Allowed

M S Poojari v. the Registrar General

Karnataka HC12 Dec 2019WP/3928/2005

Case brief

AI extract

What is this about?

The High Court quashed dismissal and appellate orders due to non-application of mind and violation of departmental rules regarding consolidated penalties. The court modified the penalty to withholding of increments, reinstated the petitioner with back benefits, and ordered treatment of the interim period as suspension.

What did the court decide?

Petitioner reinstated; penalty of dismissal set aside and reduced to withholding of two annual increments; services treated as continuous from initial appointment; subsistence allowance and arrears di

M S Poojari Vs the Registrar General — Pension and Retirement Benefits | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF DECEMBER, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE P.B.BAJANTHRI

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WRIT PETITION No.3928/2005 (S-DIS)

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BETWEEN:

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SRI. M.S.POOJARI, AGED ABOUT 38 YEARS, S/O. SRI. SOMANNE, WORKING AS PEON OFFICE OF THE CIVIL JUDGE (SENIOR DIVISION), BAGALKOT. ... PETITIONER (BY SRI. P.NAVEENKUMAR & SRI. N.R.KUPPELUR, ADVOCATES) AND:

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THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA, BANGALORE.

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THE DISTRICT AND SESSIONS JUDGE, BIJAPUR.

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THE DISTRICT AND SESSIONS JUDGE, BAGALKOT.

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THE II ADDL. CIVIL JUDGE AND ENQUIRY OFFICER, BAGALKOT. ... RESPONDENTS

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(BY SMT. VEENA HEGDE, AGA FOR RESONDENTS)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH VIDE ANX. V DATED 11.12.1996 BY R2, ANNEX.Y. DT. 19.1.2004 OF THE FIRST RESPONDENT AND ANX.Z DT. 27.1.2004 OF R3 WITH ALL CONSEQUENTIAL BENEFITS,

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DIRECT THE R1 TO 3 TO REGULATE THE PERIOD BETWEEN 12.1.1996 AND 27.1.2004 UNDER RULE – 99 OF K.C.S.R. AND TO GRANT ALL CONSEQUENTIAL BENFITS FLOWING THEREFROM.

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THIS PETITION COMING ON FOR FINAL HEARING , THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In the instant petition, the petitioner has prayed for

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the following relief:

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i. Issue a writ, order or direction in the nature of certiorari, quashing the impugned order bearing Nos.(a) office order No.152/96 dated 11.12.1996 (Annexure-b) of the second respondent, (b) No.HV/E and Z/98 dated 19.01.2004 (Annexure-V) of the first respondent and (c) office order No.7/2004 dated 27.01.2004 (Annexure-Z) of the third respondent with all consequential benefits.

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ii. Direct the respondent – 1 to 3 to regulate the period between 12.01.1996 and 27.01.2004 under Rule – 89 of the K.C.S.R. and to grant all consequential benefits following therefrom;

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iii. Grant such other relief or relief’s as this Hon’ble Court deems fit to grant in the circumstances of the case in the interest of justice and equity.

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iv. ‘It is prayed that this Hon’ble Court be pleased to call for records if necessary from respondent No.1 and on perusal of the same be pleased to quash to circular bearing No.747/06 Dt. 5^th June 2006 vide

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Annexure AA and Notification bearing No.RPS. 102/2008 Dt. 8^th December 2008 vide Annexure AB both issued by the respondent NO.1 by issuing a Writ of Certiorari or Writ or Order of Direction in nature of Certiorari or any other appropriate Writ, order or Direction under article 226 and or 227 of constitution of India.

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The petitioner while working as peon in the Office of Civil Judge (Sr. Dn.), Bagalkot, 2^nd respondent placed him under suspension on 12.01.1996 pending disciplinary proceedings. On 10.11.1995 charge memo was issued. Further on 26.12.1995 and 22.03.1996, two more charge memos were issued (Annexures-C, D & E). On receipt of the charge memos, the petitioner submitted his explanation/reply on 08.12.1995, 01.02.1996 and 19.08.1996, respectively. Three enquiries were held and it was concluded on 31.10.1996. Enquiring Officer forwarded three enquiry reports to the Disciplinary Authority. On receipt of Enquiring Officer’s report, Disciplinary Authority issued three show cause notices on 11.11.1996. In this backdrop, the petitioner was

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dismissed from service on 11.12.1996. Feeling aggrieved by the order of the dismissal, he had preferred an appeal before the Appellate Authority on 05.03.1997. The petitioner’s appeal was allowed in-part on 19.01.2004. Hence, the present petition.

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Learned counsel for the petitioner vehemently

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contended that, the charges are not so serious so as to warrant imposition of penalty of dismissal from service. The Disciplinary Authority has not adhered to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, “Rules, 1957”). The Disciplinary Authority issued three show cause notices. He is required to consider and pass three independent orders under Rule 11-A, whereas a consolidated order order has been passed and dismissed the petitioner from the service. There is no provision for passing a consolidated order. It was further contended that, dismissal from service-penalty which is major penalty and

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it is attracted only in a cases where misappropriation of government funds or any serious allegations. In the present case, charges are relating to disobedience of the superiors orders. Thus, imposition of penalty of dismissal from service is disproportionate to the alleged charges. It was further contended that, the Appellate Authority while modifying the dismissal order to that of various issues like petitioner’s appointment is afresh and he is on probation, etc., on 19.01.2004, such modification of penalty is impermissible, scope of appeal consideration is explained under Rule 19 of Rules, 1957. In other words, if there is any modification of the penalty order from dismissal to that of any other penalty it should be under Rule 8(i) to (vi) in the present case. Further learned counsel for the petitioner relied on the Division Bench decision passed in W.P.No.4515/2004, Writ Appeal No.299/1997 DRP Circular dated 14.09.2001 and two punishment orders imposed against the government servants dated

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22.06.2013 and 07.06.2019 with reference to sub-Rule 7

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of Rule 99 of the Karnataka Civil Services Rules, 1958.

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Per contra, learned counsel for the respondent

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resisted the petitioner’s each of the contentions and vehemently contended that, having regard to the charges leveled against the petitioner, there is no infirmity in the order of dismissal and so also the Appellate Authority’s order. The Appellate Authority has perused the petitioner’s appeal and taken sympathetic view and ordered for a fresh appointment by imposing various conditions. Thus, the petitioner has not made out a case so as to interfere with the impugned orders.

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Heard the learned counsel for the parties.

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The crux of the matter in the present petition

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is, whether the petitioner has made out a case so as to interfere with the Disciplinary Authority’s order dated 11.12.1996 read with Appellate Authority’s order dated 19.01.2004 or not?. The petitioner was subjected to

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disciplinary proceedings on three sets of allegations, whereas Disciplinary Authority issued charge memo independently at Annexures-C, D & E for which the petitioner has filed his explanation on 08.12.1995, 01.02.1996 and 19.08.1996 vide Annexures-F to H. Disciplinary Authority issued three show cause notices pursuant to three Enquiring Officer’s report, whereas proceeded to pass order of dismissal on 11.12.1996 considering all the three show cause notices and explanation of the petitioner. Undisputedly, three enquires have been initiated and it has reached up to the stage of issuance of three 2^nd show cause notices. In which an event, Disciplinary Authority is required to pass either exoneration or penalty order on each of the charge memo read with three enquiry reports to the show cause notices and petitioner’s explanation. Rule 11-A do not provide for imposition of consolidated one penalty for three enquiries. Thus there is a non application of mind on the part of the

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Disciplinary Authority and he had deviated statutory Rules.

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The Appellate Authority modified the dismissal

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order on 19.01.2004. Paragraph No.9 of the order reads as under:

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“ 9. For the foregoing reasons, the appeal is partly allowed. The recording of findings of guilt recorded by the Enquiring Authority and accepted by the Disciplinary Authority in respect of the said charges are maintained. However, the order of dismissal of the delinquent official is hereby set aside and in lieu of the same, lesser punishment of denial of back wages and continuity of service and reduction to the minimum in the pay scale are imposed. As a consequence:

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a. The delinquent official is ordered to be reinstated without back wages or other consequential benefits and without continuity of service.

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b. The delinquent official to report for duty as peon before the District Judge, Bagalkot, within fifteen days from the date of communication of this order.

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c. The delinquent official shall be deemed to have joined the service as peon as on today at the minimum in the pay scale applicable to peons. Consequently, he shall be entitled for the salary and other emoluments with effect from the day he reports back and joins service.

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d. The delinquent official is entitled for increments in the pay scale only in respect of the service herein after rendered.

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e. The delinquent official shall be deemed to be on probation for a period of one year.

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f. the seniority of the delinquent official shall be computed from the day on which he reports for duty, in pursuance of this order.

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The order of the Disciplinary Authority stands modified in the above terms.

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By Order of the High Court of Karnataka,

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(A.S.PACHHAPURE) RESGISTRAR (VIGILANCE)”

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The aforesaid decision by the Appellate

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Authority in modifying the Disciplinary Authority’s order is contrary to Rule 8 read with Rule 25 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Rules 8 & 25 reads as under:

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“ 8. Nature of Penalties – [One or more of the following penalties] for good and sufficient reasons and as hereinafter provided, may be imposed on Government Servants, namely –

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(i) Fine in the case of Government Servants belonging to State Civil Services, Group ‘D’;

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(ii) Censure

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(iii) Withholding of increments;

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(iii-a) Withholding of promotion];

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(iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the State Government or to the Central Government, any other State Government, any person, body or authority, to whom the service of the Officer had been lent; [Note- The words “pecuniary loss” shall mean and include interest from the date of causing such loss, at eight per cent per annum on the loss caused by the Government servant]

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(iv-a) Reduction to a lower stage in the time scale of pay for a period with a specific direction as to whether or not the Government Servant will earn increments of pay during the period of such reduction with reference to the reduced pay or whether the pay shall remain constant and with a further direction whether on the expiry of the period of penalty the reduction will or will not have the effect of postponing the future increments of his pay];

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(v) Reduction to a lower time scale of pay, grade, post or service which shall, unless otherwise directed, be a bar to the promotion of the Government Servant to the time scale of pay, grade, post or service from which he was

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reduced, with or without further directions regarding-

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(a) Seniority and pay in the scale of pay, grade, post or service to which the Government Servant is reduced;

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(b) Conditions of restoration to the scale of pay, grade or post or service from which the Government Servant was reduced and his seniority and pay on such restoration to that scale of pay, grade, post or service];

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(vi) Compulsory retirement;

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(vii) Removal from service which shall not be a disqualification for future employment.

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(viii) Dismissal from service which shall ordinarily be a disqualification for future employment;

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[Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the order of the Disciplinary Authority, no penalty other than those specified in clauses (vi) to (viii) shall be imposed for an established charge of corruption].

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[Explanation 1. – For purposes of this proviso the expression “Corruption” shall have the meaning assigned to the expression “Criminal misconduct by a public servant” in Section 13 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988)]

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[Explanation 2.- The following shall not amount to a penalty within the meaning of this rule –

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(i) Withholding of increments of a Government Servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment;

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(ii) Stoppage of a Government Servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar;

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(iii) Non-promotion, whether in a substantive or officiating capacity, of a Government Servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible;

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(iv) Reversion to a lower service, grade or post of a Government Servant officiating in a higher service, grade or post on the ground that he is considered, after trial to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct (such as the return of the permanent incumbent from leave or deputation, availability of a more suitable officer and the like);

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(v) Reversion to his permanent service, grade or post of a Government Servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation;

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(vi) Compulsory retirement of a Government Servant in accordance with the provision relating to his superannuation or retirement;

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(vii) Termination of services –

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(a) of a person employed under an agreement, in accordance with the terms of such agreement; or

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(b) of a Government Servant appointed in probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or

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(c) of a temporary Government Servant in accordance with the provisions of sub-rule (1) of Rule 5 of the Karnataka State Civil Services (Temporary Services) Rules, 1967.]

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25. Consideration of appeals – (1) In the case of

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an appeal against an order of suspension, the Appellate Authority shall consider whether in the light of the provisions of Rule 10 and having regard to the

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circumstances of the case the order of suspension is justified or not and confirm or revoke the order accordingly.

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(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 8, the Appellate Authority shall consider -

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(a) Whether the procedure prescribed in these rules has been complied with, and, if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;

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(b) Whether the findings are justified ; and

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(c) Whether the penalty imposed is excessive, adequate or inadequate and after consultation with the Commission, if such consultation is necessary in the case, pass orders –

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(i) setting aside, reducing, confirming or enhancing the penalty; or

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(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;

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[Underline emphasized]

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Provided that-

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(i) the Appellate Authority shall not impose any enhanced penalty unless such authority or the authority which made the order appealed against is competent to impose such penalty;

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(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and

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(iii) if the enhanced penalty which the Appellate Authority proposes to impose is one of the penalties specified in clauses (v) to (viii) of Rule 8 and an inquiry under Rule 11 has not already been held in the case, the Appellate Authority shall, subject to the provisions of Rule 14 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry, pass such orders as it may deem fit.

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(3) In case of an appeal against any order specified in clauses (b) and (c) of Rule 18 or Rule 19 the Appellate Authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable.”

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Thus, both the Disciplinary Authority and the

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Appellate Authority have side tracked the provisions of Rule 1957. The allegations relate back to of the year 1995-

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96 and it was concluded on 11.12.1996 read with Appellate Authority’s order dated 19.01.2004. Therefore, it is not appropriate at this stage to remand the matter to the Appellate Authority to consider the appeal afresh. Moreover, imposition of penalty of dismissal from service shocks the conscious of this Court in view of the State Government policy evolved on 14.09.2001 and extract of the circular is reproduced hereunder:

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“High Court of Karnataka, Banagalore-560001.

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¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ ¸ÀaªÁ®AiÀÄ ¸ÀÄvÉÆÛÃ¯É

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¸ÀASÉå: ¹D¸ÀÄE 18 ¸ÉÃE« 2001, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ 14£ÉÃ ¸É¥ÀÖA§gï 2001

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PÀæªÀÄ	¸Á©ÃvÁzÀAvÀºÀ DgÉÆÃ¥ÀzÀ	«¢ü¸À§ºÀÄzÁzÀAvÀºÀ zÀAqÀ£É
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ªÉÄÃ°£À ¥ÀnÖAiÀÄ°è £ÀªÀÄÆ¢¸À¯ÁzÀ ¥ÀæPÁgÀtUÀ¼ÀÄ GzÁºÀgÀuÁvÀäPÀ (illustrative) DVªÉAiÉÄÃ ºÉÆgÀvÀÄ, CªÀÅUÀ¼ÀÄ ªÁå¥ÀPÀªÁV (exhaustive) EgÀÄªÀÅ¢®è. CªÀÅUÀ¼À°è ¸ÉÃj¸ÀzÉÃ EgÀÄªÀ ¥ÀæPÀgÀtUÀ¼À°è AiÀiÁªÀ zÀAqÀ£ÉAiÀÄ£ÀÄß «¢ü¸À§ºÀÄzÉ£ÀÄßªÀ §UÉÎ, ¸ÀA§A¢ü¹zÀ ²¹Û£À ¥Áæ¢üPÁgÀ, CªÀÅUÀ¼À£ÀÄß UÀªÀÄ£ÀzÀ°èlÄÖPÉÆAqÀÄ wÃªÀiÁð¤¸À¨ÉÃPÀÄ.

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¸ÀPÁðgÀzÀ J¯Áè ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðUÀ¼ÀÄ, PÁAiÀÄðzÀ²ðUÀ¼ÀÄ ªÀÄvÀÄÛ E¯ÁSÁ ªÀÄÄRå¸ÀÜgÀÄ F ¸ÀÆZÀ£ÉUÀ¼À£ÀÄß ¥Á°¸À®Ä ºÁUÀÆ CªÀÅUÀ¼À£ÀÄß CªÀgÀªÀ D¢ü£ÀzÀ°è §gÀÄªÀ J®è £ÉÃªÀÄPÁw: ²¸ÀÄÛ ¥Áæ¢üPÁgÀUÀ¼À UÀªÀÄ£ÀPÉÌ ¥Á®£ÉUÁV vÀgÀ®Ä ¸ÀÆa¹zÉ.

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That apart, recently in the case of Shrishail

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Shivappa Koujalagi Vs. Inspector General of Police,

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North Zone, Belagavi and others reported in 2019 (1)

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AKR 43 , paragraph 16 reads as under:

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“16. The procedure adopted by the Disciplinary Authority confirmed by the Appellate Authority affirmed by the KAT shocks our judicial conscious, when similar charge memos issued to the two Police Officer; one to the PSI/present petitioner and another to CPI and when the objections filed by both the officers are identical and verbatim, exonerating the CPI and imposing penalty on the petitioner by withholding one increment is contrary to the law. The Disciplinary Authority cannot single out the petitioner when the charge memos were issued against the two officers and the way in which the punishment is imposed on the petitioner definitely demoralize the police force in the State that too to a lower Rank Officer.”

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In view of the aforesaid reasoning, orders of the

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Disciplinary Authority and Appellate Authority dated 11.12.1996 and 19.01.2004 respectively, are modified in imposing the penalty of withholding of two annual increments without cumulative effect in terms of the circular dated 14.09.2001. Further the petitioner is

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entitled to all consequential benefits except withholding two annual increments which were due to him from 1997 onwards as if he was in service from the date of dismissal i.e. 11.12.1996. The concerned respondent is hereby directed to treat the petitioner’s services from 11.12.1996 to till re-instatement into service pursuant to the order dated 19.01.2004 as a suspension only and he is entitled to subsistence allowance for time being. In view of the Supreme Court’s decision in the case of Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others , reported in (1993) 4 SCC 727 , wherein, it is held that, penalty order is set aside on technical ground, in such an event an employee is deemed to be under suspension till passing of a afresh order. In the present case a fresh order was passed on 19.01.2004, whereby the petitioner has been re-instated. Therefore, till re-instatement he is entitled to subsistence allowance only. He is entitled to restore the pay scale as if he was appointed on 05.02.1990 i.e. initial appointment. The

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concerned respondent is hereby directed to regulate suspension period in terms of Rule 99 of KCS Rules, grant increment from time to time and also pay arrears. If the petitioner is entitled for any revision of pay scale from time to time, the same shall be carried out and difference of monitory benefits shall be accorded. The above exercise shall be completed within a period of six months from the date of receipt of this order.

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Accordingly, the writ petition is allowed.

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Sd/JUDGE

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*Svh/-

M S Poojari v. the Registrar General

Case brief

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M S Poojari v. the Registrar General

Case brief

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