Karnataka High Court
Shridhar Joshi S/O. Narayan Joshi vs The I/C Registrar (Additional) Of ... on 30 June, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.77676/2013 (S-DE)
BETWEEN:
SHRIDHAR JOSHI S/O. NARAYAN JOSHI
AGE: 48 YEARS, OCC: AEE-KHB
R/O. RAJIV NAGAR, HUBBALLI
DIST: DHARWAD.
...PETITIONER
(BY SHRI NEELENDRA D. GUNDE AND SHRI SUNIL DESAI,
ADVOCATES.)
AND:
1. THE REGISTRAR (ADDITIONAL) OF ENQUIRES,
KARNATAKA LOKAYUKTA, M.S. BUILDING,
AMBEDKAR ROAD, BENGALURU-01
2. THE UPALOKAYUKTA
M.S. BUILDING, AMBEDKAR ROAD,
BENGALURU-01
3. THE SECRETARY,
HOUSING DEPARTMENT
VIKAS SOUDHA, BENGALURU-01.
4. THE HOUSING COMMISSIONER
KARNATAKA HOUSING DEPARTMENT
CAUVERY BHAVAN, BENGALURU.
...RESPONDENTS.
(BY SHRI SANTOSH B. MALAGOUDAR, ADVOCATE, FOR R.1 AND
R.2;
SHRI VINAYAK KULKARNI, ADDL. GOVERNMENT ADVOCATE FOR
R.3;
SHRI I.C.PATIL, ADVOCATE, FOR R.4.)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ARTICLES OF CHARGES BEARING NO.LOK/ARE-4/14-A/ENQ-
36/2013, DATED 04/03/2013 PASSED BY THE RESPODNENT
NO.1 AS PER ANNEXURE-N, AS ILLEGAL AND VOID, AND TO
QUASH THE IMPUGNED ORDER BEARING
NO.KA.GRU.MAM/ADALITHA/SLSHA.1/P.R/3/2012-13, DATED
9.1.2013, AS PER ANNEXURE-P, PASSED BY RESPONDENT NO.4
AND TO DIRECT THE 4TH RESPONDENT CONSEQUENTLY TO
PROMOTE THE PETITIONER TO THE POST OF EXECUTIVE
ENGINEER AND GRANT OTHER CONSEQUENTIAL RELIEFS, ETC.,.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
Petitioner was appointed as a Junior Engineer in Karnataka Housing Board ('Board' for short) on 21.12.1988. In appreciation of his work and sincerity, petitioner was promoted as Assistant Engineer in the year 2003. Thereafter, in the year 2007, petitioner came to be promoted as Assistant Executive Engineer ('AEE' for short). Petitioner ever since is working to the full satisfaction of the public at large and senior officers in the department by maintaining absolute integrity in his service. It is stated that till date there is no black mark in the service records of the petitioner.
2. One Ramesh Ajjodi filed a complaint against petitioner for the offences punishable under Section 7, -3- 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ('P.C.Act', for short), on 2.4.2006 in Crime No.5/2006, registered with the Lokayukta Police, Dharwad, alleging that petitioner herein had demanded bribe amount for execution of sale deed. Based on the said complaint, III Addl. District & Sessions and Special Judge, Dharwad, issued summons to the petitioner and after conducting a full fledged trial, acquitted the petitioner honourably on merits by its order dated 25.2.2010. Petitioner further states that in the said order of acquittal it is categorically held that the prosecution has not proved the demand and acceptance of illegal gratification by the petitioner.
3. During the pendency of the said case which was registered as S.C.No.1/2007, the Karnataka Lokayukta/ respondent No.1 issued a notice to the petitioner on 25.4.2009 calling for an explanation as to why disciplinary action should not be initiated against him, which came to be replied by the petitioner suitably. Thereafter accepting the said reply, no action came to be initiated against the petitioner. Thereafter the -4- Government also did not challenge the judgment of acquittal before the appellate Court. Respondent No.1 Lokayukta communicated to respondent No.3 by way of letter with regard to representation of petitioner for release of his arrears of salary.
4. This being the state of affairs, petitioner came to be promoted as AEE by order dated 25.6.2010. Vide order dated 20.4.2011, respondent No.3 was directed to initiate action against the petitioner as per section 12(4) of the Karnataka Lokayukta Act, 1984 (K.L.Act, for short) and to report the compliance to the 1st respondent.
5. Pursuance to order dated 20.4.2011, respondent No.4 by official letter dated 26.7.2011, expressed an opinion that report of Lokayukta be rejected, which copy was sent to the 1st respondent. Vide letter dated 1.3.2012, respondent No.3 made it categorically very clear that petitioner herein is not a Government servant and that the Karnataka Government (Business) Rules 1977 will not be applicable to the petitioner.
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6. This being the condition, petitioner received a notice dated 7.2.2013 intimating about appointment of Inquiry Officer for conducting Department Inquiry against the petitioner, based on which petitioner was also served with articles of charges dated 4.3.2013.
7. It is this issuance of articles of charges and the order passed by the 4th respondent under section 14-A of the K.L.Act, that is questioned before this Court.
8. Learned counsel for the petitioner vehemently contends that the impugned notice and articles of charges issued by the respondent is contrary to law, opposed to principles of natural justice and is an error apparent on the face of record. He further contends that the petitioner was acquitted honourably and completely exonerated of the charges levelled against him by the Sessions Court after a full fledged trial. Learned counsel further contends that the list of witnesses mentioned in the charge memo and the witnesses examined before the Court are one and the same. Therefore, examining the very same witnesses before the Court would be a sheer waste of time as per the settled principles of law. -6-
9. It is the contention of the learned counsel that as per the alleged incident of demand which is said to have taken place, on 2.4.2006 a complaint came to filed and on 22.1.2013, after a period of 7 years, petitioner has been issued with the notice for Department Inquiry. The very delay of 7 years in issuance of notice for Departmental Inquiry itself is flawed and not feasible upon the respondent No.3 to initiate inquiry. He further contends that the nature of charges in the Department Enquiry and criminal case are one and the same and a specific point being raised with regard to demand and acceptance of bribe amount by the petitioner has been negatived in the criminal Court after a full fledged trial and the prosecution has failed to prove the same, under such circumstances respondent No.3 ought not to have issued notice to the petitioner.
10. Learned counsel further contends that admittedly respondent No.3 has not filed any appeal against the judgment of acquittal and the same has attained finality. Hence on this ground also initiation of departmental proceedings is uncalled. -7-
11. Learned counsel further contends that before initiation of any proceedings under section 12(3) of the K.L.Act, respondent No.1 is required to comply with the mandatory provisions as contemplated under section 12(4) of the K.L.Act, which in the present case has not been complied. It is further contended that while entrusting inquiry to 2nd respondent under Rule 14-A of KCS (CCA) Rules, 1957, it has to independently assess whether a prima facie case has been made out against the delinquent official before such entrustment to the Lokayukta. It is contended that in the present case on hand, no such steps have been taken by the 3rd and 4th respondent before entrusting the inquiry under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957 ('KCS-CCA Rules', for short).
12. Learned counsel further contends that the respondent do not have the authority to initiate proceedings as against the petitioner for the reason that the petitioner was an employee of the 4th respondent Housing Board, which is an autonomous body by itself created under section 3(1) of the Karnataka Housing -8- Board Act, 1962 (for short KHB Act). Primary contention of the learned counsel is that the petitioner is not a Government servant whereas he is a public servant. Hence respondent No.1 is not the Disciplinary Authority. He also contends that since he is not a Government servant, the KCS-CCA Rules would not be applicable to the petitioner. So also the respondent no.1 would not have the competence to institute disciplinary proceedings and thereby entrust the holding of inquiry against the petitioner. He further contends that the 2nd respondent Lokayukta could not have submitted a report to the 1st respondent as it was not having any disciplinary control or authority over the petitioner. Hence contends that the impugned order is liable to be quashed. Learned counsel further contends that his case is squarely covered by several decisions of this Court and he has placed one such decision for consideration in W.P.No.46539/2018 (GM-KLA).
13. Learned Addl. Government Advocate representing respondent No.3 contends that under the K.L.Act, whenever a complaint is received against a -9- Government servant or a public servant, Lokayukta is required to enquire into the same and thereafter it has to appraise the outcome of such enquiry by way of submitting a report. He further contends that in the present case on hand, the Government has pursuant to the report ordered for Department Inquiry and it is open to the Disciplinary Authority to take action on the report submitted. Therefore he submits that the petition is without merits and is liable to be dismissed.
14. Learned counsel Shri Santosh B. Malagoudar representing the Lokayukta, respondents No.1 and 2, submits that once the complaint is made, it is bound to follow certain required procedure as prescribed under the K.L.Act, based on which enquiry was conducted and the report has been submitted for the offences punishable under the provisions of the P.C.Act as stated above. Learned counsel further fairly submits that the petitioner herein is undoubtedly working as AEE in the Karnataka Housing Board i.e., the 4th respondent and hence he is not a 'Government Servant'. But nevertheless he is a 'Public Servant'. Hence he would be amenable to be
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enquired into by the Lokayukta. On these grounds he seeks for dismissal of the petition.
15. Learned counsel Shri I.C.Patil, appearing for respondent No.4, the Housing Board, contends that the Board has framed its own Rules and Regulations for recruitment as well as disciplinary control and that the KCS-CCA Rules are equally applicable to the employees of the board inasmuch as the same has been incorporated in the Karnataka Housing Board Rules 1964 ('Board Rules' for short). He further contends that based on the complaint received from one Remesh Ajjodi, the Lokayukta Police, Dharwad, registered a criminal case in Crime No.5/2006 for the offences punishable under section 7, 13(1)(d) read with section 13(2) of P.C.Act, 1988. It is further contended that based on the report by the Lokayukta, the 4th respondent being the Chief Administrative and Disciplinary Authority (as per section 5 of KHB Act), gave permission for prosecution and enquiry as per section 19(c) of the P.C.Act, on 18.8.2006. He further contends that, on contest, the petitioner nevertheless came to be acquitted in the said
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criminal case. Learned counsel further contends that the Lokayukta initiated sou-motu investigation under section 7(2) of the K.L.Act against the petitioner and submitted his report to the Government under section 12(3) of the K.L.Act and recommended to take action under Rule 14-A of the KCS-CCA Rules.
16. Learned counsel vehemently contends that the Board as per section 10 and 10A of the KHB Act, and as per amendment to Rule 5(2) of the Board Rules, respondent No.4 is empowered to appoint and impose penalty. Therefore the petition filed by the petitioner is devoid of merit and the same is liable to be dismissed.
17. Having heard the learned counsel for the parties and on consideration of the material placed before the Court, certain undisputed facts are as under.
18. Petitioner is undisputedly an employee of the Karnataka Housing Board, the 4th respondent and working as AEE. There are several allegations made against the petitioner due to which a criminal case was registered under the provisions of P.C.Act, but however it is not in dispute that the petitioner came to be acquitted
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of all the charges and from the criminal case itself which has ended in an acquittal and the same has also attained finality without there being any challenge to the judgment of acquittal. Undoubtedly in the present case on hand the 3rd respondent is not the Disciplinary Authority for the petitioner who is an employee of the 4th respondent Housing Board.
19. The Karnataka Housing Board is a creation under sub-section (1) of section 3 of the KHB Act. Section 3 of the KHB Act reads as follows:
"3. Constitution of the Board.--(1) With effect from such date as the State Government may, by notification, appoint in this behalf, there shall be established for the purposes of this Act, a Board by the name of the Karnataka Housing Board which shall be a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name and shall subject to the provisions of this Act, be competent to acquire, hold and dispose of property both movable and immovable and to contract and do all things necessary for the purposes of this Act."
20. It is evident from the above that the Karnataka Housing Board is a separate entity by itself and the officers and employees of the Board are not
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Government servants as they are employees of the Board. It is also not in dispute that the Board is controlled by the Government of Karnataka and the Board consists of appointees of the State Government, officers of the Government or the nominees of the same.
21. Clause (g) of sub-section (12) of section 2 of K.L.Act, reads as under:
(12) "public servant" means a person who is or was at any time,--
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) xxx
(g) a person in the service or pay of,--
(i) xxxx
(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) xxxx
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(iv) xxxx
(v) xxxx
(vi) xxxx Explanation.- xxxx."
22. Under these circumstances, it cannot be disputed that the Board is a statutory body established under the KHB Act, which is owned and controlled by the State. Therefore, petitioner is undoubtedly a Public Servant. It is a case of the petitioner that the proceedings initiated under the KCS-CCA Rules would not be applicable as the Board is governed by its own Rules and Regulations. It is apparently clear that KCS-CCA Rules would not be applicable to the employees of the Board and therefore Lokayukta would lack jurisdiction to hold an inquiry or Disciplinary Proceedings even if it is entrusted to it by the Government.
23. In view of Rule 5 of the Board Rules, it is the Housing Commissioner, who would be having authority or jurisdiction to impose penalty as per rule 8 sub-rule (ii to
viii) of KCS-CCA Rules which includes imposing of major penalties. It is important to note here that sub-rule (2) of
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Rule 5 of Board Rules stated above states that KCS-CCA Rules shall "mutatis mutandis" be applicable to the officers and servants of the Board. When such is the intent of the legislature, the KCS-CCA Rules would completely be applicable and govern the holding of Disciplinary Inquiry against employees of the Board including the petitioner herein. For better understanding, sub-rule (2) of Rule 5 of Board Rules is extracted hereunder.
"5. Condition of service of the Officers and servants of the Board.-(1) The Officers and servants of the Board shall be paid after retirement a pension at the same rates and subject to the same conditions as laid down in the Karnataka Civil Services Rules.
(2) The Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 shall mutatis mutandis, be applicable to the Officers and servants of the Board. The authority empowered to appoint, the authority empowered to impose penalties and penalties which he may impose and Appellate Authority in respect of the Officers and Servants of the Board shall be as mentioned in Schedule below.-
SCHEDULE For Officers and Officials of the Karnataka Housing Board Authority which may impose penalty as per Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957:"
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Sl. Class of Posts Authority Authority empowered to Appellate
No. Empowered to impose penalties and Authority
appoint penalties which he may
impose
1. Superintending Housing Housing (ii Principal
Engineer, Joint Commissioner Commissioner to Secretary,
Director of Town viii) Housing
Planning, Executive Department
Engineer, System
Analyst, Deputy
Director of Town
Planning, Accounts
Officer, Senior
Programmer, Assistant
Director of Town
Planning, Assistant
Executive Engineer
(Civil), Assistant
Executive Engineer
(Electrical)
(underlining supplied)
24. Learned counsel for the petitioner has relied upon the judgment of the Honb'le Division Bench of this court in W.P.No.46539/2018 (GM-KLA) which has dealt with the similar case as the present one. It is apparently clear from the above said facts and circumstances of the case that the 3rd respondent is not the Appointing Authority and neither is it a Disciplinary Authority for the officers and servants of the Board like the petitioner herein. Therefore, the report under section 12(3) of the K.L.Act forwarded to it would have to be received by it as a matter of information and appraisal to the Government having control over the interest and working/operation of the Board. Therefore, the 3rd respondent does not have
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jurisdiction to institute Disciplinary Proceedings against the petitioner herein and further entrust holding of such inquiry to the Lokayukta. Hence the same is liable to be quashed. Hence, the following:
ORDER
i) Petition is partly allowed and disposed of in terms herein below.
ii) Impugned order dated 9.1.2013, bearing No.KA.GRU.MAM/ ADALITHA/ SLSHA.1/ P.R/3/2012-13, vide Annexure-P, is hereby quashed.
iii) Consequently, Articles of Charges dated 4.3.2013 bearing No.LOK/ARE-4/14-A/ENQ-
36/2013 issued by respondent No.1, vide Annexure-N, is hereby quashed.
iv) The 3rd respondent State Government is directed to submit a report under section 12(3) of the K.L.Act to the Board, the 4th respondent. On receipt of such report, the 4th respondent would be at liberty to appoint an
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Enquiry Officer for conducting enquiry against the petitioner herein with regard to section 12(4) of the K.L.Act and Rule 5(2) of the Board Rules, in accordance to law.
v) It is made clear that all the contentions of the parties to the proceedings on the merits of the matter are kept open to be raised at the appropriate stage in the appropriate proceedings. It is also made clear that this Court has not expressed any opinion on the merits of the matter.
Sd/-
JUDGE Mrk/-