R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF MARCH, 2020 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR W.P.NO.5965/2020 (S-DIS) BETWEEN SRI PRATHAP B AGED ABOUT34YEARS, S/O LATE BALARAJ NO.289, 2ND H CROSS, BBMP3D MAIN, 3RD STAGE, BASAVESHWARANAGAR, BENGALURU-560 079. ...PETITIONER (BY SRI TUMBIGI PRABHUGOUDA BASAVANTARAYAGOUDA, ADV.) AND COMMISSIONER BRUHATH BENGALURU MAHANAGAR PALIKE N.R.SQUARE, BENGALURU-560 002. …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE RESPONDENT DATED2211.2019 VIDE ANNEXURE-A ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
2. ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is a former employee of the Bruhath Benglauru Mahanagara Palike (BBMP) and was discharging duties as in-charge Assistant Revenue Officer, BBMP, Arkere Sub-Division, Benglauru and that on the complaint of one Sri.Pradeep that the petitioner was demanding money for carrying out mutation in respect of property bearing Sy.No.69/1, Hulimavu Village, Bengaluru, the Lokayuktha Police laid a trap and the petitioner was caught red-handed and thereafter, Lokayuktha Police registered a case in Crime No.69/2016.
3. After completion of investigation, chargesheet came to be lodged against the petitioner in Spl.C.C.No.161/2017 before the LXXVIII Additional City Civil and Sessions Judge and Special Judge (PCA), Bengaluru under the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘P.C. Act’ for short). After appreciation of the oral, 3 ocular evidence and material evidence on record, the trial Court was pleased to convict the petitioner and awarded maximum sentence of four years for the offence punishable under Section 7 of the P.C. Act and five years for the offence punishable under Sections 13 (1) (d) and 13(2) of the P.C. Act. That the petitioner preferred an appeal in Criminal Appeal No.865/2019 before this Court and the Court was pleased to suspend the sentence.
4. It is contended by learned counsel for petitioner that after the suspension of sentence, BBMP permitted him to resume duties and posted him in Ward No.54 as Assistant Revenue Officer. That by letter dated 02.11.2019, the Lokayuktha Police had recommended imposition of punishment. Accordingly, the respondent employer without affording an opportunity of hearing was pleased to pass an order whereby, the petitioner was to compulsorily retired from its services. 4
5. Learned counsel for the petitioner would contend that the order of removal is arbitrary and contrary to the principles of natural justice. He places reliance on the ruling of the Hon’ble Apex Court in the case of Union of India and Others vs. Sunil Kumar Sarkar reported in (2001) 3 SCC414 By referring to head note ‘C’, he would submit that the minimum requirement was a Show Cause Notice calling upon the delinquent to show cause against the proposed punishment and the respondent having failed to adhere to the same, the impugned order stands vitiated. The said contention need not detain this Court for long. The respondent employer has placed reliance on Section 90 of the Karnataka Municipal Corporations Act, 1976, which reads as under: “90. Punishment for Corporation Officers and other employees.-.
1) Every Corporation Officer or other Corporation employee shall be liable to have his increments or promotion withheld or to be 5 censured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental rules or regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed: Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed: Provided further that the Corporation employees belonging to such classes or categories as may be prescribed by the rules shall be liable also to be fined by such authority as may be specified therein. (2) No such officer or other employee shall be punished under sub-section (1) unless he has given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this sub-section shall not apply.- 6 (a) where an officer or other employee is removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for reasons to be recorded by that authority it is not reasonably practicable to give that person an opportunity for showing cause. (3) If any question arises whether it is reasonably practicable to give to any officer or other employee an opportunity of showing cause under sub-section (2) the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final. (4) Any officer or other employee upon whom a punishment has been imposed under this section may appeal to such officer or authority as may be prescribed.
6. The proviso (a) to sub-section 2 of Section 90 of the Act clearly obviates the necessity to issue 7 Show Cause Notice in the event, the employer desires to remove or dismiss the employee on the ground of a conduct which has lead to his conviction on a criminal charge.
7. Apparently, in the instant case, the petitioner has been found guilty on the charges laid by the prosecution, namely, Lokayuktha Police for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the P.C. Act and has been awarded a punishment of imprisonment for a period four years for the offence punishable under Section 7 and five years for the offence punishable under Sections 13 (1) (d) and 13(2) of the P.C. Act respectively. That apart, the trial Court has also been pleased to impose fine to the tune of Rs.1 lakh and 2 lakhs and in default has directed the convict to further undergo simple imprisonment for further periods.
8. In the light of the above conviction and sentence imposed, the Commissioner – BBMP, who is the competent authority has invoked the provisions 8 of Section 90 of the Act and exercising the authority vested in him under Section 90 of the Act has proceeded to pass the impugned order.
9. The contention of learned counsel for the petitioner that opportunity ought to have been provided has to fly in the face of the clause (a) of the proviso to Sub-section 2 of Section 90 of the Act, which dispenses with the necessity to issue any Show Cause Notice. It is not the case of the petitioner that the Court has been pleased to stay the operation of the judgment. Mere suspension of sentence would only ensure that he does not go behind the bars pending hearing of the appeal. The operation of the judgment having not been stayed, the reliance placed by the competent authority on the judgment holding him guilty on a criminal charge, cannot be found fault with.
10. Accordingly, reliance on the ruling of the Apex Court stated supra is misplaced. The Hon’ble Apex Court while upholding the contention, that mere 9 issuance of Show Cause Notice would suffice to meet the requirement of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 upon which reliance was placed to by the authority therein to pass an order of dismissal. The Hon’ble Apex Court in paragraph No.8 of the said judgment was pleased to observe as follows: “8. The Division Bench also found fault with the order of dismissal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respondent in the court-martial proceedings. The Court in this regard held that the disciplinary authority had a predetermined mind when he passed the order of dismissal. Here again, in our opinion, the Division Bench did not take into consideration Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a government servant on his conviction in a criminal charge, the disciplinary authority can make such order as it deems fit (dismissal from service is one such order contemplated 10 under Rule
19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a predetermined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show-cause notice and reply to such show- cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in 11 mind the gravity of the conviction suffered by the government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said disciplinary authority had any predetermined mind when it passed the order of dismissal.” Further also proceeded to hold in paragraph No.11 as follows: “11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tantamount to “double jeopardy” and is in violation of Article 20 of the Constitution of India. Having considered 12 the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the misconduct might arise out of the same act. The court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No.SRO-329 dated 23-9-1960 issued under the Central Rules and under sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court-martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan v. Union of India.” 13 11. In the instant case, reliance is also placed on the ruling of the Hon’ble Apex Court in the case of S.N.Narula vs. Union of India and Others reported in (2011) 4 SCC591 The reliance on the said ruling is misplaced for the short reason that the Hon’ble Apex Court was considering the issue of lack of opportunity to make effective representation on the quantum of punishment prior to imposition of punishment. The said case arose out of a disciplinary proceedings unlike in the instant case. There is no challenge to the vires of Section 90 of the Act. In the light of the statutory provisions, no error or perversity is pointed out by learned counsel for petitioner.
12. The competent authority cannot be faulted with for having invoked the provisions of Section 90 of the Act. The exercise of the powers vested in the authority under Section 90 of the Act is fully justified in the light of the conviction and sentence imposed by the Special Court. Accordingly, the petition being devoid of merits stands dismissed. 14
13. The dismissal of the writ petition would not come in the way of the petitioner seeking for reinstatement in the event of his being acquitted on merits in the pending appeal. If such representation is made praying for re-instatement, the same shall be considered in accordance with law. The petition stands ordered accordingly. Sd/- JUDGE dn/- CT-HR