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2016 DIGILAW 528 (KAR)

STATE OF KARNATAKA v. SHIVANAND B. MAGADUM

2016-07-11

B.SREENIVASE GOWDA, JAYANT PATEL

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ORDER : The present petition is directed against the order dated 20.01.2015 passed by the Karnataka Administrative Tribunal, (hereinafter referred to as ‘the Tribunal’ for the sake of brevity), whereby the Tribunal for the reasons recorded in the order has allowed the application and the impugned show cause notices and the charge memos are quashed with the liberty to initiate fresh proceedings against the delinquent officials in accordance with Rule 14-A of The Karnataka Civil Services (Classification, Control And Appeal), Rules, 1957 (hereinafter referred to as the ‘CCA Rules’ for short). 2. We have heard Mr. D. Nagaraj, learned AGA appearing for the petitioners and Prof. Ravivarma Kumar, Senior Counsel with Sri J. Prashant, learned Counsel appearing for the respondents. 3. The contention raised on behalf of the petitioners by the learned AGA was that all employees were the Officers of the Government and therefore the Government had power to initiate enquiry under Rule 11, after receipt of the investigation report from Lokayukta. He submitted that the provisions of Rule 14A (2)(a)(iii) uses the word “may” and therefore discretion is left to the Government to direct inquiry into the cases which have been investigated by the Lokayukta. But as per the learned AGA, either the inquiry may be entrusted to Lokayukta or Upa Lokayukta or the Government itself may hold an enquiry. As per the learned AGA, high power committee was constituted and thereafter the show cause notices and the charge memos are issued under Rule 11 of the CCA Rules. He submitted that therefore the Tribunal has committed an error in holding that the inquiry has to be initiated by Lokayukta or Upa Lokayukta, as the case may be, in a matter where investigation is made by Lokayukta or Upa Lokayukta, as the case may be. 4. The learned AGA further submitted that even if the Tribunal was to find that fresh enquiry was required to be initiated by Lokayukta or Upa Lokayukta, as the case may be, the Tribunal ought not to have made any further observations or for the merits of the charge memo. He submitted that certain observations are made by the Tribunal which even if considered, it may prejudice the inquiry if at all to be held by Lokayukta or Upa Lokayukta. The learned AGA submitted that therefore this Court may interfere. 5. He submitted that certain observations are made by the Tribunal which even if considered, it may prejudice the inquiry if at all to be held by Lokayukta or Upa Lokayukta. The learned AGA submitted that therefore this Court may interfere. 5. Whereas the learned Senior Counsel appearing for the respondents submitted that the view taken by the Tribunal as per Rule 14A (2)(a) (iii) of the CCA Rules, is correct and can be said as with the support of law. Once the statutory rules are framed as CCA Rules, it is binding to the Government and the Government cannot backout by entrusting the enquiry to any high power committee. The learned Senior Counsel further submitted that the observations made by the Tribunal on the aspects of merits of the notice for enquiry and the charge memos cannot be said to be unwarranted and he therefore submitted that the Tribunal has passed the order in accordance with law, which may not be interfered with by this Court. 6. The learned Senior Counsel further submitted that the observations made by the Tribunal on the aspects of merits of the notice for enquiry and the charge memos cannot be said to be unwarranted and he therefore submitted that the Tribunal has passed the order in accordance with law, which may not be interfered with by this Court. 6. Rule 14-A(1) and (2) (a) to (e) of the CCA Rules, reads as under: “Rule 14-A substituted by GSR 128, dated 7-5-1986, w.e.f 7-5-1986., [14.A. Procedure in cases entrusted to the Lokayukta: (1) The provisions of sub-rule (2) shall, notwithstanding anything contained in Rules 9 to 11A and 13, be applicable for purposes of proceeding against Government Servants whose alleged misconduct has been investigated into by the Lokayukta or an Upalokayukta either under the provisions of the Karnataka Lokayukta Act, 1984 or on a reference from Government, Inserted by Notification No.DPAR 9 SDE 92, dated 21-1-1997 and shall be deemed to have been inserted w.e.f. 15-1-1986., [or where offences alleged against them punishable under the Prevention of Corruption Act, 1947, or the Prevention of Corruption Act, 1988 has been investigated by the Karnataka Lokayukta Police before 21st day of December, 1992.] (2) (a) Where an investigation into any allegation against: (i) a member of the State Civil Services Group ‘A’ or Group ‘B’; or (ii) a member of the State Civil Services Group ‘A’ or Group ‘B’ and a member of the State Civil Services Group ‘C’ or Group ‘D’; or (iii) a member of the State Civil Services Group ‘C’ or Group ‘D’, Substituted for the words “the Lokayukta or the Upalokayukta is of the opinion” by Notification No.DPAR 9 SDE 92, dated 21-1-1997 and shall be deemed to have been inserted w.e.f.15-1-1986., [the Lokayukta or the Upalokayukta or, (before the 21-12-1992), the Inspector-General of Police of the Karnataka Lokayukta Police is of the opinion], that disciplinary proceedings shall be taken, he shall forward the record of the investigation along with his recommendation to the Government and the Government, after examining such record, may either direct an inquiry into the case by the Lokayukta or the Upalokayukta or direct the appropriate Disciplinary Authority to take action in accordance with Rule 12. (b) Where it is proposed to hold an inquiry into a case under clause (a) the enquiry may be conducted either by the Lokayukta or the Upalokayuka, as the case may be, or an officer on the staff of the Lokayukta authorised by the Lokayukta or the Upalokayukta to conduct the inquiry: Provided that the inquiry shall not be conducted by an officer lower in rank than that of Government servant against whom it is held: Provided further that an inquiry against a Government Servant not lower in rank than that of a Deputy Commissioner shall not be conducted by any person other than the Lokayukta or the Upalokayukta or an Additional Registrar (Inquiries): Provided also that an officer on the staff of the Lokayukta authorised to conduct an inquiry under clause (b) shall not have the power to appoint another officer to conduct it wholly or in part. (c) The Lokayukta, the Upalokayukta or the officer authorised under clause (b) to conduct an inquiry shall conduct it in accordance with the provisions of Rule 11 insofar as they are not inconsistent with the provisions of this rule and for that purpose shall have the powers of the Disciplinary Authority referred to in the said rule. (d) After the inquiry is completed, the record of the case along with the findings of the Inquiring Officer and the recommendation of the Lokayukta or the Upalokayukta as the case may be, shall be sent to the Government. (e) On receipt of the record under clause (d) the Government shall take action in accordance with the provisions of, The words, brackets and figures “sub-rule (21) and sub-rule (23) of Rules 11 and” omitted by Notification No.DPAR 37 SDE 2001, dated 26-12-2001, w.e.f. 31-12-2001” [x x x x x] Rule 11A and in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties specified in Rule 8.” 7. Rule 14-A of the CCA Rules, has been substituted by GSR 128 dated 07.05.1986 with effect from 07.05.1986. Therefore, in order to further examine the aforesaid provision, we had called upon the learned AGA to produce the provisions of Rule 14-A prevailing then i.e. prior to 07.05.1986. 8. As per the earlier provision of Rule 14-A(1) from Clause (a) to (e) were as under: 14-A. Special Procedure in certain cases. Therefore, in order to further examine the aforesaid provision, we had called upon the learned AGA to produce the provisions of Rule 14-A prevailing then i.e. prior to 07.05.1986. 8. As per the earlier provision of Rule 14-A(1) from Clause (a) to (e) were as under: 14-A. Special Procedure in certain cases. (1) The following provisions shall, notwithstanding anything contained in Rules 9 to 11-A and 13 be applicable for purposes of proceedings against Government Servants whose alleged misconduct has been investigated into by the Vigilance Commission either suo moto or on a reference from Government or from any other authority, viz. (a) where on investigation into any allegation against- (i) a member of the State Civil Services Class I or II; or (ii) a member of the State Civil Services Class I or II and a member of the State Civil Services Class III or IV; or (iii) a member of the State Civil Services Class III or IV in respect of an allegation of a serious nature; the Vigilance ** Commissioner or any officer of the Vigilance Commission authorized by him in writing under sub-rule (2) of Rule 6 of the Karnataka State Vigilance Commission Rules, 1965 is of the opinion that disciplinary proceedings shall be taken, he shall forward the record of investigation along with his recommendations to the Government, and the Government, after examining such records, may either direct an inquiry into the case by the Vigilance Commission or direct the appropriate disciplinary authority to take action in accordance with Rule 12; (b) Where the Vigilance Commission is directed to hold an inquiry into a case under clause (a), the inquiry may be conducted either by the Vigilance Commissioner or by an officer of the Directorate of Vigilance authorized by the Vigilance Commissioner to conduct the inquiry; Provided that the inquiry of a case relating to a Government Servant shall not be conducted by an officer lower in rank than that of such Government Servant; Provided further that the inquiry of a case relating to a Government Servant not lower in rank than that of Deputy Commissioner shall not be conducted by any person other than the Vigilance Commissioner or the head of the Directorate of Vigilance, or a Deputy Director of Vigilance (Judicial) of the Directorate of Vigilance. (c) the Vigilance Commissioner or the officer authorized to conduct the inquiry under clause (b) shall conduct the inquiry in accordance with the provisions of sub-rule (2) to (20) and sub-rule (23) of Rule 11 and for the purposes of conducting such inquiry, shall have the power of the disciplinary authority referred to in the said rule”. (d) After the inquiry is completed the records of the case with the findings of the inquiring officer and the recommendations of the Vigilance Commissioner shall be sent to the Government ; Provided that where the head of the Directorate of Vigilance is appointed as or to act as the Vigilance Commissioner it shall not be necessary in respect of inquiries completed by him to forward the recommendations of the Vigilance Commissioner”. (e) On receipt of the records under clause (d), the Government shall take action in accordance with the provisions of sub-rule (21) and sub-rule (23) of Rule 11 and Rule 11A and in all such cases the Government shall be the disciplinary authority competent to impose any of the penalties specified in Rule 8.” 9. If the contention is further examined, it appears that earlier in case of the investigation made by the Karnataka State Vigilance Commission, the inquiry was to be entrusted to the Vigilance Commission but if the action was to be taken in accordance with Rule 12, which is for minor penalty, such enquiry was to be held by appropriate disciplinary authority. Further, if the provisions of present Rule 14-A (2) (a) (iii) of the CCA Rules, prevailing now is considered in the context to and in comparison with Rule 14-A (1)(a)(iii) prevailing then, it appears that in place of “Vigilance Commission or the Karnataka State Vigilance Commission”, “Lokayukta or the Upa Lokayukta” is substituted. It may also be recorded that during the course of hearing, we had called upon the learned AGA to show the material for object and reasons for substitution of Rule 14-A w.e.f. 07.05.1986 and from such material, it has transpired that since the State Vigilance Commission was abolished and the Lokayukta was constituted by Karnataka Lokayukta Act, 1984, the amendment was suggested and new Rule 14-A has been substituted. 10. 10. It further appears to us that the language under Rule 14-A (2) (iii) of the CCA Rules, though uses the word “may” but further uses the word “either” to direct an inquiry into the case by Lokayukta or Upa Lokayukta or to direct the appropriate authority to take action in accordance with Rule 12. Be it recorded that in case of major penalty, the inquiry is contemplated as per Rule 11 of CCA Rules. Whereas if it is for minor penalty, the inquiry and the action would be under Rule 12 of the CCA Rules. Therefore, in case of major penalty or holding of inquiry under Rule 11 of the CCA Rules, if the investigation is made by Lokayukta or Upa Lokayukta or Inspector General of Police of Lokayukta and the report of investigation with the recommendation is forwarded to the Government, it would be required for the Government to direct entrustment of the inquiry to Lokayukta or Upa Lokayukta, in case of major penalty (for holding enquiry as per Rule 11 of the CCA Rules) or to direct appropriate disciplinary authority for minor penalty (in accordance with Rule 12 of CCA Rules). 11. In the present case, inquiry is initiated under Rule 11 of the CCA Rules. Further it has come on record that the investigation was made by Lokayukta under the Lokayukta Act, and the report and the recommendations are forwarded to the Government. The Government has also found that it is a case for initiation of inquiry for major penalty and therefore inquiry is ordered under Rule 11 of the CCA Rules. But such inquiry was required to be entrusted as per the observations made hereinabove to Lokayukta or Upa Lokayukta, as the case may be and not to any disciplinary authority or any socalled high power committee. The decision on the part of the Government for getting the inquiry undertaken under Rule 11 of the CCA Rules, in a case where the investigation is made by Lokayukta and report has been forwarded by the Lokayukta to the Government, could be said as in contravention to Rule 14A (2)(a)(iii) of the CCA Rules and hence the initiation of the inquiry including the charge memos forwarded, both can be said to be without any authority in law by the so-called high power committee. 12. 12. If the aforesaid is considered, it cannot be said that the Tribunal has committed any error in making observations at para9, whereby it is concluded that since the inquiry was to be taken up by Lokayukta only, the impugned charge memo for major penalty, proceedings under Rule 11 dated 28.09.2011 issued by the first respondent cannot be sustained. Hence, we find that no fault can be found to the observations made by the Tribunal to that extent. 13. However, there is substance in the contention raised by the learned AGA to the extent that the Tribunal after having found that the charge memo for major penalty could not be sustained in the eye of law, it ought not to have made any further observations for the merits of the charge memo or the mode and the manner of holding enquiry may be jointly or severally against the applicants before the Tribunal. 14. The learned Counsel for the respondents did submit that the Tribunal found that the charge memos could not be sustained even on merits and therefore, has made observations which may not be set at naught by this Court. 15. In our considered view, once the Tribunal found that the charge memos for the major penalty under Rule 11 of CCA Rules, could not be sustained in the eye of law or the inquiry was to be taken up by Lokayukta only, it was required for the Tribunal to leave it at that for the simple reason that any observations made by the Tribunal on the merits of the charges may prejudice the rights of the parties including the Government in the inquiry which may be initiated by Lokayukta. 16. Hence, we find that the observations made by the Tribunal to that extent on the merits of the charge memo other than the question of authority on the part of the Government to issue charge memos for the major penalty under Rule 11 of CCA Rules, cannot be sustained and hence the same deserves to be set aside but with the observations that all rights and contentions of the parties shall remain open in the event the inquiry is entrusted by the Government to Lokayukta and the Lokayukta further issues the charge memos for initiation of the inquiry under Rule 11 of CCA Rules to the delinquent officials/applicants herein. 17. 17. In view of the aforesaid observations and discussion, the impugned order passed by the Tribunal is not interfered with so far as it relates to holding that the inquiry ought to have been entrusted to Lokayukta only as per Rule 14A (2)(a)(iii) of CCA Rules. However, any other observations made by the Tribunal in the impugned order for merits of the charge memo, shall remain expunged. It is also observed that in the event the inquiry is entrusted to Lokayukta and the Lokayukta decides to issue charge memo, the rights and contentions of both the sides at the appropriate stage shall remain open. The petition is disposed of in terms of the aforesaid order. No order as to costs.