IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 PRESENT THE HON’BLE MR. JUSTICE H.G.RAMESH AND THE HON’BLE MRS. JUSTICE K.S.MUDAGAL WRIT PETITION NO. 26130/2017 (S-KAT) BETWEEN:
SRI K.MARISWAMY S/O LATE KALAJAVARAIAH AGED ABOUT 54 YEARS WORKING AS RANGE FOREST OFFICER YESLUR RANGE, SAKALESHPURA TALUK HASSAN DISTRICT, HASSAN-573 137 NOW PLACED UNDER SUSPENSION ...PETITIONER (BY SRI SATHISH.K FOR SRI M.S.BHAGWAT, ADVOCATES) AND:
THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS DEPARTMENT OF FOREST ARANYA BHAVAN, 18TH CROSS MALLESHWARAM, BANGALORE-560 003 ..RESPONDENT (BY SRI G.RAMESH NAIK, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENT; SET ASIDE THE IMPUGNED FINAL JUDGMENT AND ORDER DATED 29.05.2017 PASSED BY KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.2818/2017 AT ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION NO.2818/2017 FILED BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BANGALORE BY THE PETITIONER AS PRAYED AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 07.07.2017 FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., MADE THE FOLLOWING:
O R D E R The above petition is filed under Articles 226 and 227 of the Constitution of India to set-aside the order of Karnataka State Administrative Tribunal, Bangalore dated 29.05.2017 in Application No.2818/2017. Petitioner filed the said application seeking quashing of the suspension order dated 17.05.2017 passed against him by the respondent.
2. Petitioner is in the employment of the Karnataka Government as Range Forest Officer, Yeslur Range, Hassan District. Respondent is his disciplinary authority. One Smt.Thirtha filed a complaint against the petitioner in Crime No.38/2017 of Yeslur Police Station contending that the petitioner married her on 02.12.2014 and lived with her in his official residence at Yeslur and later it was discovered that suppressing the fact that he is already married and has issues out of such marriage. She further alleged that thereby he has cheated her and when she questioned that, he subjected her to cruelty. She further alleged that on 05.03.2017 at 4.00 PM, petitioner, his first wife and children assaulted her and threatened her of her life. Yeslur Police have registered the said complaint in Crime No.38/2017 for the offences punishable under Sections 341, 448, 504, 506 read with 34 IPC. On the application of the petitioner and the other co-accused, the 2nd Addl. District and Sessions Judge, Hassan granted anticipatory bail to them on 24.03.2017.
3. Smt.Tirtha and Smt.Pyarijan, who claim to be the wives of the petitioner also filed complaint before the respondent. The respondent issued show cause notice to the petitioner that by such bigamous marriage, he has violated Rule 28 of Karnataka Civil Services (Conduct) Rules which amounts to misconduct which calls for the disciplinary inquiry. Petitioner issued reply to the same on 26.04.2017 denying bigamous marriage.
4. Thereafter, the respondent issued the order of suspension dated 17.05.2017 on the ground that, prima facie the allegations against the petitioner are proved and his continuation on duty in the post is likely to tamper the investigation and destroy the evidence.
5. Petitioner challenged the said order before the Karnataka Administrative Tribunal (KAT) in Application No.2818/2017. The KAT vide order at Annexure “A” dated 29.05.2017 dismissed the application.
6. Sri K.Satish, learned advocate appearing for the petitioner contends that suspension of the civil servant can be only on the grounds mentioned in Rule 10(1)(a to d) of Karnataka Civil Service (Classification, Control & Appeal) Rules, 1957 and the petitioner’s case is not covered in anyone of those clauses.
7. Petitioner does not dispute the complaint filed by Smt.Thirtha against him and the other accused in Crime No.0038/2017 of Yeslur Police Station and he obtaining bail in that case. He also does not dispute that both Thirtha and Pyarijan have filed complaints before the respondent claiming that he has married both of them as mentioned at Annexure A8 to the show cause notice. He also does not dispute that under Rule 28 of the Karnataka Civil Services Conduct Rules, 1966, is prohibited and that amounts to misconduct. His only contention is that even to invoke Rule 10(b), there should be a charge sheet for an offence involving moral turpitude.
8. The suspension order is in contemplation of the disciplinary enquiry against the order for violation of Rule 28 of the KCS (Conduct) Rules. Rule 10 is not the sole rule which governs suspension of civil servants. The Official Memorandum No.DPAR 12 SDE 83, dated 21-4- 1984 issued by the Government of Karnataka also governs the suspension of the civil servants. A reading of the same shows that the said memorandum is issued in modification of the earlier Official Memorandum No.GAD 21 SSR 65 dated 26-2-1965 dated 26.02.1967.
The relevant portion of the said Official Memorandum reads as follows:
“Circumstances under which Government servants may be placed under suspension:
(i)……… (ii) When a Government servant is prosecuted for any offence committed in the course of his duty and which involves moral turpitude;
(iii)…… (iv) In certain situations where continuance of Government servant in service during investigation/inquiry is considered not desirable, the Government servant may be given the option to proceed on leave. Alternatively, he may be placed under suspension. (Emphasis supplied) 9. The Supreme Court in UNION OF INDIA (2013) 16 SCC 147) vs ASHOK KUMAR AGGARWAL (Civil Appeal No.9454/2013) has explained the scope of interference in the order of suspension as follows:
“26………..However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
“27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as to which version is true when there are claims and counter-claims on factual issues. The court cannot act as if it is an appellate forum de hors the powers of judicial review.”
10. In view of the aforesaid Official Memorandum and the decision of the Supreme Court referred to above, it cannot be said that the order of suspension is beyond the competence of the respondent or is unsuitable in law. The writ petition is accordingly dismissed.
Sd/- JUDGE Sd/- JUDGE brn