1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE29H DAY OF NOVEMBER, 2019 BEFORE THE HONBLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION NO.112000/2019 (S-DIS)BETWEEN :
B.Y.NILUGAL, AGED ABOUT53YEARS, OCC: ASST. EXECUTIVE ENGINEER, DISTRICT PROJECT OFFICE, KARNATAKA HOUSING BOARD, BAGALKOT, R/O. H.NO.943, 1ST CROSS, SAPTAGIRI LAYOUT, POST GADDANAKERI, TQ. AND DIST. BAGALKOT. ... PETITIONER STATE OF KARNATAKA, DEPARTMENT OF HOUSING, VIKAS SOUDHA, BENGALURU-01, REP. BY ITS SECRETARY. (BY SRI. JAGADISH PATIL, ADVOCATE) AND:
1.
2. COMMISSIONER FOR HOUSING AND DISCIPLINARY AUTHORITY, KARNATAKA HOUSING BOARD, CAUVERY BHAVAN, K.G.ROAD, BENGALURU-09. (BY SMT. VEEHA HEGDE, AGA FOR R1; SMT. SHARMILA PATIL, ADV. FOR R2)
... RESPONDENT
S2THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO (A) QUASH THE ORDER OF DISMISSAL FROM SERVICE DATED2506.2019 BEARING NO.Kra.Gra.mam/Adalita/Si.Sha.1/PR/2018-19 PASSED BY THE2D RESPONDENT UNDER RULE8viii) OF KARNATAKA CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES1957 PRODUCED AT ANNEXURE-A, (B) DIRECT THE2D RESPONDENT TO REINSTATE THE PETITIONER TO DISCHARGE DUTIES AS ASST. EXECUTIVE ENGINEER AT DISTRICT PROJECT OFFICE, KARNATAKA HOUSING BOARD, BAGALKOT. THIS WRIT PETITION COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In the instant petition, the petitioner has sought for the following relief: i) Quash the Order of dismissal from service dated 25.06.2019 bearing No.Ka.Gra.Mum/ Adalita/Si.Sha.1/PR/ 2018-19 passed by the 2nd Respondent under Rule 8 (viii) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 produced at Annexure-A. ii) Direct the 2nd Respondent to reinstate the... Petitioner
to discharge duties as Asst. Executive Engineer at District Project 3 Office, Karnataka Housing Board, Bagalkot, Pass such other order or direction, this Honble Court deems fit in the circumstances of the case. The petitioner is an employee of the 2nd iii) 2. respondent-Karnataka Housing Board (for short KHB) and he is in the cadre of the Assistant Executive Engineer. He was subjected to disciplinary proceedings on the allegations that, in collusion with the middleman he has caused financial loss to the KHB/Government. In this backdrop the matter was investigated by the Office of the Karnataka Lokayuka. Thereafter, Office of the Lokayukata sought order for initiation of enquiry under sub rule (2) (a) (i) (ii) and (iii) of Rule 14-A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the CCA Rules, 1957, for brevity) from the Government. The Government acted upon the Office of the Lokayukta request for taking 4 disciplinary action and permitted on 05.02.2012. Thus, the inquiry initiated and it was concluded in holding the alleged charges leveled against the petitioner were proved. Thereafter, Upa-Lokayukta recommended for imposition of penalty of dismissal from service on 11.10.2018. On receipt of Upa-Lokayuktas communication, State Government by its communication dated 26.10.2018 directed respondent No.2 Commissioner, KHB for taking action. Thereafter, Housing Commissioner issued notice on 14.12.2018 for which petitioner submitted his explanation on 03.01.2019. In this backdrop, respondent No.2-Commissioner proceeded to dismiss the petitioner from service under Rule 8 (viii) of CCA Rules, 1957.
3. The learned counsel for the petitioner vehemently contended that, pursuant to the Upa- Lokayuktas recommendation read with the Government communication dated 26.10.2018, the Commissioner, KHB has no power to pass an order of dismissal. The 5 entire proceedings were initiated under Rule 14-A of CCA Rules 1957. It was submitted that, in the entire Rule 14- A, power is vested with the Office of the Lokayukta and Government. No power is vested with the Commissioner, KHB. The disciplinary authority is Commissioner, KHB and appellate authority is Principal Secretary, Housing Department under the Karnataka Housing Board Act, 1962 (hereinafter referred to as the KHB Act, 1962, for short) read with the Karnataka Housing Board Rules 1964 (hereinafter referred to as the KHB Rules, 1964, for short). There is no provision empowering the State Government to recommend for a dismissal of an employee of the Karnataka Housing Board. In the absence of any power, the Commissioner, KHB mechanically accepted the recommendations made by the Office of the Upa-Lokayuka read with the State Governments communication. Thus, there is a total non-application of mind and in the absence of any statutory provision, empowering Commissioner, Housing Board to invoke provision of Rule 14-A read with 6 Rule 8 of Rules 1957, in dismissing the petitioner from service.
4. Per contra, learned AGA for the State vehemently opposed the contentions of the petitioner. The learned AGA for the State pointed out, under sub-Section 6 of Section 10 of the KHB Act, 1962, the Commissioner, Karnataka Housing Board is equated to that of a major Head of the Department of the State Government under the Karnataka Civil Services Rules. Therefore, respondent No.2 - Commissioner is a competent authority. Further, it was pointed out that, under Rule 5 - Conditions of Service of the Officers and Servants of the Board, wherein under KHB Rules, 1964, they have adopted the CCA Rules, 1957, wherein for Assistant Executive Engineer, Authority empowered to appoint is Housing Commissioner and he/she is empowered to impose penalty under Sub-rule (ii) to (viii) or Rule 8 of CCA Rule, 1957, similarly Principal Secretary, Housing Department has been identified as 7 Appellate Authority. Therefore, Rule 14-A of CCA Rules, 1957, is required to be taken note of, wherever the Government is mentioned, it is to be read as Housing Commissioner. In view of these two provisions, Commissioner is the competent authority and the petitioner has a remedy of appeal. Thus, the petitioner has not made out a case.
5. Learned counsel for KHB reiterated the arguments advanced on behalf of the State Government.
6. Heard the learned counsel for the parties.
7. The crux of the matter in the present petition is whether the 2nd respondent-Commissioner is the competent to dismiss the petitioner from service in terms of Rule14-A read with Rule 8(viii) read with Sub-section 6 of Section 10 of KHB Act, 1962 read with Rule 5 and Schedule to KHB Rules, 1964?.
8. Rule 14-A of CCA Rules, 1957 reads as under:
8. 14.A. 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 Upalokayukta 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 on 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 (iii) a member of the State Civil Services Group-C or Group-D, the Lokayukta or the Upa-lokayukta or, (before the 21-12-1992), 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 9 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 Upalokayuka, as the case may be, or an officer on the staff of the Lokayukta authorised 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; 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 authorised 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 authorised under clause (b) to conduct an inquiry 10 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. (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. Further, sub-section (6) of Section 10 of the KHB Act, 1962 reads as under:
11. 10. Appointment and powers of Housing Commissioner, Chief Engineer and Secretary. (1) xxxxxxxxxxx (2) xxxxxxxxxxxx (3) xxxxxxxxxxxx (4) xxxxxxxxxxxx (5) xxxxxxxxxxxx (6) The Housing Commissioner shall have all the powers of a major Head of the Department of the State Government under the Karnataka Civil Services Rules for the time being in force as respects the Officers and the servants of the Board. Rule 5 of the KHB Rules, 1964 reads as under:
5. Condition of service of the Officers and servants of the Board. (1) The officers and servants of the Board shall be paid after retirement a pension at the same rates and subject to the same conditions as laid down in the Karnataka Civil Services Rules. (2) The Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 shall mutatis mutandis, be applicable to the Officers and servants of the Board. The authority empowered to appoint, the authority empowered to impose penalties and penalties which he may impose and Appellate Authority in respect of the Officers and Servants of the Board shall be as mentioned in Schedule below. 12 SCHEDULE For Officers and Officials of the Karnataka Housing Board Authority which may impose penalty as per Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957) Class of Posts Authority Empowered to appoint to Authority empowered impose and penalties which he may impose penalties Appellate Authority Housing Commissioner Housing Commissioner (ii to viii) Principal Secretary, Housing Department of of Superintending Joint Engineer, Director Town Planning, Executive System Engineer, Deputy Analyst, Town Director Accounts Planning, Officer, Senior Programmer, Assistant Director of Town Planning, Assistant Executive Engineer (Civil), Assistant Executive Engineer (Electrical) Sl. No.1.
9. The undisputed facts are that, on certain allegations leveled against the petitioner in causing financial loss to KHB/Government, office of the Karnataka Lokayukta investigated the matter. Thereafter, they have sought permission of the Government for initiation of disciplinary proceedings under Sub-rule 2(a)(iii) of Rule 14-A of the CCA Rules, 1957. The State Government mechanically granted permission without examining 13 whether the State Government is the disciplinary authority to take action against the petitioner, who is an employee of the KHB. Further, action has been taken by the office of the Lokayukta in framing the charges and conclusion of the enquiry. Thereafter, Upa-Lokayukta recommended for imposition of penalty of dismissal from service to the State Government in terms of the provision under Sub-rule (2)(d) of Rule 14-A of the CCA Rules, 1957. On receipt of Upa-Lokayuktas recommendation, the State Government did not proceed to impose the penalty of dismissal from service obviously for the reason that State Government is not disciplinary Authority. Therefore, the State Government forwarded the papers to the 2nd respondent Commissioner for taking action in imposing penalty of dismissal from service.
10. Preliminary issue of alternative remedy of appeal is not available to the petitioner as against the order passed under Rule 14-A of CCA Rules, 1957. That 14 apart, Commissioner has no authority to pass dismissal order if investigation followed by disciplinary proceedings is conducted by the office of the Lokayukta, in particularly with reference to Rule 14-A of CCA, Rules, 1957, due to non-obstante clause read with the fact that power to take action is vested only with Government. Therefore respondents contention that petitioner has remedy of appeal is not tenable.
11. In this backdrop, it is to be noted that the Disciplinary Authority in respect of the petitioner is no doubt the 2nd respondent Housing Commissioner and at the same time, one has to take note of invoking Rule 14-A of CCA Rules, 1957 by the office of the Karnataka Lokayukta in seeking permission of initiating disciplinary proceedings against the petitioner and such permission was granted by the Government and not by Housing Commissioner, so also he is not empowered under Rule 14-A of CCA Rules, 1957. Thereafter, proceedings were 15 concluded in recommendation of imposition of penalty of dismissal from service by the Upa-Lokayukta.
12. In the normal course, Housing Commissioner is empowered to impose the penalty of dismissal being the disciplinary authority had he invoked CCA Rules, 1957 in particularly Rule 11, for holding inquiry and for imposition of major penalty. Whereas in the present case, from the inception till recommendation of dismissal from service, Rule 14-A of the CCA Rules, 1957 has been invoked and in the interregnum, State Government permitted to initiate disciplinary proceedings, upon request from the office of the Lokayukta. Clauses under Rule 14-A of CCA Rules, 1957 could be invoked only by the office of the Karnataka Lokayukta and State Government for imposition of major penalties and if Government satisfy for initiation of inquiry under Rule 12 of CCA Rules, 1957, in such an eventuality, State Government may ask disciplinary authority to initiate inquiry under Rule 12 of the CCA Rules,1957 in 16 terms of Sub-rule (2)(a)(iii) of Rule 14-A of CCA Rules, 1957. In other words, there is no provision empowering the Commissioner for Karnataka Housing Board to invoke any of the clauses under Rule 14-A and Rule 8 of CCA Rules, 1957. For the reasons Rule 14-A(1) commences with non-obstante clause !4-A. 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.. That apart, it is to be noted that the State Government realized that the Government is not the disciplinary authority to the petitioner on receipt of Upa-Lokayuktas recommendation for imposition of penalty.
13. In this backdrop, from the inception i.e., State Government permitting to initiate disciplinary proceedings and the recommendation of the Upa-Lokayukta and thereafter acting on such recommendation by the Government and consequential order passed by the 17 Commissioner are without the authority of law. Unless and until Rules 14-A of the CCA Rules, 1957 is amended appropriately, while incorporating the Commissioner as against the word Government in so far as KHB Officers/Employees, 2nd respondent - Commissioner is not empowered to act upon the Upa-Lokayuktas recommendation read with State Governments recommendation. The petitioner has submitted 15 pages detailed explanation to the show cause notice dated 04.12.2018, on 03.01.2019 to the Housing Commissioner. None of the contentions have been considered while imposing penalty of dismissal from service. What has been stated is as under: i G (cid:11)PAiP-1 gg i (cid:11)PAiPgg z Zgu gAi PAPV j ..U(cid:11)., AiP PAiP CAiAvgg, Eg (cid:11) j(cid:11)z DgU zR(cid:11)wU v gdvz (cid:11)Ai F18PVAv zAq G(cid:11)R (6) g vz sg irgvg. Having regard to the nature of charge proved against DGO Sri B.Y.Nilugal, it is hereby recommended to the Government for imposing penalty of dismissal from service on DGO Sri B.Y.Nilugal, Karnataka Housing Board, District Project Office, Koppal. CzgAv ..U(cid:11)., AiP PAiP CAiAvgg, EjU G(cid:11)R (8)g F PbjAz n ej ir, Cg (cid:11) g(cid:11)z Dg vz (cid:11)Ai i G(cid:11)PAiPgg sg irgAv zAqAi U v gPu P Kzg Ez Tv S a(cid:11)Vgvz. . . U(cid:11)., AiP PAiP CAiAvgg, Eg v gPu PAi AP0301-2019 g vz Tv S gvg. zjAig z Tv 19 eAi j(cid:11)V, MAv CAU Ez Pgt i G (cid:11)PAiP-1 gg sgAv zAq wi(cid:11)Vz. DzzjAz F Dz:
14. Thus, prima facie there is a total non- application of mind in passing the dismissal order as is evident from the order wherein the Housing Commissioner has not apprised the contentions of the petitioner and considered and expressing his views. In other words, issuance of show cause notice and obtaining explanation from the petitioner is like an empty formality. Even on this ground also, order of dismissal dated 25.06.2019 is liable to be set aside.
15. Under Rule 14-A of CCA Rules, 1957, power is vested with the Government for approval/entrustment of disciplinary proceedings to the office of the Karnataka Lokayukta or referring to disciplinary authority if inquiry is to be held under Rule 12 of CCA Rules, 1957 and further in the later stage, imposition of penalty is 20 concerned with reference to Rule 11 R/w. Rules 14-A and 8 of CCA Rules, 1957, Government has been identified as competent authority. Therefore, unless power is delegated to other than Government, Housing Commissioners action is without authority of law. In other words, one has to exercise statutory power strictly in accordance with statute. In this regard, the Honble Supreme Court in the following cases held as under: (i) In the case of Dhananjaya Reddy Vs. State of Karnataka reported in (2001) 4 SCC9 in para No.23 held as under:-
"23. It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of U.P. v. Singhara Singh, AIR1964SC358(AIR p. 361, para
8) held:-
"A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession 21 (ii) might be proved by the record of it made in the manner laid down. In the case of Director General, ESI and another Vs. T. Abdul Razak reported in (1996) 4 SCC708in para No.14 held as under:-
"14. The law is well settled that in accordance with the maxim delegates non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorized by express words or necessary implication. (iii) In the case of Sidhartha Sarawgi Vs. Board of Trustees for the Port of Kolkata and others reported in (2014) 16 SCC248 in para Nos. 4, 9 and 10 held as under:-
"4. There is a subtle distinction between delegation of legislative powers and delegation of non-legislative/administrative powers. As far as delegation of power to legislate is concerned, the law is well settled: the said 22 power cannot be sub-delegated. The legislative cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct [Harishankar Bagla v. State of M.P., AIR1954SC465at p. 468, para 9:
1954. Cri LJ1322 (1955) 1 SCR380at p. 388; Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC516at p. 524, para 24].. Subordinate legislation which is generally in the realm of rules and regulations dealing with the procedure on implementation of plenary legislation is generally a task entrusted to a specified authority. Since the legislature need not spend its time for working out the details on implementation of the law, it has thought it fit to entrust the said task to an agency. That agency cannot entrust such task to its subordinates; it would be a breach of the confidence reposed on the delegate.
9. The Constitution confers power and imposes duty on the legislature to make laws and the said functions cannot be delegated by the legislature to the executive. The legislature is constitutionally required to keep in its own hands the essential legislative functions which 23 consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the legislature and laying the guiding policy, the legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and non- essential functions of the delegate should also be borne in mind. While there cannot be sub- delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate.
10. Sometimes, in the plenary legislation itself, the lawmakers may provide for such sub- delegation. That is what we see under Sections 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment. 24 (iv) In the case of Captain Sube Singh and Others Vs. Lt. Governor of Delhi and others, reported in (2004) 6 SCC, 440 in para No.29 held as under:-
"29. In Anjum M. N. Ghaswala [IT v. Anjum M.H. Ghaswala, (2002) 1 SCC633 a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC9 2001 SCC (Cri) 652].. The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.
16. In view of these facts and circumstances, the action of the State Government permitting office of Lokayukta to proceed for initiation of inquiry till 25 recommendation to Housing Commissioner for taking action pursuant to Upa-Lokyuktas recommendation are without authority and contrary to Rule 14-A of CCA Rules, 1957. Further the Commissioner has no power to impose a penalty of dismissal from service in a matter investigated and inquiry is conducted by the office of the Karnataka Lokayukta, pursuant to the aforesaid Rule read with Rule 8 of CCA Rules, 1957. Accordingly, the order dated 25.06.2019 passed by the 2nd respondent is set aside (Annexure-A). Writ petition stands allowed. *Svh/-till para 3 gab- para 4 to end Sd/- JUDGE