Smt. H B Kamalamma vs The Bengaluru Development Authority on 26 April, 2018

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Karnataka High Court

Smt. H B Kamalamma vs The Bengaluru Development Authority on 26 April, 2018

Bench: A.S.Bopanna

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 26th DAY OF APRIL, 2018

                       BEFORE

     THE HON'BLE MR. JUSTICE A.S.BOPANNA

     WRIT PETITION NO.23312/2017(S-DIS)

BETWEEN :

Smt.H.B.Kamalamma,
W/o.Late H.D.Rangaiah,
Aged about 52 years,
R/at No.298/6,
Maruthi Nagar, Gubbi,
Tumkur Dist. Occ: FDA
Deputy Secretary - IV,
Bengaluru Development
Authority, Bengaluru.                 ...PETITIONER

     (By Sri.S.B.Mukhannappa, Adv.)

AND :

1.   The Bengaluru Development
     Authority, represented
     By its Commissioner,
     T.Chowdaiah Road,
     Bengaluru - 20.

2.   The Commissioner and
     Disciplinary Authority,
     Bengaluru Development Authority,
     Bengaluru - 560 020.          ...RESPONDENTS

     (By Sri.M.V.Charati, Adv. for
         Sri.G.S.Kannur, Adv.)
                      . . . .
                            -2-




     This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
impugned order of dismissal dated 24.05.2017 passed
by the respondent No.2 at Annexure 'A' and direct
respondent Authorities to reinstate the petitioner with
immediate effect with all back wages and increments.

      This writ petition coming on for preliminary
hearing in 'B' Group, this day, the Court made the
following:

                       ORDER

The petitioner is before this Court assailing the order dated 24.05.2017 impugned at Annexure 'A' to the petition. In that light the petitioner is seeking that the respondents be directed to reinstate the petitioner with immediate effect with backwages and all consequential benefits.

2. The petitioner who was selected through the process undertaken by the Karnataka Public Service Commission, ('KPSC' for short) to fill up the SC and ST backlog posts in various Departments, was appointed as First Division Assistant in the Respondents - Authority. The appointment was made on 15.04.2004 indicating the probationary period to be two years. The undisputed -3- position is that neither a declaration of the probation has been made nor specific orders have been passed to extend the probationary period. When the petitioner has completed nearly 14 years of service, the impugned order at Annexure 'A' dated 24.05.2017 is passed terminating the petitioner from the service, though it is indicated therein that the petitioner is a probationer and is being discharged. Hence, the petitioner is before this Court.

3. The very narration as contained in the order impugned as also the contentions as urged by the respondents through their objection statement by itself would indicate that the order cannot be construed as a discharge simpliciter inasmuch as allegations have been made against the petitioner with regard to the fabrication and manipulation of records for the purpose of obtaining employment and therefore, in that circumstance, the termination is made.

4. On the legal aspect of the matter that if an order ostensibly made as an order of discharge of the -4- probationer casts stigma on the person, such an order is liable to be set-aside, has been repeatedly enunciated by the Hon'ble Supreme Court. One such decision to which the learned counsel for the petitioner makes reference is in the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others [(1999) 3 SCC 60]. If the legal position as enunciated by the Hon'ble Supreme Court is taken into consideration and in that light even if the contention as put forth by the respondents that the petitioner has not only manipulated the records but has also managed to see that the records are not available is taken into consideration, that by itself cannot be a justification to dismiss the petitioner from service without holding appropriate enquiry.

5. In this regard at this juncture, though this Court need not enter into the question as to whether the petitioner should be considered as a person who has been continued in employment after declaration of probation, since I have already arrived at the conclusion -5- that the very nature of the contents of the impugned order and the objection statement would disclose that charges of serious misconduct has been made against the petitioner, for that very reason the order dated 24.05.2017 could not be sustainable even if the petitioner is deemed as probationer. Even in that position if the order impugned is to be set-aside the respondents should be reserved the liberty of following the due process of law by providing opportunity to the petitioner and thereafter conclude the proceedings in accordance with law.

In that view, the order dated 24.05.2017 is set- aside.

The respondent is directed to reinstate the petitioner into service.

Liberty is however reserved to the respondents to issue an appropriate Show-cause Notice/Charge Sheet/ Statement of Imputations, provide opportunity to the petitioner in accordance with law and thereafter proceed further based on such enquiry being held against the petitioner.

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The period presently for which the petitioner was out of employment shall be regulated by the ultimate orders that would be passed and in that regard all contentions are left open.

The reinstatement shall be made within four weeks from this date and the proceedings if any held shall thereafter be concluded in an expeditious manner.

Petition is accordingly disposed of.

Sd/-

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