Dismissed

K Ramakrishna v. the Director

Karnataka HC14 Oct 2024WP/5655/2020

Case brief

AI extract

What is this about?

A retired KPTCL Junior Engineer challenged a Lokayukta recommendation and disciplinary order withholding 50% of his pension for demanding and accepting a bribe, relying on his later criminal acquittal. Holding that departmental proceedings require only preponderance of probabilities and the inquiry was properly conducted, the High Court dismissed the writ petition.

What did the court decide?

None granted; writ petition dismissed with no order as to costs.

K Ramakrishna Vs the Director — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:41373-DB WP No. 5655 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^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. 5655 OF 2020 (GM-KLA)

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BETWEEN:

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K. RAMAKRISHNA S/O LATE KAVATE GOWDA AGED ABOUT 64 YEARS RESIDING AT NO.96, 3^RD MAIN 2^ND CROSS, MICO LAYOUT J.C.NAGAR, MAHALAKSHMIPURAM BENGALURU-560 086

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…PETITIONER

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(BY SRI. M.C. BASAVARAJU, ADVOCATE)

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AND:

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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THE DIRECTOR (HUMAN RESOURCE AND DEVELOPMENT) K.P.T.C.L., CAUVERY BHAVANA K.G.ROAD BENGALURU-560 001

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UPALOKYUKTHA-I KARNATAKA LOKAYUKTA M.S.BUILDING DR.AMBEDKAR VEEDHI BANGALORE-560 001 REPRESENTED BY ITS REGISTRAR

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…RESPONDENTS

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(BY SMT. NAYANA TARA B.G, ADVOCATE FOR R1 [VC]; SRI. ASHWIN S. HALADY, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED RECOMMENDATION ORDER DATED 07.04.2016 PASSED BY THE R-2 VIDE ANNX-D TO THE W.P. AND THE IMPUGNED PUNISHMENT ORDER DATED 04.11.2017 PASSED BY THE R-1 VIDE ANNX-G TO THE W.P. AND DIRECT THE R-1 TO SANCTION FULL PENSION TO THE PETITIONER AND ALSO PAY THE ARREARS OF PENSION WHICH HAS BEEN WITH HELD BY WAY OF PUNISHMENT FROM THE DATE OF HIS RETIREMENT TILL DATE OF REALIZATION.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, 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 RAMACHANDRA D. HUDDAR)

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This petition is filed by the petitioner seeking the

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following reliefs:

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1. Issue a Writ in the nature of Writ of Certiorari by quashing the impugned recommendation order bearing No.LOK/ ARE/ 11/Enquiry/ 327/2013 dated 7.4.2016 passed by the second respondent wide Annexure-D to the Writ

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petition and the impugned punishment order bearing No. PÀ«¥Àæ¤¤/© 21/23539/2011-12 dated 4.11.2017 passed by the first respondent vide Annexure-G to the Writ petition, and

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2. Issue Writ in the nature of a Writ of a mandamus directing the first respondent to sanction full pension to the petitioner and also pay the arrears of pension which has been withheld by way of a punishment from the date of his retirement till its realization under the facts and circumstances of the case and also grant such other reliefs for which the petitioner is found entitled to."

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We have heard the learned counsel for the parties and perused the papers on record.

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Brief facts of the case are that; the petitionerK.Ramakrishna, Son of late Kavate Gowda was working as Junior Engineer at the relevant time under Respondent No.1. During his service, a charge sheet was laid against him alleging that he demanded and accepted a bribe of Rs.2500/- from one Shri. Madhusudhana, the complainant

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for getting supply of electricity to three floor building of

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one K.Bhupalan. To that effect, a domestic inquiry was conducted by the Upalokayukta. The Inquiry Officer, after conducting inquiry held that the charges levelled against the petitioner have been proved and based upon that, the second respondent has recommended a punishment of withholding of his 50% of the pension payable to him. It is stated that accepting the said recommendation, the first respondent imposed punishment of withholding 50% of his pension from the date of his retirement.

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From the papers on record, it reveals that apart from initiation of a Departmental Inquiry, the first information report was submitted by the complainant Madhusudhana before the Inspector of Police, Karnataka Lokayukta Police, Bangalore City wing alleging, that the petitioner arrayed as accused of being a public servant was working as a Junior Engineer (5) in the office of a C-4, Subdivision, BESCOM situated at Kodige Halli, Bangalore. On 9.11.2011, complainant appeared before the accused i.e., petitioner for conversion of electricity power supply

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given to the house of CW.4 K. Bhoopalan from single phase to three phase. At that time, this the petitioner being a Junior Engineer of respondent-1 demanded illegal gratification of Rs.2500/- from the complainant for shifting electricity pole and conversion of electricity supply from single phase to three phase. It is further alleged that as the complainant was not interested to pay the illegal gratification, he lodged a complaint before the Lokayukta Police on 21.12.2018 and based upon that, a crime was registered and the IO prepared the pre-trap proceedings in the presence of puncher witnesses and also conducted the trap wherein the accused was found demanded and accepted the illegal gratification of Rs.2500/- from the complainant for doing his official favour in the matter of Boopalan arrayed as CW.4 in the charge sheet. It is alleged that this accused being a public servant was not supposed to demand and accept any illegal gratification from the public. To that effect, a charge sheet came to be filed against the accused by the Inspector of Lokayukta for the

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offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

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Meanwhile, in the Departmental Inquiry,

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statements of the witnesses of the Department as well as panch witnesses was recorded before the inquiry officer and even the petitioner appeared before the inquiry officer. The inquiry officer supplied the articles of charges against the accused as stated in Annexure-A as under:

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"That you DGO K.Ramakrishna, Junior Engineer (E), working as Section Officer in O and M unit 15) 1 of C-4 Sub-Division, BESCOM, Bhadrappa Layout, Kodigehalli, Bangalore, while working as the Section Officer in the said office in Bengaluru Urban District demanded and accepted a bribe of Rs.2500/- on 21.12.2011 from the complainant Sri. Madhusudana S/o Narayana Swami, M/S Sri Bhagyalakshmi Electricals, No.8 Kommasandra Grama, Vijipura Hubli, Devanahalli Taluk, Bangalore Rural District for getting supply of electricity to the three-floor building of Bupalan at No.11 Devi Nagara in Kodigehalli in Bengaluru and that is for doing an official act, and thereby you failed to maintain absolute integrity and devotion to duty and

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committed an act which is unbecoming of a Board servant and thus, you are guilty of misconduct under Regulation 14-A (1) A (i) of Karnataka Electricity Board Employees (Classification, Discipline, Control and Appeal) Regulations, 1987”.

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The Inquiry officer also issued the statement of imputation of misconduct. To that, the petitioner being D.G.O submitted his written statement of defence. Before the inquiry officer, the complainant and other witnesses were examined and ultimately as per the report dated 31.03.2016, the Inquiry Officer No.2 Karnataka Lokayukta submitted a inquiry report holding that the misconduct alleged against the D.G.O.i.e. petitioner is duly proved. They said inquiry report was submitted to the Upalokayukta for further action in the matter.

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Based upon the inquiry report and material placed before the Upalokayukta, as per the recommendation dated 07.04.2016, the UpalokayuktaNo.1 State of Karnataka Bengaluru passed an order as under:

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“Having regard to the nature of a charge proved against the D.G.O., it is hereby recommended to impose penalty of “PERMANENTLY WITHHOLDING 50% OF THE PENSION PAYABLE TO D. B. E. FROM THE DATE OF HIS RETIREMENT”.

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Thereafter the final show-cause notice came to

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be issued to the petitioner and to that the petitioner submitted reply to the said notice denying the entire assertions made in the report, entire findings of the inquiry officer as well as questioned the very competency of the inquiry officer in conducting the inquiry. Rejecting the reply to the show-cause notice submitted by the petitioner, the disciplinary authority i.e., respondent No.1 passed the final order on 04.11.2017 as under:

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"²¸ÀÄÛ ¥Áæ¢üPÁjAiÀiÁzÀ ¤UÀªÀÄªÀÅ ¢£ÁAPÀ: 04.07.2017 gÀAzÀÄ £ÀqÉzÀ vÀ£Àß 105 £ÉÃ ªÀÄAqÀ½ ¸À¨sÉAiÀÄ°è vÉUÉzÀÄPÉÆAqÀ oÀgÁ«£ÀéAiÀÄ ²æÃ.PÉ.gÁªÀÄPÀÈµÀÚ, QjAiÀÄ EAf¤AiÀÄgï(«) (¤ªÀÈvÀÛ) gÀªÀgÀ «gÀÄzÀÝzÀ ®AZÁgÉÆÃ¥À ¥ÀæPÀgÀtPÉÌ ¸ÀA§A¢ü¹zÀAvÉ DzÉÃ²¹zÀ E<ÁSÁ «ZÁgÀuÉAiÀÄ°è D¥Á¢vÀgÀ «gÀÄzÀÝzÀ DgÉÆÃ¥ÀUÀ¼ÀÄ gÀÄdÄªÁvÁVgÀÄªÀÅzÀjAzÀ, ¸ÀzÀjAiÀÄªÀjUÉ C¢üPÀj¸À<ÁUÀÄªÀ ¦AZÀtÂAiÀÄ°è PÀ«ªÀÄA ¸ÉÃªÁ ¤§AzsÀ£ÉUÀ¼ÀÄ 171 £ÉÃ ¤§AzsÀ£ÉAiÀÄ£ÀéAiÀÄ ±ÉÃPÀqÀ 50% gÀµÀÄÖ ¨sÁUÀ ¦AZÀtÂAiÀÄ£ÀÄß ±Á±ÀévÀªÁV vÀqÉ»rAiÀÄÄªÀ zÀAqÀ£ÉAiÀÄ£ÀÄß «¢ü¸À<ÁVzÉ. ªÀÄÄAzÀÄªÀgÉzÀÄ

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²æÃ.PÉ.gÁªÀÄPÀÈµÀÚ, QjAiÀÄ EAf¤AiÀÄgï(«) (¤ªÀÈvÀÛ) gÀªÀgÀ «gÀÄzÀÝzÀ <ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉÆ°Ã¸ï gÀªÀgÀÄ zÁR°¹gÀÄªÀ Qæ«Ä£À<ï ªÉÆPÀzÀÝªÉÄAiÀÄ°è ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ wÃ¦ð£À C£ÀéAiÀÄ ªÀÄÄAzÉ PÉÊUÉÆ¼Àî§ºÀÄzÁzÀ ²¸ÀÄÛ PÀæªÀÄzÀ ªÀÄvÀÄÛ CªÀiÁ£ÀvÀÄÛ CªÀ¢üAiÀÄ£ÀÄß ¤zsÀðj¸ÀÄªÀ ºÀPÀÌ£ÀÄß PÁ¬ÄÝj¸À<ÁVzÉ.

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F ªÉÄÃ°£À DzÉÃ±ÀªÀ£ÀÄß ¸ÀzÀjAiÀÄªÀgÀ ¸ÉÃªÁ ¥ÀÄ¸ÀÛPÀzÀ°è £ÀªÀÄÆ¢¸ÀvÀPÀÌzÀÄÝ.

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Now the petitioner is challenging the said recommendation of respondent No.2 and an order passed by the disciplinary authority withholding his 50% pension.

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On the other hand, the criminal trial proceeded before the Judge of the special Court in Sessions in Special CC No.186 of 2012 i.e. 77th Additional City Civil and

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Session Judge and Special Judge, Bengaluru, in which, the petitioner was ultimately acquitted by the judgment dated 28.11.2018.

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It is argued before us on behalf of petitioner that after acquittal of the petitioner by the trial Court, the petitioner has filed this writ petition challenging the report of the inquiry as well as recommendation and orders passed by the disciplinary authority withholding his 50% of

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the pension which according to him is erroneous in law and the very action of the respondent No.1 acting upon the recommendation is illegal. The learned counsel for the petitioner placed reliance on various findings of the trial Court as well as the judgment of Coordinate Bench of this Court in Writ Petition No.203239/2019 29.05.2020. He submits that in view of the acquittal of the petitioner in a criminal trial, the imposition of the penalty of withholding the 50% of the pension to a retired employee is illegal. Therefore relying upon the observations in the aforesaid

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judgment of the Co-ordinate Bench of this Court, he submits that it is not a appropriate punishment being imposed by the disciplinary authority and the object of criminal trial is to inflict appropriate punishment on the offender but, inquiry proceedings is quite different and therefore imposition of such a major penalty is not in accordance with the service rules. He submits that, the petition be allowed and writ so prayed in the petition be granted against the respondents.

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As against this submission, the learned counsel for the respondents would submit that, now the petitioner cannot take advantage of acquittal in the criminal trial against him. He would submit that, the very nature of the criminal case shows that there was a demand and acceptance of the illegal gratification by this petitioner at relevant time and for supply of electricity, he had demanded Rs.2500/- from the complainant. He submits that the departmental proceedings and proceedings in criminal case can proceed simultaneously as there is no bar

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in conducting simultaneously, though separately. It is submitted by the counsels for the respondents that, if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves a complicated questions of law and fact, it would be desirable to stay the department proceedings till the conclusion of the criminal case. He would submit that, in this case there is no such stay of the departmental proceedings. He would submit that, as the

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there is no Hon'ble acquittal of the petitioner of the charges levelled against him, now he cannot seek any relief much less claimed in the Writ Petition. Therefore, it is prayed by the counsels for the respondents to dismiss the petition.

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On the basis of the above submissions, it has been urged by the counsel for the petitioner that the findings in the departmental inquiry were perverse and the inquiry officer ought not have given such a finding. Now the petitioner is retired and there is a social stigma on the person of the petitioner because of this departmental inquiry and facing of the criminal trial by him so also withholding of a 50% of his pension.

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As against this, the counsel for the respondents would submit that, as the petitioner is already retired and his 50% pension has been ordered to be withheld and it is implemented, therefore no interference is required into the orders of the disciplinary authority.

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Proof of misconduct in the disciplinary proceedings:

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The primary charge in the disciplinary

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proceedings relates to the illegal demand of gratification from the complainant Madhusudhana on 21.12.2011 for supply of three-phase electricity to the three-floor building of one Bhoopalan situated at No.11 Devinagara in Kodigehalli in Bangalore. It is alleged that, the petitioner demanded and accepted Rs.2500/- on 21.12.2011 from the complainant and when trap was conducted, he was found in possession of the said amount thereby, this petitioner has failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Board servant and thus, he is guilty of a misconduct under Regulation 14-A(1)(i) of Karnataka Electricity Board Employees (Classification, Discipline, Control and Appeals) Regulations, 1987.

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The Hon'ble Apex Court in various judgments, have categorically held that the standard of proof in a disciplinary proceedings is different from that in a criminal

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trial. In Suresh Pathrella v. Oriental Bank of

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Commerce , reported in (2006) 10 SCC 572, the Hon'ble

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Apex Court distinguished between the standard of proof in the disciplinary proceedings and criminal trials in the following terms in para 11.

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"11. xxx It is well-settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities."

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The Hon'ble Apex Court in another judgment in a Samar Bahadur Singh v. State of U.P., reported in

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(2011) 9 SCC 94, in para 7 has held as under:

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"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the

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present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities."

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Findings of the disciplinary inquiry:

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After supply of the articles of charges and statement of imputation of misconduct, on disclosing the number of witness to be examined before the inquiry officer, the inquiry officer called upon the petitioner to submit his reply. After a full-fledged inquiry, the misconduct against the petitioner is ordered as proved. Accordingly, the inquiry officer submitted a report on 31.03.2016 to the Upalokayukta for further action. As stated supra, based upon the said inquiry, report the recommendation was made by the Upalokayukta permanently withholding 50% of the pension payable to the petitioner. Thereafter, the disciplinary authority, based upon the said recommendation arrived at its finding on the charge of a misconduct by observing:.

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"Thus, the Board perused the entire records of the inquiry including the reply submitted by the accused employee. It was noted that the inquiry officer has held the inquiry duly following the principles of natural justice and provided ample opportunity to the concerned to represent their side of the case. On proper appreciation of oral and documentary evidence, inquiry officer has held that the charge has been proved. The contentions raised by the accused employee in his reply were incidentally taken up and examined. The explanation submitted by the accused official is not sufficient to differ with the findings of the inquiry officer. Accordingly, it was decided to accept the report of the inquiry officer.

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While accepting the report of the Hon'ble Upalokayukta that the charges are proved against the accused employee, on the imposition of recommended penalty, it was felt that the quantum of a pension to be withheld can be reviewed favourably. Accordingly, it was decided to authorize MD, KPTCL to decide on the quantum of a pension to be withheld as a measure of a penalty.

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In this context following resolutions were

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passed:

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"i. Resolved that the report of the inquiry officer dated 31.3.2016 that the charge framed against Shri.K.Rama Krishna JE Electrical, are hereby accepted.

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ii. Further resolved that Managing Director, KPTCL and is hereby authorized to decide on the quantum of pension to be withheld to Shri.K.Rama Krishna, junior engineer (electrical, now retired) as a measure of penalty.

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iii. Further resolved that subject to above, director (administration HR, KPTCL) be authorized to issue necessary orders."

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As per the conduct rules, in the disciplinary

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inquiry, Section 11 speaks of imposition of a major penalties and procedures to be followed. On scrupulous reading of the entire materials placed on record by the petitioner by producing the Annexure stated supra, all the procedures under the conduct rules, and also the rules framed by the respondent No.1 board also have been followed by the disciplinary authority. By following all the

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procedures as per the conduct rules, the penalty is imposed against the petitioner.

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It is argued by the counsel for the petitioner that such an act of the disciplinary authority in imposing penalty based upon the inquiry report is illegal. He submits that when criminal Special Court has acquitted accused of all the charges levelled against him, the disciplinary authority ought not have imposed such a penalty. As stated supra, the trial in a criminal case is different than the conducting of the disciplinary inquiry. The criminal case are decided based upon the principle of beyond all reasonable doubt, whereas, the disciplinary inquiries are decided based upon the principle of preponderance probabilities. In this regard, it is relevant to note the judgment of the Hon'ble Apex Court in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das reported in (2020) 1 SCC 1, the Constitution Bench of the Hon'ble Apex Court has described the standard of "preponderance of probabilities" in para 720 and 721 as under:

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"720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly: If therefore, the evidence is such that the court can say “we think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.] In Miller v. Ministerof

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Pensions [Miller v. Minister of Pensions, (1947) 2 All ER 372] , Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms : (All ER p. 373 H)

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“(1) … It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible, but not in the least probable” the case is proved beyond

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reasonable doubt, but nothing short of that will suffice.”

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721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)] , where he formulated the principle thus : (p. 37)

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“… So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subjectmatter.”

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Here in this case, there is a serious charge of misconduct of demanding and accepting the illegal gratification from the complainant-Madhusudan by the petitioner. Though in the criminal case he is acquitted, the findings of the criminal Court also play an important role.

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"In para 39 of the judgment in Special CC No.186 of 2012 dated 28.11.2018 by the Special Court, it is observed "the fact of demand and acceptance of illegal gratification by the accused from the complainant must be proved by the prosecution. In this case, said fact is not proved by

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the prosecution with any cogent evidence. By considering the ratio involved in the decisions relied upon by the counsel for the accused stated above, this Court held that, the ratio involved in the said decisions are applicable to the case on hand, so same are considered for deciding the case on merit.

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In view of the reasons stated above, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt and about the demand and acceptance of illegal gratification of Rs.2500/- from the complainant for doing any of his official favor".

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Thus, the criminal Court acquitted the accused/petitioner by giving benefit of doubt. It is settled principle of law that the Departmental Proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceedings, principles of natural justice are required to be complied with. Here the principles of natural justice have been followed by the inquiry officer. The Courts exercising power of judicial review are entitled to consider as to whether, while in inferring commissions of misconduct on the part of delinquent officer relevant piece of evidence has been

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taken into consideration and irrelevant facts have been excluded their from have to be considered. Here, it is not the case of the petitioner that the departmental inquiry was not conducted in a proper manner. From the material placed on record by the petitioner himself, it can be stated that the departmental inquiry was conducted in accordance with law. The statement of the complainant, other witnesses especially the eyewitnesses sufficiently proved the allegations and since the charge against the accused is proved, now the petitioner cannot seek any relief in this proceedings.

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Now the petitioner has invoked the provisions of Article 226 and 227 of Constitution of India. While exercising the judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies the rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been

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committed lies primarily within the domain of the disciplinary authority. Therefore the Court does not assume the mantle of the disciplinary authority. The disciplinary authority has found the petitioner guilty of misconduct. The service jurisprudence has recognized it for long years in allowing for authority of the Court to interfere when the findings are the penalty or disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sale between the banks of these two shores which have been termed as a two ends of a spectrum. Therefore, though it is argued by the counsel for the petitioner that the petitioner is entitled for relief so claimed in the petition and grant of writ so prayed but, in view of the proof of misconduct of the petitioner of demanding and accepting the illegal identification from the complainant, the disciplinary authority has rightly imposed the punishment. We do not find any factual or legal error committed by the disciplinary authority in imposition of such penalty based upon the recommendation of the Upalokayukta which is challenged in this Writ Petition.

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