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2006 DIGILAW 49 (KAR)

H. SREENIVASA v. STATE OF KARNATAKA

2006-01-13

B.PADMARAJ, CYRIAC JOSEPH

body2006
CYRIAC JOSEPH, CJ, J. ( 1 ) THE petitioner is an Assistant Drugs controller and Licensing Authority in the Drugs Control Department of the Government of Karnataka. As per Annexure-A. l order dated 19-11-2005 passed by the first respondent-Government, the petitioner was placed under suspension pending disciplinary action. The said order was passed under Rule 10 (l) (d) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Challenging the said order dated 19-11-2005, the petitioner filed Application No. 8721/2005 in the Karnataka administrative Tribunal at Bangalore, under Section 19 of the administrative Tribunal Act, 1985. While issuing notice to the respondents in the said application, the Tribunal passed an interim order dated 25-11-2005 staying the impugned order dated 19-11-2005 till 29-11-2005. In the interim order dated 25-11-2005, the Tribunal observed that it wanted to look into the records and the reports submitted by the applicant and also directed the Government Pleader to secure the records for perusal. When the case came up for further hearing on 29-11-2005, learned government Advocate wanted to file an application for vacating the interim order and he was permitted to file the application in the Office and the case was adjourned to 1-12-2005. However, while adjourning the case to 1-12-2005, the Tribunal refused to continue the interim order granted on 25-11-2005 in view of the statement made by the learned government Advocate that one Mr. Ansari had already taken charge on 21-11-2005 before the Tribunal passed the interim order on 25-11-2005. Aggrieved by the refusal of the Tribunal to continue the interim order of stay dated 25-11-2005, the applicant filed this Writ Petition praying for setting aside the order dated 29-11-2005 passed by the Tribunal in application No. 8721/2005 in so far as it discontinued the interim order granted on 25-11-2005. He also prayed for stay of the order of suspension dated 19-11-2005. All the respondents in Application No. 8721/2005 filed in the Tribunal have been impleaded as respondents in the Writ Petition also. ( 2 ) WHILE admitting the Writ Petition on 9-12-2005, this Court passed an interim order directing that the interim order of stay passed by the tribunal on 25-11-2005 would continue and the Writ Petitioner would be allowed to continue in his original post for a period of four weeks. The said interim order was extended on 9-1-2006 till 13-1-2006. ( 2 ) WHILE admitting the Writ Petition on 9-12-2005, this Court passed an interim order directing that the interim order of stay passed by the tribunal on 25-11-2005 would continue and the Writ Petitioner would be allowed to continue in his original post for a period of four weeks. The said interim order was extended on 9-1-2006 till 13-1-2006. In the meanwhile, the first respondent has filed Application No. I. A. II/2005 for vacating the interim order. ( 3 ) WE have heard Mr. Ravivarma Kumar, Senior Counsel for the petitioner, Sri. S. Prakash Shetty for Respondents-1 and 2, Sri. D. L. Jagadish for Respondent-3, Mr. R. Narasimha Murthy Senior Counsel for Respondent-4 and Mr. S. G. Pandit for Respondent-5. ( 4 ) WHILE issuing notice to the respondents in Application No. 8721/2005, the Tribunal, prima facie, held that the applicant was entitled to an interim order of stay. The Tribunal also wanted to look into the records and the reports submitted by the applicant. The learned Government advocate was directed to secure the records and also to ensure that the second respondent-Drugs Controller was present before the Tribunal with the records pertaining to the case on 29-11-2005. Though notice had been taken on behalf of respondents 1 and 2 in the application, no counter affidavit was filed on behalf of the said respondents as on 29-11-2005. The learned Government Advocate wanted to file an application for vacating the interim order and he was permitted to do so and the case was adjourned to 1-12-2005. In the normal course, the Tribunal ought to have extended the interim order of stay passed on 25-11-2005 till the matter was considered on merits. Instead, in view of an oral submission made by the Government Advocate that one Mr. Ansari had already taken charge on 21-11-2005, i. e. , before the stay order dated 25-11-2005 was passed by the Tribunal, the Tribunal declined to continue the interim order granted on 25-11-2005. In our view, the alleged taking charge of mr. Ansari on 21-11-2005 was not at all relevant for either continuing or discontinuing the interim order of stay granted on 25-11-2005. This is not a case of transfer, in which, the stay order would have become infructuous by the substitute joining duty even before the stay order was passed. In our view, the alleged taking charge of mr. Ansari on 21-11-2005 was not at all relevant for either continuing or discontinuing the interim order of stay granted on 25-11-2005. This is not a case of transfer, in which, the stay order would have become infructuous by the substitute joining duty even before the stay order was passed. This is a case of suspension of the petitioner and an interim order staying the suspension order cannot become infructuous or inoperative by the taking charge of a substitute in the place of the petitioner. If the Tribunal was satisfied on the merits of the case that the applicant was not entitled to an interim order of stay, it was open to the Tribunal to vacate the interim order or to refuse to extend the interim order. When the case was being adjourned to 1-12-2005 after permitting the Government Advocate to file an application for vacating the interim order, there was no justification for refusing to extend the interim order till 1-12-2005. Hence we hold that the impugned order discontinuing the interim order dated 25-11-2005 was passed by the Tribunal on irrelevant consideration and that the tribunal ought to have continued the interim order dated 25-11-2005 until the stay application was considered on merits by the Tribunal after hearing the parties and after perusing the records which the Tribunal had summoned. Therefore, the impugned order is liable to be set aside and the Tribunal is liable to be directed to consider the application for stay on merits afresh, after hearing the parties and after perusing the records summoned by the Tribunal. In the interest of justice, the position as obtained today, should be allowed to continue till the matter is reconsidered and appropriate orders are passed by the Tribunal. Hence the order of suspension is liable to be stayed till the Tribunal considers the question of stay on merits afresh. ( 5 ) RULE 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 provides for suspension of a Government servant. Sub-rules (1), (2) and (3) of the said Rule 10 are extracted hereunder: "10. Hence the order of suspension is liable to be stayed till the Tribunal considers the question of stay on merits afresh. ( 5 ) RULE 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 provides for suspension of a Government servant. Sub-rules (1), (2) and (3) of the said Rule 10 are extracted hereunder: "10. Suspensions :- (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf may place a Government servant under suspension: (a) Where there is prima facie evidence to show that he was caught red-handed while accepting gratification other than legal remuneration by the persons authorised to investigate under the provisions of the Prevention of Corruption Act, 1988 or under any other law; (b) Where a charge sheet is filed before the competent Court against him for any offence involving moral turpitude committed in the course of his duty; or (c) Where a charges sheet is filed before the competent Court against him on charges of corruption, embezzlement or criminal misappropriation of Government money; (d) Where there is prima facie evidence of gross dereliction of duty against him: provided that, where the order of suspension is made by an authority empowered by Government in this behalf which is lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority. (a) With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation.- The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisionment if any, shall be taken into account. Explanation.- The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisionment if any, shall be taken into account. (3) The authority competent to place a Government servant under suspension shall examine the relevant material relating to the case and consider whether there is prima facie evidence to support the charges made against the Government servant and if it is satisfied on such examination that prima facie evidence exists, it may place the Government servant concerned under suspension. " It is for the Karnataka Administrative Tribunal to consider whether the petitioner was placed under suspension in accordance with the provisions contained in Rule 10 of the KCS (CC and A) Rules, 1957. At this stage, it is not necessary or proper for us to express any opinion. ( 6 ) MR. S. PRAKASH Shetty, learned Government Advocate submits that though respondents 1 and 2 have filed objections to the interim order before the Tribunal, they have not filed any counter affidavit as such and that they will file counter affidavit on or before 17-1-2006. Learned Counsel for respopndents 3 and 4 also submit that the said respondents also will file counter affidavit on or before 17-1-2006. Learned Counsel for the respondents requested that the Tribunal may be directed to consider and pass appropriate orders expeditiously and if possible, within a stipulated period. We think that the request for an early disposal of the matter is just and reasonable. ( 7 ) FOR the reasons stated above, the Writ Petition is disposed of in the following terms: (a) The impugned order dated 29-11-2005, in so far as it discontinued the interim order dated 25-11-2005 passed by the Tribunal, is set aside. (b) The Tribunal is directed to consider afresh the prayer for stay of the suspension order in the light of the counter affidavits filed by the respondents and the records produced by them and to pass appropriate orders in accordance with law as expeditiously as possible and at any rate within a period of three weeks from today. It will be open to the respondents to move the Tribunal for early hearing of the matter, after they file the counter affidavits. It will be open to the respondents to move the Tribunal for early hearing of the matter, after they file the counter affidavits. (c) While considering the prayer for stay afresh, the Tribunal shall not be influenced by any observations made by this Court in the order dated 9-12-2005. It is made clear that the Tribunal will be free to consider the matter independently in accordance with law. (d) Since the pleadings in the case will be completed when the matter comes before the Tribunal for fresh consideration, it will be open to the Tribunal even to finally dispose of the main application itself. (e) The order dated 19-11-2005 passed by the first respondent placing the petitioner under suspension shall remain stayed until the tribunal passes fresh orders in the matter as directed above.