Karnataka High Court
Dr Sathishkumar S Hosamani vs The State Of Karnataka on 16 May, 2024
Author: R Devdas
Bench: R Devdas
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WP No. 10727 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE R DEVDAS
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
WRIT PETITION NO. 10727 OF 2024 (S-KSAT)
BETWEEN:
DR. SATHISHKUMAR S HOSAMANI
AGED ABOUT 55 YEARS
S/O SHAMBULINGA
WORKING AS DIRECTOR
DEPARTMENT OF PUBLIC LIBRARIES,
BENGALURU
R/AT NO 100, 3RD FLOOR,4TH CROSS,
PATEL MUNIYAPPA LAYOUT,
V NAGENAHALLI, R T NAGAR
BENGALURU - 560032
Digitally signed by
DHARMALINGAM ...PETITIONER
Location: HIGH
COURT OF (BY PROF. RAVIVARMAKUMAR, SR. COUNSEL FOR
KARNATAKA SRI. VIJAYA KUMAR., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
SCHOOL EDUCATION AND
LITERACY DEPARTMENT
M S BUILDING, BENGALURU - 560001
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WP No. 10727 of 2024
2. THE COMMISSIONER
DEPARTMENT OF SCHOOL EDUCATION
NRUPATHUNGA ROAD
BENGALURU - 560001
...RESPONDENTS
(BY SRI.REUBEN JACOB., AAG A/W
SRI. MAHANTESH SHETTAR, AGA FOR C/R1 & R2)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO i)SET ASIDE THE
ORDER DATED 02/04/2024 PASSED BY THE HONBLE TRIBUNAL
IN APPLICATION NO.1407/2024 (VIDE ANNEXURE-A) AND
ALLOW THE APPLICATION AS PRAYED FOR ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
- B GROUP, THIS DAY, R.DEVDAS J., PASSED THE
FOLLOWING:
ORDER
R.DEVDAS J., (ORAL)
The petitioner who is working as the Director in the
Department of Public Libraries is before this Court
aggrieved of the dismissal of his application at the hands
of the Karnataka State Administrative Tribunal, wherein
the petitioner had called in question the impugned order of
suspension bearing No.EP.114.LIB.2023 dated
11.03.2024.
2. Learned Senior Counsel Prof.Ravivarma Kumar,
appearing on behalf of the petitioner submits that the
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respondent - State Government passed the order of
suspension without even considering the reply given by
the petitioner and therefore having regard to the
expressed provision contained in sub-rule (3) Rule 10 of
the Karnataka Civil Services (Classification, Control and
Appeal) Rules 1957 which contemplates that the
competent authority was required to examine the relevant
materials relating to the case and consider whether there
is prima facie evidence to support the charges made
against the Government servant and if the competent
authority was satisfied that there exists prima facie
evidence, then on such examination alone it was required
to place the petitioner under suspension. Emphasis is
sought to be laid on the words "examine relevant
material". In this regard, learned Senior Counsel sought
to place reliance on a decision of the Hon'ble Supreme
Court in case of Union of India and another /vs./
Ashok Kumar Aggarwal - (2013) 16 SCC 147.
3. Taking this Court through paragraphs No.21
and 22, the learned Senior Counsel submitted that the law
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on the issue has been summarized by the Hon'ble
supreme Court to the effect that suspension order can be
passed by the competent authority only after taking into
account all the available material as to whether in a given
case, it is advisable to allow the delinquent to continue to
perform his duties in the office or his retention in office is
likely to hamper or frustrate the inquiry. The competent
authority is required to consider the gravity of the alleged
misconduct and the nature of evidence available. It was
held that such action cannot be actuated by mala fides,
arbitrariness or for ulterior purpose. Effect on public
interest due to employee's continuation in office is also a
relevant and determining factor. At any rate, suspension
order should be passed only where there is a strong prima
facie case against the delinquent and if the charges are
proved, it would ordinarily warrant imposition of major
punishment i.e. removal or dismissal from service, or
reduction in rank etc.
4. While taking this Court through the impugned
order of suspension, the learned Senior Counsel submitted
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that action is sought to be taken against the petitioner in
respect of incidents that have occurred more than 5 to 6
years ago. Moreover, the charges sought to be imputed
against the petitioner are not serious in nature, while
technical irregularities are sought to be alleged and
imputed against the petitioner during the relevant period.
Learned Senior Counsel submitted that the Tribunal erred
in coming to the conclusion that it cannot be said that the
order of suspension is passed only upon considering the
report of the committee and on the other hand it is clear
that the competent authority has not taken into
consideration the reply given by the petitioner. Once
again attention of this Court is drawn to the impugned
order of suspension and submitted that it is clear from the
order of suspension itself that the competent
authority/State Government has only considered the
report submitted by the committee and no mention is
made about the reply given by the petitioner.
5. Per contra, Sri Reuben Jacob, learned Additional
Advocate General appearing on behalf of respondents
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submitted that Rule 10(3) is not a stage which would
contemplate consideration of the reply given by the
petitioner. Learned Additional Advocate General submits
that in the normal course order of suspension in terms of
Rule 10(3) is passed by the competent authority having
regard to the material placed before it. Nevertheless, in
the present case since the action was initiated based on a
complaint given by a Member of Legislative Council, when
the State Government found that in terms of the complaint
made by the Member of Legislative Council, it would
become necessary to secure more information, the State
Government thought it fit to appoint a committee to look
into the allegations made by the Hon'ble Member of the
Legislative Council. It is the committee which collected all
the information, thereafter put it to the petitioner calling
for his reply. Learned Additional Advocate General would
therefore submit that this is a case where the normal
procedure preceding the issuance of an order of
suspension has been varied and although the Rule does
not require a reply to be called for, nevertheless
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Committee thought it fit to call for reply from the
petitioner and therefore reply has been caused by the
petitioner. Nevertheless, the Tribunal called for the
original records and the same was submitted before the
Tribunal and having gone through the original records
including the note sheets, the Tribunal has rightly come to
the conclusion that the State Government has followed the
procedure prescribed in terms of Rule 10(3) and therefore
no fault can be found in the impugned order passed by the
Tribunal.
6. The learned Additional Advocate General would
also draw the attention of this Court to few other
paragraphs in the very same judgment that was relied
upon by the learned Senior Counsel appearing for the
petitioner namely the case of Sri Ashok Kumar
Aggarwal (supra). Learned Additional Advocate General
drew the attention of this court to paragraphs No.26 to 28
and submitted that having regard to the Rule 10 it has
been held that suspension is a device to keep the
delinquent out of the mischief range. The purpose is to
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complete the proceedings unhindered. Suspension is an
interim measure in the aid of disciplinary proceedings so
that the delinquent may not gain custody or control of
papers or take any advantage of his position. More-so, at
this stage, it is not desirable that the Court may find out
as to which version is true when there are claims and
counter claims on factual issues. The court cannot act as
if it is an appellate forum de hors the powers of judicial
review.
7. Learned Additional Advocate General further
submitted that even in terms of paragraphs No.21 and 22,
which was relied upon by the learned Senior Counsel
appearing for the petitioners, the authority is required to
take into account all the available material and find out as
to whether in a given case, it is advisable to allow the
delinquent to continue to perform his duties in the office or
his retention in office is likely to hamper or frustrate the
enquiry. At any rate, Rule 10(3) does not prescribe or
contemplate a situation where reply is sought at the hands
of the delinquent officer and the order of suspension
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should contain statements which would indicate application
of mind on the part of the competent authority before
passing the order of suspension. Such a stage is not the
one in terms of Rule 10(3), but it comes subsequently
after the charge memo is issued and reply is called for by
the competent authority.
8. At this stage learned Additional Advocate
General would also submit on instructions that charge
memo has been issued to the petitioner on 14.05.2024
and dispatched on 15.05.2024. The learned Additional
Advocate General has furnished the original record along
with the charge memo and the seal containing the
dispatch of the same to the petitioner. The learned
Additional Advocate General would also draw the attention
of this court to the contents of the communication made to
the petitioner and submits that a written reply is called for
from the petitioner within a period of 15 days from the
date of receipt of the communication. The learned
Additional Advocate General would therefore submit that
once a reply is now given by the petitioner, the competent
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authority will have an opportunity to review its order of
suspension and thereafter pass necessary orders after
considering the reply given by the petitioner.
9. Learned Additional Advocate General submits
that this is not a stage where this court could consider
staying the order of suspension having regard to the
admitted fact that the petitioner did not have the benefit
of an order of stay even before the Tribunal or before this
Court.
10. Heard the learned Senior Counsel appearing for
the petitioner, learned Additional Advocate General for the
respondents State and perused the original records.
11. Having regard to the provisions contained in
Rule 10(3) of the Karnataka Civil Services (Classification,
Control and Appeal) Rules, 1957 when juxtaposed with the
other provisions contained in the Rules viz., Rule 11(2),
where express provisions are contained that the
Delinquent Officer shall be called upon to give a reply and
in such circumstances and stages, the Disciplinary
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Authority is required to consider such reply and pass
reasoned orders considering the reply given by the
Delinquent Officer. However, Rule 10(3) is not a stage
where such a course of action is contemplated. Just
because the Committee which was constituted in the
present case called for a reply at the hands of the
petitioner, it cannot be said that the impugned order of
suspension should also animate the consideration of the
reply given by the petitioner, since Rule 10(3) is not a
stage which contemplates such a course of action and the
provision does not expressly mandate considering of such
reply given by the Delinquent Officer. Having gone
through the allegations made against the petitioner which
are found in the impugned order of suspension, it cannot
be said that the charges are not serious in nature.
12. At any rate, these are all matters that are
required to be considered at a later stage. Moreover, as
rightly submitted by the learned AAG, now that the charge
memo has been issued to the petitioner and the petitioner
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is called upon to submit his written reply, the respondent
Disciplinary Authority is required to once again reconsider
its order of suspension or review its order of suspension
after having gone through the reply that would be caused
by the petitioner.
13. For the reasons stated above, this Court is of
the considered opinion that this is not a fit case where the
indulgence of this Court is called for at this stage, having
regard to the facts narrated hereinabove.
14. Consequently, the writ petition stands
dismissed.
(Sd/-)
JUDGE
(Sd/-)
JUDGE
KLY/JT
CT: JL
