Karnataka High Court
Sri A K Lakshmanappa vs The State Of Karnataka on 7 January, 2014
Equivalent citations: 2014 LAB. I. C. (NOC) 418 (KAR.), 2014 (2) AKR 334
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.52343/2013 (S-DE)
BETWEEN:
Sri A.K. Lakshmanappa,
S/o. late Rangappa,
Aged about 45 years,
Community Organiser,
City Municipal Council,
Harihara-Davangere,
Davangere District,
R/o. Gollarahalli, Honnali Taluk,
Davangere - 572 103.
...PETITIONER
(By Sri A. Nagarajappa, Adv.)
AND:
1. The State of Karnataka,
Rep. by its Secretary,
Urban Development Authority,
Vikasa Soudha,
Bangalore - 560 001.
2. The Director,
Municipal Administration Department,
2
9th Floor, Vishweshwaraiah Tower,
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
3. The Karnataka Lokayuktha,
Rep. by its Registrar,
M.S. Building,
Bangalore - 560 001.
4. The Commissioner,
City Municipal Council,
Harihara - 572 103.
...RESPONDENTS
(By Smt. Rafeeunisa, HCGP)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the impugned
order of dismissal dated 18.4.2013 vide Annexure-A
passed by the 2nd respondent and direct the respondents
to take back the petitioner to duty immediately with all
consequential benefits in view of initiation of Departmental
Enquiry.
This petition coming on for orders this day, the Court
made the following:
ORDER
Petitioner, who was in the cadre of Community Organizer and worked in the office of City Municipal Council, Harihara-Davanagere, has filed this writ petition, to quash an order of dismissal dated 18.04.2013 (Annexure-A), passed by the Director, Municipal 3 Administration Department, Government of Karnataka, Bangalore and to direct the respondents to take him back immediately to duty and extend all consequential benefits.
2. One Smt. Sushelamma, wife of Eshwarappa, Durgigudi Layout, Honnali Taluk, Davanagere, filed a complaint on 11.07.2007 before the Police Inspector, Karnataka Lokayukta, Davanagere, alleging that when she applied for certificate of title of house Site No.18, measuring 20x30 feet, in Sy.No.14 of Honnali Village, granted by the Government under Ashraya Scheme, when approached the petitioner on 10.07.2007 and requested about the said work, allegedly demanded a bribe of `800/- and not willing to pay the bribe, she filed a complaint, based on which, case in Davanagere Lokayukta Police Crime No.6/2007 for the offences punishable under Ss.7, 13(1) (d) r/w S.13(2) of the Prevention of Corruption Act, 1988 (for short 'the P.C. Act') was registered and FIR was submitted to the Special Judge. The case having been investigated, a charge sheet was filed in Special Case 4 No.12/2007 in the Court of District and Sessions Judge at Davanagere. After trial, on 08.02.2013, petitioner having been found guilty was convicted for the said offences and was sentenced to undergo R.I. for one year and pay fine of `10,000/-, in default to pay fine, to undergo S.I. for further period of six months. Feeling aggrieved, petitioner filed Criminal Appeal No.231/2013. By an order dated 04.03.2013, the appeal was admitted and the impugned sentence was suspended.
3. The Director of Municipal Administration, as a sequel to the petitioner having been found guilty of the charges leveled against him in Special Case No.12/2007 on the file of the District and Sessions Court, Davanagere, passed an order dated 18.04.2013 and dismissed the petitioner from the service. W.P.No.19056/2013 filed assailing the said order of dismissal was dismissed on 25.04.2013 with an observation that "it is open to the petitioner to workout his rights and remedies as and when things develop".
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4. The 1st respondent having ordered for holding an enquiry against the petitioner and the 3rd respondent having issued Articles of charge dated 27.09.2013, vide Annexure-D, in respect of the allegation that the petitioner having demanded and accepted bribe of `800/- on 11.07.2007 from the complainant - Smt. Susheelamma for issuing of certificate of title of the property sanctioned under Ashraya scheme and that he failed to maintain absolute integrity and committed an act, which is unbecoming of a Government servant and thus, guilty of misconduct under Rule 3(1) (i) to (iii) of KCS (Conduct) Rules, 1996, this writ petition was filed, to quash the order of dismissal passed on 18.04.2013, vide Annexure-A, passed by the 2nd respondent and for grant of consequential reliefs.
5. Sri A. Nagarajappa, learned advocate, vehemently contended that in view of issuance of Articles of Charge dated 27.09.2013, which is a subsequent development, the order of dismissal passed by the 2nd 6 respondent on 18.04.2013 is liable to be quashed, more particularly, in view of the observation made in the order dated 25.04.2013 passed in W.P.No.19056/2013. He submitted that in view of issuance of Articles of charge, as at Annexure-D, by operation of law, the petitioner is in office and is entitled to continue till the action is taken on the basis of the departmental enquiry. He further submitted that the sentence imposed on the petitioner having been suspended in Crl.A.No.231/2013 on 04.03.2013, the petitioner is entitled to the relief sought for.
6. Perused the writ record.
7. In Special (LOK) Case No.12/2007, by a judgment dated 13.02.2013, passed by the Principal District and Sessions Judge, Davanagere, the petitioner was found guilty and was convicted for the offences punishable under Ss.7 and 13(2) r/w 13(1)(d) of the P.C. Act and he has been sentenced to undergo R.I. for one year and pay fine of `10,000/- and in default to pay fine, 7 to undergo S.I. for further period of six months. Crl.A.No.231/2013 having been filed against the said judgment, the appeal was admitted and sentence imposed was suspended on 04.03.2013.
8. Based on the said judgment of conviction, the petitioner having been dismissed on 18.04.2013 by the 2nd respondent, W.P.No.19056/2013 was filed. Considering the rival contentions and the reliance placed on the decision in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, (1995) 3 SCC 377, while dismissing the writ petition, it was held as follows:
"5. In a matter where the petitioner - employee had been prosecuted on charges of criminal act and the Special Judge had found him guilty and convicted him, I do not find it feasible or practical to interfere in writ jurisdiction even during the pendency of the criminal appeal. It is open to the petitioner to work out his rights and remedies as and when things develop, but not at this stage, it is therefore this writ petition is dismissed."
Undeniably, the said order has attained finality. 8
9. Articles of Charge, dated 27.09.2013, vide Annexure-D having been issued by the Karnataka Lokayukta to the petitioner, this writ petition has been filed, contending that his summary dismissal from the service on 18.04.2013, vide Annexure-A is illegal.
10. In the case of S. Nagoor Meera (supra), the Apex Court considering the Clause(a) of the proviso to Article 311(2) of the Constitution, which prescribes for dispensing with the requirement of giving reasonable opportunity to the employee where the employee is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge, Apex Court has held that merely because an appeal has been filed against the conviction by an employee does not mean that the conviction is suspended during the pendency of the appeal and that the suspension of sentence has to be distinguished from suspension of conviction and that it is open to the competent authority to proceed against the Government servant during the 9 pendency of the appeal. It has, however, been laid down that if the Government servant is later acquitted, the order can always be revised and the Government servant can be reinstituted and he will be entitled to all the benefits to which he would have been entitled to had he continued the service.
11. In the case of Union of India and others Vs. Ramesh Kumar, (1997) 7 SCC 514, respondent while serving as Inspector of Food and Supply Service Department of Delhi Administration, was arrested by Anti- Corruption Wing for accepting illegal gratification. Consequently, he was placed under suspension. He having been prosecuted, on 30.07.1983, was convicted under S.5(2) of P.C. Act, 1947 and sentenced to undergo imprisonment for three years and pay a fine of `5,000/-
and in default, to further undergo six months imprisonment. After the said conviction, the disciplinary
authority dismissed the respondent from the service under Rule 19 of CCS (CCA) Rules, 1965 read with the provisions 10 of the Vigilance Manual. Simultaneously, the respondent filed criminal appeal along with a prayer for bail against the conviction and sentence recorded by the Trial Judge. The appeal was admitted and execution of sentence was suspended and he was directed to be released on furnishing personal bond with one surety to the satisfaction of the Trial Court. After about 4 years of passing of the order of dismissal, respondent filed an application under S.19 of the Administrative Tribunal Act, 1985 in the Central Administrative Tribunal, for quashing of dismissal and to issue a direction to grant subsistence allowance for the period beginning from the date of dismissal and till filing of criminal appeal in the High Court. Tribunal having allowed the said application on 02.03.1990 and granted the reliefs and the employer having filed an appeal, after noticing the relevant provisions in CCS (CCA) Rules, 1965 and the provisions of the Vigilance Manual, Apex Court has held as follow:
"6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant 11 on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for talking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate Court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the 12 respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court."
(emphasis supplied)
12. In the case of K.C. Sareen Vs. CBI, Chandigarh, (2001) 6 SCC 584, the appellant, a public servant wanting his conviction to be suspended, the High Court having declined to suspend the judgment of conviction, Apex Court was approached for the relief. Since, disciplinary proceedings were initiated against the appellant and on the strength of the judgment of conviction challenged in the appeal, the employer passed an order of dismissal from the service. Considering the scope and ambit of the powers of the Appellate Court envisaged in S.389 of Cr.P.C., while dismissing the appeal, Apex Court has held as follows:
"11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend 13 the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.
12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes 14 entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."15
13. In the case of State of Maharashtra through CBI, Anti Corruption Branch, Mumbai Vs. Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384, an order of suspension of conviction passed in a criminal appeal arising out of the trial held in respect of the offences under the provisions of the Act, Apex Court while allowing the appeal has held as follows:
"17. The aforesaid order is, therefore, certainly not sustainable in law if examined in the light of the aforementioned judgments of this Court. Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption. It was certainly not the case where damage if done, could not be undone as the respondent employee, if ultimately succeeds, could claim all the consequential benefits."
(emphasis supplied)
14. The order of dismissal passed by the 2nd respondent on 18.04.2013, was questioned in W.P.No.19056/2013 and the writ petition was dismissed. This writ petition filed to quash the said order of dismissal 16 dated 18.04.2013 is hit by principles analogous to res- judicata. The observation made in the order passed in W.P.No.19056/2013, that it is open to the petitioner to work out his rights and remedies as and when things develop, but not at this stage, can only be taken advantage by the petitioner, if Crl.A.No.231/2013 filed by him is allowed and the judgment of conviction and order of sentence finding him guilty by the Trial Court passed on 08.02.2013 is set aside and not otherwise, much less on account of the issuance of Articles of charge.
15. The petitioner has not questioned in this writ petition, the initiation of departmental enquiry by issuance of Articles of Charge, dated 27.09.2013, vide Annexure-D. Sri A. Nagarajappa did not urge any contention as against Annexure-D. In the circumstances, it is unnecessary to record any finding with regard to the validity or otherwise of said proceedings.
In the result, the writ petition being devoid of merit is rejected. It is, however, made clear that in case the 17 petitioner is acquitted in Crl.A.No.231/2013, he can move the competent authority for review of the order of dismissal dated 18.04.2013, as laid down in the case of S. Nagoor Meera (supra).
Sd/-
JUDGE Ksj/-