Partly allowed

The State of Karnataka v. Sri Srinivasa N S/O Late Narasimaiah

Karnataka HC24 Oct 2024WP/22071/2021

Case brief

AI extract

What is this about?

A State challenge to a Tribunal decision reinstating a Typist dismissed for alleged bribery was partly upheld: the court found the disciplinary charge rested on no evidence and confirmed reinstatement, but applied 'no work no pay' to strip back wages granted by the Tribunal.

What did the court decide?

Writ petition allowed in part: reinstatement upheld but Tribunal-ordered back wages and consequential benefits denied under 'no work no pay'.

The State of Karnataka Vs Sri Srinivasa N S/O Late Narasimaiah — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:42825-DB WP No. 22071 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S.G.PANDIT

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR WRIT PETITION NO. 22071 OF 2021 (S-KSAT)

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BETWEEN:

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE (SERVICES-1) M.S.BUILDING BENGALURU-560 001

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…PETITIONER

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(BY SRI. V. SHIVAREDDY, AGA)

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AND:

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SRI. SRINIVASA N S/O LATE NARASIMAIAH AGED ABOUT 46 YEARS

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WORKING AS TYPING

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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OFFICE OF THE DEPUTY COMMISSIONER BENGALURU RURAL DISTRICT-562 110

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THE REGISTRAR KARNATAKA LOKAYUKTA M.S.BUILDING

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BENGALURU-560 001

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…RESPONDENTS

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(BY KUM. AISHWARYA HEGDE, ADVOCATE FOR SRI. K. SATHISH, ADVOCATE FOR R1; SRI. VENKATESH S. ARABATTI, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER DATED 30.11.2019 IN

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APPLICATION NO.746/2019 (ANNEXURE-A) PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU AND CONSEQUENTLY DISMISS THE APPLICATION NO.746/2019 FILED BY THE R1 BEFORE THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU.

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THIS 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 S.G.PANDIT and HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE S.G.PANDIT)

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The State, represented by Principal Secretary, Department of Revenue is before this Court under Article 226 of Constitution of India, questioning the correctness and legality of the order dated 30.11.2019 in Application No.746/2019 passed by the Karnataka State Administrative Tribunal, Bengaluru, (for short 'Tribunal'), allowing the application of respondent No.1 questioning the order of dismissal dated 10.01.2019 (Annexure-A17).

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Brief facts of the case are that:

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While respondent No.1 was working as Typist at the office of the Tahsildar, Devanahalli Taluk, Bengaluru (Rural) District, on a complaint of demanding illegal gratification from 40 applicants including the complainant, a trap was laid against respondent No.1 on 14.11.2008 and while accepting Rs.4,000/- as bribe, the respondent No.1 was caught red handed. Based on the said incident, Articles of Charge dated 28.02.2011 (Annexure-A6) was issued and charge against the respondent No.1 reads as follows:

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"CHARGE:

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That you, DGO Sri N Srinivasa (hereinafter referred to as Delinquent Government Official, in short DGO), while working as Typist, (Darakasthu Gumastharu), in the Office of the Tahasildar, Devanahalli Taluk, Bangalore Rural District, demanded Rs. 20,000/- to furnish the documents to 40 applicants including the complainant, at the rate of Rs. 500/- per application and on 14/11/2008 you demanded and accepted of Rs.4000/- as bribe amount from complainant Sri. D.C.Doddachikkanna S/o Chikkaramaiah of Devaganahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rurual District for furnishing documents relating to the

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agricultural land bearing Sy. No. 69 of Devanahalli village measuring 1 acre 13 guntas granted to him by Government during the year 2004, as an advance for getting the work done i.e., for furnishing the documents sought by the complainant and you failed to maintain absolute integrity, devotion to duty and thereby committed an act of misconduct which is unbecoming of a Government Servant under Rule 3(1)(i) to (iii) of KCS (Conduct) Rules 1966."

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The Enquiry Officer nominated by the Lokayukta conducted enquiry and submitted report dated 31.05.2018. Before the Enquiry Officer, Disciplinary Authority-the State Government examined two witnesses i.e., Sri D.C.Doddachikkanna-complainant as PW.1 and Sri Srinivas.V-Shadow witness as PW.2 apart from marking Exs.P.1 to P.9. On behalf of respondent No.1, he got examined himself as DW.1 and no documents were marked on his behalf. Enquiry Officer held the charge against respondent No.1 as proved and based on the enquiry report Upalokayukta recommended penalty of compulsory retirement on respondent No.1. Second show-

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cause Notice dated 03.07.2018 (Annexure-A15) along with enquiry report was issued to respondent No.1 and respondent No.1 submitted his reply on 09.08.2018 in terms of Annexure-A16. The petitioner-State Government under impugned order dated 10.01.2019 imposed punishment of compulsory retirement on respondent No.1 in exercise of its power under Rule 8 (vi) of KCS(CCA) Rules, 1957 (for short “CCA Rules”). Questioning the same, the petitioner was before the Tribunal. The Tribunal under impugned order dated 30.11.2019 set aside the order imposing punishment of compulsory retirement and directed reinstatement with all consequential benefits including the monetary benefits to respondent No.1. Questioning the said order passed by the Tribunal, the petitioner-State Government is before this Court in the present writ petition.

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4. It is also pertinent to note that, on the incident

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of trap, charge sheet was filed against respondent No.1 under Sections 7, 13(1) d and 13(2) of Prevention of

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Corruption Act, 1988 in Spl. Case No.86/2010 and by judgment dated 20.11.2012 respondent No.1 was

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acquitted of the charges leveled against him.

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Heard learned Additional Government Advocate Sri V.Shivareddy, for petitioner, learned counsel Kum. Aishwarya Hegde for Sri Sathish.K., learned counsel for respondent No.1 as well as learned counsel Sri Venkatesh S.Arabatti for respondent No.2. Perused the writ petition papers.

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Learned AGA Sri V.Shivareddy for petitioner would submit that the Tribunal committed a grave error in setting aside the order of penalty of compulsory retirement imposed on respondent No.1 by order dated 30.11.2019 in Application No.746/2019. Further, learned AGA would submit that the charge leveled against respondent No.1 is very serious, in that, demand and acceptance of illegal gratification from the complainant and 40 others for issuance of certain documents. When the Enquiry Officer has come to the conclusion that the

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charge leveled against respondent No.1 is proved based on the material on record, the Tribunal could not have come to a different conclusion.

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Learned AGA placing reliance on the decision of

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Hon'ble Apex Court in the case of Union of India and Others v. P.Gunasekaran¹ submits that the Tribunal could interfere with the order of penalty only under circumstances stated therein and further, he submits that

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the Tribunal could not have re-appreciated the evidence. Learned AGA would submit that the evidence of PW.1 and PW.2 is sufficient to prove the charge. Learned AGA taking through the evidence of PWs.1 and 2 would submit that there is enough material to hold that charges are proved against respondent No.1(DGO). Learned AGA referring to enquiry report submits that the tainted money is recovered from the DGO-respondent No.1 and both his hands when washed, gave positive result and the recovery of money itself is sufficient to prove misconduct. As the

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1 2015(2) SCC 610

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tainted amount is recovered from respondent No.1 and PW.1 complainant had deposed with regard to demand and acceptance of bribe amount, the Tribunal is not justified in interfering with the order of penalty. Thus, he prays for allowing the writ petition.

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Learned counsel Sri Venkatesh S Arabatti appearing for respondent No.2 fully supports the submission of learned AGA and further submits that though PW.2 turned hostile, but supported first part of the charge i.e., demand. Further, it is submitted that the Disciplinary Authority could prove the charge on the basis of preponderance of probabilities and it need not prove the charge beyond reasonable doubt. He submits that the material on record would be sufficient to prove the charge on the basis of principles of preponderance of probabilities. Thus, he also prays for allowing the writ petition.

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Per contra, learned counsel Kum. Aishwarya Hegde for Sri Sathish.K., learned counsel for respondent No.1 submits that it is a case of no evidence and rightly

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the Tribunal has set aside the order of penalty of compulsory retirement. Learned counsel would submit that the Disciplinary Authority examined only two witnesses that is complainant-PW.1 and shadow witness-PW.2. It is submitted that PW.2 has not supported the case of the Disciplinary Authority and on the other hand, it is the evidence of PW.2 that the DGO-respondent No.1 has not demanded or accepted any illegal gratification but the amount was thrust upon DGO. Learned counsel would also invite attention of this Court to the first oral statement of

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the DGO, where he has stated that the amount was thrust into his pocket.

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Further, learned counsel points out that

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evidence of PW.1-complainant who is an interested witness would not be sufficient to prove the charge leveled against the DGO-respondent No.1. Learned counsel would also places reliance on the decision of P. Gunasekaran supra to submit that Hon'ble Apex Court has laid down the principles or circumstances under which the Tribunal could

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interfere with the order of penalty. Learned counsel referring to the said decision submits that, wherever it is a case of no evidence, the Tribunal could interfere with the order of penalty, as it would be a case of no evidence. Learned counsel would submit that the Tribunal is justified in interfering with the order of penalty of compulsory retirement. Thus, learned counsel would pray for dismissal of the writ petition. Learned counsel would further submit that respondent No.1-DGO would be entitled for all consequential benefits including back wages.

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Having heard the learned counsels for the parties and on perusal of the entire writ petition papers, the only point that arise for our consideration is:

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"Whether impugned order passed by the Tribunal requires interference in the facts and circumstances of the case?"

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Answer to the above point would be in the negative for the following reasons:-

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The respondent No.1 was working as Typist in the office of Tahsildar, Devanahalli Taluk, Bengaluru (Rural) District, during the relevant period. The charge against the respondent No.1 in terms of Articles of Charge dated 28.02.2011 (Annexure-A6) as extracted above, in sum and substance is that demand and acceptance of illegal gratification to furnish certain documents to 40 applicants including the complainant. The trap was laid on 14.11.2008 while respondent No.1 was accepting Rs.4,000/as bribe from the complainant-

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D.C.Doddachikkanna (PW.1).

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It is settled position of law that in a

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departmental proceedings, charge need not be proved beyond reasonable doubt but charge could be proved only on the basis of principles of preponderance of probabilities. To prove the charge of demanding and accepting illegal gratification against respondent No.1/ DGO, the Disciplinary Authority examined two witnesses PW.1 - Doddachikkanna, the complainant and PW.2 -Srinivas.V.,

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shadow witness. PW.1-complainant states that on 14.11.2008 he filed a complaint with the respondent No.2

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with regard to demand of bribe by respondent No.1. Further, he deposes that he himself and PW.2/Srinivas.V. went to the office of DGO and DGO questioned him, whether he has brought the advance amount and accordingly, he gave the amount to the DGO who received it through his right hand and complainant states that he himself had kept the amount in the back side pocket of the pant. But none have corroborated with the evidence of PW.1. PW.2 V.Srinivas is shadow witness, related portion of his evidence reads as follows:

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"5. The complainant and myself went inside the Taluk office and the DGO was found sitting in his chair. The complainant asked the DGO as to whether the documents are ready. The DGO told the complainant that he has sent the documents to the Shirastedar. The complainant offered the DGO the money but the DGO refused to receive the money. The Police Inspector again sent the complainant inside the office and when the complainant offered to pay money to the DGO, the DGO refused to receive the money again. The DGO

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having locked his office, came out of the office and at that time, the complainant forcibly gave the money into the hands of the DGO asking him to attend his work urgently. Then the DGO received the money given to him by the complainant and kept that money in his right side hip pocket. The complainant having went out of the office, gave pre-arranged signal to the Police Inspector.

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No doubt, PW.2 has turned hostile but PW.2 is cross examined by the Presenting Officer on behalf of Disciplinary Authority. In his cross-examination also, nothing is elicited in support of the case of Disciplinary Authority. On the other hand, in the cross examination, he states that it is not true to suggest that when the complainant met DGO for the first time itself, the DGO demanded bribe from the complainant and received Rs.4,000/-. The Disciplinary Authority has not examined any other witness. Disciplinary Authority also failed to examine the Investigating Officer who would have been the material witness.

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Enquiry Officer has discussed with regard to the discrepancy while recovering the tainted amount from the

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DGO and also with regard to not marking of chemical examination report during the enquiry. However, comes to the conclusion that charges are proved against the 1^st respondent-DGO. On careful examination of the evidence of PW.1 and PW.2 as well as other material on record, we are of the considered view that it is a case of no evidence. When no other witness supports or corroborates the evidence of interested witness PW.1 and when it is the evidence of the DGO-respondent No.1 that amount was thrust into his pocket, which is corroborated by the evidence of PW.2, who has categorically deposed that the

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DGO has not demanded any bribe amount and the bribe amount was thrust upon him, the Enquiry Officer could not have come to the conclusion that the charges are proved against respondent No.1-DGO. Moreover, in criminal proceedings in Spl. Case No.86/2010 before the Principal Sessions Judge, Bengaluru Rural District, Bengaluru by judgment dated 20.11.2012, the DGO-respondent No.1 is

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acquitted of the charges by observing that the prosecution has failed to bring the ingredients of the charge of demand and acceptance and it has further observed that accused deserves benefit of doubt.

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The Hon'ble Apex Court in the case of P. Gunasekaran (supra) referred above at paragraph Nos.12 and 13, while considering a case of dismissal has

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laid down the principles to be followed while interfering with the penalty order passed on conclusion of disciplinary proceedings. Paragraph Nos. 12 and 13 reads as follows:

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“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-

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appreciation of the evidence. The High Court can only see whether:

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(a) the enquiry is held by a competent

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authority;

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(b) the enquiry is held according to the procedure prescribed in that behalf;

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(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

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(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had

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erroneously admitted inadmissible evidence which influenced the finding;

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(i) the finding of fact is based on no evidence.

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13. Under Article 226/227 of the Constitution of India, the High Court shall not:

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(i) re-appreciate the evidence;

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(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal

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evidence on which findings can be based.

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(vi) correct the error of fact however grave it may appear to be;

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(vii) go into the proportionality of

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punishment unless it shocks its conscience.”

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The Hon'ble Apex Court in the above decision as

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well as in subsequent decisions has made it clear that penalty order could be interfered if it is a case of no

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evidence. When we have come to the conclusion on examination of the material on record that it is a case of no evidence, it is not a case for interference.

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Accordingly, we are of the view that there is no merit in the writ petition in so far as challenge to setting aside order of penalty of compulsory retirement. However, respondent No.1 was out of service from

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the date of dismissal dated 10.01.2019 till he was reinstated on 01.09.2021. Since the petitioner has not worked during the above said period, following the principle of 'no work no pay', we are of the view that the petitioner would not be entitled for back wages. To the above extent, the impugned order of the Tribunal is modified.

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Accordingly, the writ petition is allowed in part.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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PSJ /List No.: 1 Sl No.: 32

The State of Karnataka v. Sri Srinivasa N S/O Late Narasimaiah

Case brief

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The State of Karnataka v. Sri Srinivasa N S/O Late Narasimaiah

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