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Karnataka High Court · body

2016 DIGILAW 124 (KAR)

Venkappa Naik P. v. State of Karnataka

2016-02-03

R.S.CHAUHAN

body2016
ORDER : R.S. Chauhan, J. 1. The petitioner has challenged the legality of the endorsement dated 18-9-2014 passed by the Bruhat Bengaluru Mahanagara Palike (BBMP), whereby he has been denied the payment of his pensionary benefits ostensibly on the ground that an investigation is being conducted against him by the Lokayukta. Briefly the facts of the case are that on 2-6-1973 the petitioner had joined the services of BBMP as a Junior Engineer Graduate. Subsequently, he was promoted to the post of Assistant Executive Engineer, Executive Engineer, and then as a Superintendent Engineer. After rendering a service for twenty-six years, on 30-8-1999, he retired from the post of Superintendent Engineer. Instead of paying the pensionary benefits to the petitioner, the respondent 2-BBMP, withheld the pensionary benefits ostensibly on the ground that a complaint had been made against the petitioner, and two others, with regard to irregularities in execution of works during the year 1993-94. The complaint related to the execution of Ejipura Residential Quarters. According to the complainant, the Ejipura Residential Apartments were to be constructed for economically weaker sections of the society. However, there were certain irregularities committed by the petitioner, and two other employees, of the Corporation. On 13-4-2005, a charge-sheet was furnished to the petitioner with regard to the said complaint. On 10-1-2006, an Enquiry Officer was appointed to hold an enquiry against the petitioner. The other two employees who were aggrieved by the issuance of charge-sheets to them filed Writ Petition No. 15099 of 2005 and Writ Petition No. 6070 of 2006 before this Court. This Court granted an interim stay of the enquiry proceedings. Subsequently, the Principal Secretary, Urban Development Department, respondent 1, referred the matter to the Hon'ble Lokayukta. Therefore, the enquiry proceedings were dropped against the petitioner and others. On 10-12-2010, the petitioner submitted a representation before the respondents for release of his pensionary benefits. However, by an endorsement dated 21-2-2011, the respondent 2 rejected the petitioner's representation inter alia on the ground that the investigation being conducted by the Hon'ble Lokayukta falls within the definition of "judicial proceedings" as contained in Rule 214 of the Karnataka Civil Services Rules ("KCSR' for short). Not satisfied with the rejection, the petitioner again made a representation on 21-10-2013. By the impugned endorsement dated 18-9-2014, his representation again has been rejected on the same ground. Hence, this petition before this Court. 2. Mr. Not satisfied with the rejection, the petitioner again made a representation on 21-10-2013. By the impugned endorsement dated 18-9-2014, his representation again has been rejected on the same ground. Hence, this petition before this Court. 2. Mr. B.B. Bajentri, the learned Counsel for the petitioner, submits that presently the matter is merely being investigated by the Hon'ble Lokayukta and no charge-sheet has been filed against the petitioner before any Criminal Court. Therefore, the respondents are unjustified in claiming that the investigation would fall within the definition of the words "judicial proceedings" as contained in Rule 214 of the KCSR. According to the learned Counsel, a "judicial proceeding" is said to be instituted only after a charge-sheet has been filed before the Criminal Court. However, that is not the situation in the present case. Hence, the respondents are not justified in withholding the petitioner's pensionary benefits. On the other hand, Dr. R. Ramachandran, the learned Counsel for BBMP, submitted that 90% of the pensionary amount is being paid to the petitioner. Therefore, under Rule 214(1)(a) of the KCSR, the Government is justified in withholding the remaining 10% of the pensionary benefits from the petitioner. Hence, he justifies the impugned endorsement dated 18-9-2014. Heard the learned Counsel for the parties, and perused the impugned endorsement. Rule 214 of the KCSR is as under: "214. (1)(a) Withholding or withdrawing pension for misconduct or negligence.--The Government reserve to themselves the right of either withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including the service under a foreign employer and the service rendered upon re-employment after retirement. (b) Recovery of pecuniary loss from pension.-The Government reserve to themselves the right of ordering recovery from a pension, the whole or part of any pecuniary loss caused to the Government or to a foreign employer under whom the Government servant has worked on deputation or otherwise (along with interest at eight percent per annum from the date of occurrence of pecuniary loss to Government). If in any departmental or judicial proceedings, the pensioner is found guilty of grave negligence during the period of his service, including the service rendered upon re-employment after retirement: Provided that the Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of pension shall not be reduced below the amount of minimum pension prescribed under the rules. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority other than Government, that authority shall submit a report recording its findings to the Government. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment. - (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 214-A shall be sanctioned. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 214-A shall be sanctioned. (5) Where the Government decided not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule.- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted.- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance is made; and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court." A bare perusal of the said Rule clearly reveals that the Government does have the power to either withhold, or withdraw the pension, or part thereof if in any departmental, or judicial proceedings, the pensioner is found guilty of the misconduct, or negligence during the period of his service. According to Rule 214(1)(b) of the KCSR, the Government also has the power to order recovery from the pensioner the whole, or part of any pecuniary loss caused to the department, if in any departmental, or judicial proceedings the pensioner is found to be guilty of misconduct, or negligence during the period of service. However, Rule 214(1)(b) of the Rules defines both the terms, "departmental proceedings" and "judicial proceedings". A "judicial proceedings" is deemed to be instituted in case of criminal proceeding on the date on which the complaint, or the report of the Police Officer is submitted before the learned Magistrate and the learned Magistrate takes cognizance thereon. Thus, clearly a judicial proceeding cannot be held to be instituted at the stage of an investigation. A "judicial proceedings" is deemed to be instituted in case of criminal proceeding on the date on which the complaint, or the report of the Police Officer is submitted before the learned Magistrate and the learned Magistrate takes cognizance thereon. Thus, clearly a judicial proceeding cannot be held to be instituted at the stage of an investigation. Therefore, the respondents are not justified in claiming that merely because an investigation is pending against the petitioner, by the Hon'ble Lokayukta, his case is covered within the definition of the words "judicial proceedings" contained in Rule 214 of the Rules. In fact, in order to exercise the power given under Rule 214(1)(a), or even Rule 214(1)(b) of the Rules, a pensioner has to be found guilty in a judicial proceeding. But, as mentioned above, far from finding the petitioner guilty in a judicial proceeding, the case hangs only at the stage of investigation. Therefore, the decision taken by the respondents is legally untenable. For the reasons stated above, the impugned endorsement dated 18-9-2014 is set aside. The respondents are directed to pay the petitioner the entire pensionary benefits and to pay the arrears of 10% which they have withheld from the date of retirement till the date of payment. The arrears of pension to be paid shall carry interest at the rate of 6% p.a. The said exercise shall be carried out within a period of one month from the date of receipt of a copy of this order. Petition is, hereby, allowed.