Karnataka High Court
Basappa Hunasimarad vs The Commissioner Of Public ... on 13 March, 2023
Bench: G.Narendar, M.G.S. Kamal
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WP No. 5152 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 5152 OF 2023 (S-KSAT)
BETWEEN:
BASAPPA HUNASIMARAD,
S/O LATE DEVAPPA,
AGED 44 YEARS,
WORKING AS ASSISTANT TEACHER,
GOVERNMENT HIGH SCHOOL,
Digitally MURUGUMALE, CHINTAMANI TALUK,
signed by C CHIKKABALLAPURA DIST.,
HONNUR SAB
R/AT SRINIVASA REDDY MALAPALLY
Location: High CHINTAMANI.
Court of
Karnataka ...PETITIONER
(BY SRI. RANGANATHA S JOIS., ADVOCATE)
AND:
1. THE COMMISSIONER OF
PUBLIC INSTRUCTIONS
NRUPATHUNGA ROAD,
BENGALURU-560001.
2. THE DEPUTY DIRECTOR (ADMN)
DEPARTMENT OF
SCHOOL EDUCATION AND LITRACY,
CHIKKABALLAPURA DISTRICT,
CHIKKABALLAPUR-562101.
...RESPONDENTS
(BY SMT. SHILPA S.GOGI, AGA FOR STATE)
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WP No. 5152 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS RELATING TO THE IMPUGNED ORDER
DATED 14.02.2023 MADE IN A.Nos.5745/2022 PASSED BY THE
KSAT BENGALURU BENCH VIDE ANNEXURE-A PERUSE AND
QUASH THE SAID ORDER AS ERRONEOUS CONTRARY TO LAW,
VIOLATIVE OF ARTICLES 14 16(1) AND 21 OF CONSTITUTION
OF INDIA AND UNSUSTAINABLE IN LAW AND TO ALLOW THE
APPLICATION BEFORE THE HON'BLE KSAT IN A.Nos.5745/2022
THE RELIEF SOUGHT FOR THEREIN, IN SO FAR AS THE
PETITIONER IS CONCERNED ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, G.NARENDAR J., MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned Additional Government Advocate.
2. Petitioner is before this Court challenging the correctness of the order placing him under suspension. In our opinion the said order said to be placing him under suspension is a superfluous order as it is an admitted fact that, the petitioner and others have been arrayed as an accused in Crime No.56/2022 and the petitioner and others who are arrayed as Accused Nos.20 to 51 have been remanded to police custody for a period of 14 days and thereafter to judicial custody. The learned counsel for the petitioner would fairly admit this position, but would attempt -3- WP No. 5152 of 2023 to canvass that the continued suspension is not warranted and would place reliance on sub-rule (3) of Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short 'KCS Rules').
3. In our opinion, this is a case which is squarely covered by sub-rule (2) of Rule 10 of the KCS Rules. The said sub-rule has been the subject matter of interpretation in an order of the learned Single Judge authored by one of us [GNJ] in W.P. Nos.6012-6013/2017 dated 16.02.2017 wherein, it has been categorically held that the moment a Government servant is continued in detention beyond 48 hours, the provisions of sub-rule (2) of Rule 10 of the KCS Rules, which is a deeming provision, the Government servant is deemed to have been suspended by operation of statute and in that view, no separate orders placing the Government servant under suspension need be made. The relevant paragraphs No.5, 6, 7 and 9 are extracted hereunder:-
"5. A reading of sub-Rule (2) of Rules 10 of the K.C.S. Rules would clearly negate the contention of the petitioners that the impugned order is passed without authority. The fact -4- WP No. 5152 of 2023 remains that the petitioners were arrested and detained on 29.11.2016 and continued in custody till 07.12.2016 i.e., for a period in excess of 48 hours. The provisions of sub-rule (2) of Rule 10 of the K.C.S. Rules is a deeming provision, by which a Government servant, who is detained in the custody for a period in excess of 48 hours shall be deemed to have been placed under suspension as if by an order passed by the competent authority. The implication is that the Government servant shall remain automatically suspended from service if he/she is in detention for a period in excess of 48 hours. The order impugned herein has to be read as communication of the deemed suspension.
6. As regards the legality of a rule providing for deemed suspension, the Full Bench of the Hon'ble Apex Court in the case of Nelson Motis Vs. Union of India and another; reported in (1992)4 Supreme Court Cases 711, while interpreting similar provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965 Rule 10(4) was pleased to uphold the concept of deemed suspension has observed as follows:
"7. It has been contended on behalf of the appellant that while in a case governed by sub-rule (3), a government servant, on the order of his punishment by way of dismissal, removal or compulsory retirement from service being set aside, stands suspended only if he had been under suspension earlier, sub-rule (4) provides for automatic suspension of a government servant, even if he was never under suspension at any point of time [emphasis supplied by me]; and this -5- WP No. 5152 of 2023 invidious distinction amounts to illegal discrimination which renders sub-rule (4) unconstitutional. The argument is that with a view to save the sub-rule, its application has to be limited to cases in which the government servant has been, during the pendency of the disciplinary proceeding, under suspension. The learned counsel proceeded to say that the established principle of interpretation favouring reading down of a statutory provision in order to avoid it being struck down as illegal, is applicable to this case. If this is found not possible in view of the clear language of sub-
rule (4), the same should be struck down as unconstitutional. In either event, it should be further
held that the appellant, who was not under suspension earlier, cannot be treated to have been placed under suspension when his writ petition was allowed by the Tribunal. Reliance has been placed on the decision of the Central Administrative Tribunal in N.V. Karwarkar v. Administrator of Goa, Daman and Diu. Reference was also made to certain observations of this Court in Khem Chand v. Union of India, and Divisional Personnel Officer, Western Railway v. Sunder Dass.
7. As held by the Hon'ble Apex Court, a reading of sub-Rule (2) of Rules 10 of the K.C.S. Rules as extracted supra leaves no scope for ambiguity and is framed in categorical terms. The suspension of a Government servant who has been detained in custody for a period exceeding 48 hours is by operation of the statute as if an order is passed by the Competent Authority itself. This is the deeming fiction and whereby it shall be presumed that an order of suspension by the Competent -6- WP No. 5152 of 2023 Authority automatically comes into existence in the particular case as set-out in the provisions of sub-Rule (2) of Rule 10 of K.C.S. Rules and no separate order placing the official under suspension is required to be made by the Competent Authority.
9. The Hon'ble Apex Court has been pleased to hold that this malaise of corruption has pervaded all walks of life and has to be weeded out and has to be dealt with an iron hand. It is seen that the petitioners have been arrested on a complaint of having indulged in corruption and they have been placed in detention for a period in excess of 48 hours."
4. That apart, it is seen that the allegations are not minor and the allegations reflect, the manipulation of the system whereby, ineligible candidates and candidates who had not even applied have been given orders of appointment. The ineligible candidates and those who have not even applied, are now arrayed as accused in the aforesaid criminal case.
5. In the instant case, the learned Additional Government Advocate would submit that the petitioner having been placed in detention for more than 14 days and -7- WP No. 5152 of 2023 hence the suspension is automatic or that the order of suspension is deemed to have been passed.
6. A bare reading of sub-rule (2) of Rule 10 of KCS Rules, leaves no doubt that the suspension is by an operation of law and hence, the instant writ petition and application is wholly misconceived. In that view of the matter and keeping in view the heinous nature of allegations, we do not find any ground which warrants interference.
7. Accordingly, petition stands dismissed. In view of disposal of the petition, pending I.As do not survive for consideration and is accordingly disposed off.
Sd/-
JUDGE Sd/-
JUDGE CHS/List No.: 1 Sl No.: 8