Allowed

Sadashivappa v. the Government of Karnataka

Karnataka HC21 Nov 2024WP/19268/2024

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a retired civil servant challenging a State Administrative Tribunal order that denied pension and terminal benefits pending a disciplinary enquiry. The Court held that no valid inquiry had been instituted within the four-year limitation period and that withholding benefits violated constitutional rights to life and property. The Court ordered the imm

What did the court decide?

Release of regular pension and all terminal benefits with interest and payment of exemplary costs of Rs. 50,000/-

Sadashivappa Vs the Government of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:47276-DB WP No. 19268 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI WRIT PETITION NO. 19268 OF 2024 (S-KSAT)

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BETWEEN:

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SADASHIVAPPA S/O LATE SHIVANNA, AGED ABOUT 73 YEARS, RETIRED PERSONNEL, BORN ON KARNATAKA MUNICIPAL ADMINISTRATION SERVICE, RESIDING AT NO. 308, POORVI AIRAVATHA, III MAIN ROAD, 1^ST CROSS, JUDICIAL LAYOUT, 2^ND PHASE, THALAGHATTAPURA, BENGALURU – 560 109.

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…PETITIONER

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(BY SRI. GANGADHARAPPA A V.,ADVOCATE)

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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AND:

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

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COMMISSIONER DIRECTORATE OF MUNICIPAL ADMINISTRATION, VISHVESHWARAIAH TOWER, BENGALURU – 560 001.

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…RESPONDENTS

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(BY SMT.SARITHA KULKARNI., AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER QUASHING THE ORDER DATED 06/02/2024 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU IN APPLICATION NO.438/2024, CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-A AND BE PLEASED TO ALLOW THE APPLICATION NO.438/2024 AS PRAYED FOR TRUE COPY OF WHICH IS PRODUCED AS ANNEXURE-B AND B) GRANT SUCH OTHER RELIEFS, INCLUDING COST OF THIS WRIT PETITION.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT

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and HON'BLE MR JUSTICE C M JOSHI

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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Petitioner, a retired civil servant is grieving before

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the Writ Court against the State Administrative Tribunal’s order dated 06.02.2024 whereby his Application No.438/2024 has been negatived. In the said Application, he had made the following principal prayer:

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“(a) Call for the records from respondents relating to payment of difference of pay and allowance from 21/4/1998 to 18/9/2005, earned leave benefits, Commuted leave benefits and DCRG to the applicant and be pleased to direct respondents to arrange for payment of the same with interest at 18% per

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annum and as per the representation dated 16.10.2023 which is produced as AnnexureA10.”

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Learned Sr. Advocate Mr. A V Gangadharappa

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appearing for the Petitioner vehemently argues that the pension payable to a retired employee being his right constitutionally guaranteed under Articles 21 & 300-A, non-payment of the same indefinitely for years needs to be visited with the exemplary costs coupled with a direction for payment of the accumulated and accruing pension with interest at the rate of 2% per mensum. He also submits that the Petitioner vide Representation dated 16.10.2023, had requested the Respondents to pay the differential of salary from 01.04.1998 to 18.09.2005, Earned Leave Encashment, Commutation of pension, DCRG, etc., along with interest; he complains that the same has been kept in cold storage though his client retired from service on attaining the age of superannuation on 29.02.2012 having put in a long service of more than three decades.

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The learned AGA appearing for the Respondent

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resists the Petition making submission in justification of the impugned order and the reasons assigned by the Tribunal in support thereof. She adds that the Petitioner had committed some misconduct during the tenure of his service as per the Audit Objections; he was issued a Show Cause Notice dated 26.11.2010 & 06.01.2011, to which Petitioner has replied; therefore, the Auditor General vide Letter dated 24.08.2010 had directed recovery of Rs.3,12,663/-. That being the position, the terminal benefits have been withheld in contemplation of Disciplinary Enquiry although provisional pension has been sanctioned & released. In support of her contention, she banks upon the provisions of Rules 214-A & 215-A of KCSRs, 1957.

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Having heard the learned counsel for the parties

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and having perused the Petition papers, we are inclined to grant indulgence in the matter as under and for the following reasons:

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4.1 Petitioner, admittedly was in the regular employ

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of the Government for a period of 33 years, 9 Months & 27 days. He retired from service w.e.f. 29.02.2012 on attaining the age of superannuation, which fact comes forth from the Provisional Pension Record dated 09.04.2013 issued by the Office of Accountant General (A & E) as per Annexure – A2; this document fixes Rs.13,125/per month as superannuation pension effective from 01.03.2012; it further states that a sum of Rs.4,33,125/- from DCRG and commutation value of Rs.5,15,025/- have been withheld pending enquiry. We repeatedly asked learned AGA about the particulars of ‘pending enquiry’ and no material is produced before us to show that any disciplinary enquiry of the kind was ever instituted against him. It hardly needs to be stated that under the provisions of Rule 214 of KCSR, a disciplinary enquiry is deemed to be instituted when the Show Cause Notice cum Articles of Charge has been served on the delinquent employee. That has not happened in this case, to our bewilderment. Some exchange of interdepartmental

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letters such as, the ones dated 24.08.2010 & 09.04.2013 between the office of Accountant General & the Directorate of Municipal Administration, cannot be construed by any stretch of imagination as amounting to Charge Memo. Similarly, the other letter dated 18.08.2012 addressed by the 2^nd Respondent to the 1^st Respondent about the intended finalization of claims for payment of arrears of salary would not amount to initiation of disciplinary enquiry. Delay defeats justice & equity and that would enure to the benefit of retiree.

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4.2 The fact remains that till date, no enquiry has been instituted against the Petitioner, who demitted the office on 29.02.2012 on attaining the age of superannuation. Now he is aged more than 72 years and thus, has been in the evening of life. No enquiry can now be instituted for the alleged lapses because of 4 year limitation enacted in the provisions of Rule 214(2)(b)(ii) of KCSR which reads as under:

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“ The departmental proceedings, if not instituted while the Government servant was in service,

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whether before his retirement or during his reemployment .

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i) … ii) Shall not be in respect of any event which took place more than four years before such institution; iii) …”

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This aspect of the matter having been discussed by a Coordinate Bench of this Court in W.A.No.469/2023 (S-R)

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between KUVEMPU UNIVERSITY v. SRI J S SADANAD ,

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decided on 18.06.2024, the same view has been expressed and that supports the case of Petitioner.

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4.3 Pension is a consideration for past service and it

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is not a bounty, reiterated the Apex Court in D.S. NAKARA v. UNION OF INDIA¹ . The pension and other terminal benefits payable to an employee on retirement do constitute his private property and therefore, withholding

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the same without authority of law, is violative of constitutional guarantee to property enacted in Article 300-A. Even in foreign jurisdictions, pension benefits bear

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many of the hallmarks of a property right: in SPINA vs.

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1 AIR 1983 SC 130

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CONSOLIDATED POLICE & FIREMEN’s PENSION

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FUND COMMISSION² , the New Jersey Supreme Court rejected a contract characterization of public employee pensions, in part on the grounds that it would be wooden to impose on the legislature all the implications of “one crisp word.” Instead, the court held that government employees have a property interest in their pension system. A Nine Judge Bench of the Canadian Supreme Court in IBM Canada Limited v. Richard Waterman³ , has observed at Para No. 85 as under:

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“Lord Reid put it in Parry⁴ , “The products of the sums paid into the pension fund are in fact delayed remuneration for the employee's current work. That is why pensions are regarded as earned income.” The pension is therefore a form of retirement savings earned over the years of employment to which the employee acquires specific and enforceable rights.”

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2 41 N.J. 391, 197 A.2nd 169 (1964)

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3 2013 SCC OnLine Can SC 2

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4 House Of Lords in PARRY APPELLANT AND CLEAVER RESPONDENT, [1970] A.C. 1. , at p. 16

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4.4 Since a retired employee holds his body & soul together with the periodic pension regularly paid, withholding the same at times amounts to suspending the means of livelihood and therefore, offends the Fundamental Right to life constitutionally assured under Article 21 in the light of OLGA TELLIS v. BOMBAY MUNICIPAL CORPORATION⁵ . Violation of Fundamental Rights cannot go scathe free. This Court being the custodian of fundamental rights of citizens, has to ensure that the aggrieved is duly compensated and further, no other retiree is put to untold hardship of the kind. Therefore, exemplary costs apart from levy of interest has to be awarded so that, this case would be a live example to the authorities “that be”.

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4.5 Learned AGA appearing for the official Respondents drew out attention to the PAY/LEAVE SALARY SLIP dated 24.08.2010 issued by the AG Office to the Commissioner, Urban Development Authority, Shimogga;

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5 AIR 1986 SC 180

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a copy of the same is marked to the Petitioner as well.

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The same reads as under:

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“OFFICE OF THE ACCOUNTANT GENERAL (A&E) KARNATAKA, BANGALORE

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P.B.NO.5369,’A’ BLOCK, NEW BUILDING, PARK HOUSE ROAD,BANGALORE – 560 203.

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PAY/LEAVE SALARY SLIP

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-2-

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Due to regulation of pay as noted above, the officer is entitled for payment of difference of pay and allowances for the period from 21/04/1998 to 18/09/2005, amounting to Rs.312663/- as detailed in the enclosed annexure. During this period the officer ahs worked as Municipal Commissioner, City Municipal Council, Channapatana, Chamarajanagara & Municipal Commissioner, City Municipal Council, Mandya.

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You are hereby authorized to draw and disburse the above said amount of Rs.312663/- (Rupees Three Lakhs twelve thousand six hundred and sixty three only) to the officer as a stray case. The fact of disbursement may please be intimated to this office. The amount is debitable to head of account under which the salaries of KMAS Officers are drawn. The statutory deductions like difference of PT,GIS, etc. shall be effected.

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This office has issued separate pay intimations from 19/09/2005 onwards relating to Urban Development Authority, Mandya & Urban Development Authority, Shimoga.

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Yours faithfully

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Senior Accounts Officer.”

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The said letter recommended disbursal of Rs.3,12,663/- to

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the Petitioner being the differential of pay & allowances for the period between 21.04.1998 and 18.09.2005.

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4.6 The 2^nd Respondent Commissioner vide letter

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dated 18.08.2012 addressed to the 1^st Respondent had stated about Audit Objections for the year 1991-1992 that a sum of Rs.8.25 lakhs was disbursed to the contractors without complying with Central Government Guidelines and that this amount should be recovered from the concerned officials. Further, it also states that a sum of Rs.3,12,663/- being the bill amount can be recovered from all the concerned employees in certain proportion. Beyond this, nothing has happened in the matter. Petitioner had submitted several representations by Registered Post Acknowledgement Due specifically denying the allegations and requesting for the release of pension & other terminal benefits after re-fixing the pay. He had also mentioned that he was surviving on borrowed monies. To all that there has been a stony silence from the side of official Respondents. Ours being a constitutionally ordained Welfare State, the Government should conduct itself as a model employer vide BHUPENDRANATH HAZARIKA v.

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STATE OF ASSAM⁶ . It pains us that this is not the first case where a pensioner has been put to untold hardship and cruelty at the hands of the Government which extracted his sweat, if not blood for more than 33 years of service. All this cannot go scathe free.

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In the above circumstances, this Petition is allowed and following directions are issued:

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[i] A Writ of Mandamus issues to the Respondents to sanction & release regular pension & all terminal benefits to the Petitioner within two months, with interest at the rate of 1% per mensum from the day the same have been withheld.

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[2] The rate of interest shall stand altered to 2% in the place of 1% per mensum with retrospective effect, if delay exceeds two months. Further, Respondents shall pay a cost of Rs.50,000/- (Rupees Fifty Thousand) only to the Petitioner.

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[3] The interest & costs may be recovered from the erring officials of the concerned Departments, in accordance with law.

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6 (2013) 2 SCC 516

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Liberty is reserved to the Petitioner to make an appropriate representation to the Respondents to seek redressal of his grievance as to fitment of pay and such other things. If such a representation is made, the same shall be considered within a period of eight weeks on merits. The delay issue shall not be raised since the legal battle has been fought all through.

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This Court places on record its deep appreciation for the able research & assistance rendered by its official Law Clerk cum Research Assistant, Mr.Raghunandan K S.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(C M JOSHI) JUDGE

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Bsv/cbc* List No.: 1 Sl No.: 39

Sadashivappa v. the Government of Karnataka

Case brief

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Sadashivappa v. the Government of Karnataka

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