Allowed

Sri. K.M. Somashekharappa v. the State of Karnataka

Karnataka HC2 Jul 2024WP/8271/2022

Case brief

AI extract

What is this about?

This writ petition challenged a departmental order imposing compulsory retirement despite the petitioner's criminal acquittal. The High Court held that the disciplinary authority failed to objectively assess the impact of the acquittal judgment, violating natural justice, and remanded the matter for a reasoned order.

What did the court decide?

The Tribunal's order and the Government Order imposing compulsory retirement are set aside. The matter is remitted to the disciplinary authority to consider the acquittal judgment and pass a reasoned

Sri. K.M. Somashekharappa Vs the State of… — Pension and Retirement Benefits | Karnataka HC (2024)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF JULY, 2024

¶2

PRESENT

¶3

THE HON'BLE MRS JUSTICE ANU SIVARAMAN

¶4

AND

¶5

THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

¶6

WRIT PETITION NO. 8271 OF 2022 (S-KSAT)

¶7

BETWEEN:

¶8

SRI. K.M. SOMASHEKHARAPPA, S/O C MALLIKARJUNAPPA, AGED ABOUT 58 YEARS, WORKING AS FIRST DIVISION ASSISTANT OFFICE OF THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, CHIKAMAGALUR DISTRICT - 577101.

¶9

...PETITIONER

¶10

(BY SRI SATISH K, ADVOCATE)

¶11

AND:

¶12

THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF EDUCATION (PRIMARY AND SECONDARY) M S BUILDING, BENGALURU- 560001.

¶13

THE COMMISSIONER FOR PUBLIC INSTRUCTIONS, NRUPTHUNGA ROAD, BENGALURU - 560001.

¶14

THE EXECUTIVE OFFICER, TALUK PANCHAYATH, MUDIGERE, CHIKKAMAGALURU - 577101.

¶15

…RESPONDENTS

¶16

(BY SRI VIKAS ROJIPURA, AGA FOR R1 AND R2, R3 IS SERVED BUT UNREPRESENTED)

¶17

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO CALL FOR THE RECORDS FROM THIS HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN RESPECT OF THE IMPUGNED ORDER DATED 12.04.2022 PASSED IN APPLICATION No-6196/2019 (ANNEXURE-A). 2 SET ASIDE THE

¶18

¶19

IMPUGNED ORDER DATED 12.04.2022 PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION No-6196/2019 (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE SAID APPLICATION No-6196/2019 PREFERRED BY THE PETITIONER AS SOUGHT FOR (ANNEXUREB) IN THE INTEREST OF JUSTICE AND EQUITY.

¶20

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.06.2024 AND COMING ON FOR PRONOUNCEMENT THIS DAY, ANANT RAMANATH HEGDE J., PRONOUNCED THE FOLLOWING:

¶21

ORDER

¶22

On a complaint lodged by the Assistant Teacher

¶23

in New Higher Primary School at Ajjampur, on the allegation of bribe demand by the present petitioner, trap was laid. The complaint was registered in Crime No.3/2012 on 08.02.2012 and on the same day, Rs.3,000/- bribe money was allegedly recovered from the petitioner.

¶24

The Lokayukta Police, Chikkamagaluru, after investigation filed a charge sheet before the Special Court, Chikkamagaluru in Special Case (Corruption) No.21/2013. The Hon'ble Upalokayuktha under Section 12(3) of the Karnataka Lokayuktha Act, 1984 recommended the 1^st respondent - Government to initiate departmental enquiry. On 21.09.2013, the 1^st respondent entrusted the enquiry

¶25

¶26

to Lokayukta exercising power under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Pursuant to the order to frame charges, the Additional Registrar of Enquiries - 4 on 13.12.2013, framed charges against the petitioner for having demanded and accepted Rs.3,000/- towards bribe on 08.02.2012, and failing to maintain absolute integrity and devotion to duty which is unbecoming of a Government Servant.

¶27

In terms of the judgment dated 27.05.2017, the Special Court acquitted the petitioner primarily on the premise that no application was filed by the complainant/Assistant Teacher for grant of service benefits as claimed in the complaint. The State has filed an appeal against the order of acquittal in Criminal Appeal No.1827/2017 which is pending consideration before this Court.

¶28

In 2018, the Registrar of Enquiries - 3 to whom the enquiry is handed-over, conducted the enquiry and in terms of the report dated 21.12.2018, the Enquiry Officer

¶29

¶30

opined that the charge against the petitioner is proved. Based on the enquiry report, on 22.12.2018, Hon'ble Upalokayuktha recommended penalty of compulsory retirement of the petitioner.

¶31

On 22.04.2019, the 1^st respondent issued a

¶32

second show-cause notice seeking explanation on the report as well as the penalty of compulsory retirement sought to be imposed. The petitioner submitted his reply. He cited the judgment in criminal case where a finding is given to the effect that no work of the 1^st respondent was pending before the petitioner. The disciplinary authority accepted Lokayuktha's recommendation and in terms of the order dated 15.10.2019, imposed a penalty of compulsory retirement. The petitioner's challenge to the said order of compulsory retirement in Application No.6196/2019 before the Karnataka State Administrative Tribunal, Bengaluru was unsuccessful as the Tribunal dismissed the application.

¶33

¶34

Aggrieved by the aforementioned order passed by the Karnataka State Administrative Tribunal, the petitioner is before this Court.

¶35

Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents.

¶36

Learned counsel appearing for the petitioner raised the following contentions:

¶37

The Special Court acquitted the petitioner and said acquittal is honourable acquittal. The judgment proceeded on the premise that no work of the complainant was pending before the Tribunal and the alleged trap is not proved. However, the disciplinary authority has not considered the legal consequence of the said judgment of acquittal and mechanically passed an order to impose penalty of compulsory retirement.

¶38

The charges before the Special Court and the charges before the departmental enquiry being one and the same, the finding of honourable

¶39

¶40

acquittal in Sessions Court will definitely have a bearing on the outcome of departmental enquiry and the Enquiry Officer could not have brushed aside the judgment in Special Case.

¶41

The order passed in the departmental enquiry is not a speaking order and said order is passed without application of mind.

¶42

Learned counsel for the petitioner relied on the

¶43

following judgments:

¶44

1. RAM LAL V. THE STATE OF RAJASTHAN AND OTHERS¹

¶45

2. B.R. SHASHIKANTH AND ANOTHER V. THE STATE OF KARNATAKA AND OTHERS²

¶46

3. RAGHAVENDRA KOPPA V. THE SECRETARY AND ANOTHER³

¶47

4. M VENKATESH MURTHY V. THE ADDITIONAL CHIEF SECRETARY AND ANOTHER⁴

¶48

5. UNION OF INDIA AND OTHERS V. GYAN CHAND CHATTAR⁵

¶49

6. S BHASKAR REDDY AND ANOTHER V. SUPERINTENDENT OF POLICE AND ANOTHER⁶

¶50

7. P.V.RUDRAPPA V. THE STATE OF KARNATAKA AND ANOTHER⁷

¶51

8. ORYX FISHERIES PVT. LTD., V. UNION OF INDIA AND OTHERS⁸

¶52

1 CIVIL APPEAL NO.7935/2023

¶53

2 W.P.NO.20439/2021

¶54

3 W.P.NO.1297/2021

¶55

4 W.P.NO.17816/2021

¶56

5 (2009) 12 SCC 78

¶57

6 (2015) 2 SCC 365

¶58

7 W.P.NO.9642/2020

¶59

8 (2010) 13 SCC 427

¶60

¶61

9. STATE BANK OF INDIA AND OTHERS V. RAJESH AGARWAL AND OTHERS⁹

¶62

10.DHARMPAL SATYAPAL LIMITED V. DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI AND OTHERS¹⁰

¶63

Learned Government Advocate appearing for

¶64

the respondents would raise the following contentions:

¶65

The charges framed before the Special Court and the charges framed by the Enquiry Officer are entirely different attracting two different provisions under different enactments.

¶66

The charge before the Special Court was under the provision of the Prevention of Corruption Act, 1988 whereas the charge before the departmental enquiry is under Rule 3 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.

¶67

• The ingredients of the offence of these two charges being entirely different, the benefit of acquittal given in Special Case will not have any impact on the outcome of the departmental enquiry which is

¶68

9 (2023) 6 SCC 1

¶69

10 (2015) 8 SCC 519

¶70

¶71

required to be decided, based on the evidence led before the departmental enquiry.

¶72

• Though, the witnesses before the Special Court and the witnesses before the departmental enquiry are the same to some extent, the evidence led before the Special Court cannot be looked into in a departmental enquiry and the order in departmental enquiry has to be based on the evidence led before the departmental enquiry.

¶73

The disciplinary authority has taken note of all the materials placed on record and concurred with the recommendation of the Hon'ble Upalokayukta.

¶74

The acquittal in Special Case has not yet attained finality and the State has filed appeal against the said order of acquittal and same is pending consideration.

¶75

Assuming that the disciplinary authority has not considered the case of acquittal by the Special Court, remanding the matter to the disciplinary authority to consider the impact of the order of acquittal could be

¶76

¶77

an empty formality in the given set of facts of the case as charges before the Special Court and the departmental enquiry are entirely different.

¶78

No prejudice is pleaded in the application before the Tribunal on account of alleged non consideration of judgment of acquittal by the disciplinary authority.

¶79

This Court has considered the contentions raised at the bar and perused the records and the judgments cited. The principles laid down in the aforementioned judgments are taken note of.

¶80

The fact that the delinquent employee has

¶81

given an honourable acquittal in a criminal case by itself cannot be a ground to set-aside the penalty imposed on the delinquent employee in a departmental enquiry. The said principle of law based on honourable acquittal cannot be applied like a Statute. The disciplinary authority has to consider whether the charges in criminal case and the charges in the departmental enquiry are same or different. If the charges are different, then the acquittal in criminal

¶82

10 -

¶83

case may not have a bearing on the disciplinary enquiry. In this background, it is necessary to consider the charges framed in criminal case and disciplinary proceeding.

¶84

The charge that was framed before the special Court is as under:-

¶85

"(1) Whether prosecution proves beyond all reasonable doubt that accused being a public servant working as FDA in the office of the DDPI at Chikkamagaluru on 30.1.2012 demanded bribe amount of Rs.5000=00 other than legal remuneration from the complainant - Ramappa, teacher working in Kannada Higher Primary School, Ajjampura to prepare file and send it to his higher authority for approval and again on 3.2.2012, he demanded Rs.5,000=00 and on negotiation, he agreed for Rs.3,000=00?

¶86

(2) Whether the prosecution further proves that on 8.2.2012 accused received Rs.3,000=00 from complainant Ramappa being a public servant by corrupt means for discharge of his official duty and thereby committed the offence of criminal misconduct?"

¶87

(Emphasis added)

¶88

The charge that was framed before the

¶89

departmental enquiry reads as under:-

¶90

11 -

¶91

" That, you-DGO Sri K.M.Somashekharappa while working as First Division Assistant in the office of the Deputy Director of Public Instruction, Chickmagalur District during the year 2012, complainant Sri K Ramappa S/o Junjabhovi was working as Assistant Teacher in Kannada New Higher Primary School at Ajjampur, Tarikere Taluk, Chickmagalur District from 15.09.2011. His Annual increment and Time Bond Increment were not sanctioned from July-2000. Therefore, he (complainant) submitted the records for the sanction of said benefits through BEO, Tarikere to the Office of the DDPI, Chickmagalur on 30.01.2012 and approached you DGO in that connection, at that time you DGO told at the first instance that file is not received . Inspite of it, you DGO demanded bribe of Rs.5000/- to put up the file before the higher authority for approval. Therefore, complainant again met you DGO on 08.02.2012 and requested to reduce the bribe amount, at that time you DGO reduced the bribe Rs.3000/- to do your official work. Thereafter, you DGO demanded and accepted bribe of Rs.3000/- at 1:15 PM on 08.02.2012 in the office of the DDPI, Chickmagalur . In this way, you have failed to maintain absolute integrity and devotion to duty, the said act of you was unbecoming of a Government Servant and thereby committed misconduct as enumerated U/R 3(1)(i) to (iii) of Karnataka Civil Service (Conduct) Rules 1966."

¶92

(Emphasis added)

¶93

12 -

¶94

In terms of the law laid down by the Hon'ble Apex Court in various judgments, after receipt of the report of the enquiry, the disciplinary authority has to issue show-cause notice based on the enquiry report, to the delinquent employee on the penalty sought to be imposed on the delinquent employee. The delinquent employee is entitled to reply to the said show-cause notice as to why the enquiry report is untenable and as to why no case is made out to impose the penalty. On receipt of such response from the delinquent employee, the disciplinary authority is bound to consider the response objectively and thereafter has to pass appropriate orders in accordance with law. It is not in dispute that the delinquent employee has placed the judgment of acquittal in Sessions Case before the enquiry officer and the enquiry officer has made observations that the judgment of acquittal would not enure to the benefit of delinquent employee and found the delinquent employee guilty. The delinquent employee, pursuant to the show-cause notice, has also placed reliance on the said judgment of acquittal in his response to the second show-cause notice. Under

¶95

13 -

¶96

these circumstances, the implication of the said judgment of acquittal is required to be considered by the disciplinary authority. As can be noticed from the impugned order of penalty passed by the disciplinary authority, it is evident that the disciplinary authority has not considered the reply of the delinquent employee in a way it should have been considered. From the impugned order of penalty, it is noticed that there is no reference to the judgment of acquittal passed in favour of the delinquent employee. If the charges in the departmental enquiry and the charges in the criminal case are one and the same, the benefit of honourable acquittal may enure to the benefit of the delinquent employee. If the charges are different, the benefit of honourable acquittal will not accrue to the delinquent employee. However, these aspects have not received the due consideration by the disciplinary authority.

¶97

In the normal circumstance, the course open to the Court is to remand the matter to the disciplinary authority with a direction to consider the effect of judgment of acquittal. The learned Government Advocate

¶98

14 -

¶99

would submit that the remand in the instant case is an empty formality for two reasons namely; (a) the charges in both proceeding being different, the judgment of acquittal in criminal case will have no bearing on the outcome of the disciplinary enquiry, (b) the challenge to the acquittal judgment is under challenge and same has not attained finality, (c) no prejudice is pleaded in the application before the Tribunal on account alleged non consideration of judgment of acquittal by the disciplinary authority.

¶100

It is to be noticed that the both proceedings are initiated on the same set of facts alleged and not on different set of facts. In the criminal case, 12 witnesses are examined and in the disciplinary enquiry, only 3 among the 12 witnesses in criminal case are examined. No doubt the order of acquittal in criminal case is under challenge and has not yet attained finality, but at the same time the delinquent employee is entitled to a consideration on the said order of acquittal. On consideration based on facts, the benefit may or may not enure to the delinquent employee. However, the matter

¶101

15 -

¶102

required objective consideration by the disciplinary authority.

¶103

In that view of the matter, the order imposing penalty without objective assessment of the reply to the second show-cause notice is untenable.

¶104

Learned Government Advocate in support of his contention that the procedural lapse if any in not furnishing the enquiry report or not issuing a second show cause notice post enquiry and before imposing penalty by itself will not make the order of penalty illegal by relying upon the judgment of the Hon'ble Apex court in HARYANA FINANCIAL CORPORATION VS. KAILASH

¶105

CHANDRA AHUJA¹¹ . By referring to the said judgment, it is urged that violation of principles of natural justice becomes fatal, only if the such breach has caused prejudice to the delinquent employee.

¶106

This Court has considered the contentions in this behalf. The petitioner has urged that the penalty is imposed without reference to the order of acquittal and

¶107

11 (2008) 9 SC 31

¶108

16 -

¶109

same is contrary to the judgment of the Hon'ble Apex court and order is a non speaking order and without application of mind. On overall consideration of the pleading, it is evident that prejudice is pleaded. Though, the grounds urged in the application before the Tribunal are not elaborate, on the prejudice cause, the non application of mind and non consideration of the order of acquittal are specifically pleaded. In the facts of the case, it cannot be accepted that the prejudice is not pleaded. When the penalty of compulsory retirement is imposed on the delinquent employee, without reference to the order of acquittal in a criminal case, instituted on the same set of facts, it is not open to the State to contend that prejudice is not pleaded or caused.

¶110

Learned counsel for the petitioner in support of his contention relating to violation of principles of natural justice has relied on the judgments of the Hon'ble Apex Court in 1) Oryx Fisheries Private Limited vs. Union of India, (2010) 13 SCC 427, 2) State Bank of India vs. Rajesh and Others, (2023) 6 SCC 1 and 3)

¶111

17 -

¶112

Dharampal Satyapal Limited vs. Deputy Commissioner of Central Excise, Gauhati and Others (2015) 8 SCC 519. On going through the ratio laid down in the aforementioned judgments, it is apparent that the second show cause notice in a disciplinary proceeding is not an empty formality and the quasi judicial authority is required to give valid reasons for passing quasi judicial orders. It is also noticed that the Hon'ble Supreme Court has laid down a ratio that the Court has to decide whether any purpose would be served while remanding the matter on the ground of violation of principles of natural justice.

¶113

In the backdrop of the facts obtained in this case, this Court is of the view that such non consideration of the judgment of acquittal, by the disciplinary authority vitiates the order imposing penalty. Hence, the matter requires to be remanded to the disciplinary authority for fresh consideration on the finding of the enquiry officer.

¶114

The Tribunal has not taken into consideration

¶115

the aforementioned aspects. This Court is of the view that

¶116

18 -

¶117

the decision making process is vitiated to the above extent. Accordingly, the petition calls for a judicial review.

¶118

Hence, the following:

¶119

ORDER

¶120

(i) Writ Petition is allowed .

¶121

(ii) The order dated 12.04.2022 passed by the Karnataka State Administrative Tribunal, Bengaluru in Application Number 6196/2019 so also the Government Order bearing No.ED.57.LIB.2019 dated 15.10.2019 are set-aside.

¶122

(iii) The matter is remitted to the disciplinary authority to consider the response to the second show-cause notice in accordance with law, and to pass a reasoned order on the claim made based on the order of acquittal in Spl Case No.21/2013 on the file of Sessions Court, Chikkamagaluru.

¶123

(iv) It is further made clear that nothing is expressed on the merits of the respective claim of both parties including consequence of acquittal in Spl Case No.21/2013.

¶124

Sd/JUDGE

¶125

Sd/JUDGE

¶126

brn/chs

Sri. K.M. Somashekharappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. K.M. Somashekharappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

G B Devaraj Since Dead by Lrs Vs Chikka Narayanappa Dead by Lrs

Smt. S.N. Shanthamma, Vs Smt. Hulluramma

Dr Vijaya Kumari Vs State of Karnataka

The Appointing Authority and Deputy Secretary Vs State of Karnataka

Sri N Muniraju Vs State of Karnataka

Sri H M Farooq @ Mueen Farooq Vs Sri H.G. Kamaraddy