IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT WRIT PETITION No.64045/2016 (S-DIS) BETWEEN: SRI J.B SHIVAKUMAR S/O BOMMEGOWDA T. AGED ABOUT 45 YEARS PEON (D-GROUP EMPLOYEE) COURT OF SENIOR CIVIL JUDGE & PRINCIPAL J.M.F.C., TARIKERE R/AT P.K.S. GENERAL HOSPITAL QUARTERS, BIRUR TOWN KADUR TALUK- 577116. ...PETITIONER (BY SRI. P.P. HEDGE, SR. COUNSEL FOR SRI ARAVIND H., ADV.) AND: 1. THE REGISTRAR (VIGILANCE) HIGH COURT OF KARNATAKA BENGALURU-560001. 2. THE PRL. DISTRICT AND SESSIONS JUDGE AND THE DISCIPLINARY AUTHORITY CHIKMAGALUR DISTRICT-577101. 2 3. THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE-577228. 4. THE CHIEF ADMINISTGRATIVE OFFICER DISTRICT COURT CHIKMAGALUR-577101. ….RESPONDENTS (BY SMT. PRATHIBHA R.K., AGA FOR R2 TO 4 SRI RAGHAVENDRA G GAYATHRI, ADV. FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH FINAL ORDER IN D.E.NO.1/2012 DATED 20.12.2012 (ANNEXURE-E) PASSED BY THE R2 AND THE ORDER DATED 30.10.2013 IN APPEAL PASSED BY THE R1 (ANNEXURE-G) AS ILLEGAL, ARBITRARY AND CONTRARY AND DIRECT THE R2 & 3 TO REINSTATE THE PETITIONER INTO SERVICE WITH ALL CONSEQUENTIAL BENEFITS. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 30/01/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT 3 CAV ORDER The petitioner, a dismissed Group-D employee of District Judiciary is before this Court under Article 226 of the Constitution of India, praying to quash the final order in D.E.No.1/2012 dated 20.12.2012 (Annexure-E) by which, penalty of dismissal is imposed for the proved misconduct and also order dated 30.10.2013 in Appeal No.HV/E & A2/2013 passed by the first respondent- Appellate Authority at Annexure-G, by which, the punishment of dismissal is modified to that of compulsory retirement, with a consequential prayer to direct respondent Nos.2 and 3 to reinstate the petitioner into service with all consequential benefits. 2. The brief facts of the case are: While the petitioner was working as Peon in the Court of Senior Civil Judge and Principal JMFC, Tarikere, a departmental proceedings was initiated against the petitioner by issuance of Article of Charges dated 4 18.06.2012 in D.E.No.1/2012. In sum and substance, the charges against the petitioner was that on the intervening night of 20.03.2012 and 21.03.2012, the petitioner at about 1.15 a.m. threatened Sri.K.K.Gajendra, Peon (P.W.2) who was on night duty over mobile phone and brought the Ambulance of the Government Hospital, Birur near the Court premises and by force, got opened the door of a room where the cement was stocked for the purpose of court building work and entered the said room along with the driver of the Ambulance and took away two bags of cement and two centering poles without any lawful authority or without the knowledge of the Presiding Officer of the Court, thereby committed misconduct. The second charge was remaining unauthorized absence for 31 days from 21.03.2012 till 20.04.2012, which is denied by the petitioner. The Enquiry Officer appointed to enquire into the charges against the petitioner submitted a report 5 dated 19.11.2012 holding that the charges against the petitioner are proved. 3. During the course of enquiry, the Disciplinary Authority examined witnesses P.W.1 to P.W.4 in support of their case and got marked the documents at Ex.P1 to Ex.P13 to prove the charges against the petitioner. The petitioner examined himself as R.W.1 and also examined R.W.2 and got marked Ex.D1 to Ex.D10 in support of his case. 4. The second show-cause notice dated 24.11.2012 enclosing the enquiry report was furnished to the petitioner and on receipt of reply to the second show- cause notice, the second respondent-Disciplinary Authority, by its order dated 20.12.2012 imposed punishment of dismissal from service. Aggrieved by the penalty of dismissal, the petitioner filed an appeal and the Appellate Authority by its order dated 30.10.2013 6 refused to interfere with the findings of the Enquiry Officer and on the ground of disproportionate punishment, modified the order of penalty of dismissal to that of penalty of compulsory retirement, treating the period of suspension as such. Questioning the order of penalty dated 21.12.2012 as well as the appellate order dated 30.10.2013, modifying the punishment of dismissal to that of compulsory retirement, the petitioner is before this Court in this writ petition. 5. Heard learned senior counsel Sri.P.P.Hegde for learned counsel Sri.Aravind H for petitioner; Sri.Raghavendra G Gayathri, learned counsel for respondents. Perused the entire writ petition papers. 6. Learned senior counsel for the petitioner would submit that the order of penalty of dismissal and the appellate order modifying the punishment to that of compulsory retirement is opposed to the material on 7 record and penalty of dismissal or compulsory retirement is disproportionate to the nature and gravity of charges leveled against the petitioner. Learned senior counsel would submit that there is no cogent evidence to prove the charge that the petitioner on the intervening night of 20.03.2012 and 21.03.2012 came to the Court premises and took away two cement bags and two centering poles. Learned senior counsel would submit that in the criminal proceedings initiated against the petitioner in C.C.No.213/2012 the petitioner was convicted under Judgment and Order dated 05.12.2015, however the same was set aside and the petitioner was acquitted of the charges in Crl.R.P.No.1408/2016 by judgment dated 16.05.2024. Therefore, learned senior counsel would submit that the findings of the Enquiry Officer and punishment imposed require interference. 8 7. Learned senior counsel placed reliance on the judgment of the Hon'ble Apex Court in RAMLAL v/s STATE OF RAJASTHAN AND OTHERS reported in (2024) 1 SCC 175 to contend that under certain circumstances, acquittal in criminal proceedings would result in exoneration of DGO in departmental proceedings. Further, learned senior counsel would submit as held in RAMLAL (supra) where charges in departmental enquiry and criminal proceedings are identical, evidence, witnesses and circumstances are also same, this Court can interfere with the order passed by the Disciplinary Authority, where the findings of Disciplinary Authority are found to be unfair, unjust and oppressive. Thus, learned senior counsel would pray for allowing the writ petition. 8. Per contra, learned counsel Sri.Raghavendra G Gayathri for respondents would submit that the charges against the petitioner are proved on the materials placed 9 on record and the Appellate Authority taking note of the proportionality of punishment modified the punishment of dismissal to that of compulsory retirement, which needs no interference. Learned counsel would submit that the Appellate Authority imposed lesser punishment on the petitioner and as such, it does not call for interference. Learned counsel referring to the evidence of P.W.2 one Gajendra, Watchman, in the departmental proceedings as well as in the criminal proceedings would submit that the evidence of P.W.1 is consistent and he has categorically stated that on the intervening night of 20.03.2012 and 21.03.2012, at about 1.00. p.m. the petitioner came to the court premises with a Government Hospital Ambulance, threatening the Watchman, took away two cement bags and two centering poles. Nothing is elicited in the cross- examination by the petitioner which would come to his rescue. Learned counsel for the respondents referring 10 to RAMLAL (supra) would submit that the same would have no application to the facts of the present case and submits that the Hon'ble Apex Court has observed in the said decision that acquittal in criminal proceedings does not confer any right to employee to claim any benefit, including reinstatement. Further, he submits that in terms of the above judgment, it is for the petitioner to prove that the findings of the Disciplinary Authority are unjust, unfair and oppressive. Thus, he prays for dismissal of the writ petition. 9. To the court query, as to whether the petitioner would get benefit of compulsory retirement and whether he has completed minimum qualifying service to get pensionary benefits on compulsory retirement, learned counsel Sri.Raghavendra Gayathri on instructions submits that the petitioner has completed only 9 years of service and he would not be entitled for pensionary benefits, on modifying the punishment of 11 compulsory retirement, since he has no qualifying service of 10 years for getting pension and pensionary benefits. 10. On hearing the learned counsel for the parties and on perusal of the entire writ petition papers, the following points would arise for consideration: (1) Whether the petitioner has made out any ground to interfere with the findings of the Enquiry Officer? (2) Whether the order of the Appellate Authority imposing modified penalty of compulsory retirement requires interference at the hands of this Court? 11. Answer to the above points would be in the negative and affirmative, respectively, for the following reasons: The petitioner was working as Peon in the Court of Senior Civil Judge and Principal JMFC, Tarikere at the 12 relevant point of time when the Article of Charges dated 18.06.2012 was served on him. The charges against the petitioner are that, on the intervening night of 20.03.2012 and 21.03.2012 at about 1.00 a.m., he came to the court premises along with Ambulance of Government Hospital, Birur and threatened Sri.K.K.Gajendra, Peon and took away two cement bags and two centering poles unauthorizedly and also that the petitioner remained unauthorized absent for 31 days from 21.03.2012 till 20.04.2012. 12. To prove the charge, the Disciplinary Authority examined P.W.1 to P.W.4 and marked Ex.P1 to Ex.P13 whereas the petitioner examined himself as R.W.1 and also examined R.W.2/driver of the Ambulance, apart from marking the documents as Ex.D1 to Ex.D10. 13. In a departmental proceeding, strict rules of evidence would not be applicable and charges are to be 13 proved on the principles of preponderance of probabilities. The Writ Court under Article 226 of the Constitution of India would not examine or go into sufficiency of evidence, it would only examine whether there is some evidence to prove the charge. P.W.2/K.K.Gajendra who was on Watchman duty on the date of incident is the material witness. In his evidence, he has categorically stated that on 20.03.2012 at about 12.45 in the night, the petitioner/DGO called to his mobile phone and informed that he is coming to the Court premises to take two cement bags and two poles and by threatening him, he took away two cement bags and two poles and on the next day morning, a Police complaint is lodged. In the cross-examination, nothing in support of the petitioner is elicited. The evidence of P.W.1 to P.W.4 is sufficient to prove the charge in a departmental proceeding. 14 14. Learned senior counsel for the petitioner submitted that though the petitioner was convicted in C.C.No.213/2012 under judgment dated 05.12.2015, the same was set aside by this Court, by order dated 16.05.2024 in Crl.R.P.No.1408/2016. Thus, learned senior counsel would submit that when the petitioner is acquitted of the charges on the same incident and on the same set of facts and evidence, the petitioner would be entitled for exoneration in the departmental proceedings. Learned senior counsel referring to the order dated 16.05.2024 in Crl.R.P.No.1408/2016 submitted that this Court has not believed the evidence of some of the witnesses examined before the Criminal Court. In that regard learned senior counsel also placed reliance on the decision of RAMLAL (supra). 15. To appreciate the contention of the learned senior counsel for the petitioner, I have gone through the evidence of P.W.2 adduced in the departmental enquiry 15 as well as in the criminal proceedings. P.W.2, Sri.K.K.Gajendra, Watchman who was on duty on the intervening night of 20.03.2012 and 21.03.2012 is consistent in his evidence. In both the proceedings, he has stated that the petitioner/DGO came to the court premises around 12.45 to 1.00 a.m. and threatened him and took away two bags of cement and two centering poles. A perusal of the order dated 16.05.2024 in Crl.R.P.No.1408/2016, it is seen that the petitioner is acquitted for the offense punishable under Section 379 of IPC. This Court has observed that P.W.2 and P.W.3 have turned hostile and not supported the case of the prosecution regarding presence of cement bags and centering poles in the Ambulance. Moreover, acquittal is on the ground of doubt about the incident and also that there are some contradictions and improvements in the evidence of P.W.1. The acquittal is not on merit and it is like benefit of doubt. 16 16. The Hon'ble Apex Court in RAMLAL case (supra) has observed that mere acquittal in criminal proceedings does not confer any right to an employee to claim benefit, including reinstatement. It is for the delinquent employee to establish that the parties are identical, evidence, witnesses and circumstances are also same. The DGO has to prove that the findings of the Disciplinary Authority are unjust, unfair and oppressive. In the instant case, the petitioner has failed to establish that the findings of the Enquiry Officer are unjust and unfair. On the other hand, findings of the Enquiry Officer are based on evidence and material on record, with regard to theft by the petitioner. In RAMLAL case, the allegation was that the delinquent official therein alleged to have altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th Standard marksheet. The Hon'ble Supreme Court at paragraph 30 found that the charges were identical and evidence, 17 witnesses and circumstances were all the same. But in the instant case, the substance of the judgment in criminal revision petition would suggest that the Revisional Court proceeded on the basis of doubt whereas the Enquiry Officer in the departmental proceedings appreciated the evidence on record which is independently recorded in the departmental proceedings and has come to the conclusion that the charges are proved. Thus, the RAMLAL case (supra) would not assist the petitioner in the present facts of the case. Thus, point No.1 is answered in the negative. 17. The Appellate Authority in its order dated 30.10.2013 modified the order of punishment of dismissal from service to that of penalty of compulsory retirement. The Appellate Authority having taken note of the deprivation of pensionary benefits if the order of dismissal is sustained and hardship to the family, modified the punishment to that of compulsory 18 retirement. The Disciplinary Authority is the competent authority to impose punishment on the proved misconduct. The Appellate Authority is empowered to interfere with the order of punishment in appropriate cases and this Court under Article 226 of the Constitution of India could interfere with the punishment on the ground of disproportionate or proportionality of punishment depending on the nature and gravity of charge. In the instant case, the charges against the petitioner is taking away two cement bags and two centering poles by threatening the Watchman who was on duty on that particular night. For the charge of removing two bags of cement and two centering poles, punishment of dismissal would be harsh and it shocks the conscience of the Court. In that circumstance, the Appellate Authority is justified in modifying the punishment of dismissal to that of compulsory retirement. 19 18. But the question is whether the order of compulsory retirement would benefit the petitioner in any way. The purpose of imposing or modifying the punishment of dismissal to that of compulsory retirement was in the background of deprivation of pensionary benefits, if the penalty of dismissal is sustained. At the time of imposing punishment, the minimum qualifying service required for entitlement to pension was 10 years. But, the petitioner had no qualifying service of 10 years as on the date of his order of dismissal dated 20.12.2012. He joined service on 09.01.2003 and he was dismissed from service on 21.12.2012. He was kept under suspension on 21.03.2012 and continued under suspension till his dismissal. In that circumstance, the petitioner had only 9 years of service which disentitle the petitioner for pensionary benefits. Though the intention of the Appellate Authority was to see that the petitioner to get 20 pension to sustain himself and his family, but in the fact situation, the petitioner would not get any benefit from modified penalty of compulsory retirement. As this Court has come to the conclusion that the penalty of dismissal for the nature of charge would be harsh and disproportionate, the petitioner could be reinstated into service without backwages with penalty of withholding of two annual increments with cumulative effect, so as to enable him to earn pension during his remaining service. Denying backwages for last more than 10 years itself would be equivalent to major punishment. Moreover, the petitioner has not worked from the date of his dismissal, as such he would not be entitled for any backwages. 19. For the reasons recorded above, the following order: The writ petition is allowed in part. The Appellate Order dated 30.10.2013 in Appeal No.HV/E & A2/2013 21 and order in D.E.No.1/2012 dated 20.12.2012 are set aside, with a direction to the second respondent to reinstate the petitioner into service as Group-D employee, without arrears or backwages and pass appropriate order, imposing punishment of withholding two annual increments with cumulative effect. However, the period during which the petitioner was out of service would be counted for the purpose of pension. Time for compliance, two months from the date of uploading this order in the official website of High Court of Karnataka. SD/- (S.G.PANDIT) JUDGE mpk/-* CT:bms