M.C. HOMBAKAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Petitioner, a retired public servant is grieving before the Writ Court against the Order dtd. 28/9/2016 a copy whereof is at Annexure A whereby he has been levied a penalty of permanently withholding of 50% of his pension for the proven misconduct of bribery and corruption. The text of the operative portion of the impugned order reads as under:

(2.) After service of notice, the respondent Nos.1 and 4 has entered appearance through the learned AGA; Respondent Nos.2 and 3 are represented by their Panel Advocate; similarly, 5th Respondent BBMP speaks through its Panel Counsel; the learned AGA and the learned panel advocate for the Lokayukta resist the Writ Petition making submission in justification of the impugned order; learned AGA vehemently contends that the finding of guilt having been recorded in a full fledged disciplinary inquiry and an appropriate penalty having been imposed, there is absolutely no scope for the interference of a Writ Court in the matter; so contending, he seeks dismissal of the Writ Petition.

(3.) Having heard the learned counsel for the parties and having perused the petition paper, this court is inclined to grant indulgence in the matter as under and for the following reasons: (a) On the allegation of bribery of Rs.2,000.00, the departmental enquiry was held by the Addl. Registrar Enquiries-4, Karnataka Lokayukta, Bangalore; in the enquiry report dtd. 11/12/2015, petitioner was found to be guilty of the charge of demanding and accepting a bribe of Rs.2,000.00 from the complainant Sri.G.Chandrashekar on 3/8/2006 for recommending to the Tahsildar for the change of khata; the report runs into seventeen pages; a careful perusal of the same goes to show that the proceedings have been held in a fair way and after giving full opportunity to the petitioner; on the basis of evidentiary material on record, the Enquiry Officer in his accumulated wisdom has recorded a finding of guilt; that being the position, there is a lot of force in the contention of learned AGA that a Writ Court cannot undertake a deeper examination, in the absence of any error apparent on the face of the record; therefore, the said finding is left intact. (b) There is force in the submission of learned counsel for the petitioner that the petitioner has been acquitted in the Criminal Case in Spl.C.C.No.41/2007 for the offence punishable u/ss. 7, 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 vide judgment and order dtd. 18/10/2011 by the Spl. Judge, Bangalore Urban District, Bangalore City; however, the said acquittal is merely an honorable acquittal since the complainant himself turned to be a hostile witness; the charge is same; the evidentiary material produced to prove the charge is also same; even the star witnesses appear to be the same persons; that being the position, this acquittal to some extent supports the case of petitioner as a mitigating factor although not for absolving him completely. (c) The submission of learned counsel for the petitioner that his client was initially appointed as SDC and later he earned two promotions, one as FDC and the other as Revenue Inspector, is not disputed; he has put in a long service that was spotless except the subject departmental enquiry; while imposing the penalty, the relevant factors such as the long service, progression of career in terms of promotion and a nearly honorable acquittal in a criminal case have not been given due credence by the disciplinary authority; ordinarily, Service Jurisprudence recognizes them as being the mitigating factors; to that extent, the impugned order is vulnerable for challenge. (d) There is yet another aspect namely the doctrine of proportionality which the Apex Court has recognized as a factor in the matter of awarding punishment vide Chairman- cum-Managing Director, Coal India Limited Vs. Mukul Kumar Choudhary (2009) 15 SCC 620; pension is a periodic payment given to an employee in the evening of his life for the past service rendered during his employment; it is treated as a right and not as a bounty; even commuted pension is restored fifteen years after retirement and consequently, full pension becomes payable to the retiree vide D.S.NAKARA VS. UNION OF INDIA, (1983) 1 SCC 305; that being the position, permanently withholding of 50% of the pension appears to be disproportional to the gravity of the misconduct; it shakes the conscience of the court too and therefore, the same requires to be modified. (e) The incident happened on 3/8/2006; the criminal case ended in acquittal on 18/10/2011; petitioner retired from service on 31/5/2012 and now it is January 2022; thus, much water has flowed under the bridges and wisdom tells that this is not a fit case for remand; the pensioner should not be troubled during the evening of his life any longer; therefore, in these special circumstances, this court declines to remit the matter back for consideration afresh. In the above circumstances, this Writ Petition succeeds in part; the finding of guilt having been left intact, the penalty of withholding of 50% of pension is reduced to 25%; the rest of the matter is kept intact; the respondent Nos.1 and 4 are directed to refix the pension and terminal benefits accordingly and release the same to the petitioner, after effecting deductions, if any. Time for compliance is three months and if delay is brooked, petitioner shall be entitled to interest at the rate of 1% per mensem and that the same may be recovered from the erring official responsible for brooking the delay. Costs made easy.