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2022 DIGILAW 1214 (KAR)

T. R. Raghunath v. State Of Karnataka

2022-09-15

C.M.JOSHI, G.NARENDAR

body2022
ORDER : G. Narendar, J. Heard the learned counsel for the petitioner and learned High Court Government Pleader for respondent No.1. There is no representation on behalf of respondent No.2. 2. The facts are not in dispute and the short question that arises for consideration is whether the enquiry directed against the petitioner and conducted by respondent No.2 is without jurisdiction? 3. The case of the petitioner is that his services have been utilized by the Department of Municipal Administration as a Junior engineer on a daily wage basis from the year 1996 and till date of the impugned order he was continued in the service as a casual employee and daily wager and his services have neither been regularized nor it appears that he had sought for regularization. 4. In the above background, it is contended that on 30.09.2014, a complaint came to be lodged before the City Corporation, Tumkur, where he was discharging duties as Junior Engineer in Ward No.23, Jagannathapura Layout. In the complaint, it was stated that the construction had been put up by one Lakshmaiah without obtaining requisite sanction and also without leaving any set back as per the building by-laws. 5. On, no action being taken, the complainant approached respondent No.2 complaining inaction by the officers in charge. It is contended that on receipt of the complaint, the Assistant Executive Engineer issued notice to the building owner calling upon him to furnish his reply to the complaint. Despite the above but pursuant to the complaint, respondent No.2 issued notice to the petitioner. The petitioner has replied to the said notice. Upon receipt of replies from the petitioner and the building owner, respondent No.2 has drawn up and sent a report under Section 12(3) of the Karnataka Lokayuktha Act, 1984 and the same was forwarded to respondent No.1 recommending initiation of disciplinary proceedings against the petitioner and another person, namely, Sri. N.K.Vishwanath. 6. In response, respondent No.1 has issued an order on 28.02.2017 invoking the provision of Rule 14-A of the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957 entrusting the Departmental enquiry to the respondent No.2. Pursuant to the entrustment, respondent No.2 has conducted an enquiry and the complainant-Sri.Shivanandaiah was examined as PW1 and Sri.N.K.Vishwanath was examined as DW1. N.K.Vishwanath. 6. In response, respondent No.1 has issued an order on 28.02.2017 invoking the provision of Rule 14-A of the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957 entrusting the Departmental enquiry to the respondent No.2. Pursuant to the entrustment, respondent No.2 has conducted an enquiry and the complainant-Sri.Shivanandaiah was examined as PW1 and Sri.N.K.Vishwanath was examined as DW1. Exhibits P1 to P11 were marked on behalf of the respondents and Exhibit D1 and D2 were marked on behalf of the delinquent government officers and on conclusion of the enquiry, report was submitted to respondent No.1 holding that the charges have been proved and it was recommended that respondent No.1 impose penalty of withholding of two annual increments with cumulative effect as against the DGO and based on the recommendations, a show cause notice came to be issued to the petitioner as to why penalty should not be imposed. The petitioner has replied to the show cause notice and thereafter, based on the reply, the respondent No.1 has passed the impugned order dated 18.01.2020 imposing penalty of removal from service. 7. Aggrieved by the same, the petitioner has approached the Tribunal. Apart from several grounds urged by the petitioner, it was also contended that the Civil Services Rules are inapplicable to the petitioner as the petitioner was appointed as a daily wager and has been continued till date as a daily wager. That the initiation of the enquiry is contrary to the ambit of Rule 3 of the Rules, 1957. The said Rule 3 of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, reads as under: "3.Application - (1) These rules apply to all Government Servants except:- (a) Persons employed in any Industrial undertaking of the Government other than the Government Central Press, Bengaluru 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 196), are application.) (b) Persons in casual employment; (c) Persons subject to discharge from service on less than one month's notice: XXX" 8. The writ petition can be disposed of on the short ground of maintainability of the disciplinary proceedings. The writ petition can be disposed of on the short ground of maintainability of the disciplinary proceedings. On the reading of Rule 3, it is apparent that Sub Rule (1) (b) of Rule 3 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 clearly exempts the persons in casual employment from the ambit of the Rules, 1957. It is not disputed that the present petitioner was employed and continued till the date of impugned order as a daily wager. In fact, the said contention has been considered by the Tribunal in Paragraph 10, which reads as under: "10. Regarding the contention of the learned counsel for the applicant that the applicant is not a civil servant and he is a daily wage worker, therefore, the provisions of KCS(CC&A) Rules are not made applicable and hence, on that ground the impugned order is liable for quashing is concerned, we are referring to the provisions of the Karnataka Daily wage Employees Welfare Act, 2012 and Section 6 of the said Act reads as under: "6. Termination for misconduct: No order terminating the services of a daily wage employee who has been continued under the provisions of this Act, for any misconduct shall be passed by the competent authority without holding a summary enquiry after giving a reasonable opportunity of being heard to the employee". But, in the case on hand, it is not a summary enquiry but full pledged enquiry has been conducted giving reasonable opportunity to the applicant herein to participate in the enquiry proceedings and accordingly, the applicant participated in the enquiry proceedings before the enquiry officer. Even after submission of the report, second show cause notice was also issued to the applicant, giving him an opportunity to submit his explanation, if any and only after that the disciplinary authority proceed to pass the impugned order. Therefore, the contention of the applicant in that regard that he is entitled for quashing of the impugned order holds no water. Looking to the nature, gravity and seriousness of the charge proved against the applicant, the penalty of removal of the applicant from service with immediate effect is reasonable, proper and proportionate. There is no merit in the application and application is liable for dismissal. Hence, the application is hereby dismissed. 9. Looking to the nature, gravity and seriousness of the charge proved against the applicant, the penalty of removal of the applicant from service with immediate effect is reasonable, proper and proportionate. There is no merit in the application and application is liable for dismissal. Hence, the application is hereby dismissed. 9. While negating the contention, the Tribunal has placed reliance on the provisions of Section 6 of the Karnataka Daily Wage Employees Welfare Act, 2012,(hereinafter referred as 'Act, 2012' for short) which reads as under: "6. Termination for misconduct: No order terminating the services of a daily wage employee who has been continued under the provisions of this Act, for any misconduct shall be passed by the competent authority without holding a summary enquiry after giving a reasonable opportunity of being heard to the employee". 10. From the reading of the above, it is apparent that no order of termination of services of a daily wage employee is permitted unless and until it is preceded by a summary enquiry. 11. Section 5 of the Act, 2012 deals with the conduct and discipline and stipulates that the provisions of the Rules, 1957, shall be applicable to daily wage employers. Though at a first glance, it could be said that the Conduct Rules are applicable, the Tribunal has missed a crucial point while holding that the Conduct Rules are applicable to daily wage employer. It failed to take into note the provisions of Section 3 (2) of the Karnataka Daily Wage Employees Welfare Act, 2012, which reads as under: "3.(2) The State Government shall within one year from the date of commencement of this Act shall notify the names of eligible daily wage employees of all establishments for the purpose of Sub-section (1). " 12. It is fairly contended by learned High Court Government Pleader for the respondent No.1 that the name of the petitioner has not been notified though it is not in doubt that he is employed with a notified institution. The fact remains that the names of the persons eligible to protection under the Act, 2012 are required to be notified by the State Government within a year from the date of enactment of the statute. 13. It is fairly submitted that no notification notifying the petitioner as a daily wager in the notified establishment has been issued till date. The fact remains that the names of the persons eligible to protection under the Act, 2012 are required to be notified by the State Government within a year from the date of enactment of the statute. 13. It is fairly submitted that no notification notifying the petitioner as a daily wager in the notified establishment has been issued till date. In that view of the matter, unless and until the name of the daily wagers is notified by the State Government, the provisions of the Karnataka Daily Wage Employees Welfare Act, 2012 cannot be invoked, muchless the provisions of Section 6 can be invoked. 14. In that view of the matter and in view of the undisputed fact, we are constrained to hold the finding of the Tribunal that the enquiry is sustainable in view of the provisions of Sections 5 and 6 of the Karnataka Daily Wage Employees Welfare Act, 2012 as bad in law and negative the same. 15. The petitioner not being notified as a daily wager in terms of Section 3 of the Karnataka Daily Wage Employees Welfare Act, 2012, the provisions of Rule 3 (1)(b) kicks in and the enquiry has to be held as one without jurisdiction. Consequently, the entrustment invoking the provisions of Rule 14-A of the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957 also suffers from grave error for want of jurisdiction. On that ground also, the enquiry and consequential report are to be held as being without jurisdiction. Accordingly, we are of the considered opinion that disciplinary enquiry requires to be set aside and is accordingly, set aside. Consequentially, the penalty imposed is also of no consequence and is accordingly, set aside.