- 1 - NC: 2025:KHC:8624 WP No. 12732 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 12732 OF 2015 (S-DIS) BETWEEN: S SURESH KUMAR AGED ABOUT 54 YEARS, SON OF LATE SRI G SIDDAIAH, R/AT NO.13, 3RD CROSS MARUTHINAGAR, CHANDRA LAYOUT, BANGALORE-560 072. …PETITIONER (BY SRI. R KRISHNA MURTHY, ADV.) AND: 1. BOARD OF DIRECTORS OF KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED, NO.16/I, MILLERS TANK BED AREA, BANGALORE-560 052, REP. BY ITS CHAIRMAN. 2. KARNATAKA FOOD AND CIVIL SUPPLIES CORPORATION LIMITED, NO.16/1, MILLERS TANK BED AREA, BANGALORE-560 052, REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS (BY SRI. G.B. NANDISH GOWDA, ADV. FOR R1 AND R2) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 13.1.2014 VIDE ANN-A WHEREBY THE R-2 HAS Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8624 WP No. 12732 of 2015 DISMISSED THE PETITIONER WITH RETROSPECTIVE EFFECT FROM 17.8.2004 AND THE ENDORSEMENT DATED 01.09.2014 VIDE ANN-B WHEREBY THE R-1 HAS DISMISSED THE APPEAL OF THE PETITIONER AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER The petitioner, a dismissed Junior Assistant of the respondent-Karnataka Food and Civil Supplies Corporation Limited (for short “Corporation”) is before this Court, questioning Annexure-A, order of penalty bearing No.KFCSC/LD/19/2012-13/2013-14/5533 dated 13.01.2014 dismissing the petitioner retrospectively and also Annexure-B endorsement issued by the Appellate Authority bearing No.KFCSC/LD/19/2012-13/2014- 15/2855 dated 01.09.2014 dismissing the appeal and with a further prayer to direct the respondents to reinstate the petitioner into service w.e.f. 17.08.2004 and to grant all consequential service benefits. - 3 - NC: 2025:KHC:8624 WP No. 12732 of 2015 2. The brief facts of the case are that: The petitioner was working as Junior Assistant in the respondent-Corporation. Article of charges dated 02/04.07.2003 was issued to the petitioner alleging misconduct. In that, not maintaining proper records and also alleging certain misappropriation. On conducting enquiry, the punishment of dismissal from service was imposed under order dated 16/17.08.2004 (Annexure-D). The appeal filed against the said order also came to be dismissed. Aggrieved by the same, the petitioner was before this Court in W.P.No.19551/2009. This Court, by order dated 04.07.2012 allowed the writ petition, quashed the order of the Appellate Authority as well as order of penalty of dismissal and also the enquiry report. The matter was remanded back to the Enquiry Officer to hold fresh enquiry by providing an opportunity to both the parties, in accordance with law. Thereafter, de novo enquiry was conducted against the petitioner and the Enquiry Officer submitted his report dated 24.06.2013. The second show-cause notice dated 07.08.2013 was - 4 - NC: 2025:KHC:8624 WP No. 12732 of 2015 issued to the petitioner enclosing report of the Enquiry Officer. On receiving the reply from the petitioner, Annexure-A order dated 13.01.2014 was passed imposing penalty of dismissal and recovery for the loss caused to the Corporation. Aggrieved by the said order, the petitioner filed an appeal and the Appellate Authority issued an endorsement dated 01.09.2014 (Annexure-B). Aggrieved by the order of penalty as well as the endorsement issued by the Appellate Authority, the petitioner is before this Court, in this writ petition. 3. Heard learned counsel Sri.Krishna Murthy for petitioner and learned counsel Sri.G.B.Nandish Gowda for respondent Nos.1 and 2. Perused the entire writ petition papers. 4. Learned counsel for the petitioner would submit that the charges against the petitioner are not established and finding of the Enquiry Officer is not based on the material on record. Learned counsel inviting attention of this Court to the report of the Enquiry Officer placed on record at - 5 - NC: 2025:KHC:8624 WP No. 12732 of 2015 Annexure-L submits that only minor charges i.e., clerical errors have been proved, but he submits that major charge of misappropriation is not proved. Hence, he submits that imposition of penalty of dismissal itself is illegal and unreasonable. Learned counsel would further submit that when there is no material evidence against the petitioner, the respondents are not justified in dismissing the petitioner from service. 5. Learned counsel would further submit that the petitioner was not paid salary or subsistence allowance subsequent to setting aside the order of dismissal at the first round, when he approached this Court. He submits that on setting aside the order of penalty of dismissal, the petitioner would be entitled for reinstatement and salary. Learned counsel for the petitioner would submit that the respondents have not paid salary or subsistence allowance to the petitioner subsequent to setting aside the penalty order of dismissal. Learned counsel further submits that the enquiry report also would not indicate as to on what - 6 - NC: 2025:KHC:8624 WP No. 12732 of 2015 basis the Enquiry Officer has held minor charges proved against the petitioner. Learned counsel submits that the respondent-authorities could not have imposed punishment with retrospective effect. There is no provision either in the Service Rules of respondent- Corporation or under CCA Rules adopted by the respondent-Corporation. There is no provision to give effect to the dismissal order retrospectively. He submits that the dismissal order is given retrospective effect only to see that the petitioner is not paid subsistence allowance or salary for which the petitioner was entitled to. Thus, learned counsel would pray for allowing the writ petition and to set aside the order of penalty as well as the order of the Appellate Authority. 6. Per contra, learned counsel Sri.Nandish Gowda would submit that there is sufficient material to prove the charge against the petitioner. He submits that based on the material placed before the Enquiry Officer, Enquiry Officer has rightly found the petitioner guilty of the charges - 7 - NC: 2025:KHC:8624 WP No. 12732 of 2015 though the Enquiry Officer has exonerated the petitioner on some charges. It is his submission that in the earlier round, this Court set aside the order of dismissal remanding the matter for fresh enquiry, without directing reinstatement of the petitioner. When there is no specific direction for reinstatement, learned counsel would submit that the petitioner would not be entitled for reinstatement or for any pay and allowances. Learned counsel would also submit that the petitioner would not be entitled for subsistence allowance, since the petitioner is no longer in service, but only in terms of the order of this Court, de novo enquiry is being conducted against the petitioner. 7. Further, learned counsel Sri.Nandish Gowda would submit that the impugned order imposes punishment of dismissal as well as recovery of amount i.e., loss caused by the petitioner to the respondent-Corporation. He submits that a separate enquiry was held against the petitioner regarding determination of loss caused and the loss is determined and recovered from the pensionary benefits of - 8 - NC: 2025:KHC:8624 WP No. 12732 of 2015 petitioner except to an extent of Rs.8,000/-. Thus, learned counsel would pray for dismissal of the writ petition. 8. Having heard the learned counsel for the parties and on perusal of the entire writ petition papers, the point that would fall for consideration is as to whether the impugned order of penalty of dismissal requires interference? 9. Answer to the above point would be partly in the affirmative and partly in the negative for the reasons to be recorded below and the dismissal order could not be given retrospective effect or begin to operate retrospectively, however, the same would not invalidate the order of dismissal and it would only have prospective effect, from the date of the order. 10. The petitioner was an employee of respondent- Corporation, working as Junior Assistant. The article of charges was issued to the petitioner in terms of Annexure- C dated 02/04.07.2003. Charges alleged against the petitioner read as follows: - 9 - NC: 2025:KHC:8624 WP No. 12732 of 2015 “DgÉÆÃ¥À ¥ÀnÖ: DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À----01 01 01 01 :::: ©¯ï £ÀA:2755 jAzÀ 2772 gÀªÀgÉUÉ ©¯ï ªÀiÁr «vÀgÀuÉ vÉÆÃj¹gÀÄwÛÃj. ¸ÀzÀj ©¯ïUÀ¼À°è ¢£ÁAPÀªÀ£ÀÄß ¸ÀjAiÀiÁV £ÀªÀÄÆ¢¹®è, ©¯ïUÀ¼À°è ¥ÀrvÀgÀ aÃn ¸ÀASÉåAiÀÄ£ÀÄß ¸ÀàµÀÖªÁV £ÀªÀÄÆ¢¹®è. ©¯ïUÀ¼À ªÉÄÃ¯É ¥ÀrvÀgÀ aÃnzÁgÀgÀ ¸À»AiÀÄ£ÀÄß £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è ªÀÄvÀÄÛ zÉÊ£ÀA¢£À ªÀiÁgÁl ¥ÀĸÀÛPÀzÀ°è ©¯ï ¸ÀASÉåAiÀÄ£ÀÄß £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è. F jÃw C¸ÀàµÀÖ jÃwAiÀÄ°è ©¯ïªÀiÁr zÁ¸ÁÛ£À£ÀÄß ¸ÀéAvÀ ¯Á¨sÀPÁÌV zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArgÀÄ«j. DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À----02 02 02 02 :::: ©¯ï ªÀiÁqÀ¯ÁzÀ ¥ÀæªÀiÁtªÀ£ÀÄß zÉÊ£ÀA¢£À ªÀiÁgÁl ¥ÀĸÀÛPÀzÀ°è £ÀªÀÄÆ¢¹gÀÄwÛÃj. ¸ÀzÀj ¥ÀĸÀÛPÀzÀ°è £ÀªÀÄÆ¢¸À¯ÁzÀ ¢£ÀªÀ» ªÀiÁgÁl vÀBSÉÛ ºÁUÀÆ ©¯ï ªÀiÁrzÀ ¥ÀæªÀiÁtPÀÆÌ ªÀåvÁå¸À«zÀÄÝ, ¤ªÀÄä ¸ÀéAvÀ ¯Á¨sÀPÁÌV zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArgÀÄwÛÃj. DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À----03 03 03 03 : ©¯ï ªÀiÁqÀzÉà zÉÊ£ÀA¢£À ªÀiÁgÁl ¥ÀĸÀÛPÀzÀ°è zÁ¸ÁÛ£ÀÄ «vÀgÀuÉAiÀiÁVzÉ JAzÀÄ £ÀªÀÄÆ¢¹ ¥ÀrvÀgÀ zÁ¸ÁÛ£À£ÀÄß ¤ªÀÄä ¸ÀéAvÀ ¯Á¨sÀPÁÌV zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹ PÉÆArgÀÄwÛÃj. DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À----04 04 04 04 : ©¯ïUÀ¼À°è ©.¦.J¯ï. CQÌUÉ ªÀiÁvÀæ ©¯ï ªÀiÁr zÉÊ£ÀA¢£À ªÀiÁgÁl ¥ÀĸÀÛPÀzÀ°è CQÌ, UÉÆâü, ¸ÀPÀÌgÉ ªÀÄvÀÄÛ gÁV EªÀÅUÀ¼ÀÄ ¸ÀºÀ «vÀgÀuÉ ªÀiÁqÀ¯ÁVzÉ JAzÀÄ £ÀªÀÄÆ¢¹ ¥ÀrvÀgÀ zÁ¸ÁÛ£À£ÀÄß ¤ªÀÄä ¸ÀéAvÀ ¯Á¨sÀPÁÌV zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArgÀÄwÛÃj. - 10 - NC: 2025:KHC:8624 WP No. 12732 of 2015 DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À DgÉÆÃ¥À----05 05 05 05: ±Á¯Á ªÀÄPÀ̼À ªÀÄzsÁåºÀß G¥ÀºÁgÀ AiÉÆÃd£ÉAiÀÄ ¥ÀrvÀgÀ PÁqÀÄðUÀ¼ÀÄ ¸ÀA§AzsÀ¥ÀlÖ «zÁåyðUÀ¼À §½ EgÀ¨ÉÃPÁVzÀÄÝ EªÀÅUÀ¼ÀÄ a®ègÉ ªÀĽUÉAiÀįÉè G½¹PÉÆAqÀÄ zÀÄ£ÀðqÀvɪɸÀVgÀÄwÛÃj.” 11. Based on the enquiry report, the petitioner was imposed with punishment of dismissal under order dated 16/17.08.2004 (Annexure-D) and the appeal filed against the said order also came to be dismissed which was the subject matter of W.P.No.19551/2009. This Court, by order dated 04.07.2012 passed the following order: “(i) Writ Petition is hereby allowed. (ii) The impugned order of the Appellate Authority dated 25.05.2005 at Annexure-C and the order of penalty dated 17.08.20204 and the enquiry report are hereby set aside. (iii) The matter is remanded to Enquiry Officer to hold fresh enquiry by providing opportunity to both the parties in accordance with law and as expeditiously as possible and in any event not later than three months from the date of receipt of copy of this order.” - 11 - NC: 2025:KHC:8624 WP No. 12732 of 2015 A careful reading of the order of this Court makes it clear that the order of Appellate Authority as well as penalty of dismissal dated 17.08.2004 was set aside, with a direction to the respondents to hold fresh enquiry by providing opportunity, in accordance with law. Subsequently, de novo enquiry is conducted and report is submitted on 24.06.2013. In the above report finding of the Enquiry Officer at paragraph 13 reads as follows: “(a) having failed to record date & ration card numbers properly on bills No.2755 to 2772, having not obtained the signature of ration card holders on the said bills and having failed to record the above bill numbers in the DSA concerned; (b) having failed to maintain proper account of commodities in respect of sales on 28.12.2002 by showing difference between quantity recorded in DSA and the billed quantity; (c) having charged off 3489 Kgs. Rice, 889 Kgs. of wheat, 372 Kgs. of sugar and 588 Kgs. of Ragi in the DSA for 29 and 30th December - 12 - NC: 2025:KHC:8624 WP No. 12732 of 2015 2002 and 9th, 110th, 13th, 20th, 22nd, 23rd, 25th and 27th January 2003 without actually preparing the bills. (d) having charged off 102 Kgs. of sugar in DSA & stock book record of 10th, 22nd and 24th January 2003 without billing the same in the relevant bills; and (e) having kept, in the retail point, MDM cards of students in violation of set procedure are proved. (a) having misappropriated the commodities in respect of bills serial numbers 2755 to 2772; (b) having misappropriated the commodities by showing difference between quantity recorded in DSA and the billed quantity in respect of sales of 28.12.2002; (c) having misappropriated 3489 Kgs. rice, 889 Kgs. of wheat, 372 Kgs. of Sugar and 588 Kgs. of ragi; (d) having misappropriated 102 Kgs. of sugar; and (e) having kept MDM cards in the retail point with ulterior motive - 13 - NC: 2025:KHC:8624 WP No. 12732 of 2015 are not proved.” In the first portion of paragraph 13, the charges stated therein are proved and the second portion i.e., charges relating to misappropriation are not proved. The proved charges are that the petitioner is said to have failed to record ration card numbers properly on the bills and further it also indicates the proved charge is with regard to having charged certain quantity of food grains without actually preparing the bills. The finding of the Enquiry Officer is based on the evidence placed on record. It is pertinent to note that in a departmental enquiry, strict rules of evidence would not be applicable and charges could be proved on the basis of preponderance of probabilities. Further, this Court would not go into sufficiency or otherwise of the evidence and the Court would only examine as to whether there is some evidence to prove the charges. The Enquiry Officer has held that some of the charges as proved. The petitioner was given an opportunity to comment on the enquiry report by - 14 - NC: 2025:KHC:8624 WP No. 12732 of 2015 issuing second show-cause notice. There is no illegality in the procedural aspect in conducting the enquiry. In the said circumstances, I decline to interfere with the finding of the Enquiry Officer. 12. Admittedly, when the penalty of dismissal was imposed on the petitioner under impugned order dated 16/17.08.2004 which was the subject matter of the writ petition before this Court, this court on quashing the order of penalty directed de novo enquiry. Once the order of penalty of dismissal is set aside or quashed, the order of dismissal would not exist in eye of law. If the order of dismissal is not in existence, the respondent-authorities shall have to pass appropriate order either reinstating the petitioner into service or to treat the petitioner under suspension. In the instant case, the respondents have failed to pass appropriate order on setting aside the order of dismissal of the petitioner. 13. The Hon'ble Apex Court in NELSON MOTIS v/s UNION OF INDIA AND ANOTHER reported in AIR 1992 - 15 - NC: 2025:KHC:8624 WP No. 12732 of 2015 SC 1981 was considering Rule 10(4) of Central Civil Services (Classification, Control and Appeals) Rules, 1965 (for short “1965 Rules”) where under there was provision for continuing the delinquent official under suspension after setting aside the order of dismissal or removal. In the said circumstances, the Hon'ble Apex Court has held that, on setting aside the order of dismissal, the finding against the petitioner i.e., delinquent official disappears. When there is a direction for de novo enquiry, if the respondent-Corporation is not inclined to reinstate the petitioner, then it follows that the petitioner would continue under suspension. Since the petitioner would continue under suspension on setting aside the order of penalty of dismissal, the petitioner would be entitled for subsistence allowance from the date of setting aside the order of penalty of dismissal. 14. A careful reading of the order of penalty of dismissal, it is seen that the order of penalty of dismissal is given retrospective operation from 17.08.2004 which is - 16 - NC: 2025:KHC:8624 WP No. 12732 of 2015 impermissible. There is no provision under the CCA Rules, under which, respondents have exercised their power to impose punishment. Always, the order of dismissal would come into operation from the date of the order. Only from the date of order of penalty of dismissal, relationship of employer and employee is severed and until then, it would continue. 15. The Hon'ble Apex Court in STATE BANK OF PATIALA AND ANOTHER v/s RAM NIWAS BANSAL (DEAD THROUGH LEGAL REPRESENTATIVES) reported in (2014) 12 SCC 106 has observed that dismissal order cannot be made retrospectively operative, but that will not invalidate the order of dismissal and it would only have prospective effect. In the same manner, in the instant case also, the order of penalty of dismissal would come into operation only from the date of impugned order i.e., from 13.01.2014. 16. In the above circumstances, the following order: (i) The writ petition is allowed in part. - 17 - NC: 2025:KHC:8624 WP No. 12732 of 2015 (ii) The impugned order bearing No.KFCSC/LD/19/2012-13/2013-14/5533 dated 13.01.2014 to the extent of its retrospective operation is quashed. But, order of penalty of dismissal is not interfered with and the same would come into operation from the date of its order i.e., 13.01.2014. (iii) The petitioner would be entitled for subsistence allowance from 04.07.2012, the date of setting aside the order of penalty, till imposition of penalty under impugned order dated 13.01.2014. (iv) The subsistence allowance for the above stated period shall be paid, within two months from today. SD/- (S.G.PANDIT) JUDGE MPK CT:bms List No.: 1 Sl No.: 48