IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30th DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.8073 OF 2015 [S-KAT] BETWEEN:
1. STATE OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES, M.S. BUILDING, BENGALURU-560 001.
2. THE DIRECTOR OF HEALTH AND FAMILY WELFARE SERVICES, ANANDARAO CIRCLE, BENGALURU-560 009.
… PETITIONERS [BY SRI. I. THARANATH POOJARY, ADDITIONAL GOVERNMENT ADVOCATE] AND:
M.S. D’SOUZA, S/O. SHANTA D’SOUZA, AGED ABOUT 64 YEARS, JUNIOR HEALTH ASSISTANT (MALE), PRIMARY HEALTH CENTRE, MANI, HONNAWAR TALUK-581 334, KARWAR DISTRICT.
[BY SRI. K.B. MURALIDHAR, ADVOCATE] … RESPONDENT * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 08.04.2014 IN APPLICATION NO.11879 OF 2002 PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU VIDE ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.01.2019 AND COMING ON FOR PRONOUNCEMENT THIS DAY, MOHAMMAD NAWAZ J., PRONOUNCED THE FOLLOWING:
ORDER The petitioners in this writ petition have challenged the Order dated 08.04.2014 passed by the Karnataka Administrative Tribunal (‘Tribunal’ in short) in Application No.11879/2002, by which the Tribunal was pleased to allow in part the application filed by the respondent and substituted the penalty of dismissal from service imposed by the second petitioner herein vide Order dated 19.07.2002 to the penalty of compulsory retirement, prospectively from 1st April 2014.
2. We have heard the learned counsels on both sides.
3. It is the case of the petitioners that the respondent/applicant joined service under the Health Department as basic health worker on 01.02.1980 and since he unauthorisedly remained absent from duty for more than a decade, disciplinary proceedings were initiated and on the basis of the report dated 14.09.2001 of the Enquiry Officer, the Director of Health & Family Welfare Service passed an Order dated 19.07.2002 imposing penalty of dismissal from service. The appeal filed by the respondent was also dismissed by the Government vide Order dated 21.06.2003.
However, the Tribunal partly allowed the application filed by the respondent and substituted the penalty of dismissal from service to the penalty of compulsory retirement.
4. The learned Additional Government Advocate appearing for the petitioners would contend that the dismissal order passed against the respondent was just and proper as he unauthorisedly absented from duty for more than a decade and under Rule 108 of the KCS Rules, which provides for dismissal from service of a Government servant even when he is unauthorisedly absent for more than just four months. He submits that the respondent worked only for a few days and though the Tribunal observed that there are no extenuating circumstances to take a lenient view, however, substituted the penalty of dismissal from service to the penalty of compulsory retirement, which is not sustainable and accordingly seeks to allow the petition.
5. According to the respondent/applicant he was compelled to apply for leave in view of his parents being seriously ill and aged and applicant also becoming seriously ill. He gave several representations to the authority from time to time. He was permitted to join duty under the Family Welfare Officer, Karwar. Pursuant to that, he joined duty at PHC, Bailur on 28.08.1990 and he was sincerely working there, however, charge memo dated 26.11.1992 was issued and the disciplinary proceedings were initiated. The Director of Health & Family Welfare Service passed the Order imposing penalty of dismissal from service on 19.07.2002.
6. Before the Tribunal, the respondent confined his prayer to the extension of modification of penalty citing a decision in the case of Smt. Susheelamma R.S. Vs. State and others reported in 1990 KSLJ 1207 and another unreported decision of the Tribunal. The Tribunal having considered the fact that there was delay in finalizing decision on disciplinary action and applicant continuing on Government service for long time after reporting for duty, substituted the penalty of dismissal from service to the penalty of compulsory retirement only prospectively from 1st April 2014 and also ordered that the applicant/ respondent will not be entitled to any arrears of pension for period prior to 1st April 2014.
7. It is the contention of the respondent that in view of the ill-health of his parents and himself, he could not attend to the duty and therefore he was compelled to apply for leave and accordingly applied for leave by producing medical certificate and he put leave from 14.02.1980, initially for a period of one week which was subsequently extended from time to time. Immediately after recovery from his ill- health, he started making representation to the Authorities to permit him to join for duty.
8. It is seen that the petitioner was permitted to report to duty, pending disciplinary action by the 2nd respondent on 07.08.1990 and he was placed under the control of the District Health and Family Welfare Service, Karwar vide Annexure-A3. In pursuance of the said communication, the order of posting was given in the earlier place of work at Primary Health Centre, Bailur on 29.08.1990 vide Annexure-A4. However, as per the communication dated 26.11.1992 vide Annexure-A6 issued by the Office of the 2nd respondent, it is mentioned therein that the unauthorized absent by the petitioner was from 06.02.1980 to 08.02.1980 and from 15.02.1980 till date. By an order dated 16.09.1994, the District Health Officer, Karwar was appointed as an Enquiry Officer. However, there was no progress and it is only in the year 2001, once again a Special Officer of the Intelligence in the department of Directorate was appointed as an Enquiry Officer and the Enquiry was initiated. The order of dismissal from service came to be passed vide Annexure- A12 on 19.07.2002. There is a long delay in finalizing the decision on disciplinary action and applicant continuing on government services for a long time after reporting for duty, as rightly observed by the Tribunal. The Tribunal has taken into consideration the decisions rendered in similar type of cases and also the submission of the respondent to confine his prayer to the extent of modification of penalty and accordingly substituted the penalty of dismissal from service to the penalty of compulsory retirement, prospectively from 01.04.2014 and further directing that the respondent will not be entitled to any arrears of pension for the period prior to 01.04.2014.
For the foregoing reasons, we find that there is no merit in this writ petition. Accordingly, the writ petition is dismissed. There is no order as to costs.
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JUDGE JUDGE Snc