Karnataka High Court

Sri. J B Shivakumar vs The Registrar (Vigilance) on 25 February, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

 DATED THIS THE 25TH DAY OF FEBRUARY, 2025

                       BEFORE

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

       WRIT PETITION No.64045/2016 (S-DIS)


BETWEEN:

SRI J.B SHIVAKUMAR
S/O BOMMEGOWDA T.
AGED ABOUT 45 YEARS
PEON (D-GROUP EMPLOYEE)
COURT OF SENIOR CIVIL JUDGE &
PRINCIPAL J.M.F.C., TARIKERE
R/AT P.K.S. GENERAL HOSPITAL
QUARTERS, BIRUR TOWN
KADUR TALUK- 577116.
                                       ...PETITIONER
(BY SRI. P.P. HEDGE, SR. COUNSEL FOR
 SRI ARAVIND H., ADV.)


AND:

  1. THE REGISTRAR (VIGILANCE)
     HIGH COURT OF KARNATAKA
     BENGALURU-560001.

  2. THE PRL. DISTRICT AND
     SESSIONS JUDGE AND THE
     DISCIPLINARY AUTHORITY
     CHIKMAGALUR DISTRICT-577101.
                            2

  3. THE SENIOR CIVIL JUDGE AND
     PRINCIPAL JMFC, TARIKERE-577228.

  4. THE CHIEF ADMINISTGRATIVE OFFICER
     DISTRICT COURT
     CHIKMAGALUR-577101.
                                     ....RESPONDENTS

(BY SMT. PRATHIBHA R.K., AGA FOR R2 TO 4 SRI RAGHAVENDRA G GAYATHRI, ADV. FOR R1)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH FINAL ORDER IN D.E.NO.1/2012 DATED 20.12.2012 (ANNEXURE-E) PASSED BY THE R2 AND THE ORDER DATED 30.10.2013 IN APPEAL PASSED BY THE R1 (ANNEXURE-G) AS ILLEGAL, ARBITRARY AND CONTRARY AND DIRECT THE R2 & 3 TO REINSTATE THE PETITIONER INTO SERVICE WITH ALL CONSEQUENTIAL BENEFITS.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 30/01/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE S.G.PANDIT

CAV ORDER

The petitioner, a dismissed Group-D employee of

District Judiciary is before this Court under Article 226 of

the Constitution of India, praying to quash the final

order in D.E.No.1/2012 dated 20.12.2012 (Annexure-E)

by which, penalty of dismissal is imposed for the proved

misconduct and also order dated 30.10.2013 in Appeal

No.HV/E & A2/2013 passed by the first respondent-

Appellate Authority at Annexure-G, by which, the

punishment of dismissal is modified to that of

compulsory retirement, with a consequential prayer to

direct respondent Nos.2 and 3 to reinstate the petitioner

into service with all consequential benefits.

2. The brief facts of the case are:

While the petitioner was working as Peon in the

Court of Senior Civil Judge and Principal JMFC, Tarikere,

a departmental proceedings was initiated against the

petitioner by issuance of Article of Charges dated

18.06.2012 in D.E.No.1/2012. In sum and substance,

the charges against the petitioner was that on the

intervening night of 20.03.2012 and 21.03.2012, the

petitioner at about 1.15 a.m. threatened

Sri.K.K.Gajendra, Peon (P.W.2) who was on night duty

over mobile phone and brought the Ambulance of the

Government Hospital, Birur near the Court premises and

by force, got opened the door of a room where the

cement was stocked for the purpose of court building

work and entered the said room along with the driver of

the Ambulance and took away two bags of cement and

two centering poles without any lawful authority or

without the knowledge of the Presiding Officer of the

Court, thereby committed misconduct. The second

charge was remaining unauthorized absence for 31 days

from 21.03.2012 till 20.04.2012, which is denied by the

petitioner. The Enquiry Officer appointed to enquire into

the charges against the petitioner submitted a report

dated 19.11.2012 holding that the charges against the

petitioner are proved.

3. During the course of enquiry, the Disciplinary

Authority examined witnesses P.W.1 to P.W.4 in support

of their case and got marked the documents at Ex.P1 to

Ex.P13 to prove the charges against the petitioner. The

petitioner examined himself as R.W.1 and also examined

R.W.2 and got marked Ex.D1 to Ex.D10 in support of his

case.

4. The second show-cause notice dated 24.11.2012

enclosing the enquiry report was furnished to the

petitioner and on receipt of reply to the second show-

cause notice, the second respondent-Disciplinary

Authority, by its order dated 20.12.2012 imposed

punishment of dismissal from service. Aggrieved by the

penalty of dismissal, the petitioner filed an appeal and

the Appellate Authority by its order dated 30.10.2013

refused to interfere with the findings of the Enquiry

Officer and on the ground of disproportionate

punishment, modified the order of penalty of dismissal

to that of penalty of compulsory retirement, treating the

period of suspension as such. Questioning the order of

penalty dated 21.12.2012 as well as the appellate order

dated 30.10.2013, modifying the punishment of

dismissal to that of compulsory retirement, the

petitioner is before this Court in this writ petition.

5. Heard learned senior counsel Sri.P.P.Hegde for

learned counsel Sri.Aravind H for petitioner;

Sri.Raghavendra G Gayathri, learned counsel for

respondents. Perused the entire writ petition papers.

6. Learned senior counsel for the petitioner would

submit that the order of penalty of dismissal and the

appellate order modifying the punishment to that of

compulsory retirement is opposed to the material on

record and penalty of dismissal or compulsory

retirement is disproportionate to the nature and gravity

of charges leveled against the petitioner. Learned

senior counsel would submit that there is no cogent

evidence to prove the charge that the petitioner on the

intervening night of 20.03.2012 and 21.03.2012 came

to the Court premises and took away two cement bags

and two centering poles. Learned senior counsel would

submit that in the criminal proceedings initiated against

the petitioner in C.C.No.213/2012 the petitioner was

convicted under Judgment and Order dated 05.12.2015,

however the same was set aside and the petitioner was

acquitted of the charges in Crl.R.P.No.1408/2016 by

judgment dated 16.05.2024. Therefore, learned senior

counsel would submit that the findings of the Enquiry

Officer and punishment imposed require interference.

7. Learned senior counsel placed reliance on the

judgment of the Hon'ble Apex Court in RAMLAL v/s

STATE OF RAJASTHAN AND OTHERS reported in

(2024) 1 SCC 175 to contend that under certain

circumstances, acquittal in criminal proceedings would

result in exoneration of DGO in departmental

proceedings. Further, learned senior counsel would

submit as held in RAMLAL (supra) where charges in

departmental enquiry and criminal proceedings are

identical, evidence, witnesses and circumstances are

also same, this Court can interfere with the order passed

by the Disciplinary Authority, where the findings of

Disciplinary Authority are found to be unfair, unjust and

oppressive. Thus, learned senior counsel would pray for

allowing the writ petition.

8. Per contra, learned counsel Sri.Raghavendra G

Gayathri for respondents would submit that the charges

against the petitioner are proved on the materials placed

on record and the Appellate Authority taking note of the

proportionality of punishment modified the punishment

of dismissal to that of compulsory retirement, which

needs no interference. Learned counsel would submit

that the Appellate Authority imposed lesser punishment

on the petitioner and as such, it does not call for

interference. Learned counsel referring to the evidence

of P.W.2 one Gajendra, Watchman, in the departmental

proceedings as well as in the criminal proceedings would

submit that the evidence of P.W.1 is consistent and he

has categorically stated that on the intervening night of

20.03.2012 and 21.03.2012, at about 1.00. p.m. the

petitioner came to the court premises with a

Government Hospital Ambulance, threatening the

Watchman, took away two cement bags and two

centering poles. Nothing is elicited in the cross-

examination by the petitioner which would come to his

rescue. Learned counsel for the respondents referring

to RAMLAL (supra) would submit that the same would

have no application to the facts of the present case and

submits that the Hon'ble Apex Court has observed in the

said decision that acquittal in criminal proceedings does

not confer any right to employee to claim any benefit,

including reinstatement. Further, he submits that in

terms of the above judgment, it is for the petitioner to

prove that the findings of the Disciplinary Authority are

unjust, unfair and oppressive. Thus, he prays for

dismissal of the writ petition.

9. To the court query, as to whether the petitioner

would get benefit of compulsory retirement and

whether he has completed minimum qualifying service

to get pensionary benefits on compulsory retirement,

learned counsel Sri.Raghavendra Gayathri on

instructions submits that the petitioner has completed

only 9 years of service and he would not be entitled for

pensionary benefits, on modifying the punishment of

compulsory retirement, since he has no qualifying

service of 10 years for getting pension and pensionary

benefits.

10. On hearing the learned counsel for the parties and

on perusal of the entire writ petition papers, the

following points would arise for consideration:

(1) Whether the petitioner has made out any

ground to interfere with the findings of the Enquiry

Officer?

(2) Whether the order of the Appellate Authority

imposing modified penalty of compulsory retirement

requires interference at the hands of this Court?

11. Answer to the above points would be in the

negative and affirmative, respectively, for the following

reasons:

The petitioner was working as Peon in the Court of

Senior Civil Judge and Principal JMFC, Tarikere at the

relevant point of time when the Article of Charges dated

18.06.2012 was served on him. The charges against the

petitioner are that, on the intervening night of

20.03.2012 and 21.03.2012 at about 1.00 a.m., he

came to the court premises along with Ambulance of

Government Hospital, Birur and threatened

Sri.K.K.Gajendra, Peon and took away two cement bags

and two centering poles unauthorizedly and also that the

petitioner remained unauthorized absent for 31 days

from 21.03.2012 till 20.04.2012.

12. To prove the charge, the Disciplinary Authority

examined P.W.1 to P.W.4 and marked Ex.P1 to Ex.P13

whereas the petitioner examined himself as R.W.1 and

also examined R.W.2/driver of the Ambulance, apart

from marking the documents as Ex.D1 to Ex.D10.

13. In a departmental proceeding, strict rules of

evidence would not be applicable and charges are to be

proved on the principles of preponderance of

probabilities. The Writ Court under Article 226 of the

Constitution of India would not examine or go into

sufficiency of evidence, it would only examine whether

there is some evidence to prove the charge.

P.W.2/K.K.Gajendra who was on Watchman duty on the

date of incident is the material witness. In his evidence,

he has categorically stated that on 20.03.2012 at about

12.45 in the night, the petitioner/DGO called to his

mobile phone and informed that he is coming to the

Court premises to take two cement bags and two poles

and by threatening him, he took away two cement bags

and two poles and on the next day morning, a Police

complaint is lodged. In the cross-examination, nothing

in support of the petitioner is elicited. The evidence of

P.W.1 to P.W.4 is sufficient to prove the charge in a

departmental proceeding.

14. Learned senior counsel for the petitioner submitted

that though the petitioner was convicted in

C.C.No.213/2012 under judgment dated 05.12.2015,

the same was set aside by this Court, by order dated

16.05.2024 in Crl.R.P.No.1408/2016. Thus, learned

senior counsel would submit that when the petitioner is

acquitted of the charges on the same incident and on

the same set of facts and evidence, the petitioner would

be entitled for exoneration in the departmental

proceedings. Learned senior counsel referring to the

order dated 16.05.2024 in Crl.R.P.No.1408/2016

submitted that this Court has not believed the evidence

of some of the witnesses examined before the Criminal

Court. In that regard learned senior counsel also placed

reliance on the decision of RAMLAL (supra).

15. To appreciate the contention of the learned senior

counsel for the petitioner, I have gone through the

evidence of P.W.2 adduced in the departmental enquiry

as well as in the criminal proceedings. P.W.2,

Sri.K.K.Gajendra, Watchman who was on duty on the

intervening night of 20.03.2012 and 21.03.2012 is

consistent in his evidence. In both the proceedings, he

has stated that the petitioner/DGO came to the court

premises around 12.45 to 1.00 a.m. and threatened him

and took away two bags of cement and two centering

poles. A perusal of the order dated 16.05.2024 in

Crl.R.P.No.1408/2016, it is seen that the petitioner is

acquitted for the offense punishable under Section 379

of IPC. This Court has observed that P.W.2 and P.W.3

have turned hostile and not supported the case of the

prosecution regarding presence of cement bags and

centering poles in the Ambulance. Moreover, acquittal is

on the ground of doubt about the incident and also that

there are some contradictions and improvements in the

evidence of P.W.1. The acquittal is not on merit and it is

like benefit of doubt.

16. The Hon'ble Apex Court in RAMLAL case (supra)

has observed that mere acquittal in criminal proceedings

does not confer any right to an employee to claim

benefit, including reinstatement. It is for the delinquent

employee to establish that the parties are identical,

evidence, witnesses and circumstances are also same.

The DGO has to prove that the findings of the

Disciplinary Authority are unjust, unfair and oppressive.

In the instant case, the petitioner has failed to establish

that the findings of the Enquiry Officer are unjust and

unfair. On the other hand, findings of the Enquiry

Officer are based on evidence and material on record,

with regard to theft by the petitioner. In RAMLAL case,

the allegation was that the delinquent official therein

alleged to have altered his date of birth from

21.04.1974 to 21.04.1972 in his 8th Standard

marksheet. The Hon'ble Supreme Court at paragraph

30 found that the charges were identical and evidence,

witnesses and circumstances were all the same. But in

the instant case, the substance of the judgment in

criminal revision petition would suggest that the

Revisional Court proceeded on the basis of doubt

whereas the Enquiry Officer in the departmental

proceedings appreciated the evidence on record which is

independently recorded in the departmental proceedings

and has come to the conclusion that the charges are

proved. Thus, the RAMLAL case (supra) would not assist

the petitioner in the present facts of the case. Thus,

point No.1 is answered in the negative.

17. The Appellate Authority in its order dated

30.10.2013 modified the order of punishment of

dismissal from service to that of penalty of compulsory

retirement. The Appellate Authority having taken note

of the deprivation of pensionary benefits if the order of

dismissal is sustained and hardship to the family,

modified the punishment to that of compulsory

retirement. The Disciplinary Authority is the competent

authority to impose punishment on the proved

misconduct. The Appellate Authority is empowered to

interfere with the order of punishment in appropriate

cases and this Court under Article 226 of the

Constitution of India could interfere with the punishment

on the ground of disproportionate or proportionality of

punishment depending on the nature and gravity of

charge. In the instant case, the charges against the

petitioner is taking away two cement bags and two

centering poles by threatening the Watchman who was

on duty on that particular night. For the charge of

removing two bags of cement and two centering poles,

punishment of dismissal would be harsh and it shocks

the conscience of the Court. In that circumstance, the

Appellate Authority is justified in modifying the

punishment of dismissal to that of compulsory

retirement.

18. But the question is whether the order of

compulsory retirement would benefit the petitioner in

any way. The purpose of imposing or modifying the

punishment of dismissal to that of compulsory

retirement was in the background of deprivation of

pensionary benefits, if the penalty of dismissal is

sustained. At the time of imposing punishment, the

minimum qualifying service required for entitlement to

pension was 10 years. But, the petitioner had no

qualifying service of 10 years as on the date of his order

of dismissal dated 20.12.2012. He joined service on

09.01.2003 and he was dismissed from service on

21.12.2012. He was kept under suspension on

21.03.2012 and continued under suspension till his

dismissal. In that circumstance, the petitioner had only

9 years of service which disentitle the petitioner for

pensionary benefits. Though the intention of the

Appellate Authority was to see that the petitioner to get

pension to sustain himself and his family, but in the fact

situation, the petitioner would not get any benefit from

modified penalty of compulsory retirement. As this

Court has come to the conclusion that the penalty of

dismissal for the nature of charge would be harsh and

disproportionate, the petitioner could be reinstated into

service without backwages with penalty of withholding of

two annual increments with cumulative effect, so as to

enable him to earn pension during his remaining service.

Denying backwages for last more than 10 years itself

would be equivalent to major punishment. Moreover,

the petitioner has not worked from the date of his

dismissal, as such he would not be entitled for any

backwages.

19. For the reasons recorded above, the following

order:

The writ petition is allowed in part. The Appellate

Order dated 30.10.2013 in Appeal No.HV/E & A2/2013

and order in D.E.No.1/2012 dated 20.12.2012 are set

aside, with a direction to the second respondent to

reinstate the petitioner into service as Group-D

employee, without arrears or backwages and pass

appropriate order, imposing punishment of withholding

two annual increments with cumulative effect. However,

the period during which the petitioner was out of service

would be counted for the purpose of pension.