Karnataka High Court

S G Padmanabha vs State Of Karnataka on 22 November, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

                           1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 22ND DAY OF NOVEMBER 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

            W.P. No.50413 OF 2019 (GM-KLA)
BETWEEN:

1.    S G PADMANABHA
      S/O S L GOPALAKRISHNA GOWDA
      AGED ABOUT 58 YEARS
      WORKING AS EXECUTIVE ENGINEER
      NO.2, DIVISION KARNATAKA SLUM
      DEVELOPMENT BOARD, RESILDAR
      STREET SESHADRIPURAM
      BANGALORE-560 020
      AND RESIDING AT NO.617
      6TH CROSS, 4TH MAIN, 9TH BLOCK
      II STAGE NAGARAGHAVI
      BENGALURU-560 072.

2.    B S SHAMBULINGAPPA
      S/O B S SOMASHEKARAPPA
      AGED ABOUT 55 YEARS
      WORKING AS ASSISTANT EXECUTIVE
      ENGINEER, KARNATAKA SLUM
      DEVELOPMENT BOARD, BELAGAVI
      SUB-DIVISION, BELAGAVI
      AND PERMANENTLY RESIDING AT
      CHIGURU, NO.499, GROUND FLOOR
      6TH CROSS, KPC LAYOUT
      NEAR SJR VERITY, BANGALORE-560 035.
                                      ... PETITIONERS
                             2



(BY MR. P.S. RAJAGOPAL, SR. COUNSEL FOR
    MR. PUTTE GOWDA K, ADV.,)

AND:

1.     STATE OF KARNATAKA
       BY ITS PRINCIPAL SECRETARY TO GOVT
       DEPARTMENT OF HOUSING
       II FLOOR, VIKAS SOUDHA
       DR. AMBEDKAR VEEDHI
       BENGALURU-560 001.

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

3.     KARNATAKA LOKAYUKTA
       REPRESENTED BY ITS REGISTRAR
       M S BUILDING, DR AMBEDKAR
       VEEDHI, BENGALURU-560 001.

                                      ... RESPONDENTS
(BY MR. LAXMI NARAYANA, AGA FOR R1
    MR. VENKATESH S. ARABATTI, ADV., FOR R3
    MR. PRASHANTH B.R. ADV., FOR
    MR. RAMACHANDRAN, ADV., FOR R2)
                         ---

      THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE ORDER OF
ENTRUSTMENT OF ENQUIRY DATED 26.04.2016 OF
GOVERNMENT, INQUIRY REPORT DATED 31.08.2019 AND
RECOMMENDATION DATED 09.09.2019 AND.         QUASH (i)
ORDER OF GOVERNMENT DATED 26.04.2016 (UNDER ANNX-
G TO THE W.P.) ISSUED BY THE R-1, (ii) INQUIRY REPORT
DATED 31.08.2019 (UNDER ANNX-P TO THE W.P.) OF THE
INQUIRY OFFICER AND (iii) RECOMMENDATION DATED
09.09.2019 (UNDER ANNX-Q TO THE W.P.) OF THE R-
                               3



3/UPALOKAYUKTA-1 BY ISSUE OF A WRIT IN THE NATURE
OF CERTIORARI AND GRANT ALL CONSEQUENTIAL
BENEFITS.

    THIS W.P. HAVING BEEN HEARD AND RESERVED FOR
ORDERS    ON     16.11.2022, COMING    ON    FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ALOK ARADHE J.,
MADE THE FOLLOWING:

                            ORDER

The petitioners who are Assistant Engineer and

Assistant Executive Engineer of Karnataka Slum

Development Board (hereinafter referred to as the Board

for short) assailed the validity of the Government order

dated 26.04.2016 issued by Government of Karnataka

and the enquiry report dated 31.08.2019 as well as

recommendation dated 09.09.2019 submitted by

Upalokayukta-1 and to grant the petitioners all

consequential benefits. In order to appreciate grievance of

the petitioners, relevant facts need mention, which are

stated infra.

2. The petitioner No.1 joined the services of the

Board on 01.03.1989 as Assistant Engineer and was

promoted as Assistant Executive engineer with effect from

10.11.1999. The petitioner No.1 was further promoted as

Executive Engineer with effect from 21.02.2011. At the

relevant time, petitioner No.1 was posted at Dharwad.

Petitioner No.2 joined the services of the erstwhile Board

on 08.12.1987 a Junior Engineer and was promoted as

Executive Engineer with effect from 22.09.2000. The

petitioner No.2 was further promoted as Assistant

Executive Engineer and was posted at Dharwad.

3. Two complaints were made before Karantaka

Lokayukta by Smt.Pramila Kotari and Sri.Ranganaika

Tapela that petitioner No.2 in collusion with land mafia

has committed certain irregularities in relation to

integrated slum development project. The petitioner No.2

thereupon submitted a detailed reply to the

Superintendent of Police, in which details of

implementation of the project as well as distribution of

houses was furnished. The Superintendent of Police

directed investigation and after a thorough investigation

submitted a report that no irregularities were committed

by petitioner No.2 and one K.A.Bashir Ahmed another

Executive Engineer had drawn up the list of beneficiaries.

The Lokayukta was not satisfied with the reply submitted

by Superintendent of Police and issued notices on

22.01.2015 to petitioner No.1 and one Sri.H.K.Sudhir.

The Lokayukta submitted a report under Section 12(3) of

the Act dated 11.03.2016. The State Government

thereafter by an order dated 26.04.2016 entrusted the

enquiry to Lokayukta.

4. On the basis of the aforesaid entrustment,

respondent No.3 by an order dated 08.06.2016

nominated Additional Registrar of Employees to frame

charges and to conduct an enquiry. Thereupon a charge

sheet was issued to the petitioners on 27.07.2016. The

petitioner submitted a reply to the charge sheet. The

enquiry officer submitted a report dated 31.08.2019. The

Upalokayukta by a recommendation dated 09.09.2019

directed the recommendation of imposition of penalty of

compulsory retirement. The State Government thereafter

realized that it is not the disciplinary authority in respect

of the petitioners and therefore, by a communication

dated 18.10.2019 made a recommendation to the Board.

5. The petitioners thereupon filed a writ petition

seeking quashment of order dated 26.04.2016 issued by

State Government, copy of enquiry report dated

13.08.2019 and recommendation dated 09.09.2019 made

by UpaLokayukta. In the aforesaid factual background,

this petition arises for our consideration.

6. Learned Senior counsel for the petitioners

submitted that the petitioners are employees of

Karnataka Housing Board, which has adopted the

Karnataka Civil Services (Classification, Control and

Appeal) Rules, 1957 (hereinafter referred to as 'the Rules'

for short) and therefore, the Board is the competent

authority to initiate the disciplinary proceeding against

the petitioners. The order of entrustment of enquiry to

Upalokayukta and all consequential action is bad in law.

It is also contended that the controversy in this petition

is squarely covered by a judgment of the division bench

judgments of this court in W.P.No.31727/2018

('Shri.KAPINI GOWDA AND OTHERS VS. STATE OF

KARNATAKA AND OTHERS) and in R.F. HUDEDAVAR

VS. STATE OF KARNATAKA AND OTHERS', (2021) 6

KLJ 224 (DB) and an order dated 15.12.2021 passed by

learned Single Judge in writ petition No.10558/2018.

7. On the other hand, learned counsel for the

respondent No.3 submitted that the decision rendered by

a division bench of this court in R.F. HUDEDAVAR supra

does not apply to the facts of the case and decision

rendered by another division Bench of this court in case

of 'R.V.JATTANNA AND ANOTHER VS. STATE OF

KARNATAKA AND OTHERS' and connected matter

passed in W.P.No.105350/2019 dated 30.01.2020. It is

also submitted that Board has adopted the CCA Rules

and Under Rule 14A of the Rules, the Government has

rightly entrusted the enquiry to Lokayukta and there is

no bar for the State Government to entrust the enquiry to

Lokayukta in case of a public servant.

8. We have considered the submissions made on

both sides and have perused the record. The solitary

issue, which arises for consideration in this writ appeal

is, whether the State Government is competent to entrust

the enquiry under Rule 14-A of the CCA Rules to

Lokayukta in respect of employees of the Board. The

petitioners are the employees of the Board whose service

conditions are governed by Karnataka Slum Clearance

Board Services (Cadre and Recruitment and Condition of

Service) Rules, 1999 (hereinafter referred to as the 1999

Rules for short). Rule 3(2) of the 1999 Rules define the

appointing authority, which means the authority

specified in column 3 of Schedule III. From perusal of

Schedule III of the Rules, it is evident that the appointing

authority in respect of Assistant Engineer and Assistant

Executive Engineer, is the Board. Under Rule 5 of the

aforesaid Rules, the provisions of Karnataka Civil

Services (Classification, Control and Appeal) Rules, 1957

have been made applicable.

9. Rule 5 of the 1999 Rules reads as under:

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,

(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
     Examination)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 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.

10. From conjoint reading of the aforesaid

provisions, it is evident that the Board has adopted CCA

Rules to its employees. Explanation to Rule 5 makes it

evident that unless context otherwise requires the

expression 'Government Servant', 'Head of Department',

'The Government' or 'The Governor' mentioned in 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 the 1999 Rules, which empowers the entrustment of

enquiry to Lokayukta or Upalokayukta as the case may

be, the word shall be read as 'Board'.

11. The petitioners being the employees of the

Board are governed by the 1999 Rules as well as CCA

Rules. The Board is the appointing authority as well as

the disciplinary authority of the petitioners. The State

Government, which has entrusted the enquiry to

Upalokayukta is neither the appointing authority nor the

disciplinary authority.

12. The issue of entrustment of the enquiry by the

State Government to Lokayukta or Upalokayukta is in

respect of employees of the Board, and the Corporations

is no longer res integra and has been examined by a

division bench of this court in R.F. HUDEDAVAR supra

and it has been held that the State Government cannot

entrust the enquiry to Upalokayukta under Rule 14-A of

the 1999 Rules in respect of an employee of the Board or

Corporation. The relevant extract of the judgment in para

25 to 31 read as under:

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. Similar view has also been taken by another

division bench of this court in SANNAMALLAPPA AND

ANOTHER VS. STATE OF KARNATAKA AND OTHERS',

(2021) 6 KAR L.J. 424 (DB).

14. We are in respectful agreement with the view

expressed by a division bench of this court. Therefore,

the board alone was competent to entrust the enquiry by

considering the report submitted under Section 12(3) of

the Act by Upalokayukta and not the State Government.

For the aforementioned reasons, the government

order dated 24.06.2016 and the recommendation made