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2016 DIGILAW 920 (KAR)

Sharath v. Inspector General of Police

2016-12-02

JAYANT PATEL, SREENIWAS HARISH KUMAR

body2016
ORDER : JAYANT PATEL, J. 1. The petitioner has sought for setting aside the order, dated 29.01.2016 passed by the Karnataka Administrative Tribunal, Bangalore, in Application No. 7972/2011 vide Annexure-A, and order, dated 01.07.2016 in Review Application No. 144/2016 vide Annexure-B and quashing the order of penalty imposed on him on 27.06.2016 in departmental proceedings, in Order No. Sibbandi (2)DE/02/2011-12, O.B. No. 187/16-17 vide Annexure-L and such other reliefs. 2. The facts in brief are that, the petitioner was appointed as a Civil Police Constable on 02.05.2007. On 17.03.2011 petitioner's wife made a complaint against him alleging physical and mental cruelty on her putting forth demand for dowry. Therefore, FIR was registered against the petitioner for the offences punishable under Sections 498A and 506 of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act, 1961. As a result of this complaint being registered, the second respondent initiated enquiry under Rule 6(2) of the Karnataka State Police (DP) Rules, 1965. Second respondent appointed the third respondent as the enquiry officer. On 28.09.2011 the third respondent framed charges. Because of initiation of this enquiry against him, the petitioner approached Karnataka Administrative Tribunal by filing Application No. 7972/2011 seeking to quash the charge Memo dated 02.07.2011 issued by the third respondent. In this application, interim order staying the proceedings before the third respondent was not granted. When this application was pending, the petitioner and his wife entered into a compromise and they decided to live together. As a result, petition filed by wife for restitution of conjugal rights, M.C. No. 15/2012 before the Court of Senior Civil Judge & JMFC, Pandavapura, ended in a compromise decree, as per Annexure-F. On 29.01.2016 the Karnataka Administrative Tribunal, Bangalore, dismissed the Application holding that there was no bar for holding departmental enquiry during the pendency of criminal proceedings. Challenging this order, the petitioner filed W.P. No. 16110/2016 in this Court. But, in the writ petition, the petitioner was directed to move the Tribunal seeking review of the order based on subsequent developments, that too in view of the dispute between petitioner and his wife having been amicably settled. It was also observed in the order that in case the interim order was not granted by the Tribunal or review application was dismissed, the petitioner could approach this Court in accordance with law. It was also observed in the order that in case the interim order was not granted by the Tribunal or review application was dismissed, the petitioner could approach this Court in accordance with law. Accordingly, the petitioner filed a Review Application No. 144/2016 before the Tribunal by disclosing all the subsequent events as also the fact that C.C. No. 35/2012 initiated on a report made by the wife also ended in his acquittal. But the Tribunal on 01.07.2016 dismissed the Review Application holding that there was no error apparent on the face of the record. Since the Tribunal did not grant interim stay of all other proceedings in the disciplinary enquiry during the pendency of the review petition, the second respondent issued a notice to the petitioner on 10.06.2016 calling upon his reply as to why penalty should not be imposed on him based on the report of the Enquiry Authority. Though the petitioner submitted his reply stating that the matter was under consideration before the Tribunal, the second respondent passed an order on 27.06.2016 by imposing penalty of withholding one increment as per Annexure-L. Aggrieved by this order, the petitioner has preferred this writ petition. 3. We have heard the learned counsel for the petitioner as also the learned Additional Government Advocate. 4. The learned counsel for the petitioner argued that this Court while disposing of W.P. No. 16110/2016 clearly observed that the petitioner could file a Review Petition before the Tribunal by bringing to its notice subsequent developments. When the dispute between the husband and wife has been settled and that they are living together now, the Tribunal ought to have taken into consideration this development and reviewed its order passed in Application No. 7972/2011. The departmental enquiry was initiated against the petitioner because of a complaint made by his wife. When the parties could settle the differences between themselves and when the Court of Senior Civil Judge and JMFC, Pandavapura, also accepted the compromise petition, there was no necessity for continuing the departmental proceedings. The criminal case also ended in acquittal. Continuation of departmental proceedings, in these circumstances, would serve no purpose, and therefore, the Tribunal ought to have quashed the order of penalty passed by second respondent as per Annexure-L. 5. The criminal case also ended in acquittal. Continuation of departmental proceedings, in these circumstances, would serve no purpose, and therefore, the Tribunal ought to have quashed the order of penalty passed by second respondent as per Annexure-L. 5. The learned Additional Government Advocate submitted that while it was a fact that the dispute between the husband and wife had been settled, but the gravity of the charges made against the petitioner in the departmental enquiry might be as such that quashing of the order of penalty would be improper, and therefore, the Tribunal was right in rejecting the Review Application. 6. It is held by the Tribunal that it doesn't find any observation made by the High Court that the appellant has been directed to file Review Application although it makes a reference to paras 5, 6 and 7 of the order of this Court in W.P. No. 16110/2016. 7. It remains a fact that the reason for initiation of departmental enquiry against the petitioner was a report made to the police by his wife alleging harassment on her because of demand for dowry. Initially, the second respondent was right in ordering to conduct an enquiry. But subsequent developments show that the petitioner and his wife settled their differences. The proceeding initiated by petitioner's wife under Section 13B of the Hindu Succession Act, 1955, also ended in a compromise. According to this compromise, petitioner agreed to live with his wife. Then the criminal case launched on the basis of the complaint made by wife also ended in his acquittal. 8. Based on the aforesaid developments, this Court while disposing of W.P. No. 16110/2016 clearly observed that the petitioner could seek review of the order of the Tribunal. But whatever the Tribunal has stated that there is no such observation can only be said to be misconstruction of paras 5, 6 and 7 of the order of this Court in W.P. No. 16110/2016. Further it can also be stated that the Tribunal appears to have been over scrupulous in applying the provisions enabling the review of the order. But whatever the Tribunal has stated that there is no such observation can only be said to be misconstruction of paras 5, 6 and 7 of the order of this Court in W.P. No. 16110/2016. Further it can also be stated that the Tribunal appears to have been over scrupulous in applying the provisions enabling the review of the order. It is true that Order 47, Rule 1 of C.P.C. contemplates the existence of the following grounds for seeking review : i. Discovery of new or important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made; or ii. Some mistake or error apparent on the face of the record; or iii. Any other sufficient reasons. 9. The Tribunal while disposing of review application has held that the documents pertaining to compromise between the petitioner and his wife were very much available with him at the time of hearing of the Application No. 7972/2011. He could have produced those documents at that time and for not doing so, the Tribunal is of the clear opinion that those documents cannot be considered for reviewing the judgment. It is also held that there is no error apparent on the face of the record. 10. Indeed the petitioner could have produced those documents at that time itself, but non-production of documents cannot be said to be a reason for declining to review. There may not be any error apparent on the face of record in the order of Tribunal in Application No. 7972/2011. But Order 47, Rule 1 of C.P.C. also states that review is also permitted for any other sufficient reason. Here the dispute is between husband and wife. This dispute gave raise to a complaint being made by the wife. It is true that there is no bar for proceeding ahead with departmental enquiry while criminal proceedings were also pending. Regard being had to the fact that the differences between husband and wife have been settled and they are living together happily, the Tribunal could have exercised jurisdiction to review the order. In fact, the Supreme Court in the case of Murari Lal Gupta and another v. State of U.P. and others, reported in 2014 (6) Recent Apex Judgments (R.A.J.) 527, has held as follows: '8........... In fact, the Supreme Court in the case of Murari Lal Gupta and another v. State of U.P. and others, reported in 2014 (6) Recent Apex Judgments (R.A.J.) 527, has held as follows: '8........... There is no dispute that offence punishable under Section 498A of I.P.C. and that under the Dowry Prohibition Act are not compoundable. The remaining offences under Sections 323, 504 and 505 are, however, compoundable. Courts do not recognise settlements between the accused and the complainant party for quashing proceedings in cases which are not compoundable under Section 320, Cr.P.C. There is however an exception to that rule. That exception comprises case where the parties are settling a matrimonial dispute. To give quietus to the controversy between them on all counts, this Court has permitted quashing of criminal proceedings also, no matter the offences may not be compoundable. (Emphasis supplied) 11. When a proceeding for non-compoundable offence can be quashed for settling a matrimonial dispute with a view to bring harmony between husband and wife, the Tribunal could have reviewed the order in Application No. 7972/2011. Therefore, it has to be held now that the Writ Petition deserves to be allowed, and hence, the following: ORDER i. Writ Petition is allowed. ii. The order dated 29.01.2016 of the Karnataka Administrative Tribunal in Application No. 7972/2011 vide Annexure-A and order dated 01.07.2016 passed in Review Application No. 144/2016 vide Annexure-B are set aside. iii. The order dated 27.06.2016 imposing penalty on the petitioner in Proceedings No. Sibbandi (2)DE/02/2011-12, O.B. No.187/16-17 vide Annexure-L is quashed. 12. No order as to costs.