Karnataka High Court
Ganesha K vs Department Of Telecom on 11 July, 2008
Bench: Deepak Verma, B. Sreenivase Gowda
% *1:3EPA1:e'mEN*r OF TELECOM
11¢ rm man 001131' or xnmmmxa, AT %
DATED THIS THE 11*" name'. of A x
mm noxrnm rm. DEWAK
THE Romans aowm.
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BETWEEN: _ %;_
GANESHAK...
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ocC;sDE'vnMAm~IUGI12:'{o§«*:*;:f1c:ATINc})
{TUMKUR WLECOM Disflig "
WITH PRESENT POSTAL ADDRESSAS;
C/O SHFJARAM MANDIRA Mmflmm SWAMY
_____
momarm, A
TUMEEUK D'l'Si'«_,,, * PETYFIONER
S;-13> A"E§p1;i{A RNI, ADVOCATE ) ... "
- _ ,_...1.-..
.BYi1'rs DiREC"l'OR OF GENERAL
é (VEGILANCE II SECTION)
% Twzasr BLOCK, No.1, wave 2
A T GROUND moon, R K PURAM,
NEW DELHI no 066.
'F5
2 BS A
BYNnI's CHIARMAN AND MANAGING DIRECTOR, _
NO,2o, SANCHAR BHAVAN, A
ASHOKA ROAD,
NEW DELHI no 00}
3 CHIEF GENERAL MANAGER A A = %
KARNATAKA TELECOMV.CI}_2CLE,.v_ ' A
No.1 SWAM VIVEKANAN'Q_A'~ROAD,--. _
ULSOOR BANGALORE 8 '
4 GENERAL MANAGER"TELEiCONI-- A =
TUMKUR TELECOM OIs'r;, * A
BSNL BHAVAN, ASHGKA ROAD, ;
TUMKUR 5?2._1_01 L --._"'.»....RESPONDENFS
{By Sri V 1=1fOLLAAR )
THIS AW}; FELEDUNDER ARTICLES 226 85 227 OF
THE ()ONFSTI'I'IITl'I'#*£)';*~J_» OF"'~H§'iZ)lA' PRAYING TO QUASH VIDE
ANX. A. 1:>'1*.;2 14.1.2Q0'4,_'~PASSED IN 0.A.NO.698/2003 BY THE
HONBLE OAfr,~ BANGALOPE BENCH, BANGALORE AND
FURTHER BE ;P!,EA.SE:D'*TO" ALLOW THE O.A. FILED BY THE
PE'r1'I'I0:NER. STAY OF' FURTHER PROCEEDINGS
ORDERBEARING NO. VIG/KG/SDE/MGI/9
VFETITIGNEFV?
é _ rams WRI'I' PEHTION HAVING BEEN HEARD AND
REBERVEI) ROR ORDER, THIS DAY Ag. G)', PRONOUNCED
ROLLOWING: mm
ORQER
Petitioner feeling aggrieved by order dated
passed by Central Administrative K " 'V
in his O.A. No.698/2003, is before
under Articles 226 & 227 of ~Im3ia, s s
challenging it on variety of is '
Petitioner_V;s3 " Telecom Oficer at
Circle Teleeoife Respondents herein
%s:ss%;n%% against him under the previsions._%:ef Canes} Services (Classification, Control ~1965 (hereinafter shall be referred to as a charge sheet, followed by Out of four charges, charges Nos. 2 proved but charges Noel and 4 stood proved L": To know tkm gravity of charges, articles of " ' reproduced herein below:
"Art;icle- 1:
That the said Shri K.Gancsh, Jro, as such in CTSC, Bangalore, during~ 1987-88 has caused issue of::'99 I%>ai.v;s'¥ j sheets of Q~--caP~P3Per to Bangalore, without ax1y* a: to --~1:h§e Article-_9,: :
That during_'the and while sad Shri K.Ganesh'i,V of 103 rms of DFC v8'pt:imVf':ir,iI1« :ifawduxfjof Suman Printers, Bangalom, a._: print. order.
T118} i;he""'aforesaid period and while 8 fin the aforesaid omce, said Sri Lcaused issue of 8 reams of double démy favour of M/s. Jupitor Printers, as mplacagficnt of damaged paper even thong: there ' .,j8_*§§aS«--;2o damage to the paper earlier dwpabched.
T3 Article-4: .A j__ That dur;n' g the aromsaid period and - L functioning in the above said...
K.Gancsh, JTO has caused issiagc eff i:
of 100 reams am 250 shgets o£1)Fc is/g}. % excess paper, Shri mtpertoc1'sDto5'°'?3F5'; k conferred on him under Rule 12 of Rules ordered tllatfpay of petitioner be reduced by 8 stages fer a with effect from 01.04.1997. It wasrmithai 2 shall not earn increments of l J reduction and on expixy of l the effect of postponing of Against the said order, he appeal.
The Appellate the matter confirmed H by the Disciplinary Aunharityoxa to the pctitioner to file Original 19 of the Administrative '1'ribunal_'e Aet"; the Tribunal.
after considering the mattw and after I ll appfeelating Elarguments advanced by the learned counsel ~ :jvVf(_')'1'. the was of the opinion that there were no grounds '-to'l:i;1tefjf£31*e with orders passed by Disciphnmy Authority and l ':'~l:'-*é3'r_»V_£§;ppellate Authority and proceeded to dismiss the cum e --eeplication. Agam 31: this order of the Tribunal, this petition Wbetf1er___me respondents oould be restrained fiom has been filed before us under Articles 226 & g€§f_'_7.".:>_(}fVV the Constitution of India. VA _ ,
5. Learned counsel for pei:itionetjVeo:1teI'a::i:esijj'_thz:3:v'l3e already suflered punishment from It was therefore contended the; fox: em ts" gmigggr. L' allegations, further 'oould have beam taken. The Tribunal of law to be answered by it, (1) 1. to L action inoated/taken Luziciez-otto:eo12u§=;eee 19;-or Central cm; Smvioes ;c1ass:fice::;o;:,e and Appeal) Rules, 1965 is an V departme:ma.l prooeedmgs for which is prescribed under Rule 14/ 16 of " said or alternate to it?
power under Rule 19 of the (3% (CCA) on the plea that mood on same incident the dettxzquent ofiiclal had already szfifmed .. A' ' departmental action earlier in time and as such later conviction and sentenced recorded in the criminal proceedings would not ciothe the W 1947.
autho1'ifiesfi*ominit.iati11gfurtl}eracma zmderthe aforesaid Rule?
Since the allegation against the petitioner Wm preparing of false summary sheets and bundles to printers, based on f e respondents to C.B.I. Afier it registered a cum' ma!' 1:';-4.g_;*L.~L;VV..}Ag"A:"}e wnsfiracy and misappropriation of :1» " and another V' thereafter filed a mse in for oemws puxlishabieeifiéisfi,-' 477-A and 420 efthc 1.1>.c.
read with ention of Corruption Ad,
5.ke- herein above, on the afmesaid cmxm : Vv above simultaneously memo was alrfiy e [issues to under Rule :4 of the Rules. Amer disciplinary was Exnposed with punishment which he T3
7. In the meanwhile, the Special Judge, judgment and order of conviction dated 08.
the petitioner and sentenced "to '_ T. imprisonment for a period of cfic__ 1 VV Rs. 1,ooo/--. Copy of me smooojadgmmg respondents on I3.08.2i3€)_3. was issued to the petitionco explain why disciplinary material information the court of law. He submitted therein that he was 'a the same will be informed by 0.3.1. and menu m a' h'ce or motive in w1thh' oklmg' the H 'Viiiiifaediatcly theneaftcr petitioner was as Junior Tdocom Ofioczr, Mazlhugm ' as A he waa%pmm¢-M on local omciaz basis as 3.13.0. with effect o ;2.o5,i2oo3.
i After going through the judgment pronounced by 'V V court against the petitioner, respondalt No.4 issued 1 filing criminal appeal in this High Court. The been dismissed and order of conviction been upheld. Thereafter petitione1f'fis§ to Supreme Court by fiiing Specml. _ ' same was also dismissed, of convictier: and sentence
12. Learned contended before us that fie finished under Rule 14/ 16 ofvsthe I:;!IheI--'e shsgglutcly no justification on the part invoked Rule 19 of the Rules and to « from service. More so, 1}s.dVv_alneAAei:i3r._..:..r*r1de1'go11e both punishments awarded '£0 and by criminal court.
3,3. far respondenm submitted bcicre us i2r1_ any' petitioner has not taken the plea of double even though the doctrine thereof mum not be AT ujisppiieable to his case. It was also wntended thm Rule 19 indicates that it applbs to a special procedure in "fix 12 certain cases and the said Rule 19 is 14 and :5 and same can still be imrokod dc-hpyfi:
Rules. It was thcmfore coxxtendefi imroked aficr lfis conviction by .A lflmufisisflmoonstiumoaalméiigjatg. V V' n V
14. Our attention the cxnxmtutitxmal provisions of dow not create in at the plcasme M Px'e§dcn£.~--_ L aim puma: into savior: to contend said Amok: would show that by was fully kegal, competent and contended k1 the facts and circi case, petition aemm to be dismm V A ' A. , 4' Cer@ s dates ofevmts aocurritg in this writ pwflon,' it came to be filed need some mention. It had VT up for hearing for tlw fit-st time on 03.02.2004. On the date, it was (1% to imuc Rule and following orda of 7:5 13 staycametobepamd, afisroonsideringtimematteratlcngfll by Division Bench and said:- 'in our view, the ends ofjusdee will he met, ifanorder is made only (1% not uféismiss the petitioner fiom service an mm orders".
16. On 14.06.2004, affcr it. Wm directed that petition imeirhg arm six weeks. Then wfih a payer for vacating stay=i'. men in me mm; of the decision kl AIR 2003 so 1253 ( STATE amen). This LA. came up for. berm the mvmon Bmch an tjiesaia date, by a detailed and elaborate to the ooncluaon that prime. facic that i in boththe oonten&m1aramd by karma respondents. 1% interim orders passed on %of3§2.2%%rao4 and 14.06.2004 were vacated. However, R was clear that any final order pamd pmsuant to Ammxure-735
C, memo dated 28.04.2004,. will be sulzject decision in writ petition.
17. On account of this order, it woo counsel for petitioner that it is not4.obliga1,o"x*3r * to challenge the order dated [_ 'm dependent on the final oufooirnc
18. Almost had cropped um for considemticaz; cam in the matter of STATE : !§k_§'.I.'WAI93'I'V§INGH reported in AIR 2003 so supmme court while considering of Rule 7(2)(b) of Haryalm and Appeal) Rules, 1937 am also wioaéo o ztotg of double jeopardy. To appmcme, fowhetlm' 121% 11c 7(2)(b) is in para. xnatmma' to Russ 19 of A ' " i1;_ is neowsaxy to reproduce Rule 7(2)(b), of the V which needs as under:
"if ..5Sub-rule 2(1)) ofRule '7 states that the provisions of the foregoing sub-rule shall not apply where may major 'B' 15 penaltyispmposedtobemposed uponapmsontm the mound of conduct: which has led to hisverjfxgiction onacriminalcase.' J To compare the ambit of Rule 19 vefeRa1lAes,'._" ;
reproduced herein below: _ :
Notwithstanding 14 to Rule 18 --
(i) » on a -on the" of wnduct
which e#jftoeei:a3§,,(,,gvic::ion on a crmninal
(ii). _ Authority is satisfied by it in writing that '1 » «is_ not practicable to hold em inquiry in _ tIf;eA in thew rules, or my the President is satisfied that in the ix1terestoffl1esec1n*ityeftt1eState,itisnot ..j_' exyedient to how any inquiry in the zammer provided in these ruies. Gy game be iodepczldently and do---twrs any other % opravisigx: either in the Regulations or Rum Q0. of Balwant Singh (Supra), the Supreme . ' as under in paragaphs 4 and 5 :
abundantly clear that the order dated 12.3.1990 the Disciplinmy Authority may oonoider cmzmmsmnoes ofthc case and make such therooil as it deems fit: L L _ (Pmvidod that the Gmmnnmt ' K ' given an opportunity of ' the penalty proposed to be T_ order is made in aoasc _ \ n Provided further that be consulted, where such constfltjation is neoeéwmy, before any orders ammaoc in any' case under '
19. Rifles would show that even thougI__1_ similarly worded, but impllcafién 'conveys the some mmning km, to say oonviction by a criminal court, 54;: From the facts that are not in dispute, it is was passed against the respondcm: the 'DI pay to the minimum of time scale of Driver period of four years an account of hm catisijigtj' and bringing bad name to the light of the order paswd by Claims Tribtmal, that too under the Rulw amer --Fl.'h{=:
second order dated 37.9. was the basis of the against him by me Court for the ofiencc 'finder which was pennissiblig dam». id being the facts, prosecuting and me the same otreme twwe. not right in equating fin difiment wounds to a pgosqmuaim case. The Hm Court also A that the two cmdcrs pamed ' rgspondcnt were on difierent gmunds = cause of actzitms.
under Rule 7(1) of the Rules, no omcr i1Iu1p9é:i:I1gamaj-orpenattyslzallbcpassedwinst 'a-._peIV'sson to whom the said Rules are applicable he has been gvena rmsonablc opportunity of showing cause against the action pmpomd to O' be taken. Under Rule 7(2) renewed and the requirements to T before imposing penalty ( indicaied. Sub--rule 2(1)) of Ruin provisions of the foregoing -sub-hale" v% where any major 'to be imposed upon a 'of"t':0'i1duct which has led to a)¢'iminfl" ( man. In the passed on 12.3. ii: the minimum of time wig of the Rules.
his services was iiii(ki*2.:i§i99(2e()fimdei~ Rule 7(2)(b). mm a mg-oi' to be imposed upon a oi: of conduct whfil led to his charge followmg the i oontairled in Rule 7(1) and (2) is not _ 7 itself makes a ciimiction in (iii the punisiinieiii to be imposed on the grounds".
>' coming to the doctrine ofjeopatidy, refiaienoe no of Supreme Comt repeated hi 2002(1) SCC 405 {UNION or INDIA & ANOTHER vs. P.D.YADAV) has been 0' made. Since the question with regard to doubie not been argued or advanced before us, it is deal with the same. In this Supreme Court reported in AIR 2m1;1;sum~m % 1092 (UNION ore' INDIA vs. SUR'~§;' A heads ti:
be mentioned. The Supreme held u The very founda1';iez'1 under is be a prior convicti<_;xza.:'~»<)';115';f _a_; Therefore, the questiofi mind dew nat:v'Vex'i"s%eA» .. that disciplinary is under Rule 19 is to be satisfiead, concerned has been ecgnviz:tcd.Vof charge and has been give a .. «. 'muee nefiee and reply to such show cause :i_1'<2ti§:e_.: ' if ..:e:;ty, should be properly considered any order under this Rule. Of 1 (mace, have to bear in mind the gavity of x Vthezceitzviclion sufiered by the Gian servant 3 u criminal proceedings before passmg any order under Rule 19 to mamtain the proportionality of punistmmt. In the instant case, the disciplinary authority has followed the OF _(_V1i5mi33al'bvased on conviction stands obliterated procedure laid down in Rule 19, hence, it 1 be said disciplinary authority had e determined mind when it passed the as dismissal on basis of oonviceon
22. Considering the _:of""19 in context, Supreme Court has (UNION ore INDIA AND as under in para "A - shows that the Dis(,§iplina1y--"An_tk:orx'ty'1$ empowered to take action against a on the gound of misconduct wmcn led to his conviction on a.
Tne rules, however, do not p1j§o§'ide on suspension of execution of by 00131 the order of _ Govt. servant has to be treated " ._ "mzder "_s1.;sp'ension till disposal of appeal by the 'appcllatte--xeouxt The rules also do not provide the Disctpiuzary Authority to await disposal of the appeal by the Appellate Gourt filed by a Govt. to eervant for taking action against him on the of misconduct which has led to his conviction by a competent Court of law. Havmg rewxvd to the provisions of the tubes, the order " dismiwing the respondent from service on the ground of misconduct leading no his conviction by a competent Court of law has not lost its string OV merely because a ermine! appeal was filed respondent aainst his convictioxz _._ é Appellate Court has suspended the «T sentence and enlarged the I'esponde:;t. H This mattw may be Under section 339 of Code; at * 5 Procedure, the appefiate has to... suspend the execution of t'c- "
an accused on bail. When the' suspends the execution of bail to an efl'e':;-t_;ef the order is um sentence based on is--.._i'or"the time behlg postponed, or kept :_in during the pendency of._the appeal.'---A In' otlierwouis, by suspension o{execi1tiox1 'under Section 389 Cr.P--.C. "aeeuad; 3 avoids undergoixg sentence However, the convictioneotgtinues endjs not obntaated and if theeveoiivietion oeobfitejfaxed, any action taken against a -a misconduct which led to his oflaw does not lose its efiiegmyv n'1ere1y»~ Appellate Court has suspendedtho. of sentence. Such being me pa-sitioxi 'ofAlaw,v the Administrative Tribunal fefl . in"er1*or in by suspmsien of execution . fef sex:t1ex;oe_by the appellate Court, the order of " winst the rmpondent was 2 AiiebIe'to--._be"quashed and the rmpondent is 130 be _under suspension till the disposal of Appeal by the High Court".
4' In the light of aforesaid paonouueemsmm of the V . Court, we have no doubt in our mmd that ~ -sespondents were justified in mposing punishment of @' removal from service, aflzcr his order of sentence were upheld not only by this Supreme Court.
the ronowm judgmants ofthc in (1) 2003(2) sec 1 1 % vs. PALITANA sucm (2) 2003(5) scciségzs vs. CHAJJU Rm (3) 2oo4+(2j%T maroon Si-IAIKH Vs. STATE. ()3 4 (4) 2004(7) A -69é% NATIONAL BANK vs. . _ and 2006(1) (5; (UNION one INDIA AND momma vs. mJo1:z swan), ' " for the pcti1:i%' eantendad, that it Q the , _ decided by the Apex court, which should be It was ttflorc contended that a decision is m "a authority for which it is decided and not what cml be adduced tnezwma and the iitfle difihrence additional facts may make lot of ' _ precedential value of a decisicm. WeWhave_ regard to the aforesaid sattied _ of aforesaid authorities have __no of the
25. As the petitioner was rightly Ruled Once he was found ' dfienccs unda' Secw 12o--B, 477--A, A20 5(2) of Prevention of Corruptioxg '.- .v'R§}$fi6;1deni:s Wfit id in mking 'A afd tixfl... and to pmeeed mina him we may clarify that it shall sun be to challalgc the subsequent order of passedddd 1 agaimt him on 19.02.2008 am-nag' V dithis petition in wcordam with law.
07"
2426. In the light of aforesaid discuwon, _fa?€: the considered opinion that there is no merit petition. It is hereby accordingly eyelet V' as to costs.
3 _ Justice 55/9 Sub]