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2019 DIGILAW 1281 (KAR)

B. N. Nagendra Kumar v. Additional Chief Secretary To Government Commerce And Industry Department, Bengaluru

2019-06-15

RAVI MALIMATH, S.G.PANDIT

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JUDGMENT : S.G. Pandit, J. The petitioners are before this Court under Articles 226 and 227 of the Constitution of India praying for the following relief’s: "(a) Call for records from the Respondents; (b) Issue a order declaring the directions, of the Upalokayukta-1, for entrustment of conducting the enquiry against the petitioners under rule 14-A, of the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957 to his authority, given under section 12(3) of the Karnataka Lokayukta Act 1984 as per the report vide No. Compt / uplok / BCD-2961 / 2013 / DRE-1 dated 12.05.2016 (Annexure-E to the writ petition) as null and Void; (c) Issue a writ of Certiorari or any other writ to quash the decision for entrustment of the enquiry against the petitioner No.1, petitioner No.2 and petitioner No.3, to Hon'ble Upalokayukta-1, as per the circular resolution of the Governing Council of Government Tool Room & Training Centre by the second respondent vide No. GTTC / MDO / ADMN / CR / 2016-17 dated 13.06.2016 as at ANNEXURE-F to the Writ Petition; (d) Issue a writ of Certiorari or any other writ to quash the decision for entrustment of the enquiry against the petitioner No.4, and petitioner No.5, to Hon'ble Upalokayukta-1, as per the letter of the second respondent vide No.GTTC/CHAIRMAN/2016-17 dated 13.06.2016 as at ANNEXURE-G to the Writ Petition; (e) Issue a writ of Certiorari or any other writ to quash the decision for entrustment of the enquiry against the petitioner No.6, petitioner No.7, and petitioner No.8 to Hon'ble Upalokayukta-1, as per the letter of the third respondent vide No.GTTC/MD/2016-17 dated 13.06.2016 as at ANNEXURE-H to the Writ Petition; (f) Issue a writ of Certiorari or any other writ to quash the Article of charge issued by the fourth respondent to the petitioners vide No. UPLOK- 1/DE-194/2016/ ARE-1 dated 13.07.2016 as at ANNEXURE-K to the Writ Petition; (g) Issue a writ of Certiorari or any other writ to quash the modified Article of charge issued by the fourth respondent to the petitioners vide No.UPLOK-1/DE-194/2016/ARE-1 dated 26.10.2016 as at ANNEXURE-N to the Writ Petition. 2. The petitioners are employees of second respondent- Government Tool Room and Training Center (for short 'GTTC'), Rajajinagar Industrial Estate, Bengaluru. 2. The petitioners are employees of second respondent- Government Tool Room and Training Center (for short 'GTTC'), Rajajinagar Industrial Estate, Bengaluru. It is stated that the GTTC was established in the year 1972 with an object to impart technical training and technological up-gradation by providing quality tooling and to build skilled workforce to the industries. The GTTC is a Society registered under the Karnataka Societies Registration Act, 1960. The petitioners are working in the GTTC in various capacities. The first petitioner retired as Manager- Training, the second petitioner is working as Deputy Manager, third petitioner is working as Principal Grade-II, fourth petitioner as Principal Grade-IV, fifth petitioner as Engineer, sixth petitioner as Accounts Officer, seventh petitioner as Principal in-charge and eighth petitioner as Foreman Grade-II. 3. It is stated by the petitioners that the Governing Council is the highest body which manages the GTTC. The Governing Council consists of 10 members and the Secretary to Government of Karnataka, Commerce and Industries Department is the Chairman and Managing Director. The employees of GTTC are covered by Industrial Employment (Standing Orders) Act, 1946. The GTTC has its own Certified Standing Orders which is produced at Annexure-C. The GTTC has its own Cadre, Recruitment and Certain Conditions of Service Rules. 4. The petitioners would submit that, a complaint came to be lodged against them by one Sri.Ravichandra, before the Lokayukta under the provisions of Karnataka Lokayukta Act alleging violations in conducting training programme during the years 2010-11 and 2011-12 and misuse of funds relating to the training programme. Notice dated 06.12.2013 was issued to the petitioners by the Additional Registrar of Enquiries-10, Karnataka Lokayukta and petitioners have submitted their explanations stating that there is no misuse of funds and they have followed the provisions of Karnataka Transparency in Public Procurement Act, 1999 (for short 'the Transparency Act'). The Upa Lokayukta came to the conclusion that there was non-compliance of provisions of the Transparency Act and there was dereliction of duty as Government servants. In his report under Section 12(3) of the Karnataka Lokayukta Act, the Upa Lokayukta recommended to initiate disciplinary proceedings and to entrust the enquiry to Upa Lokayukta under Rule 14-A of Karnataka Civil Services (CCA) Rules 1957 (for short 'the CCA Rules'). In his report under Section 12(3) of the Karnataka Lokayukta Act, the Upa Lokayukta recommended to initiate disciplinary proceedings and to entrust the enquiry to Upa Lokayukta under Rule 14-A of Karnataka Civil Services (CCA) Rules 1957 (for short 'the CCA Rules'). On the recommendation of Upa Lokayukta, the second respondent GTTC in its meeting of the Governing Council dated 13.06.2016 resolved to permit prosecution as requested by the Deputy Registrar (Enquiries), Karnataka Lokayukta. Further, by letter dated 13.06.2016, the second respondent GTTC entrusted the enquiry to Hon'ble Upa Lokayukta. Thereafter, the fourth respondent who was nominated as Enquiry Officer by the Upa Lokayukta framed Articles of Charge and served upon the petitioners. The petitioners filed their written statement before the fourth respondent contending that the entrustment of enquiry against them to Upa Lokayukta under Rule 14-A of the CCA Rules is bad in law and requested to drop the enquiry. Since the enquiry was continued by issuing modified Articles of Charge dated 26.10.2016, the petitioners filed the instant writ petitions. 5. On service of notice, first and fourth respondents are represented by their respective counsels. There is no representation for respondents No.2 and 3. Respondent No.4 has filed statement of objections contending that the petitioners have misconducted themselves and they are liable for enquiry. It is stated that the second respondent is receiving grants from the Government and it is an aided educational institution. Regulation 43 of the Rules and Regulations of the Government Tool Room and Training Center requires the GTTC to comply with the directions and instructions issued by Respondent No.1. Hence, as the first respondent-Government has directed to enquire into the allegations against the petitioners, the fourth respondent is proceeding accordingly. 6. Heard the learned counsel for the petitioners, learned Government Pleader for Respondent No.1 and learned counsel for the fourth respondent. Perused the petition papers. 7. Learned counsel for the petitioners would submit that the action of Respondents No.2 and 3 in entrusting the enquiry to the Upa Lokayukta is wholly illegal and without jurisdiction. The provisions of CCA Rules would have no application to the petitioners as they have their own Certified Standing Orders, which deals with the disciplinary matters and procedure for conducting enquiry against the employees of GTTC. Further it is submitted that the Upa Lokayukta, on a complaint received has investigated and submitted his report. The provisions of CCA Rules would have no application to the petitioners as they have their own Certified Standing Orders, which deals with the disciplinary matters and procedure for conducting enquiry against the employees of GTTC. Further it is submitted that the Upa Lokayukta, on a complaint received has investigated and submitted his report. It is not a complaint referred to the Lokayukta by the Government or the second respondent. On submission of the report under Section 12(3) of Lokayukta Act by the Upa Lokayukta, the second respondent could not have entrusted the enquiry to the Upa Lokayukta. He relies upon Section 3 of CCA Rules in support of his submission. It is his contention that there is no provision for entrusting the enquiry to the Upa Lokayukta either under the Certified Standing Orders of GTTC or in the Rules and Regulations of GTTC. 8. Per contra, learned counsel for the fourth respondent would submit that as per the directions of the Government, the Upa Lokayukta is proceeding with the enquiry. Regulation 43 of the Rules and Regulations of GTTC would permit the State Government to issue any direction to the GTTC and the same shall be carried out by GTTC. The allegations against the petitioners are serious and as such they are subjected to enquiry. 9. On hearing the learned counsels and on perusal of the entire material on record, the only question which falls for consideration is whether the second respondent is justified in entrusting the enquiry to the Upa Lokayukta by passing resolution in the Governing Council, with reference to Clauses 4, 4(2) and 4(3) of the Cadre, Recruitment and Certain Conditions of GTTC Rules. 10. There is no dispute that the petitioners are employees of GTTC-second respondent herein. It is also not in dispute that with regard to certain allegations of violation in conducting training programme during the years 2010-11 and 2011-12 and misuse of funds meant for training programme, a complaint was lodged before the Karnataka Lokayukta, notice was issued to the petitioners and on submission of their reply, the Upa Lokayukta submitted report under Section 12(3) of the Lokayukta Act recommending Departmental Enquiry against the petitioners and to entrust the enquiry to Upa Lokayukta under Rule 14-A of CCA Rules. The petitioners are employees of GTTC, they are governed by its own Cadre and Recruitment Rules, Certified Standing Orders and Rules and Regulations of GTTC. Rule 14-A of CCA Rules would apply to the government servants. Section 3 of CCA Rules would state with regard to its application. Section 3(1)(a) would be relevant for the present case which reads as follows: "3. Application.-(1) These rules apply to all Government Servants except.- (a) persons employed in any Industrial undertakings of the Government other than the Government Central Press, Bangalore and other Divisional, District Presses, Stationary Depots and Book Depots to whom the provisions of the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946) are applicable." 11. Reading of the above sub-Rule would make it clear that CCA Rules have no application, where the employees are governed by the provisions of Industrial Employment (Standing Orders) Act, 1946. In the case on hand, the petitioners are governed by the Certified Standing Orders which is produced at Annexure-C. Clause 23 deals with misconduct and defines misconduct. Clause 24 prescribes punishment for misconduct. Clause 25 would prescribe procedure for imposing punishment. The Cadre and Recruitment Rules would prescribe the Appointing Authority. Council is the Appointing Authority for Executive Cadres-I, Chairman is the Appointing Authority for the posts in the Executive Cadres-II and the Managing Director is the Appointing Authority for all other posts. Neither the Government Advocate appearing on behalf of Respondent No.1 nor the counsel appearing for Respondent No.4 has pointed out any provision or regulation under the Certified Standing Orders or from Rules and Regulations of the GTTC or from the Cadre, Recruitment and Certain Conditions of Service Rules of GTTC which enables the second respondent-Governing Council to entrust the enquiry to the Upa Lokayukta as sought for by them. In the absence of any provision enabling the second respondent to pass resolution and entrust the enquiry to the Upa Lokayukta, the entrustment of enquiry to the Upa Lokayukta is wholly illegal and without jurisdiction. 12. Regulation 43 pointed by the counsel for the fourth respondent reads as follows: "43. In the absence of any provision enabling the second respondent to pass resolution and entrust the enquiry to the Upa Lokayukta, the entrustment of enquiry to the Upa Lokayukta is wholly illegal and without jurisdiction. 12. Regulation 43 pointed by the counsel for the fourth respondent reads as follows: "43. Not-withstanding anything contained in any of these Rules and Regulations, the Government of Karnataka from time to time issue such directives or instructions as they may think fit in regard to the finance and conduct of business and affairs of the society and the members of the Governing Council shall duly comply with and give effect to such directives or instructions." The above regulation empowers the State Government from time to time to issue such directives or instructions as they may think fit with regard to finance and conduct of business and affairs of the Society and the Governing Council shall duly comply such directives or instructions. The directions and instructions referred to in the above regulation is confined only to the handling of finance and conduct of business and affairs of the Society and would not refer to the conditions of service of the employees of GTTC. Therefore, Regulation 43 would not empower the second respondent-GTTC to resolve and to entrust the enquiry to the Upa Lokayukta. Impugned letter dated 13.06.2016 (Annexure-G) indicates that enquiry was entrusted to the Upa Lokayukta in exercise of power under clause 4.2 of the Cadre, Recruitment and Certain Conditions of Rules of GTTC. Clause 4 of Cadre, Recruitment and Certain Conditions of Rules prescribes Appointing Authority. Clause 4.2 reads as follows: "4.2. Chairman shall be the Appointing Authority for the posts in the Executive Cadres-II" The above would indicate that the chairman is the Appointing Authority insofar as Executive Cadres-II is concerned. The said rule would not provide for Appointing Authority-Chairman to entrust the enquiry to the Upa Lokayukta. As an Appointing Authority-Chairman has power to initiate enquiry in accordance with law and applicable rules to the employees of GTTC. Hence, we are of the view that the petitions deserve to be allowed to the extent of entrusting the enquiry to the Upa Lokayukta by the second respondent-GTTC. The allegation against the petitioners are serious in nature. As an Appointing Authority-Chairman has power to initiate enquiry in accordance with law and applicable rules to the employees of GTTC. Hence, we are of the view that the petitions deserve to be allowed to the extent of entrusting the enquiry to the Upa Lokayukta by the second respondent-GTTC. The allegation against the petitioners are serious in nature. If the Governing Council and Chairman are of the opinion that the allegation against the petitioners requires to be enquired into, it is at liberty to conduct the enquiry against the petitioners in accordance with the procedure prescribed under the Certified Standing Orders, which governs the employees of the GTTC and if found guilty of the charges, impose appropriate punishment. Hence, the following order: The writ petitions are partly allowed. Circular Resolution of the Governing Council bearing No.GTTC/MDO/ADMN/CR/2016-17 dated 13.06.2016 Annexure-F; Annexure- G/letter bearing No.GTTC/CHAIRMAN/2016-17 dated 13.06.2016, Annexure-H letter bearing No.GTTC/MD/2016-17 dated 13.06.2016 and all further proceedings including Articles of Charge dated 13.07.2016 Annexure-K and modified Articles of Charge dated 26.10.2016 Annexure-N are quashed, with liberty to the second respondent to proceed against the petitioners, in accordance with law, based on the aforesaid observations.