WP/22447/2021 of SRI. SOMASHEKAR Vs STATE OF KARNATAKA on 15 June 2026

ORAL ORDER

(PER: HON'BLE MR. JUSTICE S.G.PANDIT) The petitioner is before this Court questioning the order dated 02.09.2021 passed in Application No.5901/2017 by the Karnataka State Administrative Tribunal at Bengaluru (for short, 'the Tribunal'), where under the petitioner's challenge to the order of penalty bearing No.C3(C4)/577/zÀÆgÀÄ 3/08-09 dated 05.07.2011 (Annexure - A12) and order of the Appellate Authority dated 08.06.2015 (Annexure - A18) as well as the order dated 27.07.2017 passed by respondent No.1-State Government (Department of Education Primary and Secondary), is rejected.

2. Heard the learned counsel Sri. Prabhakara Laxmana Shetty, for the petitioner and learned Additional Government Advocate Sri. Harisha A.S., for the respondents and perused the entire writ petition papers.

3. The petitioner was imposed with penalty under order dated 05.07.2011 (Annexure - A12) withholding two

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annual increments with cumulative effect and for recovery of misappropriated amount of Rs.24,000/- from the petitioner, on proved misconduct in a departmental proceedings. Against which the petitioner filed appeal before the Joint Director of Karnataka Secondary School Education Examination Board, Mysuru Division, Mysuru, and the said Authority by order dated 04.01.2013 (Annexure-A16) rejected the appeal.

4. Thereafter, the petitioner is said to have filed one more appeal on 22.01.2013 and the Joint Director of Karnataka Secondary School Education Examination Board, Mysuru Division, Mysuru by order dated 07.10.2014 allowed the appeal and set aside the order of penalty and also withdrew the earlier order of dismissing the appeal on 04.01.2013.

5. The Director (Secondary Education) in exercise of suo-motu revision by memorandum dated 08.06.2015 (Annexure - A18) set aside the order dated 07.10.2014 allowing the appeal. Questioning the said order as well as the order of penalty, the petitioner was before the Tribunal. The Tribunal under the impugned order rejected the petitioner's application, against which, the petitioner is before this Court.

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6. Learned counsel for the petitioner would submit that while passing memorandum dated 08.06.2015 (Annexure - A18), and setting aside the order in the appeal dated 07.10.2014 and also before withdrawing the order dated 04.01.2013, there was no notice to the petitioner. As such, he submits that only on the violation of principles of natural justice, memorandum dated 08.06.2015 requires to be set aside.

7. Further, learned counsel referring to Rule 26 of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, 'CCA Rules, 1957') would submit that the order of penalty could be confirmed, modified or set aside by the Reviewing Authority. However, he submits that before confirming, modifying or setting aside the order of penalty, the member of service concerned has to be given a reasonable opportunity of making representation. Thus, he would pray for allowing the writ petition.

8. Per contra, learned Additional Government Advocate would submit that the Joint Director while allowing the appeal under order dated 07.10.2014 had not notified the

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Disciplinary Authority. However, on verifying record he would submit that no notice was issued to the petitioner while passing memorandum dated 08.06.2015 (Annexure - A18). Thus, he would pray for passing appropriate order.

9. Having heard the learned counsel for the parties and on perusal of the entire writ petition papers, we are of the considered opinion that the impugned order passed by the Tribunal as well as the memorandum dated 08.06.2015 setting aside the order dated 07.10.2014, require interference.

10. The records would indicate that on conclusion of the enquiry and on proved misconduct, writ petitioner was imposed with penalty of withholding two annual increments with cumulative effect and to recover misappropriated amount of Rs.24,000/- from the petitioner under the proceedings dated 05.07.2011, against which the petitioner filed appeal and the said appeal was dismissed by memorandum dated 04.01.2013 (Annexure - A16). The petitioner filed one more appeal thereafter and the said appeal was allowed under memorandum dated 07.10.2014 (Annexure - A17) setting aside the order of

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penalty as well as withdrawing the earlier memorandum dated 04.01.2013 by which the appeal was dismissed.

11. Rule of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 reads as follows: "26. Review :- The State Government may at any time, either on its own motion or otherwise, after calling for records of the case, review any order passed under these rules, when any new material or evidence, which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come, or has been brought, to its notice, [or if in its opinion an order imposing any penalty cannot be given effect to or if an order imposing penalty is not legally valid] and; (a) confirm, modify or set aside the order; (b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the authority which made the order or to any other

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authority directing such further action or inquiry as is considered proper in the circumstances of the case; or

(d) pass such other orders as it deems fit: Provided that no order imposing or enhancing any penalty shall be made by the State Government unless the member of the Service concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in clause (v) to (viii) of Rule 8 or to enhance a minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under rule 11 has not already been held in the case, no such penalty shall be imposed except after enquiring in the manner laid down in Rule 11, subject to the provisions of Rule 14 and except after consultation with the Commission: Provided further that no application by a Government servant for reviewing an order in a disciplinary proceedings imposing any penalty other than those specified in clauses

(v) to (viii) of Rule 8 and in respect of which an appeal is provided shall lie."

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12. A reading of the above rule would make it abundantly clear that the State Government may at any time, either on its own motion or otherwise after calling for records in the case, review any order passed, if the conditions enumerated therein are fulfilled, that too after notice to such Government Servant and confirm, modify or set aside the order under review. It would also make it clear that the review power is exercised only by the State Government and not by any other authority. In the instant case, the memorandum dated 08.06.2015 is not in confirmity with Rule 26 of the CCA Rules, 1957 and moreover the said rule would not empower the director or the authority sub-ordinate to the State Government to review the order of penalty. Furthermore, as can be seen from the memorandum dated 08.06.2015 itself, no notice was issued to the petitioner before reviewing the order, which was in his favour. Impugned order of review is opposed to principles of natural justice.

13. Learned Additional Government Advocate also made it clear, on instructions, that the records would not indicate

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issuance of notice to the petitioner before passing memorandum dated 08.06.2015.

14. For the reasons recorded above, the writ petition is allowed. Impugned order dated 02.09.2021 passed in Application No.5901/2017 by the Tribunal is set aside.

15. Consequently, memorandum bearing No.¹4 (7) ¥Ëæ.².zÀÆgÀÄ (ªÀÄ)/47/2014-15 dated 08.06.2015 (Annexure - A18) is also set aside with a direction to exercise review power under Rule 26 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, if so advised in accordance with law. SD/- (S.G.PANDIT) JUDGE SD/- (RAJESH RAI K) JUDGE CR List No.: 1 Sl No.: 1