Karnataka High Court
S Armugam vs The Bruhat Bangalore on 11 February, 2014
Equivalent citations: 2014 (3) AKR 84
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.6201/2014 (S-RES)
BETWEEN:
S. Armugam,
S/o. late Subbanna,
Aged about 36 years,
Tax Inspector, office of ARO,
Ward No.33, J.C. Nagara
BBMP Office, Munireddy Palya,
Bangalore - 560 006.
Residing at No.280,
5th Main, Corporation quarters,
New Bagalur Layout,
Bangalore - 560 084.
...PETITIONER
(By Sri Suresh S. Joshi, Adv.)
AND:
1. The Bruhat Bangalore Mahanagara Palike,
J.C. Road, N.R. Square,
Bangalore - 560 001,
By its Commissioner.
2. The Additional Commissioner (Administration),
The Bruhat Bangalore Mahanagara Palike,
J.C. Road, N.R. Square,
Bangalore - 560 001. ...RESPONDENTS
2
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to call for records and
direct the respondents not to proceed against the
petitioner in pursuance of notice issued by the 2nd
respondent dated 20.01.2014 as per Annexure-C.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Petitioner is an employee of Bruhat Bangalore Mahanagara Palike. A charge sheet was filed against the petitioner in Special C.C.No.6/2006 on the file of the Special Judge, Bangalore Urban District, Bangalore City. After the trial, the petitioner was found guilty. Petitioner was convicted and was sentenced to undergo RI for a period of one year and pay fine of `10,000/- and in default, to undergo further SI for a period of six months for the offences punishable under Ss.13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). Crl.A.No.670/2011 has been filed by the petitioner against the said Judgment of conviction and order of sentence. By an order dated 05.07.2011, the sentence imposed by the 3 Trial Judge has been suspended. On the basis of the said conviction, petitioner has been issued with a show cause notice dated 20.01.2014 vide Annexure-C, asking him to show cause why his service should not be terminated. The petitioner, instead of giving a reply has filed this writ petition, to quash Annexure-C and prohibit the 2nd respondent from proceeding against him.
2. Sri Suresh S. Joshi, learned advocate for the petitioner contended that there being no independent and bona fide exercise of power and the impugned action being at the instance of ADGP of Lokayukta and when the criminal proceeding has not attained finality and in view of the interim order passed on 05.07.2011 in Crl.A. No.670/2011 vide Annexure-B, there being prejudging of the case, the 2nd respondent be restrained from proceeding against the petitioner. He submitted that Annexure-C being arbitrary and illegal is liable to be quashed.
3. Undeniably, petitioner was convicted in Special C.C.No.6/2006 for the offences punishable under 4 Ss.13(1)(d) r/w 13(2) of the Act, by a judgment dated 25.06.2011 passed by the learned Special Judge, Bangalore Urban District, Bangalore City. Sentence imposed on the petitioner pursuant to the said judgment of conviction has been stayed on 05.07.2011 in Crl.A.No.670/2011. Respondents have issued a notice dated 20.01.2014 vide Annexure-C, with reference to the power under Rule 8(viii) of KCS (C.C. & A.) Rules, 1957.
4. It is trite that when a show cause notice is issued to an employee under a statutory provision, ordinarily, the employee must place his case before the Authority concerned by showing cause and the Court should not interfere with the notice, unless the notice is shown to have been issued palpably without any authority of law, since the purpose of issuing notice is to afford an opportunity of hearing to the employee. Once, a cause is shown, it is open to the employer to consider the matter in the light of the facts and statements placed by the employee and only thereafter, decision in the matter can 5 be taken. Interference by the Court before the decision is taken pursuant to Annexure-C would be premature.
5. In UNION OF INDIA AND OTHERS Vs. RAMESH KUMAR, (1997) 7 SCC 514, the respondent was arrested on the ground that he accepted illegal gratification. The Trial Court convicted him under S.5(2) of the Act, 1947. As a result, the disciplinary authority dismissed him from the service by invoking Rule 19 of CCS (CCA) Rules, 1965 without holding detailed disciplinary enquiry. An appeal filed against the judgment of conviction was entertained and an interim order suspending the sentence was passed. The employee filed an application in the Central Administrative Tribunal, seeking his reinstatement in the service and the application having been allowed by the Tribunal, Apex Court having been approached by the employer, it has been held as follows:
"6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of 6 execution of sentence by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by competent court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the 7 respondent is to be treated under suspension till the disposal of criminal appeal by the High Court."
6. In STATE OF MAHARASHTRA THROUGH CBI, ANTI CORRUPTION BRANCH, MUMBAI VS. BALAKRISHNA DATTATRYA KUMBHAR, (2012) 12 SCC 384, a case was registered against the respondent for the offence punishable under Ss.13(2) r/w 13(1)(e) of the Act, 1988, alleging that he possessed assets disproportionate to his disclosed source of income. After investigation, a charge sheet was filed under the said provisions of the Act, 1988. In the appeal, subsequent to the conviction, the respondent was put under suspension and a show cause notice to explain, that in view of his conviction for the offences punishable under the Act, 1988, why he should not be dismissed from the service in view of the provisions of Rule 11 of CCS (CCA), 1965 was issued. Assailing the said notice, an application under S.389(1) of Code of Criminal Procedure, 1973 was filed in the High Court to suspend the order of conviction. The said application was allowed on the ground that the employee would suffer serious prejudice in the nature of 8 order of dismissal from the service. The employer having filed an appeal, after the survey of previous decisions, while allowing the appeal and setting aside the order impugned in the appeal, Apex Court has held as follows:
"17. The aforesaid order is, therefore, certainly not sustainable in law if examined in the light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the respondent employee, if ultimately succeeds, could claim all the consequential benefits. The submission made on behalf of the respondent, that this Court should not interfere with the impugned order at such a belated stage, has no merit for the reason that this Court, vide order dated 9.7.2009 has already stayed the operation of the said impugned order."
7. Merely because the impugned notice makes a reference to a communication dated 23.08.2013 of ADGP, Karnataka Lokayukta, it cannot be said that the respondents are bound by the said communication. The impugned notice makes reference to the judgment of conviction dated 25.06.2011 and suspension of sentence 9 vide order dated 05.07.2011 passed in Crl.A.No.670/2011 and the opinion dated 07.10.2013 furnished by the Chief Law Officer of the Legal Cell, BBMP. There is no prejudging of the case by the respondents. I refrain from recording any findings on the other facts stated and the other grounds raised in this writ petition, since the matter is seized in Crl.A.No.670/2011.
It is not the case of the petitioner that the impugned notice is either wholly without jurisdiction or otherwise illegal. The provision shown in the impugned notice confers power on the respondents. Hence, in my opinion, the petitioner cannot maintain this writ petition as against Annexure-C. Thus, the petition cannot be entertained and is rejected accordingly.
However, it is made clear that the observations made in this order will not adversely affect the case of the petitioner before the respondents.
Sd/-
JUDGE sac*