State Of Karnataka vs Smt. C P Divija
2022 Latest Caselaw 1339 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF JANUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE G.NARENDAR

                              AND

     THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

            WRIT PETITION NO.1076/2020 (S-KSAT)


BETWEEN:

1.     STATE OF KARNATAKA,
       REPRESENTED BY ITS
       PRINCIPAL SECRETARY,
       REVENUE DEPARTMENT,
       VIKAS SOUDHA,
       BANGALORE 560001.

2.     DEPUTY COMMISSIONER,
       HASSAN DISTRICT,
       HASSAN - 573201.

3.     TAHSILDAR,
       CHANNARAYAPATNA - 573116,
       HASSAN DISTRICT.

4.     TAHSILDAR,
       ARASIKERE TALUK,
       MINI VIDHAN SOUDHA,
       ARASIKERE,
       HASSAN - 583103                   ... PETITIONERS

(BY SMT. SHILPA S.GOGI, HCGP.)
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AND:

SMT. C.P.DIVIJA,
AGED ABOUT 43 YEARS,
D/O C.M. KUMARA,
VILLAGE ACCOUNTANT,
TALUK OFFICE,
ARASIKERE TALUK,
ARSIKERE,
RESIDING BEHIND THE
OFFICE OF THE LAND ARMY,
HASSAN - 573201.
                                             ... RESPONDENT

(BY SRI VIJAY KUMAR V.B, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER    DATED   19.12.2018    PASSED  IN   APPLICATION
NO.7121/2017 OF THE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL, BANGALORE, AT ANNEXURE-A


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, G.NARENDAR J, MADE THE
FOLLOWING:

                           ORDER

Heard the learned High Court Government Pleader on

behalf of the petitioner State. That the petitioner State is

represented by its Principal Secretary, Revenue

Department, Deputy Commissioner, Hassan District, the

Tahsildar, Channarayapatna and the Tahsildar of Arasikere

taluk. The respondent who was earlier working as a village

accountant and while in service was accused of demanding

and accepting bribe to show official favours. That the

respondent has demanded and received a sum of

Rs.2,000/- as bribe to effect change in the revenue records,

more particularly the katha relating to Sy.No.89 of

Obalapura village and in the process was caught red handed

on 09.03.2011. The respondent was charge sheeted and

sent up for trial in Special Case No.64/2012 before the

Court of the Principal Sessions Judge and Special Judge at

Hassan for the offences punishable under Sections 7,

13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988. That thereafter on request of the

Lokayukta the State by Government Order dated 1.4.2013

entrusted the conduct of the departmental enquiry under

Rule 14-A of the KCS (CCA) Rules, 1957. That the Hon'ble

Lokayukta by a nomination order appointed the Enquiry

Officer. Articles of charge together with statement of

imputation came to be issued to the DGO on 27.4.2013.

The respondent DGO in turn submitted her statement of

defence on 11.7.2013 by which she denied all the charges

leveled against her. Thereafter evidence came to be

recorded and after following the procedure and a full

fledged enquiry the Enquiry Officer submitted a report on

3.2.2017 holding that the charge stands proved. On receipt

of the report the Hon'ble Lokayukta caused a

recommendation on 4.2.2017 to the competent authority

recommending the imposition of penalty of dismissal from

service. Thereafter the first petitioner is said to have issued

a second show cause notice dated 22.3.2017 enclosing

therewith the enquiry report and the recommendations of

the Hon'ble Lokayukta. The respondent DGO submitted a

reply to the show cause notice and enquiry report on

30.06.2017 repudiating the findings recorded in the enquiry

report and prayed for exoneration of the charges. The

petitioner after consideration of the reply in the background

of the report submitted was pleased to impose the penalty

of dismissal from service by invoking Rule 8(viii) of the

Rules by its proceedings dated 15.11.2017. Aggrieved by

the penalty imposed, the respondent approached the

Karnataka State Administrative Tribunal by way of

Application No.7121/2017. The Tribunal after hearing both

the parties was pleased to partly allow the application by

setting aside the order of dismissal and imposing the

penalty of compulsory retirement and to come into effect

from 15.11.2017. The petitioners aggrieved by the

modification of the penalty imposed are before this Court in

the instant writ petition.

2. It is contended by the learned counsel for the

petitioner that the tribunal had no legal authority to modify

the punishment once it is found that the charges are proved

and that the discretion of imposing the penalty is with the

disciplinary authority alone and it is not open for the

tribunal to usurp the powers of imposition of penalty. She

would further fairly submit that the respondent was

proceeded against in the Special Court and the trial Court

by judgment and order dated 12.04.2016 was pleased to

acquit her of all charges, but she would qualify the same as

not being an honourable acquittal and in that view of the

matter also she would vehemently contend that the tribunal

seriously erred in modifying the penalty imposed on the

respondent.

3. Per contra, the learned counsel for the

respondent would submit that the matter is covered by a

decision of a coordinate bench and that the coordinate

bench in the matter in W.P. No.103715/2017 at Dharwad

Bench while disposing of the writ petition by a detailed

order has held that the order of the tribunal modifying the

penalty of dismissal from service to one of compulsory

retirement has been fair and just and has not calling for

interference.

4. We have given our anxious consideration to the

submissions advanced on behalf of both the parties. On a

query to the learned High Court Government Pleader as to

whether the tribunal under the Karnataka State

Administrative Tribunal Act is empowered to re-appreciate

the materials being the last fact finding body or the court of

first instance, the learned High Court Government Pleader

would fairly admit that the tribunal is the final fact finding

body. If that is the admitted position it would not be proper

and correct to contend that the tribunal is denuded of

powers to re-appreciate the evidence on record.

5. The further contention of the learned High Court

Government Pleader that the intervention by the tribunal is

permitted only if the tribunal concludes that the findings are

perverse alone, in our considered opinion is misplaced. It is

not only the correctness of the finding but also the quality

of appreciation of the material on record is also subject to

consideration by the tribunal. The tribunal at para 7 of its

order has noted as under:

" 7. The then Upa-Lokayukta had submitted a recommendation to dismiss the applicant from service in view of the charge being proved. Admittedly, the applicant is an aged lady and her son aged 18 years has 100% blindness. To substantiate the same she has produced a copy of the certificate issued by the appropriate authority certifying that Sri Raghu is 100% disabled with 100% loss of vision. This material aspect cannot be easily ignored by this tribunal. The applicant, being the mother of the visually

challenged son, has to look after her son as long as she lives. Reasonable amount is required to take care of her son. As a result of the dismissal her entire livelihood is taken away and hence, she is in great financial distress."

And on the said basis it found it appropriate to set aside the

order of dismissal from service and imposed a lesser

penalty of compulsory retirement. The reasons noted in

para 7 of the impugned order are not denied by the

petitioner.

6. The tribunal has noted that the respondent has

mothered a son who suffers from 100% blindness and that

the said son would be a dependant on the respondent for

his lifetime. We do not find any error in the reasoning or

the appreciation of the fact by the tribunal. Be that as it

may, we have also gone through the judgment rendered in

Special Case No.64/2012. The Special Court while

acquitting, in para 35 has held as under:

"35. On carefully scanning the evidence of prosecution witnesses, it clearly establishes that

the prosecution had utterly failed to prove that the accused has demanded and accepted the money. The prosecution has failed to place sufficient materials on record to prove the 'demand' and 'acceptance' against the accused, which is an essential ingredient in Prevention of Corruption Act. Thus, the accused is entitled for benefit of doubt. Hence, I answer point Nos.3 to 5 in the negative."

7. In essence the judgment which is contested to

be not a honourable acquittal, in our opinion reads

otherwise. The Special Court has categorically held that the

prosecution has "utterly" failed to prove or to place material

to demonstrate either the demand or the acceptance of

bribe or both. In that view of the matter, the Special Court

has considered it appropriate to acquit the accused i.e., the

respondent herein.

8. On a comparative assessment of the enquiry

report and the judgment rendered by the Special Court we

find that the material and the witnesses relied upon in the

enquiry and by the Special Court are one and the same. In

fact, the enquiry officer has relied upon the deposition of

three witnesses amongst the six who deposed before the

Criminal Court i.e., the shadow witness, panch witness and

the Investigating Officer. On the other hand the DGO has

also examined herself and three other witnesses in support

of her case. Eight documents have been marked as exhibits

in the enquiry which are none other than the exhibits placed

before the trial court which are marked in the course of

examination. Despite the fact that only some of the

materials and some of the witnesses have deposed against

the respondent in addition to the grounds urged by the

learned counsel for the respondent and the view adopted by

the coordinate bench in W.P. No.103715/2017 and in the

light of the fact that the witnesses and material is relied

upon by the Enquiry Officer are none other than the

witnesses and material placed before the trial court, we are

of the considered opinion that this is a case that would fairly

fall within the four corners of the law laid down by the

Hon'ble Apex Court in the case of Shashi Bhushan Prasad

vs. Inspector General, Central Industrial Security

Force and others reported in (2019) 7 SCC 797. That

apart the fact remains that the Enquiry Officer cannot

render a divergent findings on the same set of witnesses

and evidence.

9. In that view of the matter also we are of the

opinion that the order of the tribunal modifying the

punishment imposed is a well reasoned order and does not

call for any interference at the hands of this Court.

Accordingly, the writ petition being bereft of materials

stands rejected.

Sd/-

JUDGE

Sd/-

JUDGE

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