Allowed

S Somalingaiah v. State of Karnataka

Karnataka HC13 Oct 2020WP/10493/2018

Case brief

AI extract

What is this about?

The High Court held that disciplinary proceedings against a retired employee initiating after the alleged incidents which occurred over four years prior were without jurisdiction. The writ petition was allowed, and the impugned orders were quashed.

What did the court decide?

The writ petition is allowed; the impugned orders dated 04.05.2017 and 26.07.2017 are quashed, and the petitioner is to be released all terminal benefits.

S Somalingaiah Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.10493/2018 (S-R)

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BETWEEN

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S. SOMALINGAIAH S/O SHIVALINGAIAH AGED 62 YEARS R/AT C/O KAVYA.T NO.2128/Q, I FLOOR VIJAYANAGAR, IV STAGE II PHASE, MYSORE-570032

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... PETITIONER

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(BY SRI NARAYANA BHAT.M, ADVOCATE (VIDEO CONFERENCING))

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AND

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STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF MUNICIPAL ADMINISTRATION VIKAS SOUDHA BENGALURU-560001

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THE DIRECTOR MUNICIPAL ADMINISTRATION 10^TH FLOOR, VISWESWARAIAH TOWERS PODIUM BLOCK BENGALURU-560001

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MYSORE CITY CORPORATION REP. BY ITS COMMISSIONER SAYYAJI RAO ROAD MYSORE-570024

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SRI R.S. PATIL ENQUIRY OFFICER & RETIRED DISTRICT JUDGE NO.761, 14^TH MAIN ROAD 16^TH CROSS, JUDICIAL LAYOUT ALLALASANDRA, GKVK YELAHANKA BENGALURU

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... RESPONDENTS

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(BY SRI VENKAT SATYANARAYAN.A, HCGP FOR R1 & R2 (PHYSICAL HEARING); SRI MOHAN BHAT, ADVOCATE FOR R3 (ABSENT) R4 – SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINING TO THE CASE OF THE PETITIONERS AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in this writ petition has called in question the proceedings of the government dated 21.03.2017 and the charge sheet issued against the petitioner on 04.05.2017.

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Brief facts of the case leading to the filing of

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the present petition are that, the petitioner was appointed as a peon on 26.03.1977 in the Mysore City Corporation (hereinafter referred to as ‘Corporation’ for short) and was subsequently promoted to the cadre of Attender and later to the cadre of Second Division Assistant. Having regard to the degree of Engineering that he possessed, he was promoted as a Draftsman with effect from 01.07.1995 and as a Junior Engineer with effect from 06.02.2004. The petitioner retired from service on attaining the age of

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superannuation on 31.10.2016 in the cadre of Junior Engineer.

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Just before the retirement of the petitioner,

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the Commissioner of the Corporation had addressed a letter recommending initiation of disciplinary proceedings against the petitioner. On receipt of the said recommendation, the State Government by a communication dated 21.03.2017 directed the second respondent to initiate proceedings against the petitioner for alleged misconduct in terms of Rule 214(1)(a) of the Karnataka Civil Services Rules (hereinafter referred to as ‘the said Rules’ for short).

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Pursuant to the aforesaid communication,

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the second respondent issued a charge sheet against the petitioner on 04.05.2017. The petitioner submitted his reply to the charge sheet on 24.06.2017 contending that he is a retired employee and the

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charge sheet is seeking to enquire into the incidents of 2006 and 2008 which is clearly barred under the said Rules. Notwithstanding the reply of the petitioner, an Enquiry Officer was appointed by an order dated 26.07.2017 seeking to conduct enquiry in terms of the aforesaid charge sheet. The petitioner filed an application before the Enquiry Officer contending that the initiation of the proceedings was contrary to the Rules. The Enquiry Officer rejected the application filed by the petitioner on 09.01.2018. It is at that stage, the petitioner has filed the writ petition challenging the communication dated 21.03.2017 and the charge sheet dated 04.05.2017.

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Heard the learned counsel Sri. Narayana Bhat appearing for the petitioner and Sri. Venkat Satyanarayan A, HCGP appearing for respondent Nos.1 and 2 and perused the material on record.

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The learned counsel Sri. Narayana Bhat,

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would contend that the initiation of enquiry is completely barred under Rule 214 of the said Rules as the incident sought to be enquired into are of the year 2006 and 2008. As could be seen from the charge sheet and the proceedings if allowed to continue would be a proceeding without jurisdiction.

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On the other hand, the learned HCGP

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appearing for the first and second respondents would contend that the recommendation for initiation of proceedings was on 17.10.2016 when the petitioner was in service and hence would contend that would be

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the date of initiation of disciplinary proceedings against the petitioner and what is challenged is a charge sheet, which this Court in exercise of its writ jurisdiction would rarely interfere at this stage.

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8. I have given my anxious consideration to

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the respective submissions made by the learned counsel and perused the material on record. In furtherance thereof, the following points arise for my consideration:

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1. Whether disciplinary proceedings commenced on the date on which the recommendation was made by the corporation on 17.10.2016 when the petitioner was in service?

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2. Whether the disciplinary

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proceedings initi ated have a sanction in law?

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9. Re.Point No.1

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9.1. The petitioner retired on attaining the age

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of superannuation on 31.10.2016, a recommendation was made for initiation of proceedings on 17.10.2016

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about a fortnight before the petitioner retired. A mere recommendation for initiation of proceedings cannot amount to initiation of disciplinary proceedings. It is trite law that the disciplinary proceedings commence

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only on the date on which the charge sheet is issued against the Government servant, not on the day on which a recommendation for such initiation is made. In the case on hand, the charge sheet would issue only on 04.05.2017 in furtherance of a recommendation dated 17.10.2016. Thus, the initiation of disciplinary proceedings is 04.05.2017 and not 17.10.2016 as contended by the learned counsel for the State.

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9.2. The Apex Court in the case of Union of India v. Anil Kumar Sarkar reported in (2013) 4 SCC 161 , has held as follows:

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“19. In Coal India Ltd. v. Saroj Kumar Mishra [(2007) 9 SCC 625 : (2008) 2 SCC (L&S) 321 : AIR 2007 SC 1706] this Court, in AIR para 22, has held that: (SCC p. 632, para 18)

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“18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.”

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20. In Coal India Ltd. v. Ananta Saha [(2011) 5 SCC 142 : (2011) 1 SCC (L&S) 750] this Court held as under: (SCC p. 155, para 27)

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“27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] and UCO Bank v. Rajinder Lal Capoor [(2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550] .)”

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21. We also reiterate that the disciplinary proceedings commence only when a chargesheet is issued. Departmental proceeding is normally said to be initiated only when a charge-sheet is issued.”

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In terms of the law declared by the Apex Court, disciplinary proceedings commence only on the issuance of a charge sheet. Thus, in the instant case, the disciplinary proceedings commenced only on

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04.05.2017 i.e., the date on which the charge sheet

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was issued and not any date earlier. Hence, the point No.1 is held in favour of the petitioner.

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10. Re.Point No.2:

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10.1. Having held that the disciplinary

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proceedings commenced only on 04.05.2017 i.e., the date on which the charge sheet was issued, what is required to be noticed is whether it was barred in terms of Rule 214 of the said Rules?

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10.2. The petitioner retired on 31.05.2016.

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The charge sheet which was issued on 04.05.2017 long after the retirement of the petitioner seeking to conduct an enquiry against the petitioner for incidents/events happened on 09.08.2006 and 23.06.2008. Enquiry against a retired employee can be initiated only in terms of Rule 214 of the said Rules. Rule 214(2)(b)(ii), which reads as under:

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“214. [(1)(a) Withholding or

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withdrawing pension for misconduct or negligence.- The Government reserve to themselves the right of either withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including the service under a foreign employer and the service rendered upon re-employment after retirement.

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(b) …xxx...

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(2)(a). The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the

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same manner as if the Government servant had continued in service:

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Provided that where the departmental proceedings are instituted by an authority other than Government, that authority shall submit a report recording its findings to the Government.

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(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment.

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(i) …xxx…

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(ii) shall not be in respect of any event which took place more than four years before such institution; and

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(iii) …xxx…

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(emphasis supplied)

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In terms of the afore-extracted mandate of the

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statute, disciplinary proceedings cannot be initiated against a retired employee, in respect of an event

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which has taken place more than four years prior to such initiation.

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10.3. Indisputably, the charge sheet issued on 04.05.2017 seeks to conduct disciplinary proceedings against the petitioner for incidents of 2006 and 2008 and the petitioner retired on attaining the age of superannuation on 31.05.2016. It is apposite to refer to the judgment of the Apex Court in the case of Punjab State Power Corpn. Ltd. v. Atma Singh Grewal reported in (2014) 13 SCC 666 , has held as follows:

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“1. Petitioner 1 is the Punjab State Electricity Board (PSEB); Petitioner 2 is the Chief Engineer, HRD-cum-Inquiry Officer and Petitioner 3 is the Senior Executive Engineer working in PSEB. The respondent was the employee of PSEB who retired from service, with effect from 30-4-2004. He had given the notice on 27-2-2004 for voluntary retirement which was accepted. As a result, the respondent stood voluntary retired from 30-4-

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2004. However, almost four years after his retirement i.e. on 7-1-2008, the respondent was served with the charge-sheet levelling certain allegations against him, allegedly committed between 15-5-2002 to 3-12-2002. These charges which were for the period May 2002 to December 2002 were obviously of a period much earlier than four years before the serving of the charge-sheet dated 7-1-2008 and much after his retirement when he had ceased to be the employee of PSEB.

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2. The respondent filed the writ petition in the High Court seeking quashing of the said charge-sheet on the ground that it was barred in view of Rule 2.2(b) of the Punjab Civil Services Rules Vol. II which reserves right with the Government to withhold or withdraw a pension or a part of it under certain circumstances viz. when in judicial proceedings or departmental proceedings, such an employee is found to have committed grave misconduct or negligence. It also provides for recovery of peculiar loss, if caused. However, second proviso to the aforesaid provision stipulates the time-limit within which the departmental enquiry can be instituted, in

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respect of an ex-employee if it was not stated while such a government officer was in service. The precise language of second proviso is as follows:

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“Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his reemployment—

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(i) shall not be instituted save with the sanction of the Government;

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(ii) shall not be in respect of any event which took place more than four years before such institution; and if he has retired, the event should not be more than 4 years old.

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(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service.”

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3. In the present case since the charges were of the year 2002 and

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charge-sheet was served in the year 2008, it was manifest that the alleged event took place much more than 4 years before the serving of charge-sheet and after his retirement. In this ground the learned Single Judge quashed [Atma Singh Grewal v. Punjab SEB, WP (C) No. 11836 of 2008, order dated 16-2-2009 (P&H)] the said charge-sheet dated 7-12008. The petitioners chose to file appeal before the Division Bench which has also been dismissed by the Division Bench vide impugned judgment dated 20-8-2009 [Punjab SEB v. Atma Singh Grewal, LPA No. 752 of 2009, decided on 20-8-2009 (Tri)] .

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11. After hearing the counsel for the parties we are of the opinion that in view of the aforesaid admitted facts, second proviso of Rule 2 stares at the face of the petitioner and no fault can be found in the judgment of the High Court.”

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(emphasis supplied)

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In terms of the mandate of the statute and the

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law laid down by the Apex Court in the aforesaid case,

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the very initiation of proceedings by issuance of charge sheet on the petitioner does not have a sanction in law in terms of the specific bar under Rule 214(2)(b)(ii) of the said Rules. Hence, the initiation of disciplinary proceedings against the petitioner becomes without jurisdiction. For the aforesaid reasons, point No.2 is answered in the favour of the petitioner.

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For the aforementioned reasons, the orders

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impugned in the writ petition warrants appropriate interference. Therefore, the following:

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ORDER

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1. The writ petition is allowed .

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The impugned orders dated 04.05.2017 and 26.07.2017 are hereby quashed.

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The petitioner is entitled to all consequential benefits that would flow from setting aside of the orders and the

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respondents are directed to release all the terminal benefits that the petitioner is entitled to, if they are withheld on account of pendency of the present disciplinary proceedings, within one month from the

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date of receipt of a copy of the order.

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Sd/JUDGE

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SJK

S Somalingaiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

S Somalingaiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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