Dr.S.S.Naregal Vs the Registrar

DR. S. S. NAREGAL, AGE: 63 YEARS, OCC: RETD. ASSOCIATED PROFESSOR IN GEOGRAPHY, KARNATAKA UNIVERSITY, R/O. BASAVA KARUNYA, PLOT NO. 7, DUMGERI, SAIDAPUR, DHARWAD-8.

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…PETITIONER

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(BY SRI RAMACHANDRA V. BHAT, ADVOCATE FOR SRI F. V. PATIL, ADVOCATE)

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AND:

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench, Dharwad

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THE REGISTRAR, KARNATAKA UNIVERSITY, DHARWAD.

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…RESPONDENT (BY SRI GIRISH S. HULMANI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER VIDE ANNEXURE-J, DATED 23/03/2013 PASSED BY RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY. PASS SUCH OTHER SUITABLE ORDERS AS THIS HON’BLE COURT DEEMS FIT AND PROPER IN THE NATURE AND

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CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

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The petitioner is before this Court calling in

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question an order dated 23.03.2013 by which the increments that were drawn by the petitioner in the year 2010 are sought to be recovered.

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Heard the learned counsel Sri.Ramachandra V. Bhat appearing on behalf of Sri.F.V.Patil for petitioner and learned counsel Sri.Girish S. Hulmani appearing for respondent.

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Facts in brief germane are as follows:

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The petitioner was at the relevant point in time working as Professor in the post graduate department of Geography in the respondent-Karnataka University Dharwad (for short “the University”). Owing to certain allegations of sexual harassment of work place after the

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enquiry so conducted the petitioner was imposed the

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following penalty:

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“Dr. S.S. Naregal submitted his reply on 30 August 2004. The reply submitted by Dr. S.S.Naregal was placed before the Syndicate meeting held on 9/20.10.2004 vide item No.11 and the Syndicate considered to representation of Dr.S.S.Naregal, and unanimously resolved to modify the earlier decision, and imposed penalty for misconduct committed by Dr. S.S.Naregal and reduce the pay and Grade of Dr. S.S.Naregal from Professor to Reader. His pay should be fixed to the maximum of Reader scale. He will not be entitled for any promotion in future. His suspension period will be treated as leave. He will not be entrusted with any administration and examination work I future.

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Office order No.KU/DPAR/T/2004/5324 Date23.11.2004

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In pursuance of the decision of the Syndicate hold on 9 and 20.10.2004 vie res. No.11 Dr. S.S.Naregal. Professor. Dept of Geography, K.U.Dharwad is reinstated with imeediate effect, with following order

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1. His pay and grande is reduced forn Professor to Reader.

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2. His pay will be fixed at the maximum of pay Scale of Reader.

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3. He will not be entitled for any promotion in future.

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4. His suspension period is treated to leavo. 5. He will nto be entrusted with any administrative and Examination work in future.

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He is hereby asked to report for duty.”

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The subject penalty comes to become the

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subject matter of challenge before this Court in Writ Petition No.12100/2007 dated 25.06.2015. A Co-Ordinate

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bench of this Court allows the petition in part by the

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following order:

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“6. The charge against the petitioner is one of sexual harassment. However grave the offence may be, punishment must be as indicated by law. In terms of the Government Circular dated 14/09/2001, various punishment that could be given for various offences have been narrated. Item 8 therein is with regard to sexual harassment and the punishment that may be imposed is ‘reduction in the pay scale or in the alternative reduce to a lower grade.’

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7. In the instant case, the grade of the petitioner from ‘Professor’ has been reduced to a ‘Reader’. Item No.2 is only with

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8. fixation of pay scale to that of the Reader. Therefore, the punishment as imposed in items 1 and 2 are appropriate. 8. Item No.3 is that he would not be entitled to any promotion in future. The same would become inconsequential in view of the fact that the petitioner has since retired.

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9. Item No.4 is that his suspension period be treated as leave. Based on the Government Circular, such a punishment cannot be imposed which runs contrary to the Government Circular. Hence, item No.4 wherein his suspension period was treated as leave, is hereby set aside.

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10. Item 5 is that he will not be entrusted with any administrative and examination work in future. This order too has become inconsequential in view of the fact that the petitioner has since retired.

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Consequently, the petition is partly allowed. Items 1 and 2 in the Office Order in No.KU/DPAR/T/2004/5324 dated 23/11/2004 is sustained. Items 3 and 5 do not survive for consideration. Item No.4 is set aside.”

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The effect of the order is that in the penalties aforequoted, few of them were found to be unnecessary to even be granted. The penalties that were affirmed are that the petitioner’s grade being reduced from the post of Professor to Reader, and the consequential pay had to be fixed in the scale of Reader. What is held to be unnecessary, is that the petitioner would not be entitled to any promotion in future as the petitioner as by then he had retired on attaining the age of superannuation. The suspension that was directed to be treated as absence is set aside. The other penalty is that he would not be entrusted with any administrative or examination in future, had also become superfluous as the petitioner had already attained the age of superannuation by then. Therefore what remains is the effect of the reduction of pay of the petitioner from Professor to Reader and the pay to be fixed at the maximum scale of pay of Reader.

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The University grants the petitioner two increments for the year 2010 and 2011 in terms of an order dated 23.01.2010. The increments in total that was

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drawn by the petitioner was Rs.52,390/-. The order also indicated entitlement of future increments. Long thereafter i.e. after the retirement of the petitioner the said increment is sought to be withdrawn, by an office order observing, that it was erroneously paid and it had to be

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readjusted. The office order reads as follows:

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“OFFICE ORDER

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SUB.: Re-fixation of pay.

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Ref.: 1. This Office Order No.KU/ DPAR/ T/ 2004/ 5324, Dated 23.11.2004 2. Audit Objection Report for the year 2009-10.

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3. This Office Order No. KU/ DPAR/ T/ 2012/6013, Dated: 23.01.2012

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In partial modification of the Office Order No.KU/DPAR/T/2010/6132, dated:23.01.2012, the increments released to Dr. S. S. Naregal, Associate Professor (Rtd.), P. G. Department of Geography, K U Dharwad, from 1.1.2006 are withdrawn and his pay is fixed at Rs.52,390/-w.e.f. 1.1.2006 in the pay band of Rs.37,400-67,000+ AGP 9000.

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Further, he is not entitled for any increments as per the Office Order referred above at Sl. No.1. The excess salary paid to him is ordered for recovery.

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This order is issued subject to the corrections/Audit objections.”

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In the light of the office order the pension of

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the petitioner is now sought to be varied as the pay was fixed at Rs.52,390/- with effect from 01.01.2006 with a particular pay band. This again becomes the subject matter of challenge before this Court in Weir Petition No.75447/2013 dated 11.02.2013. The subject petition comes to be allowed by quashment of the order that reduced pay of the petitioner observing as follows:

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“In the result, writ petition is allowed and the office order as at Annexure – E is quashed. Respondent is directed to furnish a copy of the relevant portion of the audit report or the observation, for the year 2009-10, to the petitioner, along with a show cause notice, showing the erroneous fixation and the particulars of the excess amount sought to be recovered. Said exercise be undertaken within a period of eight weeks. The reply, if submitted, within a period of two weeks from the date of service of show cause notice, be considered and decision taken, subject to the result of the Writ Petition No.12100/2007.

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No costs. ”

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8. Allowing the fact, a direction was issued to the

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University to furnish all the documents that led to passage of the order impugned therein, which reduced the pay of

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the petitioner. Then comes the show cause notice dated 09.03.2013. After the show cause notice, comes the

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impugned order dated 23.03.2013. The order reads as

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follows:

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“To, Dr. S. S. Naregal, Associate Professor of Geography (Rtd.), Basavakarunya Building, Dumgeri Plot-7, Saidapur, Dharwad – 580 008.

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Sir,

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SUB.: Fixation of your scale consequent to the punishment order -Reg.

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REF.: 1. This Office Order No.KU/ DPAR/T/ 2004/5324, Dated 23.11.2004.

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2. Order dated 11.02.2013 of the Hon’ble High court of Karnataka, Circuit Bench, Dharwad in Writ Petition No.75477/ 2013 (s).

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3. This Officer Order No.KU/ DPAR/T/ 2012/5884, Dated 09.01.2013

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4. Show Cause Notice No.KU/ DPAR/ T/ 2013/ 6159, Dated 09.03.2013.

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5. Your reply to Show Cause Notice dated 14.03.213.

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With reference to the subject cited above, the following is informed to you as per the direction of the Hon'ble High Court of Karnataka, Circuit Bench, Dharwad.

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1. Your punishment order was issued on 23.11.2004 and the same has come into force with immediate effect. In accordance with the said punishment order your scale has been determined and fixed accordingly. And the scale was paid to you till 1.4.2010. You have accepted the said scale and drawn the salary accordingly till that date.

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2. The University, pursuant to the revision of pay scales by the UGC & the consequent G. O. No. ED 37 UNE 2009 dated 24.12.2009 issued by the Government of Karnataka inadvertently revised your scale as per the order of the revision of pay scale and issued order on 23.1.2010 to that effect. Subsequently, as per this order you are paid the revised pay scales. This was an inadvertent error occurred by way of omission. This omission was subsequently ascertained by the audit report and directed the University to rectify the same to implement the punishment order.

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3. Accordingly, the University complying with audit objection re-ascertained your pay scale as per the punishment order and fixed the scale.

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4. In view of this, in partial modification of this Office Order No.KU/DPAR/T/2010/6132, Dated: 23.1.2010 issued to you, your pay is re-fixed in the scale of Rs.52,390/- pm. (Rs43,390 + 9000 AGP - corresponding to the revised UGC pay scales). Accordingly, your pensionary benefit will be determined and will be paid to you at the earliest.

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5. All this process has been carried by the University effectively and as per the law dealing with the disciplinary proceedings domain.”

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The University construes that what was

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imposed upon the petitioner was stoppage of increment as

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well, or increments had to be stopped, as consequence of

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aforementioned penalty. The opining of the University, in

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the impugned order is on the face of it incorrect. As the

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penalty was is reduction in rank from Professor to the Reader and the fixing of the pay of the petitioner to the maximum scale of pay of the Reader. There is no indication in the penalty or as affirmed by this Court, that the future increments, of the petitioner would be stopped. What was ordered was reduction in rank from Professor to Reader and fixation of pay in the scale of Reader. There was no penalty of stoppage of future increments and therefore the order that directs refixation of the pay of the petitioner and consequent refixation of pension, on the

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ground that the pay of the petitioner has been reduced to Rs.52,390/- as against Rs.62,580/- at the basic, is on face of it erroneous as observed hereinabove. In that light, the

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petition deserves to succeed.

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For the aforesaid reasons the following:

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ORDER

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(i) The petition allowed.

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(ii) The impugned order Ref No.KU/DPAR/

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T/2013/6515 dated 23.03.2013 vide Annexure-J stands quashed.

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(iii) Mandamus issues to the respondent to rework the pension of the petitioner and pay the arrears of pension to the petitioner from date of it fell due, till the date of payment.

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(iv) Since the petitioner is retired thirteen years ago the order shall be complied within two months from the date of

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receipt of copy of this order.

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Ordered accordingly.

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Sd/(M.NAGAPRASANNA) JUDGE

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RHR/-

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List No.: 1 Sl No.: 5

Dr.S.S.Naregal v. the Registrar

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Dr.S.S.Naregal v. the Registrar

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