Partly allowed

Sri M C Hombalaiah v. the State of Karnataka

Karnataka HC4 Jan 2022WP/54767/2016

Case brief

AI extract

What is this about?

Petitioner, a retired revenue inspector, challenged an order withholding 50% of his pension for bribery. Court held that while guilt finding stood, penalty was excessive. Held that 25% withholding is appropriate balance for misconduct considering long service and near acquittal.

What did the court decide?

Penalty of withholding 50% pension reduced to 25%; respondents directed to refix pension and terminal benefits with effect from 01.06.2012.

Sri M C Hombalaiah Vs the State of Karnataka — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.54767 OF 2016(GM-KLA)

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BETWEEN:

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SRI.M.C.HOMBALAIAH, AGED 64 YEARS, S/O LATE CHIKKAIAH, RETIRED REVENUE INSPECTOR, WARD NO.10, MAHALAKSHMIPURAM ZONE, BBMP, BENGALURU, R/O NO.1183, 2^ND CROSS, 2^ND MAIN, BSK 3^RD STAGE, HOSAKEREHALLI EXTENSION, BENGALURU – 560 085.

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…PETITIONER

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(BY SRI. SHANTA KUMAR K C, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU – 560 001.

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THE DEPUTY REGISTRAR (ENQUIRIES-5), KARNATAKA LOKAYUKTA, M S BUILDING, VIDHANA VEEDHI, BENGALURU – 560 001.

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THE ADDITIONAL REGISTRAR (ENQUIRIES – 4), KARNATAKA LOKAYUKTA, M S BUILDING, VIDHANA VEEDHI, BENGALURU – 560 001.

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THE ACCOUNTANT GENERAL IN KARNATAKA, (ACCOUNTS) (AUDIT), PARK HOUSE, BENGALURU – 560 001.

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THE BRUHATH BENGALURU MAHANAGARA PALIKE, CORPORATION OFFICES, S J P ROAD, BENGALURU – 560 002. REPRESENTED BY ITS COMMISSIONER.

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…RESPONDENTS

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(BY SRI. B V KRISHNA, AGA FOR R1 & R4; SMT. SUMANGALA GACHCHINAMATH, ADVOCATE FOR R5; SMT. MANJULA D, ADVOCATE FOR R2 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS RELATING TO CONCERNING AND CONNECTED WITH THE IMPUGNED GOVERNMENT ORDER DATED 28.09.2016 ISSUED BY R-1 VIDE ANNEX-A PERUSE THE SAME AND DECLARE AND QUASH THE SAID ORDER AS ARBITRARY, IRRATIONAL AND UNSUSTAINABLE IN LAW AND DIRECT RESPONDENT TO PAY THE PETITIONER ALL THE RETIREMENT BENEFITS PAYABLE TO HIM INCLUDING DCRG, COMMUTATION, LEAVE SALARY, ETC., WITH EFFECT FROM 01.06.2012 WITH INTEREST PAYABLE THEREON AT 12% PER ANNUM FROM 31.08.2012 MAKING AVAILABLE TO HIM ALL THE CONSEQUENTIAL MONETARY BENEFITS FLOWING THEREFROM AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARINGB GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioner, a retired public servant is grieving before the Writ Court against the Order dated 28.09.2016 a copy whereof is at Annexure – A whereby he has been levied a penalty of

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permanently withholding of 50% of his pension for the proven misconduct of bribery and corruption. The text of the

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operative portion of the impugned order reads as under:

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¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¸À¯ÁzÀ PÁgÀtUÀ¼À »£Éß¯ÉAiÀÄ°è, ²æÃ JA.¹. ºÉÆA¨Á¼ÀAiÀÄå, PÀAzÁAiÀÄ £ÀjÃPÀëPÀgÀÄ, ªÁqÀð ¸ÀASÉå: 10 , ªÀÄºÁ®Që:ä¥ÀÄgÀ ªÀ®AiÀÄzÀ ¸ÀºÁAiÀÄPÀ PÀAzÁAiÀÄ C¢üPÁj PÀZÉÃj, §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀÄºÁ£ÀUÀgÀ ¥Á°PÉ EªÀgÀ «gÀÄzÀÝzÀ PÀvÀðªÀå¯ÉÆÃ¥ÀPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ªÀiÁ£Àå H¥À ¯ÉÆÃPÁAiÀÄÄPÀÛgÀÄ ªÀiÁrgÀÄªÀ ²¥sÁgÀ¹ì£ÀAvÉ “FUÁUÀ¯ÉÃ ¢£ÁAPÀ: 31-05-2012 gÀAzÀÄ ªÀAiÉÆÃ¤ªÀÈwÛ ºÉÆA¢gÀÄªÀ PÁgÀt, PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉÃªÁ ¤AiÀÄªÀiÁªÀÄ½ ¤AiÀÄªÀÄ 214(1)(J) gÀ ¥ÀæPÁgÀ ±ÉÃ.50 gÀµÀÄÖ ¦AZÀtÂAiÀÄ£ÀÄß ¤ªÀÈwÛ ¢£ÁAPÀ¢AzÀ C£ÀéAiÀÄªÁUÀÄªÀAvÉ ±Á±ÀévÀªÁV vÀqÉ»rAiÀÄÄªÀ zÀAqÀ£ÉAiÀÄ£ÀÄß” «¢ü¹ DzÉÃ²¹zÉ.

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PÀ£ÁðlPÀ gÁdå¥Á®gÀ DzÉÃ±Á£ÀÄ¸ÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è.”

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After service of notice, the respondent Nos.1 & 4

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has entered appearance through the learned AGA; Respondent Nos.2 & 3 are represented by their Panel Advocate; similarly, 5^th Respondent – BBMP speaks through its Panel Counsel; the

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learned AGA and the learned panel advocate for the Lokayukta resist the Writ Petition making submission in justification of the impugned order; learned AGA vehemently contends that the finding of guilt having been recorded in a full fledged disciplinary inquiry and an appropriate penalty

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having been imposed, there is absolutely no scope for the interference of a Writ Court in the matter; so contending, he seeks dismissal of the Writ Petition.

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Having heard the learned counsel for the parties

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and having perused the petition paper, this court is inclined to grant indulgence in the matter as under and for the following reasons:

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(a) On the allegation of bribery of Rs.2,000/-, the departmental enquiry was held by the Addl. Registrar Enquiries-4, Karnataka Lokayukta, Bangalore; in the enquiry report dated 11.12.2015, petitioner was found to be guilty of the charge of demanding & accepting a bribe of Rs.2,000/from the complainant Sri.G.Chandrashekar on 3.8.2006 for recommending to the Tahsildar for the change of khata; the report runs into seventeen pages; a careful perusal of the same goes to show that the proceedings have been held in a fair way and after giving full opportunity to the petitioner; on the basis of evidentiary material on record, the Enquiry Officer in his accumulated wisdom has recorded a finding of guilt; that being the position, there is a lot of force in the contention of learned AGA that a Writ Court cannot undertake a deeper

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examination, in the absence of any error apparent on the face of the record; therefore, the said finding is left intact.

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(b) There is force in the submission of learned counsel for the petitioner that the petitioner has been acquitted in the Criminal Case in Spl.C.C.No.41/2007 for the offence punishable u/ss. 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 vide judgment & order dated 18.10.2011 by the Spl. Judge, Bangalore Urban District, Bangalore City; however, the said acquittal is merely an honorable acquittal since the complainant himself turned to be a hostile witness; the charge is same; the evidentiary material produced to prove the charge is also same; even the star witnesses appear to be the same persons; that being the position, this acquittal to some extent supports the case of petitioner as a mitigating factor although not for absolving him completely.

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petitioner that his client was initially appointed as SDC and later he earned two promotions, one as FDC and the other as Revenue Inspector, is not disputed; he has put in a long

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service that was spotless except the subject departmental enquiry; while imposing the penalty, the relevant factors such as the long service, progression of career in terms of promotion and a nearly honorable acquittal in a criminal case have not been given due credence by the disciplinary authority; ordinarily, Service Jurisprudence recognizes them as being the mitigating factors; to that extent, the impugned order is vulnerable for challenge.

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(d) There is yet another aspect namely the doctrine of proportionality which the Apex Court has recognized as a factor in the matter of awarding punishment vide Chairmancum-Managing Director, Coal India Limited Vs. Mukul Kumar Choudhary (2009) 15 SCC 620; pension is a periodic payment given to an employee in the evening of his life for the past service rendered during his employment; it is treated as a right and not as a bounty; even commuted pension is restored fifteen years after retirement and consequently, full pension becomes payable to the retiree vide D.S.NAKARA VS. UNION

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OF INDIA, (1983) 1 SCC 305 ; that being the position, permanently withholding of 50% of the pension appears to be disproportional to the gravity of the misconduct; it shakes the

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conscience of the court too and therefore, the same requires to be modified.

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(e) The incident happened on 3.8.2006; the criminal

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case ended in acquittal on 18.10.2011; petitioner retired from service on 31.5.2012 and now it is January 2022; thus, much water has flowed under the bridges and wisdom tells that this is not a fit case for remand; the pensioner should not be troubled during the evening of his life any longer; therefore, in these special circumstances, this court declines to remit the matter back for consideration afresh.

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In the above circumstances, this Writ Petition succeeds in part; the finding of guilt having been left intact, the penalty of withholding of 50% of pension is reduced to 25%; the rest of the matter is kept intact; the respondent Nos.1 & 4 are directed to refix the pension & terminal benefits accordingly and release the same to the petitioner, after effecting deductions, if any.

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Time for compliance is three months and if delay is brooked, petitioner shall be entitled to interest at the rate of

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1% per mensem and that the same may be recovered from the

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erring official responsible for brooking the delay.

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Costs made easy.

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Sd/JUDGE

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