Sri M C Hombalaiah vs The State Of Karnataka
2022 Latest Caselaw 93 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.54767 OF 2016(GM-KLA)

BETWEEN:

SRI.M.C.HOMBALAIAH,
AGED 64 YEARS,
S/O LATE CHIKKAIAH,
RETIRED REVENUE INSPECTOR,
WARD NO.10, MAHALAKSHMIPURAM ZONE,
BBMP, BENGALURU,
R/O NO.1183, 2ND CROSS, 2ND MAIN,
BSK 3RD STAGE, HOSAKEREHALLI EXTENSION,
BENGALURU - 560 085.
                                               ...PETITIONER
(BY SRI. SHANTA KUMAR K C, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA,
   REPRESENTED BY ITS SECRETARY,
   URBAN DEVELOPMENT DEPARTMENT,
   VIKASA SOUDHA,
   BENGALURU - 560 001.

2. THE DEPUTY REGISTRAR (ENQUIRIES-5),
   KARNATAKA LOKAYUKTA,
   M S BUILDING, VIDHANA VEEDHI,
   BENGALURU - 560 001.

3. THE ADDITIONAL REGISTRAR (ENQUIRIES - 4),
   KARNATAKA LOKAYUKTA,
   M S BUILDING, VIDHANA VEEDHI,
   BENGALURU - 560 001.

4. THE ACCOUNTANT GENERAL IN KARNATAKA,
   (ACCOUNTS) (AUDIT),
   PARK HOUSE, BENGALURU - 560 001.
                               2


5. THE BRUHATH BENGALURU MAHANAGARA PALIKE,
   CORPORATION OFFICES, S J P ROAD,
   BENGALURU - 560 002.
   REPRESENTED BY ITS COMMISSIONER.
                                        ...RESPONDENTS
(BY SRI. B V KRISHNA, AGA FOR R1 & R4;
    SMT. SUMANGALA GACHCHINAMATH, ADVOCATE FOR R5;
    SMT. MANJULA D, ADVOCATE FOR R2 & R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE      RECORDS    RELATING     TO    CONCERNING       AND
CONNECTED WITH THE IMPUGNED GOVERNMENT ORDER
DATED 28.09.2016 ISSUED BY R-1 VIDE ANNEX-A PERUSE THE
SAME AND DECLARE AND QUASH THE SAID ORDER AS
ARBITRARY, IRRATIONAL AND UNSUSTAINABLE IN LAW AND
DIRECT RESPONDENT TO PAY THE PETITIONER ALL THE
RETIREMENT BENEFITS PAYABLE TO HIM INCLUDING DCRG,
COMMUTATION, LEAVE SALARY, ETC., WITH EFFECT FROM
01.06.2012 WITH INTEREST PAYABLE THEREON AT 12% PER
ANNUM FROM 31.08.2012 MAKING AVAILABLE TO HIM ALL THE
CONSEQUENTIAL MONETARY BENEFITS FLOWING THEREFROM
AND ETC.,

     THIS PETITION COMING ON FOR PRELIMINARY HEARING-
B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-


                           ORDER

Petitioner, a retired public servant is grieving before the

Writ Court against the Order dated 28.09.2016 a copy whereof

is at Annexure - A whereby he has been levied a penalty of

permanently withholding of 50% of his pension for the proven

misconduct of bribery and corruption. The text of the

operative portion of the impugned order reads as under:

"¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: £ÀDE 231 JAJ£ïªÉÊ 2011, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 28-

28-09-

09-2016

¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¸À¯ÁzÀ PÁgÀtUÀ¼À »£É߯ÉAiÀÄ°è, ²æà JA.¹. ºÉÆA¨Á¼ÀAiÀÄå, PÀAzÁAiÀÄ £ÀjÃPÀëPÀgÀÄ, ªÁqÀð ¸ÀASÉå:10,10 ªÀĺÁ®Që:ä¥ÀÄgÀ ªÀ®AiÀÄzÀ ¸ÀºÁAiÀÄPÀ PÀAzÁAiÀÄ C¢üPÁj PÀZÉÃj, §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ EªÀgÀ «gÀÄzÀÝzÀ PÀvÀðªÀå¯ÉÆÃ¥ÀPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ªÀiÁ£Àå H¥À ¯ÉÆÃPÁAiÀÄÄPÀÛgÀÄ ªÀiÁrgÀĪÀ ²¥sÁgÀ¹ì£ÀAvÉ "FUÁUÀ¯Éà ¢£ÁAPÀ: 31-31-05-

05-2012 gÀAzÀÄ ªÀAiÉÆäªÀÈwÛ ºÉÆA¢gÀĪÀ PÁgÀt, PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉêÁ ¤AiÀĪÀiÁªÀĽ ¤AiÀĪÀÄ 214(1)(J)gÀ 214(1)(J) ¥ÀæPÁgÀ ±ÉÃ.50 gÀµÀÄÖ ¦AZÀtÂAiÀÄ£ÀÄß ¤ªÀÈwÛ ¢£ÁAPÀ¢AzÀ C£ÀéAiÀĪÁUÀĪÀAvÉ ±Á±ÀévÀªÁV vÀqÉ»rAiÀÄĪÀ zÀAqÀ£ÉAiÀÄ£ÀÄß" «¢ü¹ DzÉò¹zÉ.

PÀ£ÁðlPÀ gÁdå¥Á®gÀ DzÉñÁ£ÀĸÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è."

2. After service of notice, the respondent Nos.1 & 4

has entered appearance through the learned AGA; Respondent

Nos.2 & 3 are represented by their Panel Advocate; similarly,

5th Respondent - BBMP speaks through its Panel Counsel; the

learned AGA and the learned panel advocate for the

Lokayukta resist the Writ Petition making submission in

justification of the impugned order; learned AGA vehemently

contends that the finding of guilt having been recorded in a

full fledged disciplinary inquiry and an appropriate penalty

having been imposed, there is absolutely no scope for the

interference of a Writ Court in the matter; so contending, he

seeks dismissal of the Writ Petition.

3. Having heard the learned counsel for the parties

and having perused the petition paper, this court is inclined to

grant indulgence in the matter as under and for the following

reasons:

(a) On the allegation of bribery of Rs.2,000/-, the

departmental enquiry was held by the Addl. Registrar

Enquiries-4, Karnataka Lokayukta, Bangalore; in the enquiry

report dated 11.12.2015, petitioner was found to be guilty of

the charge of demanding & accepting a bribe of Rs.2,000/-

from the complainant Sri.G.Chandrashekar on 3.8.2006 for

recommending to the Tahsildar for the change of khata; the

report runs into seventeen pages; a careful perusal of the

same goes to show that the proceedings have been held in a

fair way and after giving full opportunity to the petitioner; on

the basis of evidentiary material on record, the Enquiry Officer

in his accumulated wisdom has recorded a finding of guilt;

that being the position, there is a lot of force in the contention

of learned AGA that a Writ Court cannot undertake a deeper

examination, in the absence of any error apparent on the face

of the record; therefore, the said finding is left intact.

(b) There is force in the submission of learned counsel

for the petitioner that the petitioner has been acquitted in the

Criminal Case in Spl.C.C.No.41/2007 for the offence

punishable u/ss. 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 vide judgment & order

dated 18.10.2011 by the Spl. Judge, Bangalore Urban

District, Bangalore City; however, the said acquittal is merely

an honorable acquittal since the complainant himself turned

to be a hostile witness; the charge is same; the evidentiary

material produced to prove the charge is also same; even the

star witnesses appear to be the same persons; that being the

position, this acquittal to some extent supports the case of

petitioner as a mitigating factor although not for absolving

him completely.

(c) The submission of learned counsel for the

petitioner that his client was initially appointed as SDC and

later he earned two promotions, one as FDC and the other as

Revenue Inspector, is not disputed; he has put in a long

service that was spotless except the subject departmental

enquiry; while imposing the penalty, the relevant factors such

as the long service, progression of career in terms of

promotion and a nearly honorable acquittal in a criminal case

have not been given due credence by the disciplinary

authority; ordinarily, Service Jurisprudence recognizes them

as being the mitigating factors; to that extent, the impugned

order is vulnerable for challenge.

(d) There is yet another aspect namely the doctrine of

proportionality which the Apex Court has recognized as a

factor in the matter of awarding punishment vide Chairman-

cum-Managing Director, Coal India Limited Vs. Mukul Kumar

Choudhary (2009) 15 SCC 620; pension is a periodic payment

given to an employee in the evening of his life for the past

service rendered during his employment; it is treated as a

right and not as a bounty; even commuted pension is restored

fifteen years after retirement and consequently, full pension

becomes payable to the retiree vide D.S.NAKARA VS. UNION

OF INDIA, (1983) 1 SCC 305; that being the position,

permanently withholding of 50% of the pension appears to be

disproportional to the gravity of the misconduct; it shakes the

conscience of the court too and therefore, the same requires to

be modified.

(e) The incident happened on 3.8.2006; the criminal

case ended in acquittal on 18.10.2011; petitioner retired from

service on 31.5.2012 and now it is January 2022; thus, much

water has flowed under the bridges and wisdom tells that this

is not a fit case for remand; the pensioner should not be

troubled during the evening of his life any longer; therefore, in

these special circumstances, this court declines to remit the

matter back for consideration afresh.

In the above circumstances, this Writ Petition succeeds

in part; the finding of guilt having been left intact, the penalty

of withholding of 50% of pension is reduced to 25%; the rest of

the matter is kept intact; the respondent Nos.1 & 4 are

directed to refix the pension & terminal benefits accordingly

and release the same to the petitioner, after effecting

deductions, if any.

Time for compliance is three months and if delay is

brooked, petitioner shall be entitled to interest at the rate of

1% per mensem and that the same may be recovered from the

erring official responsible for brooking the delay.

Costs made easy.

Sd/-

JUDGE

cbc