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2016 DIGILAW 241 (KAR)

S. v. Ramesh VS State of Karnataka

2016-03-08

BUDIHAL R.B., MOHAN M.SHANTANAGOUDAR

body2016
ORDER : The petitioner has called in question, (a) the report of Karnataka Upa-Lokayukta issued under Section 12(3) of Karnataka Lokayukta Act, 1984 dated 7.4.2015; (b) the order dated 12.6.2015 passed by the first respondent State Government; and (c) the Articles of Charge dated 23.7.2015 issued by the second respondent Karnataka Lokayukta against the petitioner. 2. Based on the allegation that the petitioner has permitted an unauthorised and illegal construction in property bearing No. 1/1A, Rathna Complex, Byadarahalli, Magadi Main Road, Bangalore, complaint came to be lodged against the petitioner on 13.10.2010 before Karnataka Lokayukta; the complaint reveals that the petitioner while working as Assistant Executive Engineer, Herohalli Subdivision under Bruhat Bangalore Mahanagara Palike (‘BBMP’ for short) during the period 5.3.2010 to 26.5.2010, permitted an unauthorised and illegal construction as mentioned supra. The Statement of Objections were filed by the petitioner before the Karnataka Upa-Lokayukta; however, Upa-Lokayukta after conducting investigation, submitted the report dated 7.4.2015 under Section 12(3) of Karnataka Lokayukta Act, 1984 to the State Government with the recommendation to initiate action against the petitioner and similarly situated other officials. The State Government passed the order dated 12.6.2015 vide Annexure-A entrusting the Disciplinary Enquiry to the Karnataka Upa-Lokayukta, to be held against the petitioner and others. Pursuant to the said order dated 12.6.2015, the Articles of charge are framed by the Karnataka Upa-Lokayukta against the petitioner and others on 23.7.2015 vide Annexure-B. All these orders are called in question in this writ petition. 3. Learned counsel for the petitioner submits that the petitioner is basically an employee of Bangalore Water Supply and Sewerage Board (‘BWSSB’ for short) and he is not an employee of the Urban Development Authority or BBMP and therefore, Karnataka Lokayukta has no jurisdiction to conduct the enquiry and it is only the BWSSB, who has to conduct the enquiry; the State Government has mechanically passed the order dated 12.6.2015 accepting the investigation report of Upa-Lokayukta and entrusting the matter for disciplinary enquiry to Karnataka Upa-Lokayukta; certain other employees against whom similar allegations were made are not proceeded with; the enquiry is sought to be held in respect of the alleged act after the petitioner demitted the office at BBMP. 4. All the aforementioned submissions made by the learned counsel for the petitioner cannot be accepted. It is not in dispute that the petitioner is an employee of BWSSB. 4. All the aforementioned submissions made by the learned counsel for the petitioner cannot be accepted. It is not in dispute that the petitioner is an employee of BWSSB. It is also not in dispute that the petitioner was deputed to work as Assistant Executive Engineer under BBMP in Herohalli Subdivision from 5.3.2010 to 26.5.2010. Undisputedly, the petitioner has discharged his duties as Assistant Executive Engineer under BBMP during the said period. Within the said period only, the alleged illegality is committed by the petitioner. The unauthorised or illegal construction was allegedly permitted by the petitioner while he was working as Assistant Executive Engineer under BBMP during relevant point of time. 5. Learned counsel for the petitioner relying on the Judgment of this Court in the case of S.V. RAMESH vs. STATE OF KARNATAKA {2015(2) AKR 580} submits that the order entrusting the disciplinary proceedings to the Upa-Lokayukta is invalid inasmuch as the Government has no power in respect of taking disciplinary action against the employees of BWSSB. Thus according to him, the issuance of order by the Government and framing of articles of charge by the enquiring authority is without jurisdiction. 6. It is no doubt true that the facts in the case of S.V. Rameshcited supra are exactly similar to the facts on hand. In the said matter also, the employee of BWSSB was deputed to work in BBMP and while working in BBMP certain allegations were made and ultimately investigation was conducted and report was submitted by Lokayukta under Section 12(3) of the Lokayukta Act to the State Government. In turn the State Government on examination of the material, entrusted the disciplinary proceedings to the Upa-Lokayukta under Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 {‘CCA Rules’ for short). Hence it is clear that the facts contained in the case of S.V. Rameshcited supra and facts contained in the matter on hand are one and the same. However with respect, we disagree with certain reasons assigned and the conclusion arrived at by the learned Single Judge in the case of S.V. Rameshcited supra. 7. Under Section 124 of the BWSSB Act, 1964 all Officers and servants of the Board shall be deemed to be public servants within the meaning of Section 21 of the IPC and the Prevention of Corruption of Act, 1947. 7. Under Section 124 of the BWSSB Act, 1964 all Officers and servants of the Board shall be deemed to be public servants within the meaning of Section 21 of the IPC and the Prevention of Corruption of Act, 1947. The words, “State Government” and “Government” in Section 161 of the IPC (as it existed prior to amendment of IPC of the year 2013 i.e., prior to 3.2.2013) shall for the purposes of sub-section (1) of Section 124 of the BWSSB Act be deemed to include the Board. Thus it is clear from Section 124 of the BWSSB Act that the Officers of BWSSB are treated as public servants within the meaning of Sections 21 and 161 of IPC (prior to amendment as mentioned supra) as well as under the provisions of Prevention of Corruption Act (after amendment of IPC w.e.f. 3.2.2013). 8. The Notification bearing No. SWL.72.LBW.82 dated 12th October 1982 issued by the Government of Karnataka states that the Karnataka Civil Service Rules etc., are adopted by BWSSB. It is made clear in the very Notification that BWSSB shall follow Karnataka Civil Service Rules etc., till the service regulations of BWSSB are formulated. Notification No.BWSSB/CAOS/112/Est1/4163/200506 dated 1.3.2006 issued by BWSSB discloses that the Board has accorded approval to delegate to the Chairman of the Board the power to impose major penalties as specified in Rule 8(v) to (viii) of CCA Rules on the employees holding posts for which the Chairman is the Appointing Authority. In view of the aforementioned Notifications, it is evident that CCA Rules are applicable to BWSSB employees also for the purposes of conducting investigation and disciplinary enquiry. 9. Under Rule15 of the CCA Rules, where the services of the Government servant are lent to local or other authority (i.e., the borrowing authority), the borrowing authority shall have the powers of the Appointing Authority for the purposes of placing an employee under suspension and of the Disciplinary Authority for the purpose of taking disciplinary proceedings against him. Proviso to sub-rule (1) of Rule 15 of the CCA Rules further states that the Borrowing Authority shall not take any disciplinary proceedings against such servant without prior approval of the Lending Authority (in this case ‘BWSSB’). Proviso to sub-rule (1) of Rule 15 of the CCA Rules further states that the Borrowing Authority shall not take any disciplinary proceedings against such servant without prior approval of the Lending Authority (in this case ‘BWSSB’). However we find that sub-Rule 2B of Rule 15 of the CCA Rules has got overriding effect and the same reads thus: Rule 15 (sub-rule 2B) of CCA Rules (2B) Notwithstanding anything contained in these rules: (i) the Government in Urban Development Department, in respect of Government Servant holding a Group ‘A’ or ‘B’ post whose services are lent to City Municipal Corporation by an order issued by the Government in Urban Development Department under the Karnataka Municipal Corporations Act, 1976; (ii) the Commissioner, City Municipal Corporation in respect of a Government servant holding a Group ‘C’ or Group ‘D’ post whose services are lent to the City Municipal Corporation, shall have the powers of the Appointing Authority for placing such Government servant under suspension and of the Disciplinary Authority for the purpose of taking a disciplinary proceedings against him and to impose any of the penalties specified in clauses (i) to (iva) of Rule 8 on such Government servant. It shall not be necessary for the Government in Urban Development Department or the Commissioner to get the approval of, or to consult, the lending authority or the Appointing Authority as the case may be, before placing such Government servant under suspension or imposing on him any of the said penalties. From sub-Rule 2B of Rule 15 of CCA Rules mentioned supra, it is amply clear that the Government in Urban Development Department, in respect of Government servant holding a Group ‘A’ or ‘B’ post whose services are lent to City Municipal Corporation by an order issued by the Government under the Karnataka Municipal Corporations Act, 1976, shall have the powers of the Appointing Authority for placing Government servant under suspension and of the Disciplinary Authority for the purpose of taking a disciplinary proceedings against him and to impose any of the penalties specified in clauses (i) to (iva) of Rule 8 on such Government servant. It shall not be necessary for the Government in Urban Development Department or the Commissioner to get the approval of, or to consult the lending authority or the Appointing Authority as the case may be, before placing such Government servant under suspension or imposing on him any of the said penalties. 10. Rule 14A of the CCA Rules states that the provisions of sub-rule (2) of Rule 14A shall, notwithstanding anything contained in Rules 9 to 11A and 13 of CCA Rules, be applicable for purposes of proceeding against Government servants whose alleged misconduct has been investigated into by the Lokayukta or an Upa-Lokayukta either under the provisions of the Karnataka Lokayukta Act or on reference from Government. Sub-rule (2) of Rule 14A deals with investigation and enquiry by Lokayukta or Upa-Lokayukta. A reading of Rule 14A of CCA Rules in its entirety makes it further clear that Lokayukta or Upa-Lokayukta may conduct investigation and enquire into the allegations made against the Government servant and after completion of the enquiry, the record of the case alongwith the findings of the Enquiry Officer and recommendation of the Lokayukta or Upa-Lokayukta shall be sent to Government. 11. In the matter on hand, the action has been taken under the provisions of the Karnataka Lokayukta Act based on the complaint lodged under Section 9 of the Karnataka Lokayukta Act. 12. It would be beneficial to refer to the provisions of the Karnataka Lokayukta Act. Section 2(12) of the Karnataka Lokayukta Act defines “public servant”. Section 2(12)(g) is relevant for the purpose of this case which reads thus: 2(12) “Public Servant” means a person who is or was at any time. (a) to (f) xxx xxx xxx xxx (g) a person in the service or pay of. Section 2(12) of the Karnataka Lokayukta Act defines “public servant”. Section 2(12)(g) is relevant for the purpose of this case which reads thus: 2(12) “Public Servant” means a person who is or was at any time. (a) to (f) xxx xxx xxx xxx (g) a person in the service or pay of. (i) a local authority in the State of Karnataka; (ii) a statutory body or a corporation (not being a local authority) established by or under a State or Central Act, owned or controlled by the State Government and any other board or corporation as the State Government may, having regard to its financial interest therein, by notification, from time to time, specify; (iii) xxx xxx (iv) xxx xxx From the aforementioned definition, it is amply clear that a person in the service or pay of a statutory body or a Corporation established by or under a State or Central Act, owned or controlled by the State Government and any other Board or Corporation as the State Government may, having regard to its financial interest therein, by notification specify, shall be the public servant. Admittedly, in the matter on hand, the petitioner is in service and pay of the BWSSB, which is a statutory body established under the State Act. Thus he is a public servant for the purposes of Karnataka Lokayukta Act. 13. Section 7 of the Karnataka Lokayukta Act deals with matters which may be investigated by the Lokayukta and an Upa-Lokayukta. Sub-sections (1), (2) and (2A) of Section 7 of the Karnataka Lokayukta Act are relevant to the facts of this case, which read thus: 7. Matters which may be investigated by the Lokayukta and an Upa-lokayukta. (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or special approval of. Matters which may be investigated by the Lokayukta and an Upa-lokayukta. (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or special approval of. (a) xxx xxx (b) any other public servant holding a post or office carrying either a fixed pay, salary or remuneration of more than rupees twenty thousand per month or a pay scale the minimum of which is more than rupees twenty thousand, as may be revised, from time to time in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokayukta, recorded in writing, the subject of a grievance or an allegation. (2) Subject to the provisions of this Act, an Upa-lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upalokayukta (recorded in writing), the subject of a grievance or an allegation. (2A) Notwithstanding anything contained in subsections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government. From the aforementioned provisions, it is further clear that any public servant holding a post or office carrying salary or remuneration of more than rupees twenty thousand per month commits any illegality or irregularity, the Lokayukta or Upa-Lokayukta may investigate such matter involving any grievance or allegation. Lokayukta or an Upa-Lokayukta may also investigate any action if it is referred to him by the State Government. 14. Section 9 of the Karnataka Lokayukta Act contains the provisions relating to complaints and investigations against the public servant. As per the said provision, any person may make a complaint under the Karnataka Lokayukta Act to the Lokayukta or an Upa-Lokayukta. 14. Section 9 of the Karnataka Lokayukta Act contains the provisions relating to complaints and investigations against the public servant. As per the said provision, any person may make a complaint under the Karnataka Lokayukta Act to the Lokayukta or an Upa-Lokayukta. Where a complaint is made, and if the Lokayukta or Upa-Lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under Lokayukta Act, he shall forward a copy of the complaint to the concerned public servant and the Competent Authority concerned. In case of an investigation initiated suo moto by the Lokayukta or Upa-Lokayukta, the opinion recorded by him to initiate investigation will be forwarded to the public servant and the Competent Authority concerned. Thereafter the public servant will be afforded an opportunity to offer his comments on such complaint and thereafter the investigation will take place as prescribed under Section 9 of the Karnataka Lokayukta Act. 15. From the aforementioned discussion, it is amply clear that by virtue of the Notifications dated 12.10.1982 and 1.3.2006 mentioned supra, the CCA Rules are made applicable to the BWSSB officials also. Thus aforementioned provisions of CCA Rules clearly depict that disciplinary action can be initiated against the petitioner (BWSSB employee) without taking consent of BWSSB under the provisions of Lokayukta Act. Moreover as clarified by us in the aforementioned paragraphs, the petitioner falls within the definition of ‘public servant’ as found under Section 2(12)(g) of the Karnataka Lokayukta Act. Hence there is no hurdle for Upa-Lokayukta to investigate into the matter and to submit the report under Section 12(3) of the Karnataka Lokayukta Act. So also there is no bar for the State Government to entrust the matter for disciplinary enquiry to Upa-Lokayukta as per the provisions of Section 12(4) of the Karnataka Lokayukta Act. 16. In view of the above, we are unable to agree with the finding laid down by the learned Single Judge in the case of S.V. RAMESH vs. STATE OF KARNATAKA {2015(2) AKR 580} that Karnataka Lokayukta has no jurisdiction to investigate and enquire into such matters and hence such finding is liable to be overruled and accordingly, the same stands overruled. 17. The report of Upa-Lokayukta dated 7.4.2015 clearly reveals that the complaint came to be lodged against many persons. 17. The report of Upa-Lokayukta dated 7.4.2015 clearly reveals that the complaint came to be lodged against many persons. However, Upa-Lokayukta on conducting investigation in the matter has submitted the report to the State Government with a recommendation to initiate disciplinary action only against certain persons, who were allegedly involved in the incident. The employees, who were actually not involved in the incident were dropped from enquiry and such persons were exonerated. Therefore, it is not open for the petitioner to contend that he should not have been proceeded with, particularly when Upa-Lokayukta after conducting investigation, has concluded that prima-facie material is found against the petitioner. 18. So also there is no bar for conducting investigation/Disciplinary Enquiry in the matter, even after the petitioner’s transfer from one particular place. There is no hard and fast rule that the enquiry should be initiated by department, only when the petitioner was holding the office during particular period and at a particular place. The Rules permit that the enquiry may be conducted even after his transfer from one place to another. 19. Since the charges are already framed and enquiry is being proceeded with, it is open for the petitioner to contest the proceedings on facts. This Court, will not sit in appeal on the orders passed by the Upa-Lokayukta or the State Government on facts as if it is an Appellate Authority. In view of the same, we do not find any ground to interfere with the impugned report dated 7.4.2015, impugned order dated 12.6.2015 and impugned Articles of Charge dated 23.7.2015. Hence, the petition fails and the same stands dismissed accordingly.