Allowed

Sri K Thirthappa v. the State of Karnataka

Karnataka HC15 Feb 2024WP/14068/2021

Case brief

AI extract

What is this about?

Retired Deputy Director challenged Tribunal order upholding disciplinary penalty of recovery of over Rs.14 lakh plus withholding of 50% pension despite acquittal in a criminal case on the same evidence. Court held long unblemished service a mitigating factor, found acquittal substantially honourable, held penalty disproportionate, reduced pension withholding to 5%, retained recovery, quashed Tribu

What the court decided

AI extract

Sri K Thirthappa Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:6550-DB WP No. 14068 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF FEBRUARY, 2024 PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT AND

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THE HON'BLE MR JUSTICE G BASAVARAJA WRIT PETITION NO. 14068 OF 2021 (S-KSAT)

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BETWEEN:

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SRI K THIRTHAPPA AGED ABOUT 68 YEARS, S/O LATE JAYARAMAPPA, RETIRED DEPUTY DIRECTOR, INDUSTRIES AND COMMERCE DEPARTMENT, NO.3, KHB COLONY, NANDINI LAYOUT, BENGALURU – 560 096

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…PETITIONER

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(BY SRI. DANAPPA PRADHANAPPA PANIBHATE., ADVOCATE)

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AND:

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Digitally signed by SHARADA VANI B

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Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY THE PRINCIPAL SECRETARY, COMMERCE AND INDUSTRIES DEPARTMENT, VIKASA SOUDHA,

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BENGALURU – 560 001.

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THE UNDER SECRETARY TO GOVERNMENT COMMERCE AND INDUSTRIES DEPARTMENT, VIKASA SOUDHA, BENGALURU – 560 001.

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…RESPONDENTS

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(BY SRI.SRI.VIKAS ROJIPURA, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO THE ABOVE NAMED PETITIONER HUMBLY PRAYS THAT THE HON BLE

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COURT MAY BE PLEASED TO SET-ASIDE THE ORDER DATED 28-02-2018 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGLAURU N APPLICATION NO. 3603/2014 VIDE ANNEXURE - A BY ISSUING WRIT IN THE NATURE OF MANDAMUS OR CERTIORARI OR DIRECTION TO RESPONDENTS & ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, KRISHNA S. DIXIT.J., MADE THE FOLLOWING:

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ORDER

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Petitioner is knocking at the doors of Writ Court for assailing the Karnataka State Appellate Tribunal’s order dated 28.02.2018 whereby his Application No.3603/2014 laying a challenge to the order of Disciplinary Penalty dated 03.04.2014, has been turned down.

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Learned counsel for the Petitioner seeks to falter the impugned orders mainly on the ground of so called ‘ honourable acquittal’ granted by the Criminal Court vide order dated 08.10.2010 on the basis of the version of same witnesses & same evidentiary material in C.C.No.11869/2005; the Criminal Appeal No.85/2011 against the Acquittal Order has been dismissed by the Fast Track Court, Bengaluru on 10.03.2014. That being the position, counsel submits, his client ought to have been

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absolved from the D.E. He also argues that the penalty of recovery of lakhs of rupees coupled with with-holding of 50% of pension is much on the higher side and therefore even if the finding of guilt is retained, the same needs to be scaled up. The Petitioner has put in a long & spotless service of more than three decades and this aspect ought

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to have figured as a mitigating factor. So arguing, he seeks allowing of the Writ Petition.

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Learned AGA appearing for the Respondents

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drawing attention of the Court to the proceedings of criminal case and the Disciplinary Enquiry, opposes the Petition. He contends that the jurisdiction of this Court being supervisory under Article 227, a roving enquiry cannot be undertaken. Law is well settled that despite acquittal in a criminal case, Disciplinary Enquiry is permissible. He repels the contention of the ‘hounourable acquittal’ since several of prosecution witnesses had turned hostile. Lastly, he contends that what punishment should be awarded for a proven misconduct is a matter

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left to the prerogative of the Disciplinary Authority and in the absence of extraordinary circumstance, courts would not grant interference. So contending, he seeks dismissal of the Writ Petition.

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Having heard the learned counsel for the parties and having perused the Petition papers, we are inclined to grant a limited indulgence in the matter as under and for the following reasons:

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A) Petitioner has put in a long & spotless service of more than three decades, barring the black spot at hands now, is not in dispute; having attained the age of superannuation, he has now retired and spending the evening of life. Ordinarily, long & spotless service of a retired employee figures as a mitigating factor while awarding punishment in a Disciplinary Proceeding. Neither the Disciplinary Authority nor the Tribunal has adverted to this aspect of the matter. This is a the first lacuna apparent on the face of the record.

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B) The charge framed against the Petitioner in CC No.11869/2005 and in the Disciplinary Proceedings was the same. Same set of same witnesses was examined both in the criminal proceedings and in D.E., as per the records. Even the evidentiary material also to a large extent, was same. The order of Criminal Court was entered after a full fledged trial in which, as many as 24 witnesses had deposed and 51 documents were marked from the side of prosecution. True it is that the Criminal Court in so many words has not said that it was a case of ‘ honourable acquittal’ or the like . A distinction between honourable acquittal and regular acquittal is wafer thin. The Disciplinary Authority should undertake examination of the Acquittal Order of the Criminal Court, and the Criminal Court records if are produced by the delinquent employee. A bare perusal would have revealed the nature of the acquittal ie., honourable or otherwise. This has not been duly done and therefore, there is an added infirmity in the proceedings of D.E.

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C) The Criminal Court specifically has observed in its

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Acquittal Order as under:

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“g. PW3 in his cross-examination has deposed as follows:

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“It is true to suggest that the DGSD had examined all those 2,000 benches before supplying his goods. It is true to suggest that a certificate has been issued by DGSD by saying that the benches have been supplied in accordance with the specification of the invoices stating that they have issued good quality benches. It is true that payments have been made to the dealers after supply of benches on the strength of acknowledgement and quality certificate issued by DGSD. It is true that no post delivery inspection was made.”

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h. PW4 in her cross-examination has deposed that …she is not aware of the quality of the benches personally. She has further admitted in her cross-examination that as per the investments made by all the district health officers, they had received the benches as per their specifications.

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i. PW5 in his cross-examination has deposed as follows.

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“ it is true to suggest that all the 17 DHOs have certified supply of good-quality of wooden benches as per their specifications. It is true to suggest that after satisfying the DHOs reported regarding the quality of benches. I requested project director to release the fund … it is true to suggest that the DGS & D certified that the benches

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supplied by the dealer are in accordance with specification.”

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j.PW6 has admitted in his cross-examination as follows:

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“It is true to suggest that the DGS & D examined the benches and certified that the benches supplied by the Vinayaka Industries were according to the specification.”

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The findings recorded in the Criminal Court impress us

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that it was substantially a case of ‘ honourable acquittal’ and to that extent, the benefit needs to be accorded to the Petitioner. This broad view gains support from our observations made in a recent decision in W.P.No.9642/2020 (S-KSAT) between P V RUDRAPPA vs. THE STATE OF KARNATAKA & ANOTHER, disposed off on 30.01.2024.

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D) The above being said, there is also force in the

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submission of learned AGA that such a balanced order of honourable acquittal may not always grant complete relief to the delinquent employee who has been found guilty in a duly constituted D.E.; some benefit/concession needs to be granted to the delinquent employee in such

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circumstances, although he cannot go completely scathe free, unlike in a case of pure & simple honourable acquittal. It is also true that the record of the proceedings reflect only a few wooden benches were subjected to test and found not answering the specification. The Test Certificate issued by an Institution of Central Government ie., DGSD had also stated that many of these benches were in accord with the specification. However, this Certificate has been doubted and that the official issued was stated to be hand in glove with the Petitioner and therefore, his version cannot be taken as gospel truth. At this length of time, subjecting the said wooden benches to another test is nearly impossible. Nothing much is elicited by the Petitioner in his favour in the D.E. This Court cannot reappreciate the findings recorded by the Enquiry Officer as to the quality & nature of wooden benches and the amount of loss caused to the Government. Whatever

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loss has been occasioned by the delinquent act of employee needs to be reimbursed by him, as rightly

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contended by the learned AGA. Therefore, the order of

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recovery of loss cannot be faltered.

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E) However, the punishment of withholding of 50%

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of pension that too coupled with recovery of amount in a huge sum of Rs.14 lakh plus really shocks the conscience of Court. It is highly offends the doctrine of proportionality . In R (DALY) v. HOME SECRETARY,

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(2001) 2 W.L.R. Page 1622 at 1634 , it is observed as under:

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“ First the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.”

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Therefore, the punishment awarded to the Petitioner

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needs to be scaled down to make it accord with the gravity

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of guilt. We are of a considered opinion that this part of the punishment needs to be modified by directing

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withholding of 5% of the pension instead of 50%, leaving

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the direction for recovery towards loss, intact.

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In view of the above, this Writ Petition succeeds in part and a Writ of Certiorari issues quashing the Tribunal’s order with the following directions:

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i) The Order of Punishment dated 03.04.2014 is modified only to the effect that the withholding of pension shall be 5% instead of 50% and that, rest of the punishment/penalty would remain intact.

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ii) The Respondents are directed to pay back to the Petitioner excess amount recovered from pension, within three months.

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iii) Delay in refund will carry interest at the rate of 2% per mensum and the interest amount can be recovered by the State from the erring officials personally, in accordance with law.

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Costs made easy.

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Sd/JUDGE

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snb

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Sd/JUDGE

Sri K Thirthappa v. the State of Karnataka

Case brief

What is this about?

What the court decided

Sri K Thirthappa v. the State of Karnataka

Case brief

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