Karnataka High Court
Sri K S Nanjegowda vs The State Of Karnataka on 1 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2076
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO. 30375/2010 (S-DIS)
C/W
WRIT PETITION NO. 35383/2010 (S-DIS)
IN W.P.NO. 30375/2010
BETWEEN:
SRI. K.S. NANJEGOWDA,
AGED ABOUT 49 YEARS,
S/O LATE SUBBARAYAPPA,
WORKING AS TAX INSPECTOR,
RESIDING AT NO.892, 2ND MAIN,
16TH CROSS, 5TH BLOCK,
VIDYARANYAPURAM, BANGALORE ... PETITIONER
(BY SRI. S.B. MUKKANNAPPA, ADVOCATE
FOR M/S. S.B. MUKKANNAPPA AND ASSTS)
AND:
1. THE STATE OF KARNATAKA,
REPRESETNED BY ITS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA, DR.B.R. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE COMMISSIONER,
DIRECTOR OF MUNICIPAL
ADMINISTRATION, V.V.TOWER,
DR.B.R. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2
3. THE COMMISSIONER,
BRUHATH BANGALORE MAHANAGARA
PALIKE, N.R. CIRCLE, BANGALORE.
... RESPONDENTS
(BY SRI. LAXMINARAYAN, AGA FOR R-1 & R-2.
SRI. N.K. RAMESH ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER OF DISMISSAL DATED
8.9.2010 PASSED BY THE 3RD RESPONDENT VIDE
ANNEXURE-G TO THE WRIT PETITION AND ETC.,
IN W.P.NO. 35383/2010
BETWEEN:
SRI. N.G. NATARAJ,
AGED ABOUT 47 YEARS,
S/O N.S. GOVINDA SETTY,
NO 203, 19TH CROSS,
BEHIND RESIDENCY CONVENT,
VIRATNATGAR, BOMMANAHALLI,
BANGALORE - 560 068 ... PETITIONER
(BY SRI. S.P. RAMESHA, ADVOCATE
FOR M/S. S.B. MUKKANNAPPA AND ASSTS)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA, DR.B.R. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE COMMISSIONER,
DIRECTOR OF MUNICIPAL ADMINISTRATION,
V.V. TOWER, DR.B.R. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
3. THE COMMISSIONER,
BRUHAT BANGALORE MAHANAGARA
PALIKE, N.R. CIRCLE, BANGALORE.
... RESPONDENTS
(BY SRI. LAXMINARAYAN, AGA FOR R-1 & R-2.
SRI. I.G. GACHCHINAMATH, ADVOCATE FOR R-3)
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER OF DISMISSAL DATED
29.10.2010 PASSED BY THE 3RD RESPONDENT VIDE
ANNEXURE-G TO THE WRIT PETITION AND ETC.,
THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING THROUGH PHYSICAL HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Regard being had to the similitude in the controversy involved in the present cases, the Writ Petitions were analogously heard and by a common order, they are being disposed of by this Court.
2. In these two matters, petitioners services had been terminated/dismissed in the guise of their involvement in the alleged demand and acceptance of illegal gratification read with trap proceedings led by the office of the Karnataka Lokayukta on 08.09.2010 and 29.10.2010.
3. Brief facts of the case are:
- Petitioners were the employees of the respondent/BBMP. It is alleged by the 4 respondent/BBMP that petitioners were temporary workers/daily wagers. Consequently, their involvement in the alleged demand and acceptance of illegal gratification suffice to terminate/dismiss their service is in order, since they are not regular holder of any post so as to initiate disciplinary proceedings.
4. The respondent/BBMP counsel vehemently contended that DPAR Circular dated 24.11.2003 empowers the competent authority to impose fine or terminate/dismiss the daily wage employees without resorting to disciplinary proceedings like The Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (Hereinafter referred to as the 'Rules, 1957' for short). Thus, there is no infirmity in the order of termination/dismissal dated 08.09.2010 and 29.10.2010 (Annexure - G to the respective petitions).
5. Per contra, learned counsel for the petitioner resisted the contention of the respondent/BBMP 5 stating that if an employee is a daily wager or temporary appointee, no penal action like termination/dismissal of such employee in terms of allegations/misconduct/misdeeds or formal domestic enquiry is mandatory. It is further submitted that Rules, 1957 may not apply to the daily wager or temporary employee even otherwise, in order to determine whether temporary employee/daily wager has committed any misconduct or misdeed in the parent organization/department, formal domestic enquiry is required to be held so as to prove the alleged misconduct/charge. In support of the aforesaid contentions, learned counsel for the petitioner relied on the following decisions:
1. The Government of India v/s Dhanu.S.Rathod reported in ILR 2002 Kar 4911
2. W.P. No. 11977/2012 disposed of 30/05/2016 in Sadashivaiah v/s State of Karnataka & Ors
3. Managing Director, Uttar Pradesh Warehousing Corporation And Another v/s Vijay Narayan Vajpayee reported in 1980 (3) SCC 459 6
4. Nar Singh Pal v/s Union of India And Others reported in 2000 (3) SCC 588
6. Heard the learned counsel for the parties.
7. The core issue of in these petitions is, "Whether termination/dismissal of the petitioners could be ordered without holding domestic enquiry"?
8. The undisputed facts are that both petitioners were the temporary employees with the respondent/BBMP. While they were discharging the duties of the post held by them, they were alleged to have involved in trap proceedings led by the office of the Karnataka Lokayukta. The allegations are relating to alleged demand and acceptance of illegal gratification. In this backdrop, whether domestic enquiry is mandatory or not is required to be examined in these petitions. During pendency of these petitions, both the petitioners were acquitted in the criminal proceedings.
79. The respondent/BBMP relied on the aforesaid circular of the Government dated 24.11.2003 to contend that Rules, 1957 are not attracted so as to initiate enquiry. No-doubt the applicability clause of Rules, 1957 mandates that one should be a Government servant. However, the allegations are serious in nature, in such circumstances minimal domestic inquiry is warranted and not merely issuing notice and proceed to terminate service.
10. In the present case, Rules, 1957 is stated to have been adopted by the BBMP. Status of the employees is temporary or daily wagers, still having regard to the serious allegations leveled against the petitioners that they were involved in alleged demand and acceptance of illegal gratification and they were subjected to criminal proceedings. Having regard to the judicial pronouncements in the aforesaid four decisions, suffice that before taking any penal action against temporary employee or daily wager based on 8 the allegations/misconduct stated to have been committed, minimum requirement is to hold a domestic enquiry in order to prove the alleged allegations leveled against such of those employees.
Judicial pronouncements overrides the Government circular dated 24.11.2003. That apart, time and again, Courts have held that, if any penal action is taken against an employee on the allegations and if it is disputed by such an employee, it is mandatory to initiate domestic enquiry and conclude the same before taking any impugned action like termination/discharge.
11. The Constitutional Bench of the Apex Court in Delhi Transport Corporation vs D.T.C. Mazdoor Congress And Others. Reported in (1991) SCC (L&S) 1213 at paragraph 264,335,& 337 have held as under;
264. In Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421: 1975 SCC (L&S) 101:
(1975) 3 SCR 619 the Constitution Bench of this Court put a nail in the 9 coffin of the play of the private master's power to hire and fire his employees and held that Regulations or Rules made under a statute apply uniformly to everyone or to all members of the same group or class. They impose obligations on the statutory authorities who cannot deviate from the conditions of service and any deviation will be enforced through legal sanction of declaration by courts to invalidate the actions in violation of the Rules or Regulations.
The statutory bodies have no free hand in framing the terms or conditions of service of their employees. The Regulations bind both the authorities and also the public. The powers of the statutory bodies are derived, controlled and restricted by the statutes which create them and the Rules and Regulations framed thereunder. The statute, thereby fetters on the freedom of contract. Accordingly declaration was granted that dismissal or removal of an employee by statutory Corporation in contravention of statutory provision as void. Mathew, J. in a separate but concurring judgment held that a Public Corporation being the creation of a statute is subject to statutory limitation as a State itself. The preconditions of this Part II viz. that the corporation is created by statute and, the existence of power in the corporation is to invade a statutory right of the individual. Therefore, the governing power must be subject to fundamental statutory limitations. The need to subject the power centres to the control of the Constitution requires an expansion of 10 concept of State action. The duty of State is affirmative duty seeing that all essentials of life are made available to all persons. The task of State today is to make the achievement of good life both by removing obstacles in the path of such achievement and by assisting individual in realising his ideal of self- perfection. The employment under public corporation is a public employment and, therefore, the employee should have the protection which appertains to public employment. (emphasis supplied) The court must, therefore, adopt the attitude that declaration is a normal remedy for a wrongful dismissal in case of public employees which can be refused in exceptional circumstances. The remedy of declaration should be a remedy made an instrument to provide reinstatement in public sector. This principle was extended to numerous instances where the termination of services of the employees of a statutory corporation was affected in violation of the principles of natural justice or in transgression of the statutory rules etc. In Managing Director, U.P. State Warehousing Corporation v. Vinay Narayan Vajpayee, (1980) 3 SCC 459: 1980 SCC (L&S) 453:
(1980) 2 SCR 773 (SCR pp. 780 F to G and 783-C to 784-A (sic): SCC p. 466, para 14 and pp. 467-68, para 18) this Court held that statutory body cannot terminate the services of its employees without due enquiry held in accordance with the principles of natural justice.
The persons in public employment are entitled to the protection of Articles 14 11 and 16 of the Constitution, when the service was arbitrarily terminated. The question, therefore, is whether the statutory corporations are entitled to be invested with absolute freedom to terminate the services of its employees in terms of the contract of service.
335. It is undoubtedly true as contended by Sri Bhasin, learned counsel for the intervenor, that it is open to the authorities to terminate the services of a temporary employee without holding an enquiry. But in view of the march of law made, viz., that it is not the form of the action but the substance of the order is to be looked into, it is open to the court to lift the veil and pierce the impugned action to find whether the impugned action is the foundation to impose punishment or is only a motive. A larger bench of seven Judges of this Court in Shamsher Singh v. State of Punjab (1974) 2 SCC 831: 1974 SCC (L&S) 550:
(1975) 1 SCR 814 elaborately considered the question and laid down the rule in this regard. The play of fair play is to secure justice procedural as well as substantive. The substance of the order, the effect thereof is to be looked into.
Whether no misconduct spurns the action or whether the services of a probationer is terminated without imputation of misconduct is the test. Termination simpliciter, either due to loss of confidence or unsuitability to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bona fide 12 overall consideration of the previous conduct without trained with either mala fide or colourable exercise of power or for extraneous considerations. Such actions were upheld by this Court. The action must be done honestly with due care and prudence.
337. It is made clear that, as suggested by this Court in Hindustan Steel case (1984 Supp SCC 554: 1985 SCC (L & S) 260: (1985) 2 SCR 428) that it is for concerned (sic authority) to make appropriate rules or regulations and to take appropriate action even without resorting to elaborate enquiry needed consistent with the constitutional scheme. The correctness of the decision in Tulsiram Patel's case (1985) 3 SCC 398: 1985 SCC (L&S) 672: 1985 Supp 2 SCR 131 though was doubted in Ram Chander v. Union of India, (1986) 3 SCC 103: 1986 SCC (l&S) 383: (1986) 2 SCR 980, it is unnecessary to go into that question. For the purpose of this case it is sufficient to hold that proviso to Article 311(2) itself is a constitutional provision which excluded the applicability of Article 311(2) as an exception for stated grounds. It must be remembered that the authority taking action under either of the clauses (b) or
(c) to proviso are enjoined to record reasons, though the reasons are not subject to judicial scrutiny, but to find the basis of which or the ground on which or the circumstances under which they are satisfied to resort to the 13 exercise of the power under either of the two relevant clauses to proviso to Article 311(2) of the Constitution. Recording reasons itself is a safeguard for preventing to take arbitrary or unjust action. That ratio cannot be made applicable to the statutory rules.
12. Apex Court in D K YADAV vs J M A INDUSTRIES LTD., reported in (1993) 3 SCC 259 has held at paragraphs 11 and 12 as under:
11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice.
The aim of both administrative inquiry as well as the quasi-.judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-
14judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.
13. Further, this Court in SMT.
SHANTHALAKSHMI vs THE COMMISSIONER FOR SERICULTURAL DEVELOPMENT in Writ Petition No. 26851/1998 (S-KAT) decided on 24/06/2002 framed 15 three points for consideration. Point No. 3 relates to, "Whether the order of termination dated 21-1-1997 is valid?" Para 10 relates to Re-Point (iii) which is extracted hereunder for ready reference
10. In a series of decisions, the Supreme Court has held that even in the case of temporary employees or daily wage employees, an order of termination on the allegation of involvement in some criminal offence, cannot be treated as a simple order of retrenchment, but will have to be treated as an order of punishment and therefore should be preceded by a regular departmental enquiry [see decisions in OM PRAKASH GOEL vs HIMACHAL PRADESH TOURISM DEVELOPMENT CORPORATION [1991(3) SCC 291], NAR SINGH PAL vs UNION OF INDIA [2000(3) SCC 588] AND CHANDRA PRAKASH SHASHI vs STATE OF UTTARPRADESH [2000(5) SCC 152]. Even an ad-hoc employee cannot be discharged as a measure of punishment or by casting a stigma, without an enquiry [vide STATE OF UP VS KAUSHAL KISHORE SINGH [1991(1) SCC 691] AND HARDEEP SINGH vs STATE OF HARYANA (1987) SUPP. SCC 295].
In view of the aforesaid decisions, the impugned action of terminating the services of the petitioners is illegal and contrary to the principle laid in the 16 aforesaid decisions. Therefore, this Court is of the considered opinion that once the order passed by the respondents is stigmatic in nature, the petitioners will certainly not get any job in future on account of stigmatic order. This Court is of the opinion that in all fairness, an opportunity of hearing should have been granted to the petitioners while terminating their services and thereafter, they should have taken appropriate action in accordance with law.
14. In the present case, it is not disputed that respondent/BBMP have not resorted to initiate any domestic enquiry before passing orders of termination/dismissal dated *08.09.2010 and *29.10.2010 respectively. Merely issuing notice for which petitioners have denied the alleged allegations, in such circumstances domestic inquiry is warranted.
15. Resultantly, the orders dated 08.09.2010 and 29.10.2010 vide Annexure - G to the respective petitions are quashed. The Writ Petitions are *Corrected vide Court Order Dated 02.11.2020 17 allowed. Liberty to initiate disciplinary proceedings is not warranted for the reasons that during pendency of these petitions, petitioners services were regularized. Faced with Lokayukta initiated disciplinary proceedings, which are the subject matter before this Court in W.P.Nos.61697/2016 and 48384/2017 and petitions are pending consideration.
With the aforesaid, both the petitions stand allowed.
Sd/-
JUDGE Brn