1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE S. G. PANDIT AND THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR WRIT PETITION NO.22445/2021 (S-KSAT) BETWEEN: A MARI GOWDA S/O LATE APPAJI GOWDA AGED ABOUT 69 YEARS RETD. KAS OFFICER (JUNIOR SCALE) R/AT NO.89, 2ND CROSS, 2ND MAIN VIJAYANAGAR 1ST STAGE MYSORE – 570 017. ... PETITIONER (BY SRI SHAILENDRA M.R., ADV.) AND: 1. THE CHIEF SECRETARY STATE OF KARNATAKA VIDHANA SOUDHA BENGALURU-560001. 2. THE STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS VIDHANA SOUDHA BENGALURU- 560001. 2 3. THE ACCOUNTANT GENERAL IN KARNATAKA (A & E) (GE-1) KARNATAKA, PARK HOUSE BENGALURU-1. 4. KARNATAKA LOKAYUKTHA REP. BY ITS REGISTRAR M.S. BUILDING DR. B.R. AMBEDKAR VEEDHI BENGALURU. …RESPONDENTS (BY SRI V SHIVAREDDY, AGA FOR R1 TO 3 SRI VENKATESH ARABATTI, ADV. FOR R2 & 3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, DATED 08.12.2020 IN APPLICATION NO.3275/2020 (ANNEXURE-A) AND THE ORDER DATED 12.05.2021 (ANNEXURE-B) PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN REVIEW APPLICATION NO.7/2021 AND TO ALLOW THE APPLICATION FILED BY THE PETITIONER BY GRANTING THE PRAYERS MADE IN THE APPLICATION, WITH ALL CONSEQUENTIAL BENEFITS INCLUDING MONETARY BENEFITS. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.11.2024 COMING ON THIS DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR 3 CAV ORDER (PER: HON'BLE MR JUSTICE S.G.PANDIT) Petitioner is before this Court under Article 226 of the Constitution of India questioning the correctness and legality of order dated 08.12.2020 in Application No.3275/2020 passed by the Karnataka State Administrative Tribunal at Bengaluru (for short, ‘the Tribunal’) and also order of penalty dated 13.08.2020 imposing withholding of 50% of pension permanently for the proved misconduct of demanding and accepting illegal gratification. 2. Brief facts of the case are that, while petitioner was working as Deputy Director of Food and Civil Supplies Department, Ramanagara District, on 03.06.2009 on the complaint given by one Sri.G.S.Vishalaksha @ Ravi regarding demanding of Rs.10,000/- as bribe, a trap was laid against the petitioner. On the said incident, a charge sheet was 4 filed against the petitioner in Spl.Case No.10/2012 on the file of the Principal District and Sessions Judge at Ramanagara for the offenses punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short “1988 Act”). On the same incident, a departmental enquiry was also initiated by issuing Article of Charges dated 26.03.2012. After conclusion of enquiry, enquiry report dated 31.10.2020 was forwarded by 4th respondent along with recommendation of the Upa Lokayukta. The petitioner was issued with second show-cause notice dated 27.02.2020 and on consideration of the reply submitted by the petitioner dated 20.06.2020, the second respondent under impugned order dated 13.08.2020 imposed penalty of withholding 50% of the pension permanently. Questioning the said order of penalty, the petitioner was before the Tribunal in Application No.3275/2020. 5 The Tribunal, under impugned order dated 08.12.2020 dismissed petitioner’s challenge to the order of punishment, observing that looking into the entire material, it cannot be said that it is a case of “no evidence” or findings recorded by the Enquiry Officer is perverse in nature. Further, it also observed that the penalty is reasonable and proportionate. Questioning the same, the petitioner is before this Court. 3. Heard learned counsel Sri.M.R.Shailendra for petitioner, learned Additional Government Advocate Sri.V.Shivareddy for respondent Nos.1 to 3 and Sri.Venkatesh S Arbatti, learned counsel for respondent No.4. Perused the entire writ petition papers. 4. Learned counsel Sri.M.R.Shailendra would submit that, order of the Tribunal as well as order of 6 penalty of withholding 50% of the pension is opposed to the material on record and further submits that the Tribunal failed to appreciate the evidence on record. Learned counsel would also submit that the petitioner is acquitted of the charges leveled against him in Spl.Case No.10/2012 and the Disciplinary Authority has failed to take note of the petitioner’s acquittal under judgment dated 29.01.2020 in Spl.Case No.10/2012. Further, learned counsel Sri.Shailendra would submit that it is a case of “no evidence” and that the bribe amount is not recovered from the petitioner. In the above circumstances, the Disciplinary Authority could not have imposed major punishment of withholding 50% of the pension. The report of the Enquiry Officer is based on suspicion and surmises without any material. It is submitted that the allegation against the petitioner is that he has received bribe amount through one Rangaiah, a Bill 7 Collector of TAPCMS, Kanakapura. But the said Rangaiah or any other person is not examined to prove allegation against the petitioner. In the absence of witnesses who could have proved the charge, the Enquiry Officer without any material has held that the charge against the petitioner is proved. 5. Lastly, learned counsel Sri.Shailendra contends that the Disciplinary Authority has failed to consider the reply submitted by the petitioner, wherein he had brought to the notice of the Disciplinary Authority the acquittal of the petitioner in criminal proceedings. Thus, he prays for allowing the writ petition. 6. Per contra, learned Additional Government Advocate as well as learned counsel for respondent No.4 supports the order passed by the Tribunal and further submit that the charge against the petitioner i.e., demanding and accepting of bribe amount of Rs.10,000/- through one Rangaiah, a Bill Collector is 8 proved. Further, they submit that the amount was recovered in the Jeep, in which, they had come and hand wash of the petitioner in Sodium Carbonate solution has turned into pink, that itself is sufficient to come to the conclusion that the petitioner had received bribe amount from the complainant. Further, it is submitted that the Disciplinary Authority examined P.W.1/complainant, P.W.2/Shadow witness and P.W.3/Investigating Officer, whose evidence would prove the charge against the petitioner. Further, learned counsel invite attention of this Court to the judgment of the Sessions Court in Spl.Case No.10/2012 and submitted that the petitioner is acquitted of the charges on benefit of doubt and not on merit. Further, learned counsel appearing for the respondents would submit that the criminal proceedings and departmental enquiry are entirely different and to prove the charge in both the 9 proceedings, degree of proof on the basis of evidence is entirely different. Thus, they pray for dismissal of the writ petition. 7. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the following points would arise for consideration: (i) Whether the punishment of withholding of 50% of pension is proportionate to the nature of charge? (ii) Whether the Tribunal is justified in rejecting petitioner’s application? 8. Answer to the above points would be in the affirmative for the following reasons: On the incident of trap that was laid against the petitioner on 03.06.2009, criminal proceedings in Spl.Case No.10/2012 on the file of Principal District and Sessions Judge, Ramanagara for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of 1988 Act was initiated and on the 10 same incident, a departmental enquiry was also initiated by issuing Article of Charges dated 26.03.2012. The degree of proof required in both the proceedings are entirely different. In criminal proceedings, strict proof of evidence would be necessary to prove the charge whereas in departmental proceedings, charge could be proved on the basis of preponderance of probabilities. 9. The judgment in Spl.Case No.10/2012 is placed on record as Annexure-A1. On going through the judgment, it is seen that the petitioner is acquitted of the charges in criminal proceedings on benefit of doubt and not on merit. The judgment also indicates that the right hand wash of the accused i.e., petitioner herein in the Sodium Carbonate solution immediately after the trap had turned into pink colour and as per the chemical examination report, the right hand wash of the accused tested positive for the presence of 11 phenolphthalein powder, but the Trial Court observed that this alone is not sufficient to draw an inference that the accused had received the tainted money. Therefore, the petitioner cannot take advantage of the judgment dated 29.01.2020 in Spl.Case No.10/2012. Moreover, petitioner is acquitted in the criminal proceedings on benefit of doubt and not on merit. 10. Before the Enquiry Officer, the Disciplinary Authority has examined the complainant as P.W.1, one of the shadow witnesses as P.W.2 and Investigating Officer as P.W.3. On examination of the evidence on record at paragraphs 23, 26 and 27, the Enquiry Officer has recorded as follows: “23) PW-1 in his cross-examination has stated that soon after the signal PW-3 with the team approached the DGO and his subordinate Sri. Rangaiah. Their hands were washed. Thereafter cash was searched to find it below the front left seat of the jeep. Even PW-2 in 12 his cross-examination has stated that the police staff had removed the cash and handed it over. Therefore it is clear that the cash handed over by the complainant was found below the front left seat of the DGOs jeep. Even when the DGO was not touching or not coming in the contract with the currency then there was no reason for the sodium carbonate changing the colour on the hand wash of the DGO. It is not the case of the defence that the cash found below the seat was got removed by DGO and there after his hands dipped in the testing solution. 24) xxxxxxx 25) xxxxxx 26) PW-3 I.O., has also stated about complainant approaching on 03/06/2009 only along with Ex.P-1 complaint. Complainant approaching PW-3 on 01/06/2009 is not stated by PW-3. But, only by PW-1 that too in the cross examination dated: 11/12/2018. It is also stated by Learned Defence Assistant in the Written Brief that complainant approaching the DGO is suspicious as PW-1 in his examination 13 in chief has first met Rangaiah who informed to come down to Loka-Ruchi Restaurant. Whereas PW-2 has stated that DGO alone had told the complainant-PW-1 to come down to the restaurant. However, these facts are not material in appreciating the allegations. However, handing over of the money is very much vital. Because complainant is equipped with currencies tainted with phenolphthalein. The person coming in physically possession of such currency would possess phenolphthalein residue, Even after the trap both Rangaiah and the DGO are found positive in the test of sodium carbonate wash. The custody of cash, cast a burden to explain the possession. Against such test of phenolphthalein and sodium carbonate, it is contended by the defence that, DGO was forcibly came in contact with the currency. It is definite case of the prosecution that complainant had handed over the currency to Rangaiah, who thereafter handed over the currency to the DGO. However, the currencies found under the seat of the jeep were picked out by the I.O., and PW-2 along with CW-3 compared and confirmed it. Therefore, it is clear that after 14 dropping the currencies DGO or his colleague Rangaiah have not touched the currencies. Therefore, the burden of explaining the physical possession of the currency is upon the DGO, 27) It is also noticed that the amount handed over through Rangaiah was not instantly thrown. It was only after being aware of the presence of the police. If DGO was not intercepted, physical possession would have been continued. In the written brief DGO has stated about the contradiction noticed in the evidence of PW-1 and 2 in the Spl.C.C. However, said evidence is not produced in the enquiry and contradictions are not confronted against the respective witnesses. Therefore, evidence even if differently deposed in the criminal trial cannot be sufficient to discard in the enquiry. Witnesses disclosing the incriminating allegation have submitted for cross examination. Therefore, respective contradictions when not confronted to the concerned witness cannot be invoked to impeach such incriminating evidence.” 15 11. We have also gone through the evidence on record which is placed on record as Annexure-A7. This Court would not go into the sufficiency of evidence or would not re-appreciate the evidence, but this Court could see whether there is some evidence to prove the charge. On going through the material on record, we are satisfied that there is sufficient evidence to prove the charge against the petitioner. 12. The Tribunal, on appreciation of the material produced before it has come to the conclusion that the findings recorded by the Enquiry Officer cannot be said as perverse and findings are based on the oral and documentary evidence. The penalty of withholding 50% of the pension is also reasonable and proportionate for the proved misconduct of demanding and accepting bribe and in terms of the decision of the Hon'ble Apex Court, dismissal or removal is the appropriate punishment. In the instant case, as the 16 petitioner had retired, imposition of punishment of withholding of 50% of the pension permanently is proportionate to the proved charge. A perusal of the impugned order of penalty indicates consideration of reply submitted by the petitioner and while accepting the Enquiry Officer’s report, the Disciplinary Authority need not give elaborate reasons. 13. For the reasons recorded above, the writ petition stands rejected. Sd/- (S.G.PANDIT) JUDGE Sd/- (RAMACHANDRA D.HUDDAR) JUDGE MPK CT: bms