S M HONAPPA Vs. BANGLORE UNIVERSITY

JUDGEMENT

(1.) THE petitioner is questioning the legality and validity of the impugned orders dated 1-2-2006 bearing No. EST-1/ E2/per/377/ 94 passed by the first respondent and the order dated 11-10-2006 bearing No. G. S. 1 BUM 2006 passed by the second respondent vide annexures 'h' and 'l' respectively. Further the petitioner seeking a direction directing the first respondent to reinstate the petitioner with all consequential benefits retrospectively, has presented the instant writ petition.

(2.) THE petitioner has joined the first respondent University in the year 1977 as a Publication Assistant by direct recruitment. Having regard to his seniority, requisite qualification and eligibility, he was promoted to the post of Assistant Director, Prasaranga and later on he was placed as Director in-charge to the first respondent University in Printing Press. For the academic year 1999-2000 the Audit department had conducted audit in respect of the accounts of the printing Press. On the basis of the audit report, after lapse of two years the petitioner was kept under suspension pending enquiry in the year 2002. Thereafter after issuing the articles of charges, the enquiry was conducted with respect to the alleged 12 charges. The Enquiry officer has conducted the enquiry. Out of 12 charges, charge No. 2 was proved partly and charge No. 9 was proved fully and remaining 10 charges were not established and accordingly the Enquiry Officer submitted the report to the Disciplinary Authority for taking necessary action as deemed fit along with all the necessary records. The disciplinary Authority has issued a show cause notice to the petitioner calling for the reply. The petitioner has submitted his detailed reply on 27-12-2005. It runs about six pages. The matter was placed before the Syndicate being a Disciplinary Authority, as provided under the bangalore University Statute. After verification of the report submitted by the Enquiry Officer and other relevant material, the Syndicate of the first respondent passed the resolution on 18-1-2006. After obtaining necessary approval from the Vice Chancellor in that regard, the Registrar of the first respondent University, has issued the impugned order dated 1-2-2006 vide Annexure 'h' stating that in exercise of the powers vested under Statute 28. 5 (l) (vi) of Bangalore University, the petitioner is Compulsorily Retired from service with immediate effect for having violated Statute 27. 3 (1) (ii) of Bangalore University for the failure to maintain devotion to duty. Assailing the correctness of the order passed and the communication dated 1 -2-2006 passed by the first respondent University, the petitioner has filed the appeal as provided under the relevant Statute of the Bangalore University before the second respondent. The second respondent in turn in its proceedings dated 11-10-2006 has opined that the Officer who was entrusted with the responsibility did not discharge his duties with due care. Once the Officer of that rank is given the responsibility as incharge, he is fully in-charge and no casual approach can be adopted and considerable financial loss has been caused to the University by an Officer of the rank of the Assistant Director. Therefore he opined that the Syndicate has taken the right decision which should instill a sense of responsibility to others also and he will not think proper or fair to intervene in the case. The decision of the Syndicate to compulsorily retire the petitioner, the Assistant Director, for gross negligence of the responsibility leading to severe loss to the University, is upheld and he do not find much substantial merit in the grounds urged by the petitioner and dismissed the appeal upholding the disciplinary orders of the University. Being aggrieved by the impugned order passed by the Disciplinary Authority, and the Appellate Authority, the second respondent, the petitioner herein felt necessitated to present the writ petition for appropriate relief as stated supra.

(3.) I have heard the Learned Counsel for the petitioner and the learned counsel appearing for respondents 1 and 2. The principal submission canvassed by the learned counsel appearing for the petitioner is that the impugned order passed by the Disciplinary authority and also the Appellate Authority are liable to be vitiated in view of the non-compliance of the mandatory provisions of Statute no. 28. 5 (l) (vi) of the Bangalore University Statute. To substantiate his submission he pointed out and has taken through the evidence of the petitioner and specifically pointed out at page 88 of the report, the further cross-examination which goes to show that there was leakage of water in the press building due to rains and at that time some stock of paper got wet but it was not damaged and the paper was used for press work. When there is no loss as such has been caused to the university, the question of imposing compulsory retirement that too without considering the oral and documentary evidence on the file, neither by the Disciplinary Authority nor the Appellate Authority does not arise and further vehemently submitted that the penalty imposed to the petitioner compulsorily retiring the petitioner from service, is dis-proportionate to the gravity of the offence. If there is loss caused, as rightly pointed out by the Enquiry Officer as per charge No. 9, they might have recovered the said amount with reasonable interest or imposed withholding the increments, but not by punishing the petitioner by compulsorily retiring from service and the said act is not at all justifiable. He specifically pointed out Statute 28. 5 (1) (iii) (b), which deals with recovery from the pay of any part or whole of any pecuniary loss caused by negligence or breach of orders. In the instant case, the report submitted by the Enquiry Officer out of 12 charges, 10 charges have been exonerated as not proved and charge No. 2 and charge no. 9 are partially proved. Therefore the Disciplinary Authority and the Appellate Authority have committed a grave error and proceeded to impose the dis-proportionate punishment to the petitioner which cannot be sustainable. To substantiate his submission he placed reliance on the judgement of the Apex Court regarding mis-conduct in the case of STATE OF PUNJAB AND OTHERS vs RAM SINGH, ex-CONSTABLE, AIR 1992 SC 2188 and further he placed reliance on another judgment of the Apex Court in the case of RANJIT THAKUR vs UNION OF india, AIR 1987 SC 2386 and submitted that the judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. The doctrine of proportionality, as a part of concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In the present case, the punishment is so strikingly dis-proportionate as to call for and justify interference and it could not be allowed to remain uncorrected in judicial review. Therefore, he submitted that the impugned order passed by both the authorities are liable to be set aside and the matter requires re-appreciation and reconsideration by the Disciplinary Authority afresh.