The Managing Director vs Boregowda B L
2023 Latest Caselaw 2601 Kant

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                                                     WA No.3251 of 2018




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 25TH DAY OF MAY, 2023
                                      PRESENT
                        THE HON'BLE MR. JUSTICE ALOK ARADHE
                                         AND
                    THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
                          WRIT APPEAL NO.3251 OF 2018 (S-R)
               BETWEEN:

               1.   THE MANAGING DIRECTOR
                    KPTCL CORPORATE OFFICE
                    CAUVERY BHAVAN
                    BENGALURU - 560 009.

               2.   THE DIRECTOR
                    (ADMN AND HR)
Digitally           KPTCL, CAUVERY BHAVAN
signed by           BENGALURU - 9.
RUPA V              FOR APPELLANT NOS.1 & 2 ARE
Location:           REPRESENTED BY DIRECTOR (ADMIN AND HR)
High Court          H.N. GOPALA KRISHNA.
of Karnataka
                                                       ...APPELLANTS
               (BY SRI. S.G. PRASHANTH MURTHY, ADV., FOR
                   SRI. SUMANA NAGANAND, ADV.,)

               AND:

               1.   BOREGOWDA B.L.
                    S/O B.L. LINGAIAH
                    AGED ABOUT 66 YEARS
                    R/O NO.226, RAMAKRISHNA STREET
                    SHESHADRIPURAM
                    BENGALURU - 560 020.

               2.   THE MANAGING DIRECTOR
                    BESCOM, K.R. CIRCLE
                    BENGALURU - 560 001.
                                                        ...RESPONDENTS
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                                      WA No.3251 of 2018




(BY SRI. K. SRINIVAS, ADV., FOR R1
    SRI. H. SHANTI BHUSHAN, ADV., FOR R2)

     THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
10/9/2018 MADE IN WRIT PETITION 52438/2013 [S-R] PASSED
BY THE LEARNED SINGLE JUDGE AND FURTHER DISMISS
THE WRIT PETITION.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This intra court appeal arises out of an order

dated 10.09.2018 passed by learned Single Judge by

which writ petition preferred by the respondent has

been allowed.

2. Facts giving rise to filing of this appeal

briefly stated are that the respondent (hereinafter

referred to as 'the employee' for short) joined the

services of Karnataka Power Transmission Company

Limited (hereinafter referred to as 'the Company' for

short) on 24.09.1980. The employee was promoted

from time to time. On 16.06.2007 the employee was

WA No.3251 of 2018

caught red handed by the Lokayukta for accepting

the bribe. The employee was placed under

suspension on 02.07.2007 and a charge sheet was

issued to him on 02.01.2012. A criminal case under

the provisions of Prevention of Corruption Act, 1988

was also instituted against the employee.

3. It is not in dispute that employee was

acquitted in the criminal case by an order dated

30.11.2011. However, the disciplinary proceeding

initiated against him is still pending. The employee

attained the age of superannuation on 31.05.2012.

Thereafter, by an order dated 01.06.2012, the

Company held the employee to be entitled to only

75% of pensionary and other retiral benefits, in view

of pendency of the proceeding against him.

WA No.3251 of 2018

4. The employee thereafter, submitted a

representation on 05.07.2012 seeking payment of

pension and other retiral benefits in its entirety.

However, the representation submitted by the

employee failed to evoke any response. The employee

therefore, filed a writ petition viz.,

W.P.No.805/2013, which was disposed of by an

order dated 31.01.2013 with the direction to the

Company to consider the representation in

accordance with law. In pursuance of the aforesaid

order, by an endorsement dated 22.07.2013, the

claim of the employee was rejected.

5. The employee challenged the aforesaid

order in a writ petition. A learned Single Judge of

this court by an order dated 10.09.2018 inter alia

held that employee has a fundamental right under

Article 14 and 16 of the Constitution of India to

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receive the pensionary and retiral benefits. It was

further held that the employee was entitled to

receive 100% pensionary benefits along with interest

within a period of three months. However, liberty

was reserved to the Company to enforce the order

against the employee, which may be passed in the

criminal case. In the aforesaid factual background,

this appeal has been filed.

6. Learned counsel for the Company has

invited the attention of this court to Regulations 171

and 172 of the Karnataka Electricity Board

Employees Service Regulations (hereinafter referred

to as 'the Regulations' for short) and has submitted

that the same provide for withholding or withdrawal

of pension in case of an employee who faces

departmental or judicial proceeding. It is pointed out

that learned Single Judge has failed to consider the

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aforesaid Regulations. It is further submitted that

the Regulations have a statutory force and the

learned Single Judge has issued a direction which

amounts to compelling the Company to act in

contravention of law. It is pointed out that

disciplinary proceeding is still pending against the

employee. In support of aforesaid submissions,

reliance has been placed on decisions of this court

in 'G.M.KUNTE VS. KARNATAKA POWER

TRANSMISSION CORPORATION LTD.', ILR 2003

KAR 3851 and a decision of Hon'ble Supreme court

in 'STATE OF WEST BENGAL VS. SUBHASH

KUMAR CHATTERJEE', (2010) 11 SCC 694'.

7. On the other hand, learned counsel for the

employee has submitted that the Company cannot

be permitted to withhold the Death-cum-Retirement

Gratuity as well as the pension. It is further

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submitted that no pecuniary loss has been caused

to the Company. It is further contended that the

learned Single Judge has granted the liberty to the

company to enforce the order which may be passed

against the employee in the criminal case. It is

therefore, contended that the order passed by

learned Single Judge does not call for any

interference.

8. We have considered the rival submissions

and have perused the record. The relevant extract of

Regulation 171 and 172 of the Regulations is

reproduced below for the facility of reference:

171. The Board further reserves to itself the right of withholding or withdrawing a pension, or any part of it, whether permanently, or for a specified period and the right of ordering the recovery from a pension of the whole, or

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part of any pecuniary loss caused to the Board, if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct, or negligence, during the period of his service, including service rendered on re-employment after retirement.

172(1) Where any departmental or judicial proceedings is instituted under Regulation 171 or where a departmental proceedings is continued under clause (a) of the proviso thereto against an employee who has retired on attaining the age of superannuation or otherwise, he shall be paid the period commencing from the date of his retirement o the date on which upon conclusion of such proceedings final order are passed, a provision pension not exceeding the maximum pension which would have been Admissible on the basis of his qualifying service upto the date of retirement, or if he was under

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suspension on the date of retirement upto the date immediately preceding the date on which he was under suspension, but no gratuity or death-cum retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon.

Note - In the case of a retired employee entitled to pension without death-cum-retirement gratuity under the pension Regulations elected by him, the provisional pension shall not exceed three-fourths of the maximum pension admissible to him.

9. In the instant case, the departmental

enquiry was initiated against the employee prior to

his superannuation. Therefore, by virtue of

Regulation 172(1) of the Regulations, the company

has the authority to withhold the pension.

Regulation 172(1) of the Regulations also provides

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that no gratuity or Death-cum-Retirement Gratuity

shall be paid to the employee till conclusion of the

proceedings pending against him.

10. In the instant case, admittedly in a

proceeding initiated by the employee before this

court, the proceedings of the departmental enquiry

were stayed. It is not in dispute that the aforesaid

writ petition now has been dismissed and the

proceedings of the departmental enquiry are at the

stage of conclusion. The Regulation 171 and

Regulation 172(1) of the Regulations which have

statutory force have to be given effect to in the

absence of any challenge to its validity and the same

are binding on the employee. The aforesaid

Regulations permit the company to fix a provisional

pension by withholding a part of the pension and in

clear terms provide that the gratuity shall not be

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WA No.3251 of 2018

paid to the employee till the conclusion of the

proceedings. Therefore, the action of the company in

issuing an endorsement dated 22.07.2013 cannot be

found fault with as the same is in consonance with

the Regulations 171 and 172(1) of the Regulations.

11. For the aforementioned reasons, the order

dated 10.09.2018 cannot be sustained in the eye of

law. It is accordingly set aside. However, taking into

account the fact that the employee has attained the

age of superannuation on 31.05.2012 and the

departmental enquiry is still pending against him, it

is expected that the Upalokayukta shall make an

endeavour to conclude the proceedings of the

departmental enquiry within an outer limit of two

months from the date of receipt of certified copy of

the order passed today. Needless to state that the

company shall on conclusion of the departmental

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enquiry within a further period of two months shall

decide the claim of the employee about the payment

of Death-cum-Retirement Gratuity / Gratuity,

remainder of pension as well as other monetary

benefits to which the employee is entitled depending

upon the outcome of the departmental enquiry. The

company shall pass a speaking order with regard to

the claim of the employee.

With the aforesaid directions, the appeal is

disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS