THE STATE OF KARNATAKA v. SHRI. K.M PONNAPPA

10. Heard Sri V. Shivareddy., learned Additional Government Advocate for the petitioners-State and Sri. K.M. Ponnappa, Party-in-person/respondent.

11. Learned Additional Government Advocate, while advancing several contentions, submitted that the Tribunal committed a grave error in setting aside the order of penalty passed by the Disciplinary Authority without properly appreciating the evidence available on record. It is further contended that, in order to establish the charges levelled against the respondent and another delinquent official, as many as 35 witnesses were examined and 14 documents were produced and marked before the Enquiry Officer. According to him, the witnesses consistently supported the case of the department and deposed in consonance with the charges framed against the respondent.

12. Particular emphasis was placed on the testimony of PW.1, the victim, who, according to the learned Additional - 9 - WP No. 19851 of 2024 Government Advocate, categorically deposed that on

15.02.2007, at about 4.00 p.m., the respondent, in an intoxicated condition, entered her chamber, abused one Nanjunde Gowda in filthy language and, along with one Dileep, manhandled him. It was further stated by PW.1 that the respondent also abused her and outraged her modesty. It is further submitted that, testimony of PW.1, stood corroborated by the evidence of the other witnesses who were present in the office and had witnessed the incident. However, the Tribunal failed to take into consideration the said evidence in its proper perspective.

13. He further contended that the Tribunal proceeded to set aside the order of penalty principally on the ground that the respondent had no opportunity to participate in the enquiry proceedings. According to him, the said finding is legally unsustainable inasmuch as adequate and sufficient opportunity had been afforded to the respondent to participate in the enquiry proceedings. Despite such opportunity, the respondent deliberately remained absent, and therefore, the Enquiry Officer was justified in proceeding with and concluding the enquiry in accordance with law. On these grounds, it is urged that the impugned order passed by the Tribunal is liable to be - 10 - WP No. 19851 of 2024 set aside and the order of punishment imposed by the Disciplinary Authority deserves to be restored.

14. Per contra, party-in-person/respondent contended that the order passed by the Tribunal does not suffer from any illegality or perversity warranting interference by this Court. It is submitted that the Tribunal has rightly appreciated the material on record and has correctly concluded that the respondent was not afforded sufficient opportunity participate in the enquiry proceedings. In such circumstances, the enquiry report as well as the consequential order of penalty are vitiated and cannot be sustained in law.

15. It is further contended that Rule 11(18) of the CCA Rules casts a mandatory obligation on the Enquiry Officer to question the delinquent officer on the circumstances appearing against him in the evidence, for the purpose of enabling him to offer his explanation with respect to the incriminating material. According to respondent, in the absence of compliance with the said mandatory requirement, the Enquiry Officer ought not to have proceeded to conclude the enquiry and submit the report to the Disciplinary Authority. As such, there is a clear violation of the principles of natural justice, vitiating the entire - 11 - WP No. 19851 of 2024 disciplinary proceedings. On these grounds, it is urged that the Tribunal was justified in setting aside the order of penalty, and accordingly, seeks dismissal of the present writ petition.

16. Having heard the learned counsel for the parties at considerable length and upon perusal of the records, the following point arises for our consideration: Whether the Tribunal was justified in allowing the application filed by the respondent and setting aside the order of penalty bearing No. Appelu(4)/58/2006-2007 dated 10.08.2011 passed by petitioner No.2, as well as Government Order No. OE 33 PoSili-2019 dated

30.03.2022 passed by petitioner No.1?

17. We have given our anxious consideration to the rival submissions made by learned AGA for the petitioners and respondent-party-in-person and have meticulously perused the entire material available on record, including the enquiry report, the order of the Disciplinary Authority, and the impugned order passed by the Tribunal.

18. A perusal of the records reveals that, in order to substantiate the charges levelled against the respondent in the departmental enquiry, as many as 35 witnesses were examined - 12 - WP No. 19851 of 2024 by the Enquiry Officer. Upon a careful appreciation of their testimonies, is evident that all the witnesses have consistently and unequivocally deposed that on 15.02.2007, between 3.30 p.m. and 4.00 p.m., during office hours, the respondent, along with one Dileep, while under the influence of alcohol, picked up a quarrel with Sri Nanjunde Gowda, FDA and case worker in the Dispatch Section, and further abused the female staff members in a manner amounting to an outrage of their modesty. Consequently, the aggrieved female staff members lodged a complaint in this regard. Acting upon the said complaint, the Superintendent of Police, Kodagu, placed the respondent under suspension. Though the order of suspension was subsequently ratified, the matter ultimately culminated in the initiation of disciplinary proceedings and the imposition of penalty upon the respondent.

19. The testimony of PW.1 – Smt. Sharada stands corroborated by the evidence of the remaining witnesses, namely PWs.2 to 35. It is an admitted fact that none of these witnesses were subjected to cross-examination by respondent, as he chose not to participate in the disciplinary proceedings despite being afforded sufficient opportunity. Consequently, the testimony of all the prosecution witnesses - 13 - WP No. 19851 of 2024 remained uncontroverted and unchallenged. In circumstances, the evidence adduced by the management attained finality and was rightly taken into consideration by the Enquiry Officer.

20. A careful perusal of the notice dated 05.07.2010 issued by the Enquiry Officer reveals that the same was duly served upon the respondent on 07.07.2010. Pursuant thereto, the respondent submitted his reply to the said notice, wherein he stated as under: "On the day of my first statement with regard to this enquiry, I had appeared and submitted my written statement. Apart from this, I have raised my objection in notice which served acknowledgement. This Departmental Enquiry is being conducted for the 3rd time on the same charge and therefore, this departmental enquiry is being conducted in clear violation of the provision of rules and the guidelines issued in at para-53 of page 305 of 'A Guide to Departmental inquiries against Government Servants in Karnataka' published by the Karnataka Law Journal Publications. In this connection, I have submitted a review appeal petition before HE the Governor of Karnataka, in terms of the CCA Rules and therefore, I humbly request you to kindly stop the proceedings of this Departmental Enquiry until pronouncement of order by H.E. the Governor of Karnataka." - 14 - WP No. 19851 of 2024

21. The aforesaid explanation bears the signature of the respondent in token of having submitted the same. In the aforesaid circumstances, it is manifest that, despite due service of notice, respondent voluntarily abstained participating in the disciplinary proceedings on the ground that he had preferred a review petition before His Excellency, the Governor of Karnataka. Therefore, the plea now sought to be urged by the respondent that he was deprived of an opportunity to defend himself before the Enquiry Officer and that the principles of natural justice stood violated, is wholly devoid of merit and cannot be countenanced. Having consciously chosen to remain absent from the enquiry proceedings, the respondent cannot be permitted to take advantage of his own omission and contend that he was denied a reasonable opportunity of hearing.

22. The Tribunal has set aside the order of penalty principally on the ground that the mandate of Rule 11(18) of the CCA Rules had not been complied with and that no opportunity had been afforded to the respondent to explain the incriminating material brought on record against him. We are unable to persuade ourselves to concur with the said reasoning - 15 - WP No. 19851 of 2024 of the Tribunal. As discussed hereinabove, the records unmistakably disclose that the respondent had been duly served with notice and had been afforded sufficient opportunity to participate in the disciplinary proceedings. However, he consciously and wilfully chose to abstain from the enquiry. In such circumstances, the Enquiry Officer was left with no other alternative but to close the enquiry and submit his report to the Disciplinary Authority. We find no infirmity whatsoever in the course adopted by the Enquiry Officer.

23. Further, as rightly contended by the learned Additional Government Advocate, Rule 11(16) of the CCA Rules contemplates that upon closure of the case of the Disciplinary Authority, the delinquent official is required to state his defence, either orally or in writing, as he may prefer. In the instant case, despite due service of notice, the respondent neither appeared before the Enquiry Officer nor chose to place his defence on record. Having failed to avail himself of the opportunity so afforded, the respondent cannot be permitted to invoke the benefit contemplated under Rule 11(18) of the CCA Rules. A person who, by his own volition, abstains from participating in the enquiry proceedings cannot subsequently - 16 - WP No. 19851 of 2024 turn around and complain of non-compliance with the procedural safeguards envisaged under the CCA Rules.

24. Admittedly, the charges levelled against respondent are grave and serious in nature. The respondent, being a Government servant attached the Police Department, was under a bounden duty to maintain absolute discipline, integrity and decorum in the discharge of his official duties. The material on record unmistakably reveals that during office hours, while under the influence of alcohol, the respondent entered the office premises, abused and misbehaved with the female staff members and indulged in acts unbecoming of a Government servant. Such conduct, particularly on the part of a member of a disciplined force, deserves to be viewed with utmost seriousness.

25. As discussed hereinabove, the uncontroverted and unchallenged testimony of PWs.1 to 35 clearly establishes the charges levelled against the respondent. Having regard to the gravity and seriousness of the misconduct proved against him, the Disciplinary Authority was fully justified in imposing the penalty referred to supra. In our considered view, the Tribunal has committed a manifest error in setting aside the order of - 17 - WP No. 19851 of 2024 penalty passed by the Disciplinary Authority. Consequently, the impugned order passed by the Tribunal warrants interference by this Court. Accordingly, the point for consideration is answered in the negative. Consequently, we proceed to pass the following: ORDER i. The writ petition is allowed. ii. Order dated 02.11.2023 passed by the Tribunal in Application No. 3178/2022 is set- aside. iii. Consequently the penalty order dated

10.08.2011 passed the Disciplinary Authority/petitioner No.2 is restored. SD/- (S.G.PANDIT) JUDGE SD/- (RAJESH RAI K) JUDGE PKS/K