SYED AMEEN AII Vs. HIGH COURT OF KARNATAKA

JUDGEMENT

(1.) The petitioner, a member of the Karnataka Judicial Service, was found guilty after a disciplinary enquiry was held against him. He was imposed with a punishment of withholding of two increments without cumulative effect. The said decision was communicated to the petitioner on 18.12.2008 and a copy was forwarded to the Accountant General (A & E), Karnataka. By a letter dated 23.03.2009, the office of the Accountant General (A & E), Karnataka, having stated that the punishment imposed is incapable of implementation, since the petitioner attained the age of superannuation on 31.01.2006, opinion of the Financial Advisor having been taken, it was proposed to modify the punishment. The petitioner was served with a show-cause notice dated 04.09.2010 and he having submitted a reply dated 06.09.2010, the order of punishment was reviewed and modified punishment was imposed. A further communication having been received from the office of the Accountant General (A & E), Karnataka, seeking clarification as to how the period of suspension is to be treated and a communication dated 29.04.2011 vide Annexure-N having been sent, 'that the period of suspension of the petitioner be treated as such and during the period of suspension, the petitioner is entitled only for subsistence allowance,' assailing Annexure-N, this writ petition was filed under Article 226 of the Constitution of India, with a further prayer to direct the respondent No.1, to treat the period spent by the petitioner from 06.11.2003 to 31.01.2006, as duty, for all intents and purposes and to make available all the financial benefits flowing therefrom.

(2.) Firstly, Sri H. Subramanya Jois, learned Senior Advocate, contended that the order dated 18.12.2008 having been passed nearly one year and eleven months after the petitioner attained the age of superannuation is void for the reason that as on that date he was not a Government Servant and hence, no punishment could be imposed. Secondly, neither the dismissal nor removal or compulsory retirement having been ordered, the order of withholding of salary for the period of suspension is void and without authority of law. Thirdly, Rules 98 to 100 of Karnataka Civil Services Rules can be applied only in respect of a civil servant on whom penalty of removal, dismissal or compulsory retirement is imposed and any other punishment imposed would not empower even remotely to treat the period of suspension, as such, i.e., to deny the salary and allowances for the suspension period. Fourthly, the Rules postulate the competent authority to pass a considered order while imposing penalty as to how the period of suspension be treated and in the instant case, there is no considered order. Fifthly, as on 04.09.2010, the petitioner being no more in service was not eligible for grant of any increment and hence, such a punishment imposed being null and void is non est in the eye of law and consequently, the petitioner is entitled to the relief.

(3.) Sri H. Kantharaja, learned Additional Advocate General, on the other hand contended that after the Inquiring Authority submitted report holding the petitioner guilty of second part of Charge-IV, petitioner attained the age of superannuation. He submitted that to the showcause notice dated 09.02.2007, petitioner submitted a reply on 28.02.2007 and the Competent Authority, on 04.10.2008, resolved and imposed on the petitioner, penalty of withholding of two increments without cumulative effect. He submitted that in view of a communication received from the office of the Accountant General (A & E), Karnataka, on 23.03.2009 and the opinion furnished by the Financial Advisor on 19.03.2010, the Competent Authority being of the opinion that the order imposing penalty cannot be given effect to and in view of the provision under Rule 26 of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 (for short 'the Rules'), a show-cause notice was issued and after considering the petitioner's reply dated 06.09.2010, modified punishment was imposed and hence, there is no scope for interference with the impugned action.