Saibanna v. State Of Karnataka Department Of Panchayatraj By Its Secretary
2019-07-05
ASHOK G.NIJAGANNAVAR, K.N.PHANEENDRA
body2019
DigiLaw.ai
JUDGMENT : K.N.Phaneendra, J. We have heard the arguments of learned counsel for the petitioner and learned Additional Government Advocate for respondent No.1 and also learned counsel for respondent Nos.2, 3 and 6. We have carefully perused the entire records. 2. Brief facts of the case on hand are that, the petitioner had been undisputedly working as a Bill Collector in Gram Panchayath Office at Kavalaga village in Aland taluk, Kalaburagi district from the date of his appointment i.e., since 1997. A person by name Dileep Devidas of Kavalaga village filed a complaint before the Lokayukta, Bengaluru alleging that, the petitioner has made properties illegally and also harassing the staff of Gram Panchayath. The matter was referred to the Karnataka Lokayukta Police, Kalaburagi by the Lokayukta. The Lokayukta Police after holding enquiry and recording the statements of all the witnesses and also the staff members of Gram Panchayath gave a report that, those allegations are false. In spite of that, the Hon'ble Upa-lokayukta has issued a notice to the petitioner calling upon his comments. The petitioner has filed his version denying all the allegations made by the complainant. Thereafter, the Hon'ble Lokayukta found that, the said bill collector has acquired various properties as noted in the order of the Lokayukta as per Annexure-D dated 02.12.2016. Having come to know about the said facts, the Lokayukta found that, there were some properties, which were made in the name of the wife and brother of the petitioner. Therefore, the Lokayukta found that those facts are sufficient to hold that there are sufficient substantial materials against the petitioner. Accordingly, the recommendation was made under Section 12(1) of the Karnataka Lokayukta Act to the competent authority for taking action for termination of the petitioner from his post as a Bill Collector and action taken report in that regard has to be sent to Lokayukta under Section 12(2) of the Karnataka Lokayukta Act. 3. On the basis of the said report sent by the Hon'ble Lokayukta, without further enquiry, the Government has accepted the said report and passed an order as per Annexure-F dated 11.01.2017 directing the Gram Panchayath to hold disciplinary action against the petitioner and then to report to the Lokayukta with regard to the action taken.
3. On the basis of the said report sent by the Hon'ble Lokayukta, without further enquiry, the Government has accepted the said report and passed an order as per Annexure-F dated 11.01.2017 directing the Gram Panchayath to hold disciplinary action against the petitioner and then to report to the Lokayukta with regard to the action taken. On the basis of the said direction issued by the Deputy Director Under Secretary to the Government, Department of Rural Development and Panchayat Raj, respondent Nos.6 and 7 have passed an order as per Annexure-D dated 07.12.2017 by removing the petitioner from service as a bill collector. This order actually has been called in question before this Court. 4. In a similar set of facts and circumstances, this Court has taken a view in W.P.No.200137/2018 vide order dated 06.06.2019 that, whenever the investigation was done by the Hon'ble Upa-Lokayukta and a report is sent either under Section 12(1) or 12(3) of the Karnataka Lokayukta Act by Lokayukta that only amounts to a preliminary investigation by the Lokayukta and that itself is not sufficient to remove an employee, when serious allegations are made without there being any enquiry by following the principles of natural justice, without providing an opportunity to both the parties in this regard. 5. On reading of provision of Section 12 of the Karnataka Lokayukta Act, it reads as follows: "12. Reports of Lokayukta, etc. - (1) If, after investigation of any action 1[*****] involving a grievance has been made, the Lokayukta or an Upa-lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, the Lokayukta or an Upalokayukta shall, by a report in writing, recommend to the Competent Authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. (2) The Competent Authority to whom a report is sent under sub-section (1) shall, within one month of the expiry of the period specified in the report, intimate or cause to be intimated to the Lokayukta or the Upalokayukta the action taken on the report.
(2) The Competent Authority to whom a report is sent under sub-section (1) shall, within one month of the expiry of the period specified in the report, intimate or cause to be intimated to the Lokayukta or the Upalokayukta the action taken on the report. (3) If, after investigation of any action 2[*****] involving an allegation has been made, the Lokayukta or an Upa-lokayukta is satisfied that such allegation 3[is substantiated] either wholly or partly, he shall be report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the Competent Authority. (4) The Competent Authority shall examine the report forwarded to it under subsection (3) and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upalokayukta the action taken or proposed to be taken on the basis of the report. (5) If the Lokayukta or the Upa-lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-suctions (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the Competent authority concerned and the complainant. 1[(6) The Lokayukta shall present on or before 31st October of every year, a consolidated report on the performance on his functions and that of the Upa-lokayukta under this Act to the Governor. (7) On receipt of the special report under sub-section (5), or the annual report under subsection (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature. (8) The Lokayukta or an Upa-lokayukta may at his discretion make available, from time to time, the substance of cases closed or otherwise disposed of by him which may appear to him to be of general, public, academic or professional interest in such manner and to such persons as he may deem appropriate." 6.
(8) The Lokayukta or an Upa-lokayukta may at his discretion make available, from time to time, the substance of cases closed or otherwise disposed of by him which may appear to him to be of general, public, academic or professional interest in such manner and to such persons as he may deem appropriate." 6. It is clear that virtually the order passed by the Hon'ble Upa-lokayukta falls under Section 12(3) of the Act because the investigation was done on the allegations made against the petitioner and thereafter the Upalokayukta was satisfied that, such allegations were substantiated and therefore a report has been sent in writing with recommendation to remove the Bill Collector from the service. Therefore, it is only an investigation report or preliminary enquiry report submitted by the Upa-lokayukta. In such an eventuality, that report should be treated only as a investigation report for the purpose of initiating disciplinary enquiry, if necessary, by the competent authority i.e., Disciplinary Authority. 7. In this particular case, only on the basis of the report of Hon'ble Upa-lokayukta, respondent Nos.6 and 7 have taken action and removed the petitioner from the post of Bill Collector without any further enquiry. When serious allegations are made and particularly with regard to the amassing of wealth by corrupt practice by him as a Bill Collector, without there being any sufficient material and without conducting any departmental enquiry in this regard, the petitioner ought not to have been removed by respondent Nos.6 and 7. In this context, it is worth to refer to a decision of this Court reported in the case of C.Krishnamurthy vs. State of Karnataka and Others, (2017) 2 KarLJ 193 wherein the Division Bench of this Court held as follows: "Karnataka Civil Services (Classification, Control and Appeal) Rules, Rule 14-A(d) - Recommendation of Upa-lokayukta is not declared as final - Disciplinary Authority is at liberty to disagree the findings recorded by Inquiry Officer or the recommendation of Upa-lokayukta by giving reasons - Record its own findings - Disciplinary Authority to pass a final order." 8. It is also worth to refer the order passed by this Court in the writ petition dated 06.06.2019, wherein this Court has dealt with a similar matter and enumerated as to what are the procedures should be followed by the Disciplinary Authority, if recommendation of the Upalokayukta is accepted.
It is also worth to refer the order passed by this Court in the writ petition dated 06.06.2019, wherein this Court has dealt with a similar matter and enumerated as to what are the procedures should be followed by the Disciplinary Authority, if recommendation of the Upalokayukta is accepted. It was held that, 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 being provided to both the parties to argue the matter on the enquiry report and thereafter only appropriate orders have to be passed by the Disciplinary Authority. This particular procedure, which are to be followed under the general principles of natural justice. These procedures appears have not been followed by respondent Nos.6 and 7 expect passing a resolution to remove the petitioner from service. At the time of arguments also, neither the learned Additional Government Advocate nor learned counsel appearing for respondent Nos.6 and 7 have brought to the notice of this Court that such procedure has been followed by them. 9. Section 113(2) of the Karnataka Panchayat Raj Act empowers the Panchayat Development Officer by passing an order shall impose punishment of withholding the increment of any employee appointed by the Gram Panchayath and Section 113(3) of the said Act also empowers the Gram Panchayath to reduce the rank of the employee or remove or dismiss any employee appointed by it. If there are no specific procedure contemplated in any enactment, in such eventuality, the strict rule of principles of natural justice atleast should be followed before passing such order of removal of the employee from service. Because, removal from service and also reduction in rank or termination of an employee are all very serious matters, which will have very serious impact and evil consequences on the employee particularly, when the serious allegations of acquiring properties by corrupt practice 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. 10.
10. Therefore, under the above said circumstances, we find some force in the submission made by the learned counsel for the petitioner that, the order dated 07.12.2017 as per Annexure-R is in violation of the principles of natural justice and therefore the same is liable to be quashed. Accordingly, the following order is passed. ORDER The writ petitions are allowed. Consequently, the order passed by the Gram Panchayath Kavalaga, Aland taluk, Kalaburagi district as per Annexure-R bearing No.Gram/Pam/K/2017-18 dated 07.12.2017 is hereby quashed. The mater is remitted to the Gram Panchayath to strictly follow the procedure as contemplated or as noted above, if respondent Nos.6 and 7 accept the report by Lokayukta. If they accept the Lokayukta report, then they have to follow the procedure by conducting the departmental enquiry against the petitioner and then to pass appropriate orders in accordance with law. If for any reason they do not accept the report, then they can pass appropriate orders. As the order impugned itself is quashed, it is just and proper that the petitioner has to be reinstated till appropriate order is passed by respondent Nos.6 and 7.