THE STATE OF KARNATAKA vs SMT.C.M. AJAWAN W/O SANJAY V. GUNDAPI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 12 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
THE HON'BLE MRS JUSTICE HEMA KULKARNI
WRIT PETITION NO.147649 OF 2020 (S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA,
RPTD. BY ITS SECRETARY,
DEPARTMENT OF EDUCATION,
M.S. BUILDING,
BENGALURU – 560 001.
2. THE COMMISSIONER OF
PUBLIC INSTRUCTIONS,
NRUPATHUNGA ROAD,
BENGALURU – 560 001.
3. THE JOINT DIRECTOR OF
PULIC INSTRUCTION,
BELAGAVI – 590 002.
4. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTION,
BELAGAVI (SOUTH DIVISION),
BELAGAVI – 590 002.
5. THE BLOCK EDUCATION OFFICER,
BELAGAVI CITY RANGE,
BELAGAVI – 590 002.
Digitally signed by
RAKESH S
HARIHAR
Location: High
Court of
Karnataka,
Dharwad Bench
…PETITIONERS
(BY SMT. GIRIJA S. HIREMATH, HCGP)
AND:
SMT.C.M. AJAWAN W/O. SANJAY V. GUNDAPI,
AGE: 43 YEARS,
WORKING AS ASSISTANT TEACHER,
GOVT. HIGHER PRIMARY SCHOOL
BASAVANNA KUDCHI,
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BELAGAVI CITY RANGE, BELAGAVI,
R/O: NO.499 SAMRUDDI NILAYA
KUMARASWAMY LAYOUT,
BOXITE ROAD, BELAGAVI-10.
…RESPONDENT
(BY SRI. SUNIL S. DESAI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
IMPUGNED ORDER PASSED BY THE HON’BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.2771/2014 VIDE
ORDER DATED 20.12.2019 VIDE ANNEXURE-C AND ETC.
THIS WRIT PETITION, COMING ON FOR FRESH MATTERS THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
HON'BLE MRS JUSTICE HEMA KULKARNI
ORAL ORDER
(PER: HON'BLE MR. JUSTICE M.NAGAPRASANNA )
The State is before the Court calling in question the order
of the Karnataka State Administrative Tribunal, Belagavi
(Hereinafter referred to as ‘Tribunal’ for short) dated
20.12.2019 in Application No.2771/2014, by which the Tribunal
allows the application by the following order:
“ The application is allowed. The order bearing
No. E4/Pra.Sha.Shi/Ka.LoKa/Sandarshan/Viva/49/
2019-10/1501 dated 27.06.2012 (Annexure-A25),
th
passed by 4 respondent, is hereby set aside. The
applicant is entitled to all consequential benefits.
The respondents are directed to reinstate the
applicant into service. This exercise shall be
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completed within a period of two months from the
date of receipt of a copy of this order.
However, the authorities are at liberty to initiate
appropriate action against the applicant, if they so
desire, in accordance with law and in the
circumstances of the case.
”
2. Heard the learned HCGP Smt. Girija Hiremath for
the petitioner/State and learned counsel Sri.Chandrakant
Goulay along with Sri. Sunil Desai, learned counsel appearing
for the respondent/applicant.
3. Facts in brief germane are as follows:
3.1 The respondent/applicant was appointed as an
Assistant Teacher and posted to work as such at Primary School
at Basavana Kudchi with effect from 02.11.1999. 10 years
thereafter, it transpires that the respondent suffered an injury
and was on continuous medication, therefore, did not attend
duties. Owing to the fact of the unauthorised absence of close
to 3½ years, the State issued a charge sheet seeking to hold a
Departmental Enquiry against the respondent, but did not serve
the charge sheet against the employee on the score that the
respondent/employee was not available, but did not hold any
kind of enquiry, but imposed penalty of dismissal from service.
This comes to be challenged before the Tribunal in the
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aforesaid application. The Tribunal, by its detailed order,
observes that a law does require holding of an enquiry and
enquiry for which a charge sheet ought to have been issued to
the respondent. The factum of charge sheet not being served
upon the respondent is an admitted fact. In that light, the
Tribunal allows the application. The allowing of the application
has driven the State before us in the subject petition.
4. The learned HCGP Smt. Girija Hiremath appearing
for the petitioner/State would vehemently contend that a
teacher, who does not attend duties for 1004 days, directs the
assistant to conduct classes on her behalf. If this misconduct is
condoned, it would be putting a premium upon the act of the
respondent. Therefore, the learned HCGP would seek setting
aside the order of the Tribunal.
5. The learned counsel Sri. Chandrakant Goulay
appearing for the respondent would submit that the order of
the Tribunal does not suffer from any perversity for this Court
to interfere, as it is an admitted fact that no charge sheet or
charge memo is issued against the respondent. Without
issuance of a charge memo directly the penalty of dismissal
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from service is imposed. Even the so-called newspaper
publication seeking to bring the charge memo to the knowledge
of the applicant was also contrary to law. Therefore, he would
seek dismissal of the petition.
6. We have given our anxious consideration to the
submissions made by the respective learned counsel.
7. The afore-narrated facts are not in dispute. They in
fact lie in a narrow compass at this juncture. As the respondent
is undoubtedly a permanent employee and to terminate a
permanent employee be it on any misconduct, it cannot be at
the whim or fancy but in accordance with the Rules that govern
the conduct of a Departmental Enquiry and resultant penalty.
In the case at hand, the charge sheet is not even served upon
the respondent. Non-service of the charge sheet is too well
settled principle of law that would vitiate the entire proceedings
in the light of judgment of the Apex Court in the case of
UNION OF INDIA & OTHERS V. DINANATH SHANTARAM
KAREKAR & OTHERS reported in 1998 (7) SCC 569 .
8. The Apex Court holds that a charge memo that is
kept ready and in the drawer of the table of the employer
would not become service of notice, but it should be actually
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served. If it is not actually served, the entire enquiry would
vitiate, as the very beginning is contrary to the principles of
natural justice. The Tribunal holding that the charge sheet was
never served and therefore, it is in violation of natural justice
has passed the following Order:
6. From the pleadings it is clear that the
“
applicant being the teacher has challenged the order
dated 27.12.2012 passed by 4th respondent in
dismissing the applicant from services which is based on
allegations. The case of the applicant is that the
respondent authorities before passing the order not
complied with the principles of natural justice as she
was not served with notice, not provided with any of the
opportunity as required under law and also stating that
the action of the authorities is contrary to law by urging
that CCA Rules provides a procedure for conducting the
proceedings, said procedure is not followed. The
applicant urged that respondents have not served the
show cause notice on her without service of show cause
notice action is taken dismissing her from the service
and the same is contrary to law. The said contentions of
the applicant is considered with reference to the
pleadings and records it is clear that applicant is
dismissed from service based on the allegations. From
records it is clear that the applicant is not served with
the notice / show cause notice informing about the
allegations, such an action on the part of the authorities
is not permissible as the same is in violation of
principles of natural justice. The apex court in National
Central Co-operative Bank Ltd. -Vs- Ajay Kumar
[1999 Supp (3) SCC 406: AIR 1994 SC39:1993 Lab I C
2663] in which it is held that "no adverse order can be
passed against a party without giving it an opportunity
to place its case". From this it is clear that any order
passed without providing opportunity by serving charge
memo/ articles of charges is illegal. The Apex Court in
the case of Union of India & Others -Vs- Dinanath
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Shantaram Karekar & others [(1998) 7 SCC 569] at
para-10 held as hereunder:
10. Where the disciplinary proceedings are
intended to be initiated by issuing a charge-sheet,
its actual service is essential as the person to
whom the charge-sheet is issued is required to
submit his reply and, thereafter, to participate in
the disciplinary proceedings. So also, when the
show-cause notice is issued, the employee is
called upon to submit his reply to the action
proposed to be taken against him. Since in both
the situations, the employee is given an
opportunity to submit his reply, the theory of
"communication" cannot be invoked and "actual
service" must be proved and established. It has
already been found that neither the charge-sheet
nor the show-cause notice were ever served upon
the original respondent, Dinanath Shantaram
Karekar. Consequently, the entire proceedings
were vitiated."
7. From the above it is clear that actual service
of charge sheet is required, whereas in this case, there
is no service of notice as held by the Apex Court, on the
other hand, from the order there is a mention regarding
effort is made by sending by post same was not served
and also stated that because of correct address is not
available, in view of the same, it is clear that the
respondents have not served the show cause
notice/articles of charges as held by apex court in
Dinanath's case referred supra, on the other hand has
stated that the show cause notice is published in a
newspaper, in view of the same, it is required to see
that whether the said publication in one newspaper is
sufficient and the same is as per the rules or not. The
Hon'ble Apex Court has held that the notice is required
to be served actually and theory of service is not
applicable to the show cause notices, even then on
considering with reference to the rule position, as per
the rules the service of notice can be done by publishing
in two leading newspaper, which is as provided under
Rule 28A of CCA Rules, that being the requirement as
provided there in publication in two leading newspapers
is the requirement, when the rules provide a
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requirement and procedure such a requirement is fully
required to be complied to enable to consider that
whether the same is a service or not. In this regard the
Tribunal in the case of S. Vijay Kumar -Vs- The State
of Karnataka & Others [A.No.4819/2012 decided on
28.08.2017] considered at paras 9, 10 and 11 as
follows:
"9. It is admitted by the respondents in the
reply statement that the show cause notice was
published only in one newspaper, though Rule 28-
A(2) of the CC & A Rules mandates that it should
be published in two newspapers with wide
circulation. Rule 28-A of the CC & a Rules reads as
follows:
"28-A. Service of order, notices, etc.-
(1) Every order, notice and other process
made or issued under these rules shall be
served in person on the Government servant
concerned or communicated to him by
registered post.
(2) Where the Government servant refuses to
receive, or keeps out of the way for the
purpose of avoiding the services of such order,
notice or other process the same may be
served by affixing a copy thereof on the notice
board of the office of the Disciplinary Authority
or of the Inquiring Authority and upon some
conspicuous part of the house if any, in which
he is known to have last resided, or by
publication in two daily newspapers having
wide circulation in the State." (underline
supplied)
It is very clear form the above rule that when the
recourse is taken to invoke special provision under Rule
14(ii) of the CC & A Rules, it newspapers having wide is
necessary that such notice be published in two daily
circulation in the State in terms of Rule 28- A(2) of the
CC & A Rules. Therefore, the applicant has made out a
very strong case. that the mandatory provision of Rule
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28- A(2) of the CC & A Rules has not been complied
with before passing the impugned order. Hence, to that
extent there is clear violation of the procedure under
the CC & A Rules. The applicant had also raised this
issue of not publishing the notice in two newspapers as
required under Rule 28A (2) of the CC & A Rules before
the Appellate Authority, i.e. the 1st respondent.
However, the 1st respondent has not dealt with this
issue and the applicant's appeal has been rejected vide
the order dated 21.07.2012.
10. We have also gone through the judgment of the
Hon'ble Supreme Court in Dinanath Shantaram
Karekar's case supra. The Hon'ble Supreme Court in
para 4 has held follows:
"4. So far as the service of show cause notice
is concerned, it also cannot be treated to have been
served. Service of this notice was sought to be
affected on the respondent by publication in a
newspaper without making any earlier effort to
serve him personally by tendering the show cause
notice either through the office peon or by
registered post. There is nothing on record to
indicate that the newspaper in which the show
cause notice was published was a popular
newspaper which was expected to be read by the
public in general or that it had a wide circulation in
the area or locality where the respondent lived. The
show cause notice cannot, therefore, in these
circumstances, be held to have been served on the
respondent. In any case, since the very initiation of
the disciplinary proceedings was bad for the reason
that the charge sheet was not served all
subsequent steps and stages, including the
issuance of the show cause notice would be bad."
11. We agree with the contention of the
learned Counsel for the applicant that publication of
show cause notice in Sanje Vani was not sufficient
to meet the requirement of Rule 28-A of the CC and
A Rules since the said newspaper is only an evening
newspaper. We are not convinced that it has wide
publication in the State. Therefore, we are of the
opinion that the ration of the decision of the
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Hon'ble Supreme Court in Dinanath Shantaram
Karekar's case supra is squarely application to the
present case. In view of the non-compliance of the
mandatory provision dealing with the service of
notice and articles of charges, we are inclined to
allow the application.
8. From the records it is clear that applicant was
dismissed from service by an order dated 27.06.2012,
The said order is challenged in this application. The
applicant has urged that the order passed by the
respondent is without serving notice and passing order is
opposed to law. The applicant has urged that the order
passed is in violation of principles of natural justice as the
same is passed without serving charge memo/articles of
charges as respondents have not communicated any
notice or provided with any of the opportunity as required
under law. The action of the respondents is in utter
contravention of CCA Rules. The applicant referred to the
decision of Hon'ble Supreme Court in the case of Union
of India -Vs- Dinanath Shantaram Karekar & Others
[(1998) 7 SCC 569] Para 4 and 10 in which it is held that
the show cause notice is required to be served personally.
Further, he relied on the judgement rendered by the
Tribunal in the case of Tribunal in A.No.4819/2012
decided on 28.08.2017 (S. Vijaykumar - Vs- State of
Karnataka & Others) wherein it is held that as required
under Rule 28-A of CCA Rules, it is necessary to publish
notice in two leading papers, wherein notice is published
in one newspaper thereby the same in violation of Rules.
The applicant also referred to the other judgements for
the proposition that passing of order without holding
enquiry even though the enquiry is required. Further it is
vehemently argued that the applicant is not served with
any notice or anything, thereby said action is erroneous,
arbitrary and contrary to law.
9. From the said decision its clear that the
requirement as provided under rule is mandatory, in the
absence of that an action is illegal. With regard to
following procedure is considered by the Apex Court in
the case of Babu Varghese -Vs- Bar Council of India
[(1999) 3 SCC 422] at para 31 held as follows:
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"31. It is the basic principle of law long settled that
if the manner of doing a particular act is prescribed
under any statute, the act must be done in that
manner or not at all. The origin of this rule is
traceable to the decision in Taylor v. Taylor1 which
was followed by Lord Roche in Nazir Ahmad v. King
Emperor2 who stated as under:
"[W]here a power is given to do a certain thing
in a certain way, the thing must be done in that
way or not at all."
Further, the Apex Court considered similarly in Brajendra
Sing Yambem -Vs- Union of India & another [(2016) 9
SCC 20], held that "it is a well-established principle of law
that if the manner of doing a particular act is prescribed
under any statute then the act must be done in that
manner or not at all". From the said well- established law,
it is clear that the service of notice by publishing in two
newspapers as required under the Rule 28-A is mandatory
thereby such an action in publication in one newspaper is
not a service, under the circumstances, it is required to
hold that the applicant is not served with notice, thereby,
the action of the respondent No.4 in passing the order
dismissing the applicant from the services without service
of notice is illegal.
10. The applicant also urged by referring to various
judgements that even though if it is considered that the
notice served, then the enquiry is required to be
conducted by examining witness to prove the allegations.
In this regard referred to the judgement rendered by the
Apex Court in State of Uttar Pradesh & Others -Vs-
Saroj Kumar Sinha [(2010) 2 SCC 772] and the
judgement of the Tribunal in Dixit. S.K-Vs- State & Others
[2009 KSLJ 1160] for proposition that even when
government servant remains absent in the enquiry, it
does not dispensed with following the procedure
contemplated under the Rules and requirement of
recording evidence, when charges have not been
admitted by the employee. That being the requirement
under law, the respondents without examining any
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witness or any thing mechanically passed the order, even
on considering this aspect also the order passed by the
respondent No.4 is contrary to law.
11. Viewed from any angle on considering the records
it is clear that action of the respondents in passing the
order dismissing the applicant from the service is contrary
to law. In view of undisputed materials on record, it is
required to be held that the said action of respondent is
contrary to law and same is violative principles of natural
justice, thereby, the order required to be interfered with.
The applicant by a letter dated 22.01.2013 (Annexure-
A18) has mentioned that she came to know that she is
dismissed, after the suspension order she is not in receipt
of any notice or enquiry notice and she is suffering from
ailment and facing hardship requested to take her on
duty. Subsequently representations have been submitted
on 19.03.2013 (Annexure-A19 & A20) mentioning that
because of the ailment to her eyes, she could not able to
attend duties, has produced the documents in that regard
has requested for consideration of her case
sympathetically by modifying the order of dismissal to
that of compulsory retirement same was not considered,
on the other hand by a communication dated 12.09.2013
(Annexure-A21) which was rejected on the ground that
same is submitted after 90 days. In view of that, after
obtaining the copies under Right to Information Act, the
Applicant has approached the Tribunal, thereby it is clear
that the authorities are aware that applicant is dismissed
from service without serving charge memo and without
affording opportunity, knowing the said fact, even though
the applicant has pleaded, without considering has
communicated the applicant. On considering all these
aspects the action of the respondents in passing the order
dismissing applicant from the services call for
interference, therefore, applicant succeeds in this
application. Hence the following:
O R D E R
The application is allowed. The order bearing
No.E4/PraShaShi/KaLoKa/ Sandarshan/Viva / 49/ 2019-
10 / 1501 dated 27.06.2012 (Annexure-A25) passed by
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the 4th respondent, is set-aside. The applicant is entitled
for all the consequential benefits.
The respondents are directed to reinstate the
applicant into service.
This exercise shall be completed within a period of
2 months from the date of receipt of a copy of this
order.
However, the authorities at liberty to take action
against the applicant, if they desire, in the
circumstances. ”
9. In the light of the reasons rendered by the Tribunal
and the admitted fact of the charge memo not being served
upon the respondent, there is no warrant of interference with
the order of the Tribunal. The petition lacking merits stands
rejected .
Sd/-
(M.NAGAPRASANNA)
JUDGE
Sd/-
(HEMA KULKARNI)
JUDGE
JTR
CT: ASC
List No.: 1 Sl No.: 4