IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.39 OF 2016 (S-DIS) BETWEEN:
THE DIRECTOR & COMMISSIONER OF MUNICIPAL ADMINISTRATION 9TH FLOOR, VISHWESHWARAIAH TOWERS, BENGALURU-560001.
(BY SRI.LAXMINARAYANA, AGA.) AND:
H SHIVAKUMAR SON OF LATE HANUMANTHA AGED ABOUT 44 YEARS EX-SECOND DIVISION ASSISTANT TOWN PANCHAYATH SOMWARPET-571 236 KODAGU DISTRICT.
RESIDING NEAR MUTTON MARKET NIRMALA NAGAR, HASSAN.
... APPELLANT ... RESPONDENT (RESPONDENT IS SERVED AND UNREPRESENTED) THIS APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.15821/2012 DATED 16/02/2015.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 16.02.2015 passed by the learned Single Judge in W.P. No.15821 of 2012 by the which the petition was allowed, the respondent is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India assailing the order dated 19.04.2012 (Annexure-J) passed by the respondent, discharging the petitioner from service under Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as ‘the Rules’ for short) . The petitioner asserts that he was working as a Second Division Assistant at Town Panchayath, Somwarpet, Kodagu District. The petitioner was appointed by order dated 24.07.1997 under Compassionate appointment as his father Hanumanthappa who was working in City Municipal Council, Hassan died while in service on 25.4.1995. It is stated that after appointment, the petitioner has passed prescribed Departmental Examinations. While he was working at Town Panchayath, Somwarpet, a show cause notice dated 21.06.2011 was issued alleging unauthorized absence and lack of knowledge to discharge his duties. It is stated that the petitioner submitted his reply to the said show cause notice. Thereafter, by Official Memorandum dated 06.09.2011, the petitioner was ordered to be relieved and in pursuance of the said Official Memorandum, he was relieved on 29.09.2011 and directed to report before the respondent-Director. Thereafter the petitioner reported before the respondent-Director seeking further posting. It is stated that seven months thereafter, instead of giving further posting, the petitioner was discharged from service by impugned order dated 19.04.2012. Aggrieved by the said order, the petitioner preferred the instant writ petition contending that the discharge is opposed to Rule 7 of the Rules and the same is not approved by the Higher Authority as required under the Rules. The impugned order of discharge is a stigmatic order, as such, enquiry was necessary before passing the impugned order.
3. The respondent filed statement of objections contending that the order of discharge is a simplicitor and would not suffer from any legal infirmity. Initially the petitioner was appointed on probation for a period of two years and his probation period was not declared to have completed. It is stated in the objection that the petitioner’s service was not satisfactory and he was intermittently absent from duty, for which, notices were issued. Therefore, the respondent discharged the petitioner on account of non-suitability to hold the post.
4. The learned Single Judge on consideration of the contentions raised by the parties, allowed the writ petition directing the respondent to reinstate the petitioner with liberty to hold disciplinary proceedings for the unauthorized absence. Further, the learned Single Judge granted full back wages and directed to treat the period of discharge as on duty, for all purposes. The learned Single Judge has observed that the order of discharge is punitive which contains allegations of unauthorized absence for which, enquiry was required.
5. Heard the learned Government Advocate for the appellant and perused the appeal papers.
6. The learned Government Advocate would submit that the impugned order is an order of discharge simplicitor. Hence, the learned Single Judge has committed an error in quashing the said order, directing reinstatement of the petitioner. It is his submission that even though impugned order states unauthorized absence, the same is considered only for the purpose of suitability of the petitioner to hold the post. It is his further submission that the order is not punitive and is only a discharge simplicitor.
7. The petitioner was working as Second Division Assistant at Pattana Panchayath, Somwarpet. He was appointed on compassionate grounds as Second Division Assistant on 24.07.1997. It is an admitted fact that the petitioner was issued with show cause notice dated 21.06.2011 (Annexure-E) for his unauthorized absence. It is stated that the petitioner has replied to the said show cause notice. Thereafter, the Chief Officer, Pattana Panchayath, Somwarpet relieved the petitioner as per the Official Memorandum dated 06.09.2011 of the Deputy Commissioner, Madikeri District. The petitioner was not given posting for almost seven months, thereafter, he was discharged from service under Order dated 19.04.2012 of the respondent-Director and Commissioner of Municipal Administration. Preamble to the impugned order reads as follows:
“¥Àj²Ã°¸À¯ÁV ²æà ºÉZï.²ªÀPÀĪÀiÁgï, ¢éÃwAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀÄ, ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÉÆêÀĪÁgÀ¥ÉÃmÉ, EªÀgÀ ¥ÀjÃPÁëxÀð CªÀ¢ü EzÀĪÀgÉUÀÆ WÉÆõÀuÉAiÀiÁVgÀĪÀÅ¢®è. ºÁUÀÆ EªÀgÀÄ ¥ÀjPÁëxÀð CªÀ¢üAiÀÄ°è C£À¢üPÀÈvÀªÁV PÀbÉÃjUÉ UÉÊgÀĺÁdgÁUÀĪÀÅzÀÄ, ºÁUÀÆ vÀªÀÄUÉ ªÀ»¹zÀ dªÁ¨ÁÝjAiÀÄ£ÀÄß ¸ÀjAiÀiÁV ¤ªÀð»¸ÀzÉ GzÁ¹Ã£ÀvɬÄAzÀ ªÀwð¹gÀÄvÁÛgÉ. EªÀgÀ PÀvÀðªÀå ¤®ðPÀë åvÉAiÀÄ §UÉÎ ªÀÄÄSÁå¢üPÁjUÀ¼ÀÄ ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÉÆêÀĪÁgÀ¥ÉÃmÉ EªÀgÀÄ ¸ÀzÀjAiÀĪÀjUÉ ºÀ®ªÀÅ ¨Áj PÁgÀt PÉý £ÉÆÃn¸ï ¤ÃrzÀÝgÀÆ, ¸ÀºÁ EªÀgÀÄ vÀªÀÄä £ÀqÀĪÀ½PÉAiÀÄ°è AiÀiÁªÀÅzÉà §zÀ¯ÁªÀuÉ ªÀiÁr PÉƼÀîzÉ PÀvÀðªÀåzÀ §UÉÎ ¤®ðPÀëvÉ vÉÆÃjzÀÝjAzÀ ²æà ºÉZï.²ªÀPÀĪÀiÁgï, EªÀgÀ ¸ÉÃªÉ CUÀvÀå«®èªÉAzÀÄ ¸ÀzÀjªÀgÀ£ÀÄß PÀvÀðªÀå¢AzÀ ©qÀÄUÀqÉ ªÀiÁrgÀÄvÁÛgÉ.
²æà ºÉZï.²ªÀPÀĪÀiÁgï, EªÀgÀÄ PÀvÀðªÀåzÀ°è ¤gÀÄvÁìºÀ vÉÆÃj GzÁ¹Ã£ÀvɬÄAzÀ ªÀwð¹gÀĪÀÅzÀÄ, EªÀgÀ PÀvÀðªÀåzÀ §UÉÎ EªÀjVgÀĪÀ ¤®ðPÀë åvÉAiÀÄ£ÀÄß JwÛ vÉÆÃj¸ÀÄvÀÛzÉ. ºÁUÀÆ EªÀgÀ ¥ÀjÃPÁëxÀð CªÀ¢ü WÉÆõÀuÉAiÀiÁVgÀĪÀÅ¢®è. ªÉÄîÌAqÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è ¸ÀzÀjAiÀĪÀgÀ£ÀÄß PÀvÀðªÀåzÀ°è ªÀÄÄAzÀĪÀgɸÀĪÀÅzÀÄ ¸ÀªÀÄAd¸ÀªÁV PÀAqÀ§gÀĪÀÅ¢®è. CzÀÄzÀjAzÀ ²æà ºÉZï.²ªÀPÀĪÀiÁgï ¢éÃwAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀÄ, ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÉÆêÀĪÁgÀ¥ÉÃmÉ, EªÀgÀ ¸ÉÃªÉ CªÀ±ÀåPÀªÁVgÀĪÀÅ¢®èªÉAzÀÄ wêÀiÁ𤹠F PɼÀPÀAqÀAvÉ DzÉñÀ ºÉÆgÀr¹zÉ.
DzÉñÀ ¸ÀAB¥Ë¤/«ZÁgÀuÉ/PÉÆf/¹Dgï/94/2011-12. ¢£ÁAPÀ:19-04-2012.
ªÉÄîÌAqÀ PÁgÀtUÀ½AzÀ ²æà JA.J¸ï.gÀ«±ÀAPÀgï, DAiÀÄÄPÀÛgÀÄ ¥ËgÁqÀ½vÀ ¤zÉÃð±À£Á®AiÀÄ DzÀ £Á£ÀÄ ²æà ºÉZï.²ªÀPÀĪÀiÁgï, ¢éÃwAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀÄ, ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÉÆêÀiÁªÁgÀ¥ÉÃmÉ, EªÀgÀ£ÀÄß ¸ÀPÁðj £ËPÀjUÉ C£ÀºÀðgÉAzÀÄ ¥ÀjUÀt¹ ¸ÉêɬÄAzÀ vÉUÉzÀĺÁQ (Discharge Simplicitor) DzÉò¹gÀÄvÉÛãÉ.”
From the reading of the above preamble portion of the impugned order, it is clear that the allegation of unauthorized absence and not discharging the duties is alleged against the petitioner. If any allegation is attributed against a probationer which amounts to misconduct, then Rule 7 of the Rules would be attracted. Rule 7 of the Rules reads as follows:
“7. Termination for misconduct:- No order terminating the services of a probationer, whether during or at the end of the period of probation for any misconduct, shall be passed except in accordance with the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.”
If any misconduct is alleged, Rule 7 would mandate conducting of enquiry in accordance with the KCS (CCA) Rules 1957. No such enquiry is held against the petitioner for the allegations contained in the impugned order. In view of the allegations contained in the impugned order, it becomes punitive which attaches stigma. The impugned order in the facts and circumstances of the case could not have been passed without following the procedure prescribed under Rule 7 of the Rules.
8. Rule 6 of the Rules empowers the Appointing Authority at any time during the period of probation to discharge a Government servant from service for his unsuitability for the service or post. Rule 6(1) reads as follows:
“6. Discharge of a Probationer during the period of probation:
(1) Notwithstanding anything in Rule 5, the Appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.”
9. When the order of discharge is passed by the Authorities other than the Government, the order of discharge shall not be given effect to till it has been submitted to and confirmed by the next higher authority. In the case on hand, the learned Government Advocate has submitted that the order of discharge dated 19.04.2012 has not been confirmed by the Government which is the next higher authority. The learned Single Judge has observed that remaining unauthorized absence would amount to misconduct and enquiry would be necessary to prove the same. The learned Single Judge relying on the decisions of the Hon'ble Supreme Court particularly in the case of ANUP JAISWAL V/S GOVERNMENT OF INDIA AND ANOTHER reported in AIR 1984 SC 636 wherein it is held that foundation for the order should be read along with the order for the purpose of determining its true character, passed reasoned order allowing the writ petition.
10. The respondent-appellant has not made out any ground to interfere with the well reasoned order of the learned Single Judge. Accordingly, the writ appeal is dismissed as devoid of merit.
Sd/- Sd/-
JUDGE JUDGE mpk/-* CT:bms