IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R DEVDAS WP No.1644/2019 (S – KAT) Between:
Sri R Dharma Naik s/o Sri Siva Naik Aged about 76 years Retired Municipal Commissioner Grade-I R/at No.1674/22, 6th Cross Srinivasa Nagar, Hadadi Road Davangere-577005. .. Petitioner (By Sri Devadass, Sr.Counsel for Smt.Anasuya Devi, Advocate) And :
The State of Karnataka By Secretary to Govt.
Urban Development Department, M S Building Bengaluru-560001. … Respondent (By Smt.M S Prathima, AGA) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for records of the Karnataka Administrative Tribunal, Bengalur, in (i) Application No.1955/2016 – Sri R Dharma Naik –vs- State of Karnataka relating to order dated 29.10.2018 (Annexure-A), Application No.1562/2006 – Dr.(Mrs.S Kamala –vs- State of Karnataka order dated 29.10.2018 (Annexure-F) and etc., This writ petition coming on for preliminary hearing this day, NARAYANA SWAMY J, passed the following:
ORDER The petitioner is a retired Municipal Commissioner Grade-I of Harihara City Municipal Council. He retired from service on attaining the age of superannuation on 30th June, 2001. While he was working as such along with one Junior Engineer, by name Sri K Manjunath, articles of charges were issued alleging that the petitioner had not obtained prior permission for purchasing immoveable property and similar charges were framed against the said Junior Engineer, Sri K Manjunath.
2. In the articles of charges, two charges were framed against the petitioner and four charges were framed against Sri K Manjunath. The enquiry proceedings was entrusted to Lokayuktha and common proceedings was initiated against them under Rule14-A of KCS (CCA) Rules. The Lokayuktha gave findings against the petitioner. On the basis of the enquiry report, respondent/Government by order dated 13.5.2003 imposed penalty by reducing the pension by 50% in respect of the petitioner and imposed penalty of compulsory retirement in respect of K Manjunath, Junior Engineer.
3. Sum and substance of grievance of the petitioner is that his defence has not been considered either by the Enquiry Officer or by the Lokayukta, before recording his agreement with report of the Enquiry Officer, and as such, it was impermissible for Lokayukta to recommend harsh and severe penalty of permanently withholding 50% of pension, which is unsustainable in the eye of law and a punishment of compulsory retirement to Sri Manjunath, Junior Engineer under Rule 8(vi) of KCS (CC&A) Rules, 1957.
4. A joint enquiry was initiated. The other delinquent had appealed to the Government and the Government has modified the order of punishment by setting aside the order of compulsory retirement. He was reinstated into service on 12.9.2007 and since then, he is working. Insofar as the petitioner is concerned, he had also made similar appeal to the Government. The government has not taken any lenient view in respect of the petitioner.
5. The petitioner filed Application No.4400/2003 before the Karnataka Administrative Tribunal challenging the Government order dated 13.5.2003 imposing penalty against him. The Tribunal quashed the Government order dated 13.5.2003 reserving liberty to the government to take further action in the matter in accordance with law.
6. In terms of the said order, the government did not pass any order. Hence, petitioner filed Contempt Application No.199/2015 before the Tribunal and the Tribunal issued notice to the respondent. The government by its order dated 1.12.2015 upheld the penalty imposed by the Enquiry Officer. The said order was again challenged before the Tribunal in Application No.1955/2016, which came to be allowed in part by order dated 29.10.2018. The Tribunal held that the order dated 13.5.2003 withholding 50% monthly pension of the petitioner is to be modified to that of withholding 20% of monthly pension w.e.f. 1.11.2018. Hence, this petition.
7. Learned Senior Counsel for the petitioner submits ground No.1 that the petitioner committed misconduct while he was working as Municipal Commissioner, City Municipal Council, Harihar between the year 1994 and 1998 along with another employee, Sri K Manjunath, Junior Engineer and both of them, it is stated, committed irregularity and ground No.2 is that petitioner had not taken prior sanction for the purpose of purchasing some properties and further the petitioner caused loss to the extent of Rs.1,50,000/-.
No doubt, the Lokayuktha gave a finding that the charges against the petitioner and another employee were proved.
8. Learned Senior Counsel for the petitioner submits that the finding given by Lokayukta is erroneous and perverse. The material evidence placed before the Lokayukta by the petitioner has not been considered. Be that as it may, learned Senior Counsel further submits that when common punishment was imposed against the petitioner and another employee, they are entitled to similar treatment by the Disciplinary Authority. The compulsory retirement in respect of K Manjunath, Junior Engineer was set aside by the Government. Not extending the same benefit to the petitioner is hostile treatment and it violates Article 14 of the Constitution of India. In the instant case, charge leveled against the petitioner is that petitioner has caused loss to the extent of Rs.1,50,000/-, for which, reducing 50% of the pension is very disproportionate and the government has already recovered more than Rs.16 lakhs from pension of the petitioner. The Tribunal passed order dated 13.5.2003 modifying withholding of 50% monthly pension to that of 20% of monthly pension w.e.f. 1.11.2018. It is arbitrary and error apparent on the face of the record. The Tribunal ought to have set aside the entire punishment. Under these circumstances, petition is to be allowed and the order of punishment may be quashed.
9. Learned AGA for the respondent supports the order of Tribunal. It is submitted that the Tribunal after hearing both the parties passed the order impugned in this petition. The respondent has not committed any error. Hence, she submits to dismiss the petition as the impugned order does not call for interference.
10. We have heard the learned counsel for both the parties.
11. The undisputed fact is that articles of charges were issued in the year 2000, wherein two charges were framed against the petitioner and four charges were framed against Sri Manjunath, Junior Engineer. There is inordinate delay in initiating the enquiry against the petitioner. It is a joint enquiry initiated under Rule 14A of KCS (CCA) Rules. The common charges have been framed and findings have been given against the petitioner and the Junior Engineer. When such being the case, however the order imposing punishment on them is different. It is impermissible in view of the fact that, on the basis of the enquiry report, respondent/Government by order dated 13.5.2003 imposed penalty by reducing the pension by 50% in respect of the petitioner and imposed penalty of compulsory retirement in respect of K Manjunath, Junior Engineer. The charge against the petitioner is that he has caused loss to the extent of Rs.1,50,000/-. When such being the case, the recovery is only to the extent of loss with interest. It is also alleged that the petitioner has not obtained prior sanction from the government for purchase of some properties. It is not a case of disproportionate acquisition of properties. In the enquiry report, causing loss to the extent of Rs.1,50,000/-, there is a specific finding. An application was made before the Tribunal praying to extend the benefit, which was given to Sri K Manjunath, Junior Engineer. The Tribunal however modified the punishment withholding 20% monthly pension from the petitioner as against 50%, which is an error. The punishment imposed for the said charges is improper under CCA Rules. The order dated 13.5.2003 imposing penalty to deduct 50% of the pension permanently, which would be huge sum of money, is contrary to the principles of proportionate punishment. Under these circumstances, we hold that the order dated 13.5.2003 imposing penalty to deduct 50% of the pension permanently is to be quashed in toto and the order dated 29.10.2018 in Application No.1955/2016 passed by the Tribunal is to be modified to that effect. However, the respondents shall be permitted to recover loss of Rs.1,50,000/- with admissible interest.
Accordingly, writ petition stands allowed. The impugned punishment order is quashed.
The respondents/Government is directed to recover Rs.1,50,000/- along with admissible interest, for which order shall be passed within a period of eight weeks from the date of receipt of copy of this order. If excess amount is recovered, the respondents shall repay the same within three months from the date of passing order as above.
SD/- JUDGE SD/-
JUDGE Bkm.