Karnataka High Court
The State Of Karnataka vs Sri G A Bava on 4 April, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF APRIL 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.23799 OF 2012(S-KAT)
BETWEEN:
1. The State of Karnataka
Represented by its Secretary
Home Department (Police Service),
Vidhana Soudha,
Bangalore - 01.
2. The Director General of Police
Nrupathunga Road,
Bangalore - 560 001.
3. The Accountant General (A & E)
Office of the Accountant General
(Administration and Establishment),
For State of Karnataka,
P.B.No.5369, Park House Road,
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Bangalore - 560 001. ...PETITIONERS
(By Smt.S.Susheela, AGA)
AND:
Sri G.A.Bava
S/o A.G.Adam,
Aged about 60 years
Rtd., Deputy Commissioner of Police,
No.33, Gadugal,
Nandi View Layout,
Dinnur Main Road,
Bangalore. ...RESPONDENT
(By Sri V.R.Sarathy, Advocate)
*****
This Writ Petition is filed under Article 226 and
227 of the Constitution of India praying to quash the
order dated 20.1.2012 passed by the Karnataka
Administrative Tribunal, Bangalore in Application
No.709 of 2010 vide Annexure-A by allowing this writ
petition.
This Writ Petition coming on for hearing this day,
K.L.Manjunath J., made the following:-
ORDER
The legality and correctness of the order passed by the Karnataka Administrative Tribunal, dated 3 20.01.2012 passed in Application No.709/2010, is called in question in this writ petition.
2. We have heard the learned Government Advocate appearing for the petitioners and Shri.V.R.Sarathy, learned counsel appearing for the respondent.
3. Facts leading to this writ petition are as hereunder:
The respondent was working as a Assistant Commissioner of Police in Bangalore City. Later he was promoted as the Deputy Commissioner of Police, Bangalore. While he was discharging the duties as Assistant Commissioner of Police attached to Upparpet Police Station, Bangalore a case was registered in Crime No.545/2000 against one Abdul Karim Telgi and other persons in regard to multi-crores stamp paper scam. He was supervising the investigation made by others. 4
4. On 07.01.2005, the Government decided to hold a joint departmental enquiry against the respondent and also against the officers who were negligent in conducting the investigation. The same was questioned by the respondent by filing an application before the Karnataka Administrative Tribunal in Application No.4648/2007. An interim order was obtained by him on 26.10.2007, restraining the respondents from proceeding with the enquiry and also to restrain the respondents (who are the petitioners in this writ petition) not to serve upon him the article of charges.
5. When the interim order was in force, he retired from the services w.e.f. 31.10.2007. On 20.11.2007, based on the submission of the respondent's counsel, since he retired from the services Application No.4648/2007, came to be dismissed as 5 does not survive's for consideration. Thereafter, the article of charges were served upon the respondent.
6. Challenging the article of charges served upon him, an application came to be filed by the respondent in Application No.709/2010, requesting the Tribunal to quash the impugned Government Order, dated 07.01.2005 and 25.10.2007 and 13.05.2005 appointing one Shri.K.Ramakrishna Bhat as an Enquiring Officer and to restrain the respondents from acting upon the Government order dated 07.01.2005 to hold a joint departmental enquiry and to further issue a writ of mandamus to release the entire pension benefits such as DCRG, commutation, leave salary and other benefits to which the respondent is entitled on account of attaining the age of superannuation. The application was resisted by the State.
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7. The Tribunal upon hearing the parties allowed the petition and quashed the government order dated 07.01.2005, 25.10.2007 and 13.05.2009 and further directed the third respondent therein to settle the pension and other retiremental benefits payable to him. This order is called in question in this writ petition.
8. We have heard the learned Government Advocate and Shri.V.R. Sarathy, learned counsel appearing for the parties.
9. The learned Government Advocate contends that the Tribunal has committed an error in allowing the application of the respondent on the presumption that the Government has taken action to hold a joint enquiry against the respondent after the lapse of six years, without considering that there was no delay in passing an order to hold a departmental enquiry not only against the respondent but also against other 7 officers of the department. According to her, the article of charges were framed within four years from the date of the original cause of action. Thereafter before the respondent could retire from the services, the article of charges were framed and when petitioner went to serve the respondent the article of charges, the respondent refused to receive the same on the ground that an interim order is operating against the writ petitioner and on account of interim order granted on 26.10.2007 before his retirement i.e., on 31.10.2007, the article of charges could not be served upon the respondent. She further contends that the Tribunal without noticing that there was no time for the Government for filing an application for modification of the order or to file a counter before his retirement on an erroneous ground, the application has been allowed without considering the case of the respondent on merits, but on a technical error.
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10. According to her, if the Tribunal had considered that the interim order was granted on 26.10.2007, and the article of charges were prepared by the Government on 25.10.2007 and he retired w.e.f. 31.10.2007 and that article of charges could not be served upon the respondent before his retirement, in Application No.4648/2007 was dismissed as having become infructuous based on the submission made by the respondent's counsel on 20.11.2007 the tribunal could not have held that the action taken to hold are enquiry as barred by time.
11. She further submits that since the application is allowed without considering the case of the respondent on merits, she requests the Court to set- aside the order of the Tribunal and remand the matter to the Tribunal for fresh consideration in accordance 9 with Law, since the main contention urged by the respondent has not been considered by the Tribunal.
12. Mr.Sarathy, learned counsel for the respondent, submits that when the criminal case registered against the Sri.Abdul Karim Telgi and others at the instance of the respondent and the respondent being the complainant, the Government could not have found fault with the respondent since the accused person Sri.Abdul Karim Telgi and others have been convicted by various Courts pursuant to the case registered by the respondent. He further submits that the Tribunal is justified in allowing the application since the action is not taken well within four years from the date of the cause of action. Under these circumstances, he request the Court to dismiss the petition. 10
13. Having heard the counsel for the parties, the only point that would arise for our consideration in this writ petition is:
Whether any error is committed by the Tribunal in allowing the application of the respondent on the ground that action has not been initiated within a period of four years from the date of cause of action and that the petitioners cannot proceed with the enquiry?
14. Admittedly, the facts are not in dispute to the following extent:
It is no doubt true that a criminal case was registered against Abdul Karim Telgi and others in Crime No.545/2000 on the file of Upparpet police station and the respondent was the complainant. It is also not in dispute that he was working as Assistant Commissioner of Police and thereafter several cases are also registered against Abdul Karim Telgi and others by 11 other Investigating Officers. It is also not in dispute that the Government decided to initiate joint disciplinary proceedings not only against the respondent, but also against other police officers who were working with them on account of their lapses in conducting the investigation and suppressing the investigation proceedings. It is not doubt true that the Government order is dated 07.01.2005, the allegation is in regard to the charges leveled against the respondent is concerned 2001-2002. If the Government has decided to hold an enquiry as per its order dated 07.01.2005, it cannot be said that as on the date of its order, the action initiated by the Government has to be held was not within the time, since it falls within four years. It is also not in dispute that the article of charges were framed by the department on 25.10.2007. Thereafter an Enquiry Officer was also appointed on 13.05.2009. It is also brought to our notice that between 2005 to 2009 three 12 more enquiry officers were also appointed by the Government and due to various reasons these officers did not proceed with the matter.
15. It is also not in dispute that the application was filed in Application No.4648/2007, challenging the Government Order dated 07.01.2005, a joint departmental enquiry was ordered to be initiated not only against the respondent, but also against several officers. On account of the interim order granted on 26.10.2007, the Government could not serve the article of charges on the contesting respondent. In the meanwhile, he retired from the services on account of attaining the age of superannuation. Even on the date of attaining the age of superannuation, the interim order was in force. Thereafter the Tribunal dismissed the application of the respondent filed on 25.10.2007, and the department has proceeded with the enquiry by serving upon the articles of charges.
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16. The Tribunal on considering the grounds urged by the respondent who was the applicant before it, has erroneously allowed the application only on the ground that there was a delay and latches in initiating the proceedings. The only reason assigned by the Tribunal for allowing the application is mentioned in para-19 of the order, which reads as under:
"19. No doubt, a notice was issued to the Applicant earlier but no action was taken, despite lapse of six years. The applicant did file an application in A.No.4648/2007 which came to be withdrawn. The Government had not taken any initiative either to vacate the interim order granted in the said case or to file reply statement. This is nothing but the inaction of the respondents. The interim order that was granted was for the period till the reply statement was being filed by the respondents. Therefore, the respondents cannot say that order of stay granted was 14 operating and as such they could not take any action in time."
17. Based on these reasonings the application filed by the respondent has been allowed. We are unable to accept the reasonings of the Tribunal. The article of charges were framed on 25.10.2007, an interim order was granted by the Tribunal on the next date i.e., 26.10.2007, the respondent retired from the services after attaining the age of superannuation on 31.10.2007 and on the next date of hearing, the petition filed by the respondent came to be dismissed as withdrawn. Whether the Tribunal is justified in holding that the Government did not take any action to file an application for vacating the interim order or to file a counter to the application of the respondent within 4 days?
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18. We are of the view that the Tribunal without considering the background of the case, without considering the effect of the interim order granted and considering the date of the framing of article of charges and interim order which was in force till the date of retirement, has erroneously allowed the application. In the circumstances, we are of the opinion that an error is committed by the Tribunal in allowing the application.
19. We would have disposed off this case on merits provided, the Tribunal had considered all the grounds urged by the respondent. Since there is no findings on the grounds urged by the respondent, we have no other option but to remand the matter to the Tribunal for fresh consideration in accordance with law.
20. In the result, the writ petition is allowed. The order of the Karnataka Administrative Tribunal dated, 20.01.2012, passed in Application No.709/2010 is 16 hereby set-aside. The matter is remanded to the Tribunal for fresh consideration in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE JJ