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2003 DIGILAW 535 (SC)

State of Karnataka v. B. K. KANVI

2003-04-08

ASHOK BHAN, DORAISWAMY RAJU

body2003
ORDER 1. THE ABOVE APPEAL HAS BEEN FILED AGAINST THE JUDGMENT DATED 12-6-1997 OF THE DIVISION BENCH OF THE HIGH COURT OF KARNATAKA WHEREUNDER THE WRIT APPEAL FILED BY THE APPELLANTS CAME TO BE DISMISSED, EXCEPT PARTIALLY MODIFYING THE DECISION OF THE LEARNED SINGLE JUDGE WITH REFERENCE TO REINSTATEMENT IN SERVICE. AGGRIEVED WITH THE DIRECTIONS ISSUED, THE APPELLANTS PREFERRED THIS APPEAL BY SPECIAL LEAVE IN THIS COURT. 2. HEARD LEARNED COUNSEL FOR BOTH THE PARTIES. 3. IT IS SOUGHT TO BE STRENUOUSLY CONTENDED THAT THE NON-FURNISHING OF THE COPY OF THE REPORT BEFORE PASSING THE ORDER OF PUNISHMENT DID NOT REALLY PREJUDICE THE CASE OF THE RESPONDENT OFFICER, AND THAT NOT ONLY THE LEARNED SINGLE JUDGE HAS NOT CHOSEN TO DEAL WITH THIS ASPECT PROPERLY BEFORE INTERFERING WITH THE ORDER OF PUNISHMENT, BUT THE APPELLATE BENCH ALSO DID NOT ARRIVE AT A PROPER FINDING IN THIS REGARD. 4. THE CASE INVOLVES A CHALLENGE TO AN ORDER OF PUNISHMENT COMPULSORILY RETIRING IN TERMS OF RULE 8(VI) OF THE KARNATAKA CIVIL SERVICES (CCA) RULES, 1957 A CIVIL JUDGE SERVING IN THE STATE OF KARNATAKA. THE SAID ORDER WHICH WAS DIRECTED TO BE EFFECTIVE FROM 3-10-1991 WAS CHALLENGED MAINLY ON THE GROUND THAT THE INQUIRY REPORT WAS FURNISHED ONLY ON 5-10-1991 AND NOT BEFORE THE FINAL ORDER OF PUNISHMENT WAS PASSED, AND THAT THE PROCEDURE SO FOLLOWED WAS CONTRARY TO THE PRINCIPLES LAID DOWN BY THIS COURT IN MANAGING DIRECTOR, ECIL V. B. KARUNAKAR1. THE LEARNED SINGLE JUDGE QUASHED THE ORDER IMPOSING PUNISHMENT AND LEFT LIBERTY WITH THE COMPETENT AUTHORITY TO PROCEED IN THE MATTER FROM THE STAGE OF SUPPLY OF THE COPY OF THE INQUIRY REPORT TO THE RESPONDENT WITH CONSEQUENTIAL RELIEF OF REINSTATEMENT IN SERVICE OF THE RESPONDENT. THE DECISION OF THE LEARNED SINGLE JUDGE WAS CHALLENGED BEFORE THE DIVISION BENCH REITERATING THE STAND TAKEN BEFORE THE SINGLE JUDGE THAT MERE NON-FURNISHING OF THE COPY OF THE INQUIRY REPORT TO THE DELINQUENT OFFICIAL WOULD NOT RESULT IN DENIAL OF JUSTICE BY DISENTITLING HIM IN ANY MANNER TO PUT FORTH HIS CASE. THE DIVISION BENCH, WHILE ADVERTING TO THE PRINCIPLES LAID DOWN IN THE DECISION NOTICED SUPRA, ALSO CONSIDERED THE GRIEVANCE OF THE RESPONDENT AND RECORDED A CATEGORICAL FINDING THAT PREJUDICE WAS REALLY CAUSED TO HIM IN PUTTING FORTH HIS DEFENCE EFFECTIVELY, ON ACCOUNT OF NON-SERVICE OF THE COPY OF THE REPORT BEFORE PASSING THE FINAL ORDER OF PUNISHMENT. THE DIVISION BENCH, WHILE ADVERTING TO THE PRINCIPLES LAID DOWN IN THE DECISION NOTICED SUPRA, ALSO CONSIDERED THE GRIEVANCE OF THE RESPONDENT AND RECORDED A CATEGORICAL FINDING THAT PREJUDICE WAS REALLY CAUSED TO HIM IN PUTTING FORTH HIS DEFENCE EFFECTIVELY, ON ACCOUNT OF NON-SERVICE OF THE COPY OF THE REPORT BEFORE PASSING THE FINAL ORDER OF PUNISHMENT. IN THAT VIEW OF THE MATTER, THE DIVISION BENCH AFFIRMED THE DECISION OF THE LEARNED SINGLE JUDGE QUASHING THE ORDER OF PUNISHMENT AND LEAVING LIBERTY WITH THE AUTHORITIES TO PROCEED IN THE MATTER, IF THEY SO DESIRE, FROM THE STAGE OF SERVING THE COPY OF THE ENQUIRY REPORT UPON THE DELINQUENT OFFICER. 5. SO FAR AS THE DIRECTION OF REINSTATEMENT MADE BY THE LEARNED SINGLE JUDGE IS CONCERNED, THE DIVISION BENCH NOTICED THE FACT THAT HAVING REGARD TO HIS DATE OF BIRTH I.E. 15-2-1937, EVEN IF HIS SERVICES WERE EXTENDED, HE WOULD HAVE RETIRED ON 15-2-1997 ON ATTAINING THE AGE OF 60 YEARS AND, THEREFORE, THE QUESTION OF DIRECTING REINSTATEMENT IN SERVICE DOES NOT ARISE ON THE FACTS OF THE CASE. BUT, AT THE SAME TIME, THE DIVISION BENCH THOUGHT THAT IN LIEU OF SUCH DIRECTION BY THE LEARNED SINGLE JUDGE, THE APPELLANTS COULD BE DIRECTED TO GRANT SUCH MONETARY BENEFITS WHICH THE RESPONDENT WOULD BE ENTITLED TO ON ACCOUNT OF QUASHING OF THE ORDER OF COMPULSORY RETIREMENT. A FURTHER DIRECTION WAS ISSUED THAT ON TERMINATION OF INQUIRY AND DEPENDING UPON THE 9 OUTCOME THEREOF, THE AUTHORITY SHOULD ALSO CONSIDER THE GRANT OF PENSIONARY BENEFITS OR OTHER RETIRAL BENEFITS OR OTHERWISE. 6. ON A CAREFUL CONSIDERATION OF THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS, WE ARE OF THE VIEW THAT NO EXCEPTION COULD BE TAKEN TO THE COURTS BELOW APPLYING THE PRINCIPLES LAID DOWN IN UNION OF INDIA V. MOHD. RAMZAN KHAN CASE2 WHICH CAME TO BE CLARIFIED IN THE DECISION IN ECIL EASEL IN RELATION TO ITS SCOPE AND APPLICABILITY TO VARIOUS SITUATIONS. RAMZAN KHAN CASE2 WHICH CAME TO BE CLARIFIED IN THE DECISION IN ECIL EASEL IN RELATION TO ITS SCOPE AND APPLICABILITY TO VARIOUS SITUATIONS. THOUGH THE DECISION OF THE DIVISION BENCH DOES NOT SUFFER FROM ANY LEGAL INFIRMITY TO CALL FOR OUR INTERFERENCE IN APPLYING THE PRINCIPLES LAID DOWN IN THE ABOVENOTICED DECISIONS OF THIS COURT TO THE CASE ON HAND AND LEAVING LIBERTY TO PROCEED IN THE MATTER AFRESH, FROM THE STAGE OF SERVICE OF A COPY OF THE REPORT AFTER SETTING ASIDE THE ORDER OF PUNISHMENT, THE DIRECTION GIVEN TO PAY THE MONETARY BENEFITS EVEN BEFORE THE FINAL OUTCOME OF THE DISCIPLINARY PROCEEDINGS CANNOT BE SUSTAINED IN THE LIGHT OF EVEN THE OBSERVATIONS CONTAINED IN THE DECISION IN ECIL EASEL RELYING UPON WHICH THE DIVISION BENCH HAS ALSO CHOSEN TO DISMISS THE APPEAL FILED BY THE AUTHORITIES. SO FAR AS THIS ASPECT OF THE MATTER IS CONCERNED, IN PARA 31 OF THE DECISION IN ECIL EASEL THE CONSTITUTION BENCH OF THIS COURT OBSERVED AS UNDER: (SCC P. 758, PARA 31) "THE QUESTION WHETHER THE EMPLOYEE WOULD BE ENTITLED TO THE BACK WAGES AND OTHER BENEFITS FROM THE DATE OF HIS DISMISSAL TO THE DATE OF HIS REINSTATEMENT IF ULTIMATELY ORDERED, SHOULD INVARIABLY BE LEFT TO BE DECIDED BY THE AUTHORITY CONCERNED ACCORDING TO LAW, AFTER THE CULMINATION OF THE PROCEEDINGS AND DEPENDING ON THE FINAL OUTCOME. IF THE EMPLOYEE SUCCEEDS IN THE FRESH INQUIRY AND IS DIRECTED TO BE REINSTATED, THE AUTHORITY SHOULD BE AT LIBERTY TO DECIDE ACCORDING TO LAW HOW IT WILL TREAT THE PERIOD FROM THE DATE OF DISMISSAL TILL THE REINSTATEMENT AND TO WHAT BENEFITS, IF ANY, AND THE EXTENT OF THE BENEFITS, HE WILL BE ENTITLED. THE REINSTATEMENT MADE AS A RESULT OF THE SETTING ASIDE OF THE INQUIRY FOR FAILURE TO FURNISH THE REPORT, SHOULD BE TREATED AS A REINSTATEMENT FOR THE PURPOSE OF HOLDING THE FRESH INQUIRY FROM THE STAGE OF FURNISHING THE REPORT AND NO MORE, WHERE SUCH FRESH INQUIRY IS HELD. THAT WILL ALSO BE THE CORRECT POSITION IN LAW." 7. THE SAME SHOULD BE THE POSITION, IN THIS CASE AS WELL. 8. THAT WILL ALSO BE THE CORRECT POSITION IN LAW." 7. THE SAME SHOULD BE THE POSITION, IN THIS CASE AS WELL. 8. IN THE LIGHT OF THE ABOVE, THE APPEAL IS PARTLY ALLOWED TO THE EXTENT OF SETTING ASIDE THE DIRECTIONS ISSUED BY THE DIVISION BENCH TO GRANT THE MONETARY BENEFITS SAID TO BE DUE TO THE RESPONDENT ON ACCOUNT OF QUASHING OF THE ORDER OF COMPULSORY RETIREMENT, EVEN AT THIS STAGE OF THE PROCEEDINGS. IN OTHER RESPECTS THE CHALLENGE IN THIS APPEAL FAILS. THE ORDER OF THE DIVISION BENCH, THEREFORE, STANDS MODIFIED IN TERMS OF THE DIRECTIONS ISSUED BY THIS COURT IN ECIL EASEL SET OUT SUPRA. NO COSTS. 9. SINCE THE MATTER IS PENDING FOR A LONG TIME, THE AUTHORITIES ARE DIRECTED TO TAKE A FINAL DECISION, WITHIN SIX MONTHS.