Karnataka High Court
Sri Basavaraju M vs The Commissioner on 16 February, 2017
Author: G.Narendar
Bench: G.Narendar
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2017
BEFORE:
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION Nos.6012-6013/2017 (S-DIS)
BETWEEN
1. SRI BASAVARAJU M
S/O MUNISWAMY,
AGED ABOUT 43 YEARS,
WAS WORKING AS ASSISTANT
DIRECTOR OF TOWN PLANNING,
MAHADEVAPURA ZONE,
BRUHATH BANGALORE
MAHANAGAR PALIKE,
BANGALORE-560 048.
2. SRI RAMACHANDRAPPA H C
S/O CHOWDAPPA M,
AGED ABOUT 44 YEARS
WAS WORKING AS ASSISTANT ENGINEER,
MAHADEVAPURA ZONE,
BRUHATH BANGALORE
MAHANAGAR PALIKE,
BANGALORE-560 048 ... PETITIONERS
(BY MISS. SNEHA BHAGWAT-ADV FOR
SRI. M S BHAGWAT-ADV)
AND
1. THE COMMISSIONER
BRUHATH BANGALORE MAHANAGAR PALIKE,
N.R.SQUARE, BANGALORE-560 002
2. THE DEPUTY COMMISSIONER (ADMINISTRATION)
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R.SQUARE, BANGALORE-560 002 ... RESPONDENTS
(BY SRI. K N PUTTEGOWDA-ADV)
2
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 25.1.2017 ISSUED BY
RESPONDENT No.2 [ANNEXURE-A] AND GRANT ALL
CONSEQUENTIAL BENEFITS TO THE PETITIONERS.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard learned counsel for the petitioners.
2. The petitioners are before this Court calling in question the office order dated 25.01.2017, whereby the 2nd respondent has intimated the petitioners that they are under suspension in the light of the provisions of Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 [herein after referred to as "the K.C.S. Rules" for short] on account of their arrest and detention vide arrest memo dated 29.11.2016 by the Anti Corruption Bureau.
3. Learned counsel for the petitioners would contend that the order placing them under suspension, more particularly the 1st petitioner, is without the authority of law as it is passed by an officer, who is neither the Appointing 3 nor the Disciplinary Authority. She would draw the attention of this Court to Schedule II of the Karnataka City Corporation Employees (Conditions of Service) Rules 1991 and submits that the 1st petitioner, who is a Group-"A" Officer, can be placed under suspension only by the State Government and the order passed by the Deputy Commissioner [Administration], BBMP., is without authority of law and beyond his competence. She would further rely on the ruling of this Court reported in ILR 2001 Kar. 3092 [N.Munivenkatappa Vs. State of Karnataka and Another] and the Order of this Court passed in W.P. No.14817/2008, disposed of on 08.12.2008. She would contend that the order passed by the 2nd respondent is without competence and requires to be interfered with.
A perusal of the ruling of this Court reported in ILR 2001 Kar. 3092 would demonstrate that it was a case of initiation of disciplinary proceedings and consequential passing of order of suspension by the Commissioner of BBMP. The facts narrated therein do not disclose the arrest and detention of the petitioner in excess of 48 hours as in the instant case. Hence, the said ruling is inapplicable to the 4 facts on hand. In the second case i.e., W.P. No.14817/2008 disposed of on 08.12.2008, the petitioner therein has been placed under suspension merely on the recommendation of the Lokayuktha Police and this Court has held that the order of suspension is vitiated by non-application of the mind as it is merely based on the recommendation of the Lokayuktha Police. The facts of the said case and the circumstances resulting in suspension of the Officer are not akin to the facts and circumstances of the present case. In neither of the case, the provisions of sub-Rule (2) of Rule 10 K.C.S. Rules is invoked nor as this Court gone into and considerd the scope of the said provision. The said rulings are of no assistance to the petitioners herein.
She would further contend that this Court vide interim order dated 20.01.2017 has been pleased to stay the Complaint dated 29.11.2016 and the FIR in Crime No.22/2016 and the further investigation has also been stayed by this Court in W.P. Nos.2131-2132/2017 [GM-Res] filed by the petitioners herein.
5
4. Per contra, learned counsel for the respondents would contend that the suspension of the petitioners is by an act of statute and would place reliance on sub-Rule (2) of Rules 10 of the K.C.S. Rules. Sub-Rule (2) of Rules 10 of the K.C.S. Rules reads thus:
"A Government Servant shall be deemed to have been placed under suspension by an order of Appointing Authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours [emphasis supplied by me];
(b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation- The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this 6 purpose, intermittent periods of imprisonment if any, shall be taken into account."
5. A reading of sub-Rule (2) of Rules 10 of the K.C.S. Rules would clearly negate the contention of the petitioners 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 7 in (1992)4 Supreme Court Cases 711, while interpreting similar provisions of Central Civil Services (Classification, Control and Appeal) Rules, 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 established principle of interpretation favouring reading down of a statutory provision in order to avoid 8 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 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 9 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 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 10 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 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 11 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 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.12
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 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 13 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."
9. The Hon'ble Apex Court has been pleased to hold that this malaise of corruption has pervaded all walks of life and has to be weeded out and has to be dealt with an iron hand. It is seen that the petitioners have been arrested on a complaint of having indulged in corruption and they have been placed in detention for a period in excess of 48 hours.
In view of the above, the provision of sub-rule (2) of Rules 10 of K.C.S. Rules automatically comes into play and the provisions takes effect once the government servant's detention in custody extends beyond 48 hours. Hence, the challenge to Annexure-"A" on the premise that it is without authority of law is without substance. 14
The petition being devoid of merits is accordingly dismissed.
Sd/-
JUDGE.
SS-CT Ksm*