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Judgment
Though the matter is listed for preliminary hearing, with the consent of learned counsel for the parties, the matter is taken up for final hearing.
The petitioner who is the applicant before the Karnataka State Administrative Tribunal, filed Application No.3289/2016 against the order passed by
the Appellate Authority dated 18. 03.2016 rejecting the appeal and confirming the order passed by the Disciplinary Authority.
I â€" FACTS OF THE CASE
It is the case of the petitioner that when the petitioner was working as Police Sub-Inspector of Kagwad Police Station in Athani Circle, Belagaum
District, the Superintendent of Police-2nd respondent has initiated departmental enquiry against the petitioner under the Provisions of the Karnataka
State Police (Disciplinary Proceedings) Rules, 1989, (for short the Rules) by issuing Charge Memo dated 21.02.2015 that “you being the accused
police officer, on 19.02.2015 in the Crime Review Meeting held at the District Police Office did not furnish comprehensive information in respect of
Crime No.73/2012 registered in Kagward Police Station under the provisions of Sections 406 and 420 of IPC and that you had not come prepared for
the meeting thereby exhibited gross irresponsibility in your dutiesâ€.
In response to the Charge Memo issued, he filed his explanation on 23.03.2015 admitting that, he was not having complete information about the
said crime at the time of Crime Review Meeting held on 19.02.2015 since the said case was being investigated by his superior officer i.e. Circle
Inspector of Police, Athani Circle, Belgaum District and a similar show cause notice was also issued to CPI, Athani Circle on 21.02.2015 and
considering the CPI’s explanation, he has been exonerated by an order dated 02.04.2016. However, the 2nd respondent by an order dated
22.11.2015 imposed penalty of withholding one annual increment without cumulative effect for a period of three months against the petitioner.
Being aggrieved by the said order, the petitioner filed an appeal before the Appellate Authority in Appeal No.11/UVa/2016. The Appellate
Authority, after hearing both the parties by an order dated 18.03.2016, dismissed the appeal and therefore, the petitioner filed an appeal before the
Karnataka State Administrative Tribunal, at Bengaluru in Application No.3289/2016. The Tribunal by the impugned order dated 30.05.2017 rejected
the application and hence, the present writ petition is filed.
We have heard the learned counsel for the parties to the lis.
II -ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES
Sri. Ashok.R.Kalyanshetty, learned counsel for the petitioner vehemently contended that the impugned order passed by the Disciplinary Authority-
2nd respondent at Annexure-G withholding one annual increment for a period of three months without cumulative effect is unreasonable and in
violation of Articles 14 of the Constitution of India. He would further contend that similar Charge Memo dated 21. 02.2015 was issued to both the
petitioner as well as his superior officer by name Sri.H.S.Subedar, CPI, Athani Circle by exercising the powers vested under Rule 7 of the Karnataka
State Police (Disciplinary Proceedings) Rules, 1989, as per Annexure-D and E. The Disciplinary Authority without assigning any reason has rejected
the explanation of the petitioner as “not satisfactory†(Asamanjasa) and accepted the explanation filed by CPI as “satisfactory†(Samanjasa).
He further contended that the impugned order passed by the Disciplinary Authority confirmed by the Appellate Authority and
reaffirmed by the KAT are erroneous and contrary to the Law. In support his contentions, he relied upon the dictum of the Hon’ble Supreme
Court in the case of Tata Engineering & Locomotive Co.Ltd., V/s. Jitendra PD. Singh and Another reported in (2001) 10 SCC 530, wherein the Apex
Court held that similar charges issued in respect of two persons on almost identical charges, the Authority cannot single out one person by punishing
him and exonerate the other person, as it amounts to denial of justice and discrimination. Therefore, he sought to allow the writ petition.
Per contra Sri. Ravi Hosamani, AGA for respondent sought to justify the impugned order passed by the Disciplinary Authority, confirmed by the
Appellate Authority and re-affirmed by the KAT and contended that the petitioner was in-charge of the concerned Police Station, though the
concerned CPI was entrusted to investigate the Crime No.73/2012, but the file was with the petitioner. Therefore, the Disciplinary Authority was
justified in rejecting the explanation filed by the petitioner and imposing punishment by withholding one annual increment for a period of three months
without cumulative effect. He would further contend that order passed by the Disciplinary Authority by imposing minor punishment which was upheld
by the Appellate Authority and the KAT, this Court cannot interfere with the same by exercising power under Articles 226 and 227 of the Constitution
of India.
He further contended that mere imposition of punishment of withholding of one annual increment for a period of three months will no way affect
the service conditions of the petitioner, as he had accepted that he had not come prepared for the review meeting and it was his primary duty to verify
all the criminal cases and the status, specially when 2nd respondent had called for crime review meeting. Therefore, he sought to dismiss the writ
petition.
III -DETERMINATION
We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on
record carefully.
It is an undisputed fact that the petitioner was working as Police Sub-Inspector at Kagwad Police Station, Athani Circle. The 2nd respondent who
is the Disciplinary Authority, has issued charge memo dated 21.02.2015 exercising powers under Rule 7 of the Karnataka State Police (Disciplinary
Proceedings) Rules, 1989. The gist of the charge is that, in the meeting regarding review of crimes held by the Department on
02.2015, the petitioner did not give comprehensive information in respect of Cr.No.73/2012 and that he had not come prepared for the meeting. It
is also not in dispute that a similar charge was issued to the CPI concerned. Both the petitioner as well as the CPI filed verbatim objections and
admitted that the file was in the police station and they did not bring the same along with them. The Disciplinary Authority while passing the impugned
penalty as per Annexure-G dated 22.11.2015 has only stated that the explanation offered by the petitioner was ‘asamanjasa’ i.e., not
satisfactory and the explanation offered by the CPI was ‘samanjasa’ i.e., satisfactory. Both the orders passed in respect of the petitioner and
the concerned CPI, except using the word ‘not satisfactory’ and ‘satisfactory’, there is no application of mind by the Disciplinary
Authority who had to assign the reasons for withholding of one annual increment for three months without cumulative effect. Though the petitioner did
not challenge the exoneration order passed in respect of the CPI, the fact remains whether the Disciplinary Authority who initiated the proceedings
under Rule 7 has proceeded to pass the order in consonance with the Rules.
For the better understanding of the matter, it is relevant to extract Rule 7 of the Rules which reads as under:
“7. Procedure for imposing Minor Penalties â€
(1) No order imposing any of the penalties specified in sub-clauses (i) to (iv) of clause (a) or sub-clauses (i) and (iv) of clause (c) of sub-section (1),
Section 23 shall be passed except after â€
(a) the Police Officer is informed in writing by the Disciplinary Authority of the proposal to take action against him and of the allegations on which it is
proposed to be taken, and given an opportunity to make any representation he may wish to make;
(b) such representation, if any, is taken into consideration by the Disciplinary Authority; and
(c) the Commission is consulted in cases where such consultation is necessary.
(2) The record of proceedings in such cases shall include â€
(i) a copy of the intimation to the Police Officer of the proposal to take action against him;
(ii) a copy of the statement of allegations communicated to him;
(iii) his representation, if any;
(iv) the advice of the Commission, if any; and
(v) the orders on the case together with the reasons therefore.
(3) Order imposing any of the penalties specified in sub-clauses (ii) and (iii) of clause (c) of sub-section (1) of Section 23 may be passed after the
Police Officer is informed orally of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an
opportunity to make orally any representation, he may wish to make. The allegations, representations and the order made thereon shall be briefly
recorded by the Disciplinary Authority in a register maintained for the purpose.â€
A careful reading of the said Rules makes it clear that the Police Officer is informed in writing by the Disciplinary Authority of the proposal to
take action against him and of the allegations on which it is proposed to be taken, and given an opportunity to make any representation he may wish to
make. Such representation, if any, is taken into consideration by the Disciplinary Authority; and the Commission is consulted in cases where such
consultation is necessary. The record of proceedings in such cases shall include;
 i) a copy of the intimation to the Police Officer of the proposal to take action against him;
ii) a copy of the statement of allegations communicated to him;
iii) his representation, if any;
iv) the advice of the Commission, if any; and
v) the orders on the case together with the reasons therefore.
Sub rule (3) of Rule 7 states that the order imposing any of the penalties specified in sub-clauses (ii) and (iii) of clause (c) of sub-section (1) of Section
23 may be passed after the Police Officer is informed orally of the proposal to take action against him and of the allegations on which it is proposed to
be taken and given an opportunity to make orally any representation, he may wish to make. The allegations, representations and the order made
thereon shall be briefly recorded by the Disciplinary Authority in a register maintained for the purpose.
In the present case, though the Disciplinary Authority has followed the first two mandatory procedure, failed to record any reasons in the
impugned order. It is also not in dispute that aggrieved by the said order passed by the Disciplinary Authority, the petitioner filed appeal before the 1st
respondent-Appellate Authority who reiterated the reasons assigned by the Disciplinary Authority and added one more reason that since the Dy.SP
has recommended to take disciplinary action against the petitioner, the appeal came to be dismissed. Unfortunately, the Tribunal proceeded to confirm
the non-speaking order passed by the Disciplinary Authority confirmed by the Appellate Authority even though a specific ground was taken before the
KAT about the discrimination.
The procedure adopted by the Disciplinary Authority confirmed by the Appellate Authority affirmed by the KAT shocks our judicial conscious,
when similar charge memos issued to the two police officer; one to the PSI/present petitioner and another to CPI and when the objections filed by
both the officers are identical and verbatim, exonerating the CPI and imposing penalty on the petitioner by withholding one increment is contrary to the
law. The Disciplinary Authority cannot single out the petitioner when the charge memos were issued against the two officers and the way in which
the punishment is imposed on the petitioner definitely demoralize the police force in the State that too to a lower rank officer.
Though a contention was urged by the learned Additional Government Advocate that when both the Appellate Authority and the KAT have
concurrently held against the petitioner, this Court cannot interfere under Articles 227 of the Constitution of India, the said contention cannot be
accepted, when the material on record clearly depicts that there is a glaring illegality on the face of the record and against Rule 7 of the Rules. This
court certainly can interfere under Articles 226 and 227 of the Constitution of India when the punishment imposed by Disciplinary Authority confirmed
by the Appellate Authority and reaffirmed by the Tribunal shocks the conscious of the Court.
IV-DICTUMS OF THE APEX COURT RELIED UPON
The Hon’ble Supreme Court while considering the functions of punishing authority in the case of TATA ENGINEERING AND
LOCOMOTIVE CO., LTD., VS. JITENDRA PD. SINGH AND ANOTHER reported in (2001) 10 SCC 530 at paragraphs 2 and 3 has held as
under:
“2. On an inquiry being held, the inquiry authority found that the allegation of misconduct is proved and the disciplinary authority on consideration of
the report of the inquiry authority and the other relevant material dismissed the first respondent from service. Thereafter, a reference to the Labour
Court at the instance of the first respondent was made. The Labour Court, though held on a preliminary question that the disciplinary inquiry
conducted against the first respondent is valid, came to the conclusion after perusing the documentary and oral evidence on record that the dismissal
was not justified and held that he was entitled to reinstatement with full back-wages with continuity in service and other consequential benefits. A writ
petition was filed in the High Court which was allowed but on the basis of certain offer made, the learned single Judge also directed that the appellant
shall pay, to the first respondent, salary from the date of discharge till the date of the order in a lump sum of Rs. 50,000/-. Thereupon, both the
management and the workman filed two appeals. In the appeals, several questions were raised as to whether the act attributed to the first respondent
would amount to misconduct at all which will entail a disciplinary inquiry at the instance of the management to end up with his dismissal; strong
reliance was placed on Glaxo Laboratories (I) Limited vs. The Presiding Officer, Labour Court, Meerut.. Ultimately, however, the two learned Judges
were agreed on one aspect of the matter that the question, whether on misconduct attributed to the workman there should have been causal
connection between misconduct and employment of the workman may not be of much significance when such acts have taken place within the
premises of the factory, should be decided in an appropriate case. What influenced the Court in deciding the matter is that:
“Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in
separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded
by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he alone is singled out for
punishment by way of dismissal from service.â€
As the judgment is rested upon this position, whatever other views may have been expressed in the course of the judgment may be of no
significance. In that view of the matter, we think there is no need to interfere with the order made by the High Court, that too in a proceeding arising
under Article 136 of the Constitution. Hence, we decline to interfere with the order made by the Highs Court. The appeals are dismissed
accordingly.â€
It is well settled principle that the State or its authority cannot be permitted to resort to selective treatment to the petitioner/PSI or the CPI against
whom a similar charge memo was issued and they have filed common objections in the departmental enquiry proceedings initiated against both of
them. Any act of repository of power, whether legislative or administrative or quasi-judicial is open to challenge it if it is so
arbitrary or unreasonable that no fair-minded authority could even have ever made it. The concept of equality as enshrined under
Article 14 of the Constitution, embraces the entire realm of State action. Our view is fortified by the decision of the Hon’ble Supreme Court in
the case of MAN SINGH VS. STATE OF HARYANA reported in (2008) 12 SCC 331). The Hon’ble Supreme Court at paragraphs 20 and
22 has held as under:
“20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether
legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made
it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an
individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him.
Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned
as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is
to be just on the test of 'fair play' and reasonableness.
xxx xxx
In the backdrop of the above-mentioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority
imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found
involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable,
unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the
appellant before it and dismissed the Second Appeal by an unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments
and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of
departmental punishment initiated against him for the acts of omissions and commissions vis-a-vis HC Vijay Pal, the driver of the vehicle.â€
The Hon’ble Supreme Court while imposing punishment held delinquent officer similarly situated should be dealt with similarly in the case of
AKHILESH KUMAR SINGH VS. STATE OF JHARKHAND AND OTHERS reported in (2008) 2 SCC 74, wherein at paragraphs 15, 16 and 18
it has held as under:
“15. It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it
is desirable that they be dealt with similarly.
Quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of the
delinquent officers as also the nature of the charges play a vital role in this behalf. Apart from the fact that charge 1 was a very serious one and Shri
Kaushal Kumar Singh, having not been charged therewith, it cannot be said that the appellant and the said Kaushal Kumar Singh were similarly
situated but also as noticed hereinbefore, so far as Kaushal Kumar Singh is concerned, charge 2 had also been partly proved against him; whereas
appellant admitted his guilt in relation thereto.
xxx xxx
The appellant has, thus ,been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal
Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite,
would not ordinarily interfere with the quantum of punishment. Even the industrial court would not do so as has been noticed by this Court in
Shaileshkumar. In the said case, however, having regard to the fact situation obtaining therein, it was held: (SCC p.557 para 27)
“27. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The
management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the
benefit of the voluntary retirement schemeâ€.
The said decision does not assist the appellant at all.â€
V-CONCLUSION
In view of the above, the petitioner has made out a case to interfere with the impugned order passed by the Karnataka Appellate Tribunal wherein
it has confirmed the order passed by both the Appellate Authority as well as the Disciplinary Authority.
For the reasons stated above, the following order:
i) Writ petition is allowed,
ii) The impugned order passed by the Disciplinary Authority dated 22.11.2015, the order passed by the Appellate Authority dated 18.03.2016 and order
passed by the KAT dated 30.05.2017 in Application No.3289/2016 are hereby set aside.
iii) The matter is remanded to the 2nd respondent-Disciplinary Authority to reconsider the matter afresh after giving an opportunity to the petitioner
and considering the explanation offered and pass appropriate reasoned order only in accordance with law and in the light of the observations made
above, within a period of eight weeks from the date of receipt of copy of this order.
Ordered accordingly.