Karnataka High Court

Sri Mohamed Hameed vs The Superintendent Of Police And ... on 30 June, 2021

Author: S.G.Pandit And M.G.S.Kamal

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 30TH DAY OF JUNE 2021

                          PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                             AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

         WRIT PETITION NO.200927/2021 (S-KAT)

Between:

Sri Mohamed Hameed S/o Khajasab Mulla
Aged about 61 Years, Occ: Former CPC 1100
Residing at Rajanal
Tq. & Dist. Bidar-585 401
                                                ... Petitioner
(By Sri Huleppa Heroor, Advocate)

And:

1.     The Superintendent of Police
       Bidar District, Bidar-585 401

2.     The Inspector General of Police
       North Eastern Range
       Kalaburagi - 585 101
                                             ... Respondents

(By Smt. Archana P. Tiwari, GA)

       This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ of
certiorari by quashing the order passed on 24.07.2018 in
Application No.4115 of 2008 by the Karnataka State
Administrative Tribunal at Bengaluru which is placed at
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Annexure-A and consequently allow the said application and
etc.
      This petition having been heard and reserved for
orders on 17.06.2021, coming on for pronouncement of
orders, this day, M.G.S.Kamal J., made the following:-

                            ORDER

This writ petition is filed against the order dated

24.07.2018 passed by Karnataka State Administrative

Tribunal at Bangalore (for short 'the KSAT') dismissing

the application filed by the petitioner challenging the

order of dismissal dated 03.01.2007 passed by the first

respondent and the order dated 09.04.2007 passed by

the second respondent, by which the punishment of

dismissal was modified to that of compulsory

retirement.

2. Brief facts of the case are that, petitioner

had joined the service as Civil Police Constable on

10.03.1992 and was working as such in Janavada

Police Station, Bidar. That by order dated 02.08.2005,

the first respondent had directed initiation of

disciplinary proceedings against the petitioner under

Rule 6 of the Karnataka State Police (Disciplinary

Proceedings) Rules, 1965. The Specially Empowered

Authority - Inquiring Authority had issued a charge

memo dated 07.08.2005 in which it was alleged that the

petitioner having the first wife namely, Sofiya Begum,

three daughters and a son had contracted a second

marriage with one Smt. Farzana Begum of Siddi Taleem,

Bidar District by giving false information that first wife

had no male issue. That the contracting of second

marriage was without prior permission of the

department and thus the petitioner had violated the

provisions of Rule 28 of the Karnataka Civil Services

(Conduct) Rules, 1966 making himself liable for

disciplinary action. The petitioner had submitted his

written statement of defence denying the charges leveled

against him and desired oral enquiry. Disciplinary

authority had examined 11 witnesses and had produced

17 documents. The petitioner participated in the

disciplinary proceedings and defended himself.

3. On 07.11.2006 first respondent issued

second show cause notice enclosing a copy of the

enquiry report calling upon to show cause as to why the

enquiry report should not be accepted. The petitioner

had submitted a detailed reply/explanation dated

27.11.2006 to the first respondent pointing out the

purported infirmity in the procedure adopted by the

enquiring authority and also pointing out that the

alleged second marriage had not been established by

the disciplinary authority as required under law and

requested the first respondent not to accept the enquiry

report and to exonerate the petitioner of the charges.

4. However, the first respondent by order dated

03.01.2007 imposed the penalty of removal from the

services and considered the period of suspension as

such. Being aggrieved by the same, the petitioner

preferred a statutory appeal before the second

respondent challenging the legality and correctness of

the order passed by the first respondent. By order

dated 09.04.2007, the second respondent on

confirmation of the appeal modified the penalty of

removal from service to that of compulsory retirement

confirming the other aspect of the matter passed by the

first respondent. Aggrieved by the said order of the

appellate authority, the petitioner filed an application

under Section 19 of the Administrative Tribunal Act,

1985 before the KSAT, Bengaluru in Application

No.4115/2008. The KSAT by order dated 24.07.2018

dismissed the said application as devoid of merits

confirming the order of the appellate authority.

Aggrieved by the said order, the petitioner is before this

court.

5. Learned counsel for the petitioner reiterating

the grounds urged in the writ petition contended that

the Tribunal has not considered the documentary

evidence made available before it. It is contended that

the first respondent had committed error in holding that

the charges leveled against the petitioner were proved

on the basis of conclusion drawn by the enquiring

authority. He contended that whenever major

punishment of removal or dismissal is to be imposed on

a Government servant, the disciplinary authority has to

seek opinion of the Karnataka Public Service

Commission as envisaged in Article 320 of the

Constitution of India and in the instant case no such

opinion or suggestion from the commission has been

obtained and as such, the action of the first respondent

was arbitrary. Learned counsel further contended that

the documents produced during the disciplinary

proceedings to prove the charges against the petitioner

have not been proved. He also submitted that the

fabricated and concocted documents had been produced

against him during the enquiry which have not been

taken note of. He further submits that these aspects of

the matter have not been considered by the KSAT and

as such the orders passed by the respondents are

violative of Articles 14 and 16 (1) of the Constitution of

India.

6. Learned Additional Government Advocate on

the other hand, supports the order impugned in this

writ petition and further submits that the enquiry

procedure and penalty imposed are in accordance with

law. The order impugned does not warrant any

interference.

7. This petition under Articles 226 and 227 of

the Constitution of India filed challenging the orders

passed by the respondents and the KSAT. The Apex

Court in the case of Pravin Kumar Vs. Union of India

and Ors., reported in (2020) 9 SCC 471 dealing with

departmental enquiry and the power of judicial review

has summarized the principles. At para 26 of the said

judgment, the Apex Court has held as under:

"26. These principles are succinctly elucidated by a three-Judge Bench of this court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC

749 in the following extract: (SCC pp. 759-60, paras 12-13) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or

finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718: AIR 1964 SC 364 : this Court held at p.728-29 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:

      (i)    State of T.N. v. S. Subramaniam,
             (1996) 7 SCC 509.
      (ii)   Lalit Popli v. Canara        Bank
             (2003) 3 SCC 583.

     (iii)    H.P. Seb v. Mahesh         Dhiya
             (2017) 1 SCC 768.


      28. It is thus well settled that the

Constitutional Courts while exercising their powers of judicial review would not assume

the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority."

8. Viewed in the light of the aforesaid legal

position, in the instant case as seen from the records,

the disciplinary proceedings have been initiated and

conducted in accordance with Rule 6 of the Karnataka

State Police (Disciplinary Proceedings) Rules, 1965 and

charges have been framed. The petitioner has given

written submission disputing the charges. Detailed

enquiry proceedings, examination of witness,

production of documents, cross-examination of the

witnesses has been conducted. The petitioner has also

led in evidence and produced the documents the fact of

petitioner contracting second marriage has been proved.

Therefore, the petitioner cannot seek to contend that

there has been no compliance with regard to the

procedural aspect of the matter. He also cannot

contend that he has not been given any opportunity in

the proceedings. Thereafter, show cause notice has

been issued by the first respondent based on the

findings given by the enquiry proceedings regarding

charges proved against the petitioner. The petitioner

herein has submitted his detailed written submission to

the show cause notice. The first respondent on

consideration of the same imposed penalty of removal

from service. As against this, the petitioner has

preferred an appeal before the second respondent who

has modified the penalty of removal from service to that

of compulsory retirement. All grounds and contentions

urged by the petitioner have been considered by the

second respondent.

9. It is relevant at this juncture to refer to Rule

28 of the Karnataka Civil Service (Conduct) Rules, 1966,

which reads thus:

"28. Bigamous marriage.- (1) No Government Servant who has a wife living shall contract another marriage without first obtaining the permission of the Government notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.

(2) No female Government Servant shall marry any person who has a wife living without first obtaining the permission of the Government."

10. Apart from the above, as per the Circular

bearing No.DPAR 18 SiAaSuE 2001, dated 14.09.2001,

Government has enlisted the penalty to be imposed in

the cases of established charges, in that at Sl.No.21, the

punishment prescribed for contracting second marriage

in violation of Karnataka Civil Service (Conduct) Rules,

1966 is compulsory retirement from the Government

service.

11. As regards the contention of seeking opinion

as suggested from the Karnataka Public Service

Commission for imposing major punishment of removal