PRESENT BETWEEN: East-II Sub-Division Kundalahalli, BEML...
Transcript of PRESENT BETWEEN: East-II Sub-Division Kundalahalli, BEML...
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF MARCH, 2016
PRESENT
THE HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON’BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION NO.2581/2016 (GM-KLA)
BETWEEN:
Sri S.V.Ramesh
S/o Late P. Venkatachalaiah
Aged about 51 years
Working as Assistant Executive Engineer
Bangalore Water Supply and
Sewerage Board
East-II Sub-Division
Kundalahalli, BEML Layout
Bangalore-560 066
..Petitioner
(By Sri M.S.Bhagwat, Adv.,)
AND :
1. State of Karnataka
Department of Urban Development
Represented by its Principal Secretary
Bangalore-560 001
R
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2. The Karnataka Lokayukta
Represented by its Registrar
M.S. Building
Bangalore-560 001
3. The Additional of Enquiries-6
Karnataka Lokayuktha
M.S.Building
Bangalore-560 001
4. Bangalore Water Supply and
Sewerage Board
9th Floor, Cauvery Bhavan
Rep. by its Chief Administrative Officer/
Secretary
Bangalore-09
(amended as per
Court Order dated 8.2.2016)
..Respondents
(By Sri E.S.Indiresh, HCGP for R-1)
(Sri G. Devaraj, Adv., for R-2 & R-3)
This Writ Petition is filed under Article 226 of the
Constitution of India praying to quash the impugned report
dated 7.4.2015 issued by the R-2 vide Annexure-J, the
impugned the order dated 12.6.2015 passed by R-1 vide
Annexure-A and Articles of charge dated 23.7.2015 issued
by R-2 vide Annexure-B.
This Writ Petition coming on for Preliminary Hearing
this day, MOHAN M. SHANTANAGOUDAR J., made the
following:-
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O R D E R
The petitioner has called in question, (a) the report of
Karnataka Upa-Lokayukta issued under Section 12(3) of
Karnataka Lokayukta Act, 1984 dated 7.4.2015; (b) the
order dated 12.6.2015 passed by the first respondent State
Government; and (c) the Articles of Charge dated
23.7.2015 issued by the second respondent Karnataka
Lokayukta against the petitioner.
2. Based on the allegation that the petitioner has
permitted an unauthorised and illegal construction in
property bearing No.1/1A, Rathna Complex, Byadarahalli,
Magadi Main Road, Bangalore, complaint came to be lodged
against the petitioner on 13.10.2010 before Karnataka
Lokayukta; the complaint reveals that the petitioner while
working as Assistant Executive Engineer, Herohalli Sub-
division under Bruhat Bangalore Mahanagara Palike (‘BBMP’
for short) during the period 5.3.2010 to 26.5.2010,
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permitted an unauthorised and illegal construction as
mentioned supra. The Statement of Objections were filed by
the petitioner before the Karnataka Upa-Lokayukta;
however, Upa-Lokayukta after conducting investigation,
submitted the report dated 7.4.2015 under Section 12(3) of
Karnataka Lokayukta Act, 1984 to the State Government
with the recommendation to initiate action against the
petitioner and similarly situated other officials. The State
Government passed the order dated 12.6.2015 vide
Annexure-A entrusting the Disciplinary Enquiry to the
Karnataka Upa-Lokayukta, to be held against the petitioner
and others. Pursuant to the said order dated 12.6.2015,
the Articles of charge are framed by the Karnataka
Upa-Lokayukta against the petitioner and others on
23.7.2015 vide Annexure-B. All these orders are called in
question in this writ petition.
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3. Learned counsel for the petitioner submits that the
petitioner is basically an employee of Bangalore Water
Supply and Sewerage Board (‘BWSSB’ for short) and he is
not an employee of the Urban Development Authority or
BBMP and therefore, Karnataka Lokayukta has no
jurisdiction to conduct the enquiry and it is only the
BWSSB, who has to conduct the enquiry; the State
Government has mechanically passed the order dated
12.6.2015 accepting the investigation report of Upa-
Lokayukta and entrusting the matter for disciplinary enquiry
to Karnataka Upa-Lokayukta; certain other employees
against whom similar allegations were made are not
proceeded with; the enquiry is sought to be held in respect
of the alleged act after the petitioner demitted the office at
BBMP.
4. All the aforementioned submissions made by the
learned counsel for the petitioner cannot be accepted. It is
not in dispute that the petitioner is an employee of BWSSB.
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It is also not in dispute that the petitioner was deputed to
work as Assistant Executive Engineer under BBMP in
Herohalli Sub-division from 5.3.2010 to 26.5.2010.
Undisputedly, the petitioner has discharged his duties as
Assistant Executive Engineer under BBMP during the said
period. Within the said period only, the alleged illegality is
committed by the petitioner. The unauthorised or illegal
construction was allegedly permitted by the petitioner while
he was working as Assistant Executive Engineer under
BBMP during relevant point of time.
5. Learned counsel for the petitioner relying on the
Judgment of this Court in the case of S.V. RAMESH .vs.
STATE OF KARNATAKA {2015(2) AKR 580} submits that
the order entrusting the disciplinary proceedings to the
Upa-Lokayukta is invalid inasmuch as the Government has
no power in respect of taking disciplinary action against the
employees of BWSSB. Thus according to him, the issuance
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of order by the Government and framing of articles of
charge by the enquiring authority is without jurisdiction.
6. It is no doubt true that the facts in the case of S.V.
Ramesh cited supra are exactly similar to the facts on hand.
In the said matter also, the employee of BWSSB was
deputed to work in BBMP and while working in BBMP certain
allegations were made and ultimately investigation was
conducted and report was submitted by Lokayukta under
Section 12(3) of the Lokayukta Act to the State
Government. In turn the State Government on
examination of the material, entrusted the disciplinary
proceedings to the Upa-Lokayukta under Rule-14-A of the
Karnataka Civil Services (Classification, Control and Appeal)
Rules, 1957 {‘CCA Rules’ for short). Hence it is clear that
the facts contained in the case of S.V. Ramesh cited supra
and facts contained in the matter on hand are one and the
same. However with respect, we disagree with certain
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reasons assigned and the conclusion arrived at by the
learned Single Judge in the case of S.V. Ramesh cited
supra.
7. Under Section-124 of the BWSSB Act, 1964 all
Officers and servants of the Board shall be deemed to be
public servants within the meaning of Section 21 of the IPC
and the Prevention of Corruption of Act, 1947. The words,
“State Government” and “Government” in Section 161 of
the IPC (as it existed prior to amendment of IPC of the year
2013 i.e., prior to 3.2.2013) shall for the purposes of sub-
section (1) of Section 124 of the BWSSB Act be deemed to
include the Board. Thus it is clear from Section 124 of the
BWSSB Act that the Officers of BWSSB are treated as public
servants within the meaning of Sections 21 and 161 of IPC
(prior to amendment as mentioned supra) as well as under
the provisions of Prevention of Corruption Act (after
amendment of IPC w.e.f. 3.2.2013).
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8. The Notification bearing No.SWL.72.LBW.82 dated
12th October 1982 issued by the Government of Karnataka
states that the Karnataka Civil Service Rules etc., are
adopted by BWSSB. It is made clear in the very
Notification that BWSSB shall follow Karnataka Civil Service
Rules etc., till the service regulations of BWSSB are
formulated. Notification No.BWSSB/CAO-S/112/Est-
1/4163/2005-06 dated 1.3.2006 issued by BWSSB discloses
that the Board has accorded approval to delegate to the
Chairman of the Board the power to impose major penalties
as specified in Rule 8(v) to (viii) of CCA Rules on the
employees holding posts for which the Chairman is the
Appointing Authority. In view of the aforementioned
Notifications, it is evident that CCA Rules are applicable to
BWSSB employees also for the purposes of conducting
investigation and disciplinary enquiry.
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9. Under Rule-15 of the CCA Rules, where the
services of the Government servant are lent to local or
other authority (i.e., the borrowing authority), the
borrowing authority shall have the powers of the Appointing
Authority for the purposes of placing an employee under
suspension and of the Disciplinary Authority for the purpose
of taking disciplinary proceedings against him. Proviso to
sub-rule (1) of Rule-15 of the CCA Rules further states that
the Borrowing Authority shall not take any disciplinary
proceedings against such servant without prior approval of
the Lending Authority (in this case ‘BWSSB’). However we
find that sub-Rule 2-B of Rule-15 of the CCA Rules has got
overriding effect and the same reads thus:
Rule-15 (sub-rule 2-B) of CCA Rules
(2-B) Notwithstanding anything contained in
these rules:-
(i) the Government in Urban Development
Department, in respect of Government Servant
holding a Group ‘A’ or ‘B’ post whose services are
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lent to City Municipal Corporation by an order
issued by the Government in Urban Development
Department under the Karnataka Municipal
Corporations Act, 1976;
(ii) the Commissioner, City Municipal
Corporation in respect of a Government servant
holding a Group ‘C’ or Group ‘D’ post whose
services are lent to the City Municipal
Corporation,
shall have the powers of the Appointing Authority
for placing such Government servant under
suspension and of the Disciplinary Authority for
the purpose of taking a disciplinary proceedings
against him and to impose any of the penalties
specified in clauses (i) to (iva) of Rule 8 on such
Government servant. It shall not be necessary
for the Government in Urban Development
Department or the Commissioner to get the
approval of, or to consult, the lending authority
or the Appointing Authority as the case may be,
before placing such Government servant under
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suspension or imposing on him any of the said
penalties.
From sub-Rule 2-B of Rule-15 of CCA Rules mentioned
supra, it is amply clear that the Government in Urban
Development Department, in respect of Government
servant holding a Group ‘A’ or ‘B’ post whose services are
lent to City Municipal Corporation by an order issued by the
Government under the Karnataka Municipal Corporations
Act, 1976, shall have the powers of the Appointing
Authority for placing Government servant under suspension
and of the Disciplinary Authority for the purpose of taking a
disciplinary proceedings against him and to impose any of
the penalties specified in clauses (i) to (iva) of Rule 8 on
such Government servant. It shall not be necessary for
the Government in Urban Development Department or the
Commissioner to get the approval of, or to consult the
lending authority or the Appointing Authority as the case
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may be, before placing such Government servant under
suspension or imposing on him any of the said penalties.
10. Rule 14-A of the CCA Rules states that the
provisions of sub-rule (2) of Rule 14-A shall,
notwithstanding anything contained in Rules 9 to 11-A and
13 of CCA Rules, be applicable for purposes of proceeding
against Government servants whose alleged misconduct
has been investigated into by the Lokayukta or an Upa-
Lokayukta either under the provisions of the Karnataka
Lokayukta Act or on reference from Government. Sub-rule
(2) of Rule 14-A deals with investigation and enquiry by
Lokayukta or Upa-Lokayukta. A reading of Rule 14-A of
CCA Rules in its entirety makes it further clear that
Lokayukta or Upa-Lokayukta may conduct investigation and
enquire into the allegations made against the Government
servant and after completion of the enquiry, the record of
the case alongwith the findings of the Enquiry Officer and
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recommendation of the Lokayukta or Upa-Lokayukta shall
be sent to Government.
11. In the matter on hand, the action has been taken
under the provisions of the Karnataka Lokayukta Act based
on the complaint lodged under Section 9 of the Karnataka
Lokayukta Act.
12. It would be beneficial to refer to the provisions of
the Karnataka Lokayukta Act. Section 2(12) of the
Karnataka Lokayukta Act defines “public servant”. Section
2(12(g) is relevant for the purpose of this case which reads
thus:
2 (12) “Public Servant” means a person who is
or was at any time.-
(a) to (f) xxx xxx
xxx xxx
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(g) a person in the service or pay of.-
(i) a local authority in the State of
Karnataka;
(ii) a statutory body or a corporation (not
being a local authority) established by or
under a State or Central Act, owned or
controlled by the State Government and any
other board or corporation as the State
Government may, having regard to its
financial interest therein, by notification, from
time to time, specify;
(iii) xxx xxx
(iv) xxx xxx
From the aforementioned definition, it is amply clear
that a person in the service or pay of a statutory body or a
Corporation established by or under a State or Central Act,
owned or controlled by the State Government and any
other Board or Corporation as the State Government may,
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having regard to its financial interest therein, by notification
specify, shall be the public servant.
Admittedly, in the matter on hand, the petitioner is in
service and pay of the BWSSB, which is a statutory body
established under the State Act. Thus he is a public servant
for the purposes of Karnataka Lokayukta Act.
13. Section 7 of the Karnataka Lokayukta Act deals
with matters which may be investigated by the Lokayukta
and an Upa-Lokayukta. Sub-sections (1), (2) and (2-A) of
Section-7 of the Karnataka Lokayukta Act are relevant to
the facts of this case, which read thus:
7. Matters which may be investigated by the
Lokayukta and an Upa-lokayukta.-
(1) Subject to the provisions of this Act, the
Lokayukta may investigate any action which is
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taken by or with the general or special approval
of.-
(a) xxx xxx
(b) any other public servant holding a post or
office carrying either a fixed pay, salary or
remuneration of more than rupees twenty
thousand per month or a pay scale the
minimum of which is more than rupees
twenty thousand, as may be revised, from
time to time in any case where a
complaint involving a grievance or an
allegation is made in respect of such action
or such action can be or could have been,
in the opinion of the Lokayukta, recorded
in writing, the subject of a grievance or an
allegation.
(2) Subject to the provisions of this Act, an
Upa-lokayukta may investigate any action which
is taken by or with the general or specific
approval of, any public servant not being the
Chief Minister, Minister, Member of the
Legislature, Secretary or other public servant
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referred to in sub-section (1), in any case where
a complaint involving a grievance or an
allegation is made in respect of such action or
such action can be or could have been, in the
opinion of the Upa-lokayukta (recorded in
writing), the subject of a grievance or an
allegation.
(2-A) Notwithstanding anything contained in
sub-sections (1) and (2), the Lokayukta or an
Upa-lokayukta may investigate any action taken
by or with the general or specific approval of a
public servant, if it is referred to him by the
State Government.
From the aforementioned provisions, it is further clear
that any public servant holding a post or office carrying
salary or remuneration of more than rupees twenty
thousand per month commits any illegality or irregularity,
the Lokayukta or Upa-Lokayukta may investigate such
matter involving any grievance or allegation. Lokayukta or
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an Upa-Lokayukta may also investigate any action if it is
referred to him by the State Government.
14. Section 9 of the Karnataka Lokayukta Act
contains the provisions relating to complaints and
investigations against the public servant. As per the said
provision, any person may make a complaint under the
Karnataka Lokayukta Act to the Lokayukta or an Upa-
Lokayukta. Where a complaint is made, and if the
Lokayukta or Upa-Lokayukta proposes, after making such
preliminary inquiry as he deemed fit, to conduct any
investigation under Lokayukta Act, he shall forward a copy
of the complaint to the concerned public servant and the
Competent Authority concerned. In case of an investigation
initiated suo moto by the Lokayukta or Upa-Lokayukta, the
opinion recorded by him to initiate investigation will be
forwarded to the public servant and the Competent
Authority concerned. Thereafter the public servant will be
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afforded an opportunity to offer his comments on such
complaint and thereafter the investigation will take place as
prescribed under Section 9 of the Karnataka Lokayukta Act.
15. From the aforementioned discussion, it is amply
clear that by virtue of the Notifications dated 12.10.1982
and 1.3.2006 mentioned supra, the CCA Rules are made
applicable to the BWSSB officials also. Thus aforementioned
provisions of CCA Rules clearly depict that disciplinary
action can be initiated against the petitioner (BWSSB
employee) without taking consent of BWSSB under the
provisions of Lokayukta Act. Moreover as clarified by us
in the aforementioned paragraphs, the petitioner falls within
the definition of ‘public servant’ as found under Section
2(12)(g) of the Karnataka Lokayukta Act. Hence there is
no hurdle for Upa-Lokayukta to investigate into the matter
and to submit the report under Section 12(3) of the
Karnataka Lokayukta Act. So also there is no bar for the
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State Government to entrust the matter for disciplinary
enquiry to Upa-Lokayukta as per the provisions of Section
12(4) of the Karnataka Lokayukta Act.
16. In view of the above, we are unable to agree with
the finding laid down by the learned Single Judge in the
case of S.V. RAMESH .vs. STATE OF KARNATAKA {2015(2)
AKR 580} that Karnataka Lokayukta has no jurisdiction to
investigate and enquire into such matters and hence such
finding is liable to be overruled and accordingly, the same
stands overruled.
17. The report of Upa-Lokayukta dated 7.4.2015
clearly reveals that the complaint came to be lodged
against many persons. However, Upa-Lokayukta on
conducting investigation in the matter has submitted the
report to the State Government with a recommendation to
initiate disciplinary action only against certain persons, who
were allegedly involved in the incident. The employees,
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who were actually not involved in the incident were dropped
from enquiry and such persons were exonerated.
Therefore, it is not open for the petitioner to contend that
he should not have been proceeded with, particularly when
Upa-Lokayukta after conducting investigation, has
concluded that prima facie material is found against the
petitioner.
18. So also there is no bar for conducting
investigation/ Disciplinary Enquiry in the matter, even after
the petitioner’s transfer from one particular place. There is
no hard and fast rule that the enquiry should be initiated by
department, only when the petitioner was holding the office
during particular period and at a particular place. The Rules
permit that the enquiry may be conducted even after his
transfer from one place to another.
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19. Since the charges are already framed and
enquiry is being proceeded with, it is open for the
petitioner to contest the proceedings on facts. This
Court, will not sit in appeal on the orders passed by
the Upa-Lokayukta or the State Government on facts
as if it is an Appellate Authority. In view of the same,
we do not find any ground to interfere with the
impugned report dated 7.4.2015, impugned order
dated 12.6.2015 and impugned Articles of Charge
dated 23.7.2015. Hence, the petition fails and the
same stands dismissed accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
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