SRI B.R. CHALUVARAJ v. THE MANAGING DIRECTOR KARNATAKA SOAPS AND DETERGENTS LTD.

The brief facts of the case are that: The petitioner was appointed as Junior Officer (Production and Maintenance) under appointment order dated 26.05.2014 (Annexure-A). The terms of appointment makes it clear that the candidate shall not be a dismissed employee of Government/Semi- Government/Private Institution and that if it is found that the candidate has furnished false information/ documents, such candidate would be liable for removal from service. Subsequently, under order dated

21.01.2015 (Annexure-B), the petitioner was discharged from service of the respondent under the provisions of Karnataka Soaps and Detergent Limited Conduct and Disciplinary Action Rules, 984. The said order of discharge was the subject matter of W.P.No.3517/2015 before this Court. This Court, by order dated 4

23.11.2015 set aside the order of discharge making it clear that quashing the impugned order of discharge does not automatically entitle the petitioner to the relief of reinstatement. Thereafter, under communication dated 08.01.2016 (Annexure-D), Article of Charges was issued to the petitioner and the Enquiry Officer appointed to enquire into the Article of Charges submitted his report on 06.02.2016 (Annexure-E) holding that the Disciplinary Authority has failed to prove the Charges leveled against the petitioner. The respondent, under Communication dated 25.03.2016 (Annexure-F) appointed fresh Enquiry Officer to enquire into the charges leveled against the petitioner. The said communication dated 25.03.2016 was the subject matter of W.P.No.19505/2016 before this Court. This Court, by order dated 08.01.2018 quashed Communication dated 25.03.2016. However, it was observed that the respondent shall be free to initiate 5 fresh departmental enquiry against the petitioner. Thereafter, fresh Article of Charges was issued under letter dated 31.01.2018, alleging that the petitioner has obtained employment as Junior Officer without disclosing all information and by suppressing the material facts i.e., suppressing the fact of dismissal from Raithara Vyavasayothpanna Maraata Sahakara Sangha Niyamitha, Mandya. The enquiry was held and Enquiry Officer submitted his report on 20.04.2019 (Annexure-T) holding that the Management has proved the alleged charges against the petitioner. The second show-cause notice dated 07.05.2019 enclosing enquiry report was issued to the petitioner. The petitioner submitted his reply dated 11.05.2019 and 18.06.2019 to the second show-cause notice. Thereafter, the respondent passed impugned order dated 14.06.2019 (Annexure-W), imposing punishment of termination from service with 6 immediate effect. Questioning the order of termination, the petitioner is before this Court in this writ petition.

Heard learned counsel Sri.K.Sathish for petitioner and Sri.B.R.Prashanth, learned counsel respondent. Perused the writ petition papers.

Learned counsel for the petitioner would submit that the impugned order of termination is the result of violation of principles of the natural justice. Learned counsel would submit that the petitioner was not provided proper opportunity the petitioner participate in the enquiry and no defense assistant was permitted. Learned counsel referring to Annexures-Q and R dated 30.07.2018 and 08.12.2018 respectively submits that the petitioner was not permitted to enter the premises of the respondent and as such, he could not participate in the enquiry proceedings. It is further submitted that the petitioner has sought certain 7 documents in pursuance of the second show-cause notice and the respondent failed to furnish the documents sought. Hence, he had no proper opportunity to submit proper reply to the second show- cause notice. Learned counsel would submit that the enquiry conducted at the first instance and on the second instance are on the same charges and the Enquiry Officer appointed earlier has come to the conclusion that the charges are not proved and the Enquiry Officer who conducted the second enquiry without there being any material has come to a wrong conclusion that the charges are proved. In support of the above contention that there was no proper opportunity during the enquiry, learned counsel for the petitioner places reliance on the decision of the Hon'ble Apex Court stated in the grounds of the writ petition.

Per contra, learned counsel Sri.B.R.Prashanth for respondent would submit that fresh enquiry is conducted 8 terms of observation of this Court in W.P. No.19505/2016 dated 08.01.2018. Further, he submits that every opportunity was provided to the petitioner during the course of enquiry and referring to the enquiry report at Annexure-T, he submits that the petitioner participated in the enquiry and cross-examined the Management witnesses and has also produced documents Ex.D1 to Ex.D3 on his behalf. Therefore, he submits that the contention that the petitioner had no opportunity or proper opportunity before the Enquiry Officer is baseless. Further, learned counsel would point out that the petitioner failed to disclose the material fact in his application while getting appointment. It is submitted that the petitioner was required to say “Yes/No” to column where it is asked that “Have you ever been convicted for criminal or other offense”. Apparently because, the petitioner is a dismissed employee for misappropriation of funds in Raithara 9 Vyavasayothpanna Marata Sahakara Sangha Niyamitha, Mandya, which is placed on record along with memo of documents, he has not answered the said column. Thus, learned counsel for respondent would pray for dismissal of the writ petition.

Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the impugned order of termination requires interference at the hands of this Court or not?

Answer to the above point would be in the negative the order of termination would not require interference at the hands of this Court, for the following reasons: Admittedly, the petitioner was appointed under appointment order dated 26.05.2014 as Junior Officer (Production and Maintenance) the respondent- 10 Karnataka Soaps and Detergent Limited. The terms and conditions of appointment No.6 and 8 read as follows: “6. C¨sÀåyðAiÀÄÄ ¸ÀPÁðj/CgɸÀPÁðj/SÁ¸ÀV ¸ÀA¸ÉÜUÀ¼À ¸ÉêɬÄAzÀ ªÀeÁUÉÆArgÀĪÀ ªÀåQÛAiÀiÁVgÀ¨ÁgÀzÀÄ.

C¨sÀåyðAiÀÄÄ £ÉêÀÄPÁw ¥ÀqÉAiÀÄĪÀ°è vÀ¥ÀÄà CxÀªÁ ¸ÀļÀÄî ªÀiÁ»w/zÁR¯ÉUÀ¼À£ÀÄß ¸À°è¹gÀĪÀÅzÀÄ PÀAqÀħAzÀ°è CAvÀºÀ C¨sÀåyðAiÀÄ£ÀÄß £ÉêÀÄPÁw¬ÄAzÀ C£ÀºÀðUÉƽ¹ ¸ÉêɬÄAzÀ vÉUÉzÀĺÁPÀ¯ÁUÀĪÀÅzÀÄ.” The above condition makes it clear that a candidate shall not be a dismissed employee of Government/Semi- Government/Private Institution and also that if a candidate is found to have furnished false information/ document, he would be liable for removal from service. Admittedly, the petitioner is a dismissed employee of Raithara Vyavasayothpanna Maraata Sahakara Sangha Niyamitha, Mandya and the order of dismissal dated

10.12.2011 indicates that the petitioner is dismissed as a measure of punishment for misappropriation of 11 Rs.11,56,866/- of the said Sangha. Therefore, the petitioner suppressed the said fact and failed to indicate YES/NO to the column “Have you ever been convicted for any criminal or other offenses?”. The act of the petitioner in terms of the conditions of appointment warrants removal from service.

Initially, the petitioner was discharged from service under order dated 21.01.2015 (Annexure-B) which was the subject matter of W.P.No.3517/2015. This court, by order dated 23.11.2015 set aside the order of discharge with liberty to the respondent to conduct enquiry with an observation that quashing of order of discharge does not automatically entitle the petitioner to relief of reinstatement. Thereafter, once again the petitioner was before this Court in W.P.No.19505/2016, challenging the appointment of Enquiry officer. This court, by order dated 08.01.2018 while allowing the said writ petition observed that the respondent shall be free 12 to initiate fresh departmental enquiry against the petitioner. Accordingly, fresh Article of Charges dated

31.01.2018 (Annexure-K) was issued. In sum and substance, the charge against the petitioner is that the petitioner has failed to furnish all the information and suppressed the facts while getting the appointment. The imputation of charges gives the details of information suppressed by the petitioner i.e., information that the petitioner is a dismissed employee of Raithara Vyavasayothpanna Maraata Sahakara Sangha Niyamitha, Mandya under order dated

10.12.2011 for misappropriation of funds.

The respondent-Disciplinary Authority during the course of enquiry examined two witnesses as P.W.1 and P.W.2 apart from marking Ex.P1 to Ex.P19 and the petitioner cross-examined the respondent-Management witnesses and also marked Ex.D1 to Ex.D3. The charges are held to be proved on the materials available 13 before the Enquiry Officer. This Court would not venture to examine sufficiency or otherwise of the evidence to prove the charge. It is settled position of law that in a departmental enquiry, charge could be proved on preponderance of probabilities and strict proof of evidence is not applicable.

The contention of the petitioner that the petitioner had no proper opportunity to participate in the enquiry; the defense assistant was refused and he was not permitted to enter the premises are all baseless. The the petitioner has cross-examined respondents’ witnesses and produced the documents Ex.D1 to Ex.D3 makes it amply clear the participation of the petitioner in the enquiry. The petitioner has further stated that no documents in pursuance of the reply to second show cause notice is furnished. The second show-cause is issued only to give opportunity to the delinquent official to submit his comments on the 14 enquiry report. At every stage of the enquiry, the petitioner cannot go on seeking documents. Moreover, while submitting the reply to the second show-cause notice, is not the stage for seeking documents.

No ground is made out to interfere with the findings of the Enquiry Officer and the order of termination dated 14.06.2019 (Annexure-W), under discretionary jurisdiction of Article 226 of Constitution of India. Hence, the writ petition stands rejected. mpk/-* CT:bms Sd/- (S.G.PANDIT) JUDGE