Partly allowed

Sri.K.C.Ashwath Reddy v. the State of Karnataka

Karnataka HC13 Feb 2024WP/2942/2021

Case brief

AI extract

What is this about?

A retired BBMP Assistant Executive Engineer challenged a Tribunal order retaining enquiry findings but remanding punishment; after a fresh four-stage permanent pay-reduction order, the High Court modified it to two stages for one year without cumulative effect and directed pension disbursement within three months.

What did the court decide?

Tribunal order quashed by Certiorari; penalty modified to pay reduction of two stages for one year without cumulative effect; Mandamus to disburse pension and terminal benefits within three months, el

Sri.K.C.Ashwath Reddy Vs the State of… — Pension and Retirement Benefits | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

¶5

PRESENT

¶6

THE HON'BLE MR JUSTICE KRISHNA S DIXIT

¶7

AND

¶8

THE HON'BLE MR JUSTICE G BASAVARAJA

¶9

WRIT PETITION NO. 2942 OF 2021 (S-KSAT)

¶10

BETWEEN:

¶11

SRI.K.C.ASHWATH REDDY, S/O CHICKAKEMPALAPPA, AGED ABOUT 58 YEARS, WORKING AS ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PROJECT OFFICE NORTH, KARNATAKA ROAD DEVELOPMENT CORPORATION LTD., SAMPARK BHAVAN, OPP. TO ORION MALL, 4^TH FLOOR, DR. RAJKUMAR ROAD, RAJAJINAGAR, 1^ST BLOCK, BANGALORE 560 010.

¶12

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

¶13

…PETITIONER

¶14

(BY SRI. RAGHAVENDRA G GAYATRI.,ADVOCATE)

¶15

AND:

¶16

THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY DEPARMENT OF PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT, VIKASA SOUDHA, BANGALORE 560 001.

¶17

THE KARNATAKA LOKAYUKTHA, REPRESENTED BY ITS REGISTRAR, M.S. BUIDLING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE 560 001.

¶18

¶19

NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶20

BRUHAT BENGALURU MAHANAGARA PALIKE, BY ITS CHIEF COMMISSIONER, BANGALORE – 560 001. AMENDED V.C.O DATED 06.07.2022.

¶21

…RESPONDENTS

¶22

(BY SRI.VIKAS ROJIPURA., AGA FOR R1; SRI. VEKATESH S ARABATTI.,ADVOCATE FOR R2; SMT. SINCHANA M R., ADVOCATE FOR R3)

¶23

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER IN THE NATURE OF CERTIORARI AND TO SET ASIDE THE ORDER DATED 04.12.2020 IN APPLICATION NO. 6557/2019, PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL (ANNEXURE - A) AND ALLOW THE SAID APPLICATION AS PRAYED FOR, AND GRANT SUCH OTHER ORDER OR DIRECTION AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

¶24

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, KRISHNA S. DIXIT.J., MADE THE FOLLOWING:

¶25

ORDER

¶26

Petitioner, now a retired employee of BBMP is knocking at the doors of Writ Court for assailing the Tribunal’s order dated 04.12.2020, whereby his Application No. 6557/2019 having been partly favoured, the enquiry findings though are retained, the penalty order of reducing his pay by four stages permanently, has been set at naught remanding the matter for consideration afresh at the hands of Disciplinary Authority.

¶27

¶28

NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶29

Post remand by the Tribunal, now the punishment order dated 26.04.2021 has been issued afresh by the Disciplinary Authority which in vernacular language reads as under:

¶30

“wzÀÄÝ¥Àr

¶31

²æÃ PÉ.¹.C±Àéxï gÉrØ, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ ªÀÄvÀÄÛ ²æÃ PÉ.©.£ÀgÀ¹AºÀªÀÄÆwð, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ EªÀgÀÄUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ zÀAqÀ£É «¢ü¹ ºÉÆgÀr¸À¯ÁzÀ ¸ÀPÁðgÀzÀ DzÉÃ±À ¸ÀASÉå :¯ÉÆÃE 352 ¸ÉÃE« 2018, ¢£ÁAPÀ:02/11/2019 DzÉÃ±À ¨sÁUÀzÀ°è£À PÀæªÀiÁAPÀ:1 gÀ°è.

¶32

“²æÃ C±Àéxï gÉrØ, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ, EªÀjUÉ PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉÃªÁ (ªÀVÃðPÀgÀt, ¤AiÀÄAvÀæt ªÀÄvÀÄÛ ªÉÄÃ®ä£À«) ¤AiÀÄªÀÄUÀ¼ÀÄ,

¶33

1957 ¤AiÀÄªÀÄ-8 ( iv) (J) gÀ£ÀéAiÀÄ ¸ÀzÀjAiÀÄªÀgÀÄ ºÉÆA¢gÀÄªÀ ªÉÃvÀ£À ±ÉÃtÂAiÀÄ°è ¸ÀAavÀ ¥ÀjuÁªÀÄ ©ÃgÀÄªÀAvÉ PÁ°PÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è £Á®ÄÌ ºÀAvÀ PÉ¼ÀV½¸ÀÄªÀ zÀAqÀ£É”.

¶34

JA§ÄzÀgÀ §zÀ¯ÁV

¶35

²æÃ PÉ.¹.C±Àéxï gÉrØ, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ ªÀÄvÀÄÛ ²æÃ PÉ.©.£ÀgÀ¹AºÀªÀÄÆwð, ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ EªÀjUÉ PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉÃªÁ (ªÀVÃðPÀgÀt, ¤AiÀÄAvÀæt ªÀÄvÀÄÛ ªÉÄÃ®ä£À«) ¤AiÀÄªÀÄUÀ¼ÀÄ, 1957

¶36

¤AiÀÄªÀÄ-8 ( iv) (J) £ÉÃ ¤AiÀÄªÀÄzÀéAiÀÄ CªÀgÀÄ gÀÆ.52,650-97,100/- gÀ PÁ°PÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ¥ÀqÉAiÀÄÄwÛgÀÄªÀ gÀÆ.97,100/- UÀ¼À ªÀÄÆ® ªÉÃvÀ£À¢AzÀ £Á®ÄÌ ºÀAvÀPÉÌ PÉ¼ÀV½¹ DzÉÃ²¹zÉ.

¶37

F DzÉÃ±ÀªÀÅ vÀPÀët¢AzÀ eÁjUÉ §gÀÄvÀÛzÉ.

¶38

¸ÀzÀj zÀAqÀ£ÉAiÀÄÄ ¸ÀAav ¥ÀjuÁªÀÄzÉÆA¢UÉ MAzÀÄ ªÀµÀðzÀ À CªÀ¢üUÉ eÁjAiÀÄ°ègÀÄvÀÛzÉ.

¶39

¸ÀzÀj zÀAqÀ£ÉAiÀÄÄ ±Á±ÀévÀªÁVgÀÄvÀÛzÉ.

¶40

MAzÀÄ ªÀµÀð CªÀ¢üAiÀÄÄ ªÀÄÄPÁÛAiÀÄUÉÆAqÀ £ÀAvÀgÀ ¨sÀ«µÀåzÀ°è

¶41

¥Áæ¥ÀÛªÁUÀÄªÀ ªÉÃvÀ£À ªÀÄÄA§rÛAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðjgÀÄvÁÛgÉ.”

¶42

JAzÀÄ w¢ÝPÉÆAqÀÄ N¢PÉÆ¼ÀîvÀPÀÌzÀÄÝ.

¶43

3. SUBMISSION OF THE PETITIONER:

¶44

(a) Learned counsel for the petitioner vehemently argues that during the construction period, his client had paid periodic

¶45

¶46

NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶47

visits to the two construction sites; he had also caused issuance of notices dated 21.05.2007 at Annexure-A10, 12.11.2007 & 12.12.2007 at Annexure-A11 followed by a Provisional Order dated 01.02.2008 issued u/s.321(1) of the Karnataka Municipal Corporations Act, 1976; thereafter the Confirmation Order dated 14.02.2008 came to be issued by the A.E.E., u/s.321(3); this had led to owner of the building in question filing a Civil Suit in O.S.No.25385/2008 on 28.02.2008 and obtaining reprieve at the hands of Civil Court; there is absolutely no culpable conduct attributable to petitioner who has done everything in due diligence; even otherwise, the punishment is highly disproportionate, petitioner having already retired from service.

¶48

(b) In short, it is submitted that there is absolutely no blameworthy conduct on the part of the petitioner; this aspect having not been duly addressed both by the Disciplinary Authority and later by the Tribunal, there is an error apparent on the face of record warranting indulgence of this court. Learned counsel highlights that even the latest penalty order dated 26.04.2021 passed post remand order of the Tribunal also is too much on the higher side inasmuch as it reduces his pay by four stages with cumulative effect for one year; this will have a cascading effect on the fixation of pension.

¶49

(c) Learned counsel for the petitioner further submits that it is not a case of bribery, corruption, misappropriation of funds or loss to the exchequer and therefore this aspect of the

¶50

5 - NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶51

matter ought to have been discussed by the Tribunal. Lastly, he argues that a Co-ordinate Bench of this Court in W.P.No.4260/2022 between STATE OF KARNTAKA vs. RAGHAVENDRA M.R. disposed off on 21.06.2022 has held that enquiry of the kind could not have been conducted by the Lokayukta in view of availability of alternate remedy to the aggrieved citizen.

¶52

Learned AGA appearing for the State and learned Panel Advocates appearing for the Lokayukta and the BBMP oppose the writ petition making submission in justification of the findings of the Tribunal and also the penalty order passed afresh after the matter was remanded. They contend that the scope of writ jurisdiction under Article 227 of the Constitution of India being too restrictive, a deeper examination of the matter cannot be undertaken by the Court. They also repel petitioner’s contention as to penalty being disproportionate to the proven guilt; even otherwise, what punishment needs to be awarded on the proof of misconduct ordinarily lies in the domain of employer and a Writ Court may not interfere. So contending they seeks dismissal of the writ petition.

¶53

Having heard the learned counsel for the parties and having perused the petition papers, this court is inclined to

¶54

6 - NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶55

grant limited indulgence in the matter as under and for the following reasons:

¶56

(a) There cannot be much dispute as to the limited supervisory jurisdiction which this court exercises under Article 227 of the Constitution of India, what is challenged being an order of a Statutory Service Law Tribunal. As to findings of guilt recorded in a duly constituted enquiry, much grievance cannot be made out, as rightly contended by learned advocates appearing for the respondents. However, learned counsel appearing for the petitioner with some amount of justification has pressed into service certain observations made by a Co-ordinate Bench of this court in RAGHAVENDRA supra, which if accepted, may arguably have a bearing on the sustainability of the order of punishment and obviously the order of Tribunal, as well. However, we need not much examine that aspect of the matter as also the other contentions because of the fair stand taken by the petitioner himself.

¶57

¶58

NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶59

(b) At the outset the counsel for the petitioner

¶60

having vociferously argued the matter, has now come forward with a memo, on instruction of his client who also is present before the court personally and the same reads as under:

¶61

“ During pendency of the above case 1^st Respondent passed in order on 26.04.2021 imposed penalty of reduction of 4 stages in the Time Scale Pay with cumulative effect for period of one year permanently. Hence kindly penalty may be reduced to reduction of 2 increments/for a period of one year without cumulative effect, in the interest of justice.” (sic)

¶62

Now that the petitioner in all fairness has come forward to seek a lesser punishment, retaining the findings of guilt intact, which factor cannot be lost sight of by the Constitutional Courts, more particularly when charge does not involve any moral turpitude like bribery, corruption, misappropriation of funds or loss to public exchequer. As records reveal, the charge is not of bribery, corruption, misappropriation of funds or loss to the exchequer. It is only at the most a case of failure to supervise ongoing construction of a structure that was being built up contrary

¶63

8 - NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶64

to the approved plan and in violation of the Building Byelaws of the Local Body.

¶65

(c) Ordinarily, this court would not interfere in matters pertaining to Disciplinary Enquiry, is true. However, this norm admits two traditional exceptions, namely: where there is absolutely no material to hold the delinquent employee guilty, and where the penalty is highly disproportionate to the proven guilt. This second exception is a bit different from the principle of court’s conscience being shaken ; it is structured on the doctrine of proportionality vide K.P.SINGH vs. STATE (NCT OF DELHI), (2015) 15 SCC 497. Viewed from this angle, reduction of pay by four stages for a period of one year that too on permanent basis is too much on the higher side and offends the principle of proportionality, if shakes not the conscience of court.

¶66

(c) The above apart, the petitioner has admittedly put in a long & spotless service of about 35 years having been superannuated recently i.e., on 30.06.2022. It has been a settled principle of service jurisprudence that long

¶67

9 - NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶68

& spotless service would figure as a mitigating factor in

¶69

deciding the quantum of punishment. All this has been lost sight of by the Disciplinary Authority, whilst issuing the fresh penalty order, that has brought down the period of reduction of pay to one year but on permanent basis; reduction by four stages thus is retained intact. This is grossly disproportionate and offends the rule of proportionality, to say the least, as rightly argued by the counsel for the petitioner.

¶70

(d) We notice that a Co-ordinate Bench of this Court in the case of RAGHAVENDRA supra has made certain observations which arguably would have enured to the benefit of petitioner who argues that Lokayukta enquiry of

¶71

the kind was impermissible. The counsel for the petitioner has also urged certain material in support of his contention that his client had conducted periodic supervision of the construction sites and taken all appropriate measures. Evidentiary material such as a bunch of notices, Provisional Order u/s.321(1) followed by Confirmation Order u/s.321(3) of the 1976 Act, are a

¶72

10 - NC: 2024:KHC:6103-DB WP No. 2942 of 2021

¶73

matter of record. Added, there is a pending suit in which coercive measures are restrained. All this would stare at the impugned orders. This court therefore did not much deliberate on these aspects that were urged on behalf of the petitioner, who has since come forward to retain the findings of guilt and to have a lesser punishment in the fitness of things.

¶74

In the above peculiar circumstances, this petition is allowed in part with the following directions:

¶75

(i) a Writ of Certiorari issues quashing the impugned order of the Tribunal; the punishment order dated 26.04.2021 which is brought on record by a memo is modified to the effect that the pay of the petitioner has been reduced by two stages for a period of one year only and that it shall not be treated as being cumulative in effect.

¶76

(ii) A Writ of Mandamus issues to the 1^st Respondent to determine & disburse the pension and all terminal benefits to the petitioner on the basis of modified punishment awarded by this court in the immediately preceding paragraph, within a period of three months, failing which delay would carry interest at the rate of 2%

¶77