Karnataka High Court

A Mari Gowda vs The Chief Secretary on 8 January, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 8TH DAY OF JANUARY 2025

                       PRESENT

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

                           AND

THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR

       WRIT PETITION NO.22445/2021 (S-KSAT)

BETWEEN:

A MARI GOWDA
S/O LATE APPAJI GOWDA
AGED ABOUT 69 YEARS
RETD. KAS OFFICER (JUNIOR SCALE)
R/AT NO.89, 2ND CROSS, 2ND MAIN
VIJAYANAGAR 1ST STAGE
MYSORE - 570 017.
                                     ... PETITIONER

(BY SRI SHAILENDRA M.R., ADV.)

AND:

  1. THE CHIEF SECRETARY
     STATE OF KARNATAKA
     VIDHANA SOUDHA
     BENGALURU-560001.

  2. THE STATE OF KARNATAKA
     REP. BY ITS SECRETARY
     DEPARTMENT OF PERSONNEL AND
     ADMINISTRATIVE REFORMS
     VIDHANA SOUDHA
     BENGALURU- 560001.
                                   2



  3. THE ACCOUNTANT GENERAL
     IN KARNATAKA (A & E) (GE-1)
     KARNATAKA, PARK HOUSE
     BENGALURU-1.

  4. KARNATAKA LOKAYUKTHA
     REP. BY ITS REGISTRAR
     M.S. BUILDING
     DR. B.R. AMBEDKAR VEEDHI
     BENGALURU.
                                               ...RESPONDENTS

(BY SRI V SHIVAREDDY, AGA FOR R1 TO 3 SRI VENKATESH ARABATTI, ADV. FOR R2 & 3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, DATED 08.12.2020 IN APPLICATION NO.3275/2020 (ANNEXURE-A) AND THE ORDER DATED 12.05.2021 (ANNEXURE-B) PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN REVIEW APPLICATION NO.7/2021 AND TO ALLOW THE APPLICATION FILED BY THE PETITIONER BY GRANTING THE PRAYERS MADE IN THE APPLICATION, WITH ALL CONSEQUENTIAL BENEFITS INCLUDING MONETARY BENEFITS.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.11.2024 COMING ON THIS DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR

CAV ORDER

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

Petitioner is before this Court under Article 226

of the Constitution of India questioning the

correctness and legality of order dated 08.12.2020 in

Application No.3275/2020 passed by the Karnataka

State Administrative Tribunal at Bengaluru (for short,

'the Tribunal') and also order of penalty dated

13.08.2020 imposing withholding of 50% of pension

permanently for the proved misconduct of demanding

and accepting illegal gratification.

2. Brief facts of the case are that, while petitioner

was working as Deputy Director of Food and Civil

Supplies Department, Ramanagara District, on

03.06.2009 on the complaint given by one

Sri.G.S.Vishalaksha @ Ravi regarding demanding of

Rs.10,000/- as bribe, a trap was laid against the

petitioner. On the said incident, a charge sheet was

filed against the petitioner in Spl.Case No.10/2012 on

the file of the Principal District and Sessions Judge at

Ramanagara for the offenses punishable under

Sections 7, 13(1)(d) read with Section 13(2) of

Prevention of Corruption Act, 1988 (for short "1988

Act"). On the same incident, a departmental enquiry

was also initiated by issuing Article of Charges dated

26.03.2012. After conclusion of enquiry, enquiry

report dated 31.10.2020 was forwarded by 4th

respondent along with recommendation of the Upa

Lokayukta. The petitioner was issued with second

show-cause notice dated 27.02.2020 and on

consideration of the reply submitted by the petitioner

dated 20.06.2020, the second respondent under

impugned order dated 13.08.2020 imposed penalty of

withholding 50% of the pension permanently.

Questioning the said order of penalty, the petitioner

was before the Tribunal in Application No.3275/2020.

The Tribunal, under impugned order dated 08.12.2020

dismissed petitioner's challenge to the order of

punishment, observing that looking into the entire

material, it cannot be said that it is a case of "no

evidence" or findings recorded by the Enquiry Officer

is perverse in nature. Further, it also observed that

the penalty is reasonable and proportionate.

Questioning the same, the petitioner is before this

Court.

3. Heard learned counsel Sri.M.R.Shailendra for

petitioner, learned Additional Government Advocate

Sri.V.Shivareddy for respondent Nos.1 to 3 and

Sri.Venkatesh S Arbatti, learned counsel for

respondent No.4. Perused the entire writ petition

papers.

4. Learned counsel Sri.M.R.Shailendra would

submit that, order of the Tribunal as well as order of

penalty of withholding 50% of the pension is opposed

to the material on record and further submits that the

Tribunal failed to appreciate the evidence on record.

Learned counsel would also submit that the petitioner

is acquitted of the charges leveled against him in

Spl.Case No.10/2012 and the Disciplinary Authority

has failed to take note of the petitioner's acquittal

under judgment dated 29.01.2020 in Spl.Case

No.10/2012. Further, learned counsel Sri.Shailendra

would submit that it is a case of "no evidence" and

that the bribe amount is not recovered from the

petitioner. In the above circumstances, the

Disciplinary Authority could not have imposed major

punishment of withholding 50% of the pension. The

report of the Enquiry Officer is based on suspicion and

surmises without any material. It is submitted that

the allegation against the petitioner is that he has

received bribe amount through one Rangaiah, a Bill

Collector of TAPCMS, Kanakapura. But the said

Rangaiah or any other person is not examined to

prove allegation against the petitioner. In the

absence of witnesses who could have proved the

charge, the Enquiry Officer without any material has

held that the charge against the petitioner is proved.

5. Lastly, learned counsel Sri.Shailendra contends

that the Disciplinary Authority has failed to consider

the reply submitted by the petitioner, wherein he had

brought to the notice of the Disciplinary Authority the

acquittal of the petitioner in criminal proceedings.

Thus, he prays for allowing the writ petition.

6. Per contra, learned Additional Government

Advocate as well as learned counsel for respondent

No.4 supports the order passed by the Tribunal and

further submit that the charge against the petitioner

i.e., demanding and accepting of bribe amount of

Rs.10,000/- through one Rangaiah, a Bill Collector is

proved. Further, they submit that the amount was

recovered in the Jeep, in which, they had come and

hand wash of the petitioner in Sodium Carbonate

solution has turned into pink, that itself is sufficient to

come to the conclusion that the petitioner had

received bribe amount from the complainant. Further,

it is submitted that the Disciplinary Authority

examined P.W.1/complainant, P.W.2/Shadow witness

and P.W.3/Investigating Officer, whose evidence

would prove the charge against the petitioner.

Further, learned counsel invite attention of this Court

to the judgment of the Sessions Court in Spl.Case

No.10/2012 and submitted that the petitioner is

acquitted of the charges on benefit of doubt and not

on merit. Further, learned counsel appearing for the

respondents would submit that the criminal

proceedings and departmental enquiry are entirely

different and to prove the charge in both the

proceedings, degree of proof on the basis of evidence

is entirely different. Thus, they pray for dismissal of

the writ petition.

7. Having heard the learned counsel for the parties

and on perusal of the writ petition papers, the

following points would arise for consideration:

(i) Whether the punishment of withholding of 50% of pension is proportionate to the nature of charge?

(ii) Whether the Tribunal is justified in rejecting petitioner's application?

8. Answer to the above points would be in the

affirmative for the following reasons:

On the incident of trap that was laid against the

petitioner on 03.06.2009, criminal proceedings in

Spl.Case No.10/2012 on the file of Principal District

and Sessions Judge, Ramanagara for the offences

punishable under Sections 7, 13(1)(d) read with

Section 13(2) of 1988 Act was initiated and on the

same incident, a departmental enquiry was also

initiated by issuing Article of Charges dated

26.03.2012. The degree of proof required in both the

proceedings are entirely different. In criminal

proceedings, strict proof of evidence would be

necessary to prove the charge whereas in

departmental proceedings, charge could be proved on

the basis of preponderance of probabilities.

9. The judgment in Spl.Case No.10/2012 is placed

on record as Annexure-A1. On going through the

judgment, it is seen that the petitioner is acquitted of

the charges in criminal proceedings on benefit of

doubt and not on merit. The judgment also indicates

that the right hand wash of the accused i.e., petitioner

herein in the Sodium Carbonate solution immediately

after the trap had turned into pink colour and as per

the chemical examination report, the right hand wash

of the accused tested positive for the presence of

phenolphthalein powder, but the Trial Court observed

that this alone is not sufficient to draw an inference

that the accused had received the tainted money.

Therefore, the petitioner cannot take advantage of the

judgment dated 29.01.2020 in Spl.Case No.10/2012.

Moreover, petitioner is acquitted in the criminal

proceedings on benefit of doubt and not on merit.

10. Before the Enquiry Officer, the Disciplinary

Authority has examined the complainant as P.W.1,

one of the shadow witnesses as P.W.2 and

Investigating Officer as P.W.3. On examination of the

evidence on record at paragraphs 23, 26 and 27, the

Enquiry Officer has recorded as follows:

"23) PW-1 in his cross-examination has stated that soon after the signal PW-3 with the team approached the DGO and his subordinate Sri. Rangaiah. Their hands were washed.

Thereafter cash was searched to find it below the front left seat of the jeep. Even PW-2 in

his cross-examination has stated that the police staff had removed the cash and handed it over. Therefore it is clear that the cash handed over by the complainant was found below the front left seat of the DGOs jeep. Even when the DGO was not touching or not coming in the contract with the currency then there was no reason for the sodium carbonate changing the colour on the hand wash of the DGO. It is not the case of the defence that the cash found below the seat was got removed by DGO and there after his hands dipped in the testing solution.



        24) xxxxxxx


        25) xxxxxx


        26)     PW-3 I.O., has also stated about

complainant approaching on 03/06/2009 only along with Ex.P-1 complaint. Complainant approaching PW-3 on 01/06/2009 is not stated by PW-3. But, only by PW-1 that too in the cross examination dated: 11/12/2018. It is also stated by Learned Defence Assistant in the Written Brief that complainant approaching the DGO is suspicious as PW-1 in his examination

in chief has first met Rangaiah who informed to come down to Loka-Ruchi Restaurant. Whereas PW-2 has stated that DGO alone had told the complainant-PW-1 to come down to the restaurant. However, these facts are not material in appreciating the allegations. However, handing over of the money is very much vital. Because complainant is equipped with currencies tainted with phenolphthalein. The person coming in physically possession of such currency would possess phenolphthalein residue, Even after the trap both Rangaiah and the DGO are found positive in the test of sodium carbonate wash. The custody of cash, cast a burden to explain the possession. Against such test of phenolphthalein and sodium carbonate, it is contended by the defence that, DGO was forcibly came in contact with the currency. It is definite case of the prosecution that complainant had handed over the currency to Rangaiah, who thereafter handed over the currency to the DGO.

However, the currencies found under the seat of the jeep were picked out by the I.O., and PW-2 along with CW-3 compared and confirmed it. Therefore, it is clear that after

dropping the currencies DGO or his colleague Rangaiah have not touched the currencies. Therefore, the burden of explaining the physical possession of the currency is upon the DGO,

27) It is also noticed that the amount handed over through Rangaiah was not instantly thrown. It was only after being aware of the presence of the police. If DGO was not intercepted, physical possession would have been continued. In the written brief DGO has stated about the contradiction noticed in the evidence of PW-1 and 2 in the Spl.C.C. However, said evidence is not produced in the enquiry and contradictions are not confronted against the respective witnesses. Therefore, evidence even if differently deposed in the criminal trial cannot be sufficient to discard in the enquiry. Witnesses disclosing the incriminating allegation have submitted for cross examination. Therefore, respective contradictions when not confronted to the concerned witness cannot be invoked to impeach such incriminating evidence."

11. We have also gone through the evidence on

record which is placed on record as Annexure-A7.

This Court would not go into the sufficiency of

evidence or would not re-appreciate the evidence, but

this Court could see whether there is some evidence

to prove the charge. On going through the material

on record, we are satisfied that there is sufficient

evidence to prove the charge against the petitioner.

12. The Tribunal, on appreciation of the material

produced before it has come to the conclusion that the

findings recorded by the Enquiry Officer cannot be

said as perverse and findings are based on the oral