Karnataka High Court
S Mallikarjuna vs The Managing Director And ... on 20 September, 2023
Bench: Chief Justice, Krishna S Dixit
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NC: 2023:KHC:33939-DB
WA No. 735 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 735 OF 2023 (S-KSRTC)
BETWEEN:
S MALLIKARJUNA,
AGED ABOUT 65 YEARS,
S/O LATE SOMALINGAPPA
RETD. CHIEF MECHANICAL ENGINEER (M)
BMTC, BANGALORE 560027
RESIDING AT NO. 422
8TH MAIN,
BTM 2ND STAGE
MICO LAYOUT,
BAGNALORE 560 076.
Digitally signed ...APPELLANT
by SHARADA
VANI B (BY SRI. VIVEKANANDA T P.,ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. THE MANAGING DIRECTOR AND
DISCIPLINARY AUTHORITY
KARNATAKA STATE ROAD TRANSPORT
CORPORATION
CENTRAL OFFICES,
K H ROAD
BANGALORE 560 027.
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WA No. 735 of 2023
2. THE BOARD OF DIRECTORS
OF KSRTC AND DISCIPLINARY AUTHORITY,
K.S.R.T.C.,
CENTRAL OFFICERS,
K H ROAD,
BANGALORE 560 027.
BY ITS SECRETARY.
3. BANGALORE METROPOLITAN
TRANSPORT CORPORATION
KSRTC
CENTRAL OFFICES,
K H ROAD
SHANTHINGAR,
BANGALORE 560 027.
REPRESENTED BY ITS
MANAGING DIRECTOR.
...RESPONDENTS
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO I) ALLOW THE
WRIT APPEAL AND II) SET ASIDE THE ORDER DATED
30/01/2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP
NO.1390/2018 AND III) ALLOW THE WRIT PETITION
NO.1390/2018 IN ITS ENTIRETY.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
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WA No. 735 of 2023
JUDGMENT
This intra court appeal by the writ petitioner seeks
to call in question a learned Single Judge's order dated
30.01.2023 whereby W.P.No.1390/2018 (S-KSRTC) has
been dismissed. In the said petition, the appellant had
laid a challenge to the order dated 28.10.2016 made by
the appellate authority affirming levy of penalty of
recovery of the amount towards loss and reduction of his
wage by four cumulative stages.
2. Learned counsel appearing for the appellant
vehemently argues that his client is innocent; even
otherwise, entire amount towards loss has already been
recovered and therefore, reduction of wage by four
cumulative stages is disproportionate to the gravity of the
guilt, if at all guilt is held to be proved. He adds that our
system operates on the principle of proportionality and a
measure that does not accord with the same is
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WA No. 735 of 2023
unsustainable. According to him, all these aspects having
not been properly considered by the learned Single Judge,
this appeal needs to be favoured and impugned order has
to be set at naught.
3. Having heard the learned counsel for the
appellant and having perused the appeal papers, we
decline indulgence in the matter broadly agreeing with
reasoning of the learned Single Judge. It is not that the
penalty order has been made in violation of principles of
natural justice inasmuch as a due inquiry was conducted
and thereafter penalty has been levied. Vigilance Officer
of the KSRTC has specifically stated about the involvement
of the appellant in the entire episode. The penalty order
made by the disciplinary authority has been affirmed by
the appellate authority in a broad based appeal and
therefore learned Single Judge is more than justified in not
interfering in the writ petition.
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4. Learned Single Judge has specifically recorded a
finding as to petitioner being responsible for delaying the
Bus Stand project from 2009 to 2021 i.e., for twelve
years. It is a case of a culpable negligence of gross size, if
not one involving dishonesty and distrust, to say the least.
In a growing population like ours, the Bus Stand of the
kind was to be established long ago. The public at large
has been put to a huge inconvenience and this factor
rightly weighed with the authorities and the learned Single
Judge. In any case, it cannot be said that the penalty of
recovery of loss coupled with downgrading the pay scale of
the appellant by four stages in accumulation is on much
higher side as to shake the conscience of Court. We are
not inclined to agree with the counsel for the appellant
that the findings of guilt are falterable. The Apex Court in
UNION OF INDIA vs SUBRATA NATH, 2022 SCC OnLine
SC 1617 at para 21 has observed as under:
"21. To sum up the legal position, being fact
finding authorities, both the Disciplinary
Authority and the Appellate Authority are
vested with the exclusive power to examine
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WA No. 735 of 2023
the evidence forming part of the inquiry
report. On finding the evidence to be
adequate and reliable during the
departmental inquiry, the Disciplinary
Authority has the discretion to impose
appropriate punishment on the delinquent
employee keeping in mind the gravity of the
misconduct. However, in exercise of powers
of judicial review, the High Court or for that
matter, the Tribunal cannot ordinarily
reappreciate the evidence to arrive at its own
conclusion in respect of the penalty imposed
unless and until the punishment imposed is
so disproportionate to the offence that it
would shock the conscience of the High
Court/Tribunal or is found to be flawed for
other reasons, as enumerated in P.
Gunasekaran (supra). If the punishment
imposed on the delinquent employee is such
that shocks the conscience of the High Court
or the Tribunal, then the
Disciplinary/Appellate Authority may be
called upon to re-consider the penalty
imposed. Only in exceptional circumstances,
which need to be mentioned, should the High
Court/Tribunal decide to impose appropriate
punishment by itself, on offering cogent
reasons therefor."
5. The vehement submission of learned counsel
appearing for the appellant that even in writ jurisdiction,
the learned Single Judge ought to have interfered at least
with regard to the quantum of penalty, if not in the finding
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WA No. 735 of 2023
of guilt, is bit difficult to countenance. The disciplinary
proceedings were initiated and held perfectly in accord
with service rules. Full opportunity was given to the
petitioner and he participated in the proceedings. Penalty
order having been examined in appeal came to be upheld.
What penalty should be levied in a case of misconduct is
ordinarily a matter pertaining to the domain of the
disciplinary authorities. The Apex Court in UNION OF
INDIA vs M DURAISAMY, (2022) 7 SCC 475 has
observed at para 12 as under:
" ...the jurisdiction of the High Court on the
proportionality of the order of departmental
authority is limited. It is observed that it
cannot set aside a well-reasoned order only
on grounds of sympathy and sentiments. It
is further observed and held that once it is
found that all the procedural requirements
had been complied with, courts would not
ordinarily interfere with the quantum of
punishment imposed upon a delinquent
employee. It is further observed that the
superior courts, only in some cases may
invoke the doctrine of proportionality,
however if the decision of an employer is
found to be within the legal parameters, the
doctrine would ordinarily not be invoked
when the misconduct stands proved."
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Despite vehement submission of learned counsel
appearing for the appellant, we do not see anything either
as to the finding of the guilt or as to the penalty being as
disproportionate as to shake our conscience.
In the above circumstances, the appeal being
unworthy on merits is rejected in limine.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Snb/
