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WP No. 49834 of 2012, by an employee of state government, is questioning the order dated 11-1-2012 passed by the Karnataka Administrative Tribunal, Bangalore in Application No. 985 of 2010, dismissing the application. Petitioner, who was working as section officer in the department of personnel administration and reforms [DPAR], government of Karnataka, had been charged with certain allegations of misconduct and had been proceeded in an enquiry in terms of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957. The sum and substance of the charge is as under:
While the Applicant was working as Section Officer, in the R and I section of the Information and Youth Services Department on 22.3.2004 at 5.45 p.m. behaved indecently with Smt. C.Y. Shantkumari, the Jr. Assistant, manhandled her and bite her right cheek and upper lips and sexually harassed her. Thus he has exhibited misconduct under Rule 3(1)(III) read with Rule 22(B) of KCS (conduct) Rules 1966.
Writ petitioner denied the charge and an enquiry was held. The inquiring officer submitted a report and in consultation with the department official, the disciplinary authority, after agreeing with the finding of the inquiring officer, found the petitioner guilty of the charge and imposed the punishment of reduction of the petitioner from the cadre of section officer to the cadre of senior assistant till 31-1-2013 in the minimum of the time scale of pay of the cadre of senior assistant and after the period of this three years i.e. after 31-1-2013 to restore to his original position and pay scale of section officer with his original seniority.
Aggrieved by this order, petitioner had approached the tribunal by filing the application referred to above. Various contentions were urged on behalf of the petitioner-employee including that imposition of penalty was very harsh; that even without any supportive material evidence, the petitioner has been found guilty by the disciplinary authority. One another ground that was urged is that the decision of the disciplinary authority was influenced by the inquiring officer who was though earlier working in the department of cooperation, had been transferred to DPAR [Admn] and had a say in the matter of quantum of penalty and therefore the imposition of penalty by the disciplinary authority is hit by the principles of bias.
None of these grounds was found favour with the tribunal and the tribunal by its impugned order dismissed the application in toto. It is aggrieved by this order, the present petition is filed.
Sri M.S. Anandaramu, learned counsel for petitioner-employee has firstly urged that the finding of the charge having been proved by the disciplinary authority and imposition of penalty is not based on evidence on record; that it is more by way of hearsay or outside material rather than evidence let in during the enquiry; that no document had been marked on behalf of the state-employer.
It is secondly urged that the penalty proceeding is hit by the principles of bias, as one Ms. Joyce Surendra, joint secretary, who was the inquiring officer, was working in the DPAR at the time when the disciplinary authority imposed the punishment and also being inquiring officer influenced the decision of the disciplinary authority, which amounts to the order being bad on the principle of bias.
It is thirdly urged that the penalty imposed is too harsh; that it is virtually imposing a double penalty on the petitioner, as the petitioner was not only reverted to the lower cadre but also denied increment for the three years when he was in the lower cadre, he was denied annual increments and therefore stoppage of increment for a period of three years in the reverted cadre is never justified; that imposition of a major penalty like this being not followed by proper procedure and without evidence cannot be sustained.
On the other hand, Ms. S. Susheela, learned AGA, appearing for the respondents-state-employer, points out that the writ petition filed by the petitioner-employee does not survive for examination, as the at the instance of the petitioner-employee, the order dated 11-1-2012 passed by the tribunal dismissing his application had come to be modified on the matter being requested to be listed ''for being spoken to''. Submission is that though this order is independently challenged by the state, the petitioner not having questioned the subsequent order and the earlier order having been virtually modified by the subsequent order, writ petition filed by the petitioner-employee does not survive for examination testing the validity of the order dated 11-1-2012.
It is secondly urged that procedure has been followed; that the petitioner had been given proper, opportunity and the disciplinary authority is one who has imposed the punishment on appreciation of the gravity of the misconduct held to be proved against the petitioner-employee. It is submitted that the principle of bias does not get attracted, as the inquiring officer is not the decision making authority or is involved in the decision making process, but it is only the disciplinary authority who takes a decision independently irrespective of the report of the inquiring officer, though in this case, the disciplinary authority has accepted the report of the inquiring officer; that mere fact that the inquiring officer was incidentally in the very department of the disciplinary authority, that will not automatically result in the principle of bias being held against the order passed by the disciplinary authority.
Learned AGA submits that the state government has also preferred an independent writ petition in WP No 24660 of 2012, questioning the subsequent order passed by the tribunal on ''being spoken to'' to modify the order dated 11-1-2012, dismissing the application, by its order dated 23-1-2012. What is submitted is that this subsequent order is without jurisdiction; that the earlier order had not been either reviewed and set aside nor in any way got over in a manner known to law, but on a mere application for posting the matter ''for being spoken to'', the tribunal has virtually gone back from its original order, which is not permitted in law.
Though both writ petitions have been connected together and listed for preliminary hearing, we have heard the learned counsel for employee and the learned AGA appearing for the state-employer, on the merits of the matter.
Sri M.S. Anandaramu, learned counsel for the employee, has very passionately urged that the employee has since been retired from service on 28-2-2013 on attaining superannuation and his pensionary benefits have been drastically affected due to the punishment imposed; that even after the tribunal has by its order dated 23-1-2012 reduced the period of penalty to be suffered by the employee by preponing it by 10 months from the original date fixed by the disciplinary authority, nevertheless, is earning in the lower cadre as senior assistant and had not even been given any increment during this period and to that extent the monetary loss is too much a penalty and is too harsh.
On the other hand, Ms. S. Susheela, learned AGA, appearing for the state-employer, submits that the fixation of pension was not proper and it should have been fixed on the basis of average of 10 months salary drawn by the employee, where the tribunal has committed an error in directing fixation of the pension based on the last drawn salary etc.
In a matter of this nature, where certain grave allegations had been made about the employee and the disciplinary authority, based on the report of the inquiring officer, found the employee guilty of the charge and imposed the punishment. While the punishment may be a little harsh from the angle of the employee, but the employer is bound to consider the overall discipline to be maintained in the department and the kind of misconduct. Non-marking of any document itself may not be a criterion for setting aside an order of punishment, as if there is other material that is available on record is good enough to come to a right conclusion by the disciplinary authority. Even otherwise, this court while examining a petition filed under Article 227 of the Constitution of India does not sit in appeal over the order passed either by the disciplinary authority or by the tribunal.
In the instant case, the tribunal, for reasons recorded in its elaborate order, found no occasion to interfere in the matter. But, later on, in modification of that order of dismissal, on an application filed by the employee for posting the matter on ''being spoken to'', the tribunal has modified the terms of the order, as submitted by the leaned AGA, we find the subsequent order does not have any authority or legal basis. Even assuming that there is some discrepancy in passing of the order of penalty by the disciplinary authority, we do not find this is a fit matter for interference in a petition under Article 227 of the Constitution of India.
In so far as the principle of bias alleged by the learned counsel for the employee is concerned, an authority cannot sit in appeal on its own judgment as an appellate authority and if so, the appellate order becomes bad. Any person interested in the matter had participated in the proceedings, it will result in an adverse order against the employee. The order being passed by the disciplinary authority and the manner of role by the inquiring officer, because she happens to be in the department, cannot said to vitiate the order passed by the disciplinary authority, which is on due deliberation and application of mind. While we do not find not much defects in the impugned order of the disciplinary authority and as affirmed by the tribunal, the subsequent order is found to be suffering from want of legal basis. By the subsequent order of the tribunal, the employee stands benefited to some extent monitor ally. In such circumstances, irrespective of the legal, grounds urged, we are not inclined to interfere with the order passed by the tribunal as modified by subsequent order and therefore we deem it proper to dismiss both writ petitions filed by the employee as well as the state-employer.
In so far as the complaint of not earning of increments for a period of two years or more in the reverted cadre, we do not go into this aspect, as that is part of the punishment and not independent.
However, Sri M.S. Anandaramu, learned counsel for the employee, submits that in view of pendency of these proceedings, the state-employer has not released the pensionary benefits to the employee. Now that the matter has come to a conclusion, the state should ensure fixation of the pension of the employee expeditiously and release the same at the earliest. Fixation of pension is to be done within a period of four months from the date of receipt of a copy of this order. Writ petitions are dismissed accordingly.