| SooperKanoon Citation | sooperkanoon.com/384259 |
| Subject | Service |
| Court | Karnataka High Court |
| Decided On | Jul-17-2009 |
| Case Number | Writ Petition No. 31175/2003 |
| Judge | Aravind Kumar, J. |
| Reported in | ILR2009KAR3505; 2009(6)KarLJ197 |
| Acts | Karnataka State Road Transport Corporation (C and D) Regulation Rules, 1971; Karnataka Electricity Board Employees' (Classification, Disciplinary Control and Appeal) Regulations, 1987 - Regulation 9, 12, 12(1), 11A, 11A(3), 11(3) to (23), 17 and 22(B) |
| Appellant | Smt. Rajalakshmi W/O Janardhan Senior Assistnat/incharge Aao |
| Respondent | Karnataka Power Transmision Corporation Ltd. Represented by Its Chairman,; the Chief Engineer (Elect |
| Appellant Advocate | A.N. Madhu and; M.R. Shailandra, Advs. |
| Respondent Advocate | P.S. Dinesh Kumar, Adv. for R-1 |
| Disposition | Petition dismissed |
Aravind Kumar, J.
1. The petitioner is seeking for quashing of orders dated 31-12-2001 & 20-12-2002 at Annexures 'C' and 'E' respectively, passed by the Disciplinary Authority imposing a minor penalty of 'withholding one annual increment failing due next with cumulative effect' and the Appellate Authority's order confirming the said imposition of minor penalty.
2. The facts leading to the filing of this petition are: In the special report of the Accounts Officer, Internal Audit, Central Division, K.P.T.C.L, Bangalore, dated 18-9-2001 it was noticed that several lapses/commissions /omissions had occurred during the incumbency of one N. Gopal who was working as cashier at C-1 sub-division which resulted in misappropriation of cash to an extent of two lakhs temporarily and R. 2.5 lakhs permanently and thus had caused financial loss to the Corporation. During the said period petitioner was discharging her duties as Senior Assistant and while discharging her duties as cash officer at same viz. C-1, Sub-division, it was noticed by authorities that she failed to verify/check the cash remittances punctually being a cash-officer and she did not discharge her duties properly as per work load norms of the Corporation. Hence the Disciplinary Authority issued a proposal to the petitioner herein by proposal dated 15-12-2001 (Annexure-A) notifying the petitioner that, the acts stilted in the said proposal are nothing but negligence and dereliction of duty, which gave scope for misappropriation of the amount and proposed to impose one or more of the penalties specified under Regulation 9 of the Karnataka Electricity Board Employees' (Classification, Disciplinary Control and Appeal) Regulations, 1987 (hereinafter referred to as 1987 Regulation). The petitioner was called upon to furnish her explanation within 7 days from the date of receipt of the said proposal. The petitioner by reply dated 20-12-2001 (Annexure-B) gave a detailed reply and admitted the lapses that had occurred and claimed that for the reasons stated therein she could not detect the alteration in figures and hence she requested that she should not be imposed with any penalty and sought for being absolved of the proposal made in the proposed notice dated 15-12-2001. The Disciplinary Authority considering the said reply and after examining the records passed an order on 31-12-2001 as per Annexure-C by imposing 'minor penalty' as contemplated under Regulation 9(iii) of the Regulations 1987 namely by ordering withholding one annual increment falling due next with cumulative effect.
3. The petitioner being aggrieved by the same filed an appeal under Regulation 17 of the above said Regulations to the Chief Engineer (Electrical), as per Annexure 'D' inter alia contending there under that she had been very cautious in discharge of her duties and in spite of the due diligence she could not notice the tampering of records done by the cashier N. Gopal and accordingly sought for allowing the appeal, amongst other grounds urged in Appeal.
4. The Appellate Authority on con sideling the grounds urged in the appeal and after examining the Disciplinary Authority records and all other relevant documents, was not inclined to interfere with the order passed by the Disciplinary' Authority and hence the appeal came to be dismissed as per the order dated 20-12-2002 Annexure-E.
5. It is these two orders which are under challenge in this writ petition. Respondents have not filed the Statement of objections.
6. I have heard the learned Counsel for the petitioner Sri Madhu representing Sri. M.R Shailendra and Sri. P.S. Dinesh Kumar appearing for the respondents and perused the papers.
7. The contentions raised by the writ petitioner are as follows:
(i) The authorities had pre-determined to impose the penalty under Regulation 9 and hence the proceedings under Annexuure-'C' dated 31-12-2001 is vitiated.
(ii) Once the reply is submitted refuting the charges made in the report it was incumbent upon the authorities to hold a departmental enquiry even while imposing a minor penalty and in case of not holding an enquiry the authorities had to record reasons for dispensing with the enquiry and pass the orders. Without such order of dispensation for not holding the proceedings are vitiated; and
(iii) There was non-application of mind by the Appellate Authority and grounds urged in Appeal Memorandum had not been considered. In support, of contention (ii) above referred, the learned Counsel pressed into service the decision of this Court in Ankappa v. Management of K.S.R.T.C., Bangalore reported in : ILR 1996 Kar 3050.
8. Adverting to the contentions raised by the petitioner it would be necessary to extract Regulation 9 and 12 of 1987 Regulation which reads as follows:
PARTV
PENALTIES AMD DISCIPLINARY AUTHORITIES
9. Nature of Penalties.- One or more of the following penalties for good and sufficient reasons and as hereinafter provided, may be imposed on Board employees, namely.-
Minor Penalties.-
(i) Fine in the case of Board employees
(belonging to GroupD);(ii) Censure;(iii) 'Withholding of increments, with or
without cumulative effect;(iii-a) Withholding of Promotion';
(iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Board or to the State Government, the Central Government, and person, body or authority, to whom the services of the Officer had been lent;
(iv-a) 'Reduction to a lower stage in the time scale of pay for a period with a specific direction as to whether or not the Board employee will earn increments of pay during the period of such reduction with reference to the reduced pay or whether the pay shall remain constant and with a further direction whether on the expiry of the period of penalty the reduction will or will not have the effect of postponing the future increments of his pay'
So also Regulation 12 which reads as under:
12.Procedure for Imposing Minor Penalties.- (1) Subject to the provisions of Sub-regulation (3) of Regulation 11-A, no order imposing on a Board employee any of the penalties specified in Clauses (i) to (iv-a) of Regulation 9 shall be made except after.-
(a) informing the Board employee, 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-regulation (3) to (23) of Regulation 11, 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 Board employee under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;
(d) Recording a finding on each imputation of misconduct or misbehavior; and
(e) Consulting the Board where such consultation is necessary.
(2) The record of the proceedings in such cases shall include.-
(i) a copy of the intimation to the Board employee of the proposal to take action against him;
(ii) A copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) His representation, if any;
(iv) The evidence produced during the inquiry;
(v) The finding on each imputation of misconduct or misbehaviour; and
(vi) The orders on the case together with the reasons therefor.
RE CONTENTION No. 1
9. With regard to the first ground namely, that authorities had pre-determined to impose the penalty does not merit consideration inasmuch as the perusal of Annexure 'A' dated 15-12-2001 which is the proposal does not reflect that the authorities had already pre-determined to impose the penalty. The operative portion of the said proposal dated 15-12-2001 reads as follows:
The above lapses are not checked by you as incharge officer. These lapses on your part, are nothing but negligence and dereliction of duty, given a scope for the cashier to misappropriate the amount as above.
For the above act of yours, it is proposed to impose one or more of the penalties specified under Regulation 9 of CDC & A Regulations 1987.
Therefore, you are here by given an opportunity to furnish your explanation, if any, to the undersigned with in 7 days from the date of receipt of this proposal, failing which, it will be presumed that you have no explanation to offer and action will be taken deemed fit
To the said proposal the petitioner has submitted a detailed reply Armexure-B and no where she has raised this contention also. Further proposal does not suggest that authorities had already predetermined. It is only a show cause for which petitioner had replied. Hence the first contention is liable to be rejected.
RE. CONTENTION NO:2:
10. For levying minor penalties Regulation 12(1) contemplates that before passing an order imposing on a Board employee any of the minor penalties specified in Clauses (i) to (iv-a) of Regulation 9, a proposal has to be given in writing to the employee and reasonable opportunity in that manner is required to be given which is in the interest of Natural Justice. As seen from the records, the respondent No 3 has in fact issued a proposal dated 15^12-2001 and in unequivocal terms has notified the petitioner that Disciplinary Authority proposes to impose one or more penalties specified in Regulation 9 of Regulations 1987 to which the petitioner has replied and refuted the averments made in the said proposal as per Annexure'. Thus, it can be seen that the petitioner has not only acquiesced in submitting herself to the jurisdiction of the Disciplinary Authority but also has failed to take the contention now raised in this writ petition, at the first available opportunity. Even otherwise on examination of the Regulation 12, it. is seen that holding of an enquiry is contemplated only in respect of enquiry being held in Sub-Regulation (3) to (23) of Regulation 11 pertaining to imposition of Major Penalties and not in respect of imposition of Minor Penalties specified in (i) to (iv-a) of Regulation 9. In view of the above, I do not find any merit in the contention raised by the writ petitioner with regard to non-compliance of the alleged Regulations on the part of the respondents. Thus, Disciplinary Authority was not under compulsion to pass an order for dispensing to hold a departmental enquiry as required under Regulation 12(1)(b) of Regulations. The said situation in the instant case has not arisen at all. Further said provision i.e., Regulation (1)(b) is attracted only while imposing major penalties as per Regulation 11. Learned Counsel for the petitioner has relied upon the decision in the matter of Ankappa v. Management of K.S.R.T.C, Bangalore reported in : ILR 1996 Kar 3050 to contend that once the Department decides not to hold enquiry reasons have to be recorded. The said decision would have no application to the facts of the present case inasmuch as in the said case the issue was, when Regulation 22(B) of Karnataka State Road Transport Corporation (C & D) Regulation Rules, 1971 prescribed that while dispensing with conducting of an enquiry the disciplinary authority had to record a finding, that holding of an enquiry was unnecessary and same having not been done the orders impugned therein were quashed. However, said issue will not arise in the instant case inasmuch as Regulation 12(1)(a) of 1987-Regulation contemplates of issuing of a proposal in respect of imposing penalty on a Board employee as specified in Clauses (i) to (iv-a) of Regulation 9 (i.e., minor penalties) and consider the objections if any and then pass orders. The question of passing an order to dispense with holding enquiry does not arise in the instant, case at all. Hence, the judgment relied upon by the learned Counsel for the petitioner is inapplicable to the facts and circumstances of the case.
11. ft is further contended by the petitioner that in case of not holding departmental enquiry, the reasons for not holding the departmental enquiry has to be recorded in writing before dispensing with enquiry and in support of this contention the petitioner is seeking sustenance from Regulation 12(1)(b). The said regulation lays down that as to how the manner of enquiry will have to be held as per Sub-regulation (3) to (23) of Regulation 11. Further, Sub-regulation (3) to (23) of Regulation 11 contemplates the method in which the enquiry will have to be held. Hence this Court cannot embark upon to read something into the regulation which is not expressly provided in the Regulations itself. In this regard the dicta of the Hon'ble Supreme Court in the case of Commissioner of Income Tax v. Tara Agencies reported in : [2007] 292 ITR 444(SC) would be of benefit which reads as follows:
64 The intention of the Legislature has to be gathered from the language used in the statute which means that attention should be paid to what, has been said as also to what has not been said.
65.In Union of India v. Deoki Nandan Aggarwal : [1992] Supp 1 SCC 323, a three-judge Bench of this Court held that it is not the duty of the Court either to enlarge the scope of legislation or the intention of the Legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that, it had no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there.
66 In State of Kerala v. Mathai Verghese : [1986] 4 SCC 746, this Court, has reiterated the well-settled position that the court can merely interpret the section; it cannot re-writ, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the Legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to 'legislate' have not been conferred on the court.
Hence what is not provided under the 1987 Regulation cannot be added and looked into. Hence, Contention No.2 is rejected.
RE CONTENTION NO:3
12. In so far as the third ground urged in the writ petition with regard to non-application of mind by the Appellate Authority, I do not find any merit in the said contention inasmuch as the Appellate Authority while passing the order dated 20-12-2001 Annexure-E has categorically held of having gone through the grounds urged in the appeal Memorandum and also having perused the relevant records from which it can be inferred that there is application of mind by the Appellate Authority as could be seen from the order itself. Hence, the 3rd contention raised in the writ petition ought to fail and same is rejected.
13. In view of the reasons stated above, the following order is passed: