H M SIDDAGANGAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE facts are that the petitiomer had joined employment as a Second division Clerk in the Bangalore Mahanagara palike and later was promoted as a Revenue inspector Grade II and as a Revenue Inspector Grade I. He was promoted further as an assessor and he had attained the age of superannuation in that position. It is contended by the' petitioner that during 1982-83 he had worked as Revenue Inspector Grade II in the office of the Assistant Revenue Officer, slrivajinagar Range, Bangalore. It transpires that on 1-4-1989, the Government of karnataka directed an enquiry into certain allegations against the petitioner, namely that he was trapped by the Lokayukta while demanding and accepting illegal gratification for showing an official favour to a member of the public and the Upalokayukta was directed to conduct an enquiry against the petitioner. Accordingly it is contended by the petitioner that as on 25-11-1989 charges were framed by the Deputy Registrar. Enquiries, attached to Che office of the Lokayukta, which was communicated to the petitioner as on 4-12-1989. The petitioner took up a contention before the inquiring Authority that as he was an employee of the Bangalore Mahanagara palike, the provisions of the Karnataka Civil senvices Rules had no application to his case, as the provisions of the Karnataka Civil Services rules were made applicable from 1991 alone and therefore, the Upalokayukta would have no jurisdiction to conduct the Departmental enquiry. However, this objection was overruled on the ground that it was for the disciplinary Authority to consider the effect of issuance of the Government Order. The petitioner had then approached this Court by way of a writ petition in W. P. No. 14787/92. questioming the order of the Government dated 1-4-1999. The petition was dismissed, while holding that the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as 'the CCA rules' for brevity) were applicable to the employees of the Bangalore Mahanagara palike, by an order dated 19-8-1998. The petitioner had preferred an appeal in W. A. 4996/ 98 against the above order. The appeal was dismissed on merits on 10-12-1999. In the meanwhile, the Inquiring Authority had submitted a report to the Lokayukta holding that the charges against the petitioner were proved. The enquiry report, along with its recommendation, were forwarded to the Government for removal of the petitioner from service as per rule 8 (vii) of the CCA Rules. A second show-cause notice is said to have been issued to the petitioner by the Government, calling for explanation as to why the report of the lokayukta should not be accepted. The petitioner had replied to the same raising several contentions as to the correctness of the enquiry. However, on 16-3-2001, the respondent, had permitted the petitioner to retire from service with effect from 30-4-2001. But, however, on 24-4-2001, the respondent chose to pass an order of dismissal while cancelling the earlier order dated 16-3-2001. in terms of which he was permitted to retire from service. It is in this background that the petitioner is before this Court, challenging the order of dismissal.

(2.) SHRI B. B. Bajentri, the counsel for the petitioner, would submit, that the first respondent had directed an enquiry under Rule 14 -. A of the CCA Rules. In terms of the said rule, the Government is the Disciplinary Authority and not the second respondent. The impugned order having been passed by the second respondent, the same is unauthorised and illegal. This is further fortified by the fact that the State Government, upon receipt of the report from the Lokayukta, had issued a show-cause notice as stated above and called for the reply of the petitioner. It follows that the order of punishment, if any, could have been passed only by the State Government and that there was no delegation of power to enable the second respondent to pass the final order of dismissal. The first respondent has. thenefore, abdicated its responsibility and the second respondent was not within his jurisdiction to pass an order. Without entering upon the other infirmities in the impugned order, in that, it is not a speaking order, and the recommendation of the Upalokayukta, was to impose upon the petitioner a penalty of removal from service, whereas the second respondent has thought it fit to impose the penalty of dismissal. This was contrary to the requirement under the Karnataka Government Transaction of Business Rules. 1977. in that, Rule 21 of the said rules requires that all cases specified in the first Schedule to the Rules shall be brought before the cabinet. And, Item 21 of the Schedule requires that any proposal, inconsistent with the recommendation of the upalokayukta in regard to disciplinary action against a Government servant, would entail the same being placed before the Cabinet. There is no indication as to this procedure having been followed. And the counsel would submit, that on the face of it, when the Disciplinary authority has chosen not to agree with the findings of the Inquiring Authority and in the absence of reasons having been recorded for such disagreement, the order is bad in law. Insofar as Rule 3 of the Karnataka Lokayukta rules. 1984 is concerned, the 'competent authority" in relation to public servants referred to in sub-clause (d) of Clause (4) of Section 2, is the Government of Karnataka. In respect of public servants referred to in sub-clause (d)of Clause (4) of Section 2 of the Karnataka lokayukta Act, 1984 the 'competent authority' is such authority as may be prescribed, and hence, there is no scope for the Commissioner to have passed the impugned order.

(3.) PER contra, Shri Ashok Haranahalli, appearing for the second respondent, would seek to support the impugned order though the second respondent has not chosen to file statement of objections. He would firstly contend that the petitioner was an employee of the second respondent and therefore, was governed by the Kamataka City Corporation (Employees Conditions of Service) Rules, 1981, (hereinafter referred to as 'the Service Conditions rules' for brevity) in terms of which the Karnataka Civil Services (Classification. Control and Appeal) Rules. 1957 are, mutatis mutandis, made applicable to employees of the Corporation. And in terms of Schedule II to the said Rules, the authority empowered to impose penalties in respect of Group "c" employees such as the petitioner, is the Commissioner. In view of this specific authority conferred on the Commissioner to impose a penalty by virtue of the schedule. Sec. 14-A of the CCA Rules will have to be read in consonance with the said Schedule and since the appeal in terms of Schedule II to the Service conditions Rules is provided to the Government, it follows that the order passed by the commissioner is in consonance with the above provisions. In this regard, he would place reliance on a judgment of the Supreme court in the case of Harshad S. Mehta and others v. State of Maharashtra. AIR 2001 SC 3774 wherein, on the question whether the provisions as contained in Sections 306 and 307 of the Code of Criminal Procedure, 1973, would or would not apply to proceedings before the Special Court (Trial of Offences Relating to transactions in Securities) Act, 1992. the Supreme Court held that the Special Court would have all the powers of a Court of Session and the Court of the Magistrate as the case may be. after the prosecution is instituted or transferred before that Court and that it is a court of exclusive jurisdiction in respect of any offence which will include offences under the Indian penal Code, Prevention of Corruption Act and other Penal laws. It is only in the event of inconsistency that the provisions of the Special Court (Trial of Offences Relating to transactions in Securities) Act, 1992 would prevail as provided under Section 13 thereof. Any other interpretation will make the provisions of the Act unworkable which was not the intention of the legislature. And concluded that Section 9 (2) of the Act does not exclude Section 306 and Section 307 of the Code from the purview of the Act. By the same token of reasoning, the counsel would submit that as the provisions of the Karnataka civil Services (Classification. Control and appeal) Rules, 1957 are to be read into the karnataka City Corporation Employees (Conditions of Service)Rules. 1991 by incorporation, the provisions therein will have to be read to make the same workable and having regard to the schedule to the aforesaid Service Conditions Rules, providing that the Commissioner shall be the competent authority to impose penalty and an appeal being provided to Government, will have to be reconciled with the expressions employed in Section 14-A of the CCA Rules. And hence, it can be said that the Commissioner would have the power and the Government had rightly referred the enquiry report to the Commissioner to impose an order of punishment. He would further submit that the argument of the petitioner is highly technical in nature and that no prejudice is caused to the petitioner, in that, the petitioner cannot complain of the principles of natural justice being violated.