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2023 DIGILAW 775 (KAR)

V. Srinivas v. State of Karnataka

2023-06-15

C.M.POONACHA, G.NARENDAR

body2023
ORDER : C.M. Poonacha, J. W.P. No.4592/2019 is filed by the State and W.P.No.1456/2022 is filed by the employee. In both petitions the order dated 16.12.2017 passed in Application No.5702/2017 by the Karnataka Administrative Tribunal (hereinafter referred to as 'Tribunal') are challenged. Hence, both the Writ Petitions are taken up together for consideration. Although the Writ Petitions were posted for hearing on interlocutory applications, by consent of the learned counsels for the parties, they have been heard finally on merits. 2. The facts culminating in the present Writ Petitions are that the Petitioner in W.P. No.1456/2022 (hereinafter referred to as 'employee') was working as a Manager in the office of the Special Land Acquisition Officer, Mandya. He is alleged to have demanded a bribe of Rs. 1,60,000/- from one Smt.Jayarathnamma (hereinafter referred as the 'complainant') for release of the balance amount of Rs. 1,15,843/- out of the total amount of Rs. 7,24,170/- being the compensation amount awarded to the complainant towards acquisition of her land and that the employee had received Rs. 40,000/- in advance and he was caught red handed while accepting the remaining bribe amount of Rs. 1 lakh on 05.03.2009. Based on the enquiry report and recommendation of the Hon'ble Upalokayuktha dated 15.03.2012 that charges were proved, the Government issued second show cause notice to the employee on 04.01.2017. Considering the reply dated 19.05.2017 given by the employee, the Government passed order dated 11.09.2017 invoking power under Rule 8(vii) of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 (hereinafter referred to as CCA Rules) imposing penalty for removal of the employee from service. The employee challenged the said order dated 11.09.2017 before the Tribunal in Application No.5702/2017. The Tribunal after appreciation of the material on record by its order dated 16.12.2017, passed the following order: "i) Application is allowed. The impugned Order bearing No.Kam.E.355.BMM.2016 dated 11.9.2017 at Annexure A-23 on the file of Respondent No.1 is set aside. ii) Applicant shall be taken back to duty within one month from the date of receipt of certified copy of this order and granted all consequential benefits including seniority, notional fixation of pay etc., except arrears of salary from the date of removal from service till date of reinstatement." 3. ii) Applicant shall be taken back to duty within one month from the date of receipt of certified copy of this order and granted all consequential benefits including seniority, notional fixation of pay etc., except arrears of salary from the date of removal from service till date of reinstatement." 3. W.P. No. 4592/2019 has been filed by the State to set aside the order dated 16.12.2017 passed by the Tribunal and to dismiss application No.5702/2017 filed by the employee before the Tribunal. W.P. No.1546/2022 is filed by the employee insofar as not granting arrears of salary from the date of removal from service till date of reinstatement by the Tribunal. 4. Learned AGA assailing the order passed by the Tribunal contends; i) That the alleged bribe amount demanded by the employee was handed over by the complainant at the residence of the employee and the said employee had touched the amount before the police officer entered the house and when the hands of the employee were washed with solution, the colour turned pink. ii) The Tribunal did not appreciate the relevant material on record to demonstrate that pursuant to the trap laid out, the employee was found to have received the illegal gratification demanded. iii) The order of the Tribunal is contrary to the material on record and is liable to be set aside and application filed by the employee before the Tribunal is liable to be rejected. 5. Per contra, learned counsel appearing for the employee contended that; i) The complainant and shadow witness both have turned hostile. ii) There is no material to show the demand for illegal gratification was made by the employee and there is no evidence with regard to the charge alleged against the employee. iii) The Tribunal has rightly appreciated the entire aspect of the matter and has set aside the order dated 11.09.2017. However, it ought to have granted the consequential benefits including the arrears of salary/or the entire period. 6. We have considered the submissions made by both learned counsels and perused the material available on record. The question that arises for our consideration is 'Whether the order dated 16.12.2017 passed by the Tribunal is liable to be interfered with?' 7. The charge against the employee made vide Articles of charge dated 14.12.2012 is as follows: "2. 6. We have considered the submissions made by both learned counsels and perused the material available on record. The question that arises for our consideration is 'Whether the order dated 16.12.2017 passed by the Tribunal is liable to be interfered with?' 7. The charge against the employee made vide Articles of charge dated 14.12.2012 is as follows: "2. That you Sri V. Srinivas, the DGO, while working as Manager at the office of the Special Land Acquision in Mandya, asked the complainant namely Smt. Jayarathnamma of Odubasappanadoddi in Halagur hobli of Malavalli taluk to pay bribe of Rs. 1,60,000/- for release of balance amount of Rs. 1,15,843/- out of the total amount of Rs. 7,24,170/- being the compensation amount paid for acquisition of land in Sy.No.112/1 of Maragowdanahalli Village in Malavalli taluk belonging to Smt. Chikkatayamma, the mother of the complainant and received advance bribe of Rs. 40,000/- asking to pay the balance bribe early and on 25.03.2009 took further bribe of Rs. 1,00,000/- from the complainant to show official favour, failing to maintain absolute integrity and devotion to duty, the act of which was un-becoming of a Government Servant and thereby committed mis-conduct as enumerated U/R3(1)(i) to (iii) of Karnataka Civil Service (Conduct) Rules, 1966." 8. In order to appreciate the context of the charge, it is necessary to notice a few of the background facts. The land in question i.e. Sy.No.112/1 situated at Maragowdanahalli Village in Malavalli Taluk was acquired by the Deputy Commissioner of Mandya for Public purpose and an award was passed for a sum of Rs. 7,24,170/-. Due to the objection raised by one Smt. Puttathayamma who was the neighbouring land owner, an enquiry was held in the Court of Deputy Commissioner and out of the compensation amount, Rs. 1,15,843/- was ordered to be withheld temporarily with a direction that the sum of Rs. 6,08,327/- be released to Smt. Chikkathayamma - the owner of the land. 9. Smt. Puttathayamma filed a suit in O.S. No.326/2000 against Smt. Thammaiah and others and Smt. Chikkathayamma was arrayed as Defendant No.5 in the said suit. The suit was dismissed on 02.07.2005 and R.A. No.171/2005 filed by Smt. Puttathayamma was also dismissed on 22.03.2007. 6,08,327/- be released to Smt. Chikkathayamma - the owner of the land. 9. Smt. Puttathayamma filed a suit in O.S. No.326/2000 against Smt. Thammaiah and others and Smt. Chikkathayamma was arrayed as Defendant No.5 in the said suit. The suit was dismissed on 02.07.2005 and R.A. No.171/2005 filed by Smt. Puttathayamma was also dismissed on 22.03.2007. Smt. Puttathayamma got issued legal notice 15.07.2007 not to release the award amount to Smt. Chikkathayamma and after an enquiry, vide order dated 29.11.2008 passed by the Special Land Acquisition Officer, it was directed that a sum of Rs. 6,08,327/- be released in favour of Smt. Chikkathayamma and remaining amount of Rs. 1,15,843/- be temporarily withheld. Smt. Chikkathayamma filed W.P. No.3300/2008 which was disposed of on 10.02.2009 with a direction that if the amount is not disbursed, the Special Land Acquisition Officer was required to disburse the amount expeditiously and Smt. Chikkatayamma received the remaining amount which was withheld by the Special Land Acquisition Officer on 30.03.2010. 10. On the allegation made by one Smt. Jayaratnamma (daughter of Smt. Chikkatayamma) before the Lokayuktha that the employee demanded money for releasing the withheld amount, a trap was laid. The allegation was that for the amount due in a sum of Rs. 1,15,843/-, bribe alleged to have been demanded was Rs. 1,60,000/-. 11. In the Departmental Enquiry, four witnesses were examined i.e., PW.1- complainant, PW.2 - shadow witness, PW.3 - Investigating Officer and PW.4 - Panch witness. PWs.1 and 2 - complainant and shadow witness both have turned hostile (although in the order dated 16.12.2017, the Tribunal has observed that PW.2 has supported the case of the Disciplinary Authority, it is forthcoming from a perusal of the evidence of PW.2 which is produced as Annexure-A13 to the Writ Petition that PW.2 has turned hostile). The Tribunal while re-appreciating the factual matrix, has noticed that in the reply to the second show cause notice dated 04.01.2017, the employee has submitted an explanation on 19.05.2017 where the main contention raised by the employee was lack of evidence and this aspect of the matter has not been appreciated by the Disciplinary Authority. 12. The Tribunal while re-appreciating the factual matrix, has noticed that in the reply to the second show cause notice dated 04.01.2017, the employee has submitted an explanation on 19.05.2017 where the main contention raised by the employee was lack of evidence and this aspect of the matter has not been appreciated by the Disciplinary Authority. 12. In the enquiry report, although it is noticed that PW.1 who is the complainant has not supported the case of the Disciplinary Authority, since PW.1 has admitted signature on the complaint (Ex.P1) and Mahazars (Exs.P2 and P3) and since the phenolphthalein test conducted on the employee was found positive and the bribe money entrusted to the complainant at the time trap was found on the table of the employee in his house, the charges framed against him were held as proved. 13. It is relevant to note that apart from the trap, the complainant - PW.1 and the shadow witness - PW.2 have turned hostile and there is no material to show that there was a demand for illegal gratification made by the employee. Also, there is no material to show that there was any work pending to be done by the employee, inasmuch as the employee was working as a Sheristedar in the Taluk Office and the compensation amount required to be released, was the subject matter of judicial proceedings. 14. The specific allegation of the employee is that the complainant voluntarily came to his house and kept the bribe money on the table. There is no material to demonstrate that the employee demanded bribe from the complainant. Further, the complainant - PW.1 and shadow witness - PW.2 having turned hostile, merely because the phenolphthalein test was found positive, in the absence of material to demonstrate demand for illegal gratification and the surrounding circumstances so as to justify the same, there is no material to record a finding that the charges have been proved. Although, the scope of judicial review is a limited one, in cases where findings have been recorded without any material and based on conjunctures and surmises, interference with the findings of the enquiry is justified. The Hon'ble Supreme Court in the case of Union of India and others v. Gyan Chand Chattar, (2009) 12 SCC 78 has held as under: "35. The Hon'ble Supreme Court in the case of Union of India and others v. Gyan Chand Chattar, (2009) 12 SCC 78 has held as under: "35. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. 36. ............ The Enquiry Officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eyes of law. " (emphasis supplied) 15. The Tribunal noticing that the explanation of the employee dated 19.05.2017 to the second show cause notice dated 04.01.2017 regarding lack of evidence has not been appreciated by the Disciplinary Authority in a proper perspective and hence, the impugned order of dismissal was vitiated, has allowed the application and granted the reliefs. The said conclusion arrived by the Tribunal is just and proper in view of the fact that the present case is one where there was no evidence and there was no justification to pass the order dated 11.09.2017 ordering for removal of the employee from service. 16. With regard to the portion of the order of the Tribunal in ordering the employee to be taken on duty with all consequential benefits including seniority, notional fixation of pay, etc., except arrears of salary from the date of removal from service till date of reinstatement, it is necessary that the said order be modified only to the extent of ordering that all consequential benefits except arrears of salary be granted from the date of removal from service till the date of the order of the Tribunal i.e., 16.12.2017. 17. 17. In view of the aforementioned, we pass the following: ORDER i. WP No.4592/2019 filed by the State is dismissed; ii. WP No.1456/2022 filed by the employee is partly allowed; iii. The order of the Tribunal is modified to the extent of directing that the Petitioner in WP No.1456/2022 be granted all consequential benefits including seniority, notional fixation of pay, etc., except arrears of salary from the date of removal from service till the date of the order of the Tribunal i.e., 16.12.2017, subject to the Respondents implementing the direction within 6 months from today, failing which the employee would be entitled to make a claim for arrears of basic salary. iv. The order dated 16.12.2017 of the Tribunal on all other aspects remain unaltered. No costs.