IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.46 OF 2019 [S-KAT] BETWEEN:
1. STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT (POLICE SERVICES), VIDHANA SOUDHA, BENGALURU-560 001.
2. THE DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE, NRUPATHUNGA ROAD, BENGALURU-560 001.
3. THE INSPECTOR GENERAL OF POLICE, SOUTHERN RANGE, MYSURU.
… PETITIONERS [BY SRI. I. THARANATH POOJARY, ADDITIONAL GOVERNMENT ADVOCATE] AND:
SRI. H.M. KANTHARAJU, AGED ABOUT 31 YEARS, S/O. SRI. MARIHONNEGOUDA, WORKING AS POLICE SUB INSPECTOR, LASKER POLICE STATION, MYSURU CITY-570 001.
… RESPONDENT * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 16.03.2018 IN APPLICATION NO.1701/2009 (ANNEXURE-A) PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY MOHAMMAD NAWAZ J., PASSED THE FOLLOWING:
ORDER In this petition, the petitioners have sought to quash the order dated 16.03.2018 passed by the Karnataka State Administrative Tribunal, Bengaluru (“Tribunal” for brevity) in Application No.1701/2009 and consequently to dismiss the said application filed by the respondent herein.
2. Heard Sri. I. Tharanath Poojary, learned AGA appearing for the petitioners.
3. The respondent was working as Sub-Inspector of Police at Srirangapatna Police Station during the year 2006. There was an incident of group clash with regard to removal of sand from Lokapavani River, situated at K. Shetty Halli Village. On the allegation that the respondent had failed to take appropriate steps to avoid the communal conflict, Article of charges dated 26.04.2007, vide Annexure ‘A1’, was issued against him by the Disciplinary Authority - Petitioner No.3, under Rule 7 of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965 (‘Rules 1965’ for brevity). In response to the same, the respondent submitted his reply dated 11.05.2007, vide Annexure ‘A2’. The Disciplinary Authority imposed penalty against the respondent by withholding one annual increment for a period of two years without cumulative effect, by an order dated 23.06.2007, vide Annexure ‘A3’. Aggrieved by the said Order imposing penalty, the respondent preferred an appeal before the 2nd petitioner, the Appellate Authority. The 2nd petitioner dismissed the said appeal by an order dated 17.01.2008 vide Annexure ‘A5’. The respondent preferred Revision Petition before the State Government questioning the above said orders passed by the Disciplinary Authority and the Appellate Authority, which also came to be rejected.
4. Aggrieved by the aforesaid orders, the respondent filed Application No.1701/2009 before the Tribunal. The Tribunal after hearing both sides quashed the impugned orders and modified the penalty of withholding of one annual increment for a period of two years without cumulative effect, to that of withholding one annual increment for a period of one year without cumulative effect, which order is impugned herein.
5. Assailing the order passed by the Tribunal, the learned Additional Government Advocate appearing for the petitioners submits that the article of charges issued against the respondent is under Rule 7 of the Rules 1965, which provides procedure for imposing minor penalties, as such holding an enquiry is unnecessary and hence submitted that the impugned order passed by the Tribunal is contrary to law. He further contended that the said rule prescribes only giving of notice and an opportunity to make representation which the delinquent officer may wish to make, which has been done in the present case and the Disciplinary Authority having examined the reply submitted by the respondent and only after such examination, imposed the penalty which is confirmed by the Appellate Authority and by the Government. It is his further submission that the penalty imposed was in accordance with law and the course of action adopted by the Tribunal was not proper and therefore, seeks to allow the petition.
6. The charges against the respondent are that, while he was working as Sub-Inspector of Police at Srirangapatna Police Station, there was an incident of group clash of different community with regard to sand mining at Lokapavani river situated at K. Shetty Halli Village and that the respondent failed to control the clashes between the two communities by not taking any action in collecting the information in advance and failed in his duty and also shown negligence and dereliction by not taking steps as per standing order No.920. To the charge memo and the article of charges dated 26.04.2007 issued by the Petitioner No.3, the respondent submitted his reply dated 11.05.2007, explaining the circumstances under which, the incident took place on 13.04.2007 and the action taken in this regard. The Disciplinary Authority however, imposed penalty of withholding one annual increment for a period of two years without cumulative effect by its Order dated 26.03.2007. The appeal and the Revision Petition preferred by the respondent before the Appellate Authority and the Government also came to be rejected.
7. The contention of the respondent before the Tribunal was that even when a notice with charge memo is issued under Rule 7 of the Rules 1965 and when the said charges are empathically denied by the delinquent official, the Authorities are bound to hold a departmental enquiry. The Rule 7(1)(c) requires consultation with the Commission and it is not known whether said consultation is obtained or not and also not disclosed as to whether such consultation was found necessary in the instant case. Further, the reasons while passing the order imposing punishment as per Rule 7(2)(v) are not found and therefore there is no substantial compliance of Rule 7. Both the Appellate Authority and the Government while considering the case of the respondent have failed to take into consideration the above aspects and therefore the order of punishment is not sustainable.
8. Perusal of the order passed by the Tribunal go to show that the Tribunal has relied upon its full bench decision in A.No.7331 of 2013 (S.H. Bajentri Vs. State of Karnataka and two others) holding that departmental enquiry is an absolute necessity whenever a charge memo is served even under Rule 7 of KSP (DP) Rules. The reply submitted by the respondent go to show that when he was in Station, on 13.04.2007 at 10.05 a.m., it was informed to him over wireless by CPI – Srirangapatna with regard to the incident at K. Shetty Halli Village. He visited the village along with the staff and disbursed the assembly with suitable advice to both the community and thereafter he briefed the situation to the higher officer through wireless message. On the same day, he visited the hospital and took notice of the injured/complainant and after recording the statement, registered a case. It is stated that in the said Village, both the community members were living in harmony and on 13.04.2007, a sudden incident took place with regard to sand loading. A communal harmony meeting was held between the two groups and measures were taken for both of them to live in harmony. According to the respondent, he discharged his duty efficiently in maintaining the law and order at K. Shetty Halli Village.
9. Considering the facts and circumstances of the case, the order passed by the Tribunal, relying upon its full bench decision in A. No.7331/2013 (supra) cannot be held to be erroneous. It is observed that holding of departmental enquiry is an absolute necessity, whenever a charge memo is served under Rule 7 of KSP (DP) Rules and when the charge is empathically denied. Considering that it is not desirable to remit the matter to the Disciplinary Authority to conduct an enquiry after lapse of nearly 11 years from the date of serving of charge memo, the Tribunal modified the penalty to that of withholding of one annual increment for a period of one year without cumulative effect. The impugned order passed by the Tribunal does not call for any interference. This petition is devoid of merits and the same is dismissed. There is no order as to costs.
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JUDGE JUDGE Snc