Karnataka High Court
State Of Karnataka vs Sri P Giridhar Kudva on 14 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 1458, 2020 (4) AKR 447
Bench: S.N.Satyanarayana, H.P.Sandesh
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR. JUSTICE H.P. SANDESH
WRIT PETITION NO.22473/2015 (S-KAT)
BETWEEN:
1. STATE OF KARNATAKA,
REPRESENTED BY THE
PRINCIPAL SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT (ADMN),
VIDHANA SOUDHA,
BENGALURU-1.
2. THE COMMISSIONER,
COMMERCIAL TAXES DEPARTMENT,
GANDHINAGAR,
BENGALURU-9.
3. SRI S.Y. KUMBAR,
RETIRED DISTRICT AND SESSIONS JUDGE
AND INQUIRING AUTHORITY,
C/O THE COMMISSIONER,
COMMERCIAL TAXES, GANDHINAGAR,
BENGALURU-9.
4. THE ACCOUNTANT GENERAL (A & E),
PARK HOUSE, BENGALURU-1. ... PETITIONERS
(BY SRI VENKATA SATYANARAYAN, HCGP)
2
AND:
SRI. P.GIRIDHAR KUDVA,
S/O. P. KRISHNA KUDVA (LATE),
AGED ABOUT 72 YEARS,
RETIRED DEPUTY COMMISSIONER
OF COMMERCIAL TAXES,
No.268/3/2, 37TH CROSS,
8TH BLOCK, JAYANAGAR,
BENGALURU-82. ... RESPONDENT
(BY SRI KARTIKEYAN B.S. IYER, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL, BENGALURU DATED 01.04.2014 IN
APPLICATION No.2870/2013 VIDE ANNEXURE-A TO THE WRIT
PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR FURTHER
ARGUMENTS THIS DAY, SATYANARAYANA J., MADE THE
FOLLOWING:
ORDER
The respondent-State in Application No.2870/2013 on the file of the Karnataka Administrative Tribunal, Bengaluru ('Tribunal' for short), has come up in this writ petition impugning the order dated 1.4.2014, passed in the said proceedings.
2. The brief facts leading to this writ petition are as under:
The application before the Tribunal was filed by the respondent herein seeking quashing of show cause notice issued to him along with articles of charge vide No.DE.65.ªÁvÉvÀ.2012 3 dated 8.11.2012 (Annexure-A2) and Order No.DE.65.ªÁvÉvÀ.2012 dated 23.2.2013 (Annexure-A4) in appointing the Enquiry Authority issued by the respondent No.1 in the said proceedings.
3. Admittedly, the respondent herein was discharging his duties as Deputy Commissioner of Commercial Taxes at Bengaluru, while he was in service. His service records would indicate that at the time of entering into service, he had informed that his date of birth is 3.10.1949 and accordingly he continued to work in the Department. It is seen that, in or around 2006, an anonymous letter was received by the authorities indicating that the date of birth of the respondent herein is 30.11.1942 and it is not 3.10.1949, as furnished by him while joining service. It is there onwards, an enquiry was commenced by issuing a letter to him bearing No.JCCT(A) DVO 1-T/537.2056 dated 12.1.2006 and also a notice calling upon him to give explanation for such allegation by notice dated 4.2.2006.
4. It is in response to that, the respondent herein is said to have written a letter to the Joint Commissioner of Commercial Taxes (Adm.) DVO 1, Gandhinagar, Bengaluru, which is received 4 in the said office on 17.2.2006, as could be seen from the document which is produced along with memo dated 8.2.2018. In the said letter, the respondent, with reference to the allegation of his date of birth being 30.11.1942 is concerned, has submitted his explanation as under:
"2. As regard to the certificate of my school final, I have already submitted an explanation to you that the cumulative record was lost long back. However, I do not wish to dispute the date of birth mentioned in the allegation and I admit the same."
In view of the above, there is a clear admission on the part of the respondent delinquent employee that the date of birth which is furnished by him at the time of entering into service as 3.10.1949 is erroneous and that his actual date of birth is 30.11.1942. Inspite of there being a clear admission, it is seen that an enquiry is initiated while he was in service. It is also seen that he did not participate in the said enquiry. Several notices that were sent to him was dodged and avoided and subsequently the enquiry was completed and it was held that as on 2005, when the intimation was received regarding false age furnished by him he was aged about 64 years and that he should have 5 retired on 30.11.2000 itself. However, he has continued in service by giving false date of birth.
5. The records would also say that the Joint Commissioner of Commercial Taxes held the enquiry. In the said enquiry, explanation was given by the respondent herein on 17.2.2006, as stated supra. Though he has given a reply on 17.2.2006, he did not appear before the authorities and participate in the enquiry, thereby clearly indicating that an enquiry was already started when he was in service and inspite of enquiry being initiated and continued against him, he was not discharged from service and he was allowed to complete service of 58 years on the basis of false date of birth, which was furnished by him at the time of entering into service.
6. As could be seen from another document which is produced, a proceeding was there before the Solicitor and Ex- Officio Deputy Secretary Law Department and Enquiry Officer, Vidhana Soudha, Bengaluru in Case No.Law 2 JDV 2006, where after conducting the enquiry, an order is passed on 4.10.2008 in holding that his date of birth is required to be altered from 3.10.1949 to 30.11.1942, which judgment rendered by the 6 Enquiry Officer, Solicitor and Ex-officio Deputy Secretary to Government, Department of Law, Justice and Human Rights, Vidhana Soudha, Bengaluru, is also produced along with memo dated 8.2.2018. After the decision was rendered by the authorities on 4.10.2008 in Case No.LAW 2 JDV 2006, an order was passed vide G.O.No.DE.9.ªÁvÉvÀ.2006 dated 2.6.2010 by the Finance Department (Commercial Tax - II).
7. It is thereafter the charge memo is issued in the year 2012 where the defence taken by the employee is to the effect that the enquiry ought to have been initiated against him while he was in service. Since charge sheet is issued after four years of his retirement, in the light of Rule 214(2)(b) of the Karnataka Civil Services Rules, the same should be quashed.
8. This ground was urged by him in Application No.2870/2013 before the Tribunal where while considering the same, the Tribunal relying upon the judgment rendered in the matter of Marathwada University v. S.B.R.Chawhan reported in AIR 1989 SC 1582, held that the statutory authority cannot travel beyond the power conferred and that the impugned order dated 8.11.2012 in issuing the charge sheet against the 7 applicant before the Tribunal for disciplinary enquiry proceedings after statutory limit of four years is not valid in law and accordingly quashed the application, which is subject matter of challenge before this Court.
9. In the instant case, it is clearly seen that the respondent herein was a responsible officer of the State who entered into service on 14.7.1975 as Assistant Commercial Tax Officer in the Department of Commercial Tax. At the time of joining into service, though his date of birth was 30.11.1942, he has furnished the same as 3.10.1949 deliberately and he has continued in service uninterruptedly. The material on record would indicate that in the normal circumstances, he should have retired from service in the month of November 2000 after completing 58 years of service, as it was the age of superannuation. It is seen that in view of the false age being furnished by him, he continued in service even after 2005 when the complaint was received by his Superiors regarding false age being furnished by him to enter into service.
10. It is in this background, it should be construed that all these proceedings have been initiated in the year 2006. The fact 8 that the respondent could be responsible in manipulating the things in such a way that charge sheet is not issued immediately thereafter, cannot be ruled out. When a person at the time of entering into service itself is having criminal intention of providing false date of birth and successfully continued in service upto 2005 i.e., the year when his falsehood was exposed, has continued in service even thereafter to complete 58 years of service based on the false date of birth, which is furnished by him as 3.10.1949 and has taken the benefit of the same. In the meanwhile, it is also seen that he has dodged the enquiry proceedings which was initiated against him and made sure that the proceedings initiated against him would not reach finality until 4.10.2008 i.e., when the judgment was passed by the competent authority, namely Solicitor and Ex-Officio Deputy Secretary Law Department and Enquiry Officer, Vidhana Soudha, Bengaluru in Case No.LAW 2 JDV 2006, in holding that the actual date of birth of the respondent herein is 30.11.1942.
11. In that view of the matter, issuance of charge sheet for conducting disciplinary proceedings, though belated, it is proper and should not be interfered with. We are also of the opinion that when the said officer accepted that he has 9 deliberately given false date of birth in his reply dated 17.2.2006, much earlier to his retirement on the basis of false date of birth issued by him, it is a fit case where criminal prosecution is required to be initiated. In fact, though Rule 214(3) and (6) of the Karnataka Civil Services Rules, initially was an obstacle for initiating proceedings against a retired officer, the Apex Court in the matter of STATE OF PUNJAB AND OTHERS v. KAILASH NATH reported in AIR 1989 SC 558 has read down the similar Rule which was in Punjab Civil Services and has held that the same would not come in the way of holding criminal prosecution.
12. Therefore, in the present case also, while considering the writ petition filed by the petitioner-State, we set aside not only the order passed by the Tribunal, but also reserve liberty to the petitioner-State herein to initiate criminal prosecution against respondent-delinquent officer for gross abuse of process of law, as well as for making deliberate false declaration of his date of birth to secure illegal benefit to continue in service for seven years beyond the date on which he was required to 10 superannuate and consequently causing financial loss to the State.
13. With such observations, this writ petition is allowed. It is made clear that criminal prosecution shall be initiated within 30 days from the date of receipt of copy of this order.
Sd/-
JUDGE Sd/-
JUDGE MD