Partly allowed

Executive Officer / Secretary v. Sri. Y. R. Kumar

Karnataka HC20 Mar 2023WA/3182/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka held that non-payment of subsistence allowance does not vitiate a disciplinary proceeding unless specific prejudice is pleade. The court set aside the lower court's quashing of dismissal as no prejudice was shown, but directed payment of subsistence allowance to the employee's legal representatives.

What did the court decide?

Impugned order quashing disciplinary proceedings set aside; appellant directed to pay subsistence allowance and other monetary benefits to legal representatives of deceased employee with 6% interest.

Executive Officer / Secretary Vs Sri. Y… — Pension and Retirement Benefits | Karnataka HC (2023)

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WA No.3182 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT APPEAL NO.3182 OF 2018 (S-RES)

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BETWEEN:

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EXECUTIVE OFFICER/SECRETARY SREESIDDALINGESHWARA SWAMY TEMPLE

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Digitally signed by RUPA V Location: High Court of Karnataka

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YEDIYUR, KUNIGAL TALUK

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TUMKUR DISTRICT-572 142.

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(BY SRI. A.G. GURURAJ, ADV., FOR

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SRI. PARAMESHWAR N. HEGDE, ADV.,)

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…APPELLANT

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AND:

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SRI. Y.R. KUMAR S/O RAJA NAIKA AGED ABOUT 61 YEARS SINCE DECEASED BY HIS LR'S.

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1(a) RATHNA

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W/O LATE Y.R. KUMAR AGED 52 YEARS.

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1(b) K.V. MURTHY

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S/O LATE Y.R. KUMAR AGED 36 YEARS.

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1(c) SUBBALAKSHMI

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D/O LATE Y.R. KUMAR AGED 34 YEARS.

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ALL ARE R/O YEDIRU, KUNIGAL TALUK TUMKUR DISTRICT-572142.

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THE COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENT NEAR MINT HOSPITAL, CHAMARAJPET BANGALORE-560 018.

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DEPUTY COMMISSIONER TUMKUR DISTRICT THE CHAIRMAN SREE SIDDALINGESHWARA SWAMY TEMPLE YEDIYUR, KUNIGAL TALUK TUMKUR DISTRICT-572 142.

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…RESPONDENTS

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(BY SRI. K. SRINIVASA, ADV., FOR R1 (a-c) SRI. B. RAJENDRA PRASAD, HCGP FOR R2 & R3)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 20/09/2018 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.31547/2011 AND CONSEQUENTLY DISMISS THE WRIT PETITION FILED BY THE 1ST RESPONDENT.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This intra court appeal emanates from an order

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dated 20.09.2018 passed by Learned Single Judge by which writ petition preferred by respondent (hereinafter referred to as 'the employee' for short) has been allowed

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and the disciplinary proceeding initiated against the employee, which resulted in imposition of penalty of dismissal on him has been set aside on the ground that the employee as not paid subsistence allowance during the pendency of the disciplinary proceeding. In order to appreciated the grievance of the appellants, relevant facts need mention, which are stated infra.

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Shri.Siddalingeshwara Swamy Temple placed in Yediyur is a muzrai temple, which is controlled, managed and administered by the State Government under the provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as 'the Act' for short). The employee joined the services of the temple as Second Division Assistant in the year 1975. However, during the course of an audit inspection, it was found that the employee has misappropriated an amount of Rs.98,802/- belonging to the Temple. Thereupon the

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employee was placed under suspension on 17.04.2000. The order of suspension contained a stipulation that the employee shall not leave the head quarter i.e., Hobli without prior permission.

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Thereafter, on 04.08.2000, the memorandum

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of charges was issued against the employee and the Assistant Commissioner, Tumkur was nominated as an enquiry officer. The charge sheet contained the charges relating to misappropriation of amount to an extent of Rs.98,802/-. The employee submitted a reply to the charge sheet on 04.09.2000. Thereafter, the suspension of the employee was revoked on 16.01.2002 and he was posted in Yediyur, Tumkur and after revocation of the suspension of the employee, the proceedings in the departmental enquiry were continued and three witnesses on behalf of the appellants were examined on 27.12.2002 as well as on 10.01.2003. Thereafter, the employee was examined on 05.11.2004. The enquiry

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officer submitted an enquiry report on 08.02.2005 in which charges levelled against the employee were found to be proved.

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The copy of the enquiry report was supplied to the employee and thereupon by an order dated 07.01.2006, the penalty of dismissal from services was imposed on the employee. The employee filed an appeal before the Commissioner, Hindu Religious Charitable Endowment, which was dismissed by an order dated 18.06.2011. The employee challenged the aforesaid orders in a writ petition viz., W.P.No.31547/2011. The Learned Single Judge by an order dated 20.09.2018 has quashed the order of dismissal as well as the order passed by the appellate authority dated 18.06.2011 inter alia on the ground that since, the employee was not paid subsistence allowance, therefore, he suffered a prejudice and the enquiry initiated against him is vitiated in law. The appellants were directed to pay

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subsistence allowance along with interest at the rate of 6% per annum and were further directed to reinstate the employee. Hence, this appeal.

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During the pendency of the appeal, the employee has expired and his legal representatives have been brought on record. The substantive issue in the appeal therefore, pertains to the monetary benefits, which is payable to the legal representatives of the deceased employee.

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Learned counsel for the appellant submitted that the grievance of the appellant is confined only to the extent insofar as Learned Single Judge has quashed the enquiry and has directed reinstatement of the employee. Learned counsel for the appellant has not disputed the entitlement of the deceased employee for subsistence allowance. It is submitted that until and unless, prejudice is demonstrated, a departmental enquiry cannot be held to be vitiated merely on the

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ground that the subsistence allowance has not been pleaded. In support of aforesaid submissions, reliance has been placed on decision of Hon'ble Supreme Court in STATE GOVERNMENT OF MADHYA PRADESH AND

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OTHERS VS. SHANKAR LAL', 2008 AIR SCW 115.

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On the other hand, Learned counsel for the respondent has submitted that the penalty imposed on the employee is disproportionate. Therefore, the matter should be remitted to the disciplinary authority for deciding the question of quantum of penalty imposed on the employee afresh. It is further submitted that the Learned Single Judge in the facts and circumstances of the case has rightly quashed the order of dismissal. In support of aforesaid submission, reliance has been placed on a division bench decision of this court dated 03.11.2009 in W.A.No.21/2009 ( THE SECRETARY VS.

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B.M.VIVEKNANDA).

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8. We have considered the rival submissions and

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have perused the record. The seminal issue, which arises for consideration in this appeal is whether non payment of subsistence allowance to the employee would vitiate the disciplinary proceeding against him. It is trite law that mere no non payment of subsistence allowance cannot by itself be a ground to vitiate the disciplinary proceeding. A prejudice is required to be specifically pleaded and establish as to in what way the employee was handicapped in defending himself due to non receipt of subsistence allowance. [See: U.P. STATE

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TEXTILE CORPORATION LIMITED VS.

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P.C.CHATURVEDI AND ORS., AIR 2006 SC 87]

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In the instant case, the employee was placed

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on suspension on 17.04.2000. However, on 16.01.2002, the suspension against him was revoked. Thereafter, the evidence in the departmental enquiry was recorded and

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the enquiry report was submitted. We have carefully perused the memo of appeal preferred by the employee before the Commissioner, Hindu Religious Institution and Charitable Endowment Department, Bangalore. In the memo of appeal, no where the employee has pleaded that he has suffered any prejudice on account of non receipt of subsistence allowance. Similarly, in the writ petition preferred before this court also, the employee no where has pleaded that on account of non payment of subsistence allowance, he was handicapped in defending himself in the disciplinary proceeding. On the contrary, from perusal of the record, it is evident that the employee has remained present on every date in the departmental enquiry proceeding and has cross examined witnesses adduced on behalf of the appellant.

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The employee has adduced the evidence in the disciplinary proceeding. Therefore, for the

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aforementioned reasons, the finding recorded by the Learned Single Judge that the disciplinary proceeding

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as well as the punishment imposed on the employee is vitiated on the ground that subsistence allowance was not paid to him cannot be sustained.

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So far as the submission made by Learned counsel for the appellant that the punishment on the employee is disproportionate and therefore, the matter be remitted to disciplinary authority to consider the quantum of penalty afresh is concerned, suffice it to say that since, the employee has already expired, therefore, the question of remand does not arise. The reliance placed on division bench decision of this court in THE SECRETARY supra is misconceived as in the aforesaid judgment, a division bench of this court had recorded a finding that out of the two charges, one chare was not against the employee in that case. Therefore, the matter was remitted for consideration afresh to the disciplinary authority. In the instant case, the charges levelled against the employee have been found to be proved.

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Therefore, the question of remand of the

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matter to the disciplinary authority does not arise. For the aforementioned reasons, the impugned order dated

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20.09.2018 passed by Learned Single Judge in W.P.No.31547/2011 insofar as it quashes the disciplinary proceeding as well as the punishment imposed on the employee is hereby set aside.

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The appellant is directed to pay the amount of subsistence allowance to the legal representatives of the deceased employee along with interest at the rate of 6% per annum within a period of two months from today. In addition, the appellants shall also pay all the monetary benefits to the legal representatives to which the deceased employee may be entitled to within a period of two months from the date of receipt of a copy of this order.

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