Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 2346 (KAR)

G. B. Devaraj v. State of Karnataka

2020-12-11

M.NAGAPRASANNA

body2020
JUDGMENT : M. NAGAPRASANNA, J. 1. The petitioners, in this writ petition, have called in question the order of the second respondent-Karnataka Rural Infrastructure Development Corporation (hereinafter referred to as the 'Corporation' for short) dated 29.10.2018 entrusting the conduct of a departmental enquiry against the petitioners to the hands of the third respondent-Lokayukta and the consequent action of the fourth respondent issuing articles of charge pursuant to the said entrustment. 2. Shorn of unnecessary details, the facts that are germane for consideration of the lis briefly stated are as follows: Petitioners 1 and 2 are working in the cadre of Executive Engineer and petitioner No. 3 in the cadre of Assistant Executive Engineer in the Corporation. On a complaint made against the petitioners concerning construction of a building, a report under Section 12(3) of the Karnataka Lokayukta Act, 1984 (hereinafter referred to as the 'said Act' for short) was furnished to the hands of the Government and the first respondent-Government in turn referred the report to the second respondent Corporation. The second respondent-Managing Director of the Corporation entrusted the enquiry to be conducted by the Lokayukta in answer to the report under Section 12(3) of the Act and the reference made by the Government exercising its power under Section 12(4) of the said Act. Pursuant to such entrustment, fourth respondent is nominated as the Inquiry Officer who issues Articles of Charges against the petitioners. It is the aforesaid orders that are called in question by the petitioners in this petition. 3. Heard Sri.Vijaya Kumar, learned counsel appearing for petitioners, Sri.R.Srinivasa Gowda, learned Additional Government Advocate for respondent No. 1, Sri.Pavan Kumar, learned counsel for Sri.H.Devendrappa, learned counsel for respondent No. 2 and Sri.Venkatesh Arabatti, learned counsel for respondent Nos.3 and 4. 4. Sri.Vijaya Kumar, learned counsel appearing for petitioners would vehemently argue and contend that the order of the Managing Director of the Corporation entrusting enquiry to the hands of the third respondent-Lokayukta is without jurisdiction inasmuch as, there is no provision under the Cadre and Recruitment Rules for entrustment of enquiry to a agency like that of Lokayukta as is available under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the 'KCS(CCA) Rules' for short). 5. 5. Learned counsel would further contend that petitioners being Group 'A' officers, the Managing Director is not the competent authority to take a decision on the entrustment of the enquiry to the hands of the Lokayukta. The matter had to be placed before the Board, as the Board of the Corporation is the competent authority to take a decision on the report submitted by the Lokayukta under Section 12(3) of the Act. On all these courts, the learned counsel would seek quashing of the impugned proceedings. 6. On the other hand, Sri.Pavan Kumar, learned counsel appearing for Sri.H.Devendrappa, learned counsel for the Corporation would submit that Rule 39 of the Cadre and Recruitment Rules gives omnibus power to the Corporation to fall back upon the service rules of the Government servants and it is taking recourse to the said provision, enquiry is entrusted to the hands of the Lokayukta. 7. Sri.Venkatesh Arabatti, learned counsel appearing for Lokayukta would also contend that in terms of Rule 39(b), the Board has the power to entrust enquiry to the hands of the Lokayukta in the absence of specific provision in the Rules taking recourse to the said Rules, as the said Rules are made applicable in the cadre and recruitment Rules of the corporation itself. He would further place reliance upon a Resolution of the Board of the Corporation dated 12.07.2010 adopting Rule 87 of the Karnataka Civil Services Rules concerning crediting un-availed portion of leave of the joining time. 8. Both the learned counsel appearing for respondent Nos.2 and 3 on the said ground would submit that writ petition is premature and has to be dismissed. 9. I have given my anxious consideration to the rival submissions made by the respective counsels and have perused the material on record. 10. In furtherance whereof, the question that arises for my consideration is: "Whether the Corporation was well within its power to entrust the enquiry to the hands of the Lokayukta in terms of the Rules?" 11. To consider the said question, it is germane to notice the genesis of the Corporation. 10. In furtherance whereof, the question that arises for my consideration is: "Whether the Corporation was well within its power to entrust the enquiry to the hands of the Lokayukta in terms of the Rules?" 11. To consider the said question, it is germane to notice the genesis of the Corporation. Karnataka Land Army Corporation was incorporated as a Limited Company under the Companies Act, 1956 on August the 8th, 1974 mainly to undertake and carry out rural development work entrusted to it by the Government, Government Departments, Local Bodies, Public Undertakings, Institutions, individuals etc., The Corporation when it was formed depended mainly on staff drawn from different departments of the Government on deputation. Since the service conditions of employees who were brought on deputation were governed by the Karnataka Civil Service Rules of the Government and owing to the fact that a few of them who were on deputation were absorbed into the regular service of the Corporation as also recruitment of staff being made at various levels, need arose to frame its own Cadre and Recruitment Rules. Till the framing of such Rules, a Resolution came to be passed by the Corporation adopting specific Rules obtaining in the State Government by its Resolution, which reads as follows: "Subject No. 2: Adopting K.C.S.Rules 1958 and Allied Rules by KLAC. KLAC has framed separate service Rules for the employees which have been adopted by the Board in its Ist meeting held on 26-8-1974. These Rules came to effect from 9-8-1974, but the same have not been approved by the Government. When the existing Rules are not self explanatory and do not provide for various contingencies arising in day to-day administration, as it is, the KLAC is now following various provisions of KCSR (KCSR) 1958 and its allied Rules such as the Probation Rules of 1977, KCS(Seniority) Rules 1957 KCS (Confidential Reports), Rules, 1976 KCS(Conduct) Rules 1966, KCS (Recruitment to Ministorial Staff) Rules 1978, KCS (General Recruitment) Rules 1977, KSCS (Temporary Service) Rules, 1967, KSCS (Regularisation of Promotion, Pay and Pension, Act, 1973 and Rules 1979, KCS (Confidential Report) Rules 1983. It is necessary to have separate Rules for KLAC, till the Government framed separate sets of Rules including C & R Rules for KLAC. It is necessary to have separate Rules for KLAC, till the Government framed separate sets of Rules including C & R Rules for KLAC. The KLAC now adopts following Rules for its day to day administration: PROCEEDING OF BOARD OF 74TH MEETING: Subject No. 2 Resolved to follow KCSR except the provisions relating to Pension and other allied Rules till the KLAC service Rules are REVISED UP-TODATE." The above-extracted Resolution clearly indicated two factors i.e., the specifically adopted Rules was for the purpose of carrying out day-to-day administration and was to remain in force till a regular Cadre and Recruitment Rules of the Corporation was framed. 12. The Cadre and Recruitment Rules framed by the Board of the Corporation was approved to come into effect from 20.09.1996. In the light of the above extracted Resolution that adoption of specific Rules would be in operation until the promulgation of the Cadre and Recruitment Rules, the specific adoptions made in the said Resolution ceased to operate from 20.09.1996. The framework of the Rules insofar as it pertains to conduct, misconduct, suspension, procedure to be followed for imposition of penalties, penalties to be imposed are as follows: Rules 91 and 92 which forms a part of Chapter 8 and deals with conduct and misconduct. Rules 93 to 103 which forms a part of Chapter 9 deals with the following contingencies: Rule 93 depicts who is the appointing authority; Rule 94 deals with penalties that can be imposed upon the employees of the Corporation; Rule 96 deals with procedure for imposing major penalties; Rule 97 deals with procedure for imposing minor penalties; Rule 98 deals with procedure against borrowed employees; Rule 99 deals with appeals against the order of penalties and Rule 103 deals with review of the orders passed by the Disciplinary Authority and the Appellate Authority. Thus, the afore-extracted framework of the statute contains all provisions to deal with misconduct, of the employees of the Corporation. 13. Rule 39 is a residuary provision that makes applicability of other Rules that are not specifically provided in the said Rules. Thus, the afore-extracted framework of the statute contains all provisions to deal with misconduct, of the employees of the Corporation. 13. Rule 39 is a residuary provision that makes applicability of other Rules that are not specifically provided in the said Rules. Rule 39 of the said Rules reads as follows: "Rule 39 APPLICATION OF OTHER RULES: (a) The Karnataka Land Army Corporation Service Rules and Standing Orders and all other rules for the time being in force regulating the conditions of service of the employees of the Corporation in so far as such rules are found to be inconsistent with the provisions of these rules shall not be applicable to persons appointed under these rules. (b) In the absence of specific provisions in these rules, the rules provided in the Karnataka Government Conduct and Service Rules, may be involved by the Board." 14. Learned counsel appearing for the Corporation and the Lokayukta in unison place reliance upon Rule 39 with specific reference to sub-rule (b) to Rule 39 that in the absence of specific provisions under these Rules, the Rules provided under the Karnataka Government Conduct and Service Rules may be invoked by the Board, which would mean that the Karnataka Civil Services (Classification, Control and Appeal) Rules would become automatically applicable as Rule 39(b) clearly depicts that Conduct and Service Rules may be invoked by the Board. 15. The submissions so made by the learned counsel appearing for the second and third respondents is unacceptable to me, as what is adopted even under 39(b) of the said Rules is the Conduct and Service Rules. Conduct Rules would mean Karnataka Civil Services (Conduct) Rules, 1966 and Service Rules is a vague term as the service conditions of a Government servant is determined under various service Rules. 16. The Conduct Rules of the State defines and regulates the conduct of a Government servant which is hedged by certain conditions with regard to conduct or otherwise and what would amount to misconduct. The conduct Rules being made applicable under Rule 39(b) cannot empower the Corporation to entrust an enquiry to the hands of the Lokayukta as there is no provision in the conduct Rules for such entrustment. 17. The conduct Rules being made applicable under Rule 39(b) cannot empower the Corporation to entrust an enquiry to the hands of the Lokayukta as there is no provision in the conduct Rules for such entrustment. 17. The power of entrustment of an enquiry to the hands of the Lokayuka is dealt with under KCS(CCA) Rules which not only contains provision for such entrustment, but also deals with elaborate procedure for conduct of disciplinary proceedings against Government Servant, the relevant Rules are: Rule 8 of the said Rules deals with Nature of Penalties; Rule 11 of the said Rules deals with procedure for imposition of major penalties; Rule 12 deals with Procedure for imposition of minor penalties; Rule 14-A is a special procedure that is incorporated into the Rules where the government would entrust enquiry to the hands of the Lokayukta when a report is furnished by the Lokayukta under Section 12(3) in exercise of powers under Section 12(4) of the said Act. Rule 14-A of the KCS(CCA) Rules reads as follows: "[14.A. Procedure in cases entrusted to the Lokayukta: (1) The provisions of sub-rule (2) shall, notwithstanding anything contained in rule 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. ["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 on 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'. ["the Lokayukta or the Upalokayukta or, (before the twenty first dayof December, 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 DisciplinaryAuthority 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 [xxx] rule 11-A and in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties specified in rule 8." The afore-extracted Rule gives the power of a Disciplinary Authority to either Lokayukta or the Upalokayuktha as the case would be. Therefore, it is imperative that a provision for such entrustment must exist in the relevant Rules or such Rules which specifically empower entrustment of such enquiry to the hands of the Lokayukta or the Upalokayukta as the case would be, must be particularly adopted. I say so, for the reason that Rule 14-A of the KCS(CCA) Rules post entrustment mandates that procedure under Rule 11 shall be followed for which the Lokayukta or the Upalokayukta shall have the powers of the Disciplinary Authority. Such a provision cannot be construed to have been adopted by a general adoption of Conduct Rules and Service Rules as is seen in sub-rule (b) of Rule 39. 18. Therefore, KCS(CCA) Rules without being specifically adopted cannot and would not mean that the said Rules can be applied, bringing it, within the sweep of Rule 39 of the said Rules of the Corporation, unless KCS(CCA) Rules is specifically adopted by a decision of the Board of the Corporation. In view of the preceding analysis, I hold that power to entrust the enquiry to the hands of the Lokayukta is not available with the Corporation. Therefore, the entrustment of the enquiry to the hands of the Lokayukta by the Managing Director of the Board will have to be held as an act without jurisdiction. 19. Insofar as the judgments relied upon by the learned counsel appearing for the third respondent is concerned, the judgment in the case of Shankar Vs. Karnataka Land Army Corporation Ltd, (1996) ILR(Kar) 1407, this Court has held as follows: "8. It was next argued by the learned Counsel for petitioners that the Resolution passed by the Board of Directors of the Corporation in its 74th Meeting adopted the Karnataka Civil Services Regulations and made them applicable to the employees of the Corporation. In order to properly appreciate this argument, it is necessary to reproduce the relevant portion of the proceedings of the 74th Meeting of the Board, which reads thus: "Subject No. 2: Adopting K.C.S. Rules 1958 and Allied Rules by KLAC. KLAC has framed separate service Rules for the employees which have been adopted by the Board in its 1st meeting held on 26-8-1974. These Rules came to effect from 9-8-1974, but the same have not been approved by the Government. KLAC has framed separate service Rules for the employees which have been adopted by the Board in its 1st meeting held on 26-8-1974. These Rules came to effect from 9-8-1974, but the same have not been approved by the Government. When the existing Rules are not self explanatory and do not provide for various contingencies arising in day-to-day administration, as it is, the KLAC is now following various provisions of KCSR (KCSR) 1958 and its allied Rules such as the Probation Rules of 1977, KCS (Seniority) Rules 1957 KCS (Confidential Reports), Rules, 1976 KCS (Conduct) Rules 1966, KCS (Recruitment to Ministorial Staff) Rules 1978, KCS (General Recruitment) Rules 1977, KSCS (Temporary Service) Rules, 1967, KSCS (Regularisation of Promotion, Pay and Pension, Act, 1973 and Rules 1979, KCS (Confidential Report) Rules 1983. It is necessary to have separate Rules for KLAC, till the Government framed separate sets of Rules including C & R Rules for KLAC. The KLAC now adopts following Rules for its day-to-day administration: PROCEEDING OF BOARD OF 74TH MEETING: Subject No. 2 Resolved to follow KCSR except the provisions relating to Pension and other allied Rules till the KLAC service Rules are REVISED UP-TO-DATE." 9. A plain reading of the back-ground in which the Resolution on subject No. 2 (supra) was passed shows that the existing Rules were found to be deficient in various contingencies arising in the day today administration of the affairs of the Corporation. It is also pointed out that the Corporation was following the various provisions of the Rules applicable to Civil Servants of the State of Karnataka. It was in the context of the deficiencies in the existing Rules framed by the Corporation that the Resolution adopting the Karnataka Civil Service Regulations appears to have been passed by the Board. The background Note to the Resolution further shows that the same was passed not with a view to totally supplant the existing Rules framed by the Corporation but supplement the same so as to cover all such situations as were not specifically provided for or covered by the Rules framed by it. This would mean that the Karnataka Civil Services Regulations would be applicable only in regard to matters which were not otherwise covered by the Rules framed by the Corporation. This would mean that the Karnataka Civil Services Regulations would be applicable only in regard to matters which were not otherwise covered by the Rules framed by the Corporation. In other words, the adoption of the KCSR was not a measure aimed at abrogating the existing Rules and where ever the Corporation Rules, made a provision the KCSR would have no application. When seen thus, it is apparent that the provisions contained in Para 3.18 of the Rules framed by the Corporation prescribing the age of superannuation of the employees continued to remain operative despite the adoption of the KCSR. This follows a harmonious construction of the two sets of Rules." Reliance is placed on the afore extracted judgment to contend the applicability of several rules of the Government to the employees of the Corporation. The judgment itself notices the resolution extracted hereinabove, which was for a limited period up to the rules coming into force. The Rules having come into force on 20.09.1996, the Resolution would cease to operate and the judgment which considers the said Resolution which has ceased to operate on the promulgation of the Rules will be inapplicable to the facts of the case. 20. The other judgment in the case of B.N.Dhotrad Vs. The Board of Directors cum Appellate Authority and others, (2006) ILR(Kar) 3163, this Court has held as follows: "10. It appears that there were certain deficiencies in the existing Rules of the Corporation. Therefore, the Corporation has passed a resolution in its 74th Meeting adopting the Karnataka Civil Service Regulations (for short 'K.C.S.R.') and made them applicable to employees of the Corporation. This Court in Shankar v. Karnataka Land Army Corporation Limited, (1996) ILR(Kar) 1407 has held that adopting K.C.S.R. is to supplement the existing Rules so as to cover all situations as were not specifically provided for or covered by the Rules framed by it. It has been further held that K.C.S.R. would be applicable only in regard to matters which were not otherwise covered by the Rules framed in the Corporation. The adoption of K.C.S.R. was not a measure to abrogating the existing Rules and whenever the Corporation Rules made a provision, the KCSR would have no application. It has been further held that K.C.S.R. would be applicable only in regard to matters which were not otherwise covered by the Rules framed in the Corporation. The adoption of K.C.S.R. was not a measure to abrogating the existing Rules and whenever the Corporation Rules made a provision, the KCSR would have no application. Since there is no provision to appoint an in-charge Managing Director, the Corporation appears to have appointed the in charge Manager Director in accordance with the provisions of the K.C.S.R." The afore-extracted judgment relied upon by the learned counsel for the third respondent is a reiteration of the judgment in the case of Shankar (supra) and would be equally inapplicable to the facts of the case, as the case at hand concerns absence of power of the second respondent to entrust the enquiry to the hands of the Lokayukta. 21. Learned counsel for the Lokayukta also places reliance upon a subsequent resolution of the Board to contend that Karnataka Civil Services Rules is also adopted. The Resolution of the Board brooks no ambiguity as to what the Board adopts is Rule 87 of the Karnataka Civil Services Rules insofar as it concerns crediting the un-availed portion of leave of joining time. Here again it is a specific adoption of a particular provision of the service Rules of the Government which is not found in the Rules of the Corporation. An adoption of the kind that is now placed by the learned counsel appearing for the Lokayukta is the requirement of law and it is only such specific adoption that can bring in Rules of the Government to become applicable to the service conditions of employees of the Corporation. Therefore, the reliance placed on this document by the learned counsel is of no avail to support his contention of deemed adoption of KCS(CCA) Rules. 22. Learned counsel for Lokayukta submits that Lokayukta is created to root out corruption and such interference will dilute its object. This Court is not oblivious to the object of creation of Lokayukta which is to root out corruption, but, the object with which it is created will have to be executed only in accordance with law. 22. Learned counsel for Lokayukta submits that Lokayukta is created to root out corruption and such interference will dilute its object. This Court is not oblivious to the object of creation of Lokayukta which is to root out corruption, but, the object with which it is created will have to be executed only in accordance with law. I have held that there is no specific Rule in the Corporation for such entrustment as the KCS(CCA) Rules are not specifically adopted by the Board of the Corporation and the finding is rendered only in the absence of such adoption. This will not come in the way of the Corporation adopting the same and making the provisions of KCS(CCA) Rules applicable to the Board and will also not cause any impediment to the Corporation to proceed against the petitioners in terms of the service rules of the Corporation for the alleged misconduct. For the aforesaid reasons, the following: ORDER: (i) Writ petition is allowed. (ii) The order of entrustment dated 29.10.2018 in No. KRIDL/Adalitha/CR- Ballary/ 2018-19 vide Annexure 'L" is quashed. (iii) The consequent action of the fourth respondent issuing articles of charge against the petitioners is also quashed. (iv) Petitioners are held entitled to all the consequential benefits that would flow from quashing of the aforesaid order. (v) The setting aside the order of entrustment will not preclude the second respondent-Corporation to proceed against the petitioners under the Cadre and Recruitment Rules of the Corporation.