Karnataka High Court
Shri Nelson vs The Union Of India on 25 July, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 201859 of 2023
And Connected Matters
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 201859 OF 2023 (S-DIS)
C/W
WRIT PETITION NO. 200335 OF 2023 (S-RES)
WRIT PETITION NO. 201799 OF 2023 (S-RES)
WRIT PETITION NO. 201802 OF 2023 (S-DIS)
WRIT PETITION NO. 201835 OF 2023 (S-RES)
WRIT PETITION NO. 202079 OF 2023 (S-RES)
IN W.P.NO. 201859/2023
BETWEEN:
JAISUR
S/O LATE MOSES
AGED ABOUT 33 YEARS
OCCUPATION HOUSEKEEPING STAFF (SAFAIWALA)
AIRFORCE STATION, BIDAR
RESINDENT OF HOUSE NO. 7-6-203,
Digitally signed NAVADGERI CHRISTIAN COLONY,
by
NARAYANAPPA JANWADA ROAD, BIDAR
LAKSHMAMMA DISTRICT BIDAR 585403
Location: HIGH
COURT OF ...PETITIONER
KARNATAKA (BY SRI. K M GHATE,ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY
DEPARTMENT OF AIRFORCE,
NEW DELHI 110001
2. THE AIR OFFICER COMMANDING
(AIRCMDE) AIRFORCE STATION,
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WP No. 201859 of 2023
And Connected Matters
BIDAR, DISTRICT BIDAR 585403
...RESPONDENTS
(BY SRI.SUDHIR SINGH R. VIJAPUR., DSGI FOR R1 & R2)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION
AND ISSUE A WRIT CERTIORARI / DIRECTION, QUASHING THE
ORDER OF REMOVAL FROM SERVICE OF THE PETITIONER ISSUED BY
2ND RESPONDENT IN FILE NO.BDR/PF/64483/PC DATED.20.06.2023
VIDE ANNEXURE-A AND ETC.
IN W.P.NO. 200335/2023
BETWEEN:
1. SUNITHA
D/O NARSINGH
AGE ABOUT 28 YEARS,
OCC. WORKING AS AYAH/WARD SAHAYIKA AT
MAIN GUARD ROOM, AIRFORCE STATION, BIDAR
R/O H.NO. 122, CHRISTIAN COLONY, CHIDRI,
ROAD, BIDAR 585403
2. SHRI JAISUR
S/O LATE MOSES
AGE. 25 YEARS,
OCC. HOUSE KEEPING
STAFF (SAFAIWALA) AIRFORCE STATION,
BIDAR
R/O H.NO. 7-6-203,
NAVADGERI CHRISTIAN COLONY,
JANAWADA ROAD, BIDAR
DIST BIDAR 585403
3. SHRI SUKUMAR
S/O BABURAO
AGE. ABOUT 27 YEARS,
OCC. HOUSEKEEPING R/O KOLAR (B)
TQ AND DIST BIDAR 585403
4. SHRI NELSON
S/O DEVIDAS
AGE ABOUT 30 YEARS,
OCC. MULTI TASKING STAFF
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WP No. 201859 of 2023
And Connected Matters
R/O ANADOOR,
TQ AND DIST BIDAR 585403
5. SURESH KUMAR
S/O K.M KONDAYYA
AGE. 27 YEARS,
OCC. COOK, AIRFORCE STATION,
BIDAR
R/O PH8/3, SERVANT QUARTERS,
PAPNASH AREA, NO.2 OFFICER,
MESS OPPOSITE, AIR
FORCE BIDAR DIST BIDAR
...PETITIONERS
(BY SRI. K M GHATE,ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF AIRFORCE,
NEW DELHI 110001
2. THE AIR OFFICER COMMANDING
(DISCIPLINARY AUTHORITY)
(AIRCMDE) AIRFORCE STATION,
BIDAR DIST BIDAR 585403
...RESPONDENTS
(BY SRI.SUDHIR SINGH R. VIJAPUR., DSGI FOR R1 & R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT OF
CERTIORARI/DIRECTION, QUASHING THE ORDER PSSED BY
ENQUIRY OFFICER OF THE 2ND RESPONDENT AUTHORITY I FILE
NO.BDR/C.651/1/PC DATED 21.01.2023 VIDE ANNEXURE-A, TO THE
WRIT PETITION AND ETC
IN W.P.NO. 201799/2023
BETWEEN:
SHRI SUKUMAR
S/O BABURAO, AGE ABOUT 30 YEARS
OCCUPATION HOUSEKEEPING
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WP No. 201859 of 2023
And Connected Matters
RESIDENT OF KOLAR (B),
TALUK AND DISTRICT BIDAR 585403
...PETITIONER
(BY SRI. K M GHATE,ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY
DEPARTMENT OF AIRFORCE,
NEW DELHI 110001
2. THE AIR OFFICER COMMANDING
(AIRCMDE) AIRFORCE STATION,
BIDAR DISTRICT BIDAR 585403
...RESPONDENTS
(BY SRI.SUDHIR SINGH R. VIJAPUR., DSGI FOR R1 & R2)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION
AND ISSUE A WRIT CERTIORARI / DIRECTION, QUASHING THE
ORDER OF REMOVAL FROM SERVICE OF THE PETITIONER ISSUED BY
2ND RESPONDENT IN FILE NO.BDR/PF/63907/PC DATED.20.06.2023
VIDE ANNEXURE-A AND ETC.
IN W.P.NO. 201802/2023
BETWEEN:
SUNITHA
D/O NARSINGHA
AGE ABOUT 32 YEARS
OCCUPATION WORKING AS AYAY/WARD
SAHAYIKA AT MAIN GUARD ROOM, AIRFORCE STATION,
BIDAR
RESIDENT OF HOUSE NO. 122,
CHRISTIAN COLONY, CHIDRI ROAD,
BIDAR 585403
...PETITIONER
(BY SRI. K M GHATE,ADVOCATE)
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WP No. 201859 of 2023
And Connected Matters
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY
DEPARTMENT OF AIRFORCE,
NEW DELHI 110001
2. THE AIR OFFICER COMMANDING
(AIRCMDE) AIRFORCE STATION,
BIDAR, DISTRICT BIDAR 585403
...RESPONDENTS
(BY SRI.SUDHIR SINGH R. VIJAPUR., DSGI FOR R1 & R2)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION
AND ISSUE A WRIT CERTIORARI / DIRECTION, QUASHING THE
ORDER OF REMOVAL FROM SERVICE OF THE PETITIONER ISSUED BY
2ND RESPONDENT IN FILE NO.BDR/PF/64293/PC DATED.20.06.2023
VIDE ANNEXURE-A AND ETC.
IN W.P.NO. 201835/2023
BETWEEN:
SHRI NELSON
S/O DAVIDAS
AGED ABOUT 32 YEARS
OCCUPATION MULTI TASKING STAFF
RESIDENT OF ANADOOR
TALUK AND DISTRICT BIDAR 585403
...PETITIONER
(BY SRI. K M GHATE,ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY
DEPARTMENT OF AIRFORCE,
NEW DELHI 110001
THE AIR OFFICER COMMANDING
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WP No. 201859 of 2023
And Connected Matters
2. (AIRCMDE) AIRFORCE STATION,
BIDAR, DISTRICT BIDAR 585403
...RESPONDENTS
(BY SRI.SUDHIR SINGH R. VIJAPUR., DSGI FOR R1 & R2)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION
AND ISSUE A WRIT CERTIORARI / DIRECTION, QUASHING THE
ORDER OF REMOVAL FROM SERVICE OF THE PETITIONER ISSUED BY
2ND RESPONDENT IN FILE NO.BDR/PF/64482/PC DATED.20.06.2023
VIDE ANNEXURE-A AND ETC.
IN W.P.NO. 202079/2023
BETWEEN:
SRI. SURESH KUMAR
S/O K M KONDAYYA
AGE 27 YEARS OCCUPATION COOK,
AIR FORCE STATION, BIDAR
RESIDING OF PH8/3, SERVANT QUARTERS
PAPNASH AREA, NO 2 OFFICER MESS
OPPOSITE AIR FORCE
BIDAR DISTRICT: BIDAR 585401
...PETITIONER
(BY SRI. K M GHATE .,ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED THROUGH ITS
PRINCIPAL SECRETARY
DEPARTMENT OF AIR FORCE
NEW DELHI 110001
2. THE AIR OFFICER COMMANDING
(AIRCMDE) AIRFORCE STATION
BIDAR DISTRICT: BIDAR 585403
...RESPONDENTS
(BY SRI. SUDHIR SINGH.R. VIJAYAPUR., DSGI)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
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WP No. 201859 of 2023
And Connected Matters
CERTIORARI/DIRECTION, QUASHING THE ORDER OF REMOVAL
FROM SERVICE OF THE PETITIONER ISSUED BY 2ND RESPONDENT
IN FILE NO.BDR/PF/46254/PC DATED:20.06.2023 VIDE ANNEXURE-A
AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Though W.P. No.202079/2023 is listed for orders, with the consent of learned counsel for the parties, same is clubbed with W.P.No.201859/2023 and connected matters since common issue is involved and disposed of by this order.
2. The petitioner in W.P.No.201859/2023 is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari/direction, quashing the order of removal from service of the petitioner issued by 2nd respondent in File No.BDR/PF/64483/PC dated: 20.06.2023 vide Annexure-A ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, directing the respondent authorities to pay the cost of the present Writ Petition to the petitioner to meet the ends of justice and equity.-8-
NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters
3. The petitioners in W.P.No.200335/2023 are before this Court seeking for the following reliefs:
i. Issue a writ of certiorari/direction, quashing the order passed by enquiry officer of the 2nd respondent authority in File No.BDR/C.651/1/PC dated 21.01.2023 vide Annexure-A, to the writ petition.
ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, if this Hon'ble Court comes to the conclusion that the action of respondent authorities is against the procedure, the constitutional mandate, under such circumstances, the cost of the present Writ Petition as against the present petitioners to meet the ends of justice and equity.
4. The petitioner in W.P.No.201799/2023 is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari/direction, quashing the order of removal from service of the petitioner issued by 2nd respondent in File No.BDR/PF/63907/PC dated: 20.06.2023 vide Annexure-A ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, directing the respondent authorities to pay the cost of the present Writ Petition to the petitioner to meet the ends of justice and equity.
5. The petitioner in W.P.No.201802/2023 is before this Court seeking for the following reliefs: -9-
NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters i. Issue a writ of certiorari/direction, quashing the order of removal from service of the petitioner issued by 2nd respondent in File No.BDR/PF/64293/PC dated: 20.06.2023 vide Annexure-A ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, directing the respondent authorities to pay the cost of the present Writ Petition to the petitioner to meet the ends of justice and equity.
6. The petitioner in W.P.No.201835/2023 is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari/direction, quashing the order of removal from service of the petitioner issued by 2nd respondent in File No.BDR/PF/64482/PC dated: 20.06.2023 vide Annexure-A ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, directing the respondent authorities to pay the cost of the present Writ Petition to the petitioner to meet the ends of justice and equity.
7. The petitioner in W.P.No.202079/2023 is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari/direction, quashing the order of removal from service of the petitioner issued by 2nd respondent in File No.BDR/PF/46254/PC dated:20.06.2023 vide Annexure-A. ii. Issue any other order/direction, in view of the facts and circumstances of the case on hand, directing the respondent authorities to pay the cost of the present Writ Petition to the petitioner to meet the ends of justice and equity.
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8. The petitioners had initially appointed A.K.Srivatsava as defence Assistant. On 19.01.2023 a question arose as to whether a law qualified Ex-serviceman can be allowed to defend the case as Defence Assistant or not, which was answered on 21.01.2023 in the negative by relying upon Rule, 1965 14(8)(a) and (b) of the CCA Rules ['Rules of 1965' for short] and thus, the petitioner was informed to engage a defence Assistant who is a serving Central Government employee.
9. It is at this stage the petitioner approached this Court in W.P. No.200335/2023 contending that their rights for defence is adversely affected and challenged the order dated 21.01.2023 passed by respondent No.2 and this Court vide order dated 27.01.2023 stayed the said order dated 21.01.2023, but it was however made clear that order of stay does not come in the way of respondent No.2
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters proceeding with the disciplinary enquiry in case if they wish to proceed with the enquiry.
10. In view of the said liberty granted, the respondents proceeded with the enquiry in the absence of a defence Assistant since according to the respondent, defence Assistant appointed by the petitioners could not appear in the disciplinary proceedings in view of the aforesaid 14(8)(b) and (b) of the Rules of 1965.
11. The enquiry being completed and punishment being ordered, the petitioners are before this Court by way of above petitions seeking for the aforesaid reliefs.
12. Sri.K.M.Ghate, learned counsel for the petitioners would submit that, 12.1. Firstly, the embargo under Rule 14 is only as regards legal practitioner and not as regards law qualified person and as such, the defence Assistant engaged by the petitioners does not suffer any embargo under Rule 14 and respondents ought to have permitted him to continue to defend the petitioners.
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters 12.2. Secondly, he submits that the once the order dated 21.01.2023 had been stayed by this court, if at all the respondents wanted to proceed with the enquiry, the same ought to have been done with the said defence Assistant, if not the enquiry ought not have gone ahead.
12.3. On these grounds, he submits that the above petitions be allowed and reliefs granted.
13. Sri.Sudhir Singh R.Vijapur, learned Deputy Solicitor General of India appearing for respondents would submit that:
13.1. In terms of Rule 14 of Rules of 1965 there is an embargo on a legally qualified person from defending the delinquent employees.
13.2. That apart, he submits that an Ex-serviceman is not a Central government employee within the meaning of Rule 14, and as such, the Ex-
serviceman could not defend the petitioners in the disciplinary proceedings.
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters 13.3. His submission is that it is because the defence Assistant was not an employee of Central government, he was not permitted from defending the petitioners and it is not because the defence Assistant was legally qualified. On these grounds he submits that this court had permitted the continuance of the enquiry, the petitioners ought to have appointed a serving or retired central government employee to defend them. They having not chosen to do so, cannot now raise the said ground before this court.
13.4. That Apart, he submits the issue relates to fraudulent certificates produced by the petitioners while seeking for employment issued by the Board of Higher Education, New Delhi and this going to the root of the matter, the punishment which has been imposed is proper and correct.
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters 13.5. On these grounds he submits that the above petitions ought to be dismissed.
14. Heard Sri. K.M.Ghate, learned counsel for the petitioners and Sri. Sri.Sudhir Singh R.Vijapur, learned Deputy Solicitor General of India for the respondents. Perused papers.
15. At the outset this court in the present matters is not concerned with the punishment imposed or the delinquency of the petitioners. This Court for now is concerned only with how the enquiry proceedings have proceeded and as such, this Court refrains from dealing with any aspects relating to the merits of the matter.
16. In terms of para 2 of the letter dated 21.01.2023, it is clear that respondent No.2 had informed the petitioners that they are required to engage a serving/retired central government employee as a defence Assistant. In the very same para, it is stated that the petitioners having engaged an Ex- serviceman/law qualified person as defence
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters Assistant, the same is not permissible in the policy. Though the respondents may be right in contending that engaging an Ex-serviceman is not permissible under Rule 14 since he is not a central government employee, but the manner in which letter dt. 21.01.2023 is worded does not convey the meaning that is now sought to be contended by Sri.Sudhir Singh R.Vijapur before this Court, inasmuch as what is stated is that an ex-serviceman/law qualified personnel cannot be engaged as defence Assistant. Thus, it reads as if a Ex-serviceman who is law qualified person cannot be engaged as defence Assistant.
17. It does not read that a central government employee has to be engaged and that an ex-serviceman is not a central government employee. It was required that in the order dated 21.01.2023 or before passing the said order, the petitioners who are engaged as D-Group employees as Aaya, cook, etc ought to have been conveyed the exact objection that the
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters respondents had viz., the defence Assistant was not a central government employee, inasmuch as the defence Assistant engaged being a Ex-serviceman was not a central government employee.
18. This aspect not having been conveyed has resulted in the entire litigation. This court vide order dated 21.07.2023 having stayed the order dated 21.01.2023 would amount to the Defence Assistant appointed by the petitioners continuing to be the Defence Assistant. Thus, in the event of respondents wanting to proceed with the enquiry, ought have done so with the Defence Assistant already appointed by the petitioners and not dehors or in absence of such Defence Assistant. The liberty which had been granted by this Court to the respondents would come with a rider of the Defence Assistant already appointed to continue to discharge his role as defence Assistant. It was not open for the respondents to dissect the order of this Court to continue enquiry without Defence Assistant when the
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters removal of the Defence Assistant has been stayed by this Court.
19. In that view of the matter, I am of the considered opinion that the enquiry which has been held and punishment which has been imposed are required to be quashed and the matters remitted for fresh enquiry albeit by directing the petitioners to now appoint a serving/retired central government employee who may or may not be law qualified to represent them before the Enquiry Officer since there is no particular objection on part of respondent No.2 as regards the legal qualification of the Defence Assistant but the objection is only as regards Defence Assistant not being a serving or retired central government employee.
20. As such, I pass the following:
ORDER i. The Writ Petition No.200335/2023 is partly allowed and rest of the above writ petitions are allowed.
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters ii. The impugned punishment orders are hereby quashed in each of the above writ petitions.
iii. The petitioners are permitted to appoint a serving or retired central government employee with or without law qualification as their Defence Assistant.
iv. The matters are remitted to respondent No.2 to conduct the enquiry from the stage that it was on
21.01.2023 and proceed thereon.
v. Considering that the petitioners are not English literate, the respondents and Enquiry officer to make known the enquiry proceeding in the language known to the petitioners. vi. Since there are several litigations respondent No.2 shall appoint a different Enquiry Officer and Presenting Officer.
vii. As regards the certificate issued by Board of Higher Education, New Delhi, this Court has come across several certificates which have been issued by the said Board. Like in the present matter those certificated are contended to be unauthorized and that the said Board is not
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NC: 2023:KHC-K:5855 WP No. 201859 of 2023 And Connected Matters recognized. It is for the Central government to take necessary action regarding the said Board which has resulted in several litigations apart from the present litigations. If such a board is not authorized or recognized, it has no authority to issue such certificates.
viii. The Deputy Solicitor General of India is directed to inform the concerned officers to initiate action against the Board of Higher Education, New Delhi.
Sd/-
JUDGE LN List No.: 1 Sl No.: 20