Karnataka High Court
The Upalokayukta-1 vs The State Of Karnataka on 12 February, 2024
Author: K.Somashekar
Bench: K.Somashekar
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WP No. 3205 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 3205 OF 2023 (S-KSAT)
BETWEEN:
1. THE UPALOKAYUKTA-1
REP. BY ITS REGISTRAR
KARNATAKA LOKAYUKTA
M.S. BUILDINGS
BENGALURU-560001.
2. THE REGISTRAR
KARNATAKA LOKAYUKTA
M.S. BUILDINGS
BENGALURU-560001.
Digitally signed ...PETITIONERS
by SUMATHY
KANNAN (BY SRI VENKATESH S ARABATTI, SRI. ASHWIN S HALADY
Location: High AND SRI. K. PRASANNA SHETTY - ADVOCATES)
Court of AND:
Karnataka
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYATHRAJ
3RD FLOOR, M S BUILDINGS
BENGALURU-560001.
2. THE UNDER SECRETARY
GOVT. OF KARNATAKA, DEPT. OF
RURAL DEVELOPMENT AND PANCHAYATH RAJ
M.S. BUILDING, BENGALURU-560001.
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WP No. 3205 of 2023
3. THE CHIEF EXECUTIVE OFFICER
BENGALURU URBAN ZILLA PANCHAYATH
S.KARIYAPPA ROAD, BANASHANKARI
BENGALURU-560050.
4. SRI NOMESH KUMAR
S/O LATE B NARAYANA NAYAK
AGED ABOUT 48 YEARS
PRESENTLY WORKING AS DEPUTY SECRETARY
BENGALURU URBAN ZILLA PANCHAYATH
S. KARIYAPPA ROAD, BANASHANKARI
BENGALURU-560070.
R/AT NO.9/A, LAKSHMI NILAYA
3RD CROSS, VINAYAKA NAGARA
HEBBALA, BENGALURU-560024.
5. SRI .T.K. RAMESH
S/O LATE KARIHONNAIAH
AGED ABOUT 53 YEARS
PRESENTLY WORKING AS DEPUTY SECRETARY
ZILLA PANCHAYATH
RAMANAGAR DISTRICT-562159.
R/AT NO.832, 3RD A CROSS ROAD
9TH BLOCK, NAGARABHAVI
2ND STAGE, BENGALURU-560072.
6. SRI K C DEVARAJE GOWDA
S/O CHIKKEGOWDA
AGED ABOUT 39 YEARS
PRESENTLY WORKING AS DEPUTY SECRETARY
ZILLA PANCHAYATH
MYSURU DISTRICT-570005.
R/AT NO.120/B, 1ST MAIN
2ND CROSS, BMC NAGARA, MYSURU-570016.
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WP No. 3205 of 2023
7. SRI REHAMAN SHARIEFF
S/O LT HYDER SHARIFF
AGED 33 YEARS
WORKING AS PANCHAYATH
DEVELOPMENT OFFICER
TARALU GRAM PANCHAYATH
UTTARHALLI HOBLI, KANAKAPURA ROAD
BENGALURU 560082
R/AT GROUND FLOOR, 20TH CROSS
3RD BLOCK, JAYANAGAR
BENGALURU 560011.
8. SRI N JAYARAMU
S/O LATE NANJE GOWDA
AGED 59 YEARS
PRESENTLY WORKING AS
PANCHAYATH DEVLEOPMENT OFFICER
SATHANURU GRAM PANCHYATH
YELAHANKA TALUK, BENGALURU 562126.
R/AT NO 95/1A1, 4TH MAIN
KONAPPANA AGRAHARA
BENGALURU 560100.
...RESPONDENTS
(BY SRI. SHIVA REDDY V - AGA FOR RESPONDENTS No.1 & 2;
SRI. K M PRAKASH - ADVOCATE FOR RESPONDENT NO.3;
SRI. RAJESWARA P N - ADVOCATE FOR RESPONDENTS
No.4 TO 6; SRI. C M NAGABHUSHAN - ADVOCATE FOR
RESPONDENT No.7; RESPONDENT NO.8 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 06.06.2022 PASSED BY THE KSAT
AT BENGALURU IN A.Nos-4149-4153/2021 AS PER
ANNEXURE-A.
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WP No. 3205 of 2023
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN B-GROUP, THIS DAY, K. SOMASHEKAR .J., MADE
THE FOLLOWING:
ORDER
This petition is filed by the Lokayukta challenging the
common order dated 06.06.2022 rendered by the
Karnataka State Administrative Tribunal, Bangalore, in
Application Nos.4040 to 4045/2021 and batch of
applications. However, the relief in this petition is
restricted to the applications filed by Respondent Nos.4 to
8 herein in Application Nos.4149 to 4153/2021, out of the
above said batch of applications which were disposed of
before the KSAT. The KSAT, by its order dated
06.06.2022, allowed all the applications filed by the
applicants therein and thereby set-aside the impugned
orders passed by the Government under Rule 14-A of KCS
(CC & A) Rules, 1957 dated 29.07.2021 and 02.08.2021.
However, the KSAT had remitted the matters to the
respondent / Government to consider the report submitted
by the Chief Executive Officer, Bengaluru Urban Zilla
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Panchayat / third respondent herein dated 02.11.2020 and
then to take a decision on merits, in accordance with law.
The said process was to be complied with within a period
of four months from the date of receipt of a copy of the
said order.
2. The present petition has been filed by the
Lokayukta seeking to quash the order dated 06.06.2022
passed by the KSAT in Application Nos. 4149 to
4153/2021. Shri Venkatesh S. Arabatti, Shri Ashwin S.
Halady and Shri K. Prasanna Shetty are present before
Court and represent the Lokayukta & Upalokayukta in the
matter.
3. However, learned counsel Shri Rajeshwara P.N. for
Respondent Nos.4 to 6 has filed a memo dated 16.01.2024
seeking for dismissal of the writ petition. It is stated in
the memo that pursuant to the order dated 06.06.2022
rendered by the KSAT and prior to the filing of the present
petition, the Government has passed an order in GraAaPa
128 ViSeBi 2021 dated 03.10.2022, withdrawing the
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earlier Government Order bearing No.GraAaPa 81 ViSeBi
2020 dated 02.08.2021 passed under Rule 14A of the
Karnataka Civil Services (Classification, Control and
Appeal) Rules, 1957, a copy of which is annexed to the
memo.
4. Originally, applications were filed before the
Upalokayukta, challenging the Government Order dated
02.08.2021. Now that the Government Order dated
02.08.2021 itself, on the basis of which the applications
were filed before the KSAT having been withdrawn by the
Government, it is stated that the present petition does not
survive for consideration. In view of the fact that the
Government itself has withdrawn its order dated
02.08.2021 entrusting the matter to the Upalokayukta for
an enquiry, the present petition does not survive for
consideration. Hence, learned counsel for Respondent
Nos.4 to 6 prays for dismissal of the present petition.
5. However, learned counsel Shri Ashwin S. Halady
for petitioners / Upalokayukta and another, has filed his
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statement of objections dated 12.02.2024 to the memo of
dismissal filed by the learned counsel Shri Rajeshwara P.N.
for Respondent Nos.4 to 6 along with a verifying affidavit
of Shri Amaranarayana K, the Additional Registrar of
Enquiries-4 & Chairman, Legal Cell-I & II, Karnataka
Lokayukta, Bengaluru.
6. It is contended in the Statement of objections that
the memo of dismissal filed by Respondent Nos.4 to 6 is
not maintainable in law or on facts and the said memo is
liable to be rejected. It is stated that the applicants before
the KSAT had questioned the entrustment order dated
02.08.2021 in Application Nos. 4149 to 4153/2021 in
respect of entrustment to conduct a departmental enquiry
by the Upalokayukta. The KSAT had allowed all the
applications and had set aside the impugned orders
passed by the Government under Rule 14-A of the KCS
(CC& A) Rules, 1957 dated 29.07.2021 and 02.08.2021
and further remitted the matter to the respondent /
Government to consider the report submitted by the Chief
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Executive Officer, Bengaluru Urban Zilla Panchayath dated
02.11.2020 and then to take a decision on merits in
accordance with law.
7. The Upalokayukta through the Registrar, has
challenged the impugned order dated 06.06.2022 passed
by the KSAT before this Court in W.P.No.3684/2023 and
other connected matters, which are pending consideration.
It is stated that the Government order dated 02.08.2021
has become abandoned in view of quashing of the said
order by the KSAT. When such is the position, it is
contended by the learned Spl. PP Shri Venkatesh S.
Arabatti that the Government withdrawing its order dated
02.08.2021 by issuing a Government order dated
03.10.2022, does not arise and is absurd. Further, the
said Government order dated 03.10.2022 is subject to the
outcome of the present petition. In support of his case,
learned counsel relies on the following citations:
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i) VIJAY KUMAR G. SULAKHE vs. STATE OF
KARNATAKA (W.P.No.104460/2018 C/w.
W.P.Nos.104461/2018 & 104462/2018);
ii) SECRETARY, MINISTRY OF DEFENCE AND OTHERS
vs. PRABHASH CHANDRA MIRDHA ((2012) 11 SCC 565);
iii) UNION OF INDIA & ANR vs. KUNISETTY
SATYANARAYANA (2007 (1) SCT 452).
8. Relying on the above citations, learned Spl. PP
Shri Venkatesh S. Arabatti contends that in case they
succeed in the petition, the Government order dated
03.10.2022 will become infructuous and the Government
orders dated 02.08.2021 and 29.07.2021 would prevail.
Hence, he vehemently opposes the memo for dismissal
and prays to dismiss the memo filed by learned counsel for
Respondent Nos.4 to 6.
9. However, learned counsel Shri Rajeshwara P.N.
vehemently opposes the statement of objection filed by
the petitioners and submits that the question of absurdity,
does not arise. He contends that the writ petitions do not
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survive for consideration and it does not require scanning
of the impugned order passed by the KSAT. On these
contentions, learned counsel Shri Rajeshwara P.N. seeks
to consider the memo for dismissal filed by Respondent
Nos.4 to 6 and consequently dismiss the petition as does
not survive for consideration.
10. Learned AGA Shri V. Shiva Reddy submits that
the Government order dated 03.10.2022 has been issued
by the competent authority / State after scrutinizing the
entire material and hence, the question of absurdity in the
order, does not arise. In view of the same, he submits
that this writ petition initiated by the Lokayukta does not
have any substance and consequently the relief sought for
in the petition does not survive for consideration.
11. However, learned Spl PP Shri Venkatesh S.
Arabatti refers to Sections 12(3) and 12(4) of the
Karnataka Lokayukta Act, 1984 apart from referring to
Rule 14-A of the KCS (CC & A) Rules, 1957. Sections
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12(3) and 12(4) of the Karnataka Lokayukta Act, reads
thus:
"12. (3) If, after investigation of any action
involving an allegation has been made, the
Lokayukta or an Upalokayukta is satisfied that
such allegation is substantiated either wholly or
partly, he shall by a report in writing within six
months from the date of commencement of the
investigation, communicate his findings and
recommendations along with the relevant
documents, materials and other evidence to the
competent authority.
[Provided that, the Lokayukta or the
Upalokayukta may extend the said period by a
further period of not exceeding six months for
the reasons to be recorded in writing]
(4) The Competent authority shall examine
the report forwarded to it under sub-section (3)
and within three months of the date of receipt of
the report, intimate or cause to be intimated to
the Lokayukta or the Upalokayukta the action
taken or proposed to be taken on the basis of
the report."
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Further, Rule 14-A of the KCS (CC & A) Rules, 1957
reads thus:
"14A. Procedure in cases entrusted to
the Lokayukta, -
(1) The provisions of sub rule (2) shall,
notwithstanding anything contained in rule 9 to
11A and 13, be applicable for purposes of
proceeding against Government Servants whose
alleged misconduct has been investigated into by
the Lokayukta or an Uplokayukta either under
the provisions of the Karnataka Lokayukta Act,
1984 or on a reference from Government or
where offences alleged against them punishable
under the Prevention of Corruption Act, 1947 or
the Prevention of Corruption Act, 1988 has been
investigated by the Karnataka Lokayukta Police
before 21st day of December, 1992.
2) (a) Where an investigation into any
allegation against.-
(i) a member of the State Civil Services
Group-"A" or Group-"B" or
(ii) a member of the State Civil Services
Group-A or Group-B and a member of the State
Civil Services Group-C or Group-D or
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(iii) a member of the State Civil Services
Group-"C" or Group-"D", the Lokayukta or the
Upa-lokayukta or (before the twenty first day of
December, 1992) the Inspector General of Police
of the Karnataka Lokayukta Police is of the
opinion that disciplinary proceedings shall be
taken, he shall forward the record of the
investigation along with his recommendation to
the Government and the Government after
examining such record, may either direct an
inquiry into the case by the Lokayukta or the
Upalokayukta or direct the appropriate
Disciplinary Authority to take action in
accordance with rule 12.
(b) Where it is proposed to hold an inquiry
into a case under clause (a) the enquiry may be
conducted either by the Lokayukta or the
Upalokayukta, as the same may be, or an officer
on the staff of the Lokayukta authorized by the
Lokayukta, or the Upalokayukta to conduct the
inquiry;
Provided that the inquiry shall not be
conducted by an officer lower in rank than that
of Government servant against whom it is held.
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Provided further that an inquiry against a
Government Servant not lower in rank than that
of a Deputy Commissioner shall not be
conducted by any person other than the
Lokayukta or the Upalokayukta or an Additional
Registrar (Inquiries).
Provided also that an officer on the staff of
the Lokayukta authorized to conduct an inquiry
under clause (b) shall not have the power to
appoint another officer to conduct it wholly or in
part.
(c) The Lokayukta, the Upalokayukta or the
Officer authorized under clause (b) to conduct an
inquiry shall conduct it in accordance with the
provisions of rule 11 in so far as they are not
inconsistent with the provisions of this rule and
for that purpose shall have the powers of the
Disciplinary Authority referred to in the said
Rule.
(d) After the inquiry is completed, the
record of the case along with the findings of the
Inquiring Officer and the recommendation of the
Lokayukta or the Upalokayukta, as the case may
be, shall be sent to the Government.
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(e) On receipt of the record under clause
(d) the Government shall take action in
accordance with the provisions of rule 11A and in
all such cases the Government shall be the
Disciplinary Authority competent to impose any
of the penalties specified in rule 8.
(3) Nothing in sub-rule (1) shall be
applicable to members of the Karnataka Judicial
Service or Government servants under the
administrative control of such members or of the
High Court of Karnataka.
Explanation, -In this rule, the expressions
"Lokayukta" and "Upalokayukta" shall
respectively have the meaning assigned to them
in the Karnataka Lokayukta Act, 1984 and the
expression "Karnataka Lokayukta Police" means
the Police Wing established under Section 15 of
the Karnataka Lokayukta Act, 1984 and includes,
so far as may be, the corresponding
establishment under the Karnataka State
Vigilance Commission Rules, 1980 and the
expression "Inspector General of Police" shall be
construed accordingly."
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12. Learned Spl. PP Shri Venkatesh S. Arabatti
emphatically submits relating to Section 12(3) in respect
of the documents, materials and evidence and the said
provisions extracted above have to be taken into
consideration to dismiss the memo filed by respondents..
He also refers to the operative portion of the order
rendered by the KSAT and submits that even though
memo has been filed producing the Government order
issued by the Competent Authority / State dated
03.10.2022, it does not come in the way of considering
the grounds urged in this writ petition initiated by the
Karnataka Lokayukta challenging the order rendered by
the KSAT under Section 19 of the Karnataka State
Administrative Tribunals Act, 1985. These are the
submissions made by the learned Spl. PP Shri Venkatesh
S. Arabatti inclusive of referring to Rule 14-A of the KCS
(CC & A) Rules, 1957.
13. Learned Spl. PP Shri Venkatesh S. Arabatti in
support of his submission, has referred to a judgment
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rendered by the Hon'ble Supreme Court in the case of
STATE OF PUNJAB vs. DAVINDER PAL SINGH
BHULLAR AND OTHERS ((2011) 14 SCC 770)),
wherein the Hon'ble Apex Court has extensively addressed
the issues relating to Courts, Tribunals and Judiciary. He
particularly has referred to Paragraphs 107 to 111 of the
said judgment, which reads as under:
"107. It is a settled legal proposition that if
initial action is not in consonance with law, all
subsequent and consequential proceedings would
fall through for the reason that illegality strikes
at the root of the order. In such a fact-situation,
the legal maxim "sublato fundamento cadit opus"
meaning thereby that foundation being removed,
structure/work falls, comes into play and applies
on all scores in the present case.
108. In Badrinath v. State of Tamil Nadu &
Ors., AIR 2000 SC 3243; and State of Kerala v.
Puthenkavu N.S.S. Karavogam & Anr. (2001) 10
SCC 191, this Court observed that once the basis
of a proceeding is gone, all consequential acts,
actions, orders would fall to the ground
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automatically and this principle is applicable to
judicial, quasi-judicial and administrative
proceedings equally.
109. Similarly in Mangal Prasad Tamoli
(dead) by Lrs. v. Narvadeshwar Mishra (dead) by
Lrs. & Ors., (2005) 3 SCC 422, this Court held
that if an order at the initial stage is bad in law,
then all further proceedings, consequent thereto,
will be non est and have to be necessarily set
aside.
110. In C. Albert Morris v. K.
Chandrasekaran & Ors., (2006) 1 SCC 228, this
Court held that a right in law exists only and only
when it has a lawful origin. (See also: Upen
Chandra Gogoi v. State of Assam & Ors.,(1998)
3 SCC 381; Satchidananda Misra v. State of
Orissa & Ors., (2004) 8 SCC 599; Regional
Manager, SBI v. Rakesh Kumar Tewari, (2006) 1
SCC 530; and Titesh Tewari & Anr. V. State of
U.P. & Ors.,(AIR 2010 SC 3823).
111. Thus, in view of the above, we are of
the considered opinion that the orders impugned
being a nullity, cannot be sustained. As a
consequence, subsequent
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proceedings/orders/FIR/ investigation stand
automatically vitiated and are liable to be
declared non est."
14. But as far as this judgment is concerned, an FIR
No.334/1991 under Sections 302, 307, 323, 437 and 120-
B of the IPC and Sections 3 and 4 of the Explosive
Substances Act, 1908 was registered at Police Station,
Sector 17, Chandigarh. In connection with an FIR dated
13.12.1991, one Balwant Singh Multani was arrested in
respect of the case in FIR No.440 registered for offences
under Sections 212 and 216 of the IPC, Sections 25/54/69
of the Arms Act, 1959 and Sections 3 and 5 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA Act for short). These facts are indicated in the
judgment facilitated by the learned Spl. PP Shri Venkatesh
S. Arabatti. Even though it is contended that paragraph
nos.107 to 111 are squarely application to the present
facts of the case, but Article 226 of the Constitution of
India relates to scanning of any order passed by the
Tribunal which is initiated under Section 19 of the
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Karnataka Administrative Tribunals Act. Hence, the said
reliance would not support the case of the petitioners.
15. Further, Shri Venkatesh S. Arabatti on
instructions, submits that the Government order was not
communicated to the Lokayukta till the filing of the memo
by the respondents seeking for dismissal of the petitions.
This submission of the learned Spl. PP in the presence of
the learned counsel Shri Ashwin S. Halady inclusive of the
learned counsel Shri K. Prasanna Shetty, is placed on
record.
16. In the meanwhile, learned counsel Shri
Rajeshwara P.N. for Respondent Nos.4 to 6 submits that
the Government Order dated 03.10.2022, has already
been communicated to the petitioners herein. This
submission of the learned counsel is also supported by the
learned counsel Shri Prakash M. Patil.
17. However, keeping in view the submission of the
learned counsel appearing for the Lokayukta, when the
State has come forward to issue a Government order
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withdrawing the notification issued earlier, it is relevant to
refer to Article 13(3) of the Constitution of India, which
reads thus:
13 (3) In this article, unless the context
otherwise requires,-
(a) "law" includes any Ordinance, order,
bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of
law;
18. Hence, a Government Order issued by the
Competent Authority / State, amounts to law under Article
13(3) (a) of the Constitution of India. Therefore, keeping
in view the scope of the Government Order issued by the
Competent Authority / State, even though learned counsel
for the Lokayukta submits that the Government Order
does not have force for consideration, the said submission
of the learned counsel cannot be accepted.
19. Though the counsel for the Lokayukta has filed
detailed objection to the memo of dismissal filed by the
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learned counsel for the respective respondents along with
a verifying affidavit, however, keeping in view the
contentious contentions stoutly opposing the same by the
learned counsel Shri Rajeshwara P.N. inclusive of the
learned counsel Shri Prakash M Patil for the respective
respondents, we are of the opinion that this writ petition
does not survive for consideration.
20. Consequently, the memo for dismissal inclusive
of the Government Order dated 03.10.2022 filed by the
learned counsel Shri Rajeshwara P.N. for the respective
respondents are taken on record and this writ petition is
dismissed as having become infructuous and as the same
does not survive for consideration.
21. However, learned Spl. PP Shri Venkatesh S.
Arabatti in the presence of the learned counsel Shri
Ashwin S. Halady inclusive of Shri K. Prasanna Shetty,
seeks liberty to proceed further in the matter.
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Though the petition is dismissed, liberty is reserved
to the learned counsel for the petitioners to proceed in
accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
KS
