Dismissed

Sri.Prathap.B v. the Commissioner

Karnataka HC15 Mar 2021WA/122/2021

Case brief

AI extract

What is this about?

This High Court dismissed a writ appeal challenging the termination of an ex-BBMP employee convicted under the Prevention of Corruption Act. The Court held that termination was inevitable due to conviction and distinguished earlier precedents, allowing approach only upon acquittal.

What did the court decide?

Liberty granted to approach the employer in case the appellant is acquitted in the pending criminal appeal.

Sri.Prathap.B Vs the Commissioner — Pension and Retirement Benefits | Karnataka HC (2021)

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WA 122/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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W.A.No.122/2021 (S-DIS)

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BETWEEN:

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Sri Prathap.B., Aged about 35 years, S/o Late Balaraj, No.289, 2^nd H Cross, BBMP, 3^rd Main, 3^rd Stage, Basaveshwaranagar, Bengaluru-560 079.

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… APPELLANT

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(By Sri Prabhugouda.B.Tumbigi, Adv.)

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AND:

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The Commissioner, Bruhath Bengaluru Mahanagar Palike, N.R.Square, Bengaluru-560 002. … RESPONDENT

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This Writ Appeal is filed under section 4 of the Karnataka High Court Act, praying to allow the Writ Appeal by setting aside the impugned order dated 17.03.2020 passed by the learned single Judge in W.P.No.5965/2020 (S-DIS), etc.

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WA 122/2021

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This appeal coming on for Preliminary Hearing, this day, Satish Chandra Sharma J., delivered the following:

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JUDGMENT

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The present appeal is arising out of the order dated 17.03.2020 passed by the learned Single Judge in W.P.No.5965/2020 (Sri Prathap.B. Vs Commissioner, Bruhath Bengaluru Mahanagara Palike).

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The facts of the case reveal that the present appellant is an ex-employee of Bruhath Bengaluru Mahanagara Palike (BBMP) and on account of a complaint of allegedly demanding illegal gratification, a criminal case was registered against him at Crime No.69/2016. The undisputed facts make it very clear that a charge sheet was later on filed in the matter and thereafter he has been convicted in Spl.C.C.No.161/2017 by the LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA) Bengaluru, under the Prevention of Corruption Act, 1988. The judgment was delivered on 22.04.2019, and thereafter, the present appellant has preferred an appeal before this Court i.e. Crl.A.No.865/2019. This Court has suspended the sentence on 03.06.2019 meaning thereby, it is

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WA 122/2021

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only the sentence which has been suspended and the conviction has not been stayed. Another important aspect of the case is that the services of the employee in question were put to an end by an order dated 22.04.2019, and thereafter, the employee submitted a representation to the employer that he has not been heard in the matter. An order was passed by the employer on 30.09.2019 in the matter of grant of pay and allowances, and thereafter, again an order was passed on 30.09.2019 accepting the joining of the employee, meaning thereby, the employer on the basis of the representations of the employee has again re-considered the matter and finally the order of termination was passed on 22.11.2019.

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Learned Counsel for the appellant vehemently argued before this Court that the action of the respondents is violative of Article 311 of the Constitution of India as no opportunity of hearing had been granted to the employee in question. He has placed reliance on the judgment delivered in the case of ANNOP JAISWAL VS GOVERNMENT OF INDIA &

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ANOTHER – (1984)2 SCC 369 as well as upon the judgment

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WA 122/2021

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delivered in the case of UNION OF INDIA & OTHERS VS SUNIL KUMAR SARKAR – (2001)3 SCC 414 . His contention is that the criminal case has not attained finality as the employee in question is in appeal. Secondly, his contention is that opportunity of hearing has not been afforded to the employee in question.

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This Court has carefully gone through the pleadings and has also heard the Counsel for the appellant at length and the undisputed facts reveal that the employee in question has been convicted for the offences under Sections 7, 13(1)(d) & 13(2) of the Prevention of Corruption Act. The appeal is pending before this Court and only the sentence has been stayed.

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The statutory provisions governing the field as contained under Section 90 of the Karnataka Municipal Corporations Act, 1976, reads as under:

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“90. Punishment for Corporation officers and other employees.- (1) Every Corporation officer or other Corporation employee shall be liable to have his increments or promotion withheld or to be censured, reduced in rank,

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WA 122/2021

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compulsorily retired, removed or dismissed for any breach of any departmental rules or regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed:

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Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed:

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Provided further that the Corporation employees belonging to such classes or categories as may be prescribed by the rules shall be liable also to be fined by such authority as may be specified therein.

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(2) No such officer or other employee shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

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Provided that this sub-section shall not

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apply-

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(a) where an officer or other employee is removed or dismissed on the ground of conduct which has led to

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WA 122/2021

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his conviction on a criminal charge; or

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(b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for reasons to be recorded by the authority it is not reasonably practicable to give that person an opportunity for showing cause.

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(3) If any question arises whether it is reasonably practicable to give to any officer or other employee an opportunity of showing cause under sub-section (2) the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final.

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(4) Any officer or other employee upon

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whom a punishment has been imposed under this section may appeal to such officer or authority as may be prescribed.”

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The aforesaid provision of law makes it very clear that

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in case an employee is convicted in a criminal case, his dismissal becomes inevitable and the respondents by taking into account the aforesaid provision of law has passed the order of termination. In the present case, it has been vehemently argued that opportunity of hearing was not granted to the petitioner before putting an end to his

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services. The employee in question was terminated on 22.04.2019 pursuant to his conviction and on account of the representation submitted by the employee, an order was passed on 30.09.2019 directing payment of subsistence allowance. Thereafter, his joining was also accepted and after taking into account his conviction and representation, a final order has been passed on 22.11.2019, and therefore, the question of violation of the principles of natural justice and fair play, in the peculiar facts and circumstances of the case does not arise.

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Learned Counsel for the appellant has placed reliance on judgment of the Hon’ble Supreme Court in Anoop Jaiswal ’s case (supra). The case of Anoop Jaiswal was a case of a probationer whose services were to put to an end by passing a stigmatic order of termination simplicitor and in those circumstances, the Hon’ble Supreme Court has held that opportunity of hearing is necessary. No such contingency is involved in the present case. The present case is an open and shut case where the employee in question has been convicted for the offences under Sections 7, 13(1)(d) & 13(2)

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of the Prevention of Corruption Act. He was also given an opportunity by the employer and was reinstated back in service, and thereafter the final order was passed on 22.11.2019. Hence, no relief can be granted to the present appellant based on the judgment delivered in Anoop Jaiswal ’s case.

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Reliance is also placed on the judgment delivered by the Hon’ble Supreme Court in the case of Union of India and Others (supra). In the said case, a General Court Martial (GCM) under the provisions of Army Act, 1950, was initiated against Sunil Kumar Sarkar – the respondent therein for allegedly defrauding the Border Road Organisation and he was convicted by the GCM, and thereafter, his services were also put to an end under the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Under those circumstances, the Hon’ble Supreme Court has arrived at the conclusion that opportunity of hearing should have been granted to him. In the present case, the employee was first terminated on 22.04.2019, his representation was considered by the employer and the employer taking into account his

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conviction, has passed an order on 30.09.2019 directing payment of subsistence allowance, his joining was accepted, and thereafter the employer has dismissed the employee in question by order dated 22.11.2019.

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The Apex Court in the case of K.C.SAREEN VS CBI, CHANDIGARH – (2001)6 SCC 584 , has held in paragraphs 12 and 13 as under:

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“12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he

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should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for

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corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.

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13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.”

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In the aforesaid case, the Hon’ble Supreme Court has

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held that the Court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication

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at the appellate or revisional level, and therefore, in the light of the aforesaid judgment, the question of interference with the order passed by the learned Single Judge does not arise.

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The Writ Appeal is dismissed. However, liberty is granted to the present appellant to approach the employer in case he is acquitted in the criminal appeal which is pending before the High Court.

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Note: The documents which are in Kannada were explained by Justice S.Vishwajith Shetty to Justice Satish Chandra Sharma.

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Sd/JUDGE

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Sd/JUDGE

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Sri.Prathap.B v. the Commissioner

Case brief

What is this about?

What did the court decide?

Sri.Prathap.B v. the Commissioner

Case brief

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