Karnataka High Court
Sri.Thimmaraju vs The Managing Director on 4 April, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 7861 OF 2020 (S-DIS)
BETWEEN:
SRI. THIMMARAJU
S/O LATE. THIMMANNA
AGED ABOUT 42 YEARS
R/AT NO. 824, 9TH MAIN
1ST CROSS, SAMYUKTHA KARNATAKA LAYOUT
JNANABHARATHI
BANGALORE- 560 056.
....PETITIONER
(BY SRI. SRINIVASA K., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR
BESCOM, K.R.CIRCLE
BENGALURU-560 001.
2. THE GENERAL MANAGER (A & HR)
BESCOM, K.R. CIRCLE
BENGALURU- 560 001.
3. THE SUPERINTENDING ENGINEER (ELE.)
BESCOM
BANGALORE NORTH CIRCLE
CRESCENT TOWER, CRESCENT ROAD
BANGALORE-560 001.
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4. THE EXECUTIVE ENGINEER(ELE.)
BESCOM
O & M DIVISION, PEENYA
BANGALORE- 560 058.
....RESPONDENTS
(BY SRI. B L SANJEEV, ADVOCATE FOR R1 TO R3
R4 SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO
IMPUGNED OFFICIAL MEMORANDUM DATED 09.04.2020
PASSED BY THE R-4 VIDE ANNEXURE-U. DIRECT THE
RESPONDENTS TO CONTINUE THE SERVICES OF THE
PETITIONER IN THE POST OF JUNIOR LINEMEN AS PER
ORDER DATED 06.06.2017 PASSED BY THE R-4 VIDE
ANNX-G AND ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02/04/2024, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner in the captioned petition has challenged the official memorandum dated 9.4.2020 passed by respondent No.4 thereby compulsorily removing the petitioner from the post of Probationary Mazdoor w.e.f. 10.4.2020.
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2. The facts leading to the case are as under:
Petitioner was initially appointed as a Gangman, after six years of service, his position was converted to that of Probationary Mazdoor w.e.f. 20.7.2006.
However, during his tenure as a Probationary Mazdoor, an incident occurred where the petitioner was alleged to have accepted bribe. Although a crime was registered and a criminal prosecution was launched against the petitioner, petitioner was acquitted of criminal charges by the criminal Court. A departmental enquiry was however initiated against the petitioner and the petitioner herein was found guilty of charges and Lokayuktha recommended to impose a penalty of removal from service.
Respondent No.4/Disciplinary Authority taking cognizance of petitioner's status as a Probationary Mazdoor in terms of notification dated 28.3.2006 proceeded to terminate petitioner from service by 4 having recourse to Section 25F of Industrial Disputes Act (for short "I.D. Act") as outlined in Regulation 14(b) of Karnataka Electricity Board (Recruitment and Service Conditions of Probationary Mazdoors) Regulations, 1997(for short "1997 Regulations").
3. Learned counsel appearing for petitioner citing petitioner's promotion to the position of Junior Lineman by order dated 6.6.2017 contends that the impugned penalty imposed by invoking the provisions of I.D. Act is not at all sustainable and the same is liable to be set aside. Conversely, respondents' argue that the petitioner's status as a Probationary Mazdoor falls under 1997 Regulations, and therefore, the respondents have properly taken action under the I.D. Act. The respondents have also further contended that the petitioner's acquittal in criminal case does not absolve him of the guilt in the departmental enquiry.
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4. Heard the learned counsel for petitioner and learned counsel for respondents.
5. On careful consideration of the arguments presented by the parties and thorough examination of the relevant regulations and statutory provisions, this Court has to examine the petitioner's status to ascertain whether penalty can be inflicted under K.E.B. Employees(CDC & A)Regulations, 1987 (for short "CDC & A Regulations, 1987") or in terms of 1997 Regulations and Section 25F of I.D.Act.
6. The petitioner's initial appointment as a Gangman and subsequent conversion to a Probationary Mazdoor is not in dispute. It is also not in dispute that crime was registered against the petitioner while he was still under probationary. The fact that the petitioner was promoted to the position of Junior Lineman by order dated 6.6.2017 does 6 alter the regulatory landscape for addressing disciplinary matters. On perusal of Annexure-G, it is clearly evident that petitioner was promoted to the position of Junior Lineman and therefore, petitioner falls within the ambit of CDC & A Regulations, 1987 and KEB Employees Service Rules, and not as provided in Regulation 14(b) of 1997 Regulations. If petitioner was promoted to the position of Junior Lineman, his promotion alters the regulatory framework and petitioner's services are governed under the CDC & A Regulations, 1987 and KEB Employees Service Rules.
7. Though, the incident relates to petitioner's tenure as a Probationary Mazdoor, in the light of alteration of his status pending consideration of the enquiry, the disciplinary authority could not have 7 inflicted the penalty by having recourse to 1997 Regulations and I.D. Act.
8. The respondents' contention that despite promotion of petitioner to Junior Lineman, the disciplinary proceedings remain within the purview of 1997 Regulations and I.D.Act, citing petitioner's initial appointment as a Gangman and conversion to Probationary Mazdoor cannot be acceded to. Taking note of the promotion of the petitioner to the position of Junior Lineman, respondent No.4/disciplinary authority on receipt of enquiry report has to proceed in terms of CDC & A Regulations, 1987 and KEB Employees Service Rules by issuing a second show- cause notice.
9. Insofar as the second contention raised by the petitioner questioning the enquiry report on the ground that criminal Court has acquitted the 8 petitioner, this Court has to examine the tenor of acquittal order passed by the criminal Court. This Court has considered the precedent set by the Hon'ble Apex Court regarding interplay between criminal acquittal and departmental enquiries. The Apex Court has consistently held that benefit of doubt conferred in criminal proceedings does not automatically absolve an individual of guilt in departmental enquiries.
10. The relevant portion of the findings recorded by the criminal Court is culled out, which reads as under:
"To sum-up my discussion, prosecution has failed to prove that the official act is pending before the accused in respect of the complainant. The evidence on record goes to show that, being the mazdur gangment working in BESCOM, accused has got nothing to perform in respect of the application filed for change of tariff. The prosecution has failed to prove the demand of bribe amount by the accused, which is an 9 essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. The prosecution has failed to discharge the initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, 1 hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative."
11. In the light of the observations made by the criminal Court, this Court is more than satisfied that the acquittal of the petitioner in criminal case 10 does not preclude the respondents from conducting a separate departmental enquiry. The benefit of doubt conferred by the criminal Court in criminal proceedings does not automatically absolve petitioner of guilt in departmental enquiry.
12. In the light of foregoing analysis, this Court proceeds to pass the following:
ORDER
(i) The writ petition is allowed in part.
(ii) The impugned official memorandum dated 9.4.2020 bearing No.PÀ.E.(«)/¦.«./¯É/28-33 vide Annexure-
U is hereby quashed.
(iii) Respondent No.4 in terms of the report submitted by Additional Registrar of Enquiries-3 dated 30.4.2019 shall proceed further in terms of CDCA Regulations, 1987 and KEB Employees Service Rules by issuing a second show-cause notice.
(iv) In the event, such a show-cause notice is issued by respondent No.4, petitioner is at liberty to offer his explanation.
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(v) On receipt of explanation, respondent No.4 ensuring all procedural safeguards and principles of natural justice shall thereafter proceed to pass appropriate orders in accordance with law within an outer limit of four months.
Sd/-
JUDGE *alb/-