N P Balaraju Vs State of Karnataka

N P BALARAJU S/O H V PUTTASWAMY AGED ABOUT 55 YEARS. WORKING AS TECHNICAL DIRECTOR, KARNATAKA SLUM DEVELOPMENT BOARD, RESILDAR STREET, SESHADRIPURAM BENGALURU -560 020.

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…PETITIONER

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(BY SMT. SUVARNA LAKSHMI.M.L, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO GOVT DEPARTMENT OF HOUSING,

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VIKAS SOUDHA,

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BENGALURU – 560 001.

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Digitally signed by CHANDANA B M

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Location: High Court of Karnataka

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

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KARNATAKA LOKAYUKTA M.S. BUILDING, DR.AMBEDKAR VEEDHI BENGALURU-560001 REPRESENTED BY ITS REGISTRAR.

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…RESPONDENTS

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(BY SRI. G. RAMESH NAIK, AGA FOR R-1 SRI. RAMACHANDRAN.K, ADVOCATE FOR R-2 SRI. VENKATESH.S, ARABATTI, ADVOCATE FOR R-3)

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THIS W.P IS FILED UNDER ARTICLE 226 OF THE CONTITUTION OF

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INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE

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HC-KAR

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ORDER OF ENTRUSTMENT OF INQUIRY DATED 06.03.2019 OF GOVERNMENT AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, petitioner seeks for the following reliefs:-

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“ (a) QUASH Order of Government bearing No. VaEe 11 KoMumSe 2017 dated: 06.03.2019 (under Annexure-V to the writ petition) issued by the 1^st Respondent by issue of writ in the nature of certiorari and grant all consequential benefits.

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(b) ISSUE such other appropriate writ, order or direction as this Hon’ble Court deems fit to grant in the interest of justice and equity, including the award of costs of this writ petition.”

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A perusal of the material on record will indicate that the petitioner was appointed as Assistant Engineer in the 2^nd respondent – Karnataka Slum Development Board (KSDB) in the year 1989 and thereafter, he was promoted to the cadre of Assistant Executive Engineer in the year 1999 and he was promoted as Executive Engineer in the year 2011. During the year 2013, pursuant to the complaint given against the petitioner, an

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Inspection committee after conducting inspection, submitted a report in the year 2015. Thereafter, the Investigating officer of the Technical Wing of the Lokayuktha conducted one more inspection, on the basis of which, on 14.03.2017, the Upalokayuktha submitted

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a report under Section 12(3) of the Karnataka Lokayuktha Act,1984, against six officers including the petitioner. Thereafter, 1^st respondent addressed a letter dated 26.05.2018 to the 2^nd respondent – KSDB seeking information about the report submitted by the Upalokayuktha, pursuant to which, the 2^nd respondent gave information as sought for by the 1^st respondent that there was no fault with the KSDB employees, in addition to which, the 2^nd respondent – KSDB issued a communication dated 06.06.2018 to the petitioner and others seeking their remarks on the report submitted by the Upalokayuktha. On 06.09.2018, the 1^st respondent-State sought reports of spot inspection from the Technical Wing of the Lokayuktha. When the things stood thus, the 1^st respondent-State vide Annexure-V dated 06.03.2019, invoked Rule 14A of the CCA Rules 1957 and entrusted the matter to the 3^rd respondent – Lokayuktha for enquiry, aggrieved by which, the petitioner is before this Court by way of the present petition.

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Heard learned counsel for the petitioner and learned AGA for 1^st respondent – State as well as learned counsel for respondents 2 and 3 and perused the material on record.

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In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that the petitioner is an employee of the 2^nd respondent – KSDB and was a public servant but was not a Government servant, to whom Rule 14A of the CCA Rules was not applicable and the Government is not being a competent authority to invoke Rule 14A of CCA Rules and therefore, the impugned order at Annexure-V dated 06.03.2019 passed by the 1^st respondent – State entrusting an enquiry to the 3^rd respondent is illegal, arbitrary and without jurisdiction or authority of law and contrary to the judgment of the Hon’ble Division Bench of this Court in the case of S.G.Padmanabha & others vs. State of Karnataka

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& others – W.P.No.50413/2019 dated 22.11.2022 and the order of the co-ordinate Bench is Court in the case of N.P.Balaraju vs. State of Karnataka & others – W.P.No.10558/2018 dated 15.12.2021.

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Per contra, learned AGA for 1^st respondent – State and learned counsel for respondents 2 and 3 submits that there is no merit in the petition and the same is liable to be dismissed.

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I have given my anxious consideration to the rival submissions and perused the material on record.

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In S.G.Padmanabha’s case supra, the Hon’ble Division

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Bench of this Court held as under:-

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“ 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.

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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

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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Services (Classification, Control and Appeal) Rules, 1957 have been made applicable.

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

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5. Application of certain rules: The provisions of

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(i) The Karnataka Civil Service Rules; (ii) The Karnataka Civil Service (Conduct) Rules, 1966

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

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

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

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

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(vii) The Karnataka Government Servants (Seniority) Rules, 1957.

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(viii) The Karnataka Civil Service (Service and Kannada Language Examination)Rules, 1974.

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

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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':

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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:

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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.

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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

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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'.

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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.

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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:

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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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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13. Similar view has also been taken by another division bench of this court in SANNAMALLAPPA AND

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ANOTHER VS. STATE OF KARNATAKA AND OTHERS', (2021) 6 KAR L.J. 424 (DB).

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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.

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For the aforementioned reasons, the government order dated 24.06.2016 and the recommendation made by Upalokayukta dated 09.09.2019 are hereby quashed. The Board is however, granted the liberty to consider the report submitted by the Upalokayukta dated 31.08.2019 under Section 12(3) of the Act and to take an appropriate decision in accordance with law within a period of three months from the date of receipt of certified copy of the order passed today.

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Accordingly, the writ petition is disposed of.

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It is relevant to state that the aforesaid judgments were in relation to the persons, who are employed by the KSDB. In the instant case, it is an undisputed fact that the petitioner is an employee of the 2^nd respondent – KSDB and that the State Government clearly did not have jurisdiction or authority of law in entrusting the matter for enquiry to the Lokayuktha as held by the Hon’ble Division Bench of this Court in S.G.Padmanabha’s case supra and the order of the co-ordinate Bench of this Court in

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N.P.Balaraju’s case supra. Under these circumstances, I am of

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the considered opinion that the impugned order passed by the 1^st respondent is illegal, arbitrary and contrary to law and the same deserves to be quashed.

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