Karnataka High Court
Sri. M.H Bhaskar vs State Of Karnataka on 14 September, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION No.32432/2011 (S-RES)
BETWEEN :
SRI. M.H BHASKAR,
S/O.LATE S HANUMANTHA SHETTY,
AGED ABOUT 49 YEARS,
OCCN: PROJECT ENGINEER (IREP),
ZILLA PANCHAYAT,
SHIMOGA DISTRICT 577 201. ...PETITIONER
(BY SRI:P A KULKARNI, ADVOCATE)
AND :
1 STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY,
RURUAL DEVELOPMENT AND
PANCHAYAT RAJ, M S BUILDINGS,
BANGALORE 560 001.
2 KARNATAKA STATE COUNCIL FOR
SCIENCE AND TECHNOLOGY,
WITH ITS HEADQUARTERS AT INDIAN
INSTITUTE OF SCIENCE PREMISES,
BANGALORE 560 012,
BY ITS EXECUTIVE SECRETARY.
2
3 ZILLA PANCHAYAT,
SHIMOGA 577 201,
BY ITS
CHIEF EXECUTIVE OFFICER. ...RESPONDENTS
(BY SRI.PRADEEP S.SAWKAR, ADV. FOR M/S
SUNDARASWAMY & RAMDAS, ADVs.FOR R2;
SRI B J ESWARAPPA, ADV. FOR R3;
SRI RAGHAVENDRA G GAYATHRI, HCGP FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 03.08.2011, ANNEXURE J PASSED BY THE
RESPONDENT NO.2 KARNATAKA STATE COUNCIL FOR
SCIENCE AND TECHNOLOGY BANGALORE.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has called in question a communication dated 3 rd August 2011 issued by the second respondent to the third respondent - Zilla Panchayat produced at Annexure-J wherein the second respondent has informed to the second respondent that, the services of the petitioner be repatriated with immediate effect to enable the second respondent to take further needful action in the matter of imposing punishment against the petitioner. 3
2. The case of the petitioner is that, he was appointed as a Project Assistant in the second respondent - Society. However, the services of the petitioner were placed under the control of Department of Rural Development and Panchayat Raj (RDPR), State of Karnataka and was posted to Dakshina Kannada. Thereafter, by Annexure-C, the State Government transferred the services on contractual basis to Shimoga Zilla Panchayat.
3. While the petitioner was working in Udupi Zilla Panchayat, certain financial irregularities were noticed and an enquiry was initiated under Rule 11 and Rule 13 of the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 (in short referred to as 'CCA Rules'). After completion of the enquiry, a report was also submitted to the Government. The Government in pursuance of the same, issued a second show cause notice to the petitioner calling upon him to show cause as to why the punishment should not be imposed in pursuance of the enquiry report. Petitioner submitted his reply to the said show cause notice. 4
4. However, it was noticed that the Zilla Panchayat being the borrowing authority of the service of the petitioner, by communication dated 09.12.2009 informed to the second respondent that an enquiry has been held against the petitioner in respect of certain financial irregularities and the disciplinary action is required to be taken by the second respondent, accordingly, it requested the second respondent to withdraw the service of the petitioner for disciplinary action. In pursuance of the said communication, the second respondent by impugned communication informed the third respondent to repatriate the services of the petitioner to the second respondent to enable it to take action accordingly. It is against the said communication, petitioner is before this Court.
5. Sri.P.A.Kulkarni, learned Counsel appearing for the petitioner submitted that, only for the purpose of passing an order of punishment, the petitioner's services need not be repatriated. Alternately, he also submitted that, the petitioner was appointed by 5 the second respondent and he does not come within the definition of "Government Servant" under Rule 2(d) of the CCA Rules, as such, the provisions of Rules 15 and 16 of CCA Rules are not applicable. He also submitted that, the second respondent deputed the services of the petitioner to the Department of Rural Development and Panchayat Raj, State of Karnataka, as such, the Zilla Panchayat, Shimoga, cannot repatriate the services of the petitioner at the disposal of second respondent. Hence, the communication at Annexure-J is required to be quashed.
6. On the other hand, Sri.Savkar, learned Counsel appearing for the second respondent submitted that, the petitioner is not disputing that, he is appointed by the second respondent and if the services were lent to the other department, the second respondent being lending body, it can at any time withdraw the deputation or recall the lent service. In case of awarding major punishment, it is only the lending authority alone impose major punishment under Rules 15 and 16 of the CCA Rules, as such, the services of the 6 petitioner have to be repatriated for the purpose of taking action by the Appointing Authority, as it is the Disciplinary Authority. Hence, in consonance with the same, the second respondent has issued a communication, petitioner cannot make a grievance against his repatriation as his services belong to the second respondent.
7. He also relied on definition of "Government Servant"
under Rule 2(d) of the CCA Rules and submitted that, even the services under any other Authority, if they are lent to another Department, he also falls within the meaning of the definition of "Government servant" and as such, he is a Government servant for the purpose of CCA Rules and submitted that, there is nothing wrong in issuing communication.
8. Learned Government Pleader submitted that, there is no difference between the word "deputation" or "lending and borrowing" as referred under Rules 15 and 16 of the CCA Rules 7 and submitted that, the Government has clarified that the deputation is also lending and borrowing. Hence, reference to the word "lending and borrowing" under Rules 15 and 16 or deputation does not have any different meaning, both are one and the same.
9. It is not in dispute that, the petitioner was appointed by the second respondent. It is also not disputed by the learned Counsel for the petitioner that, the second respondent is a Government undertaking or Government Society and it is other authority, however, submitted that, his services were deputed to the Government as per Annexure-A to the Department of the Rural development and Panchayat Raj and in turn, they were lent to the Panchayats, as such, if at all if the services of the petitioner is to be repatriated, it has to be by the State Government. Even an order of deputation / lending or borrowing as per Annexure-A is at the request of the State Government. His transfer from one Zilla Panchayat to another Zilla Panchayat is also by the Government, 8 however, indisputedly, the services of the petitioner were kept under the control of the respective Zilla Panchayat and it is also not disputed that the Zilla Panchayat was controlling the services of the petitioner for all purposes. In my opinion, it is the borrowing authority of the services of the petitioner.
10. Further, the definition of the Government Servant under Rule 2(d) of CCA Rules reads as under:
(d) "Government Servant" means a person who is a member of the Civil Services of the State of Karnataka or who hold a civil post in connection with the affairs of the State of Karnataka and includes any person whose services are temporarily placed at the disposal of the Government of India, the Government of another State, a local authority, any person or persons whether incorporated or not and also any person in the service of the Central or another State Government or a local or other authority whose services are temporarily placed at the disposal of the Government of Karnataka."
It not only refers to the Civil Service of the State or Central Local Bodies, but also other authorities, as submitted by the learned counsel for the petitioner that, the second respondent is not a 9 Private Society but it is a Government Society fully controlled by the Government. Hence, the second respondent is a State under Article 12 of the Constitution of India. If he is a servant of other Authority for the purpose of definition under Rule 2 clause (d), he also becomes a Government servant under CCA Rules.
11. It is not in dispute that, an enquiry was initiated against the petitioner by the State Government and enquiry is completed, the Zilla Panchayat where he was working has informed the second respondent that as far as punishment under Clause 8 sub-clause (v) to (viii) is concerned, such punishment has to be issued only by the Disciplinary Authority or by the Appointing Authority. The second respondent being the appointing authority and disciplinary authority rightly issued a communication at Annexure-H. In response to the same, the second respondent informed the third respondent - Zilla Panchayat to repatriate the services of the petitioner for the purpose of taking action under Rule 15 sub-rule (2) clause (2). In case the Borrowing Authority is of the opinion 10 that, any of the penalties specified in sub-clauses (v) to (viii) of Clause 8 is to be imposed on the employee on deputation, services of such employee has to be placed at the disposal of the Lending Authority and transmit it to the proceedings of the enquiry and thereupon the Lending Authority may take appropriate decision in the matter.
12. Reading of the provision of Rule 15 sub-rule (2) clause (2) makes it clear that, when a Borrowing Authority finds that, it is not possible to take action against the employee on lent service as the punishment sought to be imposed being under Rule 8 sub-rules
(v) to (viii) in terms of Rule 15 sub-rule (2), it has to send the services of such persons to the parent department, i.e., by repatriation. As such, the third respondent having no power to take the disciplinary action for imposing major punishment, it has rightly informed the Appointing Authority/Disciplinary Authority - second respondent to withdraw the services of the petitioner for the purpose of taking action.
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13. In these circumstances, I do not find that there is any justification to interfere with the said communication impugned in the writ petition.
Hence, the petition fails and same is dismissed.
Sd/-
JUDGE KNM/DP