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2017 DIGILAW 347 (KAR)

B. KRISHNAMURTHY v. STATE OF KARNATAKA DEPARTMENT OF HEALTH & FAMILY WELFARE, VIDHANA SOUDHA, BENGALURU

2017-02-07

A.N.VENUGOPALA GOWDA, JAYANT PATEL

body2017
ORDER : The present petition is directed against the order dated 19.03.2015 passed by the Karnataka Administrative Tribunal (hereinafter referred to as the Tribunal for the sake of brevity) whereby, the Tribunal for the reasons recorded in the order has not interfered with the order passed by the authority under Rule 99 of The Karnataka Civil Services Rules, (hereinafter referred to as ‘the KCSRs’ for the sake of brevity). 2. We have heard Mr. Abhinav R., learned Counsel appearing for the petitioner and Mr. D. Nagaraj, learned AGA appearing for the respondents. 3. The contention raised on behalf of the petitioner was that as per Rules 99 (4) and 99 (5) of the K.C.S.Rs, it was obligatory on the part of the competent authority to consider about the quantification of the amount which was payable to the petitioner for the period after dismissal until re-instatement. There was no application of mind on the part of the competent authority in the impugned order before the Tribunal. He submitted that the Tribunal has erroneously considered that the applicable Rule was Sub-Rule (2) of Rule 99 and not Sub-Rule (4) of Rule 99 of the KSCRs. As per the learned Counsel, there was no application of mind by the Tribunal and hence this Court may consider in the present petition. 4. It is undisputed position that initially the charges in the enquiry for misappropriation were proved and the penalty of dismissal from service was imposed. The reviewing authority modified the penalty by withholding two increments with cumulative effect and additionally considered the aspects of deprivement of salary for the period after dismissal until actual reinstatement and further treated the period as break in service. Thereafter, when the matter was earlier taken to the Tribunal, the Tribunal further modified the penalty of withholding of two increments without future effect and so far as the period after dismissal until re-instatement, the Tribunal directed the matter to be considered by the competent authority under Rule 99 of the KCSRs. The show-cause notice was issued to the petitioner by the competent authority. The show-cause notice was issued to the petitioner by the competent authority. The matter was considered under Rules 99(4) and 99(5) of the KCSRs and it has been found that on humanitarian grounds, the penalty is already substituted, though the serious charges of misappropriation were proved and therefore again leniency is shown by treating the period as non dies which would mean continuity in service would be available but salary would not be available. It is true that the Tribunal has referred to Sub-Rule (2) of Rule 99 of KCSRs, but even if the matter is considered as if under Sub-Rule (4) of the KCSRs, then also, we do not find that the order passed by the authority for treating the period as non dies can be termed as arbitrary. 5. The attempt on the part of the learned Counsel appearing for the petitioner to contend that the quantification of the amount of salary to be paid should be stated in the notice or that there is no benefit given in the ultimate final order for any payment of quantum of amount, both cannot be countenanced for the reason that earlier the penalty was of withholding of two increments with cumulative effect and further with the break in service after dismissal until reinstatement coupled with the non-entitlement of the salary, in the subsequent impugned order, the period has been treated as non dies. Therefore break in service is taken out, but the continuity without salary is considered. When the discretion has been given to the authority to take the appropriate decision for quantum of punishment and when the authority has already considered the aspects of seriousness of the charge, humanitarian approach already made while modifying the penalty, the observations of the Tribunal in earlier order for breach of the provisions of Article 311 of the Constitution and other aspects, it cannot be said that the order passed for treating the period as non dies was arbitrary. 6. In view of the above, the ultimate decision taken by the Tribunal for noninterference would not call for any interference by this Court in exercise of the power under Article 227 of the Constitution. 7. Under the circumstances, no case is made out for interference. Hence the petition is dismissed.