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2014 DIGILAW 475 (KAR)

Syed Ameen Ali v. High Court of Karnataka

2014-04-16

A.N.VENUGOPALA GOWDA

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ORDER : A.N. Venugopal Gowda, J. 1. The petitioner, a member of the Karnataka Judicial Service, was found guilty after a disciplinary enquiry was held against him. He was imposed with a punishment of withholding of two increments without cumulative effect. The said decision was communicated to the petitioner on 18.12.2008 and a copy was forwarded to the Accountant General (A & E), Karnataka. By a letter dated 23.03.2009, the office of the Accountant General (A & E), Karnataka, having stated that the punishment imposed is incapable of implementation, since the petitioner attained the age of superannuation on 31.01.2006, opinion of the Financial Advisor having been taken, it was proposed to modify the punishment. The petitioner was served with a show-cause notice dated 04.09.2010 and he having submitted a reply dated 06.09.2010, the order of punishment was reviewed and modified punishment was imposed. A further communication having been received from the office of the Accountant General (A & E), Karnataka, seeking clarification as to how the period of suspension is to be treated and a communication dated 29.04.2011 vide Annexure-N having been sent, 'that the period of suspension of the petitioner be treated as such and during the period of suspension, the petitioner is entitled only for subsistence allowance,' assailing Annexure-N, this writ petition was filed under Article 226 of the Constitution of India, with a further prayer to direct the respondent No. 1, to treat the period spent by the petitioner from 06.11.2003 to 31.01.2006, as duty, for all intents and purposes and to make available all the financial benefits flowing therefrom. 2. Firstly, Sri H. Subramanya Jois, learned Senior Advocate, contended that the order dated 18.12.2008 having been passed nearly one year and eleven months after the petitioner attained the age of superannuation is void for the reason that as on that date he was not a Government Servant and hence, no punishment could be imposed. Secondly, neither the dismissal nor removal or compulsory retirement having been ordered, the order of withholding of salary for the period of suspension is void and without authority of law. Secondly, neither the dismissal nor removal or compulsory retirement having been ordered, the order of withholding of salary for the period of suspension is void and without authority of law. Thirdly, Rules 98 to 100 of Karnataka Civil Services Rules can be applied only in respect of a civil servant on whom penalty of removal, dismissal or compulsory retirement is imposed and any other punishment imposed would not empower even remotely to treat the period of suspension, as such, i.e., to deny the salary and allowances for the suspension period. Fourthly, the Rules postulate the competent authority to pass a considered order while imposing penalty as to how the period of suspension be treated and in the instant case, there is no considered order. Fifthly, as on 04.09.2010, the petitioner being no more in service was not eligible for grant of any increment and hence, such a punishment imposed being null and void is non est in the eye of law and consequently, the petitioner is entitled to the relief. 3. Sri H. Kantharaja, learned Additional Advocate General, on the other hand contended that after the Inquiring Authority submitted report holding the petitioner guilty of second part of Charge-IV, petitioner attained the age of superannuation. He submitted that to the show-cause notice dated 09.02.2007, petitioner submitted a reply on 28.02.2007 and the Competent Authority, on 04.10.2008, resolved and imposed on the petitioner, penalty of withholding of two increments without cumulative effect. He submitted that in view of a communication received from the office of the Accountant General (A & E), Karnataka, on 23.03.2009 and the opinion furnished by the Financial Advisor on 19.03.2010, the Competent Authority being of the opinion that the order imposing penalty cannot be given effect to and in view of the provision under Rule 26 of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 (for short 'the Rules'), a show-cause notice was issued and after considering the petitioner's reply dated 06.09.2010, modified punishment was imposed and hence, there is no scope for interference with the impugned action. 4. Perused the writ record and considered the rival contentions. The only question that falls for my consideration is, 'whether the period from the date of suspension i.e., 06.11.2003, till the date of superannuation on 31.01.2006, is entitled to be treated as a period on duty with full pay and allowances? 5. 4. Perused the writ record and considered the rival contentions. The only question that falls for my consideration is, 'whether the period from the date of suspension i.e., 06.11.2003, till the date of superannuation on 31.01.2006, is entitled to be treated as a period on duty with full pay and allowances? 5. Undisputed facts of the case are that the petitioner while working as Presiding Officer of Wakf Tribunal, Mysore, was placed under suspension on 06.11.2003 and Articles of Charges was issued on 16.12.2003 and Inquiring Authority appointed on 08.06.2004, after holding the inquiry submitted report holding the petitioner guilty of second part of Charge-IV. Punishment of withholding of two increments without cumulative effect was passed on 18.12.2008 and was forwarded to the Accountant General (A & E), Karnataka, who pointed out that in view of the petitioner attaining the age of superannuation, the penalty imposed cannot be given effect to. 6. Rule 26 was substituted by Notification No. DPAR 8 SDE 93 dated 22.12.1995. The Rule was amended as per Notification No. DPAR 13 SDE 97, dated 01.09.1998. The amended Rule being relevant reads thus: 26. 6. Rule 26 was substituted by Notification No. DPAR 8 SDE 93 dated 22.12.1995. The Rule was amended as per Notification No. DPAR 13 SDE 97, dated 01.09.1998. The amended Rule being relevant reads thus: 26. Review.-The State Government may at any time, either on its own motion or otherwise, after calling for records of the case, review any order passed under these rules, when any new material or evidence, which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come, or has been brought, to its notice, or if in its opinion an order imposing any penalty cannot be given effect to or if an order imposing penalty is not legally valid and.- (a) Confirm, modify or set aside the order; (b) Impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order; (c) Remit the case to the authority which made the order or to any other authority directing such further action or inquiry as is considered proper in the circumstances of the case; or (d) Pass such other order as it deems fit; Provided that no order imposing or enhancing any penalty shall be made by the State Government unless the member of the service concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in clauses (v) to (viii) of Rule 8 or to enhance a minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 11 has not already been held in the case, no such penalty shall be imposed except after enquiring in the manner laid down in Rule 11, subject to the provisions of Rule 14 and except after consultation with the Commission. Provided further that no application by a Government Servant for reviewing an order in a disciplinary proceedings imposing any penalty other than those specified in clauses (v) to (viii) of Rule 8 and in respect of which an appeal is provided shall lie. 7. Provided further that no application by a Government Servant for reviewing an order in a disciplinary proceedings imposing any penalty other than those specified in clauses (v) to (viii) of Rule 8 and in respect of which an appeal is provided shall lie. 7. A show cause notice dated 04.09.2010 vide Annexure-J having been served on the petitioner, as to why penalty of reduction of pension equivalent to withholding of two increments amounting to Rs. 992/- as per the old scale of pay (Rs. 2,460/- as per the revised scale of pay) should not be imposed on him, a reply dated 06.09.2010 vide Annexure-K was submitted, wherein, the petitioner acknowledged the fact of inquiry held against him for major charges and after enquiry minor penalty having been imposed and stated as follows: .......I have no objection if your Honour proposed to impose penalty of reduction of pension, equivalent to withholding of two increments, without cumulative effect, as ordered in the main order. 8. The said action vide Annexure-J was taken, with reference to the provision under Rule 26, since, the punishment of withholding of two increments without cumulative effect, imposed on 18.12.2008 vide Annexure-D, cannot be given effect to, in view of the petitioner attaining the age of superannuation on 31.01.2006. The petitioner, in response to the show cause notice vide Annexure-J, with full knowledge having consented on 06.09.2010 vide Annexure-K and having also not challenged the modified punishment imposed on 03.12.2010 vide Annexure-L, the principles of estoppel, acquiescence and waiver are attracted. Hence, the first and fifth contentions urged by Sri H. Subramanya Jois cannot be accepted. 9. In Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and Others, (1997) 3 SCC 636 , pending criminal trial, the appellant was placed under suspension and paid subsistence allowance. After his acquittal, was reinstated, but consequential benefits were not given. Rule 72 of the Maharashtra Civil Services (Joining Time, Foreign Services, and Payment during Suspension, Dismissal and Removal) Rules, 1991, gave discretion to disciplinary authority to regulate payment during suspension period. After his acquittal, was reinstated, but consequential benefits were not given. Rule 72 of the Maharashtra Civil Services (Joining Time, Foreign Services, and Payment during Suspension, Dismissal and Removal) Rules, 1991, gave discretion to disciplinary authority to regulate payment during suspension period. Appellant approached the Administrative Tribunal for grant of consequential benefits and Tribunal having dismissed the application, an appeal having been filed contending that Rule 72(3) cannot be applied to him nor would the respondents be justified in treating the period of suspension, as the period of suspension, as not being warranted under the Rules and while considering the question, whether a person would be entitled to all consequential benefits including pensionary benefits, treating the suspension period as duty period when a Government servant is acquitted of the offences and he is held entitled to reinstatement, it was held by the Apex Court as follows: 4. Mr. Ranjit Kumar, learned counsel for the appellant, contends that under Rule 72(3) of the Maharashtra Civil services (Joining Time, Foreign Services, and Payment during Suspension, Dismissal and Removal) Rules, 1991 (for short, the 'Rules') the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paras 5 and 6 of the additional affidavit. 10. Sub-Rule (1) of Rule 100 of Karnataka Civil Services Rules, reads thus:- 100. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order.- (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. 11. The petitioner was found guilty of second part of Charge-IV and was imposed with the punishment of withholding of two increments without cumulative effect. Once it was found by the Competent Authority that the penalty of withholding of two future increments cannot be implemented, as the petitioner attained the age of superannuation, upon review in exercise of power under Rule 26, it was decided to modify that penalty by an appropriate penalty and a show cause notice vide Annexure-J having been served, the petitioner stated no objection on 06.09.2010 vide Annexure-K i.e., he having no objection for imposition of penalty of reduction in pension equivalent to withholding of two increments without cumulative effect as ordered in the main order. As already noticed, the modified penalty imposed, to effect the reduction of Rs. 2,460/- per month (equivalent to the amount of two increments as per revised pay scale) from the pay of Rs. As already noticed, the modified penalty imposed, to effect the reduction of Rs. 2,460/- per month (equivalent to the amount of two increments as per revised pay scale) from the pay of Rs. 52,780/- vide Annexure-L has remained unchallenged. 12. The Competent Authority while deciding, whether the petitioner who was suspended pending holding of disciplinary enquiry is entitled to his pay and allowances or not and to what extent if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of the case. It is only, if the petitioner had been absolved of all blame and was treated by the Competent Authority as being on duty during the period of suspension, the petitioner was entitled to full pay and allowances for the suspension period. The petitioner was found guilty of second part of Charge-IV leveled against him and the penalty vide Annexure-L was imposed, which has remained unchallenged. The petitioner has not been absolved for all the charges leveled against him. In view of the modified penalty vide Annexure-L, the petitioner has no right to claim the payment of difference of pay and allowances for the suspension period. The Competent Authority was quite competent to pass such order and the order as at Annexure-N cannot be said to be unreasonable or arbitrary from any point of view. In the result, the writ petition being devoid of merit, Rule issued is discharged and petition is dismissed without any order as to costs.