Karnataka High Court
Sri B K Kishore Kumar vs The State Of Karnataka on 10 March, 2025
Author: K.Somashekar
Bench: K.Somashekar
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WP NO. 25080 OF 2023
C/W WP NO. 18983 OF 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
WRIT PETITION NO.25080 OF 2023 (S-KSAT)
C/W
WRIT PETITION NO.18983 OF 2024 (S-KSAT)
IN WP NO.25080 OF 2023
BETWEEN:
SRI KISHORE KUMAR B.K.
S/O. B.M. KRISHNAPPA
AGED ABOUT 42 YEARS
RESIDING AT #49
'BHUVANESWARI NILAYA'
BASAVANAPURA
Digitally signed BENGALURU-560 083.
by SUMATHY
KANNAN ...PETITIONER
Location: HIGH
COURT OF (BY SRI PRITHVEESH M.K., ADVOCATE)
KARNATAKA
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT
ALSO KNOWN AS PRINCIPAL SECRETARY
MINISTRY OF HOME AFFAIRS
ROOM NO.222
VIDHANA SOUDHA
BENGALURU-560 001.
2. DIRECTOR GENERAL OF POLICE
STATE OF KARNATAKA
OFFICE OF DG AND IGP
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WP NO. 25080 OF 2023
C/W WP NO. 18983 OF 2024
NRUPATHUNGA ROAD
BENGALURU-560 001.
3. INSPECTOR GENERAL OF POLICE
CENTRAL RANGE
OFFICE OF IGP
NRUPATHUNGA ROAD
BENGALURU-560 001.
4. ADDITIONAL DGP CUM
DISCIPLINARY AUTHORITY
INTERNAL SECURITY DIVISION
OFFICE OF ADGP-ISD
NO.60, RICHMOND CIRCLE
BENGALURU-560 025.
5. SUPERINTENDENT OF POLICE
INTERNAL SECURITY DIVISION
OFFICE OF ADGP-ISD
NO.60, RICHMOND CIRCLE
BENGALURU-560 025.
6. SUPERINTENDENT OF POLICE
BENGALURU RURAL DISTRICT
OFFICE OF SP, BENGALURU RURAL
CHANDRIKA HOTEL CIRCLE
VASANTH NAGAR
BENGALURU-560 052.
...RESPONDENTS
(BY SRI VIKAS ROJIPURA, AGA FOR RESPONDENTS)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR SUCH OTHER ORDER OR DIRECTION QUASHING
ORDER OF SUSPENSION BEARING NO.PERSONNEL-4/34/ISD/2022-
23 DATED 15.10.2022 ISSUED BY ADDITIONAL DIRECTOR GENERAL
OF POLICE, INTERNAL SECURITY WING, NO.60 RICHMOND ROAD,
BENGALURU, RESPONDENT NO.4 VIDE ANNEXURE A AND THE
ORDER DATED 11.09.2023 PASSED BY KSAT IN APPLICATION
NO.3106 OF 2023 VIDE ANNEXURE B AND SUCH OTHER RELIEF AS A
CONSEQUENCE THEREOF, IN THE INTERESTS OF JUSTICE.
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WP NO. 25080 OF 2023
C/W WP NO. 18983 OF 2024
IN WP NO.18983 OF 2024
BETWEEN:
SRI B.K. KISHORE KUMAR
S/O. B.M. KRISHNAPPA
AGED ABOUT 44 YEARS
WORKING AS INSPECTOR OF POLICE
INTERNAL SECURITY DIVISION (ISD)
BENGALURU
RESIDING AT NO.99
'BHUVANESHWARI NILAYA'
BASAVANAPURA
BANNERGHATTA ROAD
GOTTIGERE POST
BENGALURU-560 083.
...PETITIONER
(BY SRI PRITHVEESH M.K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU-560 001.
2. THE DIRECTOR GENERAL AND
INSPECTOR GENERAL OF POLICE
NO.2, NRUPATHUNGA ROAD
BENGALURU-560 001.
3. THE DEPUTY SUPERINTENDENT OF POLICE
AND ENQUIRY OFFICER
OFFICE OF THE INSPECTOR
GENERAL OF POLICE
HEAD OFFICE
BENGALURU-560 009.
...RESPONDENTS
(BY SRI VIKAS ROJIPURA, AGA FOR RESPONDENTS)
***
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WP NO. 25080 OF 2023
C/W WP NO. 18983 OF 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 20.06.2024 PASSED BY THE HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU IN
APPLICATION NO.5226 OF 2023 (ANNEXURE-A) AND
CONSEQUENTLY ALLOW THE SAID APPLICATION NO.5226 OF 2023
AS PRAYED FOR BY THE PETITIONER BEFORE THE HON'BLE
TRIBUNAL (ANNEXURE-B) TO MEET THE ENDS OF JUSTICE.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED ON 25.02.2025 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, K. SOMASHEKAR J., PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE K. SOMASHEKAR) Since common questions of fact and that of law arise for consideration in both these writ petitions, and the petitions having been filed by the common petitioner, they are taken up for hearing together and are disposed of by this common order.
2. The present writ petitions are filed under Articles 226 and 227 of the Constitution of India with specific prayers. W.P.No.25080/2023 is filed seeking to quash -5- WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 the order of suspension bearing No. Personnel- 4/34/ISD/2022-23 dated 15.10.2022 issued by the Additional Director General of Police, Internal Security Wing, and the order dated 11.09.2023 passed by the Karnataka State Administrative Tribunal (KSAT) in Application No. 3106/2023 vide Annexure-"B". The petition in W.P.No.18983/2024 is filed seeking to set aside the impugned order dated 20.06.2024 passed by KSAT in Application No. 5226/2023, upholding the disciplinary proceedings against the petitioner.
3. Heard the learned counsel Shri Prithveesh M.K for the petitioner in both the petitions and the learned AGA Shri Vikas Rojipura for the respondents and perused the material available on record.
4. The Facts of the case in a nutshell are as follows:
The petitioner was initially appointed as a Sub-
Inspector of Police in the year 2003 and was subsequently promoted to the rank of Inspector of Police in the year 2010. While discharging his duties at Attibele Police -6- WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 Station, he was arraigned as Accused No. 12 in Crime No. 356/2022, which was initially registered against other individuals. The said FIR invoked various penal provisions under the Indian Penal Code, 1860, including Sections 109, 409, 420, 421, 418, 423, 424, 465, 467, 468, 471, and 120B read with Section 34 IPC, along with Sections 8 and 12 of the Prevention of Corruption Act, 1988.
5. Consequent to the registration of the FIR, the Additional Director General of Police / Respondent No. 4 in W.P.No.25080/2023, issued an order dated 15.10.2022, placing the petitioner under suspension. The said order, however, did not attribute any specific act of misconduct under the provisions of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965 (hereinafter referred to as 'the DP Rules, 1965', for short). Aggrieved by his suspension, the petitioner is said to have preferred Application No. 3106/2023 before the Karnataka State Administrative Tribunal (KSAT). The KSAT, vide order dated 11.09.2023, dismissed the said application and upheld the suspension without rendering any findings as to -7- WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 whether the petitioner's alleged actions constituted misconduct under the DP Rules, 1965 or not.
6. Parallely, it is stated that the petitioner assailed the criminal proceedings before the Hon'ble High Court of Karnataka in W.P. No. 2071/2023, invoking its jurisdiction under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.PC. By an order dated 05.10.2023, a learned Single Judge of this Court quashed the FIR, charge sheet, and cognizance order, inter alia, on the ground that there were procedural infirmities, including the failure to conduct a proper investigation regarding the Lodha Committee's approval for the alienation of properties and the absence of requisite sanction for prosecution.
7. The Lodha Committee had been constituted by the Hon'ble Supreme Court to oversee matters pertaining to Pearls Agrotech Corporation Ltd. (PACL), a company alleged to have defrauded approximately 5.5 crore investors of a sum of 49,000 crores. The Supreme Court -8- WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 had explicitly restrained the sale or disposal of PACL-linked properties without the Committee's prior approval. It was the allegation of the respondents that the petitioner, along with other accused persons in Crime No. 352/2022, had facilitated unauthorized sale transactions of these properties, thereby deriving wrongful personal gain, which was in violation of Rule 97-A of the Karnataka Civil Services Rules. Additionally, it is the case of the respondents that the petitioner had threatened the complainant Sri Shridhar, who had filed the initial complaint, and that the petitioner remained unauthorizedly absent from duty for the period between 01.10.2022 to 31.10.2022, despite repeated attempts by his superiors to contact him.
8. It is stated that pursuant to the aforementioned allegations, disciplinary proceedings were initiated against the petitioner under the DP Rules, 1965. The respondents maintained that the petitioner's suspension was warranted under Rule 5 of the DP Rules, 1965, which permits suspension when disciplinary proceedings are -9- WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 contemplated or when a criminal case is under investigation or trial. Further, the respondents have taken the position that departmental proceedings are independent of criminal proceedings and that such proceedings can proceed irrespective of the quashing of the criminal case.
9. In the meanwhile, it is significant to note that the Disciplinary Committee (2nd Respondent) appointed Inquiry Officer (3rd Respondent) through the order dated 17.03.2023 to issue Articles of Charge and to conduct inquiry against the petitioner. Thus, the petitioner was issued Articles of Charge by the Inquiry Officer himself, and not by the Disciplinary Authority, as required under the DP Rules, 1965. The petitioner, in response, submitted a detailed reply dated 17.04.2023, categorically refuting all allegations. However, despite his representation, the 3rd Respondent / Inquiry officer, proceeded with the disciplinary inquiry and recorded the petitioner's First Oral Statement without considering his response.
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10. Challenging the order appointing the Inquiry Officer and the issuance of the Articles of Charge, the petitioner approached the Hon'ble Tribunal in Application No. 5226/2023. The matter was taken up for consideration on 14.12.2023, and the Tribunal was pleased to grant an interim order staying both the order dated 17.03.2023, whereby the Inquiry Officer was appointed, as well as the Articles of Charge dated 05.04.2023. Subsequently, on 03.04.2024, the State filed its reply, wherein it was reiterated that liberty be granted to issue a fresh charge memo under Rule 6(2) of the DP Rules, 1965, by the Disciplinary Authority (2nd Respondent). Upon hearing the arguments advanced by both sides on 28.05.2024, Tribunal reserved the matter for orders and, subsequently, vide order dated 20.06.2024, dismissed the petitioner's application, upholding the disciplinary proceedings.
11. Aggrieved by the order dated 20.06.2024, the petitioner has approached this Hon'ble Court by filing the present Writ Petitions, namely:
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 ● W.P. No. 25080/2023, challenging the order dated 11.09.2023 in Application No. 3106/2023, whereby the Hon'ble Tribunal upheld the suspension order;
and ● W.P. No. 18983/2024, challenging the order dated 20.06.2024 in Application No. 5226/2023, which upheld the validity of the disciplinary proceedings against the petitioner.
The petitioner has invoked the extraordinary jurisdiction of this Hon'ble Court under Articles 226 and 227 of the Constitution of India, seeking appropriate relief against the arbitrary and procedurally flawed actions of the respondents.
12. The learned counsel Sri Prithveesh M.K for the petitioner, submits that the Karnataka State Administrative Tribunal (KSAT) has erroneously interpreted the jurisdictional provisions and delegation of authority, leading to an illegal and unsustainable order. That the impugned order (Annexure-"A") is devoid of any
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 reasoning regarding the petitioner's conduct under the Karnataka State Police (Disciplinary Proceedings) Rules, 1965. Instead, the order solely relies on the fact that an FIR was registered, where the petitioner was later added as Accused No. 12. It is contended that this mere filing of an FIR, which was subsequently quashed, does not constitute legal evidence to justify the petitioner's suspension. Due to this lack of legal basis, he contends that the impugned order is liable to be quashed.
13. The learned counsel for the petitioner asserts that the inclusion of the petitioner's name as an accused in the said proceedings was unwarranted and legally unsustainable, as the mandatory sanction under Section 197 of the Code of Criminal Procedure, 1973 for prosecuting a public servant, was not obtained.
14. The learned counsel further contends that Rule 5 of the DP Rules, 1965, permits the Government or the appointing authority to place a police officer under suspension in two situations:
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 1 a) When disciplinary proceedings are contemplated or pending 1(b) When a criminal case against the officer is under investigation or trial.
In the present cases, Clause (a) is not satisfied, as no valid disciplinary proceedings were contemplated at the time of suspension. As for Clause (b), the FIR and the entire criminal case, which formed the basis for the petitioner's suspension, has been quashed by the order of a learned Single Judge of this Court. Consequently, the order of suspension cannot stand on a legally invalidated foundation and is liable to be quashed.
15. In support of his case, the learned counsel for the petitioner relies on a judgment of the Hon'ble Supreme Court in the case of Union of India & Others v. Ashok Kumar Agarwal, (2013) 16 SCC 147, which holds that:
"An order of suspension must be based on valid considerations, and mere reliance on a criminal case, without due application of mind, cannot justify suspension."
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
16. It is contended that this principle squarely applies to the case on hand, as the Department had issued the suspension order solely based on the filing of a criminal case, which has now been quashed. Since the very basis of issuing the suspension order is no longer in existence, the said order is legally unsustainable.
17. Insofar as the petitioner in WP No. 18983/2024, the learned counsel Shri Prithveesh M.K. contends that the primary challenge is against the order dated 17.03.2023, appointing the Inquiry Officer, and the subsequent Articles of Charge dated 05.04.2023, which were issued by the Inquiry Officer himself, rather than the Disciplinary Authority, as required under Rule 6(2) of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965. He contends that the Rules, 1965, specifically mandates that only the Disciplinary Authority or a specially empowered authority can issue Articles of Charge. However, in the present case, the Inquiry Officer, who is expected to be fair, impartial, and ought to act as a quasi-judicial authority, has assumed the role of the prosecutor by
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 framing the Articles of Charge, thereby vitiating the entire disciplinary process.
18. It is further contended that the Tribunal has erroneously presumed that the order dated 17.03.2023 delegated the power to the Inquiry Officer to issue Articles of Charge. However, a plain reading of the said order does not indicate any such delegation under Rule 6(2) of the Rules, 1965. The Hon'ble Supreme Court in the case of Rashmi Metalicks Ltd. v. Kolkata Metropolitan Development Authority, (2013) 10 SCC 95, relying upon the principle laid down in the case of Mohinder Singh Gill v. Chief Election Commissioner, ((1978) 1 SCC 405)), has categorically held thus:
"16. The following observations found in the celebrated decision in Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 AIR 1978 SC 851] are relevant to this question:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police v. Gordhandas Bhanji, AIR 1952 SC 16]:
'9.... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'
19. It is contended that the Respondents themselves, in their Reply Statement at Para Nos.5, 8, 9, and 12, have admitted that the Articles of Charge were issued without jurisdiction and sought liberty to issue fresh Articles of Charge through the Disciplinary Authority. Despite this,
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 the Tribunal unilaterally assigned its own reasoning to justify the legality of the Articles of Charge, which is wholly impermissible in law.
20. The learned counsel further places reliance on the judgment of the Hon'ble Supreme Court in the case of B.V. Gopinath v. Union of India, (2014) 1 SCC 351, wherein it was held thus:
"52. In our opinion, the submission of the learned Additional Solicitor General is not factually correct. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge- sheet". These proposed articles of charge would only be finalised upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG [(1993) 1 SCC 419:
1993 SCC (L&S) 206: (1993) 23 ATC 645] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p. 422, para 4) "4.... However, it is open to the Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority."
21. The Hon'ble Supreme Court elaborated on the requirement under Rule 14(3) of the CCS (CCA) Rules, which enjoins the Disciplinary Authority to either draw up or cause to be drawn up the Articles of Charge. The Court held that even when delegation occurs, the final approval
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 must still come from the Disciplinary Authority, which is absent in the present case.
22. It is the further contention of the learned counsel that the Tribunal has misplaced its reliance in the case of R.S. Mahadevappa v. State of Karnataka & Ors., W.P. No. 23204/2024 (Judgment dated 01.02.2024) to reject the petitioner's contention regarding jurisdiction. In fact, the said judgment supports the petitioner's case as it holds that:
"4....
a) The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be penalized. This has to happen in accordance with the rules that obtain in the department concerned. No employee can be proceeded against contrary to the extant rules. The competent authority should constitute the enquiry; it is the competent authority who should frame the Charge Memo; unless authorized, he cannot delegate his powers to others. The
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 proceedings should be held in accordance with the principles of natural justice, although strict rules of evidence are not applicable. These are the basic tenets of disciplinary proceedings. Mr.Nargund, learned Sr. Advocate appearing for the Petitioner is right in arguing that the provisions of Rule 6 of the 1965 Rules empower only the Disciplinary Authority to frame the Charge Memo, on the basis of which the departmental proceedings could have been conducted by the Enquiry Officer.
b) Rule 6 of the 1965 Rules has the following text:
"6. Procedure for imposing major penalties.-
(1) No order imposing on a Police Officer any penalty specified in sub-clauses (i), (ii), (iii) or
(iv) of clause (b) of sub-section (1) of Section 23 shall be passed except after an inquiry held, as far as may be, in the manner hereinafter provided.
(2) The Disciplinary Authority or any authority empowered by it in this behalf (hereinafter in this rule referred to as 'specially empowered authority') shall frame definite charges on the basis of the allegations on which the inquiry is
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 proposed to be held. Such charges, together, with a statement of the allegations on which they are based, shall be communicated in writing to the Police Officer and he shall be required to submit, within such time as may be specified by the Disciplinary Authority or the specially empowered authority, a written statement of his defence and also to state whether he desires to be heard in person."
23. It is not in dispute that the disciplinary proceedings had the thrust of major penalties and therefore, apparently Rule 6 would come into play. The language of Rule 6(2) leaves no manner of doubt that it is the Disciplinary Authority who has to frame the Charge Memo. However, if he wants to delegate the same, he ought to do it by a specific order, whereupon the other authority can do it. However, such a delegation by the Disciplinary Authority, is not forthcoming from the record of proceedings. Merely directing the holding of disciplinary inquiry, would not satisfy this requirement.
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24. The contention of learned AGA that the above ground was not taken up before the Tribunal or the authorities concerned, would not come to the rescue of respondents inasmuch as it is a pure question of law which is attracted to the facts borne out by record. It is a point that goes to root of the matter and therefore, it is not possible to assume the waiver. It hardly needs to be stated that when law prescribes a particular procedure for doing a particular thing, it has to be done only as prescribed and not otherwise. That apart, competence cannot be conferred by consent or waiver. Thus, the Tribunal's reliance on R.S. Mahadevappa (supra) is misconceived, as the judgment reaffirms that the Disciplinary Authority alone is competent to issue Articles of Charge, and delegation of such power must be made through a specific order, which is absent in the present case.
25. The learned counsel further places reliance on the judgment dated 07.06.2021 of this Court in the case of Smt. SHASHIKALA M. -V/s- STATE OF KARNATAKA in Writ Petition No. 1360/2018, wherein it was held that
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 under the very Rules of 1965 itself, it has been categorically held that an Inquiry officer has no jurisdiction to issue the Articles of Charge. The Tribunal has failed to appreciate these contentions in its proper perspective and therefore, even on this ground, the impugned Order is liable to be set aside.
26. It is the further contention of the learned counsel for the petitioner that the Tribunal had erred in holding that the Karnataka State Police (Disciplinary Proceedings) Rules, 1965 do not require the issuance of Articles of Charge before appointing an Inquiry Officer. Under Rule 6(2) and Rule 6(4) of the Rules, 1965, it is mandatory that Articles of Charge be issued first, followed by the appointment of the Inquiry Officer. However, in the present case, the Inquiry Officer was appointed even before the Articles of Charge were issued, indicating a prejudged decision to conduct an inquiry without affording an opportunity of fair hearing to the petitioner.
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27. The learned counsel has further relied on a decision of this Court in the case of N.K. Nagaraja v. State of Karnataka, (ILR 1979 (1) KAR 564), wherein it was held that such an appointment before issuing a charge memo, violates procedural fairness and natural justice. Furthermore, the appointment of the Inquiry Officer by designation instead of by name is contrary to the Rules, making the proceedings legally unsustainable. The petitioner, therefore, submits that the impugned order, being in violation of procedural safeguards and natural justice, is liable to be set aside.
28. The Learned counsel has further relied on a judgment of the Hon'ble Supreme Court in the case of Prem Nath Bali v. Registrar, Delhi High Court, (2015) 16 SCC 415, wherein it was held thus:
"Enquiry should be completed in the shortest possible time and, at any rate, within 6 months."
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29. Despite the Government of Karnataka's Official Memorandum dated 28.06.2001, which mandates that disciplinary inquiries be completed within four months, the present inquiry has been prolonged without justification, thus adversely affecting the petitioner's promotional prospects.
30. The Learned counsel further relies on a judgement of the Hon'ble Supreme Court in the case of Ram Lal v. State of Rajasthan, (2024) 1 SCC 175, wherein it was held thus:
"Disciplinary proceedings can be quashed if the employee is fully acquitted after concluding that the prosecution has failed to prove the charge."
The learned counsel contends that since this Court has quashed the criminal proceedings against the petitioner, the disciplinary proceedings cannot be sustained in the absence of independent material proving the misconduct.
31. It is the further contention of the learned counsel for the petitioner that the Tribunal failed to recognize that
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 the charges do not constitute misconduct, as no finding on this aspect was recorded. It is argued that without a decision on the petitioner's leave application, unauthorized absence cannot be alleged against the petitioner, making the charge baseless. In this regard, reliance is placed on a judgment of this Court in the case of State of Karnataka v. Dr. Sayeed A. S. (W.P. No. 211/2003, Order dated 07/09/2010), where this Court has held that absence cannot be treated as unauthorized if the leave application remains undecided. The learned counsel for the petitioner, therefore, contends that the impugned order is legally unsustainable. The relevant portion of said order reads thus:
"8. It is clear on scrutiny of the material on record that it is no doubt true that charges 2 and 3 pertain to unauthorized absence of the applicant before the K.A.T. the respondent herein for the period from 12.04.1991 to 24.04.1991, on 05.12.1991 and from 25.12.1991 to 31.01.1992. However, the fact that after joining the duty after the period of absence, an application for grant of leave was given along with medical certificate and the said application has not been considered, is clearly
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 proved by the respondent herein as the petitioners have not produced any material to show that his application for grant of leave had been considered and rejected...XXX..... In view of the above said facts, it cannot be disputed that the application for sanction of leave for the period from 12.04.1991 to 24.04.1991, on 05.12.1991 and from 25.12.1991 to 31.01.1992 was pending consideration before the leave sanctioning authority and unless the said application is considered, no cause of action would arise for the petitioners to frame charge of unauthorised absence against the respondent herein...XXX... Since no decision was taken on the application for sanction of leave for the above said period of absence, in view of the decision of this Court in the case of Dr. H. Jayamma's case (supra), wherein on similar facts, this Court has held that in the absence of any decision on the leave application filed for the period of absence, there is no question of any unauthorized absence and charge framed in that regard would be without any basis. ....."
32. The learned counsel for the petitioner contends that the Tribunal failed to consider the aspect that unauthorized absence must be proved to be 'willful', in order to constitute misconduct. Even if the petitioner's absence is assumed to be unauthorized, it does not amount to misconduct, unless willfulness is established, as
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 upheld by the Hon'ble Supreme Court in the case of Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620, the relevant portion of which runs as under:
"21. In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the inquiry officer or the appellate authority."
33. The learned counsel has further relied on a judgment of the Hon'ble Apex Court in the case of Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178, wherein the Hon'ble Apex Court has held that:
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the petitioner was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the petitioner guilty."
The Learned counsel contends that since the petitioner's leave application was pending consideration, the charge of unauthorized absence, is without any legal basis.
34. Lastly, the learned counsel places reliance on a judgment of the Hon'ble Apex Court in the case of Secretary, Ministry of Defence v. Prabash Chandra Mirdha, (2012) 11 SCC 565, which carves out exceptions for maintaining a challenge to the Articles of Charge. The present case would fall within the said
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 exceptions. The delay in concluding the inquiry is a specific exception laid out, subject to it being prejudicial to the employee. It is contended that an exception has been carved out in the said judgment thereby holding that the challenge to initiation of inquiry/issuance of Articles of Charge is maintainable, when the same is without jurisdiction or where no misconduct is made out against the delinquent. The said position is also affirmed by a Co-ordinate Bench judgment of this Court in the case of VIJAY KUMAR G SULAKHE -V/s- STATE OF KARNATAKA in Writ Petition No. 104460/2018 vide Order dated 10/09/2018. The Co-ordinate Bench of this Court has also carved out an exception on the ground of delay in initiation of inquiry in the cases as aforestated. In the present case, the charge memo is without jurisdiction, the allegations therein do not constitute any misconduct and there has been a delay in initiating and concluding the inquiry. As previously stated, the delay is fatal to the Petitioner as the pendency of inquiry is
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 affecting his promotions. Therefore, even on this ground, the impugned Order is liable to be set aside.
35. Additionally, the learned counsel contends that the impugned order violates the petitioner's fundamental rights under Articles 14, 16, 19, and 21, as well as the amalgam of Articles 309 to 311 of the Constitution of India. The order of suspension is arbitrary, and is tainted by malice, as it was influenced by a whistleblower with ulterior motives, who was himself named in the rowdy sheet while the petitioner was in charge of the police station and hence deserves to be quashed. On all these grounds, the learned counsel for the petitioner prays that this Court be pleased to issue a writ of certiorari or any such order or direction quashing the order of suspension bearing no Personnel-4/34/ISD/2022-23 dated 15.10.2022 issued by the Additional Director General of Police, Internal Security Wing and the order dated 11.09.2023 passed by the KSAT in Application No.3106/2023, and further to set aside the impugned Order dated 20.06.2024, passed by the Karnataka State Administrative
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 Tribunal in Application No. 5226/ 2023, and grant such other reliefs as deemed fit in the interests of justice and equity.
36. Per contra, the learned Additional Government Advocate Sri V. Shivareddy, representing Respondents 1 to 6, entered the arguments and countered the contentions of the Petitioner Counsel. The learned AGA contends that the impugned suspension order is a well- reasoned and justified decision. The argument of the petitioner is that the suspension order lacks sufficient reasoning and is based solely on the criminal proceedings against him. However, learned AGA contends that a plain reading of the suspension order reveals that it explicitly details the misconduct of the petitioner, including unauthorized absence from duty for 31 days, threats made to the complainant in Crime No. 352/2022, and the petitioner's engagement in private business activities, in violation of Rule 97-A of the Karnataka Civil Services Rules. In support of the said contention, the learned AGA relies on a judgment of the Hon'ble Supreme Court in the
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 case of State of Punjab v. Dr. P. L. Singla (2008) 8 SCC 469, wherein the Hon'ble Apex Court has held that, unauthorized absence constitutes indiscipline and warrants disciplinary action. Hence, the learned AGA contends that the Petitioner's actions, therefore, justifies his suspension under Rule 5 of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965.
37. The Learned AGA further countered the Petitioner's contention that the quashing of criminal proceedings in WP No. 2071/2023 necessitates the revocation of his suspension, is legally unsound. In this regard, he has relied on a decision of the Hon'ble Supreme Court, in the case of State of Karnataka v. Umesh ((2022) 6 SCC 563)), wherein the Hon'ble Apex Court has made it clear that the quashing of criminal proceedings do not automatically absolve an employee from Departmental inquiries. The quashing of the FIR and charge sheet in WP No. 2071/2023, was due to procedural lapses and did not constitute an 'honourable acquittal' of the Petitioner. As held in the case of G. M. Tank v. State
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 of Gujarat ((2006) 5 SCC 446)), only an honourable acquittal, based on merits, can impact Departmental proceedings. In the said case, the quashing was procedural and did not establish the innocence of the Petitioner.
38. The Learned AGA further countered the Petitioner's argument that the suspension order was passed by an incompetent authority, as being without any merit. The order was initially issued by the 4th Respondent, the Additional Director General of Police (ADGP), Internal Security Wing, in charge of the disciplinary authority. However, it was subsequently ratified by the Director General & Inspector General of Police (DG&IGP) on 20.10.2022, in accordance with the Departmental Circular dated 18.04.2020. Hence, he contends that the suspension order was validly issued by a competent authority and is not vitiated on the grounds alleged by the learned counsel for the petitioner.
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
39. The Learned AGA further contended that the Petitioner's claim that his 31-day leave was duly sanctioned, is factually incorrect. He contends that the records show that he had initially applied for four days of casual leave on 26.09.2022, which was sanctioned. Subsequently, on 29.09.2022, he had applied for an additional 31 days of leave, which was only recommended by the Superintendent of Police, but was never approved by the competent authority, which in this case is the Inspector General of Police (IGP). As per the Official Memorandum dated 09.06.2022, only the IGP has the authority to approve such leave for a Police Inspector. Since there is no order of sanction from the IGP, the Petitioner's absence from duty was unauthorized, thereby justifying the suspension order.
40. It is the further contention of the Learned AGA that the Departmental inquiry against the Petitioner is currently ongoing. A report from the Deputy Superintendent of Police, Departmental Inquiries, Central Range, Bangalore, dated 24.01.2024, confirms the
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 necessity of the Petitioner's presence in the inquiry proceedings. His continued suspension is necessary to ensure that he does not interfere with the inquiry process.
41. The Learned AGA further emphasised that the Petitioner's reliance on WP No. 2071/2023 is misplaced, as the said matter has not attained finality. The 3rd Respondent, Inspector General of Police, Central Range, has sought permission from the 2nd Respondent, DG & IGP, to file a Special Leave Petition before the Supreme Court challenging the quashing of proceedings in WP No. 2071/2023. The recommendation for filing the SLP was forwarded to the 1st Respondent / Additional Chief Secretary, Home Department, on 05.12.2023. Since the legal process regarding this matter is still ongoing, he contends that the petitioner cannot claim any finality in his favour and use it as a ground to revoke his suspension order.
42. The Learned AGA further contended that the petitioner has a well-documented history of criminal
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 misconduct. He has been involved in multiple cases, including Crime No. 234/2022 at Varthur Police Station for fraud and forgery, which led to the Deputy Commissioner of Police, Crime-1, Bangalore, seeking sanction for prosecution. He has also been implicated in illegal land transactions in Chemmanahalli, misuse of official position to obtain Call Detail Records (CDRs) of journalists in violation of their privacy rights, and other acts of misconduct that are currently under investigation. Given the severity of the alleged offences committed by him, his continued suspension is warranted to ensure the integrity of the investigations.
43. The Learned AGA further contended that the continued suspension of the petitioner has been reviewed and reaffirmed by the authorities. The ADGP, Administration, sought an opinion from the IGP, Central Range, on whether the suspension should be extended. The IGP, Central Range, after evaluating the ongoing proceedings and the severity of the allegations, recommended that the suspension should continue.
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 Furthermore, as per the Official Memorandum dated 25.11.2020 issued by the Department of Personnel and Administrative Reforms, Government of Karnataka, suspension can be extended beyond six months if criminal or departmental inquiries are pending. Since multiple inquiries and criminal proceedings are ongoing against the Petitioner, the decision to extend his suspension is legally sound.
44. The Learned AGA further contended that the petitioner has violated multiple provisions of the Karnataka Police Act, 1963, and Departmental rules. Section 28 of the Karnataka Police Act strictly prohibits police officers from engaging in business dealings, land transactions, and commercial activities. The record shows that the Petitioner has engaged in land dealings and has facilitated illegal land transactions, thereby violating the statutory restrictions placed on police officers. Additionally, the DG&IGP Circular dated 14.11.2018 specifically prohibits police officers from misusing their position in land
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 disputes. The Petitioner's actions are in direct violation of these provisions, further justifying his suspension.
45. In the light of the foregoing facts and legal principles, the learned AGA contends that the Petitioner has failed to make out any case for relief. The impugned suspension order is based on a clear record of misconduct, unauthorized leave, ongoing inquiries, and pending criminal matters. The judicial review of suspension orders is limited, as observed by the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147, where it was held that suspension is a precautionary measure to ensure that the delinquent official does not interfere with the proceedings. Given the nature of the allegations and the ongoing investigations, lifting the suspension order at this stage would be against the interests of justice. Hence, the learned AGA prays to dismiss the writ petitions as being without any merit.
46. In the context of contentions advanced by the learned counsel for both the petitioner and the learned
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 AGA, it is relevant to examine whether the suspension order dated 15.10.2022, issued by the Additional Director General of Police (Respondent No. 4), is sustainable in law or not. In this regard, it is to be noticed that the primary basis for the suspension was the registration of Crime No. 352/2022, wherein the petitioner was belatedly arraigned as Accused No.12. However, this Court, in W.P. No. 2071/2023, has already quashed the said FIR, charge sheet, and cognizance order vide order dated 05.10.2023 on the ground of procedural infirmities, including the absence of sanction under Section 197 Cr.P.C. In view of the fact that the criminal proceedings, which formed the basis of the suspension order has been set aside, the suspension order having lost its legal foundation, is liable to be quashed.
47. Further, it is relevant to note that Rule 5 of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965, permits suspension only in two circumstances namely,
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
(a) when disciplinary proceedings are contemplated or pending, or
(b) when a criminal case is under investigation or trial.
48. In the present case on hand, the respondents have failed to establish that a valid disciplinary proceeding was pending at the time of issuing the order of suspension. Further, with the quashing of the FIR and charge sheet, Clause (b) is not satisfied. In the absence of any independent justification beyond the now-quashed criminal case, the continuation of suspension order is arbitrary and violative of the petitioner's fundamental rights.
49. The Karnataka State Administrative Tribunal (KSAT), while upholding the suspension in Application No. 3106/2023, has failed to render any specific finding as to whether the petitioner's alleged acts constitute misconduct under the DP Rules, 1965 or not. It has merely relied on the existence of an FIR, which, as established, has already
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 been set aside. In the absence of a clear attribution of misconduct under the applicable service rules, the order upholding the suspension is legally unsustainable.
50. The appointment of the Inquiry Officer on 17.03.2023 and the issuance of the Articles of Charge on 05.04.2023, are in direct contravention of Rule 6(2) of the DP Rules, 1965. The said rule explicitly mandates that Articles of Charge must be framed by the Disciplinary Authority or an authority specially empowered by it. In the present case, the Inquiry Officer (3rd Respondent) himself issued the Articles of Charge without any delegation of authority, thereby vitiating the entire disciplinary process. The Hon'ble Supreme Court in the case of B.V. Gopinath v. Union of India ((2014) 1 SCC
351)), has categorically held that charge memos issued without the approval of the competent Disciplinary Authority are without jurisdiction and non est in the eye of law. Thus, the disciplinary proceedings initiated against the petitioner are liable to be quashed.
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
51. The Tribunal, while dismissing Application No. 5226/2023, has incorrectly presumed that the Inquiry Officer was vested with the authority to issue Articles of Charge. The respondents themselves, in their reply statement, have admitted that the charge memo was issued without jurisdiction and sought liberty to issue fresh Articles of Charge. Despite such an admission, the Tribunal erroneously justified the issuance of Articles of Charge by assigning reasons that were neither stated in the impugned order nor supported by record. The Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner ((1978) 1 SCC 405)) has held that administrative orders must be judged based on the reasons contained in the order itself and cannot be supplemented by fresh explanations at a later stage. The Tribunal's reasoning, therefore, is wholly impermissible in law.
52. The disciplinary proceedings initiated against the petitioner have been unreasonably prolonged, causing undue hardship and prejudicing his career prospects. The
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 Hon'ble Supreme Court in the case of Prem Nath Bali v. Registrar, Delhi High Court ((2015) 16 SCC 415)), has categorically held that disciplinary inquiries must be concluded within six months. Furthermore, the Government of Karnataka's Official Memorandum dated 28.06.2001 mandates that Departmental inquiries be completed within four months. The respondents have failed to justify the prolonged pendency of the inquiry, and the resultant prejudice to the petitioner necessitates intervention by this Court.
53. The respondents have alleged that the petitioner was unauthorizedly absent from duty between 01.10.2022 and 31.10.2022. However, the record establishes that the petitioner had applied for leave, and there is no material to indicate that his leave application was rejected. This Court in the case of State of Karnataka v. Dr. Sayeed A. S., (W.P. No. 211/2003), has held that unauthorized absence cannot be alleged if the leave application remains undecided. Further, the Hon'ble Supreme Court in the case of Krushnakant B. Parmar v. Union of India ((2012)
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 3 SCC 178)) has held that unauthorized absence must be wilful to constitute misconduct. In the present case, in the absence of a finding of wilful absence, the charge of unauthorized absence is untenable.
54. The petitioner's continued suspension, despite the quashing of the criminal case and the procedural infirmities in the disciplinary proceedings, constitutes an arbitrary and disproportionate action, violative of Articles 14, 16, and 21 of the Constitution of India. The Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal ((2013) 16 SCC 147)) has held that suspension must be based on valid considerations, and mere reliance on a criminal case, without due application of mind, cannot justify suspension. The respondents' continued insistence on the petitioner's suspension, despite the lack of legal foundation, is thus arbitrary and legally unsustainable.
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
55. The High Court of Karnataka, in W.P. No. 2071/2023, has quashed the criminal case against the petitioner, thereby eliminating the very basis on which disciplinary action was initiated. The Hon'ble Supreme Court in Ram Lal v. State of Rajasthan ((2024) 1 SCC
175)) has held that disciplinary proceedings must be quashed if the employee is fully acquitted and there is no independent evidence of misconduct. The respondents have failed to produce any material independent of the quashed criminal case to justify continuing the departmental inquiry. Consequently, the disciplinary proceedings against the petitioner are liable to be set aside.
56. The continued suspension of the petitioner beyond six months, in the absence of periodic review as mandated by the Government of Karnataka's Official Memorandum dated 25.11.2020, is illegal. The Hon'ble Supreme Court in the case of Ajay Kumar Choudhary v. Union of India ((2015) 7 SCC 291), has held that suspension should not be extended beyond three months
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 without a charge sheet, and if the charge sheet is issued, a reasoned decision must justify the extension beyond six months. In the present case, there is no material to indicate any such review or justification, rendering the continued suspension arbitrary and contrary to established legal principles.
57. Be that as it may, it is appropriate to state that contention of the respondent was that the petitioner's suspension was warranted under Rule 5 of the DP Rules, 1965, which permits suspension when disciplinary proceedings are contemplated or when a criminal case is under investigation. The criminal case which was initiated against the petitioner came to be quashed by this Court. However, the respondents have taken the position that Departmental proceedings are independent of the criminal proceedings and that such proceedings can proceed irrespective of the quashing of the criminal cases. But the learned counsel for the petitioner in both the petitions has emphatically submitted that the Karnataka State
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 Administrative Tribunal has erroneously interpreted the jurisdictional provisions and delegation of authority leading to illegal and unsustainable orders. We find justification in the said contention. Therefore, it is said that the impugned order dated 15.10.2022 vide Annexure-"A" is devoid of any reasoning regarding the petitioner's conduct under the Karnataka State Police (Disciplinary Proceedings) Rules, 1965, Further, as contended by the learned counsel for the petitioner, mere filing of FIR which was subsequently quashed, does not constitute legal evidence to justify the petitioner's suspension. Due to this lack of legal basis, impugned order is liable to be quashed. Therefore, keeping in view the contentious contentions taken in both these writ petitions are concerned, it is said that there is substance to interfere with the impugned orders passed by the Karnataka State Administrative Tribunal, as there are infirmities in the orders which warrants interference.
58. For the aforementioned reasons, we proceed to pass the following:
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024 ORDER
i) Both the writ petitions are allowed;
ii) The impugned order of suspension bearing No. Personnel-4/34/ISD/2022-23 dated 15.10.2022 vide Annexure-"A" in W.P.No.25080/2023 being unsustainable in law, is hereby quashed. As a consequence, the petitioner is entitled to all statutory benefits, in accordance with the rules.
iii) The impugned order dated 11.09.2023 in Application No. 3106/2023 vide Annexure-"B" in W.P.No.25080/2023 passed by the KSAT dismissing the application and upholding the suspension, is hereby set aside.
iv) The impugned order dated 20.06.2024 in Application No. 5226/2023 vide Annexure-"A" in W.P.No.18983/2024, dismissing the said application and upholding the disciplinary proceedings, is set aside.
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WP NO. 25080 OF 2023 C/W WP NO. 18983 OF 2024
v) The disciplinary proceedings initiated against the petitioner, including the Articles of Charge issued on 05.04.2023, are quashed as being without any jurisdiction.
SD/-
(K.SOMASHEKAR) JUDGE SD/-
(VENKATESH NAIK T) JUDGE KS