Karnataka High Court
Shri.A.C.Fernandes vs The State Of Karnataka on 9 November, 2010
Author: N.Kumar
Bench: N.Kumar
" 2v_v(By:Smt.S11ee1a Krishna, AGA) IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9TH DAY OF NOVEMBER, 2010 PRESENT p THE HON'BLE MR. JUSTICE N KUIVVIARV THE HONBLE MR. JUSTIEE A W.I:> No.15o33/2009 BETWEEN Shri A C Fernandes, S/o.1ate Casta Fernandes, ' Aged about 67 years,._ ' 'V _ , ' -« R/0.1-iouse No.50~1--60; " Ananda Villa, Upper B_endoor, Mangalore-- .. Petitioner (By Sr: 13 B 'Ea; _' AND: H' % t I 1., 'The State. of Karnataka " ' Representeaby its Secretary to .,GoVeri':..rnent, Finance Department, * .Xk'i(;lha:aa_i.Soud11a, Banga1ore--56O O01. TheLA(3ommissiOner for Excise , Government of Karnataka, Bangalore. .. Respondents
I /1 E P-.) This WP is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the""--order dated 11.11.2008 in A No.2251/1998 of the _K~A'F._(xride Annexure--F] and allow the Application Nor.;«?,25.1f/1x998 and grant the reliefs prayed for in the said .1 ~ This W.P coming on for orders' if ' passed the follovsdngz Q-_ Misc.W No.10695/20 for hearing is allowed. __ VA _ 2 __ if _
2. The petitioner has inithis writ petition the order ll-byip upholding the Gove,rnmentf'V.Vorder ieiiiring him compulsorily from service; TV "
3. _ _The'petitioiaerjoliried the service as an Inspector of He was promoted as Deputy of Excise on 9.5.1989. While he was lnspector of Excise in Mangalore, Central AAZone.,-tithe Karnataka Lokayukta police instituted a
--..VcifirrAiinal proceedings against him for the offence under Section 5[1)(d] read with Section 5(2) of the Prevention of Corruption Act. 1947 [hereinafter referred to as 'the Act') and Section 161 of IPC [[hereinafter referredf"--.to--VVas 'the Code'). Initially he was placed under from 26.6.1987. Subsequentl_y;'*"l1eA "in service on 23.3.1998. After trial: learned, and Special Judge the Act and Code in Crl,€.ase 1\¥0';'3E/_It49l188.'by judgriilent dated 29.11.1994 and awarded year SI and fine of the order of conviVctionA,i't».!.;e pétitiorienr was dismissed from service on 25.5.1996. p The-.jfipetétiozier challenged the order of convictionuljetoredthlis Court. This Court by order dated 9 fallowedvllltlhe appeal and set aside the order of convlietlioijl acquitted the petitioner. Thereafter, he made gal representation for withdrawing the order of
6. dismissal and for reinstatement and granting all Rconsequential benefits. In View of non--consideration of it his representation, he preferred Application L No.5253/1997 to the Tribunal. in the said application, a direction was issued to the respondents tefionsider the representation and pass Thereafter on 23.3.1998, an withdrawing the order of dismisisalilnand salary during the period Viiervvas out c:f_"ar1d all' other consequential;-i.ioenefi't'si..'V._:':Cinp day i.e. 23.3.1998, the aniorder under Rule 285(4) of from service.
Aggrieved preferred an appli The Tribunal declined to inte1jte're retiring him compulsorily fro_:11--service..V _ Aggrieved by the said order, the petitioner .is"befoire this Court.
counsel for the petitioner assailing the o1~<.derV_'of tAheiTribuna1 contends that the Government has x passedtan order on 24.6.1985 describing the procedure ' 'A-V_VVto-he foiiovved for retiring the government servant under Rule 285(4) of KCSRs. Before such an order is passed, the case of the government servant be considered by the Screening Committee-.-'iritu thereafter such an order cou1d._be passed, statement of objections filed the Tribunal, the government-»has categoricaliy'"ad:initted'if that the case of the petitioner not considered by the Screening Committee: 'A decision of the Apex Court .Viri;'t--he --vs-- Chandra Mohan N§.'gHE;1fbK1----Vtt€];§vQ1;%[€:d:~..ifi«Sf,Rv.:>19'/8(1) so 12, wherein the observed under:
The,'1earn'ed"<sir1g1e Judge held the Instructions of Ministry of Home Affairs as statutory and as such binding. On a ConcessionV_____r_n_ade in the counter--affidaVit submitted before him by the Under-
Seeretary of the Personnel Department Secretariat). According to the Cour;-tei='maff1daV1t these Instructions were _ rriadev' by the Government by rule 2 of the All .. India Services [Conditions of Service-
. Residuary Matters) Rules, 1960. It is not necessary to go into this aspect in detail int 'S his case as to Whether the instructions can be eievated to the status of statutory rules or even constitutional directions as found by lowest the learned single Judge. It is sufficient for our purpose that these instructions do not.» violate any provisions of the Act or rules Rule 16(3), being a rigorous ru1e_..vis-a"--l-"V;~ vis a Government servant not himself' l"
to retire under rule 16(2), has to be in a fair and reasonable rnanner. _"Since; »ru'le_' 16(3) itself does not contain any "gu'i'delin--esV,l"__ A directions or criteria, the"=instruction"issued"~~,p*Q by the Government Vfu_1fnish'an*--essentia.1V'and"; ' salutary procedure the purp_ose"""of' securing uniformity iri.._dapplicat.ion' ' ofthe rule. There instructi'onsf--really fill--up' the yawning gaps in tl71e,provisions_. and are embedded in the VC.oi1dii.tioi1s _of. service. There are binding onA,.the'-Government[and cannot be vi.o«l--ated Elton _:the..pl"'~.pr_ejuCéice of the Governmeiit. .servant (see also Sant Raj Shanna;--.v';"":StatejjRajasthan.- 8: Anr., (2) and Unionpof ilndia Joseph and ors. (3)"
5. I-eadinglilofj -aforesaid judgment makes it clear that are not framed, the said gnvtern_n1eVnt ord«er__,_fu1"r1ishes an essential procedure for ' securing uniformity in application of the instructions really fill up the yawning gaps in thelprovisions and are embedded in the conditions of service and they are binding on the government and 'cannot be violated to the prejudice of the government servant. Therefore, it was contended that the Rule is violated by the government while consideri:Jf:1.lg»o. the application of the government servant under"'Rtl1.1€...2l35(4) of KCSRS.
6. The material on record the government servant case.' Merely because, the..1_ggScreeniri;gll:"Comrnit'teesE did not consider the case of would not become In petitioner was convicted 2 after trial for the offen7ees'-- of the Act and the Code and heSI for a period of one year and filiile 'Rs.2.,lOG0,/__ This Court in appeal set aside the
-of conviction on the ground that the himself has not supported the case of the prosecution and panel} witnesses did not see with their the handing over the currencies, though the __?evidence in all other aspects and the seizure of currencies was not disputed. Therefore, this Court extending the benefit of doubt in the facts of tl'3e'»case set aside the order of conviction and ac:qtiif:itelc_'lll'1' petitioner. The relevant portion of the.. reads as under:
"It is also regretable»i'it-hat in._a' caselof this type, the coniplainanhwas not--..reco_i_fded in the handwriting of the '<:o111plain'ant. It is always preferable_ to record' tliez coniplaint in the handwriting of the cj_oniplain'a.nt in cases of this serious nati1re.l'fl'ri .l§,fas'e it is not known" W310' recorded 'thVe"-'complaint Ex.P2 and i_s'I__r1fot" .ir1_ the'-." handwriting of the con1plai;narit."'* » For. all-' these reasons this <'??ElI-7l€3_Eli'1..\_2vill--1l-iiave_to__be a.ll,Qwed. The appeal is ,allowedf.; "the ,ac_cused is entitled to the benefits oi"tl"euibgt land the accused is acquitted of allthe' c_harges-.t_hat" he has been convicted. He is, set at .liberty_ forthwith . "
the""afo1Tesaid judgment, it is clear that the 'petitigon4er found guilty of the offence. In a crirriinal the guilty of the offence is to be proved beyond all reasonable doubt in strict compliance of the Evidence Act. Therefore, on the aforesaid technical ground extending the benefit of doubt, the petitioner 3 was acquitted. In this background, the government has issued an order of compulsory reti1'emefit'iihfo-iT'v.the petitioner under Rule 285(4) of interest. The Screening Comf.n'i'tt'ee take into» T. consideration of the case of the who are sought to be retiredjon This is a solitary 'government is competent to In those circurristancei-'gt has been given benefit consequential monetary beneiitiisgigi' Section 285(4) of KCSI§s,Vis and it is in the pubiic interest. It is"necessary"thatv'a oroper message is to be sent to the «.en1p1oyees«._that if they indulge in such practice, they are _ 'Li_i1ab1e"*t,O succeed and there is no continuity in service. We decline to exercise the discretionary jurisdiction * u:nder.Artic1es 226 and 227 of the Constitution of India toddentertain the Writ petition. In View of the above. we do it///' not find any justification to interfere with thispaatter. Accordmgly 1t 15 dlsmlssed.
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