Karnataka High Court
N. Munivenkatappa S/O Late ... vs The State Of Karnataka By Its Secretary ... on 12 January, 2007
Equivalent citations: 2007(4)KARLJ216
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER Anand Byrareddy, J.
1. The petitioner retired from service as an Executive Engineer with the second respondent Corporation, on attaining the age of superannuation on 30.6.2001.
2. The petitioner contends that disciplinary proceedings had been initiated against the petitioner and five others by a notice dated 30.10.2000, on the allegation that certain road repairs were got executed unauthorisedly resulting in a cost overrun and thereby causing loss to the Corporation. The petitioner had denied the charges. However, the third respondent had proceeded to frame common charges against the petitioner and five others and an Enquiry Officer was appointed. The Enquiry Officer held that the charges were proved. The petitioner was furnished a copy of the enquiry report, to which he had made a representation dated 11.9.2003, pointing out that the enquiry was vitiated for reasons stated therein, and requested that the proceedings be closed and his pensionary benefits be released.
3. As there was no response to his request, the petitioner had filed a writ petition before this Court in W.P.No. 4685/04, seeking to question the disciplinary proceedings. The said petition was disposed of without entering upon the merits - with a direction to the respondent to complete the disciplinary proceedings within three months, by an order dated 21.2.2004. Since the respondents failed to comply - the petitioner had initiated contempt proceedings before this Court. In the said proceedings, the second respondent is said to have contended that this petitioner had questioned the show-cause notice in yet another Departmental enquiry instituted against him by way of a writ petition in W.P.No. 3427/2001 - the same having been allowed by an order dated 13.3.2001, holding that the second respondent had no jurisdiction to institute proceedings against Group-A Officers -and the said order having been carried in appeal in Writ Appeal No. 294/2002 and the same was allowed by an order dated 22.11.2004, holding that in terms of a Corrigendum dated 23.3.1993 issued by respondent No. 1, the second respondent was competent to impose penalties on Group-A Officers.
4. Purporting to act under the said Corrigendum dated 23.3.1993, the second respondent had, by an order dated 3.12.2004, directed the recovery of a sum of Rs. 1 lakh, representing the loss attributed to the petitioner's role in the acts of misconduct, while by a separate letter directing the release of other sums due to the petitioner that had been withheld. It is in this background that the petitioner is before this Court, challenging the proceedings initiated under notice dated 30.10.2000 and the order of recovery above referred.
5. Shri. Vijayakumar for Shri. B.B. Bajentri, Advocate for the petitioner, would urge the following:
That the first respondent by the 1991 Rules has adopted and applied the provisions of the Karnataka Civil Services Rules and the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957, which are applicable to the State Government servants, to the employees of the respondent. Sub-Rule (f) of Rule 2 of 1991 Rules provides as follows:
(f) All words and expressions used in these rules, but not defined shall have the same meaning assigned to it in the KCSRs. as amended from time to time; provided that the expression Government Servant/s, Head of the Department, Government or Governor wherever they occur in the Rules mentioned in Rule 4 of these Rules shall respectively mean "an employee", "Commissioner or any of his nominee" and "Government in Housing and Urban Development Department.
Rule 4 modifies the application of the above Rules to the extent that the powers of Heads of Government Departments are delegated to the Commissioner of the respondent Corporation and the powers exercisable by the Government are vested in the Housing and Urban Development Department.
The counsel would further submit that Rule 214 of the Karnataka Civil Services Rules is made applicable to the employees of the Corporation. Rule 214 is extracted below:
214(1)(a) Withholding or withdrawing pension for misconduct or negligence:
The Full-time reserve to themselves the right of either withholding or withdrawing a pension or part thereof; whether permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including the service under a foreign employer and the service rendered upon re-employment after retirement.
(b) Recovery of pecuniary loss from pension:
The Government reserve to themselves the right of ordering recovery from a pension, the whole or part of any pecuniary loss caused to the Government or to a foreign employer under whom the Government servant has worked on deputation or otherwise, if in any departmental or judicial proceedings, the pensioner is found guilty of grave negligence during the period of his service, including the service under a foreign employer and the service rendered upon re-employment after retirement.
Provided that the Public Service Commission shall be consulted before any final orders are passed.
Provided further that where a part of pension is withheld or withdrawn, the amount of pension shall not be reduced below the amount of minimum pension prescribed under the Rules.
A combined reading of the 1991 Rules and Rule 214 would indicate that the power to pass orders to recover any loss caused to a City Corporation is vested in the Government, the first respondent Therefore, it is contended that the impugned order is violative of Rule 214 of the Karnataka Civil Services Rules.
It is contended that the impugned order draws attention to an order passed by the Division Bench of this Court in W.A.No. 294/2002, wherein it was held that by virtue of a Corrigendum dated 23.3.1993, the third respondent had the power to impose minor penalty including the penalty of recovery of loss caused to the Corporation. The counsel would point out that the petitioner having retired from service, the rules regulating disciplinary action would cease to apply to him. It follows that, notwithstanding the Corrigendum above referred to, the third respondent cannot exercise the powers either under the Conduct Rules or the CCA Rules to recover the alleged loss.
It is also contended that the above position is further fortified by the fact that the first respondent had in fact issued a direction to the third respondent, during the pendency of contempt proceedings initiated by the petitioner before this Court in CCC 966/2004, to drop all proceedings against the petitioner and to release his retiral benefits and to recover any amounts due from him by recourse to an independent civil suit. The impugned order is hence contrary to the said direction.
6. It is contended that the impugned order is bad for want of compliance with Rule 13 of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 in conducting a joint enquiry. In that, it was only the Government which could have ordered a joint enquiry and not the Commissioner.
7. The counsel would also argue, that it is possible to demonstrate that the alleged execution of unauthorised works had been accomplished even before the petitioner was posted to the particular division and payments, if any, were made on the basis of records. Hence, the attribution of loss of Rs. 1 lakh to the petitioner's conduct was without basis.
8. Per contra, it is contended on behalf of the State that the order for recovery of the loss caused to the Corporation, from out of the terminal benefits of the petitioner is in order, since the petitioner has retired from service. And that the Commissioner was competent to impose the penalty under Rule 8(ii) to (iv) of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957. This action has been upheld by this Court in a writ appeal in W.A.No. 294/2002. However, while admitting that the State had opined in a letter written on 31.7.2004 that since the petitioner had retired from service, in terms of Rule 214 of the Karnataka Civil Services Rules, it was not possible to proceed against the petitioner and any recoveries to be made from him be recovered by recourse to a civil suit; the subsequent judgment of the Division Bench of this Court in Writ Appeal in W.A.No. 294/2002, however, having held that in terms of the Corrigendum dated 23.3.1993, did empower the second respondent to impose minor penalties on Group-A Officers of the Corporation - the impugned order is in accordance with law.
9. It is contended on behalf of the Corporation that reliance sought to be placed on Rule 13 of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957, is not tenable for the reason that such a contention is taken for the first time and was not taken at any stage of the proceedings earlier. And that, in any event, the conducting of a joint enquiry is only for the benefit of the concerned official - and this could be waived. And that, as held by the Supreme Court in Commissioner of Customs v. Virgo Steels AIR 2002 SC 7451 as under:
Even though a provision of law is mandatory in its operation, if such provision is one which deals with individual rights of the person concerned and is for his benefit, the said person can always waive such a right.
as the petitioner had not chosen to raise any objection earlier as regards Rule 13, it is safely presumed to have been waived.
10. Further, the petitioner having questioned the validity of the Articles of charge earlier, on various grounds - it was open to the petitioner to have raised the above contention. And not having done so, it was not open to the petitioner to do so in the present petition on the principle of res judicata. And that the said principle can apply even to two stages in the very same proceedings.
11. It is further contended that this Court having held that the Commissioner is competent to pass the impugned order, the present challenge sought to be brought on a novel ground for the first time, is not permissible. In this regard, reliance is placed on Somwanti v. State of Punjab - .
12. On the contention as regards the competency of the Commissioner, notwithstanding the tenability of such objection, it is urged that the order passed by the second respondent is in the nature of imposing penalty under the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957. Rule 8(iv) provides for recovery from the pay, of any pecuniary loss caused by negligence or breach of order of the State Government. Rule 214 is made applicable to the employees of the City Corporation. The word "Government" is used with reference to the employer and not with reference to the State Government. As the Commissioner is competent to impose penalty, the Commissioner is equally competent to order recovery of pecuniary loss from pension. Rule 214 only enables recovery of pecuniary loss from the pension and the same is to be read along with Rule 8 which provides power to impose penalty. One of the penalties that can be imposed is also the recovery of any pecuniary loss from the pay of the employee. In the present case Rule 214 is invoked for the very reason that the petitioner has retired from service. This necessitates reading Rule 214 with Rule 8 - which would make it clear that the Commissioner is competent to impose penalty. This power is specified in the Karnataka City Corporation Employees (Conditions of Services) Rules, 1991. Further, Rule 2(ii) proviso of the 1991 Rules states that where the expression "Government Servant" appears, then the same should be read as Commissioner or his nominee. And where the word "Governor" appears, then the same should be read as "Government in Housing and Urban Development Department". This, if reconciled with the definition clause specifying that the definitions apply "unless the context otherwise requires" - it can be held that the Commissioner is the competent authority to issue the impugned order.
13. On these rival contentions, the questions that arise for consideration are as follows:
a) Whether the petition is barred by res judicata?
b) Inspite of a Corrigendum dated 23.3.1993 empowering the third respondent to impose minor penalties on Group-A employees of the Corporation - whether the third respondent could not have passed the impugned order against an employee who had retired from service?
c) Whether inspite of the petitioner having retired from service, the respondents were justified in seeking to interpret the application of the Rules, to his detriment?
14. In answering the above, the sequence of events would indicate that the disciplinary proceedings were initiated against the petitioner while he was still in service. The charges were held proved, though after the petitioner had attained the age of superannuation - though the petitioner had challenged the same by way of a writ petition in W.P.No. 4685/2004, the same was disposed of without entering upon the merits, while placing the respondents on a time frame to complete the proceedings.
15. The petitioner having challenged the issuance of show-cause notice in yet another disciplinary proceedings by way of a writ petition before this Court in W.P.No. 3427/2001, successfully. The same had been carried by way of an appeal by the respondents in W.A.294/2002, challenging the order of the Single Judge dated 13.3.2001 holding that the second respondent had no jurisdiction to institute proceedings against Group-A employees of the Corporation. The Division Bench having allowed the appeal to hold that the second respondent was competent to impose minor penalties even in respect of Group-A employees by virtue of a Corrigendum dated 23.3.1993 and this judgment having been rendered on 22.11.2004, and the said judgment having attained finality, the petitioner is precluded from challenging the competency of the second respondent to pass the impugned order on the principle of res judicata. The binding effect of the said judgment does not depend on whether an argument was raised on other grounds which were available but not canvassed. For otherwise, the same action of an authority can be repeatedly challenged each time on a different ground, though every such ground could have been raised in the first instance.
16. The further question whether the petitioner could be proceeded against in terms of Rules governing employees, when the petitioner had ceased to be in service. This was again a tenable objection that could have been raised in the earlier proceedings - as those matters were in fact heard and decided after the petitioner attained the age of superannuation - the petitioner not having chosen to do so, is precluded from raising this contention.
17. Finally, the respondent's endeavour to sustain the argument that a conjoint reading of Rule 8(iv) of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 and Rule 214 of the Karnataka Civil Services Rules would enable the second respondent to recover any pecuniary loss to the Corporation, on account of an ex-employee's misconduct, from pensionary or terminal benefits due to him cannot be accepted. The express language of the Rules cannot be read in the fashion as suggested, only in order to enable the second respondent to recover the sums due from an employee who is no longer in service. This would result in this Court clothing the second respondent with a power that is not expressly provided under the Rules. In the absence of a clear and categorical Rule under which such power could be exercised, it is for the respondent to have recourse to a civil suit for recovery of money. The second respondent is therefore not justified in withholding the pensionary benefits or proceeding to recover any amounts found due by recourse to an involved interpretation of the existing Rules. The petition deserves to be allowed in this regard.
18. Accordingly the petition is allowed. Annexure "K" is quashed in so far as it relates to the petitioner. The respondents shall release the retirement benefits due to the petitioner within a period of six weeks from the date of receipt of a certified copy of this order.