Karnataka High Court
Smt Vidya Raikar vs The State Of Karnataka on 30 June, 2015
Equivalent citations: 2016 (3) AKR 776, (2016) 4 KCCR 526 (2015) 3 CURLR 74, (2015) 3 CURLR 74
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.35194-35199 OF 2014 (S-KSRTC)
BETWEEN :
1. Smt.Vidya Raikar,
W/o.P.Hosapoojari,
Aged about 39 years,
R/at No.3/6, Officers Quartets,
Near BMTC Workshop,
Shanthinagar,
Bangalore - 560 027.
2. Sri Ramesh,
S/o.Doddegowda,
Aged about 52 years,
Residing at No.37,
B.D.A.Road, Adarsha Nagara,
Nagarabhavi 1st Stage,
Bangalore - 560 072.
3. Sri R.Venkatesh,
S/o.Late Ramappa,
Aged about 50 years,
Working as Traffic Controller,
East Division (Accident Section),
B.T.M.T. 6th Floor,
T.T.M.C. Building,
Dommalur Bus Stand,
Bangalore - 560 071.
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4. Sri P.L.Nataraja,
S/o.Lakshmikanthaiah,
Aged about 48 years,
Working as Depot Manager,
K.S.R.T.C. Kunigal Depot,
Kunigal, Tumkur District.
5. U.S.Karegowda,
S/o.Late K.Sureshappa,
Aged about 47 years,
Working as Security and
Vigilance Officer, K.S.R.T.C.
Chikamagaluru.
6. Basavaraj Talageri,
S/o.Yellappa,
Aged about 39 years,
Working as Establishment Superintendent,
B.M.T.C. Divisional Office,
North Division, Yeshwanthapura,
Bangalore - 560 022. ... Petitioners
(By Sri J.D.Kashinath, Advocate)
AND:
1. The State of Karnataka,
Department of Transport,
M.S.Building, Bangalore,
Represented by its
Principal Secretary.
2. The Managing Director,
K.S.R.T.C.,
Central Offices, K.H.Road,
Bangalore - 560 027.
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3. The Managing Director,
B.M.T.C., Central Offices,
K.H.Road,
Bangalore - 560 027.
4. The Joint Chief Security
And Vigilance Officer,
B.M.T.C., Central Offices,
K.H.Road,
Bangalore - 560 027.
5. The Security and Vigilance Officer,
Chickamangaluru and
Hassan Divisions,
Chickamagaluru.
6. The Inquiring Authority,
B.M.T.C., Central Offices,
K.H.Road,
Bangalore - 560 027. ...Respondents
(By Sri B.P.Radha, GP for R1:
Smt.H.R.Renuka, Advocate for R2 to R5)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to quash the following articles of
charges viz., article of charges dated 13.10.2012 as contained under
Annexure-A, dated 18.10.2012 as contained under Annexure-B,
dated 20.7.2012 as contained under Annexure-C, dated 24.7.2012 as
contained under Annexure-D, dated 13.8.2013 as contained under
Annexure-E, dated 28.10.2013 as contained under Annexure-F and
dated 21.11.2013 as contained under Annexure-G, etc..
These writ petitions having been heard and reserved for
orders on 03.06.2015, coming on for pronouncement this day, the
Court made the following:
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ORDER
The petitioners, who are/were the employees of the second respondent Karnataka Road Transport Corporation ('KSRTC' for short), have challenged the articles of charges and have also sought the declaration to the effect that the KSRTC and Bangalore Metropolitan Transport Corporation ('BMTC' for short) have no power either under the Security Standing Order, dated 04.04.1957 or under the Security Standing Order No.10/1983 to lay the traps against the petitioners and the further declaration that the disciplinary proceedings cannot be initiated under these two Standing Orders against the petitioners. The petitioner Nos. 1 and 2 had earlier filed W.P.Nos.6627-6628/2013, seeking the writ of certiorari for quashing the disciplinary proceedings. The said writ petitions came to be disposed of by this Court, by its order, dated 29.8.2013, reserving the liberty to the said petitioners to advance the plea, in the domestic enquiry, that the vigilance officers were not competent to lay a trap. On the filing of the application advancing such a plea, the enquiry officer dismissed it by his order, dated 03.03.2014. The petitioners have subsequently amended their 5 petitions for raising the challenge to the order of the enquiry officer, dated 03.03.2014.
2. At the very outset of her submissions, Smt.H.R.Renuka, learned counsel for the respondent Nos. 2 to 6 submits that these petitions have become infructuous in respect of petitioner Nos. 2 and 5, namely, Sri Ramesh and Sri U.S.Karegowda, as they are dismissed from service on 13.04.2015 and 13.12.2014 respectively.
3. Sri Kashinath, learned counsel for the petitioner requests that the liberty be reserved to the said petitioners to challenge the dismissal orders.
4. These petitions in respect of the second petitioner and the fifth petitioner are dismissed as having become infructuous reserving the liberty to them to challenge the dismissal orders in appropriate proceedings.
5. The facts of the case in brief are that the fourth respondent conducted the trap against the first petitioner on 24.12.2011 on receiving the information that the first petitioner demanded a bribe 6 of `1,000/- from a driver-cum-conductor B.Anjanappa for sanctioning the leave to him. The respondent No.4 caught the petitioner No.3 while receiving the bribe of `4,000/- from Basavaraju for declaring his probationary period. The petitioner No.4 was trapped by the Security and Vigilance Department of the K.S.R.T.C. while taking the bribe of `500/- from one driver-cum- conductor Sathish for sanctioning the leave. The respondent No.4 caught petitioner No.6 while he was receiving the bribe of `5,000/- from one M.A.Rajashekhar, the Accounts Supervisor of B.M.T.C. for processing his voluntary retirement application. The enquiry proceedings against the said four petitioners are at different stages.
6. Sri Kashinath, learned counsel for the petitioners emphatically denies that the petitioners have demanded and/or taken any bribe from anybody. He submits that the disciplinary proceedings are without the authority of law and without jurisdiction. He submits that the Security and Vigilance Departments of K.S.R.T.C. and B.M.T.C. have no power to lay the trap under the service regulations. He submits that the Standing 7 Orders, dated 18.8.1983 and 24.03.2014 on which the reliance is made by the respondents, are not in consonance with Section 45 of the Road Transport Corporations Act, 1950. He submits that the said Standing Orders are not issued by any competent authority. He submits that they are not issued by the K.S.R.T.C. as such.
7. Sri Kashinath submits that the respondents have been issuing ambiguous circulars - once stating that the Security and Vigilance Department, K.S.R.T.C. has no power to lay the trap and thereafter making a 'u' turn by holding that it has such a power. He submits that if the complaint of bribery is received, it has to be sent to the Lokayuktha Police. The proceedings can be initiated only under the Prevention of Corruption Act, 1988. He submits that the very initiation of the disciplinary proceedings is illegal.
8. Smt.H.R.Renuka, learned counsel for the respondent Nos.2 to 6 submits that the taking of bribe runs contrary to the Regulation 3(1) of the K.S.R.T.C. (Conduct and Discipline) Regulations, 1971. It reads as follows:
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"3. General - (1) Every Corporation servant shall at all times:-
(i) maintain absolute integrity;
(ii) maintain devotion to duty;
(iii) do nothing which is unbecoming of a Corporation servant."
9. She also brings to my notice, the Security Standing Order No.1, dated 04.04.1957. Clause (vi) of the said Order reads as follows:
"(vi) Securing information regarding cases of corruption where Mysore Government Road transport Department property is involved and take anti-corruption measures."
10. Smt.Renuka submits that for seeking and taking illegal gratification, the disciplinary proceedings can always be initiated. She submits that even before enacting the provisions of the Prevention of Corruption Act, 1988, the Mysore Road Transport Limited has issued the Security Standing Order No.10 on 18.8.1983 (Annexure-R2). Clause 6(8) of the said Order reads as follows:
"6(8) Vigilance/Intelligence Cells should be set up by the Security Officers to ensure regular flow of credible information in respect of suspicious dealings and other undesirable activities by 9 unscrupulous staff and arrange for traps to be laid to apprehend such corrupt/dishonest officials. On getting credible information in respect of corrupt employees the Security Officers should verify the liabilities and assets of such employees to ascertain whether they possess assets disproportionate to their known sources of income."
11. She submits that what is being initiated is the in-house disciplinary proceedings. If the Managements of K.S.R.T.C. and B.M.T.C. have to file the complaint, it is then that they may have to go to the Lokayukta Police. She submits that for the reasons best known to themselves, the petitioners did not challenge the enquiry officer's order, dated 03.3.2014 negativing the petitioners' contention that the disciplinary proceedings are without jurisdiction. It is only on the filing of the objections by the respondent Nos. 2 to 6 that the petitioners have chosen to raise the challenge to the said order by amending their writ petitions.
12. Smt.B.P.Radha, the learned Government Pleader appearing for the respondent No.1 submits that earlier there was some confusion as to whether the trap can be laid by the Security 10 and Vigilance Department of K.S.R.T.C.; it is now made clear by the Government by issuing a subsequent letter to the effect that the said Department has the power to lay the trap.
13. In the course of rejoinder, Sri Kashinath submits that the proceedings in respect of the charge Nos. 1 and 2 are absolutely without the authority of law. Charge No.3 is only incidental to charge Nos.1 and 2.
14. Sri Kashinath submits that by the operation of Regulation 39 of the said Regulations, the earlier Standing Orders stand repealed. The provisions contained in the said Regulation are as follows:
"39. Repeal and savings:- The Mysore Government Road Transport Department Standing Orders, the B.T.S. Standing Orders, the Bombay State Road Transport Employees' Service Regulations, the Hyderabad Civil Services (Classification, Control and Appeal) Rules and the Rules contained in the Nizam's State Railways Establishment Code which were adopted by the Corporation in its Resolution No.8 in so far as they relate to Conduct and Disciplinary proceedings and 11 imposition of penalties, provided for in these Regulations, are hereby repealed."
15. He submits that the very initiation of the disciplinary proceedings is a nullity in the absence of any law, rule, regulation and clarification from the Government.
16. He submits that the petitioners are all appointed by the K.S.R.T.C., which alone is their employer and hence their disciplinary authority. The issuance of the articles of charges by the B.M.T.C. to the petitioner Nos. 3 and 6 is without jurisdiction.
17. The learned counsel submits that even assuming, but without admitting, that the Standing Order No.10/1983, dated 19.8.1983 (Annexure-R2) is applicable for the petitioners, then also the Security and Vigilance Department is not authorized to conduct the trap; it can at the most 'arrange' for the traps. He submits by relying on the Apex Court's judgment in the case of MARATHA UNIVERSITY vs. BALWANT RAO CHAVAN reported in 12 AIR 1989 SC 1582 that when a Statute prescribes a particular body to exercise power, it must be exercised only by that body.
18. He submits that B.M.T.C. itself has not framed any conduct and discipline regulations. Therefore, the disciplinary proceedings conducted by its functionaries have no force of law. It is only the incorporated body, which can frame the regulations/guidelines.
19. Smt.Renuka submits that the grounds now being raised in the course of arguments are not at all taken in the memorandum of the writ petition. She submits that even when the petitioners have filed the amended petition, they did not choose to raise the fresh grounds. She submits that the respondents cannot be taken by surprise like this. Without prejudice to these submissions, she states that the conduct and discipline regulations framed by the K.S.R.T.C. are adopted by B.M.T.C. She submits that as per the circular, dated 22.10.1999, certain disciplinary powers are delegated by the K.S.R.T.C. to B.M.T.C. and N.W.K.R.T.C. in respect of 13 certain classes of officers. She further submits that the officers of the Security and Vigilance Department are already given the special training in laying/conducting the traps.
20. The submissions of the learned counsel have received my thoughtful consideration. The first question that falls for my consideration is whether the issuance of the impugned articles of charges to the petitioner Nos.3 and 6 are without the authority of law? It is the case of the petitioner Nos.3 and 6 that though they are appointed by the KSRTC, the charge-sheet is issued by the BMTC. This ground is raised in the course of argumentation without there being a foundation either in the original writ petition or in the amended writ petition.
21. Nonetheless, I propose to examine the first question on merits. Admittedly, the said petitioners are on deputation to BMTC from KSRTC. When the said petitioners have been working in BMTC, they are completely under its control in every relevant sphere. The BMTC has become the temporary master of the said 14 petitioners and the said petitioners have become its temporary servants. The said petitioners have submitted themselves to the control and directions of BMTC. The BMTC became their special employer, although the KSRTC continues to be their general master. For the last several years, the BMTC has been instructing the said petitioners how to carry out the works assigned to them. It is the BMTC, which would be liable for the said petitioners' negligence. It is for the BMTC to satisfy itself that it is safe for it to keep the said petitioners in its employment. If the said petitioners are found to be guilty of the corruption charges, then it has to be for the KSRTC to act in accordance with its service regulations and impose the punishments. Alternatively, if the BMTC finds that the said petitioners are guilty of the charge, it may just repatriate the said petitioners to the parent organization or place them at the disposal of their disciplinary authority. But the BMTC cannot be asked not to hold the enquiry against the said petitioners.
22. In some cases, there can be plurality of masters as held by the Division Bench of this Court in the case of MUNDEVADI 15 (V.R.) v. STATE OF MYSORE reported in 1969(2) LLJ 460. The relevant part of the said judgment is extracted hereinbelow:
"There can be, in an appropriate case, a plurality of masters as there would be when a master places the services of his servant at the disposal of another, either on a particular occasion or during a particular period, and, the temporary employer assumes control over the lent servant or the lent servant submits himself to his direction and control. The master who lends the servant would be his general master and the borrower would become his special employer. The servant would then become pro hacvice the servant of the borrower."
23. In the above said reported case, the Division Bench has also referred to para 968 of Halsbury's Laws of England, 3rd Edition, 25th volume, page 505:
"968. Duty of temporary employer towards servant. - If the general master has parted for the time being with his rights of control as master and those rights have been assumed by the temporary employer, the latter has all the responsibilities attaching to the relationship of master and servant, for example, towards the servant."16
24. It is also profitable to refer to the Division Bench decision of Kerala High Court in the case of STATE OF KERALA AND OTHERS v. P. ACHUTHAN NAIR reported in 1977 Labour and Industrial Cases NOC 155. In the said case, a constable was on deputation from Central Service to Malabar Special Police. The action taken by the Commandant of Malabar Special Police on the constable's misconduct was held to be valid and not without jurisdiction.
25. On inviting the corruption allegation, while working for BMTC, the petitioner Nos.3 and 6 cannot contend with any rate of success that they are beyond the reach of BMTC's power of holding the enquiry. The right to hold the enquiry and discipline the servant stems from the master-servant relationship itself. Assuming that no service rules or regulations are framed, then the enquiry has to be held following the principles of natural justice. It is not the case of any of the petitioners in this case that the principles of natural justice are not being followed.
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26. There is yet another angle from which the first question can be examined. If two interpretations can be reasonably put on the anti corruption law; that interpretation which strengthens the fight against corruption has to be accepted in preference to the one which seeks to perpetuate it. In saying so I am fortified by the Apex Court's judgment in the case of SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND ANOTHER reported in (2012) 3 SCC 64. Paragraph No.68 of the said decision reads as follows:
"68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the 18 one that seeks to eradicate corruption to the one which seeks to perpetuate it."
27. Besides, mere illegality of an action would not by itself be enough for the Court to interfere, if it is found that such intervention would cause suffering to a sizeable section of the public. The writ jurisdiction is extraordinary, equitable and discretionary. While dealing with a writ petition, the court must exercise the discretion, taking into consideration the wide variety of circumstances, inter alia, the facts of the case, exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensure by such grant or refusal. The abundant support for this view is found in the decision of the Hon'ble Supreme Court in the case of RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION AND ANOTHER v. DIAMOND & GEM DEVELOPMENT CORPORATION LIMITED AND ANOTHER reported in (2013) 5 SCC 470. The petitioners are facing the grave charge of 19 demanding and accepting the bribe. Pushing such allegations under the carpet would lead to two serious consequences: (a) The employees of KSRTC and BMTC would be emboldened to indulge in corruption and get away with it on a mere technicality (b) It would send wrong signals to the society.
28. It is also profitable to refer to what the Apex Court has said in paragraph No.55 of its decision in the case of VINEET NARAIN AND OTHERS v. UNION OF INDIA AND ANOTHER reported in (1998) 1 SCC 226:
"55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of 20 law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law."
29. Thus viewed from any angle, the first question is thus liable to be answered against the petitioner Nos.3 and 6 and accordingly it is answered.
30. The second question that falls for my consideration is whether the trap can be laid by the Security and Vigilance Department of KSRTC and/or of BMTC?
31. The view pressed on me for the petitioners is that the respondent No.4 is not authorized to lay the trap; he can at the most 'arrange' for the traps. The Chambers Dictionary gives the meaning of the word 'arrange' as "to put into the proper or desired order." As per P.Ramanatha Aiyar's Law Lexicon also, the meaning of the word 'arrange' is "to make preparations; to place in a desired order." Going by the plain meaning of the word 'arrange', the specious argument that the respondent No.4 is not authorised to lay the trap on the petitioners is unacceptable. When the personnel of 21 Security and Vigilance Department of KSRTC or BMTC is equipped and trained to lay or conduct the trap, the petitioners cannot demand that the trap has to be laid only by an outside agency like Lakayukta Police.
32. The KSRTC or BMTC have to necessarily press the criminal law into motion, if they want to file the complaint. The proceedings in the instant case are mainly for ascertaining whether the petitioners have been maintaining absolute integrity. For ascertaining it, the KSRTC or BMTC need not be relegated to the Lokayukta or its Police. I answer the second question by holding that there is no legal impediment in laying the trap by the officers of the Security and Vigilance Department of the transport Corporation in question.
33. The third question that falls for my consideration is whether any firm cause of action has accrued to the petitioners?
34. Whether the service regulations and/or the standing order clothe the KSRTC and BMTC to hold the enquiry need not be 22 gone into at this stage. It is trite that ordinarily no writ lies against a charge-sheet or show cause notice. In saying so, I am fortified by the Apex Court's judgment in the case of UNION OF INDIA AND ANOTHER v. KUNISETTY SATYANARAYANA reported in AIR 2007 SC 906. It is held therein that a mere charge- sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party, unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry, the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies only when some right of a party is infringed. A mere show cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the said party can be said to have any grievance.
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35. The judgment of the Apex Court in the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS v. PRABHASH CHANDRA MIRDHA reported in (2012) 11 SCC 565 is also of immense guidance and value. The relevant paragraphs of the said judgment are extracted hereinbelow:
"8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide: The State of M.P. v. Bani Singh, State of Punjab. v. Chaman Lal Goyal, Registrar, Cooperative Societies v. Sachindra Nath Pandey; Union of India. v. Ashok Kacker; Prohibition & Excise Department v. L. Srinivasan, State of A.P. v. N. Radhakishan, Food Corporation of India. v. V.P. Bhatia, Supdt. of Police v. T. Natarajan, M.V. Bijlani v.24
Union of India., P.D. Agrawal v. SBI., and Government of A.P.. v. V. Appala Swamy.
12. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
36. In the light of the Hon'ble Supreme Court's decisions in the cases of Kunisetty Satyanarayana and Prabhash Chandra Mirdha (supra) and gravity of the alleged misconduct, I decline to interfere in the matter at this stage. The third question is also liable to be answered against the petitioners and accordingly it is answered. 25
37. In the result, these writ petitions are dismissed. Liberty is reserved to the petitioners (petitioner Nos.1, 3, 4 and 6) to raise whatever contentions they want to raise on the conclusion of the enquiry proceedings and if the disciplinary authority proposes to impose any punishment on them. Further, as ordered in paragraph No.4 supra, the petitions in respect of the petitioner Nos.2 and 5 are dismissed as having become infructuous reserving the liberty to them to challenge the dismissal orders in appropriate proceedings.
38. No order as to costs.
Sd/-
JUDGE Cm-/MD