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2013 DIGILAW 1099 (KAR)

Balagouda v. State of Karnataka

2013-09-16

A.N.VENUGOPALA GOWDA, K.L.MANJUNATH

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JUDGMENT A.N. Venugopala Gowda, J. 1. The petitioner is a public servant, working as Deputy Tahsildar at Chikkodi. He was prosecuted in a case under the Prevention of Corruption Act, 1988 (“the Act” for short) for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. After trial, the learned Special Judge, Belgaum, found him guilty vide judgment dated 29-10-2011. He was convicted and sentenced to imprisonment and payment of fine. He preferred Cri. A. No. 2877 of 2011 and in the said appeal I.A. No. 1 of 2011 was filed seeking the order of conviction and sentence dated 29-10-2011 passed in Special C.C. No. 13 of 2005 be suspended and he be released on bail. On 22-11-2011, it is ordered as follows: “Heard the learned Counsel for the appellant and for respondent-Lokayukta Sri M.B. Gundawade to take notice and copy be served on him. The appellant’s Counsel is permitted to make necessary corrections in the cause title showing the Lokayukta as the respondent. In the meanwhile, interim stay subject to the appellant submitting a personal bond for Rs. 25,000/- (twenty-five thousand only) with one surety to the satisfaction of the Trial Court for being released on bail”. 2. In view of the judgment of conviction, 2nd respondent issued a show-cause notice on 25-5-2012, calling upon the petitioner to submit his reply as to why he cannot be dismissed from service under Rule 8(viii) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Questioning the said show-cause notice, the petitioner approached the Karnataka Administrative Tribunal at Bangalore, contending that in view of the order of stay passed on 22-11-2011 in Cri. A. No. 2877 of 2011. The show-cause notice is arbitrary and illegal. The application having been dismissed on 30-8-2013, this writ petition has been filed. 3. Sri Santosh B. Malagoudar, learned Counsel for the petitioner, contended that the Tribunal has failed to appreciate that in view of the interim order of stay passed in Cri. A. No. 2877 of 2011, the show-cause notice issued by the 2nd respondent as to why the petitioner’s service be not terminated being arbitrary and illegal, the Tribunal has committed material error and illegality in dismissing the application, He submitted that, if the writ petition is not entertained, the petitioner’s service would be terminated by the 2nd respondent on the strength of the said judgment of conviction. 4. Mr. A.A. Pathan, learned AGA, on the other hand submitted that the Appellate Court being aware of the decisions of the Apex Court holding that, ordinarily suspension of conviction should not be granted and the order dated 22-11-2011 passed in Cri. A. No. 2877 of 2011 being only enlarging the appellant/petitioner on bail, in view of the decision of the Apex Court in the case of K.C. Sareen v CBI, Chandigarh ( AIR 2001 SC 3320 : (2001) 6 SCC 584 : 2001 Cri. L.J. 4234 (SC) (Cri.) 1186) the Tribunal is justified in not interfering with the impugned show-cause notice and in dismissing the application. 5. We perused the writ record. Undeniably, the petitioner was convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and was sentenced to undergo rigorous imprisonment for a period of two years and pay fine of Rs. 5,000/-, in default, to undergo simple imprisonment for a further period of 3 months. In Cri. A. No. 2877 of 2011 filed by the petitioner, an interim order, noticed supra, has been passed. 6. In the case of K.C. Sareen, the Apex Court examined the case, wherein, a Government servant who had been convicted under the provisions of the Act would lose his job in the event that conviction was not stayed and the Apex Court has held that, when a public servant has been found guilty of corruption by a Court, he has to be treated as corrupt, until he is exonerated by a Superior Court in appeal/revision. It has been made clear that, mere stay of conviction during the pendency of appeal should not confer any benefit upon such an employee, for the reason that, if such a public servant is permitted to hold the office and to perform official acts, public interest may suffer tremendously and it may also impair the morals of other persons manning such office and may further erode the confidence of the people in public institutions, besides demoralizing all other hones public servants. 7. The order dated 22-11-2011 passed in Cri. A. No. 2877 of 2011, noticed supra, does not contain reasons for suspension of conviction. The said order makes it clear that the sentence imposed was stayed subject to the appellant submitting a personal bond for Rs. 7. The order dated 22-11-2011 passed in Cri. A. No. 2877 of 2011, noticed supra, does not contain reasons for suspension of conviction. The said order makes it clear that the sentence imposed was stayed subject to the appellant submitting a personal bond for Rs. 25,000/- with one surety to the satisfaction of the Trial Court for being released on bail. 8. In the case of State of Maharashtra v Gajanan and Another ( AIR 2004 SC 1188 : (2003) 12 SCC 432 : 2004 Cri. L.J. 919 (SC)) the High Court while entertaining a criminal appeal against order of conviction recorded by the Special Court against the respondent for the offence under Section 7 of the Act, not only stayed the sentence imposed by the Trial Court but also proceeded to stay the conviction which could facilitate the respondent-public servant to continue to hold civil post, inspite of conviction recorded against him by rejecting that objection of the State and also distinguishing the judgment in the case of K.C. Sareen, it has been held as follows: “In the said judgment of K.C. Sareen’s case, this Court has held that it is only in very exceptional cases that the Court should exercise such power of stay in matters arising out of the Act. The High Court has in the impugned order nowhere pointed out what is the exceptional fact which in its opinion required it to stay the conviction. The High Court also failed to note the direction of this Court that it has a duty to look at all aspects including ramification of keeping such conviction is abeyance. The High Court, in our opinion, has not taken into consideration any of the above factors while staying the conviction. It should also be noted that the view expressed by this Court in K.C. Sareen’s case was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh and Another, (2003) 12 SCC 434”. 9. In the case of State of Maharashtra v Balakrishna Dattatrya Kumbhar (2012) 12 SCC 384 ) an order dated 8-4-2008 passed in Cri. A. No. 157 of 2008 by the High Court of Bombay, by way of which, the High Court passed an order of suspension of conviction of the respondent under Section 13(2) read with Section 13(1)(e) of P.C. Act, 1988 passed by the Special Judge was suspended. A. No. 157 of 2008 by the High Court of Bombay, by way of which, the High Court passed an order of suspension of conviction of the respondent under Section 13(2) read with Section 13(1)(e) of P.C. Act, 1988 passed by the Special Judge was suspended. After survey of the previous decisions, it has been held as follows: “17. The aforesaid order is, therefore, certainly not sustainable in law if examined in the light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage it done, could not be undone as the respondent-employee, if ultimately succeeds, could claim all the consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated state, has no merit for the reason that this Court, vide order dated 9-7-2009 has already stayed the operation of the said impugned order”. 10. In view of the clear enunciation of law by the Apex Court in the decisions noticed supra and also the order dated 22-11-2011 passed in Cri. A. No. 2877 of 2011, in our opinion, being stay of suspension of the order of sentence and enlarging the petitioner on bail, the Tribunal is justified in dismissing the application filed as against the show-cause notice dated 25-5-2012 issued by the 2nd respondent. 11. No case exists for entertaining the writ petition in exercise of special Jurisdiction under Article 226/227 of the Constitution of India and the decision of the Apex Court in the case of Union of India v L. Chandra Kumar. (1997) 3 SCC 261 ) Consequently, petition being devoid of merit is rejected. Mr. A.A. Pathan is permitted to file memo of appearance in 4 weeks.