Partly allowed

Smt Tulasimala v. the State of Karnataka

Karnataka HC23 Mar 2021WP/2885/2017

Case brief

AI extract

What is this about?

Petitioner's husband faced charges of misappropriation leading to pension withholding. He was acquitted criminally. Tribunal upheld dismissal of challenge. High Court set aside impugned orders, holding penalty lacked reasons and was triggered by appeal, remitting matter respondent No.1.

What did the court decide?

Impugned orders dated 01.07.2016 and 17.10.2005 set aside; matter remitted to respondent No.1 to re-consider and pass speaking order.

Smt Tulasimala Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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W.P.No.2885/2017 (S – KAT)

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BETWEEN :

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SMT.TULASIMALA W/O LATE G.KEMPANANJAPPA, AGED ABOUT 63 YEARS, R/AT # 676, VINAYA MARGA, 9^TH B CROSS, 2^ND STAGE, SIDDARTHA NAGAR, MYSORE-560011 ...PETITIONER

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(BY SRI SATYANARAYANA P. HOGADE, ADV.)

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AND :

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1 . THE STATE OF KARNATAKA REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH &

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FAMILY WELFARE DEPARTMENT, M.S.BUILDING, Dr. B.R.AMBEDKAR VEEDHI, BANGALORE-560001

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2 . THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYAT, MYSORE-570011

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3 . THE DIRECTOR OF HEALTH & FAMILY WELFARE SERVICES, ANAND RAO CIRCLE, BANGALORE-560009 …RESPONDENTS

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(BY SRI T.P.SREENIVAS, AGA.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE HON’BLE TRIBUNAL IN APPLICATION No.3321/2008 DATED 01.07.2016 (ANNEXURE-A) AND ALLOW THE APPLICATION No.3321/2008.

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THIS PETITION COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., MADE THE FOLLOWING:

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O R D E R

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The petitioner has assailed the order dated 01.07.2016 passed by the Karnataka State Administrative Tribunal at Bengaluru (‘Tribunal’ for short) in Application No.3321/2008, whereby the application filed by the petitioner has been dismissed.

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The facts relevant for the purpose of the

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present case are that the petitioner’s husband while working as a Senior Pharmacist at K.R. Hospital, Mysore, was imputed with the set of charges that he misappropriated a sum of Rs.50,146/- by forging the signatures of medical officers and Group – D employees when he was working at Primary Health Centre, Veeranagere, Mysore during the year 1990 and again he

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tried to misappropriate Rs.8,658/-. A show-cause notice was issued to him. The said charges leveled against him were denied by the husband of the petitioner. Rejecting the explanation offered by the DGO, the Enquiry Officer was appointed and enquiry was conducted. Pursuant to the enquiry report submitted by the Enquiry Officer, respondent No.2 issued a second show-cause notice dated 05.11.1999 to the petitioner’s husband and called for his explanation. The respondent No.3 issued the final order of penalty on 31.05.2000 i.e., on the date of retirement of the petitioner’s husband imposing the penalty of withholding five increments with cumulative effect ordering recovery of Rs.50,146/- from DCRG.

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The Hon’ble III Additional Civil Judge and CJM (Sr. Dn.), Mysore has passed an order on 10.03.2004 in C.C.No.6276/1998 acquitting the

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petitioner’s husband on the same set of charges. Subsequently, the petitioner’s husband challenged the

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order dated 31.05.2000 before the respondent No.1 alleging that the same was passed in a hurried manner in total violation of the Rules. The respondent No.1 has passed an order allowing the appeal in part, remitting the same to the respondent No.3 to take fresh action in accordance with law by order dated 08.07.2004. Thus, the enquiry proceedings were transferred to the respondent No.3 and the respondent No.3 passed an order dated 27.07.2004 withdrawing the punishment order dated 31.05.2000. Again the respondent No.1 issued notice dated 16.02.2005 under rule 214(1)(A) of the Karnataka Civil Service Rules to the petitioner’s husband to show-cause why a penalty of withholding of 30% of the pension should not be imposed on him, to which the petitioner’s husband filed a reply dated 05.03.2005 seeking for dropping of the proceedings. The respondent No.1 has issued the punishment order dated 17.10.2005 wherein it is ordered to withhold permanently 30% of the pension of the petitioner’s

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husband. The petitioner’s husband had preferred an appeal before His Excellency, the Governor of Karnataka at Bangalore on 26.11.2005 challenging the order dated 17.10.2005, which came to be dismissed on 29.12.2007. The petitioner’s husband filed Application No.3321/2008 before the Karnataka State Administrative Tribunal challenging the orders dated 17.10.2005 and 29.12.2007. During the pendency of the proceedings before the Tribunal, he died and his legal representatives were brought on record. The Tribunal having dismissed the application, the petitioner – wife of the deceased DGO has filed the present writ petition.

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Learned counsel for the petitioner argued

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that enquiry report reveals that there is no finding as to who has made forged signatures as alleged against the petitioner’s husband in the charge. Further he was acquitted by the criminal court on the same charge.

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Ignoring these vital aspects, on the remand made by the respondent No.1 on the appeal preferred by the petitioner’s husband, the respondent No.3 without issuing further notice to the petitioner’s husband has enhanced the quantum of penalty. It is the grievance of the petitioner that the Tribunal without appreciating these aspects, dismissed the application.

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Learned AGA appearing for the respondents justifying the impugned orders submitted that the charges having been proved and appeal preferred by the petitioner’s husband against the said order having been dismissed, the Tribunal was justified in dismissing the application.

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We have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the material on record.

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Though the learned counsel for the

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petitioner made an endeavor to submit that in view of the order passed by the Criminal Court acquitting the petitioner’s husband from the very set of charges leveled against him, action initiated by the disciplinary authority ignoring the same vitiates the proceedings, we are not inclined to accept the same since the acquittal of the DGO in a criminal proceeding is on the benefit of doubt and the same would not preclude the disciplinary authority to proceed with the disciplinary proceedings.

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It is trite law that mere acquittal in a criminal case does not entitle an employee to be absolved from the charges leveled against him. When the accused is acquitted after full consideration of prosecution evidence and the prosecution has miserably failed to prove the charges leveled against the accused, it is ordinarily said that the accused was honourably acquitted. It is well settled that the basis

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for the proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. In the departmental proceedings, where a charge relating to misconduct was being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings was also different from that required in a criminal case. In the Departmental proceedings, the standard of proof is one of preponderance of probabilities, whereas in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt.

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In the judgment of Hon'ble Apex Court in

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Capt.M.Paul Anthony Vs. Bharat Gold Mines Limited

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and another reported in (1999)3 SCC 679 , the raid was conducted on the residence of the appellant therein

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and he was placed under suspension. Disciplinary proceedings were initiated against him by issuing a charge sheet. In the interregnum period the appellant was acquitted in the criminal case with a categorical finding that the prosecution has failed to establish its case. In the meantime, the appellant was already dismissed from service on the basis of disciplinary proceedings initiated against him. The appellant had requested for stay of departmental proceedings till conclusion of criminal case on the ground that the raid conducted at his residence was also the subject matter of criminal proceedings which was not acceded to. In that context it was held that the normal distinction which is usually drawn between the departmental and criminal proceedings were not applicable in the said case since the facts and evidence in departmental proceedings and the criminal case were the same without there being any iota of difference.

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10. In the case of S.Bhaskar Reddy and

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another Vs. Superintendent of Police and another

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reported in (2015) 2 SCC 365 , the Hon'ble Apex Court considering the effect of acquittal in the criminal proceedings on departmental proceedings held that both the Tribunal and the High Court erred in not considering the undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which were similar in the disciplinary proceedings which was recorded by the trial judge on appreciation of evidence on record in honourably acquitting appellants therein while they were working in the railway police.

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Assuming that the aforesaid judgment cited

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by the learned counsel for the petitioner are not relevant herein, it is significant to note that aggrieved by the penalty order of the respondent No.3 withholding five increments with cumulative effect ordering recovery of

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Rs.50,146/- from DCRG, the petitioner’s husband had preferred an appeal before the respondent No.1 which is the genesis for the present dispute. Had the petitioner’s husband not challenged the order of punishment dated 31.05.2000, there was no scope for further proceedings by the respondents. Filing of the appeal by the petitioner’s husband has triggered the issue making him to suffer more than what the grievance he had with the penalty order, the cause for filing the appeal. The respondent No.1 on considering the appeal filed by the petitioner’s husband has remitted the matter partially allowing the appeal to take fresh action. The respondent No.3 having found that he is not competent authority to impose penalty for the reason that petitioner’s husband was retired, referred the matter to the respondent No.1 which culminated in the order dated 17.10.2005 withholding permanently 30% of the pension of the petitioner’s husband. It is unrealistic to impose the penalty enhancing the quantum of penalty

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on the appeal filed by the aggrieved person challenging the penalty order. The petitioner’s husband in his reply to the second show-cause notice issued by the respondent No.1 has categorically taken a defence that when his appeal was partially allowed as per the order dated 08.07.2004, action should be taken as per law amongst other grounds urged. Despite the same, the respondent No.1 exercising the power under rule 214(1)(A) of the KCSR (CCA) Rules has passed the order of punishment dated 17.10.2005 permanently withholding 30% of the pension amount of the petitioner’s husband.

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At this juncture, the learned counsel for the

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petitioner inviting the attention of this Court to the penalty order proposed to be made by the respondent No.1 with the concurrence of the KPSC submitted that the order of punishment dated 17.10.2005 is harsh and not proportionate to the charges leveled against the

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husband of the petitioner. Be that as it may, we are not convinced with the reasons assigned by the respondent No.1 in passing the impugned order dated 17.10.2005 (Annexure – A9). No explanation offered by the petitioner’s husband has been considered. More particularly, when the appeal filed by him was partially allowed on remittance to the respondent No.1 to take action as per law, the same ought to have been considered in accordance with law.

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It is trite that the reasons are the heart beat of an order. Any order not supported with proper and justifiable reasons is lifeless and is nullity in the eye of law. Hence, we are not inclined to subscribe to the impugned order of the Tribunal wherein the order of the respondent No.1 impugned therein has been upheld. Given the circumstances, we deem it appropriate to remit the matter to respondent No.1 to re-consider the matter in accordance with law setting aside the impugned orders.

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Accordingly, the order dated 01.07.2016

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passed by the Karnataka State Administrative Tribunal, Bengaluru in Application No.3321/2008 as well as the order dated 17.10.2005 passed by the respondent No.1 are set aside.

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The matter is remitted to the respondent No.1 to re-consider the same in accordance with law in an expedite manner and pass a speaking order giving reasons, keeping in mind the observations made hereinabove.

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Writ petition stands disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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PMR

Smt Tulasimala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Tulasimala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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