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2020 DIGILAW 758 (KAR)

N. T. Nagaraja S/o. N. v. Thimmappa Shetty VS State of Karnataka Rep. By Its Chief Secretary

2020-03-18

ALOK ARADHE, M.NAGAPRASANNA

body2020
ORDER : 1. In this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has inter alia assailed the validity of the order dated 28.4.2016 and 10.2.2017 passed by the Karnataka Administrative Tribunal, Bangalore (hereinafter referred to as ‘Tribunal’ for short), passed in the application No.9774/2015 as well as the review application No.2/2017 preferred by the petitioner. 2. In order to appreciate the petitioner’s challenge to the impugned order, few facts need to be mentioned which are as under: The petitioner was appointed as a Junior Engineer on 18.7.1983 in Public Works, Ports and Inland Water Transport Department. Thereafter, by an order dated 24.6.2015, the petitioner was placed in independent charge of the post of Assistant Executive Engineer under Rule 32 of Karnataka Civil Services Rules and his serves were lent to Rural Development and Panchayat Raj Department. While the petitioner was on deputation, one Y.G. Chandrashekar made a complaint before the Lokayukta police on 4.8.2009 against the petitioner and one Sri Shivaswamy, stating they are demanding illegal gratification for clearing of bills pending in respect of works executed by them in the Grama Panchayat. Thereupon, respondent No.2 entrusted an enquiry to be held against the petitioner and another delinquent employee under Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as ‘Rules’ for short). 3. The petitioner was served with articles of charge on 18.10.2012 along with delinquent employee namely, Sri Shivaswamy. By judgment dated 25.7.2015, the petitioner was acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. The enquiry officer, after conclusion of the enquiry, submitted enquiry report dated 2.6.2015 holding that the charges levelled against the petitioner found to be proved. The Lokayukta by order dated 10.6.2015 recommended for imposition of penalty of compulsory retirement against the petitioner. Respondent No.2Rural Development and Panchayat Raj Department by order dated 11.12.2015, imposed penalty of retirement on the petitioner. Being aggrieved, the petitioner challenged the same before the Tribunal in application 9774/2015, whereby the Tribunal dismissed the application by an order dated 28.4.2016. 4. The petitioner thereupon filed W.P. No.31194/2016 in which the challenge was made to the validity of the order dated 28.4.2016. The aforesaid writ petition was disposed of on 20.11.2016 with liberty to the petitioner to seek review of the order dated 28.4.2016. 4. The petitioner thereupon filed W.P. No.31194/2016 in which the challenge was made to the validity of the order dated 28.4.2016. The aforesaid writ petition was disposed of on 20.11.2016 with liberty to the petitioner to seek review of the order dated 28.4.2016. The petitioner thereafter filed an application for review of the order dated 28.4.2016, which was dismissed by an order dated 10.2.2017. In this factual background, the petitioner has approached this Court. 5. Learned Counsel for the petitioner submitted that the petitioner was an employee of Public Works, Ports and Inland Water Transport Department and his services were lent to Rural Development and Panchayat Raj Department. Before imposition of the penalty of compulsory retirement, procedure prescribed under Rule 15(2) of the Rules, ought to have been adopted, which had not been adhered to in the case of the petitioner inasmuch as the proceedings were not transmitted to the lending authority namely, Public Works, Ports and Inland Water Transport Department. It is further submitted that the impugned order has been issued by an incompetent authority namely, Secretary of Rural Development and Panchayat Raj Department in violation of the procedure prescribed under Rule 15(2) of the Rules. 6. On the other hand, learned Additional Government Advocate submitted that no prejudice has been caused to the petitioner on account of violation of Rule 15(2) of the Rules. It is further submitted that the aforesaid contention was not addressed before the Tribunal. In support of his submission, the learned Additional Government Advocate has placed reliance on the judgment of the Hon'ble Supreme Court in case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS Vs. PRABHASH CHANDRA MIRDHA reported in (2012)11 SCC 565 . 7. We have considered the submissions made by the learned Counsel for the parties and have perused the records. 8. It is trite proposition of law that where a power is given to do a certain thing, in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. [See RAMCHANDRA KESHAV ADKE & OTHERS Vs. GOVIND JOTI CHAVARE AND OTHERS reported in (1975)1 SCC 559 and GUJARAT URJA VIKASH NIGAM LTD Vs. ESSAR POWER LTD. reported in (2008)4 SCC 755 ]. [See RAMCHANDRA KESHAV ADKE & OTHERS Vs. GOVIND JOTI CHAVARE AND OTHERS reported in (1975)1 SCC 559 and GUJARAT URJA VIKASH NIGAM LTD Vs. ESSAR POWER LTD. reported in (2008)4 SCC 755 ]. It is equally well settled legal proposition that when a power is conferred on an Authority, the power has to be exercised by that Authority alone. In this connection, reference is made to the decision of the Hon'ble Supreme Court in case of COMMISSIONER OF POLICE, BOMBAY Vs. GORDHANDAS BHANJI reported in AIR 1952 SC 16 . 9. Before proceeding further, it is apposite to take note of the relevant statutory provisions, which reads as under: “ Rule 15: Provisions regarding lent officers: (1) xxxx (i) if the borrowing authority is of the opinion that any of the penalties specified in clause [(i) to (iva)] of rule 8 should be imposed on him, it may, in consultation with the lending authority, pass such orders on the case as it deems necessary: Provided that in the event of a difference of opinion between the borrowing authority and the lending authority the services of the Government servant shall be replaced at the disposal of the lending authority; (ii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (viii) of rule 8 should be imposed on him, it shall replace his services at the disposal of the lending authority and transmit it to the proceedings of the inquiry and thereupon the lending authority may, if it is the Disciplinary Authority pass such orders thereon as it deems necessary, or if it is not the Disciplinary Authority, submit the case to the Disciplinary Authority which shall pass such orders on the case as it deems necessary; (2) In the light of the findings in the disciplinary proceeding taken against the Government servant Provided that in passing any such order the Disciplinary Authority shall comply with the provisions of [Rule 11A.] Explanation.The Disciplinary Authority may make an order under clause (ii) of subrule (2) on the record of the inquiry transmitted by the borrowing authority, or after holding such further inquiry as it may deem necessary as far as may be in accordance with Rule 11. 10. 10. Thus, from the close scrutiny of Rule 15(2) of the Rules, it is evident that if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed on an employee, it shall replace his services at the disposal of the lending authority and transmit it to the proceedings of the inquiry and thereupon the lending authority may, if it is the Disciplinary Authority pass such orders thereon as it deems necessary, or if it is not the Disciplinary Authority, submit the case to the Disciplinary Authority which shall pass such orders on the case as it deems necessary. In other words, it is evident that the competent authority to impose penalty in respect of an employee, who is lent of deputation, is the disciplinary authority of his parent department. The competent authority to impose the penalty of compulsory retirement is the Public Works, Ports and Inland Water Transport Department whereas the penalty of compulsory retirement has been imposed by the Secretary, Rural Development and Panchayat Raj Department in violation of the procedure prescribed under Rule 15(2)(ii) of the Rules. Therefore, the impugned order dated 11.12.2015 passed by the 2nd respondent cannot be sustained in the eye of law. However, the aforesaid aspect of the matter has not been appreciated by the Tribunal while passing the impugned order. The impugned order suffers from the error apparent on the face of the record as well as judicial infirmity. 11. So far as the submission made by the learned Additional Government Advocate that no prejudice has been caused to the petitioner is concerned, suffice it to say that the aforesaid citation taken is of no assistance to the respondent in the fact situation of the case as the order is per se is without jurisdiction. Besides, it is well settled legal proposition that if a power is given to do a certain thing, in a certain way, the thing must be done in that way. In the instant case, admittedly the impugned order has been passed in flagrant violation of Rule 15(2)(ii) of the Rules. 12. Therefore, in view of the aforesaid analysis, the orders dated 28.4.2016 and 10.2.2017 are hereby quashed. The order dated 11.12.2015 passed by the 2nd respondent is also quashed. In the instant case, admittedly the impugned order has been passed in flagrant violation of Rule 15(2)(ii) of the Rules. 12. Therefore, in view of the aforesaid analysis, the orders dated 28.4.2016 and 10.2.2017 are hereby quashed. The order dated 11.12.2015 passed by the 2nd respondent is also quashed. However, the respondents are granted liberty to proceed against the petitioner after compliance of the provisions of Rule 15(2) of the Rules. With the aforesaid directions, the writ petition is disposed of.