Sri. K.N. Raghunath vs The State Of Karnataka
2022 Latest Caselaw 7417 Kant

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 25TH DAY OF MAY, 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE G.NARENDAR

                           AND

             THE HON'BLE MR. JUSTICE P.N.DESAI

           WRIT PETITION NO.12975/2021 (S-KSAT)

BETWEEN:

SRI K.N.RAGHUNATH,
S/O K.C.NANJEGOWDA,
AGED ABOUT 57 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER,
BRUHAT BENGALURU
MAHANAGARA PALIKE,
PADMANABHANAGAR,
BENGALURU,
R/AT NO.494, 2ND MAIN,
3RD STAGE, 3RD BLOCK,
BASAVESHWARNAGAR,
BENGALURU-560 079.
                                            ... PETITIONER
(BY SRI VIJAY KUMAR V.B, ADV.)

AND:

1.     THE STATE OF KARNATAKA,
       REPRESENTED BY ITS
       PRINCIPAL SECRETARY,
       PUBLIC WORKS, PORTS &
       INLAND WATER TRANSPORT DEPARTMENT,
       BENGALURU -560 001.
                             2


2.   THE STATE OF KARNATAKA,
     REPRESENTED BY ITS
     PRINCIPAL SECRETARY,
     URBAN DEVELOPMENT DEPARTMENT,
     VIKAS SOUDHA,
     BENGALURU - 560 001.

3.   THE COMMISSIONER,
     BRUHAT BENGALURU
     MAHANAGARA PALIKE,
     N.R.SQUARE,
     BENGALURU - 560 002.
                                         ... RESPONDENTS
(BY SRI B.RAJENDRA PRASAD, HCGP FOR R1 & R2,
 SRI M.A.SUBRAMANI, ADV. FOR R3.)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 06/01/2020 PASSED IN
APPLICATION NO.6883/2018 BY THE HON'BLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU VIDE
ANNEXURE-A AND ALSO THE ORDER DATED 17/11/2020,
PASSED IN REVIEW APPLICATION NO.21/2020 BY THE
KARNATAKA    STATE    ADMINISTRATIVE    TRIBUNAL   VIDE
ANNEXURE-B AND ALLOW THE APPLICATION NO.6883/2018.


     THIS WRIT PETITION COMING ON FOR "HEARING ON
INTERLOCUTORY APPLICATION" THIS DAY, G.NARENDAR J,
MADE THE FOLLOWING:
                        ORDER

Heard the learned counsel for the petitioner, the

learned HCGP for respondent Nos.1 and 2 and the learned

counsel for respondent No.3-BBMP.

2. Learned counsel for the petitioner submits that

the issues raised in the instant petition is no more res

integra and is already settled by the Hon'ble Apex Court in

the case of Kulwant Singh Gill vs. State of Punjab

reported in 1991 Supp (1) SCC 504, wherein the Hon'ble

Apex Court has been pleased to hold that the stoppage of

increment with cumulative effect amounts to major penalty.

The Hon'ble Apex Court in paragraph No.4 has been pleased

to observe as under:-

"4. Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly

comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab, P.C. Jain, A.C.J.

speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withheld with or without

cumulative effect the government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly stating so. This preposterous consequence cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal."

3. It is further contended that the issue of

competence of the borrowing authority to impose major

penalty is no more res integra and has been settled by the

Co-ordinate Bench of this Court in the case of Sri. Mallanna

vs. The State of Karnataka in W.P.No.22129/2019, wherein

the Co-ordinate Bench has been pleased to allow the writ

petition of the petitioner after placing reliance on the Ruling

of the Hon'ble Apex Court rendered in the case of Kulwant

Singh Gill vs. State of Punjab reported in 1991 Supp

(1) SCC 504. The Co-ordinate Bench has been pleased to

observe and hold in paragraph Nos.4, 5, 6 and 7 as under:-

"4. Rule 15 of the KCS & CCA Rules reads as under :

"15. Provisions regarding Lent Officers.- (1) Where the services of a Government Servant are lent to the Central Government, any State Government or to a local or other authority (hereinafter in this rule referred to as "the Borrowing Authority"), the Borrowing Authority shall have the powers of the Appointing Authority for the purpose of placing him under suspension and of the Disciplinary Authority for the purpose of taking a disciplinary proceeding against him:

Provided that the Borrowing Authority shall not take any disciplinary proceedings against such Government Servant or place him under suspension without the prior approval of the Lending Authority.

(2) In the light of the findings in the disciplinary proceeding taken against the Government servant-

(i) if the Borrowing Authority is of the opinion that any of the penalties specified in clause

(i) to (iv-a) of Rule 8 should be imposed on him, it may, in consultation with the Lending Authority, pass such orders on the case as it deems necessary:

Provided that in the event of a difference of opinion between the Borrowing Authority and the Lending Authority the services of the Government servant shall be replaced at the disposal of the Lending Authority;

(ii) if the Borrowing Authority is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed on him, it shall replace his services at the disposal of the Lending Authority and transmit it to the proceedings of the inquiry and thereupon the Lending Authority may, if it is the Disciplinary Authority pass such orders thereon as it deems necessary, or if it is not the Disciplinary Authority, submit the case to the Disciplinary Authority which shall pass such orders on the case as it deems necessary;

Provided that in passing any such order the Disciplinary Authority shall comply with the provisions of Rule 11A."

5. The aforesaid provision makes it very clear that in case a Government servant is on deputation and a major punishment has to be inflicted upon him after completion of the enquiry, the Borrowing Authority has to forward the entire material to the lending authority and it is the lending authority who can inflict a major punishment.

6. In the present case the punishment awarded to the Government servant is with holding of increments with cumulative effect and its major punishment [Kulwant Singh Gill v. State of Punjab reported in 1991 SCC Supl. (1) 504]

7. In the present case, undisputedly it is the borrowing Authority who has inflicted the punishment in respect of the Government servant. In the present case the punishment has been inflicted upon by the

Public Works Department, which is neither the Borrowing Authority nor the Lending Authority. At the best the Borrowing Authority could have forwarded the entire material to the Lending Authority i.e., Finance Department and thereafter an order could have been passed. The other important aspect of the case is that the petitioner was charged for not guiding the Executive Engineer properly i.e., only charge that has been reflected in paragraph 3 of the judgment delivered by the Tribunal as well as from the charge sheet. The State was subjected to loss of Rs.4,57,856.25 and the same has also been ordered to be recovered from other charged officials. The petitioner, at present, is a Government servant and no purpose would be served by remanding the matter back for issuance of an appropriate order by the Lending Authority."

4. The facts in the instant case are not in dispute.

The petitioner, who belongs to Public Works Department

was deputed to respondent No.3 - Corporation on

15.12.2012 and in the course of discharge of duties, he

visited the spot and noticed building bye-law violation on

10.01.2013 and immediately recommended for initiation of

steps under Section 321 of Karnataka Municipal Corporation

Act, 1976, to the Assistant Executive Engineer. That on

18.01.2013, the AEE issued Confirmation Order under

321(3) of the KMC Act directing demolition of the portion

that were in violation of the building bye-laws. That on

13.02.2013, the owner of the building is said to have

preferred O.S.No.25271/2013 and that the Civil Court was

pleased to grant stay of the proposed demolition. That on

26.03.2013, the petitioner forwarded the papers to Legal

Cell in respondent No.3. That on 14.05.2013, a complaint

was lodged by one Sri. Ravikumar alleging dereliction of

duty by the petitioner with regard to the unauthorized

construction. That subsequently on 01.07.2013, the

petitioner was transferred from J. P. Nagar Sub-Division.

The interim order granted by the Trial Court was in

existence when the notice came to be issued to the

petitioner by the Lokayuktha calling for his explanation and

the petitioner submitted his explanation on 06.11.2014. It is

further submitted that the notice issued under KMC Act was

appealed by the owner before the Karnataka Appellate

Tribunal in Appeal No.802/2013 and the Appellate Tribunal

was pleased to quash the order of AEE dated 18.01.2013

and remanded the matter back by directing to dispose of

the same in accordance with law.

5. If this undisputed factum of the intervention by

the Appellate Tribunal is appreciated, it has virtually

rendered the actions initiated a nullity. Despite the same, it

appears that on 24.03.2016, the Lokayuktha submitted a

Report under Section 12(3) of the Karnataka Lokayuktha

Act, 1984, recommending initiation of enquiry. Pursuant to

the same, respondent No.2 entrusted the enquiry to the

Lokayuktha on 17.06.2016. The enquiry was commenced

and concluded by the Additional Registrar of Enquiry - 9 and

Articles of Charges were issued on 08.09.2016. On

conclusion of enquiry, Show Cause Notice came to be issued

on 05.03.2018 and the petitioner submitted his reply on

25.05.2018 and respondent No.2 after considering the

explanation set forth proceeded to impose penalty of

withholding four annual increments with cumulative effect

and denial of promotion for four years.

6. Aggrieved, the petitioner preferred Application

No.6883/2018 and the Tribunal was pleased to grant stay

by granting interim relief on 05.09.2018. Subsequently, the

application came to be dismissed by the Tribunal by its

order dated 06.01.2020. The Review Application preferred

by the petitioner also came to be rejected. In this

background, the petitioner was constrained to approach this

Court in the instant writ petition.

7. Per contra, learned HCGP for respondent Nos.1

and 2 would place reliance on the ruling of the Hon'ble Apex

Court reported in (2013) 6 SCC 530 rendered in the case

of Chairman, Life Insurance Corporation of India and

Others vs. A. Masilamani and would take this Court to

paragraph No.16 and would submit that the enquiry

requires to be remitted back to the stage at which it stood

vitiated. Paragraph No.16 reads as under:-

"16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar, Hiran Mayee Bhattacharyya v. S.M. School for Girls, U.P. State Spg. Co. Ltd. v. R.S. Pandey and Union of India v. Y.S. Sadhu."

8. In our opinion, the said ruling can be

distinguished on the short ground that what is involved in

the instant case is one a question of competence and

jurisdiction and not an irregularity which can be cured. From

a reading of the above, it is apparent that the Court was

concerned with the case of an enquiry that was improperly

conducted and not a case of competence or jurisdiction,

which goes to the very root of the matter. In that view of

the matter, we decline the prayer of the learned HCGP to

remit the matter.

9. Nextly, learned counsel for respondent No.3

would place reliance on the provisions Sub-Rule (2-B) of

Rule 15 of the Karnataka Civil Services (C.C.A.) Rules,

1997, to contend that it shall not be necessary for the

Government in the Urban Development Department where

borrowing authority is the Government in Urban

Development Department or the Commissioner to get

approval or to consult the lending authority or appointing

authority before suspending or imposing any penalty.

10. The said contention, in our considered opinion, is

fallacious. It is not an unrestricted power but a restricted

power where the consultation and approval have been done

away with. Procedure for imposing minor penalties are

specified in Rule 12 of the KCS (C.C.A.) Rules.

11. The facts narrated above are not in dispute. The

filing of a Civil suit and grant of interim stay of demolition

are not disputed. The factum of issuance of Notice pursuant

to the said inspection and the order of demolition passed by

AEE is also not in dispute. The quashing of the proceedings

initiated under Section 321 of the KMC Act by Karnataka

Appellate Tribunal is also not disputed. If this be the

obtaining facts, we are unable to comprehend as to what is

the dereliction of duty that is leveled against DGO. A bare

appreciation of the above facts would have been suffice to

exonerate the DGO/petitioner. The matter having been

seized of by quasi judicial authority i.e., Tribunal and the

issue having been determined and the proceedings initiated

at the instance of the petitioner being set at naught by the

appellate Tribunal, we are not able to comprehend as to

what more could have been expected of the petitioner

within the frame work of law.

12. Be that as it may, the petition is canvassed on a

settled position in law. That the borrowing authority is not

vested with the jurisdiction to impose a major punishment.

The position in law being settled, we are of the considered

opinion that the petitioner has made out a case to allow the

writ petition.

13. In the instant case, there is no dispute that the

penalty imposed is a major penalty i.e., stoppage of four

annual increments and denial of promotion for four years.

In that view of the matter, the said contention canvassed

on behalf of respondent No.3 also requires to be rejected

and is accordingly, rejected.

14. Consequently, the writ petition is allowed. The

order impugned before the KSAT dated 14.08.2018 bearing

No.£ÀCE 310 JAJ£ïªÉÊ 2016 passed by respondent No.3 and

the order of the Tribunal rendered on Application

No.6883/2018 are hereby quashed. The order of review of

the Tribunal in Review Application No.21/2020 is also

quashed.

The petitioner shall be entitled for all consequential

service benefits. The same shall be granted within a period

of four months from the date of receipt of a copy of this

order.

There shall be no order as to costs.

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JUDGE

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JUDGE

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