Smt Siddamma Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO IMPUGNED ORDER DATED 25.05.2022 PASSED IN APPLICATION No. 4815/2019 PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU AND PERUSE THE SAME AND CONSEQUENTLY ISSUE WRIT IN THE NATURE OF CERTIORARI TO SET ASIDE THE IMPUGNED ORDER PASSED IN APPLICATION No. 4815/2019 DATED 25.05.2022 PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE A.No-4815/2019 AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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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 B M SHYAM PRASAD and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This petition is by the unsuccessful applicant under Articles 226 and 227 of Constitution of India calling in question the order dated 25.05.2022 passed by Karnataka State Administrative Tribunal, Bengaluru, ('the Tribunal' for short) in Application No.4815/2019, dismissing the application declining to interfere with the order impugned in the application.

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The parties are referred to as per the rankings before the Tribunal.

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Brief factual matrix leading to filing of this petition are as under:

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The applicant was working as a 'D' group

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employee as a cook ('D' Group), in a pre-matric Government Boys Hostel, Tumkur, at the relevant point of time.

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On 01.03.2016, the Tumkur Rural Police received information that certain illegal activities were going on in the house belonging to the applicant. Upon the information the police conducted a raid between 05.30 p.m. to 07.00 p.m. in the presence of panchas and found certain illegal activities in the premise as per the information received and in the raid had taken into their custody certain persons including the applicant.

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A criminal case came to be registered in Crime No.50/2015 on 25.02.2015, for the offences punishable under Sections 3, 4, 5, 7 and 8 of Immoral Traffic (Prevention) Act, 1956 (for short 'Act of 1956'). The police subsequently after conducting investigation filed charge sheet on 24.11.2016 before the concerned jurisdictional at Magistrate. The

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Magistrate having taken cognizance of the offences directed the office to register the case.

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The office upon the direction registered

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the case in CC No.3587/2017. The said case was pending at the relevant point of time.

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In view of the developments, the fifth respondent filed report with the fourth respondent and recommended to keep the applicant under suspension as per the provisions of Karnataka Civil Service Rules ('KCSRs' for short) (Annexure A-3).

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The fourth respondent forwarded his report with recommendation to the third respondent for further action. When the said recommendation was pending consideration, fifth respondent informed the fourth respondent on 09.03.2016 that the applicant has not reported to duty since 01.03.2016. On 10.03.2016, the third respondent passed an order placing the applicant under suspension with effect from the said date and she has been relieved from

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duty by the fifth respondent in terms of the said order.

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Based on the allegations in the FIR registered and charge sheet filed, a departmental enquiry comes to be initiated under Rule 11 of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 [for short "KCS (CC&A) Rules"] appointing an Enquiry Officer. The Disciplinary Authority issued show cause notice with Articles of charge with imputations and statement of witnesses calling upon their applicant to show cause by submitting the reply to the said notice.

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The applicant in response to the show cause notice issued, filed a reply denying the allegations contending that the persons residing in the neighbourhood who are inimically disposed towards her furnished false information and that at the instance of certain officers, the false raid was conducted and leading to the present departmental enquiry and sought to drop the enquiry.

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The Enquiry Officer not satisfied with the

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reply proceeded to hold the enquiry. During the course of enquiry, four witnesses have been examined by the Presenting Officer and certain documents are marked.

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The Enquiry Officer concluded the enquiry, holding that the charges levelled against the applicant have been proved, by his report dated 30.05.2018 and forwarded the same to the third respondent. The third respondent, after receipt of enquiry report, issued second show cause notice along with copy of the report, to the applicant.

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The applicant replied to the second show cause notice, denying all the allegations and again sought to drop the proceedings. The third respondent, upon consideration of report as well as the reply to the second show cause notice, passed the order imposing the penalty of compulsory retirement of the applicant from service (Annexure A-13). The

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applicant was relieved from the service with effect from 24.09.2018.

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The applicant at the earlier point of time called in question the penalty order in Application No.7936/2018 before the Tribunal. The Tribunal having found that there is an alternative and efficacious remedy of appeal available under the Provisions of CCA Rules, 1957, disposed of the application reserving liberty to the applicant to avail the opportunity of appeal before the concerned authority. The applicant subsequently to the order passed by the Tribunal, filed an appeal in terms of Rule 18 of CCA Rules, 1957, before the first respondent-Government.

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The first respondent upon consideration of appeal papers and other materials placed before him dismissed the appeal, confirming the order of penalty. Aggrieved by the order of penalty as well as confirmation in the appeal, the applicant was before the Tribunal in Application No.4815/2019. In the

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meanwhile, the criminal case registered against the applicant by the Tumakuru Rural Police comes to be committed to the Sessions Court for trial. The Sessions Court after committal registered the same in SC No.113/2022 and framed charge for the offences punishable under Section 370 of Indian Penal Code along with other provisions punishable under Sections 3, 4, 5 and 7 of Act of 1956.

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Upon acceptance of notice of the application stated supra, the State Government filed its statement of objection denying the case of the applicant and supported the enquiry report and order of penalty as well as order passed by the Appellate Tribunal and sought to dismiss the appeal.

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Before the Tribunal the applicant urged

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mainly on five points:

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The departmental enquiry comes to be initiated only on the basis of a FIR and police statements and without their

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being any independent witnesses and substantive evidence.

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The Enquiry Officer erred in appreciating the evidence of PW.3 and PW.4 being the Police Officers and interested witnesses.

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The departmental enquiry was proceeded without awaiting the judgment in the criminal case pending before the Sessions Court.

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All the witnesses, who have been examined are either police witnesses or the departmental officers, except them no other independent witnesses have been examined to prove the allegations.

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Lastly the argument is based on the point that no complaint has been received from any of the students or staff of the hostel or public against the applicant, so far.

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With these, the applicant sought to allow

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the appeal quashing the impugned orders in the

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application. The respondent reiterated the statement of objections filed in the application and supported the enquiry report, impugned order of penalty and order passed by the Appellate Authority.

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The Tribunal after considering the rival submissions and considering the entire documents and under judicial review, considered the evidence in order to eradicate any perversity either in the enquiry report or the penalty order passed by the Disciplinary Authority confirmed by the Appellate Authority. The Tribunal found that charges against the applicant have been proved on the scale of preponderance of probabilities and also found that all the opportunities under law have been offered to the applicant in the enquiry comes to the conclusion that the penalty of compulsory retirement imposed on the applicant in terms of Rule 8 of CCA Rules, 1957, looking in to the nature and gravity of the charges, are reasonable, proper and proportionate relying on the judgments of the Hon'ble Apex Court on the judicial review and

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having found no merits in the application, dismissed the application by its order dated 25.05.2022. It is this order passed by the Tribunal that is called in question in this petition after lapse of nearly two and half years.

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Heard Sri Thyagaraj S., learned counsel for the petitioner and Sri Vikas

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Rojipura, learned counsel for the respondents.

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Sri Thyagaraj S., reiterating the points urged by the applicant before the Tribunal, which are culled out in the above paragraph, submits that in view of subsequent development in the criminal case registered by the police, ending in acquittal before the Sessions Court, the Departmental Enquiry held on the very same set of facts, the order passed on the report required to be quashed.

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He further submits that the Tribunal has failed to consider probative value of the witnesses before the Enquiry Officer. He further submits that the criminal case was proceeded on the very set of

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facts, which is the basis for the departmental enquiry. The Sessions Court on appreciation of evidence found that the charges levied against the applicant in the criminal case were not proved by the prosecution. In these circumstances, the acquittal amounts to a honourable acquittal, on the same set of facts has got a bearing on the departmental enquiry, as it was based on the FIR and police documents.

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He further invited our attention to the Articles of charge issued to the applicant as per Annexure-A6 to contend that the basis for the charges is the registration of case by the police under the Provisions of Act of 1956, on the basis of which a report submitted by the Assistant Director, Social Welfare Department, Tumkur to the Joint Directors of Social Welfare Department. In these circumstances, since the charge levelled against the applicant in departmental enquiry having been answered by the Criminal Court as proved by the prosecution. The

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departmental enquiry held on the same set of facts gets vitiated and the same be considered in favour of the applicant. The criminal case was pending before the Sessions Court, when the application was finally heard and disposed of by the Tribunal. Now in lieu of acquittal the applicant is entitled claim obliteration for benefit in the departmental enquiry held on the very same set of facts. With these the applicant sought to allow the petition, quash the order passed by the Tribunal and consequently, to allow the application and quash the orders impugned therein.

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In contrast, Sri Vikas Rojipura, inviting our attention to the order passed by the Tribunal as well as the order of acquittal by the Sessions Court submits that the contention of the applicant that the acquittal is a honorable acquittal does not merit for consideration as the acquittal is based on benefit of doubt extended to the applicant, which is clear in the last four lines at page No.31 of the Judgment passed by the Sessions Court, where in unequivocal terms

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the Sessions Courts has recorded that the charges levelled against the accused persons have not been proved by the prosecution beyond reasonable doubt and the benefit of doubt has to be extended to the accused persons.

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Further Sri. Vikas Rojipura, submits that acquittal on benefit of doubt has no bearing on the enquiry conducted by the department in the departmental enquiry. The scale of proof of acquittal in departmental enquiry is preponderance of probabilities, whereas, the scale of proof in criminal enquiry is beyond reasonable doubt. The charges levelled against the applicant were serious in nature and against the norms of the society. The charges levelled are under the provisions of Act of 1956 are very severe in nature, affecting the public interest at large. With these, Sri Vikas Rojipura, sought to dismiss the petition and confirm the order passed the Tribunal.

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Upon considering the rival submissions

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perused the entire writ petition papers.

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It is trite that the judicial review available

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to the Tribunal as well as this Court to interfere in any departmental enquiry proceeding is in a narrow compass unless and until it is shown that the enquiry held is perverse either due to wrong appreciation of evidence or on no evidence and the penalty imposed shocks the conscience of the Court. With respect to the punishment imposed compared to the charges levied, the Courts are not expected to exercise its review jurisdiction as that of an Appellate Court in re-appreciating the entire materials placed before the Enquiry Officer either by way of oral as well as documentary evidence.

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Under two contingencies, the Tribunal as well as this Court exercising power under Article 226 would interfere in the findings recorded by the Enquiry Officer.

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If it is shown that there is no

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evidence before the Enquiry Officer to come to the conclusion.

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That the finding recorded by the

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Enquiry Officer is perverse in nature with respect to the evidence placed before it.

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The Tribunal having considered the entire material placed before it, in order to eradicate any perversity gone into the entire material placed before it and comes to a conclusion and rightly so concluded that the entire enquiry was held in a fair and proper manner, affording all opportunities in terms of the provisions of CCA Rules 1957. The Tribunal in view of the same having not found any perversity, in the enquiry report however found that the conclusion arrived by the Enquiry Officer is based on the materials placed before him on the preponderance of probabilities, declined to interfere with the orders of penalty and confirmation of the same by the

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Appellate Authority, holding that the enquiry report, order of penalty and the Appellate Court order are reasonable, proper and proportionate, looking to the gravity of charges levelled and proved, dismissed the application holding that the order of penalty and the order of Appellate Court does not call for any interference.

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We have gone through the entire order passed by the Tribunal as well as the penalty order. The applicant has not made out any case to take a different view than the one taken by the Tribunal. In these circumstances, there is no merits in this petition which requires any consideration. Looking at the gravity of charges levelled and the same having been proved on the basis of preponderance of probabilities, we find force in the submission of Sri. Vikas Rojipura, that an acquittal for the failure of the prosecution to prove the case beyond reasonable doubt, cannot be extended to benefit the applicant to contend that the departmental enquiry held on the

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