Karnataka High Court
Basavaraj vs The State Of Karnataka And Ors on 26 June, 2023
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
-1-
NC: 2023:KHC-K:4600-DB
WP No. 201551 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE UMESH M. ADIGA
WRIT PETITION NO.201551 OF 2021 (S-KAT)
BETWEEN:
SHRI BASAVARAJ
S/O SIDDARAM
AGED ABOUT 31 YEARS
HOSTEL SUPERINTENDENT
(UNDER ORDERS OF TERMINATION)
PRE-MATRIC BOYS HOSTEL
Digitally signed by
SOMANATH
PENTAPPA MITTE
ALMEL, SINDHAGI TALUK
Location: HIGH
COURT OF
VIJAYAPURA DISTRICT
KARNATAKA
R/AT NO.5-1-432
AMBIGANACHOWDAIAH NAGAR
AFZALPUR TALUK
KALABURAGI DIST
...PETITIONER
(BY SRI VIJAYKUMAR & SRI PRASHANT B. WAJANTRI,
ADVOCATES)
-2-
NC: 2023:KHC-K:4600-DB
WP No. 201551 of 2021
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
DEPARTEMNT OF BACKWARD
CLASSES DEVELOPMET
VIKAS SOUDHA,
BANGALORE-560001.
2. THE COMMISSIONER
DEPARTMENT OF BACKWARD CLASSES
DEVELOPMENT, NO.16-D
3RD FLOOR, DR. DEVARAJ URS BHAVAN,
MILLERS TANK BUND
VASANTHNAGAR
BANGALORE-500052.
3. THE TALUK EXETENSION OFFICER
BACKWARD CLASSES
WELFARE DEPARTMENT
SINDHAGI, VIJAYAPURA DISTRICT
VIJAYAPURA.
4. THE SECRETARY
KARNATAKA PUBLIC
SERVICE COMMISSION
UDYOG SOUDHA
PALACE ROAD
BANGALORE-560001.
...RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, GA FOR R1 TO R3;
SRI R.J. BHUSARE, ADVOCATE FOR R4)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 02.08.2021 PASSED IN APPLICATION
NO.20805/2020 ON THE FILE OF THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, AT KALABURAGI (ANNEXURE-A)
AND ALLOW THE APPLICATION AS PRAYED FOR.
-3-
NC: 2023:KHC-K:4600-DB
WP No. 201551 of 2021
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, B.M.SHYAM PRASAD, J., MADE THE
FOLLOWING:
ORDER
The petitioner has impugned the order dated 02.08.2021 in his application No.20805/2020 with the Karnataka State Administrative Tribunal, Kalaburagi (for short 'the Tribunal'). The Tribunal, by its impugned order dated 02.08.2021, has rejected the petitioners' application against the order dated 18.12.2018/03.01.2019, and the subsequent order dated 15.10.2020.
2. This writ petition arises in the following circumstances. The petitioner is selected as a Hostel Superintendent pursuant to recruitment notification dated 03.03.2016. The selection list is published on 20.07.2017, and the petitioner is issued with appointment order on 09.08.2017. The petitioner has reported to duty as a Hostel Superintendent, at Sindhagi Taluk, Vijayapura District on 21.08.2017. The petitioner on 08.08.2018 has submitted a representation for release of Pay Slip -4- NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 contending that he is not paid salary over a year, and if he is convicted in the pending criminal proceedings, he would be bound by such decision and he would return the salary paid. After this representation, the petitioner is issued with Show-Cause-Notice dated 23.11.2018 calling upon him why he could not be discharged from service for suppression of material information.
3. After the petitioner's response on 27.11.2018, the second respondent has issued order dated 18.12.2018/03.01.2019 is discharged him from service under Rule 20 of the Karnataka Civil Services (General Recruitment) Rules, 19771 on the ground that he had 1 Rule 20 : Misconduct A candidate found guilty of impersonation or submitting fabricated documents or documents which have been tampered with or making statements which are incorrect or false or of suppressing material information or of using or attempting to use unfair means in an examination conducted for purposes of recruitment or otherwise resorting to any other irregular or improper means in connection with his recruitment may, in addition to rendering himself liable to a criminal prosecution and to disciplinary action, be debarred either permanently or for a specified period- -5-
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 deliberately suppressed the pendency of the criminal proceedings against him. The petitioner has impugned this order dated 18.12.2018/ 03.01.2019, in an appeal, and this appeal is rejected by the order dated 15.10.2019. The petitioner has impugned these two orders in his application No.20805/2020 with the Tribunal, and the Tribunal by its impugned order dated 02.08.2021 has rejected the application. This Court on 09.11.2021, has directed the respondents to reinstate the petitioner but on the condition that he should not be paid any salary pending consideration of final disposal.
4. Sri Vijaykumar, the learned counsel for the petitioner, submits that consequent to this order dated 09.11.2021 the petitioner has been reinstated and he is working as Hostel Superintendent, Sindhagi Taluk, Vijayapura District, but without salary. Sri Vikaykumar
(a) by the Commission or other recruiting or examining authority from admission to any examination or appearing for any interview for selection of candidates; and
(b) by the Government from employment under it. -6-
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 argues in support of the petition relying upon the two crucial submissions.
4.1 Firstly, the selection notification dated 03.03.2016 did not require the petitioner to disclose any pending criminal proceedings and if the notification did not require disclosure as aforesaid, there cannot be any allegation of suppression of a material fact especially when it cannot be disputed that the petitioner has himself submitted a representation on 08.08.2018, which is almost after a year from the date of reporting duty because he had not received salary stating that he would receive salary subject to the decision in the pending criminal proceedings.
4.2 Secondly, the appointment order dated 09.08.2017 issued to the petitioner stipulates that the Appointing Authority would call for necessary police record and if it is found that there are any criminal proceedings, action would be taken to discharge the petitioner from service without notice. However, again indisputably, the second respondent has not called for any report from the -7- NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 jurisdictional police and no order is passed based on such report.
5. Sri Vijaykumar Bajentri argues that in the light of these indisputable circumstances there cannot be any allegation of suppression of material fact. The Hon'ble Supreme Court in the case of Avtar Singh vs. Union of India2 has clearly delineated that the information as regards conviction or arrest of pendency or equally arrest during pendency of the criminal proceedings, whether before or after entering into service, must be true and there should be no suppression and while passing an order of termination or cancellation of candidature the employer must take notice in all circumstances that could prevail even if there is suppression of false information of involvement in criminal cases which is learnt by the employer later. The first respondents should have examined the records understanding to ascertain whether the allegation is trivial in nature, and if the charge is trivial 2 (2016) 8 SCC 471 -8- NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 does not involve moral turpitude, then appropriate decision should have been taken for his continuance in service.
6. Sri Vijaykumar, on the facts of the case, submits that, in the year 2014 a FIR is registered against the petitioner and multiple others including one of the petitioner's relative on the accusation that there are certain wrong doings in execution of the work and submission of the bills by the concerned Zilla Panchayat. There are no specific allegations against the petitioner, except that one of his relative is employed with the concerned Zilla Panchayat. The petitioner was in police custody for about 15 days, he is admitted to interim bail later regular bail, the criminal proceedings are pending consideration. The petitioner's application for discharge is rejected and the subsequent revision petitions are rejected, and the petitioner is undergoing trial3.
3 The petitioner's affidavit is placed on record with the necessary details after this Court's order in this regard on 21.06.2023. -9-
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021
7. Sri Mallikarjun C. Basareddy, the learned Government Advocate for the first to third respondents submits that the submission that the selection notification dated 03.03.2016 does not require information about pending criminal proceedings is not justified in the light of Clause (20) of the notification which describes misconduct and the consequences thereupon. The misconduct contemplated is just not of impersonation or production of false document, but also about furnishing false information and suppression of material information resulting in discharge and initiation of criminal proceedings.
8. Sri Mallikarjun C. Basareddy submits that the petitioner was therefore on an onus to disclose the information, and the petitioner having failed to furnish such information for over a period of one year and from the date of appointment, cannot contend that there is no suppression. However, the learned Government Advocate does not dispute the factual assertions pressed into service by Sri Vijaykumar.
- 10 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021
9. The Tribunal has essentially rejected the petitioner's application on the ground that Rule 20 of KCS, General Recruitment Rules, 1977 specifically stipulates that submission of fabricated documents or furnishing of false information or suppressing material information would render the applicant ineligible for appointment, and the respondents have pleading that during process of appointment, information was called from the petitioner about pending criminal proceedings and prima facie the petitioner has failed to furnish the information about criminal proceedings.
10. The Tribunal has also opined that the onus of securing police report would be on the Appointing Authority, the failure to secure such report may not in itself be a reason to extend any benefit to the petitioner when the petitioner does not dispute that he is undergoing criminal prosecution, and no fault could be found with the impugned order. Further, the Tribunal while confirming the cancellation of appointment has observed that the
- 11 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 petitioner shall not be disqualified for future appointment if he is otherwise eligible.
11. The rival submissions are considered in the light of the reasons assigned by the Tribunal to reject petitioner's application. There cannot be any dispute that suppression of material fact, which in this case would be pendency of criminal proceedings, would entitle cancellation of appointment. However, the question for consideration would be did the petitioner suppress material fact. The Tribunal has observed that during process of selection the respondents called for information about pending criminal proceedings. However, nothing is brought to this Court's notice to justify such conclusion. This would be crucial because it is not even disputed that the application did not have a column that required this information.
12. This Court must observe that if the respondent can justify cancellation of appointment, or petitioner's discharge from service, it was incumbent upon them to
- 12 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 place on record the process undertaken during the selection to call for information, and that petitioner in furnishing such information had suppressed material the pendency of the criminal proceedings. Further, in view of the decision of the Hon'ble Supreme Court in Avtar Singh's case it can be successfully argues that the failure to disclose the criminal proceedings may not by itself be fatal to the case if can be shown that the prosecution relates to a trivial conduct or does not involve moral turpitude. The impugned orders dated 18.12.2018/03.01.2019 does not indicate that these aspects are even considered.
13. The allegation against the petitioner and eleven others is misappropriation of funds under the MGNREGA Scheme. The charge-sheet is against three employees of the panchayat and ten others including the petitioner. It is undisputed that the petitioner has not executed any contract under the scheme with this panchayat and the main allegation is that he has joined hands with his relative who misappropriated the funds. These are aspects that will
- 13 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 have to be examined in the pending criminal proceedings. If ultimately the petitioner is found guilty of the offence alleged against him, he must yield his appointment as stated by himself in his representation dated 08.08.2018 and if this statement is seen as a ruse to retain his employment.
14. In the circumstances of the case, where the petitioner, who has worked without salary for a period of 12 months when he submitted his representation stating that he would abide by criminal proceedings and return the salary received and no police report is obtained as contemplated under the appointment letter, this Court is of the considered view that the Tribunal could not have sustained the impugned order. If the petitioner has worked, there would be no reason to deny salary for the period, but, in the circumstances, it must be observed that he cannot claim salary for the period that he has not worked. Hence, the following:
- 14 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 ORDER The petition is allowed, and the Tribunal's order impugned dated 02.08.2021 is quashed.
The impugned orders dated 18.12.2018/03.01.2019 are quashed directing the second respondent to continue the petitioner in service subject to the out come of the criminal proceedings pending in C.C. No.283/2016 but with liberty to initiate proceedings either for discharge or dismissal after due departmental proceedings as found fit. Consequentially the order in appeal dated
15.10.2020 is also quashed with liberty as aforesaid.
The second respondent is called upon to take necessary measures for disbursement of the salary for the period during which petitioner has rendered service initially and during pendency of the proceedings.
The decision in this regard shall be taken
- 15 -
NC: 2023:KHC-K:4600-DB WP No. 201551 of 2021 within a period of [6] six months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE Sd/-
JUDGE SBS List No.: 1 Sl No.: 25