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2019 DIGILAW 1136 (KAR)

Devendra v. State Of Karnataka

2019-06-06

ASHOK G.NIJAGANNAVAR, K.N.PHANEENDRA

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JUDGMENT : K.N. Phaneendra, J. We have heard the arguments of learned counsel for the petitioner and learned Additional Government Advocate for respondent Nos.1 and 6, Sri Subhash Mallapur learned counsel for respondent Nos.2 and 3. Respondent Nos.4, 5 and 7 remained absent in spite of service of notice on them. 2. The factual matrix of the case are that, a person by name Gurappa and others have lodged a complaint to Lokayukta against the petitioner who was working as a Bill Collector in Suntanur Gram Panchayat during the year 2013. The said complaint was dated 24.06.2013 addressed to Chief Executive Officer, Zilla Panchayat, Gulbarga, wherein various allegations have been made against the petitioner that, he is not doing his work properly and he was very rude, he has been threatening other officers and members of the Gram Panchayat of Suntanur and he has also collecting money from the people of the village under guise of recovery of taxes of the houses and not depositing the said amount and etc. It is also alleged that, he has assaulted several members of the Gram Panchayat. Further, the said complaint was also addressed to Hon'ble Lokayukta. On the basis of which, the Lokayukta office registered a case in No.Compt/Uplok/GLB-1690/2013/DRE-3 dated 05.08.2016. After providing opportunity to the petitioner, the petitioner has filed his objections, denying all allegations made against him dated 25.02.2014 as per Annexure-B, the Lokayukta has also called for the report from CEO, ZP, Gulbarga and PDO of that Gram Panchayat. After receiving the report from CEO, ZP, and considering the objection statement, the Lokayukta has come to the conclusion that there is prima facie material against the petitioner. Therefore, vide Annexure-D dated 05.08.2016, the Hon'ble Upa-Lokayukta has recommended the competent authority to take action against the petitioner under the provisions of Karnataka Panchayath Raj Act for his removal from the post of Bill Collector. On the basis of said recommendation, the Government has passed the impugned order as per Annexure-H, which is dated 02.11.2016 removing the Bill Collector i.e. the petitioner from the service and also submitted a report to the Lokayukta. 3. On the basis of said recommendation, the Government has passed the impugned order as per Annexure-H, which is dated 02.11.2016 removing the Bill Collector i.e. the petitioner from the service and also submitted a report to the Lokayukta. 3. The learned counsel for the petitioner strenuously submits that no enquiry has been held as contemplated under the Karnataka Civil Service Rules (for short 'KCS Rules) though the petitioner is a public servant and no opportunity was given to the petitioner to cross-examine on the allegations made against him in the complaint. Further, no opportunity was given to him to produce oral and documentary evidence to substantiate his objections statement. Without following any procedure and without even following the principles of natural justice, the impugned order has been passed by the Government and the order was communicated to the petitioner through the Under Secretary to the Government as per Annexure-H. 4. Learned Additional Government Advocate and Sri Subhash Mallapur, learned counsel for respondent Nos.2 and 3 have submitted before this Court that, the petitioner though a public servant is not a Government servant therefore the KCS Rules are not applicable to him. Therefore, the Government has taken appropriate steps on considering the report of the Hon'ble Lokayukta and removed the petitioner from service. There is no need for following of any principles of natural justice in this regard, as the petitioner is not a Government servant and also separate procedure is provided under the Panchayat Raj Act itself. 5. On perusal of the above said factual aspects, the fact remains that after recommendation by the Lokayukta, the Government has not taken any action to initiate any proceedings against the petitioner in intimating charges levelled against him and calling upon the complainant to establish the allegations against the petitioner, nor any opportunity was given to the petitioner to cross examine the complainant and to lead his evidence. Such situation did not arise because the complainant himself was not called upon to prove the allegations made against the petitioner. 6. Such situation did not arise because the complainant himself was not called upon to prove the allegations made against the petitioner. 6. In this context, it is quite relevant to refer a decision of the Hon'ble Apex Court in the case of Union of India and Others vs. Ram Lakhan Sharma, (2018) 7 SCC 670 wherein the Hon'ble Apex Court has observed that: "Service Law - Departmental Enquiry - Natural justice - Non-compliance - Inference - When warranted - Statutory rules silent on aspect of natural justice concerned – Non-appointment of Presenting Officer, and Enquiry Officer himself leading examination-in-chief of prosecution witnesses - Statutory Rules are does not provide any specific rules in such an eventuality - When statutory rules are silent with regard to applicability of any facet of principles of natural justice, applicability of principles of natural justice which are not specifically excluded in statutory scheme are not prohibited and can be made applicable in given case to advance cause of justice. In such an eventuality, the principles of natural justice have to be followed." 7. It is also worth to refer to another decision in the case of Director, Aryabhatta Research Institute of Observational Sciences (ARIES) and Another vs. Devendra Joshi and Others, (2018) 15 SCC 73 wherein the Hon'ble Apex Court has observed that: "The termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish delinquent employee and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases." 8. In yet another decision, the Apex Court in the case of State of Uttaranchal and Others vs. Kharak Singh, (2008) 8 SCC 236 has observed that: "In Departmental enquiry, the copy of the allegations made against the person has to be furnished and objections to be called and on the basis of which, the charges have to be framed and an opportunity should be given to lead evidence and afterwards appropriate orders to be passed by the disciplinary authority." 9. In fact in this particular case, even accepting that the bill collector i.e., the petitioner is not a Government Servant but admittedly is a public servant. Further, though the KCS Rules are not applicable but, Karnataka Gram Swaraj and Panchayat Raj Act (for short 'Panchayat Raj Act') is exclusively applicable for following principles of natural justice. The provision under Section 113(3) of the Panchayat Raj Act deals with the appointment and control of employees, which reads as under: "Appointment and control of employees.- (1) Subject to the provisions of sections 111 and 112 the Grama Panchayat may, with the prior approval of the Chief Executive Officer appoint other employees of the Grama Panchayat and pay their salaries from the Grama Panchayat Fund: Provided that in making appointments the appointing authority shall reserve posts for the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens in the same manner and to the same extent as is applicable for the recruitment to posts in the State Civil Services. (2) The 2[Panchayat Development Officer] may, by order, fine 3[*****] or withhold, the increment of any employee appointed by the Grama Panchayat. (3) The Grama Panchayat may reduce in rank, remove or dismiss any employee appointed by it. (2) The 2[Panchayat Development Officer] may, by order, fine 3[*****] or withhold, the increment of any employee appointed by the Grama Panchayat. (3) The Grama Panchayat may reduce in rank, remove or dismiss any employee appointed by it. (4) An appeal shall lie against an order passed by the 4[Panchayat Development Officer] under sub-section (2) to the Executive Officer and against an order passed by the Grama Panchayat under sub-section (3) to the Chief Executive Officer 5[*****] (5) Any appeal under sub-section (4) pending before the Mandal Panchayat or the Zilla Parishad on the date of commencement of the Karnataka Panchayat Raj Act, 1993, shall stand transferred respectively to the Executive Officer and the Chief Executive Officer and such appeal shall be decided by them as if it had been filed before them." 10. Sub-Section (1) of Section 113 of the said Act deals with the appointment of employees of Gram Panchayat and their salaries from the Gram Panchayat Fund. Sub-section (2) of Section 113 of the said Act deals with withholding of increment of any employee appointed by the Gram Panchayat and Sub-sections (4) and (5) of Section 113 of the said Act refers to the appeal. But, this section does not disclose for following up of principles of natural justice before passing any orders as per Sub-sections (2) and (3) of Section 113 of the Gram Panchayat Act. 11. Learned Additional Government Advocate also did not bring it to the notice of this Court about any rules framed under the said Act for the purpose of holding disciplinary enquiry, either for reducing the employee from his rank, remove or dismissing him from service. In the absence of such specific provision with regard to the procedure for removal or termination of the employee, atleast minimum requirement is that, the disciplinary authority has to follow the principles of natural justice. 12. In India, the principles of natural justice are firmly grounded under Article 14 of the Constitution of India, particularly when the introduction of concept of procedural due process with all fairness is included in principles of natural justice. Of course in the Constitution of India, nowhere the expression 'natural justice' is used. However, the golden thread of natural justice sagaciously passed through the body of the Indian constitution. Of course in the Constitution of India, nowhere the expression 'natural justice' is used. However, the golden thread of natural justice sagaciously passed through the body of the Indian constitution. The preamble of the constitution includes the words 'Equality of status and of opportunity', not only ensures fairness in social and economical activities but also in the field of administration of justice on judicial and quasi judicial field. It also acts as shield individual rights as against the arbitrary actions, which is the base of principles of natural justice. Article 14 of the Constitution of India strike at the root of arbitrariness and guarantees equal protection of law at all the circumstances, where the procedural violation gives a right to a person to question the very proceedings as arbitrary. In this background, the Court has to examine whether the principles of natural justice are zealously safeguarded in this particular case. 13. The general principles of natural justice mandate that if any allegations are made complaining against any employee of Gram Panchayat, in such eventuality, the copy of the said complaint has to be provided to the delinquent employee, calling his objections to the said complaint and thereafter if the said objections are satisfactory it can close the complaint there itself. But on the basis of which, the disciplinary authority not satisfied with the explanation offered and wants to proceed against the delinquent employee, in such eventuality, the disciplinary authority or any other authority appointed by the disciplinary authority to conduct enquiry to frame the charges and provide articles of imputation along with the charges to the delinquent employee, calling upon his objections and thereafter if the objections are accepted by the disciplinary authority or enquiry officer, then an opportunity should be given to the complainant to prove the allegations made against the delinquent employee. In such eventuality, the complainant can produce any documentary or oral evidence and then an opportunity should be given to the employee to cross-examine the complainant and his witnesses. Thereafter, an opportunity should be provided to the employee to produce his documentary evidence and adduce oral evidence, if necessary and thereafter hearing both the parties, an appropriate recommendation has to be sent by the enquiry officer. Afterwards an opportunity should be provided to both the parties to argue the matter on the enquiry report and thereafter only appropriate orders have to be passed. Afterwards an opportunity should be provided to both the parties to argue the matter on the enquiry report and thereafter only appropriate orders have to be passed. This particular procedure which are to be followed under the general principles of natural justice. 14. Removal from service and also reduction in rank and termination of an employee are all very serious matters, which will have very serious impact and consequences on the employee particularly, when the serious allegations of misconduct is alleged against the employee which will have a serious adverse effect on the future of the employee and it will definitely cast a stigma on the employee. It is further made clear here itself that if a temporary employee or probationer to whom the particular Rules of KCS are not applicable even then the principles of natural justice have to be applied. However, if an order simpliciter passed before completion of probation or even the employee is a temporary employee without making any allegations of his misconduct or any allegations, which cast stigma on him, in such eventuality, the following of principles of natural justice as noted above need not be necessary. In the above said background, now we come to the order impugned in this petition. 15. It is not the case of the Government, which passed Annexure-H that they have conducted any disciplinary enquiry on the petitioner before passing such an order. The order clearly discloses that some serious allegations are made against the petitioner that, his conduct was not good and he has misappropriated the amount of the Gram Panchayat and also misbehaved himself with the officials in the Panchayat etc. Therefore, it clearly goes to show that there are serious allegations of misconduct against the petitioner. The order dated 02.11.2016 which is impugned in this petition also discloses that only on the basis of the recommendation made by the Karnataka Lokayukta, it has been passed. The order does not disclose that after receipt of the recommendation made by the Karnataka Lokayukta, any notice has been issued by the Disciplinary Authority for conducting enquiry against the petitioner in order to pass any order as contemplated under Section 113 of the Gram Panchayat Act. The order does not disclose that after receipt of the recommendation made by the Karnataka Lokayukta, any notice has been issued by the Disciplinary Authority for conducting enquiry against the petitioner in order to pass any order as contemplated under Section 113 of the Gram Panchayat Act. Therefore, in our opinion the said order is against the general principles of natural justice and as such the same is not in consonance with the principles laid down in various decisions of the Hon'ble Apex Court noted above. 16. Now coming to the report submitted by the Karnataka Lokayukta as per Annexure-D dated 05.08.2016. The report is on the basis of the complaint filed by one Shri Gurappa S/o Somanna Waggan making various allegations, this factum is also culled out in the said recommendation. The allegations clearly disclose that the petitioner has been creating problem to the public, due to his rude behavior and he was collecting house tax and used to receive money and allowing to utilize public places, and also drawn bogus bills with respect to repairs of bore-wells without carrying out any repairs. He demands house tax as pre-condition to hand over ration cards etc. 17. The above said allegations clearly disclose the misconduct alleged against the petitioner, not only a formal misconduct and there are serious allegations made against him. The Karnataka Lokayukta after considering the report by the CEO, Zilla Panchayat, Kalaburagi and also looking to the allegations that in Crime No.82/2013 registered by Nimbarga Police for the offences punishable under Sections 436, 477 and 227 of IPC came to a definite conclusion that it is a fit case to take appropriate action against the petitioner under the Panchayat Raj Act. The said recommendation to that extent may be correct. The recommendation for removal of Bill Collector in our opinion may be correct. Because, Section 9 of the Karnataka Lokayukta Act does not bar any such recommendation to the Disciplinary Authority. It only says Lokayukta can investigate into the matter and submit a report to the Government under Section 12(3) of the Karnataka Lokayukta Act. The recommendation for removal of Bill Collector in our opinion may be correct. Because, Section 9 of the Karnataka Lokayukta Act does not bar any such recommendation to the Disciplinary Authority. It only says Lokayukta can investigate into the matter and submit a report to the Government under Section 12(3) of the Karnataka Lokayukta Act. Section 12(3) of the Act also disclose that "if, after investigation of any action involving an allegation has been made, the Lokayukta or an Upa-lokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the Competent Authority". 18. Therefore, the recommendation must be to the effect that, it is a fit case wherein the materials available on record prima facie establishes to take disciplinary action against the delinquent employee but not the recommendation to the effect that the penalty should be imposed by the disciplinary authority without any disciplinary enquiry. However, it is left to the desecration of the disciplinary authority either to accept the report or to reject the report and pass appropriate orders. The disciplinary authority if on the basis of such report submitted by the Lokayukta, if it feels further to take disciplinary enquiry has to be conducted, then the same has to be conducted after following the principles of natural justice, it can do so. 19. On perusal of Section 12(4) of the Karnataka Lokayukta Act, it further empowers the disciplinary authority that it shall examine the report forwarded to it under Sub-section (3) and within three months from the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upa-lokayukta the action taken or proposed to be taken on the basis of the report. The report submitted by the Upa-lokayukta does not contain any detail procedure that has been complied by giving an opportunity to the complainant and as well as to the employee while conducting the enquiry. It is only on the basis of objections filed by the delinquent employee, the Lokayukta has collected the report from the office of the other relevant departments, but no opportunity was given to the delinquent employee to counter the same or to lead any evidence. 20. It is only on the basis of objections filed by the delinquent employee, the Lokayukta has collected the report from the office of the other relevant departments, but no opportunity was given to the delinquent employee to counter the same or to lead any evidence. 20. Therefore, as per Section 9 of the Karnataka Lokayukta Act, it is only the investigation or preliminary enquiry conducted by the Lokayukta to find out prima face whether it is a fit case to initiate disciplinary enquiry, but not a report after conducting full-fledged enquiry. Therefore, we are of the opinion, at the most, the Government could have treated the said report as a report by the Upa-lokayukta prima facie finding it as a fit case to initiate disciplinary action against the delinquent employee. Only to that extent, the Government could have considered the said report. Section 12(3) of the Lokayukta Act further contemplates that the Disciplinary Authority or any other competent authorities are still having discretion either to accept the report or reject the same. If the report is accepted, they have to follow further procedure against the delinquent employee by following the principles of natural justice and they have to pass appropriate orders in accordance with law. 21. None of the above said requirements of law have been complied by respondent No.4. Therefore, it is a fit case where this Court can hold that the order impugned in this petition is devoid of merits and the same is liable to be quashed, remitting the matter to respondent Nos.1 and 6 to take appropriate steps on the basis of the report submitted by the Karnataka Lokayukta in the light of the observations made in the body of this order. At the cost of reputation, we may further say that if for any reason respondent Nos.1 and 6 accept the report of the Upa-Lokayukta, the same shall be accepted only for the purpose of accepting the imputations made against the petitioner for the purpose of initiating enquiry proceedings. If respondent Nos.1 and 6 initiate any further proceedings and inquire into the matter, they have to follow the above described principles of natural justice and thereafter only pass appropriate orders in accordance with law. 22. With these observations, the writ petition is allowed and a direction is issued to respondent Nos.1 and 6 to proceed with the matter in accordance with law as noted above. 22. With these observations, the writ petition is allowed and a direction is issued to respondent Nos.1 and 6 to proceed with the matter in accordance with law as noted above. Hence, the order passed by respondent Nos.1 and 6 as per Annexure-H dated 02.11.2016 is hereby quashed. Respondent Nos.1 and 6 are hereby directed to reinstate the petitioner in service and thereafter proceed with the case in accordance with law.