w w w . L a w y e r S e r v i c e s . i n



G.C. Kishor Kumar v/s Karnataka State Handicrafts Development Corporation Ltd., Rep. by its Managing Director, Bengaluru & Others


Company & Directors' Information:- KARNATAKA STATE HANDICRAFTS DEVELOPMENT CORPORATION LIMITED [Active] CIN = U75112KA1964SGC001526

Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- S KUMAR & CO PVT LTD [Not available for efiling] CIN = U51909WB1946PTC014540

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- D P S DEVELOPMENT PVT LTD [Active] CIN = U45202WB1988PTC044797

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- DEVELOPMENT CORPN PVT LTD [Active] CIN = U13209WB1939PTC009750

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- KUMAR L P G PRIVATE LIMITED [Strike Off] CIN = U23201DL2001PTC113203

Company & Directors' Information:- KUMAR HANDICRAFTS PRIVATE LIMITED [Strike Off] CIN = U17299DL1989PTC038595

Company & Directors' Information:- M KUMAR AND CO PVT LTD [Strike Off] CIN = U18101DL1982PTC014823

Company & Directors' Information:- B N KUMAR & CO PVT LTD [Strike Off] CIN = U52341WB1941PTC010643

Company & Directors' Information:- V S HANDICRAFTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2003PTC121426

Company & Directors' Information:- HANDICRAFTS INDIA PRIVATE LTD [Strike Off] CIN = U20290DL1956PTC002632

Company & Directors' Information:- N R HANDICRAFTS PRIVATE LIMITED [Strike Off] CIN = U93090DL2007PTC167389

    Writ Petition No. 7807 of 2020 (S-RES)

    Decided On, 02 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE M.I. ARUN

    For the Petitioner: M.P. Srikanth, M.S. Partha Sarathi, Advocates. For the Respondents: R1-R4, M.L. Balaram, Advocate.



Judgment Text


(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to quash the charge memo dated 21.08.2019 issued to the petitioner by the Respondent and all further proceedings of the enquiry initiated against the petitioner in pursuance of the Charge Memo Annexure-E and etc.)

Through Video Conference:

1. Heard the learned counsels for the parties.

2. The case of the petitioner is that the petitioner was appointed as General Manager (Finance) in respondent no.1-Corporation on 30.05.2013. He was entrusted with the work allocation of all matters relating to accounting, finance, insurance and audit of respondent no.1- Corporation. He was also assigned with the operation of all bank accounts of the Corporation. He was doing his duties properly. However, certain irregularities were found in respect of banking transactions of respondent no.1- Corporation. Consequently, an enquiry has been initiated and the petitioner is placed under suspension by an order dated 08.03.2019. Subsequently, respondent no.4 was appointed as the Enquiry Officer. It is stated that respondent no.4 is equivalent to the rank of the petitioner and his appointment as an Enquiry Officer is bad. Nevertheless, the enquiry proceedings were commenced and a charge memo consisting the list of charges against the petitioner was issued to him on 21.08.2019. The same is signed by respondent no.4. It is stated that the said charge memo is illegal and without authority of law. The petitioner submitted a detailed reply to the allegations and denied the same. However, the reply of the petitioner was not accepted and the enquiry was commenced on 16.12.2019. In the enquiry proceedings, the petitioner was not provided with the relevant documents in spite of his request. He was also denied permission to engage the services of a defence assistant. The petitioner submitted a detailed reply to respondent no.4 in this regard. It is stated that the petitioner has been kept under suspension from 08.03.2019 till today which is illegal. It is further stated that there is no specific order passed as to why the petitioner is kept under suspension for such a long time.

3. For the aforementioned reasons, the petitioner has sought for quashing of the charge memo dated 21.08.2019 and all other proceedings pursuant thereto and in the alternative, he has sought for quashing the notice dated 11.02.2020 issued by respondent no.4 rejecting the request of the petitioner for having a defence assistant and to permit him to have a defence assistant, a direction to the respondents to provide the petitioner all relevant documents which are requested by him and to quash the continuation of his suspension beyond three months from the date of suspension and a direction for payment of full subsistence allowance to the petitioner till he is actually reinstated into service.

4. Per contra, the respondents have filed their objections and denied the allegations of illegality as alleged by the petitioner. The respondents have contended that the preliminary investigations have revealed that the petitioner is responsible for a loss of Rs.28 crores to respondent no.1- Corporation. It is contended that respondent no.1- Corporation is governed by its own establishment manual namely, Karnataka State Handicrafts Development Corporation Employees Conditions of Service Regulations, 1966 and a departmental enquiry is being conducted against the petitioner under the said Regulations. It is further contended that the Karnataka Civil Service Rules, 1958 (hereinafter referred to as 'the KCSR') has not been adopted by respondent no.1-Corporation and its provisions are not applicable to the petitioner. It is contended that the charge memo is issued by the competent authority to the petitioner; that the suspension of the petitioner is in accordance with law; that the petitioner is being paid subsistence allowance in accordance with law; and that he has not been denied any relevant documents. Though there is no provision for providing any defence assistant, respondent no.4 gave liberty to the petitioner to have a defence assistant, who is a current employee or a retired employee of respondent no.1-Corporation or in case, if he were to be from any other Government department, the said defence assistant ought to have had the permission from his department to act as one. It is further averred that the presenting officer is also not legally qualified. It is further contended that the enquiry proceedings are held in accordance with law, the enquiry is completed and only report is awaited. Consequently, the respondents have sought to dismiss the writ petition.

5. Based on the rival contentions of the parties, the following questions arise for consideration in this petition:

(i) Whether the charge memo has been issued by the Competent Authority?

(ii) Whether the suspension of the petitioner from 08.03.2019 till today is in accordance with law?

(iii) Whether the respondents were justified in denying assistance of a defence assistant as sought by the petitioner?

6. In the instant case, admittedly, the petitioner is an employee of the Karnataka State Handicrafts Development Corporation Limited. The employees of the said Corporation are governed by the service regulations of respondent no.1-Corporation called the Karnataka State Handicrafts Development Corporation Employees Conditions of Service Regulations, 1966 (hereinafter referred to as 'the Regulations'). It is further submitted that they have not adopted the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957.

7. Sub-clause (4) of Clause 5.3 of Chapter I of the said Regulations defines competent authority as under:

"4) 'Competent Authority' means the Board or the Managing Director or any other Officers or authority to whom the power is delegated."

Chapter VI of the Regulations pertains to disciplinary enquiries, penalties and appeals. Clause 9.5 (a) reads as under:

"9.5 Enquiry:

(a) None of the penalties 5 or 6 specified in clause (1) of regulation 8 1 can be imposed except after enquiry. The authority competent to impose the above penalties shall on the basis of information received or after a preliminary enquiry, frame charges if, in his opinion, there is a prima facie case to be enquired into. The charges and the statement of allegations on which these are based shall be communicated in writing to the employee and he shall be required within a period to be specified in the accompanying notice to submit the written statement of his defence. If he pleads guilty, the authority may proceed to pass orders. If he fails to submit his statement or pleads not guilty, the authority shall either himself enquire or direct an enquiry to be made into the charges by an authority not below the rank of the employee. During such enquiry the employee shall be given an opportunity to cross-examine witness examined in support of the charges and adduce his own defence. On the record of enquiry, the authority competent to impose the punishment, may proceed to pass orders."

Clause 9.6 reads as under:

"9.6 Appeals:

From every order imposing a penalty passed by any authority other than the Managing Director, an appeal shall lie to the Managing Director and from every order of the Managing Director an appeal shall lie to the Board.

An appeal under this Regulations shall be submitted in writing to the appellate authority within one month from the date of the order imposing penalty."

8. Respondent no.1 in its 292nd meeting of the Board of Directors held on 29.08.2019 in respect of conducting a disciplinary enquiry against the petitioner has resolved as under:

"The Board authorized the Managing Director of the Company to take all necessary actions including representing the Company on all the above matters and to delegate any of the responsibilities to any employees of the Company and/or to appoint such professionals to represent the Company in the above matter and the following resolution was passed:

"RESOLVED THAT consent of the Board be and is hereby accorded to authorize the Managing Director of the Company to take all necessary actions with regard to misappropriation of funds including filing of any legal actions either civil or criminal action against Sri. G.C. Kishor Kumar, General Manager (Finance) under Suspension and/or on the Bank and/or on any other person involved in the misappropriation of funds."

9. The petitioner has contended that the enquiry officer i.e. respondent no.4 is of the same rank as that of the petitioner. The charge memo has not been approved by the Managing Director who is the disciplinary authority, and hence, the same is liable to be quashed. The petitioner has placed reliance upon the decision of the Hon'ble Supreme Court in UNION OF INDIA v. B.V.GOPINATH [(2014)1 SUPREME COURT CASES 351]. Paragraph 55 of the said judgment reads as under:

"55. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge-sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of the law."

10. Per contra, the respondents relies upon the Regulations and 292nd board meeting.

11. As could be seen from the resolution passed in the 292nd board meeting, the Managing Director of respondent no.1-Corporation was authorized to initiate such action as required against the petitioner and it included delegating any of the responsibilities to any employees of the Corporation in this regard. Accordingly, respondent no.2 has appointed respondent no.4 as the Enquiry Officer. He is of the same rank as that of the petitioner. Regulation 9.5 in Chapter VI of the Regulations permits the Enquiry Officer to be of the same rank as that of the employee. When respondent no.1 is having its own Regulations, the employees shall be governed by its regulations and the petitioner cannot seek any protection under Article 311(1) of the Constitution of India. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in STATE BANK OF INDIA v. S. VIJAYA KUMAR [(1990)4 SUPREME COURT CASES 481). Paragraphs 23 and 24 of the said judgment read as under:

"23. The guarantee clause under Article 311(1) of the Constitution of India which is relevant for our purpose reads as under:

"311.(1) No person who is a member of a Civil Service of the Union or an All India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed."

24. Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provisions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Article 311(1) the words used are "by which he was appointed." In Regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from July 1, 1974. Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a civil post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regulations. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority."

12. In the instant case, as could be seen from Annexure- E to the writ petition, a letter dated 21.08.2019 is issued to the petitioner and the charge memo is enclosed to the said letter. The said letter and the charge memo are duly signed by respondent no.4. Furthermore, the letter records that it is approved by the Managing Director of respondent no.1.

13. Thus, the charge memo has been approved by respondent no.2 Managing Director. Hence, the charge memo has to be considered as being issued by the competent authority. There is no illegality in issuance of the same.

14. In respect of placing the petitioner under suspension, Regulation 9.4 of Chapter VI of the Regulations reads as under:

"9.4. Suspension:

(a) During the period an enquiry is pending against any employee in respect of any offence or misconduct under clause (9.2) II of the regulation 9.1 the authority competent to direct enquiry may place such employee under suspension pending enquiry.

(b) During such suspension, the employee shall be paid a subsistence allowance not exceeding half his average pay provided that if the employee be fully exonerated this period of suspension shall be treated as period on duty and he shall be reimbursed the difference between his subsistence allowance and the emoluments which he would have drawn but for such suspension, for the period he was under suspension.

(c) The period of suspension, unless the employee is exonerated of the charges shall be treated in such matter as the Managing Director may direct."

Accordingly, the respondents have contended that pending enquiry, the petitioner can be placed under suspension and there is no requirement of assigning any special reason whatsoever and the limitation of 90 days is not applicable to the petitioner as contended by the petitioner.

15. Regulation 9.4 contemplates that pending enquiry any employee can be placed under suspension and does not state the maximum duration for which he can be placed under such suspension.

16. In the instant case, after placing the petitioner under suspension, the enquiry proceedings have been initiated, proceedings have been completed and report is awaited. At this stage, it is not appropriate to direct the respondents to revoke the suspension of the petitioner. If the petitioner is absolved and exonerated from the charges, he is entitled to all the benefits for the period in which he was kept under suspension. The respondents have stated that they are paying him subsistence allowance as contemplated in the Regulations and though the petitioner disputes the same, a dispute of fact cannot be gone into in the writ proceedings.

17. In respect of being denied the permission to engage the services of a defence assistant, the Regulations do not provide for the petitioner to engage the services of a defence assistant. It is stated by the respondents that the presenting officer is not legally qualified. It is stated that the petitioner was permitted to engage the services of a defence assistant amongst the present or retired employees of the Corporation or a present government servant who has got necessary permission from his parent department to represent the petitioner. Admittedly, the person initially chosen by the petitioner was not from respondent no.1- Corporation and he was a retired Government servant and hence the petitioner was not allowed to engage his services. Thereafter petitioner has chosen another person to represent him but he did not have the necessary permission from his department. It is relevant to refer to the judgment of the Hon'ble Supreme Court in INDIAN OVERSEAS BANK v. CANARA BANK OFFICERS' ASSOCN. [AIR 2001 SC 4007] wherein at paragraph 6 has held as under:

"6. We have carefully considered the submissions made as above. The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officer-employee to have, in a domestic-disciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct. This aspect has been the subject matter of consideration by this Court on several occasions and it

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has been categorically held that the law in this Country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless that rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognize such a right and provide for such representation. N. Kalindi v. M/s Tata Locomotive and Engineering Co. Ltd. Jamshedpur AIR 1960 SC 914; Dunlop Rubber Co. (India) Ltd. v. Their Workmen AIR 1965 SC 1392; Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993)2 SCC 115 and Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union (1999)1 SCC 626. Irrespective of the desirability or otherwise of giving the employees facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to in experience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself." 18. Thus, in the instant case, the petitioner does not have an inherent right to have the defence assistant of his choice as claimed by him. 19. Regarding the allegation that the petitioner is not provided with all the relevant documents, the respondents have stated that he has been provided with the relevant documents. If any relevant document is not provided, the petitioner is at liberty to seek for the same and the respondents are obliged to provide it. 20. For the aforementioned reasons, the writ petition is devoid of merits and is hereby dismissed. However respondent No.1 is directed to provide copies of such documents to the petitioner as sought by him and shall pay him the subsistence allowance while under suspension, as per Regulations, if the same is not being paid to the petitioner.
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09-09-2020 Santosh @ Sada Mahadev Chand Rakodi Versus The State of Karnataka, Rep. by SPP, Dharwad High Court of Karnataka Circuit Bench At Dharwad
09-09-2020 Vidarbha Irrigation Development Corporation, through Executive Engineer, Minor Irrigation Division, Nagpur Versus Laxman Seetaram Neulkar & Another In the High Court of Bombay at Nagpur
09-09-2020 Padmavathi Hospitality and Facilities Management Service, Rep. by its Authorized Representative J. Anjananandan Versus The Tamil Nadu Medical Service Corporation, (A Government of Tamil Nadu undertaking), Chennai & Others High Court of Judicature at Madras
09-09-2020 R. Bharaneeswaran Versus The Government of Tamil Nadu, Rep. by its Secretary, School Education Department, Chennai & Others High Court of Judicature at Madras
08-09-2020 Jai Bharath College of Management & Engineering Technology, Rep. by Its Chairman, Ernakulam & Others Versus The State of Kerala, Rep. by Its Secretary to Government, Higher Education Department, Trivandrum & Others High Court of Kerala
08-09-2020 The State of Tamil Nadu, Rep. by the Collector of the Nilgiris, Udhagamandalam Versus Janaki High Court of Judicature at Madras
08-09-2020 S. Jagannatha Rao Versus Air India Limited, Rep. by its Chairman and Managing Director, New Delhi & Others High Court of Judicature at Madras
08-09-2020 Dhirendra Kumar Versus State of U.P. & Others High Court of Judicature at Allahabad
08-09-2020 Dhirendra Kumar Versus State of U.P. & Others High Court of Judicature at Allahabad
08-09-2020 Arun Kumar Sharma Versus Adesh Goel & Others High Court of Delhi
07-09-2020 Anthosh Kumar Bavara Versus State of Karnataka by Inspector of Police, Represented by High Court Govt. Pleader, Bangalore & Another High Court of Karnataka
07-09-2020 Suneeta Sharma Versus Greater Mohali Area Development Authority, Punjab & Another National Consumer Disputes Redressal Commission NCDRC
07-09-2020 Sir Venkatramanaswamy Blue Metals, Rep by its Managing Partner, M. Sivanandam & Another Versus The Assistant Commissioner, Karur & Others High Court of Judicature at Madras
07-09-2020 Parveen Kumar Versus The State of Maharashtra & Another High Court of Judicature at Bombay
07-09-2020 The Tamil Nadu Public Service Commission Rep. by its Secretary, Chennai Versus P. Muthian High Court of Judicature at Madras
04-09-2020 Inder Kumar Raina Versus Union of India & Others High Court of Delhi
04-09-2020 Atul Kumar Versus State of Bihar High Court of Judicature at Patna
04-09-2020 Y. Devadas Versus State of Telangana, Rep., by Special Chief Secretary, Education Dept., Government of Telangana & Another High Court of for the State of Telangana
04-09-2020 K. Ebnezer Versus The State of Telangana, rep by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad & Others High Court of for the State of Telangana
04-09-2020 Saluvadi Sumalatha Versus The Telangana Residential Educational Institutions Recruitment Board (TREI-RB) rep., by its, Executive Officer (Convenor) & Another High Court of for the State of Telangana
04-09-2020 Natarajan Versus The State of Tamil Nadu, Rep by its Secretary to Govt. Dept. of Municipal Admin & Water Supply, City V, Chennai & Others High Court of Judicature at Madras
04-09-2020 Rajesh Kumar Singh Versus State Public Service Tribunal Thru.Chairman & Others High Court Of Judicature At Allahabad Lucknow Bench
04-09-2020 Alfadul Sobhi & Another Versus State of Karnataka, Rep. by its State Public Prosecutor, Bengaluru High Court of Karnataka