Karnataka High Court
Shri. Dharmasthala Manjunatheshwara ... vs The Lokayukta For Karnataka on 3 September, 2019
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF SEPTEMBER 2019
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT PETITION NOS.107526-107528 OF 2015 (GM-KLA)
BETWEEN:
1. SHRI DHARMASTHALA MANJUNATHESHWARA
EDUCATIONAL SOCIETY, DHARWAD BRANCH
REP. BY ITS SECRETARY JINEDRA PRASAD
AGE: 70 YEARS, SECRETARY.
2. JINENDRA PRASAD
B.T. ARIGA
AGE: 70 YEARS, SECRETARY
SDM ENGINEERING COLLEGE
DHAVALAGIRI, DHARWAD.
3. MOHANKUMAR
S/O S. SIDDALINGAPPA
AGE: 55 YEARS, EX-PRINCIPAL
SDM ENGINEERING COLLEGE
DHAVALAGIRI, DHARWAD.
4. HEBALIKAR V.K.
S/O KRISHNA RAO
AGE: 58 YEARS, H.O.D.,
MECHANICAL DEPARTMENT
SDM ENGINEERING COLLEGE
DHAVALAGIRI, DHARWAD
... PETITIONERS
(BY SRI. PADMANABHA MAHALE, SR. COUNSIL FOR
SRI. F.V. PATIL, ADVOCATE)
2
AND:
1. THE LOKAYUKTA FOR KARNATAKA
RPTD BY ITS REGISTRAR, M.S. BUILDING
BENGALURU.
2. THE SUPERINTENDENT OF POLICE
DHARWAD.
3. THE POLICE INSPECTOR
VIDYAGIRI POLICE STATION
DHARWAD.
4. PANDURANG S/O BANDO JOSHI
AGED ABOUT 58 YEARS, OCC. WORKING
R/O HARIPRIYA, SHALMALA COLONY
DHARWAD, DIST. DHARWAD.
... RESPONDENTS
(BY SRI MALLIKARJUN SWAMY B. HIREMATH, ADV., FOR R-1;
SMT. VEENA HEGDE, AGA FOR R.2 & R.3;
SRI MRUTYUNJAY TATA BANGI, ADV., FOR R.4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED APPROVAL OF LOKAYUKTA DATED
28.03.2015 VIDE ANNEXURE-D AND QUASH THE COMPLAINT
AND FIR DATED 05.07.2015 VIDE ANNEXURES-E & F.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 25.06.2018 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, B.M. SHYAM PRASAD J., DELIVERED THE
FOLLOWING:
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ORDER
These writ petitions are filed by an educational society (referred to as, 'the Society') registered under the provisions of Karnataka Societies Registration Act, 1960, its Secretary, a former Principal and the H.O.D. of Mechanical Department. The petitioner has challenged the approval granted by the 1st respondent - Lokayukta on 28.03.2015 in the proceedings bearing No. Compt/Lok/BGM-3094/2013/ARE-9 to dispose of a complaint lodged by the 4th respondent against the petitioners, and the FIR dated 5.7.2015 registered by the Jurisdictional Police. The Lokayukta has accorded approval for forwarding the 4th respondent's complaint to the Superintendent of Police, Dharwad to deal with the complaint in accordance with law and to submit a report to the Registrar, Karnataka Lokayukta, Bangalore within 15 days.
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2. The Society is running an Engineering College called Sri Dharmasthala Manjunatheshwara College of Engineering and Technology (for short, 'SDMCET'). The genesis for the present proceedings is a complaint lodged by the 4th respondent against the Society, who was formerly employed with the SDMCET. The 4th respondent was transferred from SDMCET, Dharwad to the Society's another institution at Ujire. The 4th respondent submitted his resignation, and the resignation was accepted by the Society on 05.09.2013. The 4th respondent questioned acceptance of his resignation before the Education Appellate Tribunal, Dharwad in MAET No.03/2013, which is pending consideration.
3. The 4th respondent on 07.10.2013 lodged a complaint against the Society with the Lokayukta. The petitioners have alleged that similar complaints were also lodged by the 4th respondent with different 5 authorities, including His Excellency, the Governor of State of Karnataka and the Chairman, Karnataka State Human Rights Commission.
4. The gravamen of the 4th respondent's complaint is that the Society, a beneficiary under the Technical Education Quality Improvement Programme Phase-II (World Bank aided Project, and referred to as, 'TEQIP - II') has received a sum of Rs.1 Crore as second instalment of the total assistance of Rs.4 Crore manipulating the records. The Society has submitted false reports showing on its Rolls even those who had either resigned from service or were employed with other institutions. The Society has suppressed that out of the list of 26 faculty members submitted, only 15 faculty members possessed the requisite qualification and that there is disparity in disbursement of salary and other benefits inasmuch as the Society did not adhere to the AITC/VTU standard scales.
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5. The Lokayukta caused notice to the Society to file objections on or before 25.01.2014, putting the Society on notice that if objections are not filed, the Lokayukta would proceed to deal with the complaint as if the Society had no objection. The Society vide its Objection Statement 20.01.2014, contended that neither the Society nor its employees would come within the definition of "Public Servants" under Section 2(12) of the Karnataka Lokayukta Act, 1984 (for short, 'KL Act'). The Society also contended that it was not under the administrative control of the State, a necessary ingredient to be amenable to the jurisdiction under the KL Act. As such, the complaint could not have been entertained by the Lokayukta against the Society.
6. Further, Society refuted the allegations contending that a false complaint was lodged by the 4th respondent who was vengeful. The 4th respondent, who 7 had voluntarily quit employment with the Society, had without justification mobilized some of his henchmen and supporters to shout slogans and wear black badges. The allegations that the Society had doctored Rolls to claim benefits under the TEQIP-II were unfounded. The concerned authorities had conducted multiple inspections and ascertained the requirements before extending the benefits under the TEQIP-II.
7. After these objections, a proposal was placed before the Lokayukta by an Assistant Registrar with the opinion that the allegations against the Society were serious. If the accusations in the complaint could be accepted, offences of forgery and cheating punishable under Section 465 and 420 of IPC would be constituted. Therefore, the ends of justice would be met in forwarding the complaint to the SP Dharwad to deal with the same in accordance with law. Further, the proposal was also that the Superintendent of Police be 8 called upon to submit an Action Taken Report to the Registrar of the Lokayukta within 15 days from the date of receipt of the order. The Lokayukta accorded approval for the proposal on 28.03.2015.
8. Thereafter, the 4th respondent lodged a complaint with the jurisdictional police adverting to the objections filed by the Society in response to the notice issued by the Lokayukta. The jurisdictional police registered the First Information Report in Crime No.94/2015 on 05.07.2015 against the petitioner Nos.2, 3 and 4 for offences punishable under Sections 465, 468 and 420 r/w 34 of IPC.
9. Meanwhile, the 4th respondent had also filed a public interest litigation petition in W.P.No.39662/2014 before this Court. This 4th respondent in this writ petition prayed for directions to the State Government to initiate action against the Society and its Principal, and for further directions, 9 including a direction to the Authorities to conclude that the Society was not entitled for the benefits under TEQIP-II. This Court dismissed the writ petition as withdrawn on 09.06.2015.
10. The learned Senior Counsel for the petitioners contended that the Lokayukta entertained and accorded approval for the proposal as submitted without considering the specific objections raised by the petitioners that none of them could be public servants as defined under the provisions of KL Act, and the Society was not under the State Government's administrative control. As such, the Lokayukta could not have entertained the complaint filed by the 4th respondent either against the Society or the other petitioners, nor the Lokayukta could have called for Action Taken Report from the SP Dharwad. 10
11. Further, the learned Senior Counsel argued that the Lokayukta could have taken up an enquiry against the petitioners only if it was permissible under the provisions of the KL Act. But, in the present case, the Lokayukta could not have taken up the complaint lodged by the 4th respondent either for Investigation or for calling an Action Taken Report from the Superintendent of Police. Dharwad for two reasons:
a) The 4th respondent in filing writ petition in WP No.39662/2014 for directions to initiate action against the petitioners on similar allegations had exhausted his remedy, and once a remedy available in law is exhausted, the prohibition against the Lokayukta conducting any Investigation under Section 8 (1) (b) of the KL Act would apply.
The learned Senior counsel relied upon decision of this Court in Kumar Swamy Mineral Exports Co. Ltd., 11 Banglaore vs. State of Karnataka and others1 reported in 2015 (6) KLJ 381 (DB) in support of this canvass.
(b) The Lokyukta shall not Investigate:
• If the complaint involves a Grievance, and the complaint is made after the expiry of six months from the date on which the action complained against becomes known to the complainant, • If the complaint involving an Allegation, no investigation shall be made by the Lokayukta if the complaint is made after the expiry of five years from the date on which the action complained of became known to the complainant.
Even according to the 4th respondent, the Society signed MOU with the State of Karnataka for seeking funds under TEQIP-II in the month of January, 2012 and had subsequently received funds under the TEQIP-II. The 4th respondent had lodged complaint on 03.10.2013.
1 2015 (6) KLJ 381 (DB) 12 The Lokayukta did not examine whether the 4th respondent's complaint dated 07.10.2013 involved allegations pertaining to a 'Grievance' or an 'Allegation' and whether the complaint was filed within the period during which such complaint could be filed.
12. The learned senior counsel also submitted that the approval granted for calling Action Taken Report from the Superintendent of Police, Dharwad has resulted in Vidyagiri Police Station, Dharwad registering the FIR in Crime No.94/2015. Thus, the sanction accorded by the Lokayukta has compelled the jurisdictional police to register a FIR. The impugned approval is arbitrary and vitiated, and the resulting FIR in Crime No.94/2015 on 05.07.2015 against the petitioner Nos.2, 3 and 4 for offences punishable under Sections 465, 468 and 420 R/w 34 of IPC is also vitiated. Therefore, the impugned approval by the Lokayukta and the FIR should be quashed. 13
13. Per contra, the learned counsel for the respondents submitted that the Lokayukta has not taken any decision to conduct any Investigation. The Lokayukta has only accorded permission to refer the complaint to the Superintendent of Police, Dharwad for suitable action. This cannot be construed as an Investigation under the provisions of the KL Act. The jurisdictional police have registered the FIR in Crime No.94/2015 on the complaint of the 4th respondent independent of the impugned approval. This is borne out by the fact that the 4th respondent has lodged a complaint with the jurisdictional police on 05.07.2015 as per Annexure-E. Therefore, the petition is misconceived, and is liable to be rejected.
14. In view of the rival submissions, the questions that arise for consideration are: 14
(i) Whether the Lokyukta could have approved the proposal for referring the 4th respondent's complaint to the Superintendent of Police, Dharwad and called for Action Taken Report in view of the provisions of Sections 8(1) (a) or 8(2)(c) or (d) of the Karnataka Lokayukta Act, and
(ii) Whether, in the facts and circumstances, the First Information registered in Crime No.94/2015 on 05.07.2015 against the petitioner Nos.2, 3 and 4 for offences punishable under Sections 465, 468 and 420 R/w 34 of IPC is liable to be quashed.
15. It is undisputed that the 4th respondent filed a public interest litigation petition in W.P.No.39662/2014 before this Court. This writ petition was for directions to the State Government to initiate action against the Society/ its Principal, and for further directions, including a direction to the Authorities to conclude that the Society was not entitled for the benefits under TEQIP-II. It is also undisputed that the 15 assertions in such writ petition were similar to the allegations in the complaint with the Lokayukta. This writ petition is dismissed as withdrawn on 09.06.2015, and after there was an order for imposition of costs.
16. This Court in Kumarswamy Miner Exports supra has held as follows:
"Therefore, it is clear that the words used in Section 8 of the Act, 'shall not conduct any investigation' if, the case falls under Section 8(1)(a), 8(1) (b) and 8 (1)(c) or if the case falls under Section 8(2) (a), 8(2) (b), 8(2)(c) and 8(2)(d) of the Lokayukta Act. The said provision is mandatory. Unless the Lokayukta or Upalokayukta has jurisdiction to investigate under the Act, any such investigation to be conducted would be invalid, void and without the authority of law. It was contended on behalf of the Lokayukta that Section 8(1) (b) of the Lokayukta Act applies to cases where the complainant has not availed all the remedies available to him under law. It has no application to the case where the complainant has availed the remedy. If the complainant has availed the remedy and if he is not successful in redressing his 16 grievance in those proceedings, the question of the complainant approaching Lokayukta would not arise as his complaint and grievance has been already adjudicated by an authority, which is competent to adjudicate the same."
The Division Bench has further held that filing of a writ petition would amount to availing a remedy as contemplated in Section 8(1)(b) of the KL Act, and therefore, a complaint with the Lokayukta thereafter would not lie. The Division Bench in paragraph No.21 as held as follows:
"Further, it was submitted that in Section 8(1)
(b) of the Act, the words 'High Court' is not used and therefore, neither the complainant has a remedy in the High Court nor he has availed a remedy in the High Court. That will not come in the way of the complainant approaching the Lokayukta. The said argument has no merit. If the complainant has already approached the High Court and the High Court has decided against him, then the question of complainant approaching the Lokayukta or Lokayukta re-
adjudicating the claim adjudicated by the High 17 Court, would not arise. That is the reason, the Legislature in its wisdom, consciously has not included the words 'High Court' in Section 8 (1)(b) of the Lokayukta Act and the authorities included therein are authorities, which are subordinate to the High Court. The question of the Legislature expressly prohibiting Lokayukta or Upalokayukta, who are the former Judges of the High Court and Supreme Court, who are well- aware of the legal position, be restrained from conducting investigation, as the orders passed by the Lokayukta are amenable to the writ jurisdiction of the High Court. Therefore, if the complainant has an alternative remedy as provided under Section 8(1) (b) of the Lokayukta Act or he has already approached the High Court and got his rights adjudicated, then Lokayutka and Upalokayukta shall not conduct any investigation under the Act by entertaining a complaint involving any grievance in respect of any action taken."
This exposition would apply to the present case. As such, the Lokayukta in view of the prohibition under Section 8 (1) (b) of the KL Act, could not have dealt with 18 the 4th respondent's complaint after the 4th respondent had filed the writ Petition in W.P.No.39662/2014.
17. The expressions "Allegation" and "Grievance" are defined under the KL Act. As defined, "Allegation" involves inter alia actions taken by a Public Servant for personal gain or for the gain of other person or if the public servant is guilty of corruption or favoritism or lack of integrity. The "Grievance" involves actions that result in injustice or hardship to the complainant as a consequence of maladministration. The expression "Maladministration" is also defined under the KL Act; Maladministration involves actions taken in the exercise of administrative functions, and if such actions are either unreasonable or unjust or aggressive or improperly discriminative or there has been willful negligence and undue delay. 19
18. Further, there cannot be any doubt that in view of the express prohibition as contemplated under the provisions of Section 8(2)(c) of the KL Act, a complaint involving a Grievance, which is filed after the expiry of six months from the date of knowledge of the action amounting to a Grievance, cannot be Investigated2 into by either the Lokayukta or the Upa- Lokayukta. Similarly, in view of express prohibition as contemplated under the provisions of Section 8(2)(d) of the KL Act, a complaint that pertains to an Allegation cannot be Investigated into either by the Lokayukta or the Upa-Lokayukta if such complaint is filed after expiry of five years from the date of knowledge of such conduct to the complainant.
19. The proposal before the Lokayukta, and the approval granted by the Lokayukta reads as follows: 2
The expression Investigation has not been defined under the KL Act 20 "From the documents produced by the parties it is clear that already a sum of Rs.3 crores grant from the Government is received by SDMCET. Therefore, SDMCET is an institution which has received the grants to the tune of Rs.3 corers under TEQIP Scheme from the Government.
It is alleged that the respondent No.1 while working as a Principal of SDMCET had made a false representation and has created false documents to show that 15% of the faculty was Ph.D holders.
It is alleged in the complaint that the respondent-1 and 2 have created false documents and have committed forgery and have cheated the Government by giving a false information about the number of the faculty who were holding Ph.D. degree for the purposes of obtaining grant under TEQPI Scheme and they have committed deceitful act of embezzlement of the Government fund etc. Serious allegations are made in the complaint against the respondents. The facts alleged in the complaint constituted offences of 21 forgery and cheating under Section 465 and 420 of IPC. Therefore, the ends of justice would be met with if the complaint is forwarded to the S.P., Dharward to deal with it in accordance with law.
Under these circumstances, if approved, kind orders may be may be please be passed. Dispose of this complaint by forwarding the same to the S.P., Dharwad to deal with it in accordance with law and to submit action taken report to the Registrar, KLA, Banglore within 15 days from the date of receiving this order.
Hon'ble Lokayukta Approved Sd/-
28.03.2015"
It is obvious from reading of the proposal submitted for approval, and the approval granted by the Lokayukta, the question whether the complaint could be dealt with in the light of the provisions of Sections 8(1)(a) or 8(2)(c) or (d) of the Karnataka Lokayukta Act has not at all been considered by the Lokayukta.22
20. While the provisions of Section 8 of the KL Act stipulate which matters cannot be Investigated by the Lokayukta (or Upa-Lokayukta), the subsequent provisions viz., Section 9, 10 and 11 of the KL Act relate to the manner of filing complaints and the conduct of Investigation with power to issue search Warrant and gathering evidence. The provisions of Section 12 of the K L Act provide for Reports in writing by the Lokayukta (or the Upa - Lokayukta) recommending action to be taken by the Competent Authority, and further the provisions stipulate that the Competent Authority must intimate, or cause to be intimated to the Lokayukta, the action taken on the recommendation within the time stipulated. However, the provisions for Reports in the case of Investigation into complaints involving Grievance and Allegations are seprate.
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21. If the Investigation by the Lokayukta (or Upa-Lokayukta) is into an action involving a Grievance, and if the Lokayukta (or the Upa - Lokayukta) is satisfied that action complained of has resulted in injustice or undue hardship, the Lokayukta (or the Upa - Lokayukta) shall, as contemplated under Section 12 (1) of the KL Act, by way of a Report in writing recommend to the competent Authority to remedy or redress such injustice and undue hardship within a stipulated period of time. The competent Authority, as contemplated under Section 12(2) of the K L Act, on receipt of such Report shall within one month of expiry of period mentioned in such Report intimate, or cause to be intimated to the Lokayukta (or the Upa-Lokayukta if the Report is by the Upa-Lokayukta) the action taken on the Report.
22. If the Investigation by the Lokayukta (or the Upa - Lokayukta) is into an action involving an 24 Allegation, and if the Lokayukta (or the Upa - Lokayukta) is satisfied that such Allegation is substantiated, wholly or in part, the Lokayukta (or the Upa-Lokayukta) shall, as contemplated under Section 12(3) of the KL Act, communicate the findings by a Report in writing to the competent Authority. The competent Authority, as contemplated under Section 12(4) of the K L Act, shall within three months of the expiry of the period mentioned in such Report intimate to the Lokayukta (or Upa-Lokayukta if the Report is by the Upa-Lokayukta) the action taken or proposed to be taken.
23. Under Section 14 of the KL Act3, if the Lokayukta (or the Upa-Lokayukta) is satisfied after an 3 Section 14: If after investigation into any complaint the Lokayukta or an Upalokayukta is satisfied that the public servant has committed any criminal offence 1 [and should be prosecuted] in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order 25 Investigation that the concerned has committed a criminal offence and such concerned should be prosecuted in court of law for such offence, the Lokayukta (or the Upa - Lokayukta) may pass an order to that effect and initiate prosecution with the further provision as regards the prior sanction.
24. Therefore, in a given case, the Lokayukta (or the Upa-Lokayukta) should first ascertain whether the complaint deals with a Grievance or an Allegation, examine whether investigation is precluded under the provisions of Section 8, whether the Complaint is filed in the manner provided for under the provisions of Section 9 and whether the complaint is of the kinds mentioned in Section 9(5). Thereafter, the Lokayukta (or the Upa - Lokayukta) must Investigate, and depending on whether the complaint is as regards an action involving a Grievance or an Allegation, make recommendations. If the Lokayukta (or Upa- Lokayukta) 26 is satisfied that the concerned Public Servant has committed any criminal offence and should be prosecuted, the Lokayukta (or the Upa - Lokayukta) may pass orders to that effect. These are procedural safeguards, and the consideration in these regards must be obvious from the proceedings before either the Lokayukta or the Upa - Lokayukta. However, in the present case, it is obvious that none of the aforesaid has been considered, and without such consideration there could not have been an approval for calling of an Action Taken Report, especially when two separate consequences follow based on whether the report is under Section 12(2) or Section 12(4) of the K L Act. Therefore, the impugned approval cannot be sustained in law.
25. It is obvious from the perusal of the FIR that the 4th respondent has lodged a complaint with the jurisdictional police on 05.07.2015 and it is pursuant to such information being lodged by the 4th respondent, 27 jurisdictional police have registered the FIR. This Court cannot, in the facts and circumstances of this case, conclude that the registration of the FIR in Crime No.94/2015 dated 05.07.2015 is only because of impugned approval by the Lokayukta or that this FIR is vitiated merely because the Lokayukta called for an Action Taken Report. Therefore, the petition as against the challenge to the FIR will have to fail. But, it will have to be observed that the rejection of the writ petition as against the challenge to the FIR in Crime No.94/2015 dated 05.07.2015 by the jurisdictional police will not prejudice the petitioner's remedies that otherwise be available in law to the petitioners.
26. In the light of the aforesaid discussion, the writ petitions are allowed in part and rule nisi is issued only insofar as the approval accorded by the Lokayukta vide the impugned approval dated 28.03.2015 bearing No.Compt/LOK/BGM-3094/2013/ARE-9, and the 28 petition as against the registration of First Information Report in Crime No.94/2015 dated 05.07.2015 by the jurisdictional police is rejected with the observation that dismissal of the writ petition as against the challenge to the said First Information Report shall not impede the remedies in law that the petitioners may otherwise avail.
No costs.
Sd/-
JUDGE Sd/-
JUDGE BL