Karnataka High Court
Sri S Krishna Lal vs Bruhat Bengaluru Mahanagara Palike on 11 March, 2020
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NO.2521/2020 (S-RES)
BETWEEN
SRI.S.KRISHNA LAL
SON OF L.M.SHIVANNA NAIK,
AGED ABOUT 34 YEARS,
RESIDING AT NO.53, 3RD CROSS,
4TH MAIN ROAD, UAS LAYOUT,
SANJAY NAGAR, BENGALURU - 560 094.
...PETITIONER
(BY SRI.ROHAN HOSMATH, ADV.)
AND
1. BRUHAT BENGALURU MAHANAGARA PALIKE
HUDSON CIRCLE, N.R. SQUARE
BENGALURU - 560 002.
REPRESENTED BY ITS COMMISSIONER
2. BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 024.
REPRESENTED BY ITS COMMISSIONER
3. ESTATE OFFICER,
BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 024.
...RESPONDENTS
(BY SMT.SARITHA KULKARNI, ADV.FOR R1;
SRI.NARENDRA GOWDA, ADV. FOR R2 AND R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED SUSPENSION ORDER DATED
18.07.2019 ISSUED BY R-1 BBMP PRODUCED
HEREWITH AS ANNX-F AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for respondent Nos.2 and 3.
2. The petitioner in the instant petition need not detain the Court for long as the issue of suspension for an undetermined period is no more res-integra in the light of the decision of the Hon'ble Apex Court in the case of Ajay Kumar Choudhary Vs. Union of India and Another reported in 2015 (7) SCC 291, wherein at paragraph No.21, the Hon'ble Apex Court has been pleased to hold as under:-
'21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge- sheet is not served on the delinquent 3 officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission 4 that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.'
3. The background for the order impugned is the allegation, that the petitioner at the time of discharging his duties with respondent No.1 - BBMP had indulged in fraud by awarding huge compensations at artificial and inflated rates and had also colluded with private parties and had thereby fraudulently granted Transferable Development Rights way in excess of what was due to the land losers and in this direction, the matter was taken up by Anti Corruption Bureau and FIR came to be registered in Crime No.13/2019 for the offence punishable under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 and also for the offence punishable under Sections 420, 408, 409, 465, 468, 471, 120 B read with Section 34 of IPC. The said complaint came to be registered on 11.04.2019.
54. On the registration of the criminal case, respondent No.1 invoking the powers under Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the 'K.C.S. Rules' for short) has been pleased to place the petitioner under suspension. The order of suspension came to be passed on 18.07.2019 and the petitioner approached this Court on 27.01.2020 and this Court by order dated 03.02.2020 was pleased to order notice.
5. Today, though the petition is listed for orders, the matter is taken up for consideration in view of the short point involved. In the light of the law laid down by the Hon'ble Apex Court, if the authority is of the view that the suspension of the delinquent is required to be continued, it is required of the authority to apply its mind and state reasons as to why it desires to extend the period of suspension.
6. In the instant case, admittedly, no such exercise is forthcoming. Be that as it may, it is seen 6 that the interregnum i.e., between the date of placing the petitioner under suspension and the date of preferring this writ petition, the petitioner came to be arrested by the investigating agency, namely, Anti Corruption Bureau and he was detained in prison from 12.11.2019 for a period of 13 days. In view of the said fact, the provisions of Section 10(2) of the K.C.S. Rules come into play whereby the Government Servant, who is arrested and detained in custody for a period exceeding 48 hours is deemed to have been suspended as if an order is passed by the appointing authority. In this regard, reliance is placed on the ruling of this Court in the case of Sri Basavaraju M and Another vs. Bruhath Bangalore Mahanagara Palike and Another reported in ILR 2017 KAR 2213, wherein this Court after analyzing the provisions of Rule 10 and Rule 10(2) of K.C.S. Rules in particular, was pleased to hold as under:
'5. A reading of sub-Rule (2) of Rules 10 of the K.C.S. Rules would clearly negate the contention of the petitioners 7 that the impugned order is passed without authority. The fact remains that the petitioners were arrested and detained on 29.11.2016 and continued in custody till
07.12.2016 i.e., for a period in excess of 48 hours. The provisions of sub-rule (2) of Rule 10 of the K.C.S. Rules is a deeming provision, by which a Government servant, who is detained in the custody for a period in excess of 48 hours shall be deemed to have been placed under suspension as if by an order passed by the competent authority. The implication is that the Government servant shall remain automatically suspended from service if he/she is in detention for a period in excess of 48 hours. The order impugned herein has to be read as communication of the deemed suspension.
6. As regards the legality of a rule providing for deemed suspension, the Full Bench of the Hon'ble Apex Court in the case of Nelson Motis Vs. Union of India and another; reported in (1992)4 Supreme Court Cases 711, while interpreting similar provisions of Central Civil Services (Classification, Control and Appeal) Rules, 8 1965 Rule 10(4) was pleased to uphold the concept of deemed suspension has observed as follows:
"7. It has been contended on behalf of the appellant that while in a case governed by sub-rule (3), a government servant, on the order of his punishment by way of dismissal, removal or compulsory retirement from service being set aside, stands suspended only if he had been under suspension earlier, sub-rule (4) provides for automatic suspension of a government servant, even if he was never under suspension at any point of time [emphasis supplied by me]; and this invidious distinction amounts to illegal discrimination which renders sub-rule (4) unconstitutional. The argument is that with a view to save the sub-rule, its application has to be limited to cases in which the government servant has been, during the pendency of the disciplinary proceeding, under suspension. The learned counsel proceeded to say that the 9 established principle of interpretation favouring reading down of a statutory provision in order to avoid it being struck down as illegal, is applicable to this case. If this is found not possible in view of the clear language of sub-rule (4), the same should be struck down as unconstitutional. In either event, it should be further held that the appellant, who was not under suspension earlier, cannot be treated to have been placed under suspension when his writ petition was allowed by the Tribunal.
Reliance has been placed on the decision of the Central Administrative Tribunal in N.V. Karwarkar v. Administrator of Goa, Daman and Diu. Reference was also made to certain observations of this Court in Khem Chand v. Union of India, and Divisional Personnel Officer, Western Railway v. Sunder Dass.
8. The language of sub-rule (4) of Rule 10 is absolutely clear and does not permit any artificial rule of 10 interpretation to be applied. It is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences [emphasis supplied by me]. The language of the sub-rule here is precise and unambiguous and, therefore, has to be understood in the natural and ordinary sense. As was observed in innumerable cases in India and in England, the expression used in the statute alone declares the intent of the legislature. In the words used by this Court in State of U.P. v. Dr. Vijay Anand Maharaj when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the act speaks for itself. Reference was also made in the reported judgment to Maxwel stating:
"The construction must not, of course, be strained to include cases 11 plainly omitted from the natural meaning of the words."
The comparison of the language with that of sub-rule (3) reinforces the conclusion that sub-rule (4) has to be understood in the natural sense. It will be observed that in sub-rule (3) the reference is to "a Government servant under suspension" while the words "under suspension", are omitted in sub-rule (4). Also the sub-rule (3) directs that on the order of punishment being set aside, "the order of his suspension shall be deemed to have continued in force" but in sub-rule (4) it has been said that "the Government servant shall be deemed to have been placed under suspension". The departure made by the author in the language of sub-rule (4) from that of sub-rule (3) is conscious and there is no scope for attributing the artificial and strained meaning thereto. In the circumstances it is not permissible to read down the provisions as suggested. We, therefore, hold that as a result of 12 sub-rule (4) a government servant, though not earlier under suspension, shall also be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, provided of course, that the other conditions mentioned therein are satisfied. [emphasis supplied by me]"
7. As held by the Hon'ble Apex Court, a reading of sub-Rule (2) of Rules 10 of the K.C.S. Rules as extracted supra leaves no scope for ambiguity and is framed in categorical terms. The suspension of a Government servant who has been detained in custody for a period exceeding 48 hours is by operation of the statute as if an order is passed by the Competent Authority itself. This is the deeming fiction and whereby it shall be presumed that an order of suspension by the Competent Authority automatically comes into existence in the particular case as set-out in the provisions of sub-Rule (2) of Rule 10 of K.C.S. Rules and no separate order placing the official under suspension 13 is required to be made by the Competent Authority.
8. The Hon'ble Apex Court in Criminal Appeal Nos.300-303/2017 [State of Karnataka Vs. Selvi J.Jayalalithaa & Ors.] has observed as follows:
"A few disquieting thoughts that have lingered and languished in distressed silence in mentation demand expression at the parting with a pulpit touch. Hence, this supplement.
2. The attendant facts and circumstances encountered as above, demonstrate a deep rooted conspiratorial design to amass vast assets without any compunction and hold the same through shell entities to cover up the sinister trail of such illicit acquisitions and deceive and delude the process of law. Novelty in the outrages and the magnitude of the nefarious gains as demonstrated by the revelations in the case are, to say the least, startling.14
3. A growing impression in contemporary existence seems to acknowledge, the all pervading pestilent presence of corruption almost in every walk of life, as if to rest reconciled to the octopoid stranglehold of this malaise with helpless awe. The common day experiences indeed do introduce one with unfailing regularity, the variegated cancerous concoctions of corruption with fearless impunity gnawing into the frame and fabric of the nation's essentia. Emboldened by the lucrative yields of such malignant materialism, the perpetrators of this malady have tightened their noose on the societal psyche. Individual and collective pursuits with curative interventions at all levels are thus indispensable to deliver the civil order from the asphyxiating snare of this escalating venality.
4. In the above alarming backdrop of coeval actuality, judicial adjudication of a charge based on an anti-corruption law 15 motivated by the impelling necessities of time, has to be informed with the desired responsibility and the legislative vision therefor. Any interpretation of the provisions of such law has to be essentially purposive, in furtherance of its mission and not in retrogression thereof. Innovative nuances of evidential inadequacies, processual infirmities and interpretational subtleties, artfully advanced in defence, otherwise intangible and inconsequential, ought to be conscientiously cast aside with moral maturity and singular sensitivity to uphold the statutory sanctity, lest the coveted cause of justice is a causality."
7. Be that as it may, in the light of the law laid down by the Hon'ble Apex Court, it would be prudent on the authority, namely, respondent No.1- BBMP to apply its mind to the fact as to whether the continued suspension of the petitioner is warranted.
In the event, the authority arrives at such a 16 conclusion, it shall be upon the authority to pass an order of suspension afresh stating the reasons, which requires the continued suspension of the petitioner.
8. The exercise shall be completed by the authority within a period of four weeks from the date of receipt of a certified copy of this order.
9. The petitioner is permitted to make a representation by enclosing a copy of this order requesting for revocation of the order impugned herein.
With the above observations, the petition stands disposed of.
Sd/-
JUDGE dn/-
CT-HR