Karnataka Lokayukta Police Vs Hirekadalur Prarthamika Krushi Pattina

KARNATAKA LOKAYUKTA POLICE M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE CITY -1, REPRESENTED BY SRI. MANJUNATH KAWRI S/O SRI BOMMAYYA KAWRI, AGE: 53 YEARS, OCC: DY.SP, KLA HASSAN.

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…PETITIONER

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(BY SRI. B.S. PRASAD, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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HIREKADALUR PRARTHAMIKA KRUSHI PATTINA SAHAKARA SANGH, H.MALLA HALLI HASSAN TALUKA, HASSAN DISTRICT - 1 REPRESENTED BY ITS PRESIDENT.

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C.A. KEERTIKUMAR S/O NOT KNOWN TO PETITIONER AGE: 50 YEARS, OCC: SECRETARY ADD: HIREKADALUR PRARTHAMIKA KRUSHI PATTINA SAHAKARA SANGH, H. MALLA HALLI, HASSAN TALUKA HASSAN DISTRICT-1

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…RESPONDENTS

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(BY SRI. UMESH, ADVOCATE FOR SRI. R.B.DESHPANDE, ADVOCATE FOR RESPONDENT NO.2;

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NOTICE SERVED ON RESPONDENT NO.1)

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2 -

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NC: 2025:KHC:34336 WP No. 34350 of 2016

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HC-KAR

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.02.2015 PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-B.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged an order dated 06.02.2015 in No.HK/PACAS/2014-2015 passed by the respondent No.1 by which consent under Section 19 of the Prevention of Corruption Act, 1988 (henceforth referred to as 'P.C.Act' for short) to prosecute respondent No.2 was rejected.

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The petitioner registered Cr.No.14/2012 against the respondent No.2 under Section 13(1)(e) read with Section 13(2) of the P.C.Act the check period from 18.08.1998 till the date of registration. The respondent No.2 was working as a secretary in the respondent No.1.

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After completion of the investigation, a final report was prepared which indicated that the respondent No.2 had wealth beyond his known source of income. The petitioner sent a request to the respondent No.1 for sanction to prosecute the

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respondent No.2. The respondent No.1 in terms of a resolution dated 06.02.2015 declined to grant sanction on the premise that the respondent No.2 was not a public servant. The petitioner is therefore before this Court challenging the rejection of its request to grant sanction to prosecute the respondent No.2.

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The learned counsel for the petitioner has placed on record the balance sheet of the respondent No.1 for the year ending 31.03.2014 and submits that the respondent No.1 has received assistance from the State and Central Government from time to time and therefore, the respondent No.1 is an assisted society and since the respondent No.2 is an employee of such society, he would fall within the definition of a 'public servant' as defined under Section 2(c) of P.C. Act. He contends that the impugned resolution passed by the respondent No.1 is without appreciating the above facts and hence, the impugned resolution as well as the impugned order passed by the respondent No.1 is liable to be set at nought. He also referred to a judgment of a division bench of this Court in W.A.No.255/2022 where this Court had recognized that the

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Lokayukta has institutional locus-standi to challenge an order passed by the competent authority refusing to grant sanction under Section 19 of P.C. Act, to prosecute a Government servant. He therefore, contends that the petitioner is entitled to prosecute the respondent No.2 and the respondent No.1 is bound to grant the sanction.

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The petition is opposed by the respondent No.2 who contends that the respondent No.1 being a sanctioning authority has absolute discretion to grant or not to grant the sanction and that in the instant case, the respondent No.1 after going through the material placed by the petitioner, felt it not necessary to prosecute the respondent No.2. He also contends that the sanction was sought under P.C. Act and therefore, the provisions of the Karnataka Lokayukta Act, 1984 could not be applied regarding granting sanction, as the investigation conducted by Lokayukta is different and unconnected with the investigation conducted under the Lokayukta Act. It is also contended that the respondent No.2 was the then secretary of the respondent No.1 who was not provided with basic amenities let alone the benefits given to a public servant. He also

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contends that the respondent No.1 after considering the request of the petitioner for sanction had rightly held that the respondent No.2 is not a public servant. He also contends that the salary paid to the respondent No.2 was borne out of the funds of the respondent No.1 and that the respondent No.1 is not getting any financial assistance or funds from the Central Government or State Government. He therefore, contends that the impugned order passed by the respondent No.1 is just and proper and no interference is warranted. He also contends that the respondent No.2 has not committed any wrongful act and he is not in possession of disproportionate assets as claimed by the petitioner.

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The learned counsel for respondent No.2 reiterated the above contentions.

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I have considered the submissions of the learned counsel for the petitioner as well as the learned counsel for the respondent No.2.

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A public servant as defined under Section 2(c) of the P.C. Act, reads as follows:

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HC-KAR

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"2(c) "public servant" means,-

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(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;

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(ii) any person in the service or pay of a local authority;

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(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);

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(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

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(v) any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;

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(vi) any arbitrator or other person to whom any cause or matter has been referred

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for decision or report by a court of justice or by a competent public authority;

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(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

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(viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty;

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(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

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(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a

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member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;

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(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;

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(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.

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Explanation 1.-Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.

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Explanation 2.-Wherever the words "public servant" occur, they shall be understood

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of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation."

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The petitioner had registered a case against the respondent No.2 for possessing assets disproportionate to his known source of income. The petitioner conducted the investigation for the check period between 18.08.1998 till 19.12.2012 and found that the respondent No.2 had assets to the tune of Rs.27,10,565/- and a final report was also prepared that the respondent No.2 had assets valued at Rs,27,10,565/which was beyond his known source of income. Following this, the petitioner filed an appropriate representation before the respondent No.1 for grant of sanction under Section 19 of P.C. Act, 1988, as the respondent No.2 was a public servant. However, the respondent No.1 rejected the request on the ground that the respondent No.2 was not a public servant.

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The records placed before this Court indicate that for the year ending 31.03.2014, the respondent No.1 had received a share amount of Rs.25,900/- and rehabilitation fund of Rs.13,31,107/from the Central Government and

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Rs.1,01,166/-. Likewise, the balance sheet of the respondent No.2 for the year ending 2003-2004 upto 2013 shows that certain amounts were received by the respondent No.2 from the State Government as assistance. Therefore, the respondent No.1 cannot claim that respondent No.2 was not a public servant for the purposes of the Prevention of Corruption Act, 1998.

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A perusal of the resolution passed by the respondent No.1 shows that there was no application of mind to the above facts but the respondent No.1 blindly proceeded to hold that it was not funded by the State Government and therefore, the respondent No.2 was not a public servant. In view of the material placed before this Court, the impugned resolution passed by the respondent No.1 is faulty and without application of mind and the same is liable to be quashed.

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In view of the above, the writ petition is allowed. Consequently, the order dated 06.02.2015 passed by the respondent No.1 is quashed. The matter is remitted before the respondent No.1 which shall pass an appropriate order considering the request of the petitioner to prosecute the

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