Smt K R Susheela vs The State Of Karnataka
2021 Latest Caselaw 5731 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF DECEMBER, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

               W.P.No.52449/2019 (S - KSAT)

BETWEEN :

SMT.K.R.SUSHEELA
W/O S.MURALIDHARAN,
AGED ABOUT 63 YEARS,
RETD. JOINT COMMISSIONER OF
COMMERCIAL TAXES, (ADMN. & REC)-2,
NOW R/AT DOOR NO.833-L,
9TH MAIN, 5TH CROSS,
RPC LAYOUT, HAMPINAGAR,
BANGALORE-560104.                             ...PETITIONER

              (BY SRI RANGANATHA S. JOIS, ADV.)

AND :

1.      THE STATE OF KARNATAKA
        REP BY ITS PRINCIPAL SECRETARY,
        DEPARTMENT OF FINANCE,
        2ND FLOOR, VIDHANA SOUDHA,
        BANGALORE-560001.

2.      THE COMMISSIONER OF
        COMMERCIAL TAXES IN KARNATAKA,
        GANDHINAGAR,
        BANGALORE-560009.
                              -2-

3.   THE ACCOUNTANT GENERAL IN
     KARNATAKA, PARK HOUSE ROAD,
     BANGALORE-560001.                       ...RESPONDENTS

               (BY SRI B.RAJENDRA PRASAD, HCGP.)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE RECORDS RELATING TO THE IMPUGNED ORDER DATED
06.09.2019 IN A.NO.1007/2019 VIDE ANNEXURE-A, PERUSE
AND QUASH THE SAID ORDER OF THE TRIBUNAL AND THE
ORDER IMPUGNED IN THE SAID APPLICATION AS ARBITRARY,
ILLEGAL AND VIOLATIVE OF ARTICLES 14 AND 16(i) OF THE
CONSTITUTION OF INDIA.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, S. SUJATHA, J., MADE THE
FOLLOWING:

                           ORDER

The petitioner has challenged the order dated

06.09.2019 passed by the Karnataka State

Administrative Tribunal at Bangalore ('Tribunal' for

short) in Application No.1007/2019 whereby the

application filed by the petitioner has been dismissed.

2. The petitioner, a retired Joint Commissioner

of Commercial Taxes had challenged the order dated

03.11.2014 wherein the Government - respondent No.1

exercising the powers under Rule 100(5) of the KCSR

has ordered to treat the period of suspension from

20.04.2009 to 23.05.2009 and 15.04.2010 to

21.08.2010 as the period not spent on duty. The said

application being rejected, the petitioner is before this

Court.

3. Learned counsel for the petitioner inviting

the attention of the Court to Rules 100(5) and (7) of the

KCSR submitted that the respondent No.1 had no

competency to pass the order to keep the suspension

period of the petitioner not on duty. Utmost, it was

obligatory on the part of the respondent No.1 to

consider the case of the petitioner in terms of the

proviso to Rule 100(7) wherein the authority would have

ordered the period of suspension to be converted into

leave of any kind due and admissible to the Government

servant. Nextly, it was argued that the order impugned

is vindictive in nature. No valid reasons are assigned in

passing the order impugned albeit a detailed reply was

submitted by the petitioner to the show-cause notice.

As such, the order impugned dated 03.11.2014 not

being a speaking order, the Tribunal ought to have set

aside the same, dismissing the application.

4. Learned Government Pleader for the official

respondents placing reliance on the judgment of the

Hon'ble Apex Court in the case of Krishnakant

Raghunath Bibhavnekar vs. State of Maharashtra

and Others reported in (1997) 3 SCC 636 submitted

that the power exercised by the respondent No.1 to

consider the suspension period as the period not on

duty is in terms of Rule 100(5) of KCSR.

5. In reply, learned counsel for the petitioner

distinguishing the aforesaid ruling of the Hon'ble Apex

Court submitted that the said decision was rendered in

the circumstances which is akin to Rule 100(1) of the

KCSR and the same is not applicable to the facts of the

case which falls under Rules 100(5) and 100(7) of the

KCSR.

6. Having heard the learned counsel appearing

for the parties and perusing the material on record, we

are convinced that the order of the Tribunal impugned

herein does not call for any interference for the following

reasons.

7. Firstly, the petitioner has not opted to

consider the case for falling under Rule 100(7) of the

KCSR and not exercised any option to treat the period of

suspension as leave by converting the same into leave of

any kind due. The petitioner has approached the

Tribunal challenging the order of suspension in

Application Nos.2039 and 2227/2009. Being aggrieved by

the order passed by the Tribunal in the said application,

the petitioner filed W.P.No.4848/2010. The Co-ordinate

Bench of this Court considering the facts and

circumstances of the case has disposed of the matter

with the following observations:-

"3. During the course of arguments, learned Additional Government Advocate had brought to our notice that on 15.04.2010, the Government pursuant to the directions of the Tribunal has reviewed the order of suspension and the Government was of the opinion that she has to be kept under suspension pending enquiry. Accordingly, the enquiry officer was also appointed. A memo was filed to that effect on 22.07.2010. Considering the reasons assigned in the order dated 15.04.2010, this Court wanted to ascertain from the concerned Secretary to the Department, whether it was feasible for the Government to review its order of suspension considering the articles of charges levelled against the petitioner and the reasons assigned to continue the order of suspension as per the Government Order dated 15.04.2010.

4. Today, Mr. Ajay Seth, Secretary to Government, Budget & Resources, attached to

the Finance Department has appeared before the Court and submits that the Government would review the order of suspension in obedience to the order of the Tribunal. It is also stated by the Secretary that there are two vacancies in Shimoga and Davangere and that the petitioner would be posted to any one of the places. The submission made by the Secretary is placed on record.

5. In view of the aforesaid submission by the Secretary, we are of the opinion that the grievance of the petitioner need not be considered as the Government is willing to reconsider the order of suspension."

8. Subsequent to passing of the aforesaid

order, W.P.No.23942/2012 was filed by the petitioner

seeking for a direction to the State Government to

review the order of suspension as undertaken before

this Court in W.P.No.4848/2010 dated 23.07.2010 and

also for a direction to the State Government to conclude

the enquiry proceedings and take a decision consequent

upon reply made by the petitioner to the second show-

cause notice issued in pursuance of enquiry report

submitted by the Enquiry Officer. The said writ petition

came to be disposed of directing the Government to

review the order of suspension as undertaken in

W.P.No.4848/2010 and based on the enquiry report and

explanation furnished by the petitioner, the Disciplinary

Authority was directed to take decision on the same

within the time stipulated.

9. It transpires that pursuant to the order

dated 23.07.2010 passed by this Court in

W.P.No.4848/2010, review of the suspension order was

made and the suspension was revoked by order dated

21.08.2010. It is significant to note that pursuant to the

charges proved against the petitioner, the order dated

23.08.2012 was passed imposing the punishment of

withholding of one annual increment with cumulative

effect in terms of Rule 8(iii) of the Karnataka Civil

Services (CCA) Rules, 1957 which was challenged by the

petitioner before the Appellate Authority. The Appellate

Authority has modified the said order reducing the

quantum of punishment to that of censure. In this

background, the arguments advanced by the learned

counsel for the petitioner that the order impugned dated

03.11.2014 would adversely affect the promotion and

pensionary benefits of the petitioner, has been already

addressed by this Court in W.P.No.53245/2017 filed by

the petitioner disposed of on 22.10.2018. The Co-

ordinate Bench of this Court in the said case has

considered the modified order dated 28.08.2013 passed

by the Appellate Authority. In that regard, consideration

with respect to the punishment affecting the benefits

claimed by the petitioner vis-à-vis the present

circumstances i.e., the petitioner having already

superannuated from the services has been dealt with.

Thus, the Co-ordinate Bench has observed that the

petitioner has already superannuated from her service

and therefore if the benefit is granted to the petitioner

- 10 -

all that would be payable to the petitioner is only the

terminal benefits and the pensionary benefits by

reckoning the service at the point of superannuation by

providing the benefit of the salary fixation of the

promoted post and financial and pensionary benefits to

the petitioner. In such scenario, a direction has been

issued to the official respondents to reckon the

promotion to be granted to the petitioner with effect

from 17.11.2012 i.e., the date on which promotion was

granted to the other employees based on the

recommendation of the DPC in the meeting held on

22.10.2012. On giving effect to the same, the financial

benefit is directed to be calculated and also pension

shall be fixed accordingly within the time frame fixed by

the Court.

10. Thus, it is evident that the apprehension of

the petitioner in denying the promotion and the

pensionary benefits has already been considered by this

- 11 -

Court and favourable orders having been passed in

respect of the petitioner, the grounds now canvassed

before the Court do not merit any consideration.

11. Further, no doubt the judgment relied upon

by the learned Government Pleader in Krishnakant

Raghunath Bibhavnekar, supra, was rendered in the

context of pending criminal trial where the appellant

was placed under suspension and was paid subsistence

allowance. After his acquittal, he was reinstated but

consequential benefits were not given to him. The

relevant Rule 72 of the Maharashtra Civil Services

(Joining Time, Foreign Services, and Payment during

Suspension, Dismissal and Removal) Rules, 1991 was

invoked which gave discretion to the disciplinary

authority to regulate payment during suspension

period. In such circumstances, rejecting the claim of

the appellant therein, the Hon'ble Apex Court has held

that when the suspension period was treated to be a

- 12 -

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 nine increments as stated in

the additional affidavit therein. He is also entitled to be

treated as on duty from the date of suspension till the

date of the acquittal for the purpose of computation of

pensionary benefits etc.,

12. Though this ruling was rendered considering

Maharashtra Civil Services (Joining Time, Foreign

Services, and Payment during Suspension, Dismissal

and Removal) Rules, 1991 as aforesaid and may not

have a direct bearing on the case on hand, but the

proposition that discretionary power vested with the

Disciplinary Authority under Rule 100(5) of KCSR

cannot be disputed by the petitioner. Even considering

sub-rule (7) of Rule 100 of the KCSR, the mandate of

the said Rule has been complied with. A show-cause

- 13 -

notice indeed was issued to treat the period of

suspension as not on duty and considering the reply,

the impugned order dated 03.11.2014 was passed. It

cannot be held that the said order is passed without

application of mind. In the preamble portion of the said

order, the Disciplinary Authority has extensively

considered the orders passed by the Tribunal in the

applications filed by the petitioner earlier. A

comprehensive reading of this order with the

applications filed in Application Nos.2039 and

2227/2009 which came to be disposed of on 15.01.2010

read with the order of this Court in W.P.No.53245/2017

(D.D.22.10.2018) referred to above, the impugned order

cannot be said to be a non-speaking order. Thus, the

arguments of the learned counsel for the petitioner

stand negated.

For the reasons aforesaid, we find no perversity or

infirmity in the order impugned.

- 14 -

Accordingly, the writ petition stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PMR