N P Balaraju vs State Of Karnataka
2021 Latest Caselaw 6175 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.10558/2018 (S-DE)

BETWEEN:

N P BALARAJU
AGED ABOUT 54 YEARS
S/O H.V. PUTTASWAMY
WORKING AS TECHNICAL DIRECTOR-II
(ADDITIONAL CHARGE), KARNATAKA
SLUM DEVELOPMENT BOARD
RESILDAR STREET
SESHADRIPURAM
BENGALURU -560 020.
                                        ...PETITIONER

(BY SRI P.S.RAJAGOPAL, SR.COUNSEL FOR
 SRI K PUTTEGOWDA, ADV.)


AND:

  1. STATE OF KARNATAKA
     BY ITS PRINCIPAL SECRETARY TO GOVT.,
     DEPARTMENT OF HOUSING
     VIKAS SOUDHA
     BENGALURU - 560001.

  2. KARNATAKA SLUM DEVELOPMENT BOARD
     RESILDAR STREET, SESHADRIPURAM
     BENGALURU - 560 020
     REP. BY ITS COMMISSIONER.
                                2

    3. KARNATAKA LOKAYUKTA
       M.S.BUILDING
       DR.AMBEDKAR VEEDHI
       BENGALURU - 560 001
       REP. BY ITS REGISTRAR.
                                    ....RESPONDENTS
(BY SRI D.S.SHIVANAD, AGA FOR R1
 SRI M.P. SRIKANTH, ADV. FOR R2
 SRI VENKATESH S ARBATTI, ADV. FOR R3)

       THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE ORDER DATED
24.06.2016 OF GOVERNMENT AND QUASH (I) ORDER OF
GOVERNMENT DATED 24.06.2016 (UNDER ANNEXURE-Q TO
THE WRIT PETITION) ISSUED BY THE 1ST RESPONDENT AND
(II) CHARGE SHEET DATED 24.11.2016 (UNDER ANNEXURE-
S TO THE WRIT PETITION) ISSUED BY THE 3RD RESPONDENT
AND GRANT ALL CONSEQUENTIAL BENEFITS.

    THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED   ON     04/12/2021 COMING  ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                      ORDER

The petitioner, an Executive Engineer working as

Technical Director-II of 2nd respondent-Karnataka Slum

Development Board (for short "Board") is before this Court

under Article 226 of the Constitution of India, praying for

a writ of certiorari to quash Government order bearing

No.ªÀE 15 PÉÆêÀÄA¸Éà 2016 dated 24.06.2016 (Annexure-Q)

and to quash Articles of Charge bearing No.G¥À¯ÉÆÃPï-

1/rE/218/2016/C.¤.«-7 dated 24.11.2016 (Annexure-S).

2. Heard learned Senior counsel

Sri P.S.Rajagopal for Sri K.Puttegowda, learned counsel

for the petitioner, Sri Venkatesh S.Arbatti, learned counsel

for respondent No.3, Sri M.P.Srikanth, learned counsel for

respondent No.2 and Sri D.S.Shivanand, learned AGA for

respondent No.1.

3. Petitioner is an Executive Engineer in the 2nd

respondent-Board. On a complaint received by Karnataka

Lokayukta/3rd respondent herein, in exercise of its power

under Section 9 of the Karnataka Lokayukta Act, 1984 (for

short "1984 Act") investigated the complaint against the

petitioner and other Officers of the 2nd respondent-Board.

After investigation, Upa-Lokayukta submitted report dated

11.05.2016 under Section 12(3) of 1984 Act

recommending enquiry into the allegations of dereliction of

duty and misconduct of the petitioner and others. The 1st

respondent-Government, on receipt of report from the

Upa-Lokayukta under Section 12(3) of 1984 Act, as

required under Section 12(4), entrusted the enquiry to the

Upa-Lokayukta by impugned order dated 24.06.2016

under Rule 14-A of the Karnataka Civil Services

(Classification, Control and Appeals) Rules 1957 (for short

"CCA Rules") against the petitioner as well as 3 others.

On entrustment, Upa-Lokayukta nominated the Additional

Registrar of Enquiries-7 to enquire into the allegations

against the petitioner and others. The Enquiry Officer

issued Articles of Charges dated 24.11.2016.

4. Learned Senior Counsel appearing for the petitioner

contends that entrustment of enquiry against the

petitioner by the 1st respondent to 3rd respondent/Upa-

Lokayukta is one without jurisdiction as the 1st

respondent-Government is neither the appointing

authority nor disciplinary authority in relation to the

petitioner. Learned Senior Counsel submits that the

recommendation of the Upa-Lokayukta in his report under

Section 12(3) of 1984 Act is to the disciplinary authority to

entrust the enquiry to the Upa-Lokayukta and the

Disciplinary authority in relation to the petitioner is the

Board and the Board has jurisdiction to take action on the

report of the Upa-Lokayukta. Learned Senior Counsel

referring to Rule 5 of the Karnataka Slum Clearance Board

Services (Cadre and Recruitment and Conditions of

service) Rules 1999 (for short "1999 Rules") submits that

CCA Rules would mutatis mutandis be applicable to the

Board employees. Referring to Rule 14-A of the CCA Rules,

learned Senior Counsel would submit that wherever, the

"Government" and "Government Servant" occurs in Rule

14-A, "Board" and "Board servant" is to be read into the

Rule. Further, referring to Schedule-III to the Karnataka

Slum Clearance Board Services (Cadre and Recruitment

and Conditions of Service) (Amendment) Rules 2010

submits that in relation to Executive Engineer, Board is

the appointing authority as well as disciplinary authority.

5. Learned Senior Counsel submits that since the

Board is the appointing and disciplinary authority in

relation to the petitioner, the first respondent-Government

could not have exercised its power to entrust the enquiry

to the Upa-Lokayukta in exercise of its power under Rule

14-A of CCA Rules. It is his submission that the Board is

competent to take disciplinary action against the

petitioner and is competent to take action on the report of

the Upa-Lokayukta submitted under Section 12(3) of 1984

Act. Learned Senior Counsel invites attention of this

Court to a decision of the Division Bench of this Court in

W.P.No.12300/2020 and connected writ petitions

(R.F.HUDEDAVAR v/s THE STATE OF KARNATAKA AND

OTHERS) and submits that the issue raised in these writ

petitions with regard to entrusting the enquiry by the

Government in respect of the Board servant is answered

by order dated 23.07.2021, as such, he submits that in

terms of the above order, the impugned orders are liable to

be quashed. He particularly invites attention of this Court

to paragraphs 22, 29, 30, 37 and 38.

6. Learned counsel for the second respondent-Board

submits that since the petitioner is a Board employee,

Board is the competent authority to initiate disciplinary

proceedings and to entrust the enquiry to the Upa-

Lokayukta. In that regard, he places reliance on the

decision of the Division Bench of this Court dated

04.10.2021 in W.P.No.31727/2018 KAPINI GOWDA B.M.

V. STATE OF KARNATAKA AND OTHERS wherein, in

respect of the employees of the second respondent-Board,

this Court had quashed the entrustment order only on the

ground that the Board is competent authority to pass

order to entrust the enquiry to the Lokayukta or Upa-

Lokayukta.

7. Learned counsel Sri Venkatesh S Arbatti appearing

for 3rd respondent submits that the writ petition of the

petitioner challenging the entrustment of enquiry as well

as articles of charge is not maintainable and is liable to be

dismissed. Learned counsel would submit that the Board

adopted CCA Rules and following Rule 14-A of the CCA

Rules the Government has rightly entrusted the enquiry to

Upa-Lokayukta. Learned counsel referring to explanation

to Rule 5 of 1999 Rules submits that Government has

jurisdiction over the petitioner and as such he justifies the

entrustment as well as the articles of charge. Learned

counsel places heavy reliance on the unreported decision

of the Division Bench dated 30.01.2020 in Writ Petition

No.105359/2019 SRI R.V. JATTANNA AND ANOTHER

Vs. STATE OF KARNATAKA AND OTHERS to contend

that petitioner is a public servant covered under Section

2(12)(g) of the 1984 Act and as such there is no bar for the

State Government to entrust the enquiry to Upa-

Lokayukta in respect of a public servant. Hence he prays

for dismissal of the writ petition.

8. Having heard the learned counsels for the parties

and on perusal of the writ petition papers, the only point

which falls for consideration is as to whether the

Government is competent to entrust the enquiry under

Rule 14-A of CCA Rules to the Upa-Lokayukta in respect

of an employee of second respondent-Board.

9. The answer to the above point is in the negative for

the following reasons:

The answer to the above point is no more res integra

in view of the decision of two Division Benches order dated

23.07.2021 in W.P.No.12300/2020 and connected writ

petitions and order dated 04.10.2021 in

W.P.No.31727/2018, wherein it is held that petitioners

therein not being Government servants under the

provisions of the CCA Rules, the entrustment of the

enquiry by the Government under Rule 14A of the CCA

Rules to the Lokayukta is without power and jurisdiction.

10. The petitioner herein is an officer of the second

respondent-Board working as Executive Engineer. The

Board is a statutory Board; an independent entity and an

autonomous institution governed by its own rules and

regulations. The Board employees are governed by the

1999 Rules. Rule 3(2) defines appointing authority,

which means the authority specified in column (3) of

Schedule III. Schedule III column (6) reads as follows :-

SCHEDULE-III

Nature Appellate/ Sl. Appointing Disciplinary Post of Review No. Authority Authority penalties Authority All Governor/

1. Commissioner Govt/GOI Govt/GOI Penalties President All

2. Technical Director Government Govt. Governor Penalties Deputy Director of All

3. Government Govt. Governor Statistics Penalties Chief Accounts All

4. Government Govt. Governor Officer Penalties Community All

5. Development Board Board Government Penalties officer Executive All

6. Board Board Government Engineer (Board) Penalties Executive All 6a. Engineer Government Govt. Government Penalties (Deputation) Secretary All

7. Government Govt. Governor (Deputation) Penalties Asst. Executive Commissioner, All

8. Board KSCB Board Board Engineer (Board) Penalties

The above schedule in respect of Executive Engineer of the

Board makes it clear that the 'Board' is the Appointing as

well as Disciplinary Authority.

11. Under Rule 5 of the 1999 Rules the Board has

adopted CCA Rules to the Board employees. Rule 5 of the

CCA Rules reads as follows:-

5. Application of certain rules:- The provisions of,

(i) The Karnataka Civil Service Rules;

(ii) The Karnataka Civil Service(Conduct) Rules,1966:

(iii) The Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957;

(iv) The Karnataka Civil Services (General Recruitment) Rules,1977;

(v) The Karnataka Civil Services (Probation) Rules, 1977;

(vi) The Karnataka Civil Services (Performance Report) Rules.1994;

(Vii) The Karnataka Government Servants (Seniority) Rules, 1957;

(viii) The Karnataka Civil Service (Service and Kannada Language Examinations) Rules, 1974;

and all other rules applicable to Government servants relating to recruitment and conditions of service shall mutatis mutandis be applicable to the Board employees.

Explanation.- Unless the context otherwise requires, the expressions "Government Servant", "Head of the Department', " the Government" or " the Governor'' wherever they occur, in the rules mentioned above shall respectively means "Board employee", "Secretary". "Board" and "the Government in Housing Department":

Provided that in case of the Karnataka Civil Services (Service and Kannada Language Examinations) Rules,1974 any reference to

Schedule II of that rules shall be construed as reference made to Schedule II of these rules:

Provided further that in case of the Karnataka Civil Services (Classification, Control and Appeal) Rules,1957, any reference to Schedule III or IV of that rules shall be construed as reference to Schedule III of these rules.

A cumulative reading of the provisions extracted above

discloses that insofar as the petitioner-Executive Engineer

of the Board, Board is the appointing as well as

disciplinary authority. Board has adopted CCA Rules to

its employees. Explanation to Rule 5 makes it clear that

unless the context otherwise requires, wherever the

expressions "Government Servant", "Head of the

Department", "the Government" or "the Governor" in the

Rules mentioned in Rule 5 of 1999 Rules means "Board

employee", "Secretary", "Board" and "the Government in

Housing Department". Therefore, while reading Rule 14-A

of CCA Rules which empowers entrustment of enquiry to

Lokayukta or Upa-Lokayukta as the case may be,

wherever the word "Government" occurs it shall be read as

the "Board".

12. Section 2 (12) of the 1984 Act defines "public

servant". As defined under Section 2(12)(g)(ii) of the 1984

Act, no doubt the petitioner is a public servant. Petitioner

being an employee of second respondent-Board is

governed by 1999 Rules as well as CCA Rules. As stated

above in relation to the petitioner, the second respondent-

Board is the appointing as well as the disciplinary

authority. The first respondent-Government which

entrusted the enquiry to the Upa-Lokayukta under the

impugned order is neither the appointing nor the

disciplinary authority insofar as the petitioner is

concerned.

13. As stated above, the Division Bench of this Court in

R.F. HUDEDAVAR (supra) examined the question as to

whether the State Government could entrust the enquiry

to Lokayukta or Upa-Lokayukta as the case may in

respect of an employee belonging to Board and

Corporations, who are public servants. The Division

Bench on examining the relevant C & R Rules, provisions

of 1984 Act, KCSRs and CCA Rules, held that State

Government could not have entrusted the enquiry to the

Upa-Lokayukta under Rule 14-A of the CCA Rules in

respect of an employee of the Board or Corporation, who

are not Government servants but public servants. The

relevant portion of the judgment at paragraphs 25 to 31

reads as follows:-

"25. Section 12 of the KL Act refers to the expression "competent authority" to which the report has to be sent under sub-section (1) of Section 12 of the KL Act, on a preliminary investigation being made on a complaint under Section 9 thereof by the Lokayukta or Upa- lokayukta. The expression "competent authority" in relation to a public servant is defined under Section 2(4) of the KL Act to mean, inter alia, such authority as may be prescribed.

26. Rule 3 of the Karnataka Lokayukta Rules, 1985 ('KL Rules' for short), prescribes that in respect of the public servants referred to in sub- clause (d) of clause (4) of Section 2, the Government of Karnataka shall be the Competent Authority. The expression "public servant" is defined in Section 2(12) of the KL Act, to mean, inter alia, a person in the service or pay of, 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; a Company registered under the Companies Act, 1956, in which not less than fifty-one percent of the paid up share capital is held by the State Government, or any company which is a subsidiary of such Company.

27. Thus, the report submitted under Section 12(2) of the KL Act is to the competent authority. On an analysis of the aforesaid provisions insofar as a Government Company or a

Corporation is concerned, an employee under the service of such a Company is a public servant and in the case of a public servant, the competent authority is the Government of Karnataka in terms of Rule 3 of the KL Rules.

28. While the definition of "public servant" is under Section 2(12) of the KL Act, it is noted that Section 2(6) of the said Act defines a "Government Servant" to mean a person who is a member of the Civil Services of the State of Karnataka or who holds a civil post or is serving in connection with the affairs of the State of Karnataka and includes any such person whose services are temporarily placed at the disposal of the Government of India, the Government of another State, a local authority or any person whether incorporated or not, and also any person in the service of the Central or another State Government or a local or other authority whose services are temporarily placed at the disposal of the Government of Karnataka.

29. The entrustment of the inquiry in the instant

case has been made by the State Government, which is the competent authority under Rule 14-A of the CCA Rules, to the Lokayukta, which is questioned by the petitioners herein. It is necessary to note that Rule 14-A of the CCA Rules applies only to Government servants and not public servants. As to the definition of Government servants under CCA Rules is concerned, Rule 2(d) of the CCA Rules defines a "Government Servant" in identical terms as "Government Servant" is defined under the KL Act. The expression 'Government servant' under the CCA Rules does not include within its scope and ambit a 'public servant'. The same is also the position on a reading of the definitions of "Government servant" and "public servant" under the KL Act. Therefore, Rule 14-A of the CCA Rules applies to a "Government servant" and not to a "public servant". That is why the expression "Government servant" is defined under Rule 2(d) of the CCA Rules but the said Rules do not define a "public servant". On the other hand, a reading of Rule 3 of CCA Rules would make the position clear inasmuch as, while the CCA Rules apply to all Government

servants, Rule 3 of the CCA Rules is an exception. On a reading of the same, it is clear that the CCA Rules do not apply to persons for whose appointment and other matters are not covered by those Rules, as special provisions are made by or under any law for the time being in force or in any contract, in regard to the matters covered by such law or such contract. In other words, the CCA Rules would not apply to those public servants who are covered by special provisions or by any contract with regard to matters covered by such law or such contract. Therefore, when there are separate Rules, which are applicable to the employees of a statutory body or a Government Company or a subsidiary of a Government company, the CCA Rules do not apply, just as in the instant cases, there are separate Rules in the form of C&R Rules applicable to the employees of the KRIDL.

30. Thus, on a conjoint reading of Rule 14-A with Rules 2(d) and 3 of the CCA Rules, it is evident that the CCA Rules are not applicable to the petitioners in the instant cases. Although, the employees of such a statutory body or a

Corporation or a Government company are "public servants" and therefore, the provisions of KL Act applies to them, they are not "Government servants" within the meaning of Rule 2(d) read with Rule 14-A of the CCA Rules. Thus, even though under the provisions of KL Act and the KL Rules, the competent authority for employees of such a statutory body or a Corporation or a Government Company (who are in any case public servants within the meaning of Section 2(12) of the KL Act) is the Government of Karnataka, but, such employees are "not Government servants" within the meaning of Rules 2(d) and 3 of the CCA Rules. Hence, on receipt of a report under Section 12(2) of the KL Act by the competent authority, namely, the Government of Karnataka, vis-à-vis the employees of such statutory bodies or Corporation or Government Companies, such as KRIDL in the instant case, it has to be sent to the Disciplinary Authority under the C&R Rules of KRIDL for the purpose of taking a decision with regard to the conduct of inquiry and not directly entrust the inquiry to the Lokayukta under Rule 14-A of the CCA Rules. In other words, Rule

14-A of the CCA Rules applies only to "Government servants" as defined under Rule 2(d) of the CCA Rules and as excepted under Rule 3 thereof. The object of submitting the Report under Section 12(2) of the KL Act to the State Government (competent authority) is to appraise the State Government about the enquiry made against a "public servant" by the Lokayukta/Upa-lokayukta, as the case may be.

31. Therefore, we find considerable force in the arguments of the learned counsel for the petitioners to the effect that Rule 14-A of the CCA Rules does not apply to the employees of the KRIDL such as the petitioners herein. Even though they may be "public servants" within the meaning of the KL Act, they are not "Government Servants" within the meaning of the said Act as well as CCA Rules. Though the Government of Karnataka is the competent authority under the KL Act, the petitioners, not being Government Servants under the provisions of the CCA Rules, the entrustment of the inquiry under Rule 14-A of the CCA Rules to the Lokayukta is without power and jurisdiction. On that short ground

alone, orders passed by the State Government entrusting the inquiry to the Lokayukta are liable to be quashed".

13. The principles laid down in the above decision

squarely apply to the facts of the present case. Since the

respondent-Board has specifically adopted CCA Rules for

the Board employees, the Board could entrust the enquiry

by considering Section 12(3) report submitted by the Upa-

Lokayukta under Rule 14-A of CCA Rules and not

Government.

14. The contention of the learned counsel Sri.Arbatti for

respondents that the decision in HUDEDAVAR (Supra)

would not be applicable and decision in JATTANNA

(Supra) would be applicable to the facts of the present

case is untenable. In JATTANNA case, in respect of the

petitioners therein, Department of Municipal

Administration was the disciplinary authority, as such,

Government entrusted the enquiry to the Lokayukta or

Upa-Lokayukta as the case may be. In HUDEDAVAR

case, the Division Bench took note of the definition of

'public servant' under 2(12)(g)(ii) of 1984 Act, Rule 14-A of

CCA Rules and relevant C&R Rules and has arrived at a

conclusion that in respect of employees of Board, since

they are not Government servants, the disciplinary

authority-Board would be competent to entrust the

enquiry to the Lokayukta or Upa-Lokayukta as the case

may be and not the Government. Moreover, it is settled

principle of law that where there are two judgments

rendered by the Benches consisting of equal number of

judges, the latter in time would prevail (ILR 2003 KAR

3562 in KARNATAKA STATE ROAD TRANSPORT

CORPORATION AND OTHERS v/s SMT.R.MAHESHWARI

AND OTHERS).

15 For the reasons recorded above, the writ petition is

allowed. The Government Order bearing No.ªÀE 15

PÉÆêÀÄA¸Éà 2016 dated 24.06.2016 (Annexure-Q) and

Articles of Charge bearing No.G¥À¯ÉÆÃPï-

1/rE/218/2016/C.¤.«-7 dated 24.11.2016 (Annexure-S)

are quashed. Liberty is reserved to the second

respondent-Board to consider the report dated 11.05.2016

forwarded by the Upa-Lokayukta under Section 12(3) of

1984 Act and to take appropriate decision expeditiously,

not later than three months from the date of receipt of a

copy of this order.

SD/-

JUDGE

mpk/-*/NG* CT:bms