Karnataka High Court
Sri M N Jeevanna vs The State Of Karnataka on 3 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.8267/2018 (GM-KLA)
BETWEEN:
SRI M.N. JEEVANNA
S/O. SRI NAGAPPA,
AGED ABOUT 46 YEARS,
ASSISTANT REVENUE OFFICER,
KARNATAKA HOUSING BOARD,
ROOM NO.25, DISTRICT OFFICE COMPOUND,
P.B. ROAD, DAVANAGERE,
R/AT #56, HIG-2,
THUNGABHADRA BADAVANE,
KHB COLONY,
KUNDAVADA,
DAVANAGERE - 577 001.
... PETITIONER
(BY SRI B.S. KARTHIKEYAN, ADVOCATE FOR
SRI SATYANARAYANA P. HOGADE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL
SECRETARY TO GOVERNMENT,
HOUSING DEPARTMENT,
VIKASA SOUDHA,
BENGALURU - 560 001.
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2. THE KARNATAKA HOUSING BOARD,
CAUVERY BHAVAN,
BENGALURU - 560 009
REPRESENTED BY ITS COMMISSIONER.
3. THE KARNATAKA LOKAYUKTA,
M.S. BUILDING,
BENGALURU - 560 001
REPRESENTED BY ITS REGISTRAR.
4. THE ADDITIONAL REGISTRAR OF ENQUIRIES-8,
KARNATKA LOKAYUKTA,
M.S. BUILDING,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI SMT. RASHMI PATEL, HCGP FOR R-1;
SRI S.A. AHMED, ADVOCATE FOR R-2;
SRI VENKATESH ARABATTI, ADVOCATE FOR R-3 AND R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 04.07.2017 AT ANNEXURE-A
ISSUED BY 2ND RESPONDENT AND ARTICLES OF CHARGE
DATED 24.01.2018 VIDE ANNEXURE-B ISSUED BY 4TH
RESPONDENT AND ALL FURTHER PROCEEDINGS TAKEN IN
PURSUANCE OF THE SAID ORDERS.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 15/02/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
The petitioner in this petition is assailing the order No.Kagraman/Aadalitha/Si.Sha.1/PR/417a/2017- 18 dated 04/07/2017 (Annexure-A) issued by the 2nd respondent to conduct enquiry against the petitioner and the articles of charge bearing No.UPALOK-2/DE- 1125/2017/ARE-8 dated 24/01/2018 (Annexure-B) issued by the 4th respondent whereby the 4th respondent initiated enquiry against the petitioner by issuance of articles of charges.
2. Brief facts of the case are:
The petitioner was working as an Assistant Revenue Officer in the 2nd respondent-Karnataka Housing Board (hereinafter referred to as 'the KHB' for short) at Davangere. On the basis of the allegations received by the 2nd respondent, the 2nd respondent in turn directed the Upa Lokayukta under Rule 14-A of the Karnataka Civil Services (Classification, Control and -4- Appeal) Rules, 1957 ("KCS-CCA Rules" for short) to conduct enquiry against the petitioner alleging certain acts of omission and commission alleged to have been committed by the petitioner while he was working at Karnataka Housing Board. On the basis of the entrustment to conduct enquiry, the 4th respondent initiated enquiry against the petitioner by issuance of the articles of charge bearing No.UPALOK-2/DE-
1125/2017/ARE-8 dated 24/01/2018 and the same is pending before the 4th respondent. Aggrieved by which, the present petitioner is in this writ petition.
3. Heard Sri B.S.Karthikeyan, learned counsel appearing for Sri Satyanarayana P.Hogade, learned counsel for the petitioner; Smt. Rashmi Patel, learned High Court Government Pleader for 1st respondent; Sri S.A. Ahmed, learned counsel for 2nd respondent and Sri Venkatesh Arabatti, learned counsel appearing for 3rd and 4th respondents.
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4. Learned counsel for the petitioner would contend that the petitioner is not a Government servant of the State and accordingly, the initiation of proceedings assuming that the petitioner is a Government servant entrusting the enquiry to the Lokayukta by the Commissioner of KHB under Rule 14- A of the Karnataka Civil Services (Classification Control & Appeals) Rules, 1957 is one without the jurisdiction as Rule 14-A of the KCS(CCA) Rules, 1957 provides for enquiry only against the member of the civil services of the State of Karnataka and not the petitioner as he was not a Government servant.
5. Learned counsel would further contend that the power exercised by the 2nd respondent is contrary to the power enumerated under Rule 14-A of the KCS(CCA) Rules, 1957, which can be exercised only by the Government and pursuant to the entrustment to -6- conduct enquiry against the petitioner, the article of charges framed against the petitioner is also liable to be set aside.
6. Per contra, learned counsel appearing for the Lokayukta, Sri Venkatesh Arabattl would contend that even assuming that the petitioner is not a Government servant, he would be a public servant within the meaning of Section 2(12) of the Karnataka Lokayukta Act and Section 81 of the KHB Act. Learned counsel would take this Court to Sections 7(2-A) and 12(3) of the Karnataka Lokayukta Act to contend that the entrustment to conduct enquiry against the public servant by the 2nd respondent is justifiable and pursuant to which, the article of charges enumerated is one within jurisdiction.
7. Learned counsel would also bring to the notice of this Court that the Rules pertaining to KCS -7- (CCA) Rules, 1957 have been adopted by the Karnataka Housing Board under Section 10-A of the KHB Act and in view of the adoption of the Rules, the entrustment by the 2nd respondent is justifiable. Learned counsel would also submit that the enquiry is yet to be initiated and it is premature to hold how the enquiry initiated would affect the rights of the petitioner.
8. In support of his contention, learned counsel relied upon the judgments of the Division Bench of this Court in the case of Sri J.P.Prakash vs. The State of Karnataka and another [W.P.No.5361/2016 disposed of on 06/04/2016] and Sri Subhindra A.Gumaste & others vs. The State of Karnataka & others [W.P.Nos.15060-15062/2016 disposed of on 30/03/2016].
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9. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
10. It is an undisputed fact that the petitioner was working as the Assistant Revenue Officer in the 2nd respondent Board. It is also not in dispute that under Section 2(12) of the Karnataka Lokayukta Act, 1984 defines "public servant" and the same reads as under:
"2. Definitions.-
xxx xxx xxx (12) "public servant" means a person who is or was at any time,-
(a) the Chief Minister;
(b) a Minister;
(c) a member of the State Legislature;
(d) a Government Servant;
(e) the Chairman and Vice-Chairman (by whatever name called) or a member of a local authority in the State of Karnataka or a statutory body or corporation established by or under any law of the State Legislature, including a co-operative society, or a -9- Government Company within the meaning of Section 617 of the Companies Act, 1956 and such other corporations or boards as the State Government may, having regard to its financial interest in such corporations or boards, by notification, from time to time, specify;
(f) member of a Committee or Board, statutory or non-statutory, constituted by the Government;
(g) a person in the service of pay of,-
(i) a local authority in the State of Karnataka;
(ii) a statutory body or a corporation (not being a local authority) established by or under a State or Central Act, owned or controlled by the State Government and any other board or Corporation as the State Government may, having regard to its financial interest therein, by notification, from time to time, specify;
(iii) a company registered under the Companies Act, 1956, in which not less than fifty one percent of the paid up share capital is held by the State
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Government, or any company which is a subsidiary of such company;
(iv) a society registered or deemed to have been registered under the Karnataka Societies Registration Act, 1960, which is subject to the control of the State Government and which is notified in this behalf in the Official Gazette;
(v) a co-operative Society;
(vi) a university;"
(emphasis supplied)
11. Section 21 Twelfth (a) and (b) of the Indian Penal Code, defines the "public servant" and the same reads as under:
"21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:
Twelfth.-Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
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(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)."
12. Section 2(12)(g) of the Karnataka Lokayukta Act, 1984 points out that a person in service of pay of a local authority in the State Government is deemed to be a public servant and sub-clause(d) of Clause 4 of Section 2 of the Karnataka Lokayukta Act prescribes the competent authority for the public servant which reads as under:
"2. Definitions.- In this Act, unless the context otherwise requires,-
xxx xxx xxx (4) "competent authority" in relation to a public servant means,-
xxx xxx xxx
(d) in the case of any other public servant, such authority as may be prescribed;"
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13. The petitioner being working as an Assistant Revenue Officer of the 2nd respondent is public servant as defined under section 2(12)(g) of the said Act and as contended by the learned counsel appearing for the respondent-Lokayukta.
14. Sections 7(2-A) of the Karnataka Lokayukta Act, 1884 reads as under:
"7. Matters which may be investigated by the Lokayukta and an Upa-lokayukta.-
xxx xxx xxx (2-A) Not withstanding anything contained in sub- sections (1) and (2), the Lokayukta or an Upa- lokayukta may investigate any action taken by or with general or specific approval of a public servant, if it is referred to him by the State Government."
This Court having held that the petitioner is a public servant as defined under Section 2(12)(g) and the competent authority prescribed for public servant is
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referred in sub-clause (d) of Clause 4 of Section 2 of the Act is the Government of Karnataka.
15. Perusal of the said Section 7(2-A) of the Karnataka Lokayukta Act also depicts that the investigation by the Lokayukta or Upa-lokayukta has to be carried if it is referred to by the State Government.
16. Learned counsel for the petitioner would contend that even assuming if the petitioner is public servant as contended by the learned counsel for the respondent, the competent authority to entrust enquiry against public servants would be the Government of Karnataka as referred to in sub-clause(d) of Clause 4 of Section 2 of the Karnataka Lokayukta Act, 1984. To buttress his submission, learned counsel has relied upon the judgment of a Division Bench of this Court in the case of Sri Gopal Hanumantha Kase vs. The State of Karnataka [W.P.No.5674/2018 disposed
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of on 13/04/2018] and stated that the proper authority to entrust the enquiry against a Government servant is, the Government of Karnataka under sub- clause (d) of Clause 4 of Section 2. The relevant portion of the judgment reads as under:
"Having examined the decisions aforesaid and the statutory provisions applicable to the case, we have no hesitation in finding that the petitioner answers to the definition of "public servant" as occurring in clause (12) of Section 2 of the Act of 1984, being in the service of local authority in the State of Karnataka; and in his case, the Competent Authority for the purpose of dealing with the matter under the Act of 1984 would be such Authority, as may be prescribed, by virtue of sub-clause (d) of clause (4) of Section 2 thereof. The relevant clauses read as under:
"2. Definitions.-
xxx (4) "competent authority" in relation to a public servant means,-
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(a) in the case of Chief Minister or a member of the State Legislature, the Governor acting in his direction;
(b) in the case of a Minister or Secretary, the Chief Minister;
(c) in the case of a Government servant other than a Secretary, the Government of Karnataka;
(d) in the case of any other public servant, such authority as may be prescribed;
(12) "public servant" means a person who is or was at any time,-
xxx
(g) a person in the service or pay of,-
(i) a local authority in the State of Karnataka xxx"
It has been pointed out that under the Rules of 1985, the Government of Karnataka is the prescribed Competent Authority for the public servants referred to in sub-clause (d) of clause (4) of Section 2 of the Act of 1984. Rule 3 of the Rules of 1985, reads as under:
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"3. Competent Authority.- In respect of the public servants referred to in sub-clause
(d) of clause (4) of Section 2, the Government of Karnataka shall be the Competent Authority."
In view of the above, the submission that the matter has not been dealt with by the Competent Authority because of applicability of the Rules of 2010 to the service of the petitioner, is required to be rejected. Even under the said Rules of 2010, it is but clear that the Karnataka Civil Services W.P.No.5674/2018 "
17. Though the learned counsel for Lokayukta would contend that 2nd respondent has adopted the KCS(CCA) Rules and accordingly, the Rules are applicable to the public servant. This aspect is not disputed by the petitioner. Section 10A(2) of the Karnataka Housing Board reads as under:
"10A. Officers and servants of the Board.--
xxx xxx xxx (2) The emoluments, allowances and other conditions of service of the Officers and
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servants referred to in sub-section (1) shall be the same as are applicable to the Officers and servants of the State Government governed by the Karnataka Civil Services Rules except as otherwise prescribed."
18. Learned counsel appearing for the Lokayuktha has also placed reliance on the judgment of the Division Bench of this Court in the case of Sannamallappa and another Vs. State of Karnataka and Others reported in ILR 22 Kar. 1937 (Sannamallappa), paragraph Nos.30, 31 and 32, which reads as under:
"30. From the foregoing it is absolutely clear that CCA Rules to the extent it is not departed from in the Karnataka Housing Board Rules, 1964 itself by incorporating a schedule to sub- rule (2) of Rule 5 therein is applicable with regard to disciplinary control of the Officers and servants of the Board and therefore the present petitioners as well. The above view of ours receives support from a decision of a Co- ordinate Bench of this Court to which one of us
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is a party (Justice B.V. Nagarathna) in W.P. No. 12300/2020 and connected matters [R.F. Hudedavar Vs. State of Karnataka & Others, para 38]. In that view of the matter, we do not find any merit in the contention of the learned Senior Counsel for the petitioners that CCA Rules is not applicable to the case of the present petitioners and therefore the respondent No.3 cannot be entrusted with the disciplinary proceedings inquiry against the petitioners herein.
31. The next question that needs to be gone into is regarding the legality of the Order dated 17.09.2018 (Annexure-A) passed by respondent No.1. It is absolutely clear - and on this both the learned counsel appearing for respondent No.3 as well respondent No.1 were not in a position to substantiate otherwise the respondent No.1 is not the appointing authority and it is not the disciplinary authority for the Officers and servants of the Board like the petitioners herein. Therefore the report under Section 12(3) of the Karnataka Lokayukta Act forwarded to it (Annexure- A1) has to be received by it only as a matter of apprisal to the
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Government having controlling interest over the working and operation of the Board. It is, therefore, Díain that respondent No.1 did not have the jurisdiction Institute disciplinary proceedings against the petitioners herein and further entrust holding of such inquiry to the respondent No.3. The same is therefore liable to be quashed. However it is required to be noticed that an interesting feature of this case is that after the respondent No.3 prepared a report under sub- Section (3) of Section 12 on the petitioners, it had not only sent a report to respondent No.1 but also to the 'competent authority' within the meaning of (clause (g)) of sub-Section 4 of Section 2 of the Karnataka Lokayukta Act, 1984, namely respondent No.2.
32. The show-cause notices both dated 24.05.2018 (Annexure-T and T1) evidences the fact that the report under Section 12 (3) of the Karnataka Lokayukta Act, 1984, dated
19.02.2018 (Annexure-A1) was forwarded to the 'competent authority' namely respondent No.2 by a letter of the Registrar of respondent No.3 dated 28.02.2018 and pursuant to the same, explanation was called for from the petitioners
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as to why the 'competent authority' should not initiate disciplinary action and entrust holding of inquiry to respondent No.3. On receipt of the same the petitioners have sought time to submit explanation and they also sought documents from respondent No.2 and on receipt of the same they have submitted their explanations. In view of filing of these writ petitions, respondent No.2 has not proceeded with the matter and it is awaiting his considered decision. In a way, therefore, the challenge made by the petitioners herein to the impugned orders passed by respondent No.1 is superfluous.
Having regard to the aforesaid discussion and also the Judgment of a Co-ordinate Bench of this Court in Writ Petition No.12300/2020 and connected matters, disposed of on 23.07.2021(noted supra), the order bearing No. VaEi 57 Ka.Gru.Mam 2018 dated 17.09.2018 (Annexure-A) is quashed.
Respondent No.1-State is directed to submit the report under Section 12(3) of the Karnataka Lokayukta Act to the Housing Commissioner-respondent No.2. On receipt of the aforesaid report, the Housing Commissioner-
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respondent No.2 is at liberty to appoint the Enquiry Officer for conducting enquiry against the petitioners herein having regard to Section 12(4) of the Karnataka Lokayukta. Act and Rule 5(2) of the Karnataka Housing Board Rules, 1964, and in accordance with law."
The judgment relied by the learned counsel was a case where the 3rd respondent-Lokayuktha therein prepared a report under sub-section (3) of Section 12 on the petitioner and it has only sent the report to the 1st respondent, who is the State Government/ competent authority within meaning of clause (g) of sub-section (4) of Section 2 of the Karnataka Lokayukta Act, 1984.
Section 10A depicts adoption of the Rules by the 2nd respondent.
19. Perusal of sub-clause (d) of Clause (4) of Section 2 of the Karnataka Lokayukta Act would depict that, the proper and competent authority to entrust the
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enquiry to the Lokayukta or the Upa-lokayukta to investigate any offence against the public servant is, the State Government. In the present petition, the entrustment made by the 2nd respondent, who is not a competent authority to invoke power under Section 14-A of the KCS(CCA) Rules, 1957 to issue any direction to hold investigation against the public servant herein is not justifiable. Thus, the impugned order passed by the 2nd respondent to hold enquiry against the petitioner is not sustainable in law.
14. Accordingly, this Court pass the following:
ORDER
(i) Writ petition is allowed.
(ii) The impugned order No.Kagraman/Aadalitha/Si.
Sha.1/PR/417a/2017-18 dated 04/07/2017 (Annexure-A) issued by the 2nd respondent is hereby quashed. Consequently the articles of charge bearing No.UPALOK-2/DE- 1125/2017/
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ARE-8 dated 24/01/2018 (Annexure-B) issued the 4th respondent also stands quashed.
(iii) In light of the judgment in the case of Sannamallappa respondent No.1-State is directed to forward the report under Section 12(3) of the Karnataka Lokayukta Act to the 2nd respondent-Karnataka Housing Board. On receipt of the aforesaid report, the 2nd respondent is at liberty to appoint the Enquiry Officer for conducting enquiry against the petitioners herein having regard to Section 12(4) of the Karnataka Lokayukta Act and Rule 5(2) of the Karnataka Housing Board Rules, 1964 in accordance with law.
No order as to costs.
SD/-
JUDGE S*