Dr. D. Chandrashekar - Petitioner @HASH State of Karnataka

Mr. Jayant Patel, J. - The present petition is directed against order dated 23-6-2015 passed by the Karnataka Administrative Tribunal (hereinafter referred to as ''the Tribunal'' for short), whereby for the reasons recorded in the order, the application had been dismissed.

We have heard Mr. Ashok Haranahalli, learned Senior Counsel appearing with Mr. P.N. Nanja Reddy, for the petitioner.

The first contention raised by the learned Counsel for the petitioner was that the Tribunal has not properly considered the aspect that the petitioner was on deputation with the Urban Development Department and thereafter with the Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ''the BBMP'' for brevity). As per sub-rule (2-B) of Rule 15 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as ''the Rules'' for brevity), the power vests with the borrowing authority to take disciplinary action and not with the parent department which was Health and Welfare Department of the State Government.

As per the learned Counsel in view of sub-rule (2-B) of Rule 15 of the Rules, the parent department of the petitioner is divested of the power and hence the action of imposition of penalty could be said to be without competence and jurisdiction.

We may record that the aforesaid aspect had been considered by the Tribunal and the Tribunal has found that the impugned order is not vitiated on account of the lack of competence, since it was approved by the Cabinet. Tire Tribunal has considered the aforesaid aspects at para-7 of the order which reads as under:

"7. As regards the contention of the applicant regarding lack of competence of respondent, the HFW Department on the ground that his services at relevant time had been lent to UDD, it is true that the Rule 15(2-B) and 15(3) provide that the UDD shall have the powers of Appointing Authority for the purpose of placing the delinquent officials under suspension and of the Disciplinary Authority for the purpose of taking disciplinary proceedings and gives free hand to UDD. However, we agree with submission made by AGA that the purpose of the said sub-rules cited by the applicant is not to tie the hands of the parent department or cadre control authority but to ensure that the disciplinary action against delinquent employees proceeds expeditiously without the need of reference or consultation with parent department. There is no doubt that Government in HFW Department is the Disciplinary Authority in context of the applicant and said sub-rules do not take away the said power from the parent department."

As such, the view taken by the Tribunal cannot be said to be erroneous, for the simple reason that by virtue of sub-rule (2-B) of Rule 15 of the Rules, it can be said that there are additional enabling powers with the borrowing authority to take disciplinary action. But thereby, it cannot be said that the parent department or the Appointing Authority is divested of its power to act as the Disciplinary Authority. If such a contention is accepted, the resultant situation may arise of there being no right available to a deputationist to revert to the parent department. This would run counter to the basic scheme of imposition of punishment as conceived under Article 311 of the Constitution of India, which provides for power of the Appointing Authority to act as the Disciplinary Authority for the imposition of punishment. Hence, we cannot accept the contention raised by the learned Senior Counsel appearing for the petitioner.

The learned Senior Counsel, next contended, that even if it is considered for the sake of examination that on account of conviction of the petitioner by the Criminal Court under the Prevention of Corruption Act, 1988, the punishment could be imposed, then also, prior notice ought to have been given to the petitioner before imposition of the punishment or before taking final decision of imposition of punishment.

He submitted that there is breach of principles of natural justice. However, in furtherance to his submission, he also contended that the Disciplinary Authority in other cases where there were cases of conviction by the Criminal Courts under the Prevention of Corruption Act, had issued notice, whereas a different treatment had been given to the petitioner and therefore, the action is bad in law.

We may record that on the question of opportunity to show cause, the Tribunal at para 6 has made the observation as under:

"6. As regards the contention of the applicant that he has not been given the opportunity to show cause and impugned order had been passed without holding departmental enquiry and without giving any opportunity to show cause, we find merit in submission by the learned AGA that said logic is not valid since impugned order had been passed as per the provisions of Rule 14(i). The said Rule 14(i) specifically provides that where the penalty is imposed on a Government servant on the ground of a conduct which has to led to his conviction on a criminal charge, the Disciplinary Authority may pass such order as it deems fit after consulting the Commission. In the instant case, conviction of applicant is not in dispute. The respondent referred the matter to the KI''SC, they also concurred and has passed the impugned order thereafter. We do not find any merit in the contention put forth by the applicant that in S. Nagoor Meera''s case by him the Supreme Court has held that proper enquiry has to be done or opportunity is required to be given even where the misconduct has led to the conviction of the delinquent employees. The Supreme Court has only observed in the said order, that since the respondent therein, the Deputy Director of Collegiate Education, Madras had chosen to issue a show-cause notice before passing the impugned order, respondent was given time to submit his explanation. It cannot be held that such a course of action is required to be followed in all cases in terms of said judgment. The applicant had also cited the another case wherein in context of a conviction of a employee, a notice had been given to the delinquent employee to show cause before proceeding to take final decision. As mentioned earlier, the established law does not mandate requirement of such a notice. Further, the Lashkari Naik''s case cited by him is not relevant in the circumstances of the case."

As such, Rule 15(1) of the Rules, in the present case, does not provide for issuance of any show-cause notice and it rather provides that the penalty can be imposed upon the Government servant for the conduct which has led to his conviction on a Criminal charge. The rule does not provide for any show-cause notice to be issued prior to the imposition of punishment. We may record that this is not a matter of holding enquiry and thereafter to serve the copy of the enquiry report to the Delinquent Officer and to then impose the punishment, but is a matter where the Criminal Court after hearing the Delinquent Officer who may be accused in the said matter has delivered the judgment. The judgment as such has to be accepted by the Disciplinary Authority unless, reversed or modified by the higher forum in a manner known to law. Therefore, when there is a concluded finding of fact and also conviction and the rule is silent about issuance of any show-cause notice, we do not think and find that if the punishment is imposed based on the conviction made by the Competent Court, the show-cause notice was required to be given or that the order is said to be in breach of principles of natural justice.

The attempt to contend that issuance of show-cause notice to other persons in the very case is without there being any factual foundation of the details in respect of which employee the notice was given. Further, had the details been given, the Tribunal could have verified the factual aspects about the nature of conviction etc. Of course, learned Government Advocate during the course of the hearing did submit that the notices were given only to those employees who had already retired from service and the punishment orders were to be issued, but not to any employee who was in service and the orders were passed for punishment by the Disciplinary Authority on the basis of conviction by the Criminal Court.

Be that as it may. We find that in absence of any factual foundation, the aforesaid contention can neither be entertained nor can it be accepted, more particularly, when it does not transpire even from the order of the Tribunal that such a contention ever was raised.

Learned Senior Counsel next contended that the aspect of proportionality of punishment has not been considered by the Disciplinary Authority. It is his submission, even if the punishment was to be imposed on the basis of the conviction by the Criminal Court, it was required for the authority to apply its mind on the proportionality of punishment and then to impose punishment. As per the scheme of Article 311 of the Constitution of India, three punishments are provided: one is dismissal, another is removal and third is, reduction in rank. The submission is that the order of the Disciplinary Authority does not show application of mind from that angle. Therefore, the mandatory requirement is not followed.

He also submitted that had the show-cause notice been given, the petitioner could have satisfied the Disciplinary Authority about imposition of any other punishment than dismissal from service. Under these circumstances, the contention is that the order of imposition of punishment was bad in law and cannot be sustained.

On consideration of the impugned order of the Tribunal, it appears that such a contention was not raised before the Tribunal. As such, had the contention been raised, the discussion would have been available in the order of the Tribunal. Further, even if the contention is considered for the sake of examination, in our view, when it is an undisputed position that the petitioner had been convicted under the Prevention of Corruption Act and the sentence of imprisonment had been imposed for one year upon the petitioner and the question of proportionality of punishment is considered by applying reasonable prudence, it cannot be said that punishment of dismissal from service could be shockingly disproportionate having regard to the nature of the conviction and the crime committed. It is hardly necessary to state that when the power of the Court is invoked on the ground of proportionality of punishment, the Court may test the punishment imposed on the standard test of reasonable prudence and unless, the Court finds, that it is shockingly disproportionate, the power of the Court would not be exercised nor the Court would interfere with the punishment imposed.

Considering the facts and circumstances, we find that when we are also satisfied with the quantum of punishment imposed, no useful purpose would be served by examining the contention further, as to whether, there was any consideration by the authority on the aspect of proportionality of punishment or not.

Learned Senior Counsel lastly contended that consultation with KPSC had been made in the present case but the opinion of KPSC has not been forwarded to him by the authority. As per his contention, prior to passing of the order of imposition of punishment, the order should have been served upon the petitioner and an opportunity of hearing ought to have been given. He also contended that simultaneously with the order of imposition of punishment, a copy of the order of KPSC has also not been given to him.

He therefore submitted that the order of imposition of punishment is vitiated.

As such, as per Rule 28-C of Karnataka Civil Services Rules, 1957, there is no requirement to supply the opinion of KPSC prior to imposition of punishment. On the contrary, rule provides that the same has to be furnished along with the order passed for imposition of punishment. After the order was passed by the Disciplinary Authority, the petitioner, at no point of time, complained before the Tribunal that the copy was not supplied. On such ground it cannot be said that the order of imposition of punishment is vitiated. Hence, the contention cannot be accepted.

The decision of the Apex Court in the case of Union of India and others v. Sunil Kumar Sarkar, AIR 2001 SC 1092 : 2001 SCC (L and S) 600 : (2001) 3 SCC 414. would be of no help to the petitioner for the simple reason that in the present case rule expressly does not provide for issuance of any show-cause notice if the punishment is to be imposed based on conviction by the Criminal Court. In the same manner, the decision of the Apex Court in the case of S.N. Narula v. Union of India, (2011) 4 SCC 591 : (2011) 1 SCC (L and S) 727, would equally be not applicable to the facts of the present case for the simple reason that in the rule as referred to here in above there is no requirement of supplying copy of the opinion of KPSC prior to the imposition of punishment but the rule on the contrary provides that it would be given simultaneously with the order imposing punishment by the Disciplinary Authority.

In view of the above we do not find any case for interference. In the circumstances, the petition is meritless and hence dismissed.