitioner guilty of the charges alleged in the charge memo. It is totally difficult to accept such a finding. The accusations made against the petitioner are totally based on facts. Those allegations require to be supported by oral and documentary evidence. This burden is entirely on the disciplinary authority of the respondent-Corporation. He does not discharge this onus by either producing his witnesses or by documentary evidence in support of the accusations framed by the Enquiry Officer on his behalf, but the Enquiry Officer on assumptions and presumptions and basing on his personal knowledge, finds petitioner guilty of the charges, which this Court cannot countenance. It is repeatedly observed by this Court as well as Apex Court that findings based on no evidence is a perverse finding and based on such findings, no punishment could be imposed. In other words, the findings of the Enquiry Officer is perverse if it is based on no evidence whatsoever or if it is based on mere assumptions and presumptions and based on personal knowledge of the Enquiry Officer. Therefore, the conclusion of the Enquiry Officer must be based on existent and relevant material, documentary and oral evidence on record, which is brought on record by the management in support of its case and the accusations alleged against the delinquent officer in the charge memo. Not only that, the evidence so brought on record must be such that it specifically pin-points the guilt of the delinquent officer in respect of the charges against him with some degree of definiteness.

30. The Courts have time and again observed that the Writ Court while exercising power of judicial review should not embark upon onappreciation of evidence available on the records produced by the disciplinary authority and arrive at a conclusion of its own on the sufficiency of the evidence or on the correctness of the conclusion which is based on such evidence. Reference can be made to the observations of Apex Court in the case of B.C. Chaturvedi, supra, State of Andhra Pradesh v. S. Sree Rama Rao, : (1964)IILLJ150SC and Apparel Export Promotion Council v. A.K. Chopra, 1999-I-LLJ-962 (SC).

31. Keeping in view these settled legal principles let me now see the fact situation. The allegations made against the delinquent officer not merely based on any documentary evidence but also certain materials based on the Service Regulations of the Corporation. As I have already observed, insofar as the first charge is concerned, the disciplinary authority in his charge memo accuses the petitioner that he has expended something more than what was already apportioned. This accusation requires to be proved by the management by examining an independent witness, who can speak to the estimation made by the management for removing the tree stumps and also the amount fixed by the Competent Authority. For the reasons best known only to the respondent-Corporation, it does not examine any witnesses in support of the allegations in the charge memo made against the petitioner, but they entirely rely upon their Enquiry Officer to save the situation for them by making use of his personal experience and knowledge. This is not what is expected in a domestic enquiry proceeding. The charges not only be alleged by the management but requires to be proved by cogent documentary and oral evidence. The management has failed to discharge this onus by producing any witness much less proper witnesses, who can speak to the allegations contained in the charge memo. Further, the respondent's management does not even produce any documentary evidence in support of its case. However, the Enquiry Officer, who owes his survival in the organisation and further to curry the favour of its masters uses all his personal knowledge to find the delinquent officer guilty of all the charges alleged in the charge memo. If this finding of the Enquiry Officer is not condemned as perverse finding, which is the other finding, which could be said a perverse finding? However, the learned Counsel for respondent-Corporation states that the findings of the Enquiry Officer is purely based on previous investigation and the documentary evidence available on record and therefore, the findings of the Enquiry Officer cannot be and should not be adjudged as 'perverse findings'. I find it extremely difficult to digest this type of submission advanced by learned Counsels and the same requires to be noticed only to be ignored and rejected.

32. It is now well-settled that this Court while exercising the powers of judicial review should not embark upon appreciation of evidence and arrive at a conclusion of its own on the sufficiency of evidence or on the correctness of the conclusion which is based on such evidence. The findings recorded by the Enquiry Officer and confirmed by the disciplinary authority and the Appellate Authority were based upon the evidence ledduring the enquiry and if it is not contended that the findings are perverse, certainly this Court cannot sit as an Appellate Authority and re-examine and re-appreciate the evidence to come to its own conclusion, contrary to the findings recorded by the Enquiry Officer, but certainly if the findings of the Enquiry Officer is based on no evidence whatsoever and if it is based on mere assumptions and presumptions and if the conclusion is not based on relevant and existent material or if the finding is based on the misreading of the material evidence or if it is so unreasonable or grossly unjust that no reasonable person could judicially arrive at that conclusion or if the finding is merely based on the personal knowledge of the Enquiry Officer, this Court can definitely exercise its power of judicial review to annul the perverse finding.

33. The report of the Enquiry Officer dated 24-5-1984 is available in the records produced by the learned Counsel for the respondent-Corporation. A perusal of the same would demonstrate that the same is not based on either the oral or documentary evidence. Findings seems to be based on mere conjectures and imagination of the Enquiry Officer and also on certain information collected by him after conducting examination-in-chief and cross-examination of delinquent officer. In fact, the report submitted by him cannot even be called as the findings of the Enquiry Officer since in his report, he does not even deal with various charges after referring to the evidence which has been led before him. The reasoning of the Inquiry Officer would indicate the total non-application of mind by the Inquiry Officer and therefore, the same cannot be sustained by this Court. Further, petitioner while replying to the second show-cause notice issued by the disciplinary authority had pointed out these defects in the findings of the Enquiry Officer, but the disciplinary authority without even adverting to them, in a most mechanical manner has accepted the findings of the Enquiry Officer. Therefore, the order of termination also cannot be sustained.

34. Now coming to the orders passed by the disciplinary authority, it is now well-settled position of law that the disciplinary authority is under no obligation to pass a speaking order where it agrees with the findings of the Enquiry Officer and accepts the reasons given by him but in spite of saying so, the Apex Court in the case of State Bank of Bikaner and Jaipur v. Prabhu Dayal Grover, : (1996)ILLJ288SC after going through the orders made by the disciplinary authority, comes to the conclusion that it is only after proper application of mind to the proceedings of the Enquiry Officer, the disciplinary authority has come to the conclusion that the charge-sheeted officer is guilty of the charges. That only means that the order passed by the disciplinary authority should disclose application of mind to the procedure adopted by the Enquiry Officer and also the findings of the Enquiry Officer before accepting the findings of the Enquiry Officer. Secondly, the disciplinary authority though not required to write elaborate order or judgment, should not assume that whatever that has been done by the Enquiry Officer is in accordance with law and in conformity with Service Rules or Regulations which govern the parties to the lis and principles of natural justice. From these principles evolved, it can be said that the disciplinary authority is expected to apply his mind to the proceedings pending before him and also consider the reply or the representation of the charge-sheeted officer before passing the final order imposing punishment. Keeping these principles in view, let me now notice the fact situation. Petitioner after receipt of the second show-cause notice, by his reply letter dated 14-7-1984, had brought to the notice of the disciplinary authority several defects and omissions in the enquiry proceedings conducted by the Enquiry Officer. To name a few of them, they are:

'3. According to Rule 9.4(d) the disciplinary authority has to nominate any person to present the case in support of the charges before the enquiry authority. This has not been done in my case. The Enquiry Officer himself, functioned as a Presenting Officer, putting questions to me in support of the charges and extracting answers to suit the charges.

4. I was not allowed to take the assistance of an employee to defend the case on my behalf. Thus Rule 9.4(d) has been violated.

5. Last of witnesses, oral and documentary in support of the charges was not at all given, the documents were not marked.

6. As a result, there was absolutely no scope for me to cross-examine any witnesses, thus Rule 9.4(e) was violated.

7. The enquiry conducted was thus not accusatorial but inquisitorial.

8. The Enquiry Officer functions as a presenter as well as a Judge rolled into one. The very basics of natural justice were blatantly violated.

9. The findings of the Enquiry Officer are not definite and precise. The Enquiry Officer has not stated whether articles of charges were proved or not.

10. In fact as the charges were not definite and precise, it was impossible for the enquiry authority to give specific, clear conclusions.

11. The standard of proof required in the departmental enquiry, according to the authoritative pronouncement of the Supreme Court is preponderance of probability or probability. As nobody presented the case on behalf of the disciplinary authority, the charges have not been proved according to standards laid down.

12. It, is also laid down by the Hon'ble High Courts and the Supreme Court that it is for the disciplinary authority to prove the charges and it is not for the delinquent officer to prove his innocence. In my case, as there was no Presenting Officer at all, the Enquiry Officer put searching, leading questions to suit his purpose.

13. Instead of the Presenting Officer producing the documents in support of the charges, the Enquiry Officer contrary to all cannons of administrative and natural justice, directed me to produce copies of the estimates, land width acquired kilometer wise, details of standing trees when the work commenced etc. A copy of the Enquiry Officer's letter No. DD(W)/KCR/83-84, dated 28-2-1984 is enclosed for your ready reference. Relevant extract is reproduced below:

Please attend the enquiry on 13th and 14th of March, 1984 along with certified copies of estimates, land width acquired kilometer wise. I desire to know whether there were any standing trees when you commenced the work within the land width of the Kudrehalla Nagur road. In case of KLAC has not done tree cutting please come prepared who else had removed. If it was carried out by forest department, please find out from the concerned Range Officer about the details of trees but i.e., numbers and sizes kilometer wise, whether the forest authorities' permission was sought for jungle cutting at any time'.

35. The disciplinary authority, with all this information before him observes in his order that the Enquiry Officer had framed the charges against the petitioner and had also examined him and recorded his statement, without even realising whether the same could have been done either under the Service Rules of the respondent-Corporation or in conformity with principles of natural justice and while accepting the findings of the Enquiry Officer, observes:

'8. Sri M. Anantha Mugeraya furnished explanation dated 14-7-1984 which was received in this office on 18-7-1984. In his explanation, he was mainly attacked the procedure followed by the Enquiry Officer. The connected file of the Enquiry Officer reveals that all formalities have been observed and sufficient opportunities are given to the delinquent official. He did not produce any witness and therefore was not examined. The other points raised by him do not hold good'.

36. The other aspect of the matter is, as I have noticed earlier, the charge memo contains four charges but the disciplinary authority, while considering and imposing the major penalty against the petitioner after discussing the findings of the Enquiry Officer on the first charge, comes to the conclusion that all the charges levelled against the petitioner are proved. This clearly demonstrates not only non-application of mind by the disciplinary authority but also misapplication before imposing a major penalty of dismissal from service against the delinquent officer. This is another aspect of the matter, which persuades me to observe that the order of termination passed by the disciplinary authority and confirmed by the Appellate Authority is illegal.

37. Since I have come to the conclusion that the enquiry proceedings conducted by the Enquiry Officer is contrary to the statutory provisions which is binding on both the parties and in violation of principles of natural justice, the impugned orders cannot be sustained. Accordingly, the following: