Dismissed

Dr C H Ramesha v. the State of Karnataka

Karnataka HC22 Oct 2020WP/13627/2018

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition challenging an order denying salary and service benefits during a suspension period. The petitioner, a lecturer, was deemed suspended due to criminal custody but later acquitted. The Court held that since the criminal case was not initiated at the management's behest, the petitioner earns nothing during this period, applying the principle of 'no w

What did the court decide?

The writ petition was dismissed, holding that the petitioner is not entitled to service benefits for the suspension period.

Dr C H Ramesha Vs the 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 22^ND 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.13627/2018 (S – RES)

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BETWEEN

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DR.C.H.RAMESHA S/O LATE HUCHAIAH, AGED ABOUT 54 YEARS, LECTURER, BES EVENING DEGREE COLLEGE, BENGALURU – 560 026.

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(CAUSE TITLE AMENDED AS PER COURT ORDER DATED 19.06.2018)

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... PETITIONER

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(BY SRI R.P.SOMASHEKHARAIAH, ADVOCATE (VIDEO CONFERENCE))

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AND

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THE STATE OF KARNATAKA REP. BY ITS SECRETARY, EDUCATION DEPARTMENT, M.S. BUILDING BENGALURU – 560 001.

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THE COMMISSIONER DEPT. OF COLLEGIATE EDUCATION, BENGALURU – 560 001.

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THE JOINT DIRECTOR REGIONAL OFFICE, DEPT. OF COLLEGIATE ECUCATION, BENGALURU – 560 001.

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THE SECRETARY BHARATH EDUCATION SOCIETY, JAYANAGARA, BENGALURU – 560 011.

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THE PRINCIPAL BHARATH EDUCATION SOCIETY (EVENING DEGREE COLLEGE) BENGALURU – 560 011.

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... RESPONDENTS

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(BY SRI R.SRINIVASA GOWDA, AGA FO R1 TO R3 (PHYSICAL HEARING); SRI A.S.MAHESHA, ADVOCATE FOR R4 AND R5 (PHYSICAL HEARING))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.11.2017 PASSED BY THE R-3 AT ANENX-Q 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

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question the order dated 03.11.2017 passed by the third respondent – the Joint Director, Department of Collegiate Education, by which the salary and other

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service benefits to the petitioner are denied from

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01.02.2013 to 30.06.2017.

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Filtering out unnecessary details, the facts

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relevant for the adjudication of the present dispute are as follows:

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The petitioner at the relevant point of time was working as a lecturer in the Department of Political Science at B.E.S.Evening College – fifth respondent, a college run by the fourth respondent – Bharath Education Society (hereinafter referred to as ‘the Society’ for short).

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A criminal case came to be registered against

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the petitioner in crime No.44/2011 for the offence punishable under Section 306 read with Section 32 of INDIAN Penal Code, 1860, pursuant to the complaint lodged by one Smt.Narasamma with regard to purchase of a property. The criminal case ended in

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conviction and sentence in terms of the judgment of the Criminal Court on 01.02.2013.

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Invoking Section 34 (2)(a) of the Karnataka

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Educational Institutions (Collegiate Education) Rules, 2003 (hereinafter referred to as ‘the said Rules’ for

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short) is on the ground that the petitioner on conviction, was taken into custody and placed under suspension by fourth respondent – Society. The petitioner filed an appeal before this Court in criminal appeal No.165/2013 and also filed an interlocutory application in I.A.No.1/2013 seeking suspension of the sentence of the trial Court and enlarge him, pending disposal of the aforesaid criminal appeal. This Court by its order dated 18.02.2013, allowed the aforesaid application and suspended the sentence, pending disposal of the aforesaid appeal, but did not grant stay of conviction. The criminal appeal was allowed by this Court by its order dated 01.09.2016, acquitting the

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petitioner and setting aside the order of conviction passed by the criminal Court. After the acquittal of the petitioner, the petitioner gave a representation to the fourth respondent – Society on 13.10.2016 seeking reinstatement into service.

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On the representation, the fourth respondent – Society after receipt of an approval from the Government to reinstate the petitioner, held a meeting on 24.06.2017 and passed a resolution of reinstatement of the petitioner into service with a condition that salary and other service benefits viz ., salary, increments, seniority and other service benefits that would accrue to other employees in service would not be granted.

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This resolution was again forwarded to the Joint Director by the fourth respondent – Society, who on consideration of the same has passed the

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impugned order. The order indicated that the order of suspension was passed without taking prior approval as required under the said Rules and have not conducted disciplinary action in terms of the said Rules and further directed that the pay and allowances for the suspension period is to be borne by the Society. This is reiterated in subsequent clarifications and correspondences between the State Government and fourth respondent – Society. It is this order, which is impugned in the subject writ petition.

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Heard Sri R.P.Somashekharaiah, learned

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counsel for the petitioner, Sri S. Srinivasa Gowda, learned Additional Government Advocate for first and third respondents and Sri A.S.Mahesha, learned counsel for fourth and fifth respondents.

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Learned counsel for the petitioner would

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contend that the offence punishable under Section

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306 read with 34 of IPC was not on account of his or in connection of his employment and on acquittal of the aforesaid offences, the petitioner will have to be treated as an employee in service and would become entitled to all benefits, as the fourth respondent - Society had unnecessarily placed the petitioner under suspension.

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Learned counsel appearing for the fourth and fifth respondents submits that in terms of Rule 34 of the said Rules, the petitioner is deemed to have been suspended in view of him being taken into custody on conviction and by operation of law. He would further submit that the State Government had granted permission to place him under suspension in terms of Annexure R4, dated 19.02.2013. Hence, he would contend that the order of the State Government that the Society has to bear arrears of salary and other

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service benefits, if at all the petitioner is entitled to for the aforesaid period, is erroneous.

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Learned Additional Government Advocate would contend that the State Government is not responsible to pay any amount as admittedly, the prior approval was not sought to place the petitioner under suspension, no departmental enquiry is conducted in terms of the said Rules and the Government cannot be burdened with the payment of all the benefits to the petitioner.

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I have given anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record. On an analysis thereof, the following points arise for my consideration:

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i. Whether prior permission was required to be taken before placing

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the petitioner under suspension in the facts of the case?

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ii. Whether the petitioner is entitled to all the service benefits on account of his acquittal and reinstatement on revocation of suspension?

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12. Re.Point No.i.:

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12.1. It is undisputed fact that the petitioner was

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working as a lecturer under the fourth respondent –

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Society and at the relevant point of time, a criminal case came to be registered against him in crime No.44/2011, though not in connection with his duties performed with the fourth respondent – Society, which indeed ended in passing the order of conviction by the Criminal Court by its judgment of conviction and order of sentence dated 01.02.2013. The petitioner having approached this Court in Criminal Appeal No.165/2013, filed an interlocutory application in

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I.A.No.1/2013 seeking suspension of sentence and

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enlarge him, pending disposal of the aforesaid appeal.

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12.2. This Court by its order dated 18.02.2013,

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suspended the sentence and allowed the interlocutory application, but the order of conviction still remained till he was acquitted by the judgment of this Court dated 01.09.2016. Thereafter, the petitioner gave a representation seeking reinstatement and all other service benefits. The fourth respondent passed a resolution on considering the representation and the correspondences with the State Government denying all service benefits as the Government had communicated that they are not responsible for any payment as there was no prior approval sought before placing the petitioner under suspension.

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12.3. To consider whether prior approval was

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required to place the petitioner under suspension in

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terms of Rule 34 of the said Rules, the relevant provisions of the said Rules, are required to be considered and extracted for ready reference, they read as follows:

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Rule 34 (2)(a) of the said Rules reads as follows:

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“34. Suspension:-

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(1) XXXXX

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(2) An employee shall be deemed to have been placed under suspension by an order of Appointing Authority; after given the information of the order of the private management to the controlling authority.

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(a) with effect from the date of his detention, if he is detained in custody whether criminal charge or otherwise for a period exceeding forty - eight hours;”

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Explanation (5)(a) to Rule 34(2) - An order of suspension made or deemed to have been made under this rule shall continue to remain

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in force until it is modified or revoked by the authority to do so.

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Explanation (5)(c) to Rule 34(2) – An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.”

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In terms of the aforesaid Rule, by an operation of the statute, the petitioner was deemed to have been kept under suspension by an order dated 13.02.2013, pursuant to the order of conviction in the criminal case upon which he was taken into custody and was kept in custody for more than 48 hours. On an acquittal order passed by this Court dated 01.09.2016, the petitioner was taken back to duties on 21.04.2017.

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12.4. In terms of Rule 34(2)(a) of the said

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Rules, an employee who is taken into custody for a period exceeding 48 hours is deemed to be placed under suspension from the date of his detention. In terms of Explanation (5)(a) to Rule 34(2), an order of suspension made or deemed to have been made under the said Rule shall continue to be in force until it is modified or revoked by the Authority. Explanation (5)(c) to Rule 34(2) gives power to the Authority to modify or revoke the suspension that is deemed to have been made.

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12.5. Thus, a cumulative analysis of the aforesaid Rules, makes it unmistakably clear that Rule 34(2)(a) and Explanation (5)(a) to Rule 34(2), are deeming provisions and create a legal fiction. A bare reading of the provisions make it abundantly clear that an actual order of suspension is not required to be passed but it is deemed to have been passed by

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operation of such legal fiction. Any other

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interpretation of Rule 34(2)(a) and Explanation (5)(a) to Rule 34(2), will become meaningless and purposeless rendering both the provisions otiose and superfluous. Thus, the order passed by the Government that the Society is responsible for payment of all service benefits to the petitioner who is placed under suspension on the ground that no prior permission is sought and no enquiry is conducted under the said Rules, is unfounded.

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12.6. Hence, point No.i is answered against the first to third respondents – State Government.

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13. Re.Point No.ii

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13.1. The registration of the criminal

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proceedings against the petitioner was not on account of a complaint given by the fourth respondent – Society. The petitioner was himself responsible for

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registration of a criminal case against him as it was not in the course of his employment but was on account of a property dispute and the complainant was one Narasamma, in which he was convicted for offences punishable under Section 306 read with Section 34 of IPC. Though the criminal case has ended in acquittal of the petitioner, he was out of employment for about four years between 01.02.2013 and 30.06.2017.

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13.2. It is the act of the petitioner himself that

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resulted him not becoming available to render services to the fourth respondent - Society. In a case of this nature, where the criminal proceedings are not initiated at the behest of the Society and had to be placed under suspension in terms of the operation of the statute, directing to grant all service benefits either to the Society or to the Government would be mulcting the Government and the Society for no fault

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of theirs. It is apposite to refer to the judgment of the learned Division Bench of this Court in the case of SYNDICATE BANK, BANGALORE VS A. RAGHUPATHY BHAT, reported in ILR 2005 Kar 5587, wherein it was held as follows:

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“10. The principle involved is, that when the complaint is not at the behest of the management, the management has no role to play in the criminal prosecution launched against such employee. If the case falls under sub regulation (2) by operation of law such an employee is deemed to have been placed under suspension. When he is taken to custody by the police he renders no work during this period. He is absent from work, for reasons of his involvement in the criminal case and the bank is in no way responsible for keeping him away from duties. Thus, the principle of “no work, no pay” comes into operation. Otherwise it would be inequitable to those who have to work and earn their pay.”

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In the light of the law laid down by the learned Division Bench of this Court, the facts obtaining in the case at hand, neither the Government nor the Society is required to pay any service benefits for the period when the petitioner was out of employment i.e., from 01.02.2013 to 30.06.2017, the period under suspension as the petitioner is not entitled to any service benefits for the aforesaid period.

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For the aforestated reasons and in terms of the law laid down by the learned Division Bench of this Court in the afore-extracted judgment, the petition lacks merit and it is dismissed.

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Sd/JUDGE

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nvj CT:MJ

Dr C H Ramesha v. the State of Karnataka

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Dr C H Ramesha v. the State of Karnataka

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