Karnataka High Court
Bangalore Bangalore Rural And ... vs Sri M Mallikarjunaiah on 10 November, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.55734/2016 (SC - ST)
BETWEEN
BANGALORE , BANGALORE RURAL AND RAMANAGARA
DISTRICT COOPERATIVE BANK LIMITED,
(BBR & RDCC BANK)
NO.6, LAXMISADANA,
5TH MAIN, CHAMARAJPET
BENGALURU - 560 058
REPRESENTED BY ITS CHIEF EXECUTIVE
OFFICER, SRI B.R LINGARAJU
... PETITIONER
(BY SRI. SOMASHEKAR, ADVOCATE (VIDEO
CONFERENCING))
AND
1. SRI M.MALLIKARJUNAIAH
S/O SRI LAKSHMANAIAH
AGED 57 YEARS,
RESIDING AT NO.724, 6TH MAIN ROAD
VIJAYANAGAR,
BENGALURU - 560 040.
2. THE CHAIRMAN
STATE COMMISSION FOR
SCHEDULED CASTES
& SCHEDULED TRIBE
NO.14/3, 2ND FLOOR, CFC BUILDING
2
NRUPATHUNGA ROAD
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI JAGADEESH, ADVOCATE FOR R2 (VIDEO
CONFERENCING);
R1 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 29.09.2016 IN CASE AT
ANNEX-G PASSED BY R-2 ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the order dated 29.09.2016 passed by the second respondent granting a stay of further proceedings of the enquiry conducted by the petitioner against the first respondent.
2. Brief facts leading to the filing of the present petition are:
Petitioner is a Co-operative Bank registered under the Karnataka State Co-operative Societies Act, 1959. The first respondent was working as a Branch Manager at the 3 Silk Exchange Branch between the period 2009-2010 and 2014-2015. At the time when the first respondent was working as a Branch Manager, an inspection was carried out by the Bank of the branch in which the first respondent was working as a Branch Manager. The outcome of inspection was that the first respondent was found to have misappropriated an amount to the tune of Rs.11,00,00,000/- in terms of the preliminary report dated 11.05.2015. The Board resolved to keep the first respondent under suspension pending initiation of regular departmental enquiry on 28.04.2015.
3. Charge sheet was issued against the first respondent to which the first respondent submitted a reply which was found to be unsatisfactory. The Additional Registrar of Co-operative Societies was appointed as an Enquiry Officer to conduct disciplinary proceedings against the first respondent. The first respondent, on the receipt of the order appointing the Enquiry Officer, lodged a complaint with the second respondent-State Commission 4 for Scheduled Castes and Scheduled Tribes (hereinafter referred to as 'the Commission' for short).
4. The Commission entertaining the complaint made by the first respondent issued notice to the petitioner to appear before the Commission. The petitioner on appearing before the Commission filed a detailed reply on 14.07.2016 denying all the allegations of atrocities alleged by the first respondent before the Commission. In the meantime and during the pendency of the aforesaid complaint before the Commission, the Enquiry Officer conducted an enquiry and submitted his report on 08.09.2016 holding that the first respondent was guilty of misappropriation Rs.9,95,73,559/-.
5. On the report of the Enquiry Officer, the Board of the petitioner resolved to issue a second show cause notice enclosing the report of the Enquiry officer and in terms of the resolution, a notice was issued to the first respondent on 19.09.2016. The first respondent sought time to submit his reply and produced an order dated 29.09.2016 5 wherein the Commission had directed the petitioner to keep further proceedings pursuant to the second show cause notice in abeyance. It is this order that is called in question by the petitioner in the writ petition.
6. Heard Sri.Somashekar, learned counsel appearing for petitioner and Sri.C.Jagadish, learned counsel appearing for respondent No.2. The first respondent is served and unrepresented.
7. The learned counsel for the petitioner would submit that the order of the Commission directing the petitioner to keep further proceedings against the petitioner in abeyance is without jurisdiction as the Commission has no powers of the kind of a Court. He would place reliance upon the judgment of the Apex Court in the case of All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India, reported in (1996) 6 SCC 606 and a judgment of this Court in the case of Karnataka Antibiotics and Another 6 vs. National Commission SC and ST and other reported in ILR 2008 KAR 3305.
8. The learned counsel appearing for the second respondent-Commission would, however, support the order.
9. The only issue that falls for my consideration is, whether the Commission is empowered to pass such orders as the one that is impugned in the writ petition?
10. This Court need not delve deep into the issue as the issue is no longer res integra as the Apex Court in the case of All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India, (1996) 6 SCC 606 has held as follows:
"3. The short question that arises for consideration in this matter is whether the Commission had the power to issue a direction in the nature of an interim injunction? The appellant supports the letter dated 4-3-1993 of the Commission on the facts of the case which supposedly justify the passing of an interim direction of the type contained in the letter dated 4-3-1993. The appellant refers to Article 7 338, clauses (5) and (8) of the Constitution introduced by the Constitution (Sixty-fifth Amendment) Act, 1990 to argue that the Commission had power to requisition public record and hence it could issue directions as if it enjoyed powers like a civil court for all purposes. Further the appellant contends that even a single member of the Commission has every authority to pass a direction on behalf of the entire Commission and hence the High Court was wrong in expressing the view that a single member of the Commission could not have issued the direction contained in the letter dated 4-3-1993. The appellant further contends that no writ would lie against an interim order of the Commission.
4. The basic question, however, is whether the Commission had the authority to issue the direction it did by the letter dated 4- 3-1993. Clauses (5) and (8) of Article 338 of the Constitution, which the appellant refers to as the source of the Commission's power, can be quoted for ready reference:
"(5) It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Commission or under any other law for the time being in force or under any order of the 8 Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such report recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes and Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes and Scheduled Tribes as the President may, subject 9 to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub- clause (b) of clause 5, have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;10
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine."
5. It can be seen from a plain reading of clause (8) that the Commission has the power of the civil court for the purpose of conducting an investigation contemplated in sub-clause
(a) and an inquiry into a complaint referred to in sub-clause (b) of clause (5) of Article 338 of the Constitution.
6. Sub-clauses (a) to (f) of clause (8) clearly indicate the area in which the Commission may use the powers of a civil court. The Commission has the power to summon and enforce attendance of any person from any part of India and examine him on oath; it can require the discovery and production of documents, so on and so forth. All these powers are essential to facilitate an investigation or an inquiry. Such powers do not convert the Commission into civil court.
117. xx xx xx
8. xx xx xx
9. xx xx xx
10. Interestingly, here, in clause (8) of Article 338, the words used are "the Commission shall ... have all the powers of the Civil Court trying a suit". But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5". All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."
11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4-3- 1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in 12 taking the view it did. The appeal is dismissed. No costs.
which is again followed by learned co-ordinate Bench of this Court in the case of Karnataka Antibiotics and Another vs. National Commission SC and ST and other reported in ILR 2008 KAR 3305 wherein this Court has held as follows:
"10. Keeping in view the law declared by the Supreme Court in the decisions referred to above, it is required to examine the fact situation in the present case. The impugned direction dated 11.9.2006 was issued by the second respondent. The second respondent is a member of first respondent-National Commission for Scheduled Castes and Scheduled Tribes. In this writ petition the petitioners are questioning the competency of the second respondent to issue the impugned direction. Therefore what is questioned in this writ petition is the competency of second respondent to issue the impugned direction and not the service condition relating to the fourth respondent. Though the impugned 13 direction mentions reinstatement and payment of other benefits to the fourth respondent the same is only an incidental. The first petitioner being the trade union representing the majority of employees of the third respondent company and the second petitioner being an employee are entitled to maintain a writ petition questioning the competency of second respondent to issue the impugned direction.
12. Article 338 of Constitution of India specifies for constitution of National Commission for Schedule Castes and Schedule Tribes. The Supreme Court in All India Indian Overseas Bank SC and ST employees' welfare association v. Union of India (Supra) held that "all the procedural powers of civil court given to the National Commission for Schedule Caste and Schedule Tribe by Article 338(8) of the Constitution of India are for the limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint, under 338(5)(b). The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived 14 from a reading, of clause (8) of Article 338 of the Constitution. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4.3.1993 directing the Bank to stop the promotion process pending further investigation and final verdict in the matter".
13. In the instant case the third respondent-company issued articles of charges on 29.1.2004 to the fourth respondent stating that he indulged in corrupt practices, neglected to discharge his duties, acted in a manner prejudicial to the interest of the company, indiscipline, made false statement before the superiors, favoritism for pecuniary benefit etc. Since the reply of the fourth respondent was not satisfactory, the disciplinary authority initiated inquiry proceedings. On 13.6.2005 the inquiry officer submitted his report stating that the charges levelled against the fourth respondent as proved. The disciplinary authority after providing an opportunity to the fourth respondent passed an order of penalty on 15.12.2005 removing the-fourth respondent 15 from service. Even the appeal filed by the fourth respondent came to be rejected vide order dated 27.1.2006 and the same had become final. When the matter stood at that stage, the fourth respondent gave a complaint to the first respondent-Commission stating that injustice has been caused to him. The second respondent being the member of the first respondent -- Commission visited the third respondent-company at B angalore and held a meeting with the officers of the company. In the said meeting the second respondent directed the third respondent to conduct a fresh inquiry, to treat fourth respondent as deemed to have been continued in service and to pay him the salary and other allowances. By this impugned direction the second respondent virtually set asides the inquiry report dated 13.6.2005, order of penalty dated 15.12.2005 and the order of appellate authority dated 27.1.2006. Therefore the impugned direction issued by the second respondent is without power and authority. Under Article 338 of the Constitution the second respondent is not empowered to set aside a concluded inquiry and the order of penalty and the order of 16 appellate authority. Therefore the impugned direction issued by the second respondent is liable to be quashed."
11. In the light of the judgment of the Apex Court and that of this Court the order passed by the Commission, impugned in the writ petition, is one without jurisdiction and non est in the eye of law.
For the aforementioned reasons, the following:
ORDER
(i) Writ petition is allowed.
(ii) The impugned order passed by the second respondent dated 29.09.2016 at Annexure 'G' is set aside.
Sd/-
JUDGE bkp CT:MJ