Karnataka High Court
Sri.S.Krishna Lal vs Bruhat Bengaluru Mahanagar Palike on 29 September, 2020
Author: S.G.Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.8678/2020(S-RES)
BETWEEN:
SRI.S.KRISHNA LAL,
S/O L.M.SHIVANNA NAIK,
AGED ABOUT 34 YEARS,
RESIDING AT NO.97,
5TH MAIN POSTAL COLONY,
RMV II STAGE, SANJAY NAGARA,
BENGALURU-560094.
... PETITIONER
(BY SRI. ABHINAV RAMANAND A, ADVOCATE FOR
SRI. DEEPAK D C, ADVOCATE)
AND:
BRUHAT BENGALURU MAHANAGAR PALIKE
HUDSON CIRCLE, N.R.SQUARE,
BENGALURU - 560002
REP BY IS COMMISSIONER
... RESPONDENT
(BY SRI. K N PUTTEGOWDA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.06.2020 ISSUED BY
RESPONDENT ANNEXURE-A AND DIRECT THE RESPONDENT
TO REINSTATE THE PETITIONER BACK TO HIS SERVICES BY
PAYING SUBSISTENCE ALLOWANCE AS PER LAW FOR THE
PERIOD OF HIS SUSPENSION.
THIS PETITION COMING ON FOR FURTHER ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING THROUGH VIDEO
CONFERENCE:
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ORDER
Even though the matter is listed for further orders, with the consent of learned counsel for the parties, the matter is taken up for final disposal.
2. Petitioner is before this under Article 226 of the Constitution of India praying for a writ of certiorari quashing the impugned order dated 06.06.2020 bearing No.B12(6) PR/383/18-19 (Annexure-A) issued by the respondent and for a direction to the respondent to reinstate the petitioner back to his service by paying the subsistence allowance as per law for the period of his suspension.
3. Heard the learned counsel Sri.Abhinav Ramanand for Sri.Deepak B.C., appearing for the petitioner and Sri.K.N.Puttegowda, learned counsel for the Bruhath Bengaluru Mahanagara Palike (for short 'Corporation') through video conference.
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4. Learned counsel for the petitioner would submit that the petitioner is working as an Assistant Executive Engineer in the respondent-Corporation. By an order dated 18.07.2019, the petitioner was kept under suspension in exercise of power under Rule 10 of Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957. Learned counsel for the petitioner would submit that the suspension was on the allegation of pending Crime No.13/2019, registered under Sections 13(1)(a) and 13(2) of Prevention of Corruption Act, 1988 and Sections 420, 408, 409, 465, 468, 471, 120-B read with Section 34 of IPC, investigation of which was pending as on the date of order of suspension. The substance of allegation as could be gathered from the order of suspension is that issuance of Transferable Development Rights ('TDR' for short) in respect of Sy.No.132 of Koudenahalli village. Further, it is alleged that the petitioner indulged in fraud by awarding huge compensation at artificial and inflated 4 rates and colluded with private parties fraudulently granted TDRs in excess of what was due for the land losers. As the investigation was at initial stage, if the petitioner were to be continued in the said post, he would tamper the evidence or he would destroy the evidence, he was kept under suspension. As the suspension was continued for long, the petitioner was constrained to approach this Court in W.P.No.2521/2020 seeking to quash the order of suspension dated 18.07.2019. This Court after hearing both sides by order dated 11.03.2020 directed the respondent-Corporation to apply its mind to the fact as to whether the continued suspension of the petitioner is warranted and in the event, the authority arrives at such a conclusion it shall be upon the authority to pass an order of suspension afresh stating reasons, which requires continued suspension of the petitioner. Thereafter, the petitioner made representation dated 26.03.2020 praying to revoke the order of suspension. 5 The respondent-Corporation by its order dated 06.06.2020, extended order of suspension until further orders based on extraneous materials, which is under challenge in this writ petition.
5. Learned counsel for the petitioner would contend that the impugned order at Annexure-A dated 06.06.2020 is the result of total non-application of mind by the respondent-Corporation. This Court specifically directed the respondent-Corporation to apply its mind as to whether it would be necessary to continue the suspension of the petitioner. The review of suspension order ought to have been proceeded based on the material relating to the allegations contained in the order of suspension. The respondent-Corporation taking note of the subsequent crime numbers which are related to entirely different properties wherein the petitioner's name is not found in the FIR, has come to the conclusion that the continuation of suspension is 6 necessary. Further, the learned counsel contends that in Crime No.13/2019, charge sheet has already been filed and the same is numbered as Spl.C.C.No.259/2020. As the charge sheet has already been filed, the question of tampering witnesses or destroying the evidence would not arise. It is also submitted that the Officers against whom investigation is pending are reinstated whereas in case of the petitioner, investigation is completed and charge sheet is already filed is continued under suspension. In such circumstances, action of the respondent-Corporation is unreasonable and unfair. Thus, he prays for setting aside Annexure-B dated 18.07.2019 and for a direction to re-do the exercise of review of Annexure-B order of suspension.
6. Per contra, learned counsel for the respondent- Corporation Sri.K.N.Puttegowda would submit that the petitioner has indulged in issuance of fraudulent TDRs 7 which has caused huge loss to the respondent- Corporation. As such, the Anti Corruption Bureau has taken up investigation and had registered crime No.13/2019 against the petitioner. The fraud committed by the petitioner is still under investigation and at this stage, if the petitioner is allowed to discharge his duties, he may prejudice the investigation and he may interfere with the investigation. Further, the learned counsel would contend that the respondent- authority while reviewing the order of suspension has taken note of the present situation and has come to the conclusion that revoking suspension order would be against the public interest and as such, the petitioner would not be entitled for any relief as sought for by him in the writ petition.
7. On hearing the learned counsel for the parties and on perusal of the writ petition papers, the only mute question which falls for consideration is as to whether 8 the impugned order Annexure-A dated 06-06-2020 requires interference?
8. Answer to the above point would be in the affirmative for the following reasons:
Admittedly, the petitioner was kept under suspension by the respondent-Corporation vide order at Annexure-B dated 18.07.2019 on the allegation that while the petitioner was working as Assistant Engineer (presently working as Assistant Executive Engineer) misusing his official position, issued TDRs in respect of Sy.No.132 of Koudenahalli village. Further, it is alleged that the said TDRs are issued fraudulently by which respondent-Corporation has suffered huge loss. It is also an admitted fact that Anti Corruption Bureau registered crime No.13/2019 against the petitioner. As stated above the suspension had become necessary as the investigation was in progress and to prevent the petitioner from interfering with the investigation and on 9 the apprehension that the petitioner may destroy the evidence. The order of suspension was passed on 18.07.2019. As the order of suspension was not revoked for sufficiently long period, he had approached this Court in W.P.No.2521/2020, wherein this Court directed the respondent-Corporation to apply its mind to the fact as to whether continuation of suspension is warranted and if the Corporation comes to the conclusion that continuation of suspension is necessary, then to pass order afresh continuing suspension. In the light of the said direction, respondent-Corporation undertook to review suspension order and passed order at Annexure-A dated 06.06.2020 continuing the suspension. While reviewing the order of suspension, it is noted that case is pending with Anti Corruption Bureau and suspension relates to misuse of TDR and loss caused to the respondent-
Corporation. Further, it is noted that when the case is under investigation, if the suspension is revoked, there 10 is possibility of tampering the evidence and may interfere in the course of investigation, hence it was of the opinion that suspension is to be continued. The suspension is based on registration of Crime No.13/2019 in which, charge sheet is filed and it was numbered as Spl. C.C.No.259/2020. In the said crime number, investigation is already over and apprehension of the respondent-Corporation that the petitioner may tamper with the evidence and may interfere with the investigation no more exists. The above reasoning for continuation of suspension is the result of total non- application of mind. The Commissioner, BBMP in pursuance of the direction of this Court dated 11.09.2020 filed an affidavit dated 23.09.2020, wherein it is stated that in Crime No.46/2019 and in Crime No.3/2020, they have sought permission for investigation. If those crime numbers are taken note of by the respondent-authority, the same would amount to 11 consideration of extraneous materials which are not the subject matter of order of suspension.
9. Learned counsel for the petitioner has filed a memo dated 28.09.2020 enclosing FIRs in Crime No.46/2019 and Crime No.3/2020. Learned counsel would point out that the said FIRs are in respect of separate survey numbers and he also points out that name of the petitioner does not find place. The respondent could not have taken note of the said FIRs where petitioner's name would not find place while reviewing the order of suspension as at Annexure-A. There is total non-application of mind by the respondent while reviewing the order of suspension.
10. The purpose of keeping a Government Servant under suspension is to keep him out of office or prevent him from dealing with the concerned records. Further, it is also for the purpose that one should not tamper with the concerned record and not to give room for 12 destruction of evidence. Once the investigation is complete after collection of required material and filing of charge sheet, the above purpose would no more remains. In the instant case, the order of suspension indicates that Cr.No.13/2019 was registered by Anti Corruption Bureau and investigation was in progress as on the date of suspension. Subsequently, after investigation, charge sheet is filed and it is numbered as C.C.No.259/2020. While reviewing the order of suspension, the respondent authority is expected to examine as to whether there is necessity or reasons to continue the suspension even after filing of charge sheet. The respondent while reviewing the order of suspension also shall keep in mind that continuing a Corporation servant under suspension would require payment of 50% or 75% of subsistence allowance, without getting any work from such Corporation employee.
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11. For the reasons stated above, Annexure-A bearing No.B12(6) PR/383/18-19 dated 06.06.2020 is set aside. The respondent-Corporation is directed to review the order of suspension dated 18.07.2019 bearing No.B12(6)PR/383/18-19 and pass orders afresh in accordance with law as to whether it is warranted to continue the order of suspension of the petitioner or to revoke the order of suspension. The above exercise shall be completed by the respondent-Corporation within a period of six weeks from the date of receipt of a certified copy of this Order.
With the above, the writ petition is disposed of.
Sd/-
JUDGE mpk/-* CT:VK