Karnataka High Court
Peerappa vs The Chief Executive Office & Ors on 7 June, 2017
Equivalent citations: 2017 LAB. I. C. 3849, 2017 (4) AKR 70 (2018) 1 KANT LJ 70, (2018) 1 KANT LJ 70
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.203776/2016 (S-DIS)
BETWEEN
Peerappa,
Age: 40 years,
Occ: Bill Collector in
Gram Panchayat,
Aurad-B,
Tq: Dist: Kalaburagi
... PETITIONER
(By Smt Hema L. Kulkarni, Advocate.)
AND
1. The Chief Executive Officer,
Zilla Panchayat, Kalaburagi
Dist: Kalaburagi-585103.
2. The Executive Officer,
Taluka Panchayat,
Chittapur taluka,
Dist: Kalaburagi-585103.
3. The Panchayat Development Office
Gram Panchayat, Aurad-B,
Tq: Dist: Kalaburagi-585103.
... RESPONDENTS
(By Sri.Ameet Kumar Deshapande, Advocate)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN FILE NO. GP/BILL COLLECTOR/2016-17 DATED
01.07.2016 & ANNEXURE-C, PERUSE THE SAME AND QUASH
THE SAID ORDER AS ARBITRARY, ILLEGAL AND OPPOSED TO
PRINCIPLES OF NATURAL JUSTICE AND IN VIOLATION OF
ARTICLES 14, 16(1), 21, 311 OF THE CONSTITUTION OF INDIA,
ISSUE A WRIT OF ORDER OR PROHIBITION RESTRAINING THE
RESPONDENT IN TERMINATING THE SERVICES OF THE
PETITIONER, OR DISTURBING HIM UNDER AND IN PURSUANCE
OF THE IMPUGNED ORDERS UNTIL HE HAS BEEN PROVIDED
WITH THE REASONABLE OPPORTUNITY AS REQUIRED UNDER
ARTICLE 311 OF THE CONSTITUTION OF INDIA AND THE
PRINCIPLES OF NATURAL JUSTICE AND ISSUE FURTHER
ORDER OR DIRECTION TO THE RESPONDENT TO GRANT THE
PETITIONER ALL THE MONETARY BENEFITS OF SALARY AND
OTHER BENEFITS AVAILABLE AS A BILL COLLECTOR AND
PERMIT HIM TO DISCHARGE THE DUTIES OF THE SAID POST,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The learned counsel for the petitioner fairly submitted that the second prayer may be dismissed as not pressed. The said submission is placed on record.
The said prayer dismissed as not pressed.
2. The suspended bill collector is before this Court for Writ of certiorari to quash the order dated 3 01.07.2016 made in No. GP/Bill Collector/2016-17 passed by the 3rd Respondent vide Annexure-C. The same is opposed to the principles of natural justice and in violation of Articles 14, 16(1), 21 and 311 of the Constitution of India and also mandamus to direct the Respondents to grant all monetary benefits i.e., salary and other benefits available to bill collector and permit him to discharge his job.
3. It is the case of the petitioner that on 26.04.2006, 3rd Respondent passed resolution appointed the petitioner as a bill collector and he was working from the date of appointment till private complaint lodged by one Mohammad Ahmed S/o Mohammad Khasim. On the basis of the said complaint 3rd Respondent Panchayat Development Officer proceeded to pass the impugned order suspending the petitioner from service. Therefore, the petitioner is before this Court.
44. I have heard the learned counsel for the parties to the lis.
5. Smt Hema L.Kulkarni, learned counsel for the petitioner vehemently contended that the impugned order passed by the 3rd Respondent Panchayat Development Officer suspending the petitioner as per Annexure-C is totally without jurisdiction and he is not the appointing authority of the petitioner. Therefore, the impugned order is passed by the 3rd Respondent is liable to be quashed. She further contended that the impugned order passed by the 3rd Respondent without notice and opportunity of being heard and without any basis. She further contended that even assuming that the 3rd Respondent passed suspension order as long as back on 01.07.2016 and the same is not yet revoked and suspension order cannot continue beyond three months in view of dictum of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary V/s Union of 5 India through its Secretary reported in (2015) 7 Supreme Court Cases 291.
6. Per contra Sri Ameet Kumar Deshapande, learned counsel for the Respondents sought to justify the impugned order and contended that the Pancahayat Development Officer exercising his power under the provisions of Section 113 of Karnataka Gram Swaraj and Panchayat Raj Act, 1993 has passed the impugned order on the basis of the direction issued by the Chief Executive Officer who is a higher authority. He further contended that mere suspension of the petitioner on some criminal case pending against the petitioner will not take away the rights of the petitioner. Therefore, this Court cannot interfere with the suspension order passed by the 3rd Respondent Therefore, he sought to dismiss the Writ Petition.
67. Having heard the learned counsel parties to the lis, it is an undisputed fact, that the petitioner was appointed as bill collector on 26.04.2006 by the Gram Panchayat and subsequently it was approved by the Zilla Panchayat. When the Gram Panchayat is appointing authority, any action can be taken only by the appointing authority and not by the 3rd Respondent Panchayat Development Officer. Sub-section 1 of Section 113 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (herein after referred as Act) makes it clear that the Gram Panchayat is appointing authority. Sub-Section 2 of Section 113 of the Act enable the Panchayat Development Officer may by order fine or withhold increment of any employees appointed by the Gram Panchayat. Sub-section 3 of Section 113 of the Act, Gram Panchayat may impose major penality, such as reduce in rank, remove or dismiss any employee appointed by it. Against the said order under sections 2 and 3 of Section 113 an appeal lies to the 7 appellate authority under section 4 of Section 113 of the Act. In view of the said provisions, it is clear that the power to suspend is not an implied term in an ordinary contract between master and servant and such a power can only be the creature of either of Statute governing the contract or of an express term in the contract itself, as held by the Hon'ble Supreme Court in the case of Balvantrai Ratilal Patel Vs. State of Maharashtra reported din AIR 1968 SC 800.
8. Admittedly in the present case it is not in dispute that the appointing authority is Gram Panchayat. Learned counsel for the respondents unable to show any provision, the power of Panchayat Development Officer to suspend the petitioner who is the employee under 3rd Respondent. If the contention of the learned counsel for the Respondents is accepted that on the basis of the directions issued by Chief Executive Officer, the Panchayat Development Officer 8 has passed the order, then the very power of appointing authority indiscriminately defeated. Therefore, in the absence of any power either by Panchayat Development Officer or Zilla Panchayat have no jurisdiction to suspend the petitioner who is admittedly employee of Gram Panchayat.
9. In an identical circumstances, this Court in the case of K.J.Basavaraj .Vs. State of Karnataka and others made in W.P.No.58968/2013 dated 9th January 2014 specifically held that there is no power conferred on the Panchayat Development Officer, to keep an employee of the Gram Panchayat under suspension, in contemplation of the disciplinary proceedings. Accordingly the order passed by the Panchayat Development Officer dated 21.12.2013 was held without jurisdiction. Accordingly it was quashed and treated as nullity. The said order passed by this Court has reached finality.
910. Even assuming that the Panchayat Development Officer has got jurisdiction on the basis of directions issued by the Chief Executive Officer as contended by the learned counsel for the respondents, still the suspension order cannot be continued beyond three months in view of the dictum of Hon'ble Supreme Court in the case of Ajay Kumar Choudhary V/s Union of India through its Secretary reported in (2015) 7 Supreme Court Cases 291, which reads as under;
8. The learned Senior Counsel for the appellant, however, has rightly relied on a series of Judgments of this Court, including O.P.Gupta V/s Union of India, where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period; that, therefore, an order of suspension should be lightly passed.
109. Our attention has also been drawn to K.Sukhendra Reddy, V State of A.P., which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not been proceeded against departmentally.
10. So far as the question of prejudicial treatment accorded to an employee is concerned, this Court in State of A.P. V N.Radhakishan has observed that it would be fair to make this assumption of prejudice if there is an explained delay in the conclusion of proceedings. However, the decision of this Court in Union of India V Dipak Mali does not come to the succour of the appellant since our inspection of the records produced in original have established that firstly, the decision to 11 continue the suspension duly supported by elaborate reasoning.
11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short sound reasoning contemporaneously available on the record, this could render it punitive in nature.
Departmental/disciplinary proceedings invariable commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally 12 charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement.
Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal 13 prosecutions the accused shall enjoy the right to a speedy and public trial.
13. Article 12 of the Universal Declaration of Human Rights, 1948 assures that -
`12" No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks".
14. More recently, the European Convention on Human Rights in Article 6(1) promises that "6.(1) in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...."
and in its second sub article that :
"6.(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".14
15. The Supreme Court of the United States struck down the use of nolle persequi, an indefinite but ominous and omnipresent postponement of civil or criminal prosecution in Klapfer vs. State of North Carolina.
16. In Kartar Singh vs. State of Punjab (1994) 3 SCC 569 the Constitution Bench of this Court unequivocally construed the right of speedy trial as a fundamental right, and we can do no better the extract these paragraphs from that celebrated decision -(SCC pp.638-39, paras 86-87) " 86 The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision so that any 15 possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.
87. This Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar while dealing with Article 21 of the Constitution of India has observed thus:
6."No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to 16 what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."
17. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasised by this Court on numerous occasions. The Constitution Bench in Abdul Rehman Antulay vs. R.S. Nayak, 1992 (1) SCC 225, underscored that this right to speedy trial is implicit in Article 21 of the Constitution and is also reflected in Section 309 of the Cr.P.C., 17 1973; that it encompasses all stages, viz., investigation, inquiry, trial, appeal, revision and re-trial; that the burden lies on the prosecution to justify and explain the delay; that the Court must engage in a balancing test to determine whether this right had been denied in the particular case before it. Keeping these factors in mind the CAT had in the case in hand directed that the Appellant's suspension would not be extended beyond 90 days from 19.3.2013. The High Court had set aside this direction, viewing it as a substitution of a judicial determination to the authority possessing that power, i.e., the Government.
18. This conclusion of the High Court cannot be sustained in view of the following pronouncement of the Constitution Bench in Antulay: (SCC pp 270-73, para 86)
86. In view of the above discussion, the following propositions emerge, meant to 18 serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.19
(3) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-
conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of [pic]death, disappearance or non- availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed 20 out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated 21 as proceedings taken in good faith.
The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
22(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barke 33 L Ed 2d 101 "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell 15 L Ed 2d 627 in the following words:
'... The Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of [pic]accused will also be a relevant fact.23
The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution.
Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non- asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker 33 L Ed 2d 101and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the 24 right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved 25 merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, 26 however, be disposed of on a priority basis.
19. State of Punjab v. Chaman Lal Goyal (1995) 2 SCC 570 deserves mention, inter alia, because action was initiated on 25.3.1992 and a Memorandum of Charges was issued on 9.7.1992 in relation to an incident which had occurred on 1.1.1987. In the factual matrix obtaining in that case, this Court reserved and set aside the High Court decision to quash the Inquiry because of delay, but directed that the concerned officer should be immediately considered for promotion without taking the pendency of the Inquiry into perspective.
20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an 27 accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of 28 Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.
11. In view of the aforesaid reasons the Writ Petition is allowed. The impugned order dated 01.07.2016 made in No. ¸ÀABgÁæ¥A À CB©¯ï PÀ¯ÉPÀÖgïB2016-17 passed by the Panchayat Development Officer as per Annexure-C is treated without jurisdiction and the same is quashed. Consequently the petitioner is entitled to discharge the function of the bill collector under the concerned Gram Panchayat in accordance with law.
The petitioner is also entitled to salary and other benefits in accordance with law. However, it is needless to observe that this order shall not come in the way for 29 Appointing authority/Gram Panchayat, to initiate action against the petitioner in accordance with law.
Sd/-
JUDGE *MK