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®

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 18th DAY OF DECEMBER, 2012

BEFORE

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

WRIT PETITION NO.8414/2012 (S-DE)

BETWEEN:

Sri A.B. Wadeyar, S/o. Bilyani,

Aged about 63 years, Residing at Amogh,

Flat No.126, T.V. Centre, Belgaum – 590 019.

... PETITIONER (By Sri K.V. Narasimhan, Adv.)

AND:

Hon’ble High Court of Karnataka,

Bangalore, By its Registrar General,

Bangalore.

... RESPONDENTS

(By Sri Raghavendra G Gayatri, HCGP)

This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order

vide Annexure –E dated 21.12.2011 passed by the

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respondent and quash the proceedings pending before the

Hon’ble Inquiry Authority, High Court of Karnataka, Bangalore.

This petition having been reserved, the Court made

the following:

O R D E R

This writ petition has been filed to quash a

disciplinary proceeding initiated by the respondent in

D.I.No.11/2005 against the petitioner.

2. The basic fact of the matter is not in dispute.

Petitioner was appointed as Civil Judge (Jr.Dn.) on

9.3.1983. He was promoted as Civil Judge (Sr.Dn.) on

29.5.1995. He was promoted as District Judge, on ad-hoc

basis, on 15.11.2003. A complaint dated 1.9.2005 having

been received, upon holding of a discreet inquiry, based on

a report submitted, Administrative Committee – I

(“Committee” for short) of the High Court of Karnataka,

passed a resolution on 14.11.2005, to frame charges

against the petitioner. The draft charges was approved on

15.3.2006. Article of Charges (Annexure-A) and Statement

of Imputation of Misconduct (Annexure-B) dated

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15.4.2006 was served on the petitioner on 19.4.2006.

Petitioner sought time to submit his explanation.

Extension of time was granted, i.e., up to 30.10.2006.

Petitioner submitted a written statement dated 10.11.2006

(Annexure-C). Under Rule 11(2) of the KCS (CCA) Rules,

1957, Hon’ble Sri Justice N.Kumar, Judge, High Court of

Karnataka, was appointed as an Inquiring Authority on

29.9.2008, to inquire into the charges levelled against the

petitioner. The said Inquiring Authority, on 14.9.2011,

recused, for personal reasons. Hence, the Committee

passed a resolution on 19.12.2011, appointing Hon’ble Sri

Justice V.Jagannathan, the then sitting Judge, High Court

of Karnataka, as the Inquiring Authority and an order

dated 21.12.2011 vide Annexure-E was issued. The said

Inquiring Authority issued notice to the petitioner, on

23.12.2011, to appear for the inquiry. On 7.1.2012,

preliminary sitting was held. On 18.1.2012, the Registrar -

Vigilance took time to produce the documents sought by

the petitioner. On 3.2.2012, a new Presenting Officer

appointed, sought time. On 14.2.2012, notice was

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directed to be served on the witnesses shown in the

Articles of charge. On 25.2.2012, PWs.1 and 2 were

examined and Exs.P1 to P6 were marked. Notice to PWs.3

to 5 was issued and on 17.3.2012, they were examined

and Exs.P7 to P15 were marked. PW.6 appeared, was

examined and Exs.P16 to P37 were marked. On the

request made by the petitioner, cross-examination of PW.6

was deferred to 23.4.2012. This writ petition was filed on

14.3.2012. On 27.4.2012, in this writ petition it was

ordered that, ‘cross-examination be adjourned by the

concerned by four weeks’. The said interim order was

extended on 4.6.2012 and 10.8.2012.

3. Sri K.V.Narasimhan, learned advocate, in

support of the prayers in this writ petition, by placing

reliance on a decision in the case of State of A.P. Vs.

N.Radhakishan, 1998 (4) SCC 154, contended that on

account of the delay on the part of the respondent, the

inquiry proceeding is vitiated and if the same is continued,

would cause serious prejudice to the petitioner. He

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submitted that the Inquiring Authority was appointed long

after the date of retirement of the petitioner from service

and there is no justification for the respondent to continue

the inquiry, even after the lapse of 4½ years, after

retirement of the petitioner from service. He submitted

that the petitioner being not the cause for the delay in

finalisation of the disciplinary inquiry, the prayers in the

writ petition may be granted.

4. The respondent has filed statement of objections.

Sri Raghavendra G Gayatri, learned HCGP, by taking me

through the inquiry record and placing reliance on the

decisions in the cases of P.D.Agrawal Vs. State Bank of

India and others, (2007) 1 SCC (L&S) 43 and Government

of Andhra Pradesh and others Vs. V.Appala Swamy, (2007)

14 SCC 49, submitted that on account of unintended delay

in finalisation of the inquiry, which was initiated without

any kind of delay, no prejudice has occasioned to the

petitioner. He stressed that there is neither a pleading nor

any proof with regard to any prejudice caused to the

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petitioner. He further submitted that there is suppression

of material fact by the petitioner, in that, the proceedings

which have taken place from 7.1.2012 till the date the writ

petition was filed has been withheld and obstruction was

caused for further proceeding with the inquiry with effect

from 27.4.2012.

5. Perused the writ record. Keeping in view the rival

contentions, the only point for determination is;

Whether the delay in completing the disciplinary inquiry

proceeding has caused any prejudice to the petitioner?

6. Except stating that the delay prejudices his rights

adversely and the charges have become stale, the writ

petition does not contain any pleading with regard to any

kind of prejudice having been suffered by the petitioner on

account of the delay in finalisation of the disciplinary

inquiry.

7. In the case of V. Appala Swamy (supra), Apex

Court has held as follows:

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12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:

(1) where by reason of the delay, the employer condoned the

lapses on the part of the employee;

(2) where the delay caused prejudice to the employee.

Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.

In the instant case, the employer has not condoned

the alleged lapses/misconduct shown in Annexure-A.

Record of inquiry also does not show the DJO/petitioner

having made out any prejudice before the Inquiring

Authority.

8. In U.P. State Sugar Corporation Ltd. and Others

Vs. Kamal Swaroop Tondon – (2008) 2 SCC 41, it has been

laid down as follows:

“30. ......No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore,

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cannot be laid down as a proposition of law or a rule of universal application that if there is delay in initiation of proceedings for a

particular period, they must necessarily be quashed.”

(emphasis supplied by me)

9. The petitioner was a Judicial Officer. A complaint

was received and a report was called for. Finding prima

facie case of commission of misconduct, the petitioner was

kept under suspension. ‘Article of Charges’ and ‘Statement

of Imputations of Misconduct’ vide Annexures- A & B, was

issued on 15.04.2006. The charges set out against the

petitioner read as under:

ARTICLE OF CHARGES

The Disciplinary Authority viz., the High Court of Karnataka, Bangalore, hereby frames the following charges against you Sri Amasidd Bilyani Wadeyar, Presiding Officer, Fast Track Court –III, Bangalore, (u/s):

CHARGE I : That while you were working as Judge, Court of small Causes, Bangalore, you had sought permission from the High Court for construction of the house informing that you would construct 20 squares house at Plot No.126, Sector No.13, T.V.Centre, Belgaum at an estimated cost of Rs.10,24,000/- out of the following sources:

Sl.

No.

Amount

Rs.

Source

1. 8,00,000 By raising loan from Syndicate Bank, Raibag Branch

2. 81,953 (This amount is wrongly mentioned in the report of the Registrar (Vigilance) as Rs.1,61,953/-)

Agricultural and other savings for the year ending 2001

3. 80,000 Agricultural income for the year 2002

4. 64,000 Arrears of pay

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You have constructed a unit measuring 917 sq. ft. in the lower ground floor beyond the sanctioned plan and in violation of the Building Rules. You constructed the house at a total cost of Rs.31,89,000/-.

You did not inform the High Court about the additional unit constructed by you in the lower ground floor and the additional expenses incurred by you beyond the estimated cost of Rs.10,24,000/-, with dishonest and malafide intention to cover up the difference between your disclosed sources of income and the additional amount spent for construction of the house and for acquisition of other assets which you acquired by corrupt and/or illegal means by abusing your official position as a Judicial Officer in clear violation of Rule 23 of K.C.S. (Conduct) Rules, 1966. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1)(i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE II: That you have availed the following loans without the prior permission of and did not also inform the same to the High Court as required under Rule 21 (4) (i) of K.C.S. (Conduct)Rules, 1966:

Sl. No.

Type of loan Name of the Bank

Date of availment

Amount Rs.

1. Syndicate Kisan Credit Card loan

Synidcate Bank, Raibag

28.05.03 40,000

2. Current account State Bank of India, Cauvery Bhavan Branch, Bangalore

19.08.03 08.09.03

10,000 40,000

3. Housing loan Syndicate Bank, Raibag

08.09.2004 6,50,000

The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE III : That you intentionally gave false information of having utilized an amount of Rs.10,000/- received from LIC money back policy on 23.02.2002 for construction of the house, despite the fact that you had already utilized the said amount for repayment of motor car loan, as intimated to the High Court under your letter dated 07.03.2002. You deliberately furnished such false information with a malafide intention to cover up the difference between your disclosed sources of income and the additional amount spent for construction of the house and for acquisition of other assets which you acquired by corrupt and/or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

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CHARGE IV: That you informed to have received an amount of Rs.64,000/- as first time arrears of FNJP revised pay as per A.G. Pay Slip No.G13/J/2003-2004 dated 13.08.03, and spent the same for construction of your house. You had not received the said amount of Rs.64,000/-. You deliberately furnished such false information with a malafide intention to cover up the difference between your disclosed sources of income and the additional amount spent for construction of the house and for acquiring other assets which you acquired by corrupt and/or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE V : That you received an amount of Rs.1,04,150/- towards arrears of pay as per A.G. authorization slip No.GE 13/J/2003-04 187 dated 18.08.03. You informed the High Court to have spent the entire amount of Rs.1,04,150/- for construction of the house. You had earlier under your letter dated 03.03.2004 informed that you would purchase a second hand Car from the amount of Rs.55,000/- out of salary arrears and Rs.1,45,000/- kept in Fixed Deposits, being sale proceeds of your Car. Accordingly, by your letter dated 27.07.2004, you informed the High Court that you purchased second hand Maruti Zen Car from the said sources.

Thereby, you have given false information to the High Court that you spent the entire amount of arrears of salary of Rs.1,04,150/- for construction of the house. You deliberately furnished such false information with a malafide intention to cover up the difference between your disclosed sources of income and the additional amount spent for construction of the house and for acquisition of other assets which you acquired by corrupt and/or illegal means by abusing your official position as Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE VI: That you have purchased the following lands in the name of your son, Prashanth at your native place:

Sl. No.

Suvey No. of the land and measurement

Place Date of purchase

Amount Rs.

1. 71/B 2 acres

Morab 30.05.1991

10,000

2. 264/2A 0.2¾ guntas

Raibag Town

30.10.2004 71,500

3. 65/2 2 acres and 22 guntas

Morab 12.01.2004 1,53,000

4. 71/A 1 acre and 10 guntas

Morab 23.12.2002 60,000

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You purchased the said lands without permission of the High Court and did not deliberately disclose the sources for acquisition of the lands, in clear violation of Rule 23 (2) of K.C.S. Conduct Rules, 1966. You acquired the said lands from the pecuniary resources received by corrupt or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE VII: That you have purchased four mobile phones bearing

Nos.9448447517, 9448850549, 9448419062 and 9448557077 in your name and in the names of your family members. You intimated the High Court about the purchase of one mobile phone handset during 2003 at a cost of Rs.5,200/-. You acquired the other three mobile phones without permission or intimation to the High Court, in clear violation of Rule 23(3) of K.C.S. (Conduct) Rules, 1966.

You acquired the said mobile phones, activated and paid the monthly charges of the mobile phones from the pecuniary resources received by corrupt or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE VIII : That you were owning a Maruti Omni Van since 1997

and sold the same on 23.01.03 for a consideration of Rs.1,45,000. You informed to have deposited this amount in Fixed Deposits bearing receipt nos.429375 and 429376 dated 23.01.03 in State Bank of India, Cauvery Bhavan Branch, Bangalore. You had sought permission from the High Court to purchase a second hand car at a cost of Rs.2,00,000/-, by utilizing the aforesaid fixed deposit amounts and salary arrears and accordingly, permission was granted to you. By your letter dated 27.07.04, you informed the High Court that you purchased second hand Maruti Zen Car.

You did not purchase the second hand Maruti Zen Car from the

amount in the Fixed Deposits, but withdrew the amount from Fixed Deposits on 13.08.05 after renewing the same from time to time. Thus, you spent Rs.1,45,000/- for purchase of second hand Maruti Zen Car from the pecuniary resources received by corrupt or illegal means by abusing your official position as a Judicial Officer and furnished false information to the High Court with a malafide intention to cover up the fact of purchase of car from pecuniary resources received by corrupt or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

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CHARGE IX: You informed the High Court by your letter dated

19.11.2004 that you sold the second hand Maruthi Zen Car for a consideration amount of Rs.3,00,000/- which you had purchased for a consideration amount of Rs.2,00,000/-. You did not deliberately produce any documents in this regard. You gave such a false information and showed the inflated price with a malafide intention to cover up the pecuniary resources acquired by corrupt or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE X: You have S.B. Account bearing No.01190/023902 in State

Bank of India, Cauvery Bhavan Branch, Bangalore and S.B. Account bearing No.36886 in Syndicate Bank, Raibag Branch. That certain amounts were deposited in the said Savings Bank Accounts intermittently. You did not disclose to the High Court the transactions concerning the said amounts, with a malafide intention to cover up the pecuniary resources acquired by corrupt or illegal means by abusing your official position as a Judicial Officer and in clear violation of Rule 23(3) (2) of K.C.S. (Conduct) Rules, 1996. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE XI : That you have taken a house bearing No.164, II Main, 9th

Cross, Sadashivnagar, Belgaum, on lease from its owner, Smt. Jeejabai Bhonsle on 01.07.2003 for a monthly rent of Rs.2,700/- and by paying interest free deposit of Rs.25,000/-. You neither obtained permission from the High Court nor intimated about the acquisition of the house on lease, in clear violation of Rule 23 (2) of K.C.S. (Conduct) Rules, 1966. You paid interest free deposit of Rs.25,000/- and were/are paying the monthly rent, electricity & water charges etc., out of pecuniary resources acquired by corrupt or illegal means by abusing you official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE XII: That your income from all the known and disclosed

sources during the period from 01.01.2002 to 30.09.2005 (check period) is Rs.36,47,487/-, expenditure is Rs.10,57,201/- and your likely savings are Rs.25,90,286/-. The value of the assets acquired by you during the check period is Rs.38,81,200/-, which is disproportionate to your known sources of income and likely savings. You, while functioning as Presiding Officer, Fast Track Court –III, Bangalore, and in other capacities, acquired assets/pecuniary resources disproportionate to your known sources of income to an extent of Rs.12,90,914/- by passing

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judicial orders for extraneous and monetary consideration and by corrupt or illegal means by abusing your official position as a Judicial Officer. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE XIII: That while you were working as Presiding Officer, Fast

Track Court –III, Bangalore, the accused Arif Pasha, his son Imran Pasha and other accused persons in Crime No.60/04 of Jagajeevanramnagar Police Station filed bail petitions before you. The said accused persons along with other accused were alleged to have committed murder of Amjad and Azaz, attempted to commit murder of Altaf by assaulting them with deadly weapons and thereby committed offences punishable under Sections 143, 144, 147, 148, 120-B, 341, 302, 307, 324 r/w Section 149 IPC and from the date of offence, Arif Pasha and his son Imran Pasha were absconding.

The accused Arif Pasha, S/o. Jabbar Sharif filed an application for anticipatory bail in Crl. Misc.2432/04 before the X Addl. City Civil & Sessions Judge, Bangalore, which was rejected by an order dated 25.09.04.

On 03.05.05, Arif Pasha and his son Imran Pasha moved a petition for anticipatory bail in Crl. Misc.1259/05. You allowed the petition by an order dated 07.05.05, within a period of four days from the date of filing, though the petition was opposed by the prosecution.

That the accused Moshin Pasha, Farooq Pasha and Petla Fayaz @ Fayaz Khan in Crime No.60/04 of J.J.Nagar Police Station, filed an application seeking anticipatory bail in Crl.Misc.1176/05. You allowed the said application by an order dated 29.04.05 though the anticipatory bail application filed by them earlier before X Addl. City Civil & Sessions Judge, Bangalore, in Crl.Misc.No.3504/04 was rejected by an order dated 29.01.2005.

That the accused Umar Pasha, Zafrulla Khan and Petla Fayaz in Crime No.60/04 of J.J.Nagar Police Station filed an application for anticipatory bail in Crl.Misc.1439/05. You allowed the said application by an order dated 10.06.05 though the earlier anticipatory bail applications filed by Zafrulla Khan in Crl. Misc.2954/04 and Crl. Misc.888/05 were dismissed by the X Addl. City Civil & Sessions Judge, Bangalore by orders dated 31.01.05 and 25.04.2004 respectively.

There were eye witnesses/injured eyewitnesses to the alleged murder committed by the accused. The accused were absconding for more than 1½ years from the date of committing brutal and heinous offences of murder. Without considering these vital material and expressing opinion whether there are prima facie and reasonable grounds to believe that the accused persons committed offences exclusively punishable with death

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or imprisonment for life or not and are likely to abscond and tamper with prosecution witnesses, you allowed the anticipatory bail petition with the knowledge that the earlier bail petitions filed by them were dismissed and you granted anticipatory bail only on the ground that the apprehension of the prosecution that the accused may cause hurdle in the smooth progress of the trial, may abscond and threaten the prosecution witnesses would be cured by imposing stringent conditions. You allowed the anticipatory bail petitions and granted bail to the accused in the above cases for extraneous and monetary consideration. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE XIV: That while you were working as Presiding Officer, Fast Track Court –III, Bangalore, the accused in Crime No.33/05 of Ulsoor Police Station filed bail petitions before you. In the said case it is alleged that the accused were members of an unlawful assembly on 25.01.05 at about 9 p.m. and in furtherance of common object of the said unlawful assembly, they committed trespass in the house of the complainant, assaulted the family members of the deceased, abducted the deceased in autorickshaw and committed his murder by assaulting him with deadly weapons and thereby committed offences punishable under Sections 143, 144, 147, 448, 363, 302 r/w Section 149 IPC.

The accused Srinivas @ Seena and Ravi, filed Crl.Misc.1251/05, accused Dhanaraj filed Crl.Misc.947/05, accused Rafiz and Sharavana filed Crl.Misc.1084/05, accused R. Rajesh filed Crl.Misc.1242/05, accused Akhilan @ Akhil and Suman @ Gandhi filed Crl.Misc.1367/05, accused Babu @ Meese Babu and M. Murali filed Crl. Misc.1295/05, accused Umashankar filed Crl. Misc.1418/05, accused Gunashekar and Kodanda filed Crl. Misc.1577/05, accused F. John @ Johnson filed Crl. Misc.1526/05 and accused Edward @ Ebot filed Crl.Misc.1497/05 seeking bail. All the said petitioners are accused in Crime No.33/05 of Ulsoor Police Station (C.C.No.22350/05). You allowed all these bail petitions.

There were eye witnesses to the said murder. Without considering

the vital material and expressing opinion whether there are prima facie and reasonable grounds to believe that the accused persons committed offences exclusively punishable with death or imprisonment for life or not and are likely to abscond and tamper with prosecution witnesses, you allowed the bail petitions only on the ground that the apprehension of the prosecution that the accused may cause hurdle in the smooth progress of the trial, may abscond and threaten the prosecution witnesses would be cured by imposing stringent conditions. You allowed the bail petitions in the above cases for extraneous and monetary consideration. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within

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the meaning of Rule 3(1) (i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

CHARGE XV: That while you were working as Presiding Officer, Fast

Track Court –III, Bangalore, you rejected the following bail petitions:

Sl.

No.

Crl.Misc.

No.

Name of the

accused

Crime No. and

Police Station

Nature

of

offences

Nature

of bail

Petition

1. 637/05 Babu @ Meenumecche and Srinivasa

106/05 Banashankari

302 & 201 IPC

439 Cr.P.C.

2. 566/05 Mahesha 92/04 Shankarapuram

302 IPC 439 Cr.P.C.

3. 2551/05 D.R. Naveen Kumar

220/05 Girinagar

302 IPC 438 Cr.P.C.

4. 339/05 K.S. Herambha

489/02 Ulsoor Gate

406 & 420 r/w 34 IPC

438 Cr.P.C.

You rejected the above petitions on the ground that the facts narrated in the complaint and material placed on record disclose prima facie material against the accused persons and that the offences committed by them are punishable with death or imprisonment for life and the accused were absconding for long time. However, you granted bail in Crl.Misc.Nos.1259/05, 1176/05, 1439/05, 1251/05, 947/05, 1084/05, 1242/05, 1367/05, 1295/05, 1418/05, 1577/05, 1526/05 and 1497/05, though there were eye witnesses to the crime and the offences committed were grave and heinous. Without considering the vital material and expressing opinion whether there are prima facie and reasonable grounds to believe that the accused persons committed offences exclusively punishable with death or imprisonment for life or not and are likely to abscond and tamper with prosecution witnesses, you granted bail only on the ground that the apprehension of the prosecution that the accused may cause hurdle in the smooth progress of the trial, may abscond an threaten the prosecution witnesses would be cured by imposing stringent conditions. You passed conspicuously inconsistent and biased bail orders by deliberately overlooking or highlighting the material on record to suit your convenience. You have passed inconsistent judicial orders for extraneous and monetary consideration. The said act manifests lack of integrity and is unbecoming of a Judicial Officer and thereby you have committed misconduct within the meaning of Rule 3(1) (i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.

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10. After obtaining extension of time, petitioner

submitted a written statement dated 10.11.2006 to the

Article of Charges. Since he was due to attain the age of

superannuation of 58 years on 31.05.2007, a Notification

dated 29.03.2007, as at Annexure-D was issued. Inquiring

Authority was appointed on 29.09.2008. Said Inquiring

Authority, recused, on 14.09.2011, for personal reasons.

Committee passed a resolution appointing another

Authority on 19.12.2011 and an order dated 21.12.2011 -

Annexure-E was issued. The said Inquiring Authority held

the inquiry. Six witnesses were examined and 37

documents were marked.

11. In the case of N.Radhakishan (supra), a charge

memo was issued in 1987 under a set of rules prevailing at

that time and an enquiry officer was appointed. The case

did not make any significant progress. Subsequently,

another charge memo was issued in 1995 under the new

set of rules. There was generalisation of charges and role

of each employee was not particularised in the charge

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memo. When assailed, it has been held by the Apex Court

as follows:

“19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.”

(Emphasis supplied by me)

Reliance placed by the petitioner upon the aforesaid

Judgment is hardly of any assistance to him. There is no

delay in so far as initiation of the disciplinary inquiry is

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concerned. If a disciplinary inquiry has been initiated

while in service, the same can be continued even after

retirement. The rules provide that, disciplinary inquiry can

be initiated in respect of grave acts of misconduct, even

after an employee retires from service. The petitioner who

was sanctioned provisional pension on account of the

pendency of disciplinary inquiry has been drawing the

same.

12. In the case of Union of India and Others Vs.

Alok Kumar, (2010) 5 SCC 349, it has been stated that the

doctrine of ‘de facto prejudice’ has been applied both in

English as well as Indian law and the frustration of

departmental enquiries on a hyper-technical approach has

not found favour with courts in recent times. ‘Prejudice de

facto’ should not be based on mere apprehension or even

reasonable apprehension. Taking note of a legal maxim

‘judicia posteriora sunt in lege fortiora’, it was held as

follows:

“ 89. …..Prejudice de facto should not be based on a mere

apprehension or even on a reasonable suspicion. It is

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important that the element of prejudice should exist as a

matter of fact or there should be such definite inference of

likelihood of prejudice flowing from such default which

relates to statutory violations. It will not be permissible to

set aside the departmental enquiries in any of these classes

merely on the basis of apprehended prejudice.

***** ****** ****** *****

92. ……Prejudice normally would be a matter of fact and a

fact must be pleaded and shown by cogent documentation to

be true. Once this basic feature lacks, the appellant may not

be able to persuade the Court to interfere with the

departmental enquiry or set aside the orders of punishment.”

(Emphasis supplied by me)

13. In the instant case, the petitioner after

obtaining extension of time has submitted an explanation/

written statement dated 10.11.2006. Disciplinary inquiry

though was initiated without any delay, had not

progressed, on account of the recusal on 14.9.2011 by the

Inquiring Authority who was appointed on 29.9.2008. The

delay has occasioned by the said exceptional circumstance.

Delay is not due to the failure of the respondent in taking

any steps required in the matter of initiation of inquiry.

The respondent has not taken any adjournments and has

not caused any delay in the matter of completion of the

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inquiry. In the circumstances, I can only say that the

explanation offered for the delay to complete the inquiry is

acceptable. Immediate action having been taken by the

respondent to appoint another Inquiring Authority,

substantial part of the inquiry has been conducted. In

view of the retirement of the said Inquiring Authority,

another Inquiring Authority has been appointed and it can

be expected that the inquiry would be completed soon.

14. The charges alleged against the petitioner,

noticed supra, prima facie, are serious in nature. When

the charges are grave, it is not expedient in the interest of

justice, that on the ground of delay alone, the disciplinary

inquiry should be terminated. It is appropriate to take note

of the observations made by the Apex Court in the case of

R.C. Chandel Vs. High Court of M.P., (2012) 8 SCC 58,

wherein, with regard to the conduct of a Judge and the

judicial service, it has been held as follows:

“29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of

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public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like a Caesar’s wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.”

15. In the interest of clean and honest

administration, Keeping in view the nature of allegations

made against the petitioner and as the respondent has

taken steps to expedite the disciplinary inquiry i.e., after

the recusal of the first Inquiring Authority, the disciplinary

proceeding has to be allowed to take its course as per law.

The explanation offered by the respondent that the inquiry

could not be concluded on account of the recusal of the

first Inquiring Authority, cannot be said to be devoid of

merit.

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16. Keeping in view the nature of charges, facts

and circumstances of the case, I do not find any

justification to terminate the disciplinary inquiry initiated

against the petitioner. The writ petition is devoid of merit.

In the result, the writ petition is dismissed.

Inquiring Authority to conclude the inquiry from the stage

it has been interdicted and complete the same as

expeditiously as possible. The petitioner to participate in

the inquiry without unnecessarily seeking adjournment in

the inquiry proceeding. Once the report is submitted by

the Inquiring Authority, the Disciplinary Authority has to

take follow up action without any delay.

Sd/-

JUDGE

Ksj/-