M.B. MALLIKARJUNA, S/O. LATE M. BASAVARAJU Vs. STATE OF KARNATAKA REP. BY SECRETARY, DEPARTMENT OF EDUCATION, M.S. BUILDING, AMBEDKAR VEEDHI, BANGALORE 560001, COMMISSIONER, PUBLIC INSTRUCTIONS DEPARTMENT, NRUPATUNGA ROAD, BANGALORE 560001 AND B

JUDGEMENT

(1.) THE petitioner was a First Division Assistant in the office of the 3rd respondent Petitioner was charge sheeted by the Karnataka Lokayukta Police for offence under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988. After trial, by a judgment dated 08.04.2011, passed in Spl. Case No. 59/2009, the learned III Addl. District and Sessions Judge, Mysore, convicted the petitioner for the said offences and passed an order of sentence to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5,000/ - and in default of payment of fine, to undergo simple imprisonment for further period of three months.

(2.) PETITIONER has questioned the said judgment/order in Crl.A. 442/2011. By an order dated 20.04.2011, while admitting the appeal, the sentence of imprisonment ordered in Spl. Case No.59/2009 dated 08.04.2011, was suspended subject to certain conditions

(3.) ON 07.09.2011, while ordering emergent notice Re.rule, interim order as prayed for was directed i.e., staying the operation of the order as at Annexure -C. The respondents filed statement of objections and I.A.I/2011 for vacating the said interim order.5. Sri Raghavendra G. Gayatri, learned HCGP appearing for the respondents submitted that, the petitioner has not approached the Court with clean hands and has suppressed material facts. That apart, the petitioner, who was a civil servant, cannot seek relief by filing a writ petition. Learned counsel submitted that, the petitioner had filed Application No.5463/2011 in the Karnataka Administrative Tribunal questioning the very same order and sought interim relief. Notice of the application was ordered by the Tribunal on 17.08.2011. Suppressing the fact of filing of the said application, the writ petition, which is not maintainable was filed on 29.08.2011 and by misleading the Court, an interim order dated 07.09.2011 has been obtained and hence the writ petition be summarily rejected. Learned counsel submitted that, taking advantage of the interim order obtained on 07.09.2011, the said application before KAT has been withdrawn by the petitioner. Learned counsel submitted that, the action taken by the respondents against the petitioner was based on the judgment of conviction and sentence imposed on him, which involves moral turpitude and hence is justified. Mere filing of criminal appeal and suspension of sentence does not come in the way of the employer taking action, as is evident from the decision of the Apex Court in the case of Deputy Director of Collegiate Education (Administration) , Madras Vs. S. Nagoor Meera, AIR 1995 SC 1364 . in the contention of learned HCGP. 6. Learned counsel for the petitioner is unable to dispute the fact of petitioner having filed application No.5463/2011. Even otherwise, copy of the said application is at Annexure -R2. The emergent notice ordered by the Tribunal on 17.08.2011 is at Annexure -R3. The statements made in paras 12 and 13 of the writ petition makes it clear that there is suppression of material fact of the petitioner filing Application No.5463/2011 before the Karnataka Administrative Tribunal. There is suppression of material facts and misrepresentation by the petitioner. 7. The petitioner, who held a civil post, his grievance, if any, falling under Section 2(s) of the Administrative Tribunals Act, 1985, has to seek relief by first approaching the Administrative Tribunal, as has been held by the Apex Court in the case of L. Chandra Kumar Vs. Union of India and others, AIR 1997 SC 1125 . 8. The petitioner had approached the Tribunal to quash/set -aside the impugned order as at Annexure -C and the consequential order relieving him from service on 01.08.2011. In the circumstances, this writ petition is not maintainable. Consequently the writ petition stands rejected and the interim order passed on 07.09.2011 is vacated. 9. However, it is open to the petitioner to seek either revival of the Application No.5463/2011 filed before the Tribunal of file appeal, if any, against the impugned order before the appropriate Authority. 10. No order as to costs.