Sri. M.S. Kadkol S/O. Srishail ... vs The State Of Karnataka
2022 Latest Caselaw 1290 Kant

         IN THE HIGH COURT OF KARNATAKA,
                                                      R
                  DHARWAD BENCH

       DATED THIS THE 31ST DAY OF JANUARY 2022

                       PRESENT

        THE HON'BLE MR.JUSTICE S.G. PANDIT
                         AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

       WRIT PETITION NO.110912 OF 2017(S-KAT)

BETWEEN:

SRI. M.S. KADKOL S/O. SRISHAIL KADAKOL
AGE:44 YEARS, OCC: NIL, R/O.
C/O. C. D. HIREMATHMANAGER,
M J BANK, RANI CHENAMMA NAGAR, DHARWAD.
                                           ...PETITIONER
(BY SRI.V.M.SHEELVANT, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY ITS UNDER SECRETARY
GOVERNMENT OF KARNATAKA
PWD (SERVICE-C), M S BUILDING
DR AMBEDKAR VEEDHI, BANGALURU.
                                          ...RESPONDENT
(BY SRI.G.K.HIREGOUDAR., ADVOCATE)

      THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING THIS HON'BLE
COURT TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION AND QUASH THE
ORDERS DATED 7.9.2004 AND 1.6.2016 PRODUCED AT
ANNEXURE-F AND K AND TO ISSUE A WRIT IN THE NATURE OF
MANDAMUS DIRECTING THE RESPONDENT TO REINSTATE THE
PETITIONER    WITH    BACK    WAGES   AND    WITH   ALL
CONSEQUENTIAL BENEFITS IN THE INTEREST OF JUSTICE AND
EQUITY.
                                2



      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDERS,     COMING   ON      FOR   'PRONOUNCEMENT        OF
ORDERS', THIS DAY, ANANT RAMANATH HEGDE J., MADE
THE FOLLOWING:


                           ORDER

Rs.50 currency, which is said to have been found in

the most unlikely place, i.e, in the socks worn by the

petitioner, has landed the petitioner in the soup.

2. The trap laid, based on the complaint dated

16.01.1998, filed by Mr Chandrachari, the Assistant

Executive Engineer, was aimed at trapping another

employee in the same department where the petitioner

was working. The trap aimed at nabbing another

employee, DGO-1 ( Delinquent Government Official -1)

also caught the present petitioner in possession of Rs.50,

the tainted money.

3. The complainant Mr Chandrachari, was

transferred from Byadagi to Dharwad. DGO-1 who was

supposed to dispatch the service records, sat on it,

expecting a bribe of Rs.150.00 for dispatching the service

records.

4. Acting on the aforementioned complaint which

was filed before Deputy Superintendent of Police

Lokayukta, the case was registered in Crime No.2/1998 for

the offence under Section 7, 13(1)(d) read with 13(2) of

Prevention of Corruption Act 1988 and a raid was

conducted. The petitioner who happened to be with the

delinquent government official (DGO -1) at the time of the

raid, was also found to have Rs.50.00 the tainted

currency. This currency of Rs.50.00 is admittedly paid by

DGO-1 to the petitioner. According to the contesting

respondents, this currency of Rs.50.00 is part of

Rs.150.00 paid to DGO-1 by the complainant.

5. Subsequently, the departmental enquiry is also

initiated. A charge memo was issued to the petitioner as

well as DGO-1. In the departmental enquiry, the accused

in the original complaint dated 16.01.1998, is DGO-1 and

the present petitioner is referred to as DGO-2. Petitioner

contested the matter. The enquiry officer submitted his

report holding that charges against both the delinquent

government officials are established. Pursuant to the

report dated 14.08.2003, the disciplinary authority

imposed a penalty of compulsory retirement vide order

dated 07.09.2004. Said order is called in question by the

petitioner. Karnataka Administrative Tribunal in terms of

its order dated 01.06.2016 in application No.5791/2014,

rejected the challenge.

6. The petitioner is before this court invoking

Article 226 of the Constitution of India impugning the order

passed by the disciplinary authority and the Administrative

Tribunal. At the time of the trap, the petitioner was

working as a Second Division Assistant in the Public Works

Department, Byadagi.

7. Narrative in the petition can be summarized as

under.

7.1 One H.R.Naikar, DGO -1 who was also

working as Second Division Assistant in the

office where the petitioner was discharging

duty, was assigned the task of dispatching the

service records of complainant-Mr

Chandrachari. The complainant alleged that Mr

Chandragiri was repeatedly approaching DGO-

1, requesting him to dispatch his service

records. Despite repeated requests, the DGO-1

did not dispatch the service records. However,

DGO-1 demanded Rs.150=00 for work to be

done file.

7.2 Just before the trap, Rs.50/- was handed over

to the petitioner by DGO-1 which according to

the petitioner was the hand loan advanced by

DGO -1.

7.3 The petitioner claims that he unsuspectingly

received Rs.50/- as a hand loan from DGO -1,

being unaware that the currency handed over

to him was tainted.

7.4 Petitioner never demanded money from Mr

Chandrachari and never received money from

him.

8. As narrated above, in the departmental

enquiry, the charge against the petitioner is held to be

proved and consequently, he is compulsorily retired from

service. The challenge to the said order, before the

Karnataka Administrative Tribunal, turned out to be futile.

Hence the present petition.

9. Heard Sri.V.M.Sheelavant, learned counsel

appearing for the petitioner and Sri. G.K.Hiregoudar,

learned Government Advocate appearing for the

respondents.

10. The question that needs to be answered in this

petition is,

whether the petitioner has made out a case to interfere with the finding recorded by the Enquiry Officer, Disciplinary Authority and the Administrative Tribunal in this writ petition under Article 226 of the Constitution of India?

11. Scope of enquiry under Article 226 of

Constitution of India in a matter relating to the disciplinary

enquiry, quantum of punishment imposed and scope of

judicial review of the order passed by the Tribunals or

appellate authorities before which the validity of finding of

departmental enquiry is tested, is well settled. The Hon'ble

Apex Court in a catena of decisions has held that the High

Court shall not venture into re-appreciation of evidence.

The Apex Court has held that the high court can only look

into whether:-

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is a violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very fact of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

12. The Hon'ble Apex Court has also gone to the

extent of holding that the High Court shall not exercise its

jurisdiction under Article 226 of the Constitution of India in

a matter relating to the departmental enquiry to,

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted following the law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

13. Keeping in mind the above said well-

established principles, this court has considered the

contentions raised at the bar.

14. There is no dispute over the fact that the

enquiry officer has followed the procedure while

conducting the departmental enquiry. Submission of Sri.

Sheelavant, appearing for the petitioner mainly centered

around the point that there is no demand for a bribe by

the petitioner. Referring to the contents of the charge, it is

urged that even according to the complainant, the bribe of

Rs.150/- was demanded by DGO-1 and not the petitioner.

It is also forthcoming from the records that Rs.50/- was

paid to the petitioner by DGO-1. According to the learned

counsel for the petitioner, the demand by the petitioner for

a bribe of Rs.50/- from the complainant cannot be inferred

at all. Based on these submissions, it is urged that both

the enquiry officer and the Tribunal failed to take note of

these vital aspects.

15. The learned counsel for the petitioner would

further urge that punishment of compulsory retirement

imposed on the petitioner is disproportionate to the nature

and gravity of the allegation against the petitioner. It is

also urged that no work of the complainant was pending

with the petitioner. Without a complaint against the

petitioner and a demand made by the petitioner and in the

absence of any illegal favour done or promised by the

petitioner, he could not have been compulsorily retired

from service, even if he is found with tainted money is the

submission on behalf of the petitioner.

16. It is further submitted by Sri.V.M.Sheelvant

that the petitioner is acquitted in the criminal trial and the

benefit of finding in a criminal trial should be extended in

this case also.

17. Sri. G.K.Hiregoudar learned Government

Advocate defending the order of the disciplinary authority

as well as the administrative tribunal would contend that

the case on hand does not call for any interference by this

Court considering the well-settled principles governing the

scope of judicial review in a matter like this. Learned

counsel would urge that the finding arrived at by the

disciplinary authority was based on unimpeachable

evidence. It is also submitted by the learned Government

Advocate that acquittal in a criminal proceeding initiated

against the delinquent employee is not a ground to set

aside the finding of the departmental enquiry. He would

submit the degree of proof required in a criminal

proceeding under criminal law and departmental enquiry

are entirely different and judgment in a criminal case in

favour of accused ipso facto does not lead to the

conclusion that delinquent employee is not guilty. The

learned counsel in support of his submission has placed

reliance on the following judgments of the Hon'ble Apex

Court.

17.1 Karnataka Power Transmission Power Corporation vs. C. Nagaraju and another (2019) 10 SCC 367

17.2 Praveenkumar vs. Union of India 2020 9 SCC 471

17.3 Deputy General Manager vs. Ajaykuar Srivatsav 2021 2 SCC 612

17.4 This court perused the records and considered the contentions raised at the bar.

18. The petitioner has taken a defence that he has

received Rs.50/- from DGO-1 as a hand loan. Thus,

possession of tainted currency with the petitioner is

admitted. The explanation that the amount was paid as a

hand loan does not appeal at all. No man of ordinary

prudence would believe that Rs.50 received as a hand loan

should find its way to the socks worn by the loanee. In the

normal and natural sequence of things, the Rs.50-00 note

should have found the place either in the purse or pocket

of the petitioner. Thus, the band loan theory is rightly

rejected by the and the Tribunal.

19. It is also relevant to note that the charge

framed in the enquiry against the present petitioner is that

he has received Rs.50/- from a delinquent government

official No.1 Mr H.R.Naikar out of Rs.150/- which was

received by Mr Naikar as a bribe from the complainant and

thereby petitioner failed to maintain absolute integrity

which makes the petitioner unbecoming of a government

servant and on account of such misconduct petitioner

contravened Rule 3(1) (i) and (iii) r/w Rule 16(4) of

KCS(Conduct) Rules, 1966 which is punishable under Rule

8 of KCS(CCA) Rules, 1957". The enquiry officer has

returned the finding of guilty based on supporting evidence

on record. The enquiry officer by following all the

procedures, affording ample opportunity to the petitioner

to defend his case has returned a verdict of guilty against

the petitioner. The departmental enquiry in question does

not suffer from any of the infirmities to call for interference

by the High Court in the exercise of its power under

Articles 226 of the Constitution of India.

20. The Karnataka Administrative Tribunal has

considered all the contentions in the application filed by

the petitioner and has not found reason to interfere with

the finding in the departmental enquiry. Since the finding

of guilty returned by the enquiry officer does not call for

any interference viewed from the parameters set by the

Hon'ble Apex court.

21. Based on the finding in the departmental

enquiry the appointing authority has decided to impose a

penalty of compulsory retirement. Then the question is, to

what extent the High Court can interfere in the decision

taken by the appointing authority in punishing the

delinquent employee? Law in this regard is more than well

settled is an understatement. The ratio laid down in the

case of Union of India and Others vs.P.Gunasekaran

reported in (2015) 2 SCC 610 and the ratio laid down in

the judgments cited by the learned Government Advocate

for the respondents, needs to be borne in mind while

considering the legality of punishment imposed.

22. In terms of the ratio laid down in the

judgments referred above, the High Court can interfere

with the quantum of punishment imposed only in a

situation where the punishment shocks the conscience of

the Court or if it is disproportionate to the offence

committed.

23. The disciplinary authority while punishing the

petitioner has exercised the powers vested under Rule 8 of

the Karnataka Civil Services (C.C.A.) Rules, 1957. The said

Rule would read as under:

"8. Nature of penalties.- One or more of the following penalties for good and sufficient reasons and as hereinafter provided, may be imposed on Government servants, namely.-

(i) Fine in the case of Government servants belonging to State Civil Services, Group-D;

(ii) Censure;

(iii) "Withholding of increments;

(iii-a) Withholding of promotion"

(iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the State Government or the Central Government, any other State Government, any person, body or authority, to whom the service of the Officer had been lent;

(iv-a) Reduction to a lower stage in the time scale of pay for a period with a specific direction as to whether or not the Government servant will earn increments of pay during the period of such reduction with reference to the reduced pay or whether the pay shall remain constant and with a further direction whether on the expiry of the period of penalty the reduction will or will not have the effect of postponing the future increments of his pay;

(v) "Reduction to a lower time scale of pay, grade, post or service which shall, unless otherwise directed, be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding:-

(a) Seniority and pay in the scale of pay, grade, post or service to which the Government servant is reduced;

(b) Conditions of restoration to the scale of pay grade or post of service from which the Government servant was reduced and his seniority and pay on such restoration to that scale of pay, grade, post or service;

(vi) Compulsory retirement;

(vii) Removal from service which shall not be a disqualification for future employment;

(viii) Dismissal from service which shall ordinarily be a disqualification for future employment:

[Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the order of the disciplinary authority, no penalty other than those specified in clauses (vi) to (viii) shall be imposed for an established charge of corruption.]

[Explanation 1.-For purposes of this proviso the expression "corruption" shall have the meaning assigned to the expression "Criminal misconduct by a public servant" in section 13 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988).]

[Explanation 2.-The following shall not amount to a penalty within the meaning of this rule:-

(i) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the Service or post or the terms of his appointment;

(ii) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar;

(iii) Non-promotion, whether in a substantive or officiating capacity, of a Government servant, after consideration of his case, to a Service, grade or post for promotion to which he is eligible;

(iv) Reversion to a lower Service, grade or post of a Government servant officiating in a higher Service, grade or post on the ground that he is considered, after trial to be unsuitable for such higher Service, grade or post or on administrative grounds unconnected with his conduct (such as the return of the permanent incumbent from leave or deputation, availability of a more suitable officer and the like);

(v) Reversion to his permanent Service, grade or post of a Government servant appointed on probation to another Service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation:

(vi) Compulsory retirement of a Government servant in accordance with the provision relating to his superannuation or retirement;

(vii) Termination of services:-

(a) Of a person employed under an agreement, in accordance with the terms of such agreement; or

(b) Of a Government servant appointed in probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or

(c) Of a temporary Government servant in accordance with the provisions of sub-rule (1) of Rule 5 of the Karnataka State Civil Services (Temporary Services) Rules, 1967."

24. The expression 'One or more of the following

penalties for good and sufficient reasons and as hereinafter

provided, may be imposed on Government servants,

namely' on plain reading seems to suggest that the power

on the disciplinary authority is very wide. However, it is to

be borne in mind that every wide power has its own

inherent or inbuilt limitations. The limitations may be

either express or implied. When it comes to provisions

dealing with the power to impose a penalty conferring

power to impose any one or more of the wide range of

penalties provided in the provisions, as found in Rule 8

referred above, then the limitation on the exercise of such

power is to be read into the provisions keeping in the mind

the doctrine of proportionality of punishment. Merely

because statute invests the authority with the power to

choose any of the several prescribed punishments, it

cannot be said that the authority has the unfettered power

to impose any of the prescribed punishments. When the

statute confers a wide range of choices while imposing

punishment, the authority imposing punishment should

exercise discretion with utmost caution. While the

authority is deciding on the punishment, the doctrine of

proportionality should be the background score till the

exercise is completed. If punishment imposed is

disproportionate to the offence alleged, then it violates the

right guaranteed under Article 21 of the Constitution of

India.

25. The expression 'good and sufficient reasons'

found in rule 8 referred to above, is an express limitation

imposed on the power that unerringly leads to the

conclusion that the punishment imposed necessarily has to

be, proportionate to the offence committed, logical and

convincing.

26. From the records, it is apparent that

delinquent government official No.1 in the departmental

enquiry paid Rs.50/- to the petitioner. Admittedly, the

demand of Rs.150/- for dispatching the file of Mr

Chandragiri was made by delinquent No.1. The

complainant has not paid any amount to the petitioner.

Admittedly, the petitioner did not demand money from the

complainant. From the finding arrived at by the enquiry

officer, it is apparent that the role of the petitioner was

passive. It is only delinquent No.1 who played an active

role in demanding the bribe. It is also not forthcoming

from the evidence that the petitioner demanded the bribe

from delinquent No.1. It is not even alleged by the

complainant that the petitioner demanded the money.

Moreover, it is borne out from the record that no work of

the complainant was pending with the petitioner. It is also

an admitted fact that the complaint is not lodged against

the petitioner. The PW1-the complainant in his evidence

has not stated anything against the petitioner. No word is

uttered by the complainant about the role of the present

petitioner. The entire evidence of the complainant was

against DGO-1 H.R.Naikar. Nevertheless, the fact that the

petitioner has received Rs.50/- from DGO No.1 is admitted

by the petitioner. The circumstances under which the

money is received as stated earlier, facts that the money

was traced in the socks worn by the petitioner by

themselves speak a few things which can be easily termed

as misconduct. And this misconduct cannot escape

punishment. What would be the appropriate punishment

for this misconduct? Though it is not for the high court to

decide on the quantum of punishment, the high court can

nevertheless review the quantum on the doctrine of

proportionality. If punishment imposed is disproportionate

to the misconduct or if it shocks the conscience of the

Court same can be interdicted as held in the case of Ranjit

Thakur v/s. Union of India. (1987) 4 SCC 611

27. Does the punishment of compulsory retirement

imposed on the petitioner pass the test of doctrine of

proportionality is the question? As noted above, the

complaint was against DGO-1. The trap laid was intended

to catch DGO-1. Petitioner was found with part of the

tainted money in the circumstances already discussed

supra. Both delinquent employees are found guilty and

have been retired compulsorily. However, what is strikingly

evident is role and involvement of both differed

significantly. Under these circumstances, the question is

whether the punishment to both the employees should be

the same or should it differ? The main accused against

whom the complaint is filed has met with the punishment

of compulsory retirement. When the present petitioner

whose role appears to be extremely passive in the entire

episode and more particularly in a situation where there is

no complaint against the petitioner, he could not have

been saddled with the same punishment imposed on

another delinquent employee against whom there was a

complaint regarding the demand for illegal gratification of

Rs.150/-.

28. In the backdrop of these facts and

discussions referred above on the scope and ambit of rule

8 of Karnataka Civil Services (C.C.A.) Rules, 1957 referred

above, this Court finds that the punishment of compulsory

retirement imposed on the petitioner is disproportionate to

the nature and gravity of the offence. The said punishment

treats the offence committed by the present petitioner on

par with the offence committed by DGO-1 despite

circumstances that are glaringly different.

29. The Hon'ble Apex Court in the matter of

Rajendra Yadav vs. State of Madhya Pradesh, (2013)

3 SCC 73, has held that if the role of a person in the

commission of an offence is less and passive in comparison

with another playing an active role in its commission, then

the person playing lesser role should not be imposed

higher penalty than the one imposed on a person whose

role and involvement is active. The logical corollary of the

said ratio would mean punishment should be imposed

considering the involvement of the accused in the

commission of the offence. Applying the said ratio, the

petitioner whose involvement in the commission of the

offence is extremely passive, awarding the same

punishment as awarded on delinquent government official

No.1 who is the main accused, does not stand to reason.

The involvement of the petitioner in the commission of the

offence in comparison to the involvement of DGO-1 is

significantly less. Thus, two un equals have been treated

equally by imposing the same penalty. This violates the

protection guaranteed under Article 14 of the Constitution

of India. If the administrative action of punishment

imposed, violates rights guaranteed under Article 14 of

the constitution of India and the court finds it

discriminatory and irrational then the order of punishment

needs to be set aside in exercise of jurisdiction under

Article 226. It is also borne out from the record that the

petitioner was having 15 years of service as on the date of

compulsory retirement. Thus this Court is of the view that

the punishment is shockingly disproportionate. This Court

has come to this conclusion keeping in mind the

involvement of the petitioner in the entire episode

discussed supra. Since the punishment imposed violates,

the fundamental right guaranteed to the petitioner, this

Court would step in and exercise its discretionary

jurisdiction under Articles 226 and set aside the order of

penalty of compulsory retirement.

30. It is the well-settled proposition of law that the

Court cannot decide on the quantum of punishment to be

awarded. This power exclusively lies with the appointing

authority. The court can only say whether the punishment

is disproportionate to the offence committed. If it is

shockingly disproportionate then the Court can only remit

the matter back to the disciplinary authority to enable it to

impose appropriate punishment which necessarily has to

be less than the punishment imposed earlier which is

interdicted by this Court.

31. It is not the case of the respondents that the

petitioner's service record is tainted. As already observed

the petitioner's right under Article 14 of the Constitution of

India is violated. By setting aside the penalty of

compulsory retirement, the matter is remitted to the

disciplinary authority to decide on the quantum of

punishment to be imposed on the petitioner. The

remaining portion of the impugned orders is upheld.

32. Accordingly, the writ petition is allowed in part.

Order dated 01.06.2016 in Application No.5791/2004

passed by the Karnataka Administrative Tribunal is set

aside. The finding dated 14.08.2003 returned by the

enquiry officer on the charges on the petitioner is

confirmed. The punishment of compulsory retirement

imposed on the petitioner under order bearing No.¯ÉÆÃE

231 ¸ÉÃE« 2001, ¨ÉAUÀ¼Æ À gÀÄ dated 07.09.2004 is set aside

and the matter is remitted to the disciplinary authority to

pass appropriate order of punishment on the petitioner,

which necessarily has to be lesser than the punishment

imposed in terms of order dated 07.09.2004 in the light of

what is discussed above.

33. Since the disciplinary enquiry was initiated in

the year 2002, the disciplinary authority shall pass the

appropriate order of punishment within two months from

the date of receipt of the copy of the order.

No order as to cost.

SD/-

JUDGE

SD/-

JUDGE sh