Karnataka High Court
Sri. Lakshminaryana T H vs The State Of Karnataka on 2 July, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT PETITION NO. 14759/2012 (S-KAT)
C/W.
WRIT PETITION NO.15184/2012 (S-KAT)
IN WRIT PETITION NO.14759/2012 (S-KAT)
BETWEEN:
SRI.LAKSHMINARYANA T.H.,
S/O. H.THIMMA HANUMAIAH
AGED 59 YEARS
WORKING AS CHIEF SUPERINTENDENT
CENTRAL PRISON
PARAPANA AGRAHARA
(CENTRAL PRISON)
BANGALORE - 560 100
R/O. JAIL STAFF QUARTERS
NO.2, PARAPPANA AGRAHARA
BANGALORE - 560 100.
... PETITIONER
(BY SRI.CHANDRAKANTH R. GOULAY &
SRI. NAVEEN A.S., ADVS.,)
2
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF HOME AFFAIRS
(PRISON, CINEMA & AUZILIARY SERVICES)
2ND FLOOR, VIDHANA SOUDHA
BANGALORE - 560 001.
2. THE ADDITIONAL DIRECTOR
GENERAL OF POLICE &
INSPECTOR GENERAL OF PRISON
IN KARNATAKA
NO.4, SHESHADRI ROAD, GANDHINAGAR
BANGALORE - 560 009.
...RESPONDENTS
(BY SMT. REVATHY ADINATH NARDE, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING
TO SET ASIDE THE ORDER OF THE KAT IN APPLN.
NO.2202/2012 DATED. 27.4.12 VIDE ANNX-A AND
ORDER DATED.23.4.12 VIDE ANNX-A2 IN ANNX-B
AND ETC.,
IN WRIT PETITION NO.15184/2012 (S-KAT)
BETWEEN:
DR. (SMT.) R. ANITHA
W/O. SRI. ARUN S. RAI
AGED 32 YEARS
WORKING AS ASSISTANT SUPERINTENDENT
CENTRAL PRISON
BANGALORE
RESIDING AT NO.B7, PRISON QUARTERS
PARAPPANA AGRAHARA
3
BANGALORE - 100. ... PETITIONER
(BY SRI.CHANDRAKANTH R. GOULAY, ADV., )
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF HOME AFFAIRS
(PRISON, CINEMA & AUZILIARY SERVICES)
2ND FLOOR, VIDHANA SOUDHA
BANGALORE - 560 001.
2. THE ADDITIONAL DIRECTOR
GENERAL OF POLICE &
INSPECTOR GENERAL OF PRISON
IN KARNATAKA
NO.4, SHESHADRI ROAD, GANDHINAGAR
BANGALORE - 560 009.
...RESPONDENTS
(BY SMT. REVATHY ADINATH NARDE, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING
TO SET ASIDE THE ORDER DATED 27.4.12 IN
APPLICATION NO.2203/2012 PASSED BY THE
HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL AS
PER ANNEX-A & ORDER DATED 23.4.12 PASSED BY
THE R.1 AS PER ANNEX-A1 IN ANNEX-B & ONE MADE
MALICE AND WITH MALAFIDE INTENTION APART
FROM BEING ARBITRARY.
THESE PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, N. KUMAR J.,
MADE THE FOLLOWING:-
4
ORDER
These two writ petitions are taken up for consideration together, which is preferred against the common order passed by the Tribunal on two independent applications.
2. The petitioner in Writ Petition No.14759/2012 was working as Chief Superintendent of Central Prisons, Parappana Agrahara (Central Prisons Bangalore). His case was he has served the State for the last nearly 39 years and has maintained a good and unblemished record of service. He was promoted as Chief Superintendent on 21.07.2010 and posted at Mysore Central Prison and accordingly, he reported to duty. He was later transferred to Central Prison Bangalore by an order dated 30.6.2011. While he was working, within four months he was transferred to Bellary central prison by issue of notification dated 28.2.2011 and one Sri.N.Lingaraju was posted in his place. It is the specific case of the petitioner that at the 5 instance of Sri.N.Lingaraju, the order of transfer was made. Therefore, he preferred an application before the Karnataka Administrative Tribunal in Application No.7071/11 challenging the said order of transfer. An interim order of stay was granted. After hearing all the parties, by an order dated 19.4.2012 the order of transfer was set aside.
It is thereafter, the impugned suspension order was passed on 23.4.2012 keeping the petitioner under suspension by invoking Section 10 (1)(d) of the Karnataka Civil Services (CCA) Rules, 1957. This was followed by a notification dated 23.4.2012 placing Sri.Krishna Kumar incharge. The order mentions about six omissions i.e., 1) in spite of the order of the Court dated 14.12.2011, Sri.Masood has been detained without transferring to Bombay Central Prison till 27.12.2011; 2) Ignoring precautionary and doubtful notes while releasing him; 3) on the basis of the providing the copies of the documents submitted by his 6 advocate; 4) In relation to the release on 27.12.2011 two notes have been hurriedly prepared by taking personal interest; 5) in the order of his release, though there were several doubtful circumstance and without inquiring into the matter he has been released and 6) violation of Section 267 of the Criminal Procedure Code for not reporting compliance of the order of the Court. Challenging the said order of suspension, the petitioner preferred an application in application No.2202/2012.
3. The writ petitioner in writ petition No.15184/2012 entered the service as Assistant Superintendent on 3.8.2006. She has unblemished record of service. It is her specific case that below her are jailers, chief warder, head warder and warders and above her are superintendent and Chief Superintendent of prisons. She was surprised and shocked to receive an order of suspension which is a common order of suspension along with the Chief Superintendent of prisons - Sri.T.H.Laxminarayana on certain charges. 7 She has merely complied with the orders of her Superintendent like Chief superintendent of prisons and she has also followed all necessary procedures while placing a note and forwarding the papers for release of the said under trial prisoner Sri.S.M.Masood to her higher authority i.e. Superintendent and thereafter to Chief Superintendent of Prisons. Therefore, there is no dereliction of duty as alleged and hence, the order of suspension was unwarranted and unnecessary. Therefore, she preferred an application before the Tribunal, which is numbered as Application No.2203/2012 challenging the order of suspension.
4. Both the petitioners sought for interim stay of the suspension order. The same was opposed by the Government. The Tribunal was satisfied that only after full examination of the matter, the order of suspension has been issued and therefore, they found prima facie compliance with Rule 10 (3) of the Rules. According to them, the allegations against the petitioners are not 8 vague and they give full idea about the charges against the petitioner. If the charges are true, they indicate a very grave dereliction of duty on the part of the petitioner and in fact grave mis-conduct, if act alleged was deliberate as alleged. The petitioner has acted on the basis of the copy of the letter and bail bonds brought by the advocates. He gave an explanation that he is innocent. The said explanation lists 65 cases in which applicants had received body warrants issued under Section 267 of the Cr.P.C. The list of body warrant mentioned in the letter of superintendent of Central Prisons dated 26.12.2011 does not contain the order of the concerned Courts for the release of the prisoner in the three cases. Therefore, it was of the view that the petitioners hurriedly released the under trial prisoner without receiving authenticated order of the Court to release him. Therefore, they were of the view that no case for stay of order of suspension was made out and request was rejected. Aggrieved by the said order, the petitioners are before this Court. 9
5. Learned counsel for the petitioners assailing the impugned order contended firstly that the petitioner in W.P. No.14759/2012 Sri.Lakshminaryana has been treated badly by the department. When on transfer he came to Bangalore on 30.6.2011, in which post in the normal course he was entitled to continue in service for a period of three years and more particularly, in the said post because he was retiring on 30.11.2012, to accommodate one Lingaraju who was in Bangalore more than three years, he has been transferred to Bellary by an order dated 28.2.2011. The said order was challenged by the petitioner before the Administrative Tribunal, which came to be set aside by an order dated 19.4.2012. It is this order setting aside the transfer order, which has prompted the respondent to initiate action and keeping him under suspension by an order dated 23.4.2012. The perpetrated action is on the information given by the persons who obtained information under RTI Act. It is all stage managed and 10 therefore, exfacie the acts of the respondent is malafide and order of transfer is by way of punishment and not done in the normal course in the public interest. He has been in service for 39 years with unblemished records. He is going to retire in another four months. It is at that juncture this order has been passed. The circumstances speak for itself. Arguing on merits he contended that the allegation is that he has hurriedly released a prisoner. The material on record discloses that though there were 65 cases in Courts of Bombay, Jaipur as well as in Bangalore, all the Courts have released him on bail. He was detained in Bangalore because of the Court order at Bangalore. When once Bangalore Courts have also granted bail, he has been released as there was no order from any court detaining the such prisoner. The Advocate for the accused produced before him the fax message. On receipt of which, they verified from the concerned authorities and being satisfied that the information furnished is correct, he was released on bail. Till today it is nobody's case 11 that the information contained in the said fax message is false. Therefore, it is clear, it is a vindictive act on the part of the respondents. The Tribunal simply accepted the allegation in the order of suspension, believed it true without proper appreciation of facts and other documents marked and it has declined to pass an order of stay, which is liable to be set aside.
6. Insofar as the petitioner in W.P.15184/2012 is concerned, she is working under the petitioner in the other case. Her role is very limited. In fact, she was eligible for promotion as her name is placed at Serial No.3 in the list. Persons at Serial Nos.1 and 2 have already been promoted. In the normal course she would have been promoted. It is to deny her legitimate promotion, the impugned proceedings are initiated. The DPC has considered her case, and kept the result in a sealed cover. Therefore, he submits that both these writ petitioners have become victims of circumstances and having regard to the nature of allegations made against 12 them, this is a case where authorities should not have kept the petitioners under suspension pending enquiry.
7. Per contra, learned HCGP submitted that Section 10(1)(d) of the Rule empowers the appointing authority and the disciplinary authority to keep an employee under suspension if there are any allegation of dereliction of duty against them. The order of suspension issued in respect of both the cases set out clearly the nature of dereliction of duty. Firstly after the accused was released in pursuance of the order by the Court instead of sending him to Jaipur Jail he is illegally detained in Bangalore till 27.12.2011. On 27.12.2011 without proper verification of the records have acted on the basis of the fax message and letters given by the advocates without getting it verified without properly ascertaining from Bombay or Jaipur has released the accused, which constitutes dereliction of duty under Section 17 of Karnataka Prisoners Act, 1963 and Karnataka Prisons Rules, 1974 therefore, the 13 tribunal is justified in not granting any interim stay and therefore, no case for interference is made out in writ jurisdiction before this Court.
8. In these cases she relied on the judgment of the Apex Court in the case of State of Orissa Vs. Bimal Kumar Mohanty reported in 1994 (4) SCC 126. In the aforesaid judgment the Hon'ble Supreme Court laid down the law at Para 13. It is held as under:-
"It is thus settle law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority and disciplinary authority should consider the above aspects and decide 14 whether it is expedient to keep an employee under suspension pending aforesaid action. It would be as on administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The court or the Tribunal must consider each case of its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be 15 considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing department inquiry or trial of a criminal charge".
9. In the light of the aforesaid law declared by the Apex Court, it is clear that the suspension is not a punishment. It is only the mode by which the suspended employee is prevented from discharging the duties of the office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending 16 employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry. Similarly when serious allegations of corruption and mal-practice had been made against the respondents and when the enquiry revealed that there is a prima-facie case made out against them, the order of suspension would prevent such an employee from destroying the evidence against him or continue to perpetuate the acts of corruption and mal practice. In fact Rule 10 of the Rules which is invoked also categorically states that where there is prima facie evidence to show that he was caught red- handed while accepting gratification other than legal remuneration by the persons authorised to investigate under the provisions of the Prevention of Corruption Act, 1988 or under any other law; where there is prima- facie evidence to show that he was found in possession 17 or had at any time during the discharge of his official duty been in possession of pecuniary resources or property disproportionate to known source of income, by the persons authorised to investigate offences under the Prevention of Corruption Act, , 1988 or under any other law; where a charge-sheet is filed before the Competent Court against him for any offence involving moral turptitude committed in the course of his duty; or where a charge-sheet is filed before the competent Court against him or charge of corruption, embezzlement or criminal misappropriation or Government money, the case for suspension is made out. In those cases, it should follow as a matter of course. Similarly, the said Rule also provides where there is a prima-facie evidence of gross dereliction of duty against him. So it is not mere dereliction it should be gross dereliction of duty. In the aforesaid judgment, the Supreme Court has also made it clear that the appointing authority or the disciplinary authority should take into consideration the gravity of misconduct sought to be inquired into or 18 investigated and the nature of evidence placed before the appointing authority and the application of mind by the disciplinary authority. If the authorities decides that it is expedient to keep an employee under suspension pending aforesaid action, it would not be as an administrative routine or an automatic order to suspend an employee. It is in this context, it has been held that the Court or the Tribunal must consider each case on its own merits and no general law could be laid down on that behalf.
10. In the instant case, facts are not in dispute. Insofar as T.H. Lakshminarayana is concerned he has put in nearly 40 years of unblemished service. On being promoted and posted to Mysore as an obedient servant he went and reported for duty in Mysore on 21.10.2007. When he was transferred to the Central Prison as a Superintendent on 30.6.2011, he promptly reported to duty. But it should be remembered that he was retiring on 30.11.2012. In the normal course, he is 19 entitled to continue in such employment for three years. Rules also provide that before retirement an employee is entitled to work at his native place. Therefore, in the normal circumstance, he should not have been disturbed from the said post and he should have been permitted to retire in the said post. Within four months from his transfer to Bangalore to accommodate one N. Lingaraju who had completed his service in Bangalore for more than three years he was transferred to Bellary. Naturally he had a grievance. He has a right in law to seek a remedy. Therefore, he approached the Tribunal challenging the said order of transfer on legal grounds, which are available to him in law and obtained an interim order of stay. Ultimately, after hearing both the parties, the Tribunal held that the said transfer was not in public interest, it was contrary to circulars issued from time to time which had the force of law and therefore set aside the order of transfer by an order dated 19.4.2012. Even before the petitioner could obtain the certified copy of the said order on 23.4.2012, 20 four days there from, the petitioner has been kept under suspension pending enquiry into the allegations of dereliction of duty. The dereliction of duty alleged against the petitioner is that hurriedly he released an under trial prisoner from Bangalore jail when the order of granting bail was produced before him, which was passed by a Bangalore Court. Two major allegations are made. Eventhough he was released on 14.12.11 for nearly 15 days he did not make arrangements to move the prisoner to Mumbai jail. The other part of the allegation is that on 27.12.12 when he released the prisoner he acted on the fax messages and the Xerox copies given by the advocate for the accused without proper verification and without waiting the official communications from the concerned jails. The material on record discloses that the accused was required in 65 cases filed in different parts of the country. It appears that in all the cases he had obtained bail. When he was in Bangalore jail in pursuance of the order of detention passed by the Courts at Bangalore, he 21 moved for bail in Bangalore Court and obtained bail, in pursuance of which he requested for his release. As they were in possession of all correspondence showing that there were cases in Mumbai and Jaipur they insisted on some material to show that in those cases he was not required. It appears that the counsel for the accused produced before him the telex and fax messages and Xerox copies of the orders issued by the Courts. After looking into those documents, it is the case of the petitioner that he personally contacted the Jail Authorities and after confirming that the presence of the accused was not required by them he released him. Subsequently, an official communication is received stating that the presence of the accused person is not required in any Courts in any case. The grievance is unless he got an official communication he should not have released and it constitutes gross dereliction of duty. To satisfy ourselves we directed the Director General of Prisons to be present before the Court with records. The records have been produced. 22 They are unable to produce any records to show that after 27.12.2012 the said accused was required as an under trial prisoner in any of the 65 cases to be kept in custody. On the contrary, the material on record shows that he has been released in all the cases. It is in this background, we have to look at the undisputed facts and the facts pleaded by the petitioner. Seen from that angle, it is clear that because the petitioner challenged the order of transfer and was successful in getting that order quashed, some how the authorities wanted to get rid of this petitioner. It is curious to note from the records made available to us that the authorities did not find out dereliction of duty by themselves. It came to their notice from the outside agencies who obtained records by applying for copies under the Right to Information Act. It is thereafter they appeared to have looked into the records and found some substance in those allegations and that is how he is kept under suspension. The petitioner is due to retire on 30.11.2012. After 40 years of blemishless service, this 23 is how he has been treated in the end of his career. From the material on record, we are satisfied that this is a case of malafide exercise of power by the authority, which is arbitrary and issued with ulterior purpose. This order of suspension is passed as a punishment for agitating his legal right in Court of law, which cannot be countenanced by this Court. Therefore, we are constrained to allow the writ petition and set aside the order of suspension. However, we make it clear that the proceedings which are initiated could be continued in accordance with law.
11. Insofar as Dr.R.Anitha is concerned, she has been clubbed with Lakshinarayan and she has become a victim of circumstances. The material on record discloses that she is a Doctorate holder. She was eligible for promotion on 31.5.2007. She is at Sl.No.3 in the seniority list. Persons who are at Sl.Nos.1 and 2 are already given promotion. At that stage, proceedings are initiated and she is kept under suspension. However, 24 the DPC has considered her case for promotion and her result is kept in a sealed cover. In view of what we have stated, probably she was caught in the crossfire and she is also kept under suspension. In fact, in order to have an independent enquiry, the act alleged is already a completed one. It is open to the authorities to see that all the records are kept away from the hands of both these petitioners. That would meet the ends of justice. Therefore, the order of suspension passed against her is also liable to be set aside on the ground that it is passed with a malafide intention with an ulterior motive in an arbitrary manner and as a measure of punishment.
12. In the result, we pass the following:-
ORDER Both the writ petitions are allowed. The impugned order of suspension is hereby set aside. (*) All the observations made in these petitions are only for the purpose of considering the validity of the suspension order and (*) * deleted vide court order dt:11/09/12 25 (*) without being influenced in any way by the observations made herein above.
Parties to bear their own costs.
Though the application is filed before the Tribunal and interim order is passed on the I.A., when once the Tribunal has rejected the prayer for stay of suspension order the application pending before them loses its value. Therefore, as we are pronouncing order on the merits of the suspension order, the said application filed before the Tribunal has become redundant.
Sd/-
JUDGE Sd/-
JUDGE * deleted vide court order dt:11/09/12 SA/*alb/-.