Karnataka High Court
Sri. K.M. Malagali S/O. Mayappa ... vs The State Of Karnataka on 25 November, 2013
Bench: Jawad Rahim, B.Manohar
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER 2013
PRESENT
HON' BLE DR. JUSTICE JAWAD RAHIM
AND
HON' BLE MR. JUSTICE B.MANOHAR
W.P.NO.64888/2012(S-KAT)
BETWEEN:
SRI.K.M.MALAGALI, S/O MAYAPPA MALAGALI,
AGED ABOUT 61 YEARS,
RETIRED DEPUTY SUPERINTENDENT OF
POLICE, RESIDING OPP TO GOVERNMENT HOSPITAL,
YARAGATTI, SAVADATTI TALUK,
BELGAUM DISTRICT.
.....PETITIONER
(BY SHRI.B.S.KAMTE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPTD BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT, HOME DEPARTMENT
(POLICE SERVICES), VIDHANA SOUDHA,
BANGALORE - 590001.
2. THE DIRECTOR GENERAL &
INSPECTOR GENERAL OF POLICE IN
KARNATAKA, NRUPATHUNGA ROAD,
BANGALORE - 590001.
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3. THE ACCOUNTANT GENERAL
IN KARNATAKA (A & E).
PARK HOUSE, BANGALORE - 590001.
....RESPONDENTS.
(BY SMT. VIDYAVATHI, AGA)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 12.6.2012 PASSED BY THE
KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION
NO.4904/2011 PRODUCED AT ANNEXURE-E AND THE G.O.
NO.O.E.433.PO.SI PA. 2008 BANGALORE, DATED 6.7.2011
ISSUED BY THE 1ST RESPONDENT FVIDE ANNEXURE -C
ETC.
THIS WRIT PETITION COMING ON FOR
HEARING THIS DAY, DR. JAWAD RAHIM J, MADE THE
FOLLOWING:
ORDER
In this writ action under Articles 226 and 227 of the Constitution of India, the petitioner has sought quashing of the order passed by the Karnataka Administrative Tribunal, rejecting his application against Government Order denying him pensionary and other benefits vide Annexures A1 to A3 to the said application.
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2. Heard learned counsel Sri. B.S. Kamte, for the petitioner and Smt. Vidyavathi, learned Addl. Government Advocate. Perused records in supplementation thereto which reveals:
a) K.M.Malagali, the petitioner was a permanent employee of the State Government and appointed to the full time post of Sub-Inspector of Police. He entered service on 4.11.1977 and served Police Department in the capacity of Sub Inspector of Police and received periodical promotions and reached the rank of the Deputy Superintendent of Police. He retired from service on 30.11.2010 on attaining superannuation.
b) During tenure of his service, on the basis of C.R.E Cell report, a querimony was lodged against him before the Saundatti Police Station arraigning for offences punishable under Sections 420, 465, 469, 471, 474 of IPC and Section 3(1) (IX) of SC & ST (Prevention of Atrocities) Act, 1989, on accusation that he had secured employment producing fabricated caste certificate claiming he belonged 4 to Gonda community, which provided the benefit of reservation in the recruitment.
c) It is alleged having procured employment based on such fraudulent document, he served in the capacity of Sub-inspector of Police and thereby indulged in the acts which come within the mischief of various penal provisions of the IPC, as referred to above.
d) The FIR culminated in filing of the final report under Section 173 of the Cr.P.C., and he was put to trial in S.C.No.117/2008 before the designated Court. However, he questioned not only the initiation of the prosecution, but the final report through the Criminal Petition No.7157/2010.
e) This Court noticing the fact that Government in its wisdom had issued an order on 11.3.2002 in No. SWD/713/SAD/93 protecting such of those employees who were accused of having secured employment on false caste certificate in the reserved category to be protected 5 from the prosecution, subject to conditions stipulated therein. This Court considering those aspects quashed the proceedings by order dated 22.07.2010. Consequently, the criminal proceedings against him in S.C.No.117/2008 was quashed and thereafter, he retired on attaining superannuation on 30.11.2010. Upon retirement, he was entitled to pension and other pecuniary benefits.
f) While processing his pension papers post retirement, the Government, taking note of allegations against him that he had secured appointment on a fabricated caste certificate, passed the impugned order, Annexure 'C' on 11.07.2011 withdrawing pensionary benefits as also pecuniary benefits, to which he would otherwise be entitled to. The order reads thus:
"¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹zÀAvÉ ²æà PÉ.JA. ªÀÄ®UÀ°, ¤ªÀÈvÀÛ rªÉÊ.J¸ï.¦. gÀªÀjUÉ 1976£Éà ¸Á°£À°è ¤ÃrzÀÝ UÉÆAqÁ eÁwAiÀÄ ¸ÀļÀÄî eÁw ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ jmï Cfð ¸ÀASÉå 7157/2010 ¢£ÁAPÀ 22.07.2010 gÀ°è£À DzÉñÀzÀAvÉ ªÀeÁ ªÀiÁrgÀĪÀÅzÀjAzÀ, 6 EªÀgÀÄ ¸ÀPÁðgÀzÀ ºÀÄzÉÝUÉ £ÉêÀÄPÀªÁUÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è PÀÄgÀħ eÁwUÉ ¸ÉÃjzÀªÀgÁVzÀÝgÀÆ, UÉÆAqÁ eÁwUÉ ¸ÉÃjgÀĪÀÅzÁV ¸ÀļÀÄî eÁw ¥ÀæªÀiÁt ¥ÀvÀæ ¸À°è¹, «ÄøÀ¯Áw CrAiÀÄ°è ¸ÀPÁðj ºÀÄzÉÝUÉ £ÉêÀÄPÀUÉÆArgÀĪÀ DgÉÆÃ¥À ¸Á©ÃvÁVzÀÄÝ PÉ.¹.J¸ï.Dgï. ¤AiÀĪÀÄ 214(1) gÀ£ÀéAiÀÄ C¢üPÁjUÀ¼À ¤ªÀÈwÛ ¸Ë®¨sÀåUÀ¼À£ÀÄß ¥ÀÆtðªÁV ±Á±ÀévÀªÁV vÀqÉ»rAiÀÄ®Ä DzÉò¹zÉ.
g) The petitioner, being undoubtedly aggrieved by the order of the Government Annexure 'C' depriving him of pensionary benefits, filed an application in Application No.4904/2011 before the Karnataka Administrative Tribunal to quash the Government Order Annexure 'C' and to grant him pensionary and pecuniary benefits.
h) The State entered serious contest resisting his claim on more than one grounds. Amongst which, the core contention of the State is that the petitioner having secured his employment on false representation that he belongs to scheduled caste and tribe and thus, obtained appointment for the post reserved for such category of persons, the petitioner was not entitled to any pecuniary 7 benefits including the emoluments and the pensionary benefits. It placed reliance on the decision of the Apex Court in the case of R.VISHWANATH PILLAI Vs. STATE OF KERALA AND OTHERS reported in 2004 (2) SCC 105.
Besides, the State also justified denial of pensionary and other benefits invoking statutory power embodied in Rule 214 of KCSRs.
i) Learned Member of the Karnataka Administrative Tribunal found favour with the grounds urged by the State and consequently, negated the petitioner's claim and dismissed his application by order dated 12.06.2012, which is impugned in this petition.
j) The learned counsel Sri. Kamte was at his best drawing our attention to certain facts, which are not in dispute. Admittedly, the petitioner, from the date of appointment till attaining superannuation, has served the State Government in the capacity of Sub Inspector of Police and scaled up to the rank of Deputy Superintendent of Police. There is no blemish on the service nor was there 8 any action taken or contemplated by the State Government against him during the relevant period. Of course on the basis of C.R.E. Cell report, criminal prosecution were initiated against him in S.C.No.117/2008, which was quashed by this Court as evidenced from the order dated 22.7.2010 in Criminal Petition No.7157/2010. He would also rely on the Government Order dated 11th March 2002, in No. SWD 713 SAD 93, by which the Government expressed its mind in paragraph - 4 as under:
" The appointments already made in respect of the persons belonging to pariwara, Talwar, Maaleru, Kuruba, Besta and Koli communities who have obtained employment under ST quota (as Nayaka, Maaleru, Kadu Kuruba, Jenu Kuruba, Gond, Rajgond, Kolidhor and Tokrikoli) shall be treated as appointments under GM category w.e.f the date of this order. They shall not be eligible for any promotion or any other benefits as STs in future. However, they could claim benefits under the respective category of Backward 9 Classes to which they belong as per the existing Government Order "
3. Sri. Kamte would submit that not only under the Government Order referred to above, but also in view of quashing of the criminal proceedings against him, the petitioner has to be treated as having successfully completed his tenure of his service to be entitled to pension and other pensionary benefits as a matter of right. He submits by the impugned order, the State Government has deprived him of such benefit and hence the impugned order passed by the Karnataka Appellate Tribunal is unsustainable.
4. In negation to these grounds, the learned Government Advocate would submit the case on hand is covered by the judgment of the Apex Court in the case of R.VISHWANATHA PILLAI -VS- STATE OF KERALA AND OTHERS (2004) 2 Supreme Court Cases 105 and refers to the observation of the Supreme Court to the effect that a 10 person who obtains appointment by fraud is not entitled either to salary or any other service benefits.
5. Our attention is drawn to the observations of the Supreme Court, which reads thus:
" The right to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non- est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate."
She then relied on the further observation of the Supreme Court, which reads as follows:
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" A person who entered the service by
producing a false caste certificate and
obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud".
6. Learned Government Advocate then relies on the provision of Rule 214 of the KCSRs, which reads thus: 12
" 214 (1)(a) withholding or withdrawing pension for misconduct or negligence - The Government reserve to themselves the right of either withholding or withdrawing a pension or part thereof, either 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. "
She submits, under this Rule the Government has unbridled power to withhold in its entirety or part of pension or other pecuniary benefits and that power has been exercised by the Government to issue the impugned order and is thus sustainable.
7. All contentions so urged by the petitioner's counsel and the State have received our full consideration. 13
8. As referred to in the preamble to this order, it is not in dispute the petitioner was selected and appointed to the post of Sub Inspector of Police on 4.11.1977. He was superannuated on 30.11.2010. The State does not dispute at no point of time during the tenure of service or any part thereof. State had initiated any disciplinary enquiry against him either for dereliction of duty, misconduct or for obtaining employment on a false certificate. Barring the action initiated based on C.R.E. Cell report, any registration of the criminal case for offence punishable under Sections 420, 465, 469, 471, 474 of IPC and Section 3(1) (IX) of SC & ST (Prevention of Atrocities) Act, 1989, in S.C. No.117/2008, no action has been taken. It is also not in dispute that the criminal proceedings in S.C. No.117/2008 was quashed by this Court in Criminal Petition No.7157/2010 and was given a finality to the action on the part of the State. Neither before nor subsequent to quashing of the proceedings by this court, the State has initiated any other parallel or collateral proceedings against him. As on today, no material is 14 placed before us to show that any action was initiated against the petitioner or for that matter a show cause notice was issued to him for the alleged act of securing employment on fabricated false certificate. We are therefore left with the only material on record, which we have referred to above.
9. In this fact situation, the question that arose for consideration is whether Rule 214 of KCSRs could be pressed into service by the State to withhold pension and other pecuniary benefits to the petitioner. The answer has to be obviously in the negative, as could be seen from the phraseology of Rule 214 of KCSRs. Rule 214 is explicit in its expression that the general power is retained by the State on its employees for withholding pension and other pecuniary benefits, but it is subject to a condition that the employee against whom such action is contemplated is found guilty by any court or disciplinary enquiry for misconduct. Such a power is not unfretted. It is subject to specific condition as stipulated in the Rule itself. The 15 condition stipulated is clear in its terminology. The power to withhold pension and other pecuniary benefits can be exercised by State only if, in any departmental or judicial proceedings, the employee (pensioner) is found guilty of grave misconduct or negligence during the period of his service including the service under the foreign employment and service rendered upon re-employment after retirement. Therefore, the condition precedent is, there must be proof of employee having been found guilty of grave misconduct either in departmental enquiry or judicial proceedings.
10. In the instant case, the State does not dispute that it had not initiated any departmental enquiry against him for the alleged act of obtaining appointment on false and fabricated certificate claiming to belong to member of scheduled caste and tribe, to avail the benefits of reservation. Much less, no show-cause notice had been issued to him till his superannuation. The State, for unexplained reasons, had not initiated any disciplinary 16 enquiry against him, even though, the State contends the C.R.E. Cell had found petitioner had indulged in securing employment on false and misrepresentation concocting caste certificate.
11. At this juncture, we also notice the Government Order No.SWD 713 SAD 93, dated 11.03.2002, by which the Government had protected the employees against whom similar allegations were made and against whom criminal prosecution were either initiated or contemplated. It must also be noticed while passing the said order, the Government had taken note of certain fact situations including initiation of prosecution against such Government officials. The Government has incorporated in the preamble to the order the reasons justifying issuance of such order to protect the employees similarly placed like the petitioner. The object behind issuing the Government Order could be found in the said order, which reads thus:
"It has been brought to the notice of the Government that; due to the orders read at (1) 17 and (2) above Public Sector Undertakings/Banks/Corporations/Departments are facing difficulties in taking action against employees whose certificates have been proved to be false through verification by the Directorate of Civil Rights Enforcement. Further it has been stated in the letter dated 17/12/1993 read at (5) above that the Supreme Court/High Court have also granted relief to petitioners belonging to these communities on the basis of the said order. Further, the High Court have also directed (in W.P.No.30253/1996) the Tahasildar to issue ST certificate to the petitioners on the ground that the brother holds a certificate as belonging to Kadu Kuruba Community. The Court has also directed the Tahasildar to pay costs to the petitioner."
12. Thus, it is clear that the Government wanted to remove difficulties in administration of Banks, Public Sector Undertakings and the Government departments by deferring action against the persons having secured employment on caste certificate. Consequently passed the following order:
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" The appointments already made in respect of the persons belonging to pariwara, Talwar, Maaleru, Kuruba, Besta and Koli communities who have obtained employment under ST quota (as Nayaka, Maaleru, Kadu Kuruba, Jenu Kuruba, Gond, Rajgond, Kolidhor and Tokrikoli) shall be treated as appointments under GM category w.e.f the date of this order. They shall not be eligible for any promotion or any other benefits as STs in future. However, they could claim benefits under the respective category of Backward Classes to which they belong as per the existing Government Order "
13. It must be noticed that this order was passed in the year 2002 and based on this order, similarly placed individuals, who were actually subjected to disciplinary enquiry have also been given the benefit. It is not disputed before us that penal action against such of those persons was not initiated and by virtue of paragraph -4, their services were saved and they were given the benefit treating them under General Merit category, of course not 19 entitled to promotion prospects grantable to the persons belonging to SC and ST. It therefore stands to reason that the Government found retrenchment or terminating those individuals from the service was not desirable. Consequently in law their services/appointment had to be held as valid.
14. Learned Government Advocate, of course did endeavor to contend before us the benefit of the Government cannot reach the petitioner in view of the judgment of the Supreme Court referred to above. This ground has to be discounted because of different fact situation, which was considered by the Apex Court in the said judgment.
15. It is material to note, petitioner before the Hon'ble Supreme Court was delinquent official who was subjected to disciplinary enquiry by the Government and found guilty of the charges leveled resulting in logical conclusion of imposing punishment of dismissal from service. Consequently his request for salary and 20 pensionary benefit was denied by the State Government which action the Hon'ble Supreme Court, for the reasons assigned in the judgment, upheld. In that fact situation, the Hon'ble Apex Court negated all contentions urged by the delinquent public servant regarding denial of opportunity and alleged violation of the right guaranteed under Article 311 of the Constitution of India.
16. In the instant case, the fact situation is totally different. As referred to in paragraphs supra, from the date of joining service till superannuation, the petitioner has not been subjected to any disciplinary enquiry, nor there is any notice of show-cause or any memo issued to him for any act of misconduct. We have already adverted to the fact that criminal proceedings initiated against him by the State resulted in quashing of proceedings by this court and thereafter the State took no action either to assail the order quashing the proceedings or to take any disciplinary action. Therefore on facts the decision of the 21 Hon'ble Supreme Court does not accrue any benefit to the State.
17. Since the petitioner has been superannuated without any indictment or proof of misconduct or guilty of any offence punishable under law, his appointment and subsequent service in the Government as a public servant has to be held to be lawful, entitling him to salary, pension and other pecuniary benefits attached to the office he held. Deprival of benefit without due course of law by the government can hardly be sustained. Therefore, we are satisfied the petitioner shall succeed in his legal pursuit.
18. We, therefore, set aside the Government Order No.OE 433 Po.Si.Pa. 2008, Bangalore, dated 06.07.2011 withholding pensionary and other pecuniary benefits to the petitioner is unsustainable. Consequently, we set aside the order passed by the Karnataka Administrative Tribunal impugned in this writ petition in Application No.4904/2011 dated 12.06.2012 vide Annexure 'E'.
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19. Consequently, we hold the petitioner to be entitled to post retirement pensionary and pecuniary benefits and as the pecuniary benefits has been unjustifiably withheld by the Government against its own order referred to above, we direct the State Government to pay interest on the amount payable at 8% per annum.
20. Besides, taking into consideration the nature of service rendered by the petitioner and the period of deprival of pensionary benefits to him, which we hold as unjustified, we direct the State Government to pay the cost of this proceedings to him, fixed in a sum of Rs.15,000/- (Rupees fifteen thousand only).
The writ Petition is accordingly allowed. Rule is made absolute.
Sd/-
JUDGE Sd/-
JUDGE Msu