Karnataka High Court
The Karnataka Lokayukta R/By Its ... vs Sri Ishwar S/O Krishna Appaji Wadakar on 3 September, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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WP No.105477 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
®
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO.105477 OF 2023 (S-KAT)
BETWEEN:
THE KARNATAKA LOKAYUKTA
R/BY ITS REGISTRAR
M.S. BUILDING, B.R. AMBEDKAR VEEDHI,
BENGALURU 560001.
...PETITIONER
Digitally
signed by (BY SRI. ASHOK HARNAHALLI, SENIOR COUNSEL FOR
JAGADISH T
R SRI. ANIL KALE, ADVOCATE)
Location:
High Court of
Karnataka,
Dharwad AND:
Bench
1. SRI. ISHWAR
S/O KRISHNA APPAJI WADAKAR
AGE. 52 YEARS, OCC. SECRETARY,
GRAM PANCHAYAT,
R/O. JAGALBET 581129, JOIDA,
TQ. UTTARA KANANDA, DIST. KARWAR.
2. THE STATE OF KARNATAKA
R/BY. ITS PRINCIPAL SECRETARY,
DEPARTMENT OF RURAL DEVELOPMENT
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WP No.105477 of 2023
AND PANCHAYAT RAJ,
GOVERNMENT OF KARNATAKA,
M.S. BUILDING, AMBEDKAR VEEDHI,
BENGALURU 560001.
3. THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT,
OFFICE OF THE ZILLA PANCHAYAT,
KARWAR 581129.
...RESPONDENTS
(BY SRI. RAGHVENDRA GAYATRI, ADVOCATE FOR
SRI. SOURAB HEDGE, ADVOCATE FOR R1,
SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE FOR R2
NOTICE TO R3 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI AND
QUASH THE ORDER DATED 07.12.2021 PASSED BY THE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BELAGAVI
IN APPLICATION NO.5116/2018 PRODUCED AT ANNEXURE-
A, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN GROUP 'B', THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
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WP No.105477 of 2023
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT)
This Writ Petition by the Lokayukta invokes writ
jurisdiction of this Court for the quashment of Service
Tribunal's Order dated 07.12.2021 whereby respondent -
employee's Application No.5116/2018 having been favoured
the punishment order of compulsory retirement dated
07.04.2018 has been set aside.
2. Learned Senior Advocate Shri Ashok Harnanahalli
argues that there are two significant infirmities in the
impugned order namely: (i) the Tribunal has recorded a
finding that there is violation of Section 9(3) of the
Karnataka Lokayukta Act, 1984 when apparently there is
compliance and therefore there was absolutely no scope for
invoking Section 9(3)(a) & (b) of the Act vide
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N. Gundappa Vs. State of Karnataka1; (ii) in any event,
after quashment of punishment order, the Tribunal could
not have foreclosed the proceedings, but could have
remanded the matter for consideration afresh. He also
points out that long pendency of a matter is no ground for
foreclosing the proceedings more particularly when the
delinquent employee is still in service.
3. After service of notice, the delinquent employee
being the first respondent has entered appearance through
his private advocate who vehemently resists the petition on
the ground of lack of locus standii of the Lokayukta; the
Tribunal has after examining the records has entered a
finding as to non-compliance of Section 9(3) of the 1984
Act and that does merit a deeper examination in the writ
jurisdiction; the Tribunal has given a cogent finding as to
why it has foreclosed the proceedings; lastly, the Articles of
Charge are not specific. So contending, he seeks dismissal
of the petition.
ILR 1990 KAR 223
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4. Having heard the learned counsel appearing for
the parties and having perused the petition papers we are
inclined to grant indulgence in the matter for the following
reasons:
4.1 The contention of the respondent - employee
that the Lokayukta has no locus standii in a matter like this
is bit difficult to countenance: Firstly, the Tribunal has
faltered the action on the ground that Section 9(3) of the
1984 Act has not been complied with by the Lokayukta;
secondly, the Articles of Charge have not been properly
framed. Both these actions apparently fall within the
domain of Lokayukta as an Institution. Thirdly, the
Lokayukta was a party eo nomine to the proceedings before
the Tribunal and it had made all endeavors to justify its
action by pointing out that Section 9(3) was duly complied
with. Fourthly, if at all there is violation of said provision,
the matter ought to have been remitted back to the stage
of violation for consideration afresh and despite that having
not been done, the Government has not chosen to
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challenge the Tribunal's Order. Inaction on the part of
Government/Competent Authority would infuse additional
elements of locus standii in favour of Lokayukta.
4.2. An argument to the contrary of the above view, if
accepted, would leave a wrong order of the Tribunal with
impunity forever and the employee who has been found
guilty of misconduct would go scathe free. That would not
auger well to the Rule of Law, which requires protection of
the innocent and punishing of the guilty. Otherwise, the
interest of administration would be badly affected. Added,
the Lokayukta is not a busy body; it is established as a
statutory entity for playing a pivotal role in the prevention
of maladministration. It functions as a watch dog of public
administration in a Welfare State as ordained by the
Constitution of India. It is not that in the every case
wherein relief is accorded to a public servant, as matter of
course, the Lokayukta will have locus standii. It all depends
upon facts and circumstances of individual case brought
before the Court.
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4.3 A Co-ordinate Bench of this Court in Hon'ble
Lokayukta Vs. Shri Prakash T.V.2 has observed as
under:
"52 The facts of the case reveal that
though the State Government has entrusted the
matter to the Lokayukta to conduct an enquiry,
the State Government is disinterested in
challenging the order of the Tribunal. There are
allegations of corruption against large number of
officers and other persons. The reason in not
challenging the order passed by the Tribunal
appears to be the pressure of the officers
involved in the case. Therefore, the Lokayukta,
being a statutory body constituted to curb the
menace, has an institutional interest and as well
as the locus."
The Apex Court in S.L.P. No(s).13209-13210/2021 vide
order dated 26.09.2023 has negatived challenge to the said
decision. However, the aspect of locus standii was not
discussed in the said SLP, which went on other grounds.
The said decision lends credence to our view.
4.4. The above being said, the observations of Co-ordinate
Bench in respect of their precedential proposition, textually
2021 SCC OnLine KAR 15733
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appear to be too broad, is true and therefore, the Bar is
justified in asking us to delineate the correct scope of the
ratio laid down by the Co-ordinate Bench in Prakash supra
and more particularly para 52 reproduced above. The said
observations need to be construed in their true spirit and in
the light of the scheme collectively emerging inter alia from
the provisions of Sections 9 & 12 of the 1984 Act read with
Rule 14A of the 1957 Rules. Caution needs to be taken
while applying the principle of judicial precedents since the
decision of the Court and its observations have to be read in
context in which they appear. In a judgment, discussion is
meant to explain and not to define. A Full Bench of Bombay
High Court in EMKAY EXPORTS VS. MADHUSUDAN
SHRIKRISHNA3, at para 11, has observed as under:
"......that precedents are to be applied with due
regard to facts while adhering to the principles of
"ratio decidendi". Precedents are described as,
"Authorities to follow in determinations in Courts
of Justice". Precedents have always been greatly
regarded by the Sages of the Law. The
2008 (4) CTC 212
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Precedents of Courts are said to be the laws of
the Courts; and the Court will not reverse a
judgment, contrary to many Precedents. Even
for a precedent to be binding, it cannot be
without judicial decision of arguments that are of
no moment. To be a good precedent, it has to be
an adjudged case or decision of a Court of
competent jurisdiction considered as furnishing
an example or authority for an identical or
similar case or a similar question of law
afterward arising. It is the ratio understood in its
correct perspective that is made applicable to a
subsequent case on the strength of a binding
precedent. ...."
The precedential value of a judgment is not derived from
the exact words employed in it; it is the abstract principle
as ascertained on a consideration of the judgment in
relation to its subject matter, which alone has the binding
force. One has to ascertain which principle has been
accepted and applied as a necessary ground of the decision.
4.5 Keeping the above in consideration, one can with no
risk of contradiction postulate that where the Tribunal has
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interfered in delinquent employee's cause inter alia on the
ground that the proceedings held by the Lokayukta or its
delegate suffer from legal or factual infirmity, the Lokayukta
will have locus standii to knock at the doors of Writ Court; it
is more so, when the competent authority, for whatever
reason, does not chose to challenge the order of the
Tribunal, within a reasonable time, say six months or so,
despite intimation by the Lokayukta. This is the true scope
of the ratio laid down in Prakash supra. All other
observations are only supportive reasons for the said ratio;
those reasons per se cannot be treated as expanding the
delineated ratio.
4.6 It is not that in every case, locus standii needs to be
conceded to the Lokayukta, as a matter of course. Answer
to the issue of locus standii depends upon facts and
circumstances of each case. We do not propose to illustrate
in what all circumstances Lokayukta can gainfully claim
locus standii. Such an exercise, if undertaken, would only
produce a plethora of obiter dicta, the said circumstances
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apparently being absent in the case at hand. Lokayukta is a
statutory entity, of course of great significance, whereas
Government of the State is a constitutional institution. We
do not want to give an impression that the former is
competing with the latter; it is not, is obvious. However, the
institution of Lokayukta has a great role to play in
minimizing the cases of maladministration, within the
statutory limits, as delineated by rulings of courts.
4.7. There is one more aspect which needs to be mentioned
in so many words: We have come across several cases
wherein the action of Lokayukta made under the provisions
of Section 12 of the 1984 Act or that of its delegates viz.,
the Registrars of Enquiries having been faltered, relief has
been granted to the delinquent employees. There are other
cases wherein the order under Rule 14A entrusting the
Disciplinary Enquiry to the Lokayukta has been voided, and
nothing more is stated in the operative portion of
judgments. There is no clarity as to whether such cases
should be treated as of remand for fresh consideration or an
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outright foreclosure of proceedings. At times, after reading
such judgments, the stakeholders gather an impression that
the proceedings have been quashed once for all and
therefore, no remand is made, when a careful perusal
thereof indicates the contra. In a case involving quashment
of government order made under Rule 14A, the matter
almost invariably goes back to the stage of Section 12(3) of
the 1984 Act, unless the Tribunal/Court expressly says
otherwise, and therefore, such cases need to be treated as
of remand. It is highly desirable that the quashment orders,
whatever be the ground, should specifically make that clear
and prescribe the timeline for the disposal of remand. We
are in the times when what is obvious needs to be obviated.
Otherwise, judgments may become breeding grounds for
injustice.
4.8 There is force in the submission of learned Senior
Advocate appearing for the Lokayukta that the finding of
the Tribunal as to the non-compliance of Section 9(3)(a) &
(b) of the 1984 Act. The delinquent employee in his
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representation dated 25.05.2014 a copy whereof avails at
Annexure-A3 has sent para wise reply to the complaint of
the individual and notice of the Upa-Lokayukta, the same
runs into nine pages that are closely printed. Each of the
allegations is sought to be met by explanation. In
paragraph No.3 of his pleadings before the Tribunal, he has
admitted about this stating "... In the meanwhile in respect
of complaint and on receipt of notice, the Applicant also
submitted a representation on 25.05.2014 ..." That being
the position, ruling in N. Gundappa supra was not
invokable. Thus, there is an error apparent on the face of
Tribunal's order.
4.9 The contention of the learned counsel appearing for
the delinquent employee that the Enquiry Officer has not
conducted the disciplinary enquiry strictly following Rule 11
of KCS (CCA) Rules, 1957, is again difficult to agree with. In
pith & substance, we see, there is compliance. The spirit of
the Rule is adhered to. Every insignificant deviation does
not give a cause of action or ground for challenge. The
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Government after duly considering all aspects of the matter
had entrusted the enquiry to the Lokayukta under Rules 14-
A of these Rules; the designated Enquiry Officer of the
Lokayukta i.e., Additional Registrar (Enquiries-10) having
framed the Articles of Charge held the proceedings after
giving full opportunity of participation to the stake holders.
It is not that the charges were vague and that the
delinquent employee therefore was in a disadvantageous
position to defend. The observations of Tribunal to the
contra are unsustainable.
4.10 The contention of Mr. Gayatri that there is violation
of mandatory provisions of Rule 11(3) of the 1957 Rules
again does not merit acceptance. A Co-ordinate Bench of
this Court in Dr. M.Basappa Reddy Vs. State of
Karnataka4 has observed at para 27 as under:
"27. At the cost of repetition, we re-iterate
that all the powers of the Disciplinary Authority
are fully vested with the Enquiring Authority
u/s.14A(2)(c) of the said Rules for the purposes
of enquiry. It is virtually the special procedure to
be adopted by the Lokayuktha with reference to
2017(3) Kar.L.J. 160 (DB) - PARA 27
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the delinquent employee. In view of the same,
we do not find any strong reason to quash the
disciplinary enquiry conducted by the Additional
Registrar of Lokayuktha, inasmuch as the same
is not vitiated by any serious incurable defect.
These observations repel contention of the kind.
4.11 Learned counsel Mr. Gayatri submits that
pursuant to quashment of the compulsory punishment, the
applicant has been reinstated in service and that he has a
short stint of period to retire and therefore the Tribunal is
justified in not remanding the matter to the stage of
infirmity, he is liable to be rejected. Period spent in judicial
or quasi judicial, at times longer than required, per se is not
a ground for foreclosing the enquiry. The Apex Court in
A.R. Antulay Vs. R.S. Nayak5 invoked actus curiae
neminem gravabit to mean that act of the Court hurts none.
Pendency of proceedings at whatever level is one such act.
However, justice of case would be met if the punishment
order of compulsory retirement is given effect to from this
day instead of 07.04.2018.
(1988) 2 SCC 602
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In the above circumstances, this writ petition succeeds
and a writ of certiorari issues quashing the Tribunal's order
dated 07.12.2021 and as a consequence the order of
punishment dated 07.04.2018 is revived. However, the
compulsory retirement shall be effective from 31.08.2024
and the services rendered by the delinquent employee
hitherto shall be reckoned for the purpose of all terminal
benefits.
Costs made easy.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
VNP, CT:VP
