Karnataka High Court

State Of Karnataka vs Smt. H S Kanthi on 1 October, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                ®
  DATED THIS THE 1ST DAY OF OCTOBER 2024

                    PRESENT

    THE HON'BLE MR. JUSTICE S. G. PANDIT

                       AND

   THE HON'BLE MR. JUSTICE C.M.POONACHA

   WRIT PETITION NO.1647/2020 (S-KSAT)

BETWEEN:

  1. STATE OF KARNATAKA
     REP. BY ITS SECRETARY
     FINANCE DEPARTMENT
     VIDHANASOUDHA
     BANGALORE-560001.

  2. COMMISSIONER OF COMMERCIAL
     TAXES IN KARNATAKA
     "VANIJYA TERIGE BHAVANA"
     GANDHINAGAR
     BANGALORE-560009.

  3. JOINT COMMISSIONER OF COMMERCIAL
     TAXED (ENFORCEMENT)
     MYSORE ZONE, NO.487
     BIDARAM KRISHNAPPA ROAD
     DEVARAJ MOHALLA
     MYSORE-570101.
                              ... PETITIONERS

(BY SRI. M RAJKUMAR, AGA)
                              2



AND:

SMT. H.S. KANTHI
AGED ABOUT 62 YEARS
W/O K.H. YOGESH
FORMERLY WORKING AS TYPIST
OFFICE OF THE JCCT (ENFORCEMENT)
BIDARAM KRISHNAPPA ROAD
DEVARAJ MOHALLA
MYSORE-570101.
                                         ...RESPONDENT
(BY SRI N.S.SRIRAJ GOWDA, ADV. FOR
 SMT. VANDANA N., ADV.)

       THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS PERTAINING TO ORDER DATED
04.01.2018 PASSED IN APPLICATION NO.6122/2014 OF
THE    KARNATAKA    STATE    ADMINISTRATIVE      TRIBUNAL,
BANGALORE AT ANNX-A AND PERUSE THE SAME AND
QUASH    THE    ORDER     DATED   04.01.2018    PASSED    IN
APPLICATION NO.6122/2014 OF THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BANGALORE, AT ANNX-A.


       THIS    PETITION    HAVING    BEEN      HEARD     AND
RESERVED FOR ORDER ON 19.09.2024 COMING ON THIS
DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING:


CORAM:    HON'BLE MR JUSTICE S.G.PANDIT
          and
          HON'BLE MR JUSTICE C.M. POONACHA
                               3



                       CAV ORDER
          (PER: HON'BLE MR JUSTICE S.G.PANDIT)

      The State and its authorities are before this

Court under Article 226 of the Constitution of India,

questioning the correctness and legality of order dated

04.01.2018 in Application No.6122/2014 on the file of

the   Karnataka      State   Administrative    Tribunal,    at

Bengaluru (for short "Tribunal") by which, penalty of

dismissal is substituted by penalty of compulsory

retirement.


2.    The brief facts leading to the filing of this writ

petition are that:

      The respondent was working as Typist in the

third petitioner office and Articles of charge dated

11.01.2010 was issued against one Sri.Sampath Rao

S.Bommannavar, Commercial Tax Officer as well as

against    the    respondent      alleging    demand       and

acceptance of Rs.2,000/- and Rs.300/- respectively
                            4



from the complainant Sri.Ganesh Shetty and there by

failed to maintain absolute integrity and devotion to

duty which would be unbecoming of a Government

servant and thereby committed misconduct under

Rule 3(1)(i) to (iii) read with Rule 16 of Karnataka

Civil Service (Conduct) Rules 1966 (for short "1966

Rules").   After detailed enquiry, the charges against

the respondent as well as another were held proved.

The first petitioner-Government issued second show-

cause notice dated 04.02.2014 enclosing enquiry

report as well as recommendation of Upa Lokayukta.

The respondent under Annexure-A6 dated 22.02.2014

submitted her reply. The first petitioner-Government,

by its order dated 24.07.2014 (Annexure-A7) imposed

punishment of dismissal of respondent in exercise of

its power under Rule 8(viii) of the Karnataka Civil

Service (Classification, Control and Appeals) Rules,

1957 (for short "CCA Rules").    Challenging the said
                               5



order of dismissal, the respondent was before the

Tribunal in Application No.6122/2014.           The Tribunal,

under impugned order allowed the application and

substituted    penalty   of   dismissal    by    penalty    of

compulsory     retirement.        The     Tribunal,     while

substituting punishment, following the judgment of

UNION OF INDIA AND OTHERS v/s GYAN CHAND

CHATTAR reported in (2009) 12 SCC 78 opined that

a lenient view is to be taken insofar as the order of

punishment is concerned and by observing that

applicant/petitioner being a lady having put in only 11

years and 8 months of service, if the dismissal order

were to be up held, she would be put to great

hardship      and   inconvenience,        substituted      the

punishment of compulsory retirement.             Challenging

the said order of the Tribunal, the State authorities

are before this Court in this writ petition.
                                 6



3.    Heard learned Additional Government Advocate

Sri.M.Rajkumar for petitioners and learned counsel

Sri.N.S.Sriraj Gowda for Smt.Vandana N., learned

counsel for the respondent. Perused the writ petition

papers.


4.    Learned AGA would submit that the Tribunal

committed an error in substituting the punishment of

dismissal     by    compulsory       retirement         for   proved

misconduct of accepting illegal gratification.                   It is

submitted that for proved misconduct of accepting

illegal    gratification   or       bribe,        the   appropriate

punishment would be dismissal or removal from

service.      Learned AGA would point out that the

Tribunal     without     recording     a     finding      that    the

punishment imposed is excessive when compared to

the nature and gravity of charge, could not have

substituted        the   punishment          of     dismissal      by

compulsory retirement. It is also contended that the
                            7



Tribunal could not act as Appellate Authority. To

impose proper punishment taking note of the gravity

and nature of charge, vests with the Disciplinary

Authority and not with the Tribunal or Court. Further,

it is submitted that the Tribunal, only on the ground of

sympathy, could not exercise its power to substitute

punishment imposed by the Disciplinary Authority on

the proved misconduct. Learned AGA would contend

that the respondent was acquitted of the charges in

criminal proceedings i.e., in Spl.Case No.70/2007 by

judgment dated 02.12.2011 only on the ground that

there is no demand by the respondent and the

amount recovered was paid at the instance of DGO

No.1.    But, it is submitted that the amount is

recovered from the vanity bag of the respondent and

the respondent has not denied receiving Rs.300/-

from the complainant. Thus, learned AGA would pray
                             8



for allowing the writ petition and to set aside the

impugned order of the Tribunal.

5.   Per contra, learned counsel Sri.Sriraj Gowda for

respondent supports the order passed by the Tribunal

and submits that since the respondent is acquitted of

the charges in Spl.Case No.70/2007, the Tribunal is

justified in substituting the punishment of dismissal to

that of compulsory retirement. Learned counsel would

submit that the allegation of demand and acceptance

against the respondent is not proved. Moreover, he

submits that in criminal case the respondent is

acquitted. Hence, she was entitled for a lenient view

on the punishment.     Thus, learned counsel prays for

dismissal of the writ petition.


6.   Having heard the learned counsel for the parties

and on perusal of the writ petition papers, the only

point which falls for consideration is, in the facts and

circumstances of the case, whether the Tribunal is
                                  9



justified in substituting the punishment of dismissal to

that of compulsory retirement.


7.   Answer to the above point would be in the

negative and the Tribunal could not have substituted

the punishment of dismissal by compulsory retirement

for the following reasons:

     It is settled position of law that this Court under

Article 226 of the Constitution of India or the Tribunal,

would not act as Appellate Authority in the process of

judicial review.       The power to impose punishment

vests with the Disciplinary Authority depending on the

gravity and seriousness of proved charge/misconduct.


8.   The charge against the petitioner is that she

demanded      and          accepted    Rs.300/-      from    one

Sri.Ganesh Shetty thereby failed to maintain utmost

integrity   and    devotion to        duty   which   would    be

unbecoming        of   a     government      servant,   thereby

committed misconduct under Rule 3(1)()i) to (iii) read
                               10



with Section 16 of Conduct Rules. The Enquiry officer

in   his   report   has    categorically    recorded    that

respondent in her defense statement and much earlier

to defense statement in her first explanation soon

after the trap, admitted that she received money

tendered by the complainant and she pleaded execuse

by admitting guilt. From the material on record, it is

seen that respondent-DGO No.2 did not demand

money, but she had accepted money tendered by the

complainant       with    the      knowledge    that    the

complainant's work was due with her and with DGO

No.1. In terms of Rule 16(4) of 1966 Rules, receiving

money without authority or without there being any

order would be misconduct.            In the instant case,

though     the   respondent     has   not   demanded,   but

accepted money from complainant when his work was

pending with her would amount to grave misconduct.
                                  11



9.    In criminal proceedings, the respondent was

acquitted of the charges only on the ground that

demand and acceptance is not proved, but the

Criminal Court found that DGO No.2 i.e., respondent

herein received an amount of Rs.300/- from the

complainant and kept it in her vanity bag.                     The

amount was recovered from respondent DGO No.2.

Hence, the acquittal of respondent is not honourable

acquittal.


10.   The vital question in the present writ petition is

whether      the   Tribunal     is    justified   in   substituting

punishment of dismissal by compulsory retirement for a

proved misconduct of accepting illegal gratification or

bribe.       The   Hon'ble     Apex     Court     in   MUNICIPAL

COMMITTEE, BAHADURGARH v/s KRISHNAN BEHARI

reported in (1996) 2 SCC 714 has held that in cases

involving    corruption,      there    cannot     be   any   other

punishment than dismissal.            Further, it observed that
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any sympathy shown in such cases is totally uncalled

for and opposed to public interest. It also observed that

the amount misappropriated may be small or large, it is

the act of misappropriation that is relevant.          Relevant

paragraph 4 of the said judgment reads as follows:

            "4.    It is obvious that the respondent
      has been convicted of a serious crime and it is
      a clear case attracting under proviso (a) to
      Article 311(2) of the Constitution. In a case of
      such nature - indeed, in cases involving
      corruption   -   there    cannot     be   any   other
      punishment than dismissal.           Any sympathy
      shown in such cases is totally uncalled for and
      opposed to public        interest.    The   amount
      misappropriated may be small or large; it is
      the act of misappropriate that is relevant. The
      Director had interfered with the punishment
      under a total misapprehension of the relevant
      factors to be borne in mind in such a case."

11.   As observed above, imposing punishment on

proved charge vests with the Disciplinary Authority

taking note of the nature and seriousness of the
                             13



charge. It is for the Disciplinary Authority to impose

appropriate punishment.        In the instant case, since

the charge of receiving illegal gratification/bribe is

proved, the Disciplinary Authority was justified in

imposing punishment of dismissal.


12.   The Tribunal is not justified in substituting

punishment    of   dismissal     to   that   of   compulsory

retirement by observing that lenient view is to be

taken, following the judgment in GYAN CHAND

CHATTAR (supra)        and also       observing that     the

applicant being a Lady having put in only 11 years and

8 months of service, she would put to great hardship

and inconvenience. In GYAN CHAND CHATTAR case,

the Hon'ble Apex Court at paragraph 21 held that a

serious charge of corruption requires to be proved

beyond any shadow of doubt and to the hilt and it

cannot   be   proved   on      mere    probabilities.    But

subsequently, the Hon'ble Apex Court in STATE OF
                                14



KARNATKA AND ANOTHER v/s UMESH reported in

(2022) 6 SCC 563 has clarified that observations in

paragraph 21 of GYAN CHAND CHATTAR case are

not   the ratio    decidendi    of     the case and those

observations      were    made        while    discussing    the

judgment of the High Court. Paragraphs 16, 18 and

19 in UMESH case reads as follows:

         "16.     The    principles    which    govern   a
      disciplinary enquiry are distinct from those
      which apply to a criminal trial. In a prosecution
      for an offence punishable under the criminal
      law, the burden lies on the prosecution to
      establish the ingredients of the offence beyond
      reasonable doubt. The accused is entitled to a
      presumption of innocence. The purpose of a
      disciplinary proceeding by an employer is to
      enquire into an allegation of misconduct by an
      employee which results in a violation of the
      service rules governing the relationship of
      employment. Unlike a criminal prosecution
      where the charge has to be established beyond
      reasonable doubt, in a disciplinary proceeding,
      a charge of misconduct has to be established
                           15



on a preponderance of probabilities. The rules
of evidence which apply to a criminal trial are
distinct from those which govern a disciplinary
enquiry. The acquittal of the accused in a
criminal case does not debar the employer
from proceeding in the exercise of disciplinary
jurisdiction.

      17. xxxxxxxxxx

      18. In the course of the submissions, the
respondents placed reliance on the decision
in Union of India v. Gyan Chand Chattar [Union
of India v. Gyan Chand Chattar, (2009) 12 SCC
78 : (2010) 1 SCC (L&S) 129] . In that case,
six     charges    were    framed     against    the
respondent. One of the charges was that he
demanded a commission of 1% for paying the
railway staff. The enquiry officer found all the
six charges proved. The disciplinary authority
agreed with those findings and imposed the
punishment of reversion to a lower rank.
Allowing the petition under Article 226 of the
Constitution, the High Court observed that
there was no evidence to hold that he was
guilty of the charge of bribery since the
witnesses only said that the motive/reason for
not     making    the   payment     could   be   the
                       16



expectation of a commission amount. The
respondent placed reliance on the following
passages from the decision : (SCC pp. 85 &
87, paras 21 & 31)
       "21. Such a serious charge of
   corruption requires to be proved to the
   hilt as it brings both civil and criminal
   consequences upon the employee
   concerned. He would be liable to be
   prosecuted and would also be liable to
   suffer severest penalty awardable in
   such cases. Therefore, such a grave
   charge of quasi-criminal nature was
   required to be proved beyond the
   shadow of doubt and to the hilt. It
   cannot be proved on mere probabilities.
                        ***

31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."

19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine

Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491:

1977 SCC (L&S) 298:(1977)1 SLR 750] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78:(2010) 1 SCC (L&S) 129], SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges.

Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.

36. In fact, initiation of the enquiry against the respondent appears to be

the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law."

(emphasis supplied)

On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."

13. The Hon'ble Apex Court in (2008) 5 SCC 569 in

the case of CHAIRMAN & MANAGING DIRECTOR,

V.S.P. AND OTHERS v/s GOPURAJU SRI

PRABHAKARA HARI BABU, the Hon'ble Apex Court

has held that the High Court in exercise of its

jurisdiction under Article 226 of the Constitution of

India also cannot, on the basis of sympathy or

sentiment over-turn a legal order. Relevant

paragraphs 20, 21 and 22 of the above judgment

reads as follows:

20. The jurisdiction of the High court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-

reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal, State of Bihar v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Amreerbi; State of M.P. v. Sanjay Kumar Pathak and Urrar Haryana Bijli Vitram Nigam Ltd., v. Surji Devi.).

21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only

in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See sangfroid Remedies Ltd., v. U ion of India).

22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order.

14. The Hon'ble Apex Court in the matter of

proportionaility of punishment in CHENNAI

METROPOLITAN WATER SUPPLY AND SEWERAGE

BOARD AND OTHERS v/s T.T.MURALI BABU

reported in (2014) 4 SCC 108 has observed that

proportionality or substitution of punishment would

come into play, if the Court on the analysis of material

brought on record comes to the conclusion that the

punishment imposed by the Disciplinary Authority or

Appellate Authority shocks the conscience of the Court.

15. In the instant case, the Tribunal has not found

and come to the conclusion that the charges are not

proved against the respondent in the departmental

enquiry. The Tribunal having observed that

demanding and receiving bribe is a serious social

morality and it needs to dealt with firmly, could not

have substituted the punishment of dismissal with

that of compulsory retirement. Further, as held by

the Hon'ble Apex Court, the Tribunal without recording

as to whether the punishment of dismissal for proved

charge of accepting bribe is disproportionate or

whether it shocks the conscience of the Court, could

not have substituted the punishment. In other words,

unless the Court records that the punishment imposed

is disproportionate to the gravity of charge, which

shocks the conscience of the Court, the Court would

not get jurisdiction to substitute the punishment.

16. For the reasons recorded above, we have no

other option but to set aside the order passed by the

Tribunal. Hence, the following order:

(i) The writ petition is allowed.

(ii) The impugned order dated 04.01.2018

passed in Application No.6122/2014 on the file

of the Karnataka State Administrative Tribunal,

Bengaluru is set aside.