Karnataka High Court
Dr M G Jayaram vs Dr N R Ramakrishna on 28 March, 2013
Bench: N.Kumar, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B MANOHAR
WRIT PETITION NO.3798/2009(S-KAT)
C/W
WRIT PETITION NO.3344/2009 (S-KAT)
WP.NO.3798/2009(S-KAT)
BETWEEN:
DR. M.G.JAYARAM
AGED ABOUT 56 YEARS
S/O B MUTHANNA
WORKING AS JOINT DIRECTOR OF FISHERIES
DIRECTORATE OF FISHERIES
VISWESHAVARAYA CENTRE,
DR AMBEDKAR VEEDHI
BANGALORE - 560 001. .... PETITIONER
(BY SRI.B.B.BAJENTRI, ADVOCATE)
AND:
1. DR N.R.RAMAKRISHNA
JOINT DIRECTOR OF FISHERIES
DIRECTORATE OF FISHERIES
VISWESHVARAYA CENTRE
DR AMBEDKAR VEEDHI
BANGALORE - 560 001.
2
2. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF ANIMAL HUSBANDRY
AND FISHERIES,
M.S.BUILDINGS
DR B R AMBEDKAR VEEDHI
BANGALORE - 560 001
3. DIRECTOR OF FISHERIES
MAHAVEERA COMPLEX
K.G.ROAD
BANGALORE - 560 009. ... RESPONDENTS
(BY SRI.M/S RAVIVARMA KUMAR, ADVS)
THIS W.P. FILED PRAYING TO SET ASIDE THE
ORDER DATED 26TH SEPTEMBER 2008 PASSED BY
THE KARNATAKA ADMINISTRATIVE TRIBUNAL IN
APPLICATION NO. 7176 OF 2004 (UNDER ANNEXURE-
A TO THE WRIT PETITION) AND DISMISS THE SAID
APPLICATION NO. 7176 OF 2004 AND GRANT ALL
CONSEQUENTIAL BENEFITS TO THE PETITIONER
AND GRANT AN INTERIM ORDER TO STAY THE
EXECUTION AND IMPLEMENTATION OF THE ORDER
DATED 26TH SEPTEMBER 2008 PASSED BY THE
KARNATAKA ADMINISTRATIVE TRIBUNAL AT
BANGALORE IN APPLICATION NO. 7176 OF 2004
(UNDER ANNEXURE-A TO THE WRIT PETITION).
WP.NO.3344/2009(S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCPAL
SECRETARY TO GOVERNMENT
ANIMAL HUSBANDARY AND FISHERIES
SACHIVALAYA, M.S.BUILDING,
BANGLAORE -560 001.
2. DIRECTOR OF FISHERIES,
MAHAVEERA COMPLEX,
3
K.G.ROAD,
BANGALORE 560 009 ... PETITIONERS
(BY SMT.SUSHEELA, AGA)
AND
1. DR N R RAMAKRISHN
AGED ABOUT 53 YEARS
S/O N M RAMALINGIAH
WORKING AS JOINT DIRECTOR OF FISHERIRES
DEPARTMENT OF FISHERIES,
KARNATKA, 5TH FLOOR,
NO.8, MAHAVEER COMPLEX
K.G.ROAD, BANGALORE-560 009.
2. DR M.G.JAYARAM
S/O B MUTHANNA
AGED ABOUT 51 YEARS
JOINT DIRECTOR OF FISHERIES (INLAND)
DIRECTORATE OF FISHERIES,
NO.8, 5TH FLOOR, K.G.ROAD,
BANGALORE -560 001. ... RESPONDENTS
(BY SRI.J.PRASHANTH, ADV FOR M/S RAVIVARMA
KUMAR FOR C/R1)
THIS W.P. FILED PRAYING TO CALL FOR THE
RECORDS FROM THJE KARNATAKA ADMINISTRATIVE
TRIBUNAL MADE IN APPLICATION NO. 7176/2004,
WHICH ULTIMATELY RESULTING IN PASSING ORDER
ANNEXURE-A IN THE WRIT PETITION AND QUASH
THE ORDER DT. 26.9.2008 MADE IN APPLICATION
NO. 7176/2004 VIDE ANNEXURE-A AND GRANT AN
INTERIM ORDER TO STAY THE OPERATION AND
EXECUTIONOF THER ORDER DT. 26.9.2008 MADE IN
APPLICATION NO. 7176/2004 ANNEXURED-A PASSED
BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL.
4
These W.Ps. coming on for hearing this day,
N.KUMAR, J, made the following:-
ORDER
These writ petitions are filed challenging the order passed by the Karnataka Administrative Tribunal on 26th September 2008 quashing the corrigendum dated 29-12-2003 as per Annexure-A5 and the order dated 9-7-1997 and restoring the seniority of the first respondent. Since the Common order passed by the tribunal is challenged in these writ petition, both the petition are disposed off by this common order.
2. This is a case where the Tribunal has set out the facts in detail referring to various provisions of law as well as to all the judgments relied upon by the parties in addition to the correspondences and by a considered order allowed the application filed by the applicant before the Tribunal granting relief to him and also issuing directions to the Government to take action against the 3rd respondent in the application and the 5 concerned officials who have passed favourable orders overlooking the statutory provisions.
3. The main ground of attack before this court was the application filed by the applicant before the Tribunal was barred by time. Section 21 of the Administrative Tribunal's Act 1985 provides for the period of one year from the date on which final order has been made as the period prescribed for approaching the Tribunal. If there is delay, an application for condonation of delay has to be filed. In the instant case, admittedly no application for condonation of delay is filed and according to the petitioner in W.P.No.3798/2009, the order challenged is dated 9-7-1997, whereas the application was filed on 20-12-2004 beyond three years of period. This aspect has been considered by the Tribunal at paragraphs 21, 21.1 and 21.2 which reads as under:
21. We shall first discuss about two technical issues raised by the learned Counsel for the third respondent Mr.M.Narayanswamy. One of the contentions of the learned Counsel for Respondent No.3 is that the application 6 suffers from delay and laches on the ground that the applicant approached the Tribunal after a lapse of more than seven years from the date of issue of Annexure-
A1. It may be noted here that the applicant is challenging four interlinked ordrs which are dated 09.07.1997, 29.12.2003, 07.05.2004 and 21.08.2004. The relevant proceedings are as follows:
i) Government Order bearing No.AHF 264
SFE 96 dated 09.07.1997 (Annexure-A1):ii) Corrigendum bearing No.pa sam me 168
me e se 2000 dated 29.12.2003 (Annexure- A5):iii) Notification bearing No.pa sam me: 134
me e se 1999(part): dated 07.05.2004 (Annesure-A6) and
iv) Government Order No.pa sam me/144/me e se/2004 dated 21.08.2004(Annexure-A7)."
21.1 Out of the four, first order impugned (Annexure-A1) is dated 09.07.1997 which has been challenged after seven years. All other impugned orders being within the period of limitation, the contention raised by the learned Counsel for R.3 and the learned Additional Government Advocate and Government Pleader for Respondents 1 & 2 appears to be only partially true, even for the sake of argument. Merely because one of the impugned orders suffers from delay and lached the entire application cannot be treated to be suffering from dealy and laches.
Section 21(3) of the A.T.act 1985 reads as follows:
7
"xxx xxx xxx 21(3).Notwithstanding anything contained in sub-section(1) of sub-section(2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section(1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
As could be seen on application may be admitted after the period of one year specified in Clause (a) or (b) of sub-section (1) if the applicant satisfied the Tribunal that he has sufficient clause for not making on application within such period.
21.2 We have gone through the various files wherein the four impugned orders are issued including the decision making process which has been influenced by extraneous consideration to which we shall refer to later. The impugned order dated 09.07.1997 (Annexure-A1) cannot be considered independently and in isolation. The four impugned orders are so intricately intertwined that they cannot be separated. They are interdependent and interlinked. One is the resultant of the other, making if very difficult to look at them independently and separately. When one cause of action is dependent on the other, they would become natural corollaries and one would be the continuation of the other one and, therefore, they have to be considered together. Government in their proceedings at Annexure-A1 exonerates the third respondent even when the charges of severe nature are established and proved by a duly constituted Inquirying Authority. However, by Annexure-A2 the official 8 respondents treates the said period as dies-non. Again, Government by its proceedings dated 21.08.2004 vide Annexure-A7 modifies the said period of unauthorized absence which was treated as dies-non as extraordinary leave. If the chain of events and incidents are seen together and correlated with each other, in our view, in the interest of justice and equity, and to do substantial justice, the application has to be considered to be within limitation and there is neither delay nor laches. Therefore, in our view the applicant has made out a case for admitting the application even after lapse of more than one year. It may be noted that the task of this Tribunal is to do substantial justice and not mere technical justice and, therefore, there is no substance in the contention of the respondents that the application suffers from dealy and laches.
4. It is not in dispute that by an order dated 9-7-1997, the petitioner was exonerated. Thereafter, in the seniority list which is published on 22-2-1999, name of the petitioner was at Sl.No.45 and that of the first respondent was at Sl.No.38. Therefore the first respondent was senior to the petitioner. However, a corrigendum came to be issued on 29-12-2003 as per Annexure-A5 where the name of the petitioner was sought to be inserted at Sl.No.34A i.e. above the first respondent, in between Ganapathi Bhat and Dr.C.K.Murthy. Then by an order dated 7-5-2004, he 9 was given retrospective promotion. Therefore, the two orders which hurt the interest of the first respondent were the orders dated 29-12-2003 and 7-5-2004. The application is filed on 20-12-2004. Therefore it is well within the period of one year. The order dated 9-7-1997 was also challenged in the application because that was the basis for granting promotion. The first respondent is not a party to the proceedings which culminated in the order dated 9-7-1997. In spite of that order, his seniority was not affected in the seniority list dated 22-2-1999. Therefore, he cannot be said to be aggrieved person. He was aggrieved when the corrigendum was issued on 29-12-2003 and further when the retrospective promotion was given to the petitioner on 7-5-2004. Therefore, while challenging the order dated 29-12-2003 and 7-5-2004, he also challenged the order dated 9-7-1997. The Tribunal has rightly observed that the impugned orders are so intricately intertwined that they cannot be separated. They are interdependent and interlinked. One is the resultant of the other, making it very difficult to look at them independently and 10 separately. When one cause of action is dependent on the other, they would become natural corollaries and one would be the continuation of the other one and, therefore, they have to be considered together and that is how the Tribunal has rightly considered the case and set aside the orders dated 29-12-2003 and 7-5-2004 and also the order dated 9-7-1997 which is the basis for all these orders. In the facts and circumstances of the case, the application is not barred by limitation. It is well within the limitation. Therefore, we do not see any substance in the contention urged by the petitioner.
5. The material on record discloses that the petitioner was recruited through Karnataka Public Service Commission and was appointed in the Department of Fisheries as the Assistant Director of Fisheries on 25-7-1982 on which date he reported to duty whereas the first respondent was appointed on 11-3-1982 on which date reported to duty. Therefore from the day one, the first respondent was senior to the petitioner. The petitioner was selected for the award of 11 Scholarship for M.Sc. Degree in Zoology, Guleph University, Canada. Therefore, he was deputed to Canada from 5-9-1986 for a period of two years. After 5-9-1988 i.e. after the expiry of two years, he continued his studies to obtain Doctorate. The period was extended up to 31-5-1991. However, the period from 5-6-1988 to 31-5-1990 was treated as leave and from 1-6-1990 up to 31-5-1991 was treated as Extraordinary leave. He was expected to resume to duty immediately thereafter. However, for nearly 4½ years, he did not choose to rejoin and come to India. In fact, the Government of India had to write letters to the State Government calling for explanation and also brining to the notice of the State Government as to why the Security Bond executed by the petitioner at the time of leaving the country is not encashed. Then the Government of Karnataka opened its eyes and started proceedings against the petitioner and ultimately, he rejoined the duty only on 6-1-1996. The Departmental proceedings were initiated on the ground of unauthorized absence. The Enquiry Officer found him 12 guilty of three charges. Strangely, the Disciplinary Authority instead of imposing any penalty for the proved, admitted misconduct, treated the period of unauthorised absence as dies-non, and subsequently that was also watered down treating the same as Extraordinary leave.
6 Thereafter an attempt was made to place the petitioner above the third respondent in the seniority list and give him the retrospective benefit of such promotion. It is that order which was challenged before the Tribunal. The Tribunal has extracted the correspondence between the Central Government and the State Government, findings recorded by the Enquiry Officer, the perverse findings recorded by the disciplinary authority and ignoring the report and notes submitted by the Principal Secretary to the Government. That is how the Order dated 9-7-1997 came to be passed giving all benefits notwithstanding the fact that the unauthorized absence of the petitioner is admitted and proved. In fact, the Tribunal has also extracted 13 number of recommendatory letters sent on behalf of the petitioner by MLAs and Ministers and also note prepared by the Chief Minister and Principal Secretary claiming to yield to that influence. An attempt was made to make him Director of Fisheries which of course did not happen. Under these circumstances, the Tribunal was of the view that the Disciplinary Authority committed a serious error in not imposing any penalty. In that context, the circular issued by the Government on 14-09-2001 enlightening the Disciplinary Authority regarding the quantum of punishment to be imposed for the proved misconduct. Sl.No.2 deals with the unauthorized absence and the punishment has to be imposed is dismissal. In spite of the same, not only he is not dismissed, his unauthorized absence has been regularized and he has been given retrospective promotion. Therefore, the Tribunal was constrained to hold that all these acts were illegal and directed the Disciplinary Authority to impose penalty and to exercise discretion only in the imposition of penalty and he has no power not to impose penalty. Further, direction was 14 also issued to initiate action against all the concerned persons who are all parties to this fraud. In the facts and circumstances of the case, we do not see any illegality committed by the Tribunal in issuing such directions as otherwise, the entire civil force will be demoralized. The person like petitioner who had the benefit of studying M.Sc. Degree and obtain Doctorate at the cost of public exchequer and does not choose to return to India, virtually absconding for 4½ years and when he was forced to come back, though his unauthorized absence is admitted and proved in the enquiry, he has been exonerated on the ground that his knowledge is of use to the Department. The said knowledge was useful to the Department immediately after he has completed the studies and the public exchequer is made to pay to acquired such knowledge. The circular specifies that if a person is unauthorized absence for four months, the minimum punishment is nothing short of dismissal. Throwing all these rules and regulations and certain practices to wind, the Government has honoured the petitioner with 15 promotion to which he was not entitled to and at the cost of persons who are living in India working in the Department honestly and serving the people of this country. In that view of the matter, we do not see any error committed by the Tribunal in issuing the directions which it has issued. No merits. Dismissed.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*