The State of Karnataka Vs Sri Imrankhan Abdulmunaf Ghori S/O Abdulmunaf Ghori Aged

SRI. IMRANKHAN ABDULMUNAF GHORI S/O ABDULMUNAF GHORI, AGE. 33 YEARS, OCC. DISMISSED FROM SERVICE, (APC,B.NO.2932) R/O MAVANUR, NEAR BUS STOP, TQ. HUKKERI, DISTRICT BELAGAVI 591122.

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…RESPONDENT

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(BY SRI. SHREEVATSA HEGDE, ADVOCATE FOR C/R)

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER PASSED BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BELAGAVI IN APPLICATION NO.10246/2023 BY ORDER DATED 11.01.2024 VIDE ANNEXURE-A & ETC.

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

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)

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The present petition has been filed by the State calling in question the correctness of the order dated 11.01.2024 passed by the Tribunal in Application No.10246/2023. The Tribunal by virtue of its order dated 11.01.2024 allowed the application of the employee, who was the applicant before the Tribunal, and set-aside the order dated 21.09.2021 at Annexure-A5, whereby the order of imposition of penalty was set-aside, as also the confirmation of said order by way of appellate order at Annexure-A6.

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The parties are referred to as per their rank before the Tribunal for the sake of convenience.

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The State has assailed the validity of the impugned

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order of the Tribunal on two grounds viz., (1) while setting aside the penalty order on the ground that the charges were framed by the Enquiry Officer, who was not competent under Rule 6 of Karnataka State Police (Disciplinary Proceedings) Rules, 1965/1989¹ , the tribunal ought to have reserved liberty to reinitiate the enquiry proceedings by Competent Authority as the cause of misconduct still remained on record. (2) It is also contended that the Tribunal had passed observations regarding the order of acquittal not having been taken note of the Disciplinary Authority without noticing that the order of acquittal was passed on 24.08.2022 while the order of penalty itself was imposed on 21.09.2021. It is submitted that once the order of penalty is imposed, the question of reopening such proceedings did not arise.

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The brief facts are that it was alleged that the applicant had committed misconduct and the said aspect of misconduct was also a subject matter of Crime No.22/2020. In light of the alleged misconduct relating to offences punishable

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1 For short ‘Disciplinary Rules’

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under Sections 376, 323, 354, 406, 420, 504, 506 read with Section 34 of the Indian Penal Code, the employer had framed charges. After enquiry, the charges were found to be proved and penalty was imposed. Said order came to be challenged before the Tribunal on various grounds including that the charge was framed by the Enquiry Officer and that was contrary to Rule 6 of the Disciplinary Rules according to which, it was the Disciplinary Authority, who is to frame charge. The applicant had also raised contention that he was acquitted in criminal case and such aspect was not taken note by the Disciplinary Authority.

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Perused the order of the Tribunal. The Tribunal has referred to the facts of narrated above and set aside the order of imposing the penalty on the ground that the charge was framed by the incompetent authority. The Tribunal has also made observations regarding the order passed by the criminal Court.

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It must be noticed at the outset that, normally when an authority were to set-aside the disciplinary proceedings on the ground that the charges were not framed

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by Competent Authority, which appears to be correct position in the present facts of the case, the Tribunal ought not to have entered into other aspects.

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Once the finding is recorded that the proceedings of the Disciplinary Authority was vitiated on a technical ground as rightly contended by the learned Government Advocate Sri.G.K.Hiregoudar, the Tribunal ought to have remanded the matter back for revival of proceedings after rectifying the technical defects. This contention is in line with the order of the Apex Court in the case of ANANT R.KULKARNI v.Y.P.EDUCATION SOCIETY AND OTHERS² . The Apex Court at paragraphs 12 and 13 has referred to the legal position. Said paragraphs are extracted for reference as under:

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“ 12. The appeal raises the following substantial questions of law:-

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12.1 In case the punishment is set aside by the Court/Tribunal as the enquiry stood vitiated for technical reasons, whether the employer is entitled to hold the enquiry afresh from the point it stood vitiated;

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2 (2013) 6 SCC 515

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12.2 Whether the enquiry can be quashed on the ground of delay?

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12.3 Whether the enquiry can be permitted to be held on vague and unspecified charges? and

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12.4 Under what circumstances can enquiry be conducted against the delinquent employee who has retired on reaching the age of superannuation?.

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In case the punishment is set aside

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13. It is a settled legal proposition that, once the Court set asides an order of punishment on the ground, that the enquiry was not properly conducted, the Court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the concerned case to the disciplinary authority, to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds. (Vide: ECIL v. B. Karunakar, Hiran Mayee Bhattacharyya v. S.M. School for Girls, U.P. State Spg. Co. Ltd. v. R.S. Pandey and Union of India v. Y.S. Sandhu.)”

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No doubt, the Apex Court has remarked that while remanding the matter, the gravity of offence may also have to be taken note of. In the present case, prima facie allegations made relating to the criminal case are grave in nature and in that context, it can be stated that the misconduct complaint requires re-investigation and accordingly, ought to have been relegated for fresh enquiry.

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Insofar as the second contention that was noticed by the applicant, which was taken note of by the authority, as regards the acquittal in criminal proceedings all that were to be stated is that the order imposing penalty was on 21.09.2021 and the order of acquittal itself in the criminal case as stated by the applicant was on 24.08.2022. If that were to be so, as on the date of passing of the order of imposition of penalty, order of acquittal was not before the authority.

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It must also be noticed that mere acquittal will not result in ipso facto exoneration in disciplinary proceedings as well, as the Disciplinary Authority must take note as to charges framed in the criminal case as well as that in the disciplinary proceedings and evaluate similarity of charges and the

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evidence in that regard. In the present case, the Tribunal has not resorted to such exercise, which if not done, no findings could be recorded that the disciplinary proceedings have to be closed merely on the acquittal in the criminal case. Accordingly, the order of the Tribunal is set aside as also the order at Annexure-A5 and the consequent appellate order at AnnexureA6 are set aside.

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In view of the above, the writ petition is allowed . The matter is remitted back to the stage of post reply to show cause notice and is then permitted to be proceeded in accordance with law while taking note of the observation of the Tribunal insofar as competency to frame charge.

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Needless to state that the applicant should be entitled to place before the Disciplinary Authority the proceedings in the criminal case which may be taken note of as is permissible in law vis-à-vis its implication on the misconduct alleged and charges framed in the disciplinary proceedings.

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Needless to state that in light of proceedings now being revived, after the first round of disciplinary proceedings were completed, the proceedings may be expedited by the

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