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1. :- R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE5H DAY OF AUGUST, 2021 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE P.KRISHNA BHAT WRIT PETITION No.46539/2018 (GM-KLA) BETWEEN:
1. SRI SANNAMALLAPPA S/O M KARIYAPPA AGED ABOUT57YEARS EXECUTIVE ENGINEER, KHB R/AT NO.1144, 11TH MAIN R.P.C LAYOUT, VIJAYNAGAR BENGALURU-560 040.
2. SRI. M.B.SOMASHEKHAR S/O M.C BASAPPA AGED ABOURT53YEARS ASST. EXECUTIVE ENGINEER, KHB R/AT NO.4024, 5TH CROSS, 9TH MAIN, KANAKADASANAGAR, DATTGALLI3D STAGE, MYSORE-570 022. ...PETITIONERS (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL ALONG WITH SRI SUYOG HERLE E., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HOUSING, VIKASA SOUDHA BENGALURU-560001.-.:
2. :- 2. THE COMMISSIONER KARNATAKA HOUSING BOARD KAVERI BHAVAN BENGALURU-560001.
3. THE KARNATAKA LOKAYUKTHA REP. BY ITS REGISTRAR, M/S BUILDINGS, DR. B.R AMBEDKAR VEEDHI, BENGALURU-560001. ... RESPONDENTS (BY SRI C.N.MAHADESHWARAN, ADDITIONAL GOVERNMENT ADVOCATE FOR R1, SRI H.G.VASANTHA KUMAR, ADVOCATE FOR R-2, SMT. MANJULA.D, ADVOCATE FOR R-3.) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERDATED:
17. 09.2018 IN NO.VaEi 57 Ka.Gru.Mam 2018 ISSUED BY THE RESPONDENT NO.1 AND REPORT DATED1902.2018 IN No.COMPT/UPLOK/MYS- 589/2009/ARE-6, ISSUED BY THE RESPONDENT NO.3 PRODUCED AT ANNEXURE-A AND A1 AND ALL FURTHER PROCEEDINGS AND GRANT ANY SUCH OTHER RELIEFS AS THE COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE. THIS PETITION COMING ON FOR PRELIMINARY HEARING-B GROUP THROUGH VIDEO CONFERENCING/ PHYSICAL HEARING THIS DAY, KRISHNA BHAT J., MADE THE FOLLOWING:
ORDERThis writ petition is listed for Preliminary Hearing- B Group. With consent of the learned Senior Counsel appearing for the petitioners and learned Additional Government Advocate appearing for respondent No.1 -:
3. :- and learned counsel for respondent Nos.2 and 3 respectively, it is heard finally.
2. The petitioners have assailed the order dated 17.09.2018 issued by respondent No.1 and report dated 19.02.2018 issued by respondent No.3 produced at Annexures-A and A1 respectively and all further proceedings pursuant thereto.
3. We have heard learned Senior Counsel Sri.Ashok Haranahalli, appearing for the petitioners, Sri C.N. Mahadeshwaran, learned Additional Government Advocate for respondent No.1, learned counsel Sri H.G. Vasantha Kumar for respondent No.2 and learned counsel Smt. Manjula D. for respondent No.3. We have perused the material on record.
4. Being aggrieved by the institution of disciplinary proceedings by respondent No.1 and entrusting holding of inquiry to the Karnataka Lokayukta (respondent No.3) under Rule 11 read with Rule 14A of the Karnataka Civil Services (Classification, Control and -:
4. :- Appeal) Rules, 1957 (for short, "CCA Rules"), the petitioners have sought the following reliefs: “(i) Issue a writ in the nature of certiorari or any other writ or order or direction and quash the Order dated 17.09.2018 in No.Va E57KaGrama 2018 issued by the respondent No.1 and report dated 19.02.2018 in No.Compt/Uplok/Mys-589/2009/ARE6 issued by the respondent No.3 produced at Annexure-A and A1 and all further proceedings pursuant thereto. (ii) Issue any other writ or order or direction and grant any such other reliefs this Hon’ble Curt may deem fit in the fact and circumstance of the case, in the interest of justice and equity.
5. Facts in brief are that petitioner No.1 was working as Executive Engineer and petitioner No.2 was working as Assistant Executive Engineer under the Karnataka Housing Board. The allegation is that during the period between 2007-2009 large extent of lands in Gangralchatra, Kallurunaganahalli and Yelachenahalli villages of Elavala Hobli, Mysuru District were purchased by negotiation and consent for the purpose of forming residential layouts under the agency of Karnataka Housing Board (‘the Board’ for short). The further -:
5. :- allegation is that petitioners who were working as Executive Engineer and Assistant Executive Engineer under the Board had colluded with middlemen and several others and had defrauded the farmers whose lands were acquired by purchase while making payment towards such acquisition. One Sri Ravi, Son of Lakkegowda, lodged a complaint with the respondent No.3 in Form -1 dated 09.11.2009 making allegations against petitioner No.2 to the effect that he and several others had defrauded the complainant and his father while making payment towards value of the land acquired for the Board. He had also subsequently filed a complaint based on which a case in Crime No.32/2014 was registered before Yelavala Police Station. A charge- sheet came to be filed in the said complaint in C.C. No.9/2016 in which petitioner No.2 was accused No.6.
6. By a Government Order dated 27.01.2014 (Annexure-L), the respondent No.1 entrusted the investigation of the matter to the respondent No.3 under Section 7(2A) of the Karnataka Lokayukta Act, 1984. In the said Order respondent No.3 was directed -:
6. :- to investigate and find out the veracity of the allegations in the complaint that while lands were purchased for the purpose of respondent No.2 in several villages of Elavala Hobli, whether the farmers whose lands were purchased had received the consideration amount or whether the same had been swallowed by middlemen and injustice was caused to the farmers. Pursuant to the same, Karnataka Upalokayukta - 2 (vide Annexure-M dated 31.01.2014) permitted complainant Sri Ravi Son of Lakkegowda to file a complaint before the jurisdictional police regarding the fraud committed in the transaction. Hon'ble Lokayukta, on receipt of the reports from the ADGP, Karnataka Lokayukta, prepared a detailed report dated 26.05.2015 (Annexure-Q) permitting the Investigating Officer to register a case and conduct detailed investigation in accordance with law. Subsequently the Dy.S.P., Anti-Corruption Bureau of Mysuru submitted a report against petitioner No.1 and petitioner No.2 and 44 others for registering a case under Sections 8, 13(1)(c) read with 13(2) of the Prevention of Corruption Act,1988 and Sections 420, -:
7. :- 120(B) read with Section 34 of IPC before the learned III Addl. Dist. And Sessions Judge, Mysuru District. Pursuant to the same, a FIR was registered in Crime No.10/2017 for the offences punishable under Sections 8, 13(1)(c) read with 13(2) of the Prevention of Corruption Act,1988 and Sections 420, 120(B) read with Section 34 of IPC, by the ACB Police, Mysuru. By separate notices dated 08.03.2017, Additional Registrar of Inquiry-6, Karnataka Lokayukta issued notice to petitioner No.1 and petitioner No.2 calling upon them to submit their reply/comments on the points mentioned therein. Both the petitioners submitted their representations as per Annexures - S2 and S3. Respondent No.3 prepared report under Section 12(3) of the Karnataka Lokayukta Act, 1984 dated 19.02.2018 as per Annexure-A1. Based on the same, respondent No.1 passed the impugned Government Order dated 17.09.2018 instituting disciplinary inquiry against the petitioners herein under Rule 11 read with Rule 14A of the CCA Rules and entrusting the holding of the inquiry to respondent No.3.-.:
8. :- 7. Learned Senior Counsel appearing for the petitioners submitted that petitioners were employees of the Board which is an autonomous body created under sub-Section (1)of Section 3 of the Karnataka Housing Board Act, 1962 (for short, "KHB Act"). He further contended that they are not 'Government servants' and they are only 'public servants' and, as such, respondent No.1 is not their disciplinary authority. It was further contended that for the petitioners, it is respondent No.2 who is the disciplinary authority under the Rules and Regulations applicable to them. He also contended that since they are not ‘Government servants’, the CCA Rules is not applicable to them and the respondent No.1 does not have the competence to institute disciplinary proceedings against them and consequently, Respondent No.1 also cannot entrust the holding of inquiry to Respondent No.3. It was therefore submitted by the learned Senior Counsel for the petitioners that the impugned Order dated 17.09.2018 (Annexure-A) is passed without jurisdiction and the same is liable to be set aside. It was contended by him that respondent -:
9. :- No.3 the Karnataka Lokayukta could not have submitted the report to respondent No.1 as it was not having any disciplinary control or authority over the petitioners. It was therefore, submitted that the impugned Order is liable to be quashed and writ petition is entitled to be allowed.
8. Learned Senior counsel further submitted that this petition is squarely covered by the decision of a Co-ordinate Bench of this Court in W.P. No.12300/2020 connected with W.P. No.12278/2020 and W.P. No.45764/2017, decided on 23.07.2021.
9. Learned Additional Government Advocate appearing for the respondent No.1 submitted that under the Karnataka Lokayukta Act, whenever complaint is received against a Government servant or a public servant, the respondent No.3 is required to enquire into the same and thereafter it has to apprise respondent No.1, about the outcome of such inquiry by way of a report and once such a report is submitted to respondent No.1, it is in duty bound to take further -:
10. :- steps on receipt of such report and in appropriate cases it can refer the report for inquiry under Rule 14A of the CCA Rules to Respondent No.3. Learned AGA submitted that, in that view of the matter respondent No.1 has only passed an order dated 17.09.2018 (Annexure-A) directing respondent no.3 to hold disciplinary inquiry and after the inquiry report is submitted, it is open to the disciplinary authority to take such action on the inquiry report as it deems fit. The further submission of learned Additional Government Advocate is that the challenge by the petitioners to the reference made by respondent No.1 on the report to respondent No.3 is premature and the same can only be done after the inquiry report is submitted and the disciplinary authority makes any decision on the same. It was therefore submitted that writ petition is without any merits and it is liable to be dismissed.
10. Learned counsel appearing for respondent No.3 submitted that one Sri Ravi, son of Lakkegowda, had made a complaint in Form - 1 against petitioner No.2 alleging that the lands were acquired by purchase -:
11. :- by respondent No.2 from farmers for forming a layout and since the acquisition was made by negotiations, the complainant and his father were entitled to receive consideration amount as per the market price and the said payment was not made and petitioner No.2 in collusion with middlemen had appropriated the said amount and thereby fraud was played by him. He further submitted that once such a complaint is made, the Respondent No.3 is required to follow the procedure as prescribed under the Karnataka Lokayukta Act and accordingly the investigation was done by the agency of respondent No.3 and as a result of the same it was disclosed that petitioner No.1 and petitioner No.2 and 44 others including large number of middlemen had joined hands in defrauding the complainant and several others and a case was also registered for offences punishable under Sections 8, 13(1)(c) read with 13(2) of the Prevention of Corruption Act,1988 and Sections 420, 120(B) read with Section 34 of IPC before the Sessions Judge, Mysuru. He also submitted that it is no doubt true that petitioners are working as Executive -:
12. :- Engineer and Assistant Executive Engineer under the establishment of the Board and as such they are not ‘Government servants’ but, since they are ‘public servants’, they are amenable to be enquired into by the Respondent No.3 and further they are also amenable to disciplinary inquiry. He, therefore, submitted that there is no merit in this petition and it is liable to be dismissed.
11. Learned counsel appearing for respondent No.2 submitted that even though petitioners are employees of respondent No.2 and the Board has framed its own Rules and Regulations for recruitment as well as for disciplinary control, CCA Rules are equally applicable to the employees of the Board in as much as they have been incorporated into the Karnataka Housing Board Rules, 1964. He particularly submitted that Rule 5 of the Karnataka Housing Board Rules, 1964 specifically incorporates the CCA Rules for the disciplinary enquiries with regard to Officers and servants of the Board. He submitted that as per the schedule attached to sub rule (2) of Rule 5 of the Karnataka Housing Board Rules, -:
13. :- 1964, for the petitioners, respondent No.2 is the disciplinary authority. He further submitted that since the Respondent No.3 has prepared and referred the report under Section 12(3) of the Karnataka Lokayukta Act, respondent No.2 would take appropriate steps in the matter and therefore challenge to such proceedings by the petitioners at this stage is premature and accordingly the petition is liable to be dismissed.
12. We have given our anxious consideration to the submissions made on either side and we have perused the records.
13. There is no dispute about the fact that petitioners were employees of respondent No.2 working as Executive Engineer and Assistant Executive Engineer, respectively at the relevant point of time. In sum and substance, the allegation against them is that large extent of lands were acquired by purchase from farmers in the Gangralchatra, Kallurunaganahalli and Yelachenahalli villages of Elavala Hobli, Mysuru District, for the purpose of forming layout by the Karnataka -:
14. :- Housing Board and the petitioners had colluded with large number of middlemen and, thereby, defrauded the farmers whose lands were acquired while making payment towards consideration. One Sri Ravi, son of Lakkegowda had filed a complaint in Form-1 before the respondent No.3 making a specific allegation against petitioner No.2. Suffice it to say that respondent No.3, got an inquiry made and a detailed report was also prepared and based on the same FIR in Crime No.10/2017 was registered by the ACB Police against both the petitioners herein and 44 others before the III Addl. District Session and Special Court, Mysore District, for the offences punishable under Sections 8, 13(1)(c) read with 13(2) of the Prevention of Corruption Act,1988 and Sections 420, 120(B) read with Section 34 of IPC. When the complaint was initially lodged by said Sri Ravi under Form-1, only petitioner No.2 was named therein and at that time a notice and a copy of complaint was issued to petitioner No.2. Subsequently, after inquiry by the respondent No.3, the entire gamut of the alleged fraudulent operations done by the -:
15. :- petitioners in collusion with middlemen was unravelled and thereafter show-cause notices were again issued to both the petitioners by the respondent No.3. On receiving reply from the petitioners, respondent No.3 prepared a detailed report under Section 12(3) of the Karnataka Lokayukta Act and as borne out from the impugned Order dated 17.09.2018, respondent No.1 instituted disciplinary proceedings against the petitioners herein under Rule 11 read with Rule 14A of the CCA Rules and entrusted the same to respondent No.3.
14. Perusal of the records (Annexures - T and T1 both dated 24.05.2018) produced by the petitioners along with the writ petition also show that respondent No.2 as disciplinary authority had specifically issued a show-cause notice calling upon the petitioners to submit their explanation as to why the disciplinary authority should not institute disciplinary proceedings under Rule 11 of the CCA Rules and the same should not be entrusted under Rule 14A to the respondent No.3 as per Section 12(4) of the Karnataka Lokayukta Act. The -:
16. :- petitioners have submitted a representation on receipt of such show-cause notices from respondent No.2 seeking copies of some documents and also seeking one month's time to submit their representation to the same. Their replies are dated 04.07.2018. The petitioners have submitted their detailed representation to the said show-cause notice issued by respondent No.2 as per Annexures - X and X1 dated 07.09.2018. It is, therefore, clear that as at the time of filing the writ petition, respondent No.2 who is admittedly the disciplinary authority had not yet passed the Order instituting disciplinary inquiry after consideration of the reply submitted by the petitioners, presumably because of the pendency of the present proceedings before this Court.
15. The contention of the learned Senior Counsel for the petitioners is that respondent No.1 is not the disciplinary authority for the petitioners who are the employees of Karnataka Housing Board and therefore respondent No.1 has passed the Order dated 17.09.2018 (Annexure-A) without jurisdiction. It is an -:
17. :- admitted position in this case that both the petitioners are employees of Karnataka Housing Board. Karnataka Housing Board is a creation under sub-Section (1) of Section 3 of the Karnataka Housing Board Act, 1962. Section 3 of the Act reads as follows:
3. Constitution of the Board.—(1) With effect from such date as the State Government may, by notification, appoint in this behalf, there shall be established for the purposes of this Act, a Board by the name of the Karnataka Housing Board which shall be a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name and shall subject to the provisions of this Act, be competent to acquire, hold and dispose of property both movable and immovable and to contract and do all things necessary for the purposes of this Act. [(2) The Board shall consist of the following members, namely:— (a) a Chairman who shall be appointed by the State Government; (b) the Additional Chief Secretary or the Principal Secretary or the Secretary to Government as the case may be Housing Department, Government of Karnataka; (c) the Secretary to Government, Finance Department, Government of Karnataka; (d) the Chief Engineer (Communication and Building) (South); -:
18. :- (e) the Director of Town and Country Planning, Government of Karnataka; Army Corporation; (f) the Additional Chief Secretary or the Principal Secretary or the Secretary to Government as the case may be, Energy Department, Government of Karnataka; (g) the Housing Commissioner; (h) a nominee of the Housing and Urban Development Corporation not below the rank of a Regional Chief; and (h-1) the Additional Chief Secretary or the Principal Secretary or the Secretary to Government as the case may be Urban Development Department, Government of Karnataka; (h-2) the Chief Engineer of the Board; (h-3) the Additional Director of Town and Country Planning of the Board; (h-4) the Secretary of the Board who shall be the Member Secretary; (i) three non-official members appointed by the State Government of which one shall be woman. [(2A) The names of members appointed including the Chairman shall be notified in the official Gazette.]. (3) [Any non-official member]. of the Board [including the Chairman]. may at any time resign his office by submitting his resignation to the State Government: Provided that the resignation shall not take effect until it is accepted.-.:
19. :- (4) For the purpose of this Act and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), the Board shall be deemed to be a local authority.
16. It is, therefore, evident from the above that Karnataka Housing Board is a 'body corporate' having perpetual succession and a common seal. Therefore, the Officers and employees of the Board are not Government servants and they are servants of the Board which is a corporate entity. The above provision also makes it clear that the Board which is the employer of the petitioners is wholly controlled by the Government of Karnataka and the governing body of the Board consists of the appointees of the State Government, Officers of the Government or the nominees of the same. At this stage it is necessary to make a reference to Clause (g) of sub-Section 12 of Section 2 of the Karnataka Lokayukta Act. It reads as follows: (12) “public servant” means a person who is or was at any time,— (a) xxx -:
20. :- (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) a person in the service or pay of,— (i) xxxx (ii) 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; (iii) xxxx (iv) xxxx (v) xxxx (vi) xxxx Explanation.- xxxx.
17. There cannot thus be any dispute about the position that Karnataka Housing Board is a statutory body established under the Karnataka Housing Board Act, 1962, owned and controlled by the State Government. It is therefore evident that factum of petitioners being 'public servants' is beyond the ken of dispute. It is also an admitted position in this case that both the petitioners were regular employees of the -:
21. :- Board governed by the Rules and Regulations framed under the Karnataka Housing Board Act for their recruitment, disciplinary control, pensionary benefits etc. Karnataka Housing Board Rules, 1964 provides for the conditions of the services of the Officers and servants of the Board.
18. Rule 5 of the said Rules are relevant for our current purpose and it reads as follows: “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.- SCHEDULE For Officers and Officials of the Karnataka Housing Board Authority which may impose penalty as -:
22. :- per Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957: Sl. Class of Posts Authority Authority empowered to Appellate No.Empowered to impose penalties and Authority appoint penalties which he may impose 1. Superintending Housing Housing (ii Principal Engineer, Joint Director Commissioner Commissioner to Secretary, of Town Planning, viii) Housing Executive Engineer, Department System Analyst, Deputy Director of Town Planning, Accounts Officer, Senior Programmer, Assistant Director of Town Planning, Assistant Executive Engineer (Civil), Assistant Executive Engineer (Electrical) (underlining supplied) 19. Since the whole thrust of attack on the legality of the proceedings initiated against the petitioners is grounded on the applicability of CCA Rules to the employees of the Board like the petitioners herein, more closer scrutiny of the above provision under Rule 5 of the Karnataka Housing Board Rules is called for.
20. It is crystal clear that if the CCA Rules is not at all applicable to the employees of the Board like the petitioners, respondent No.3 will completely lack -:
23. :- jurisdiction to hold any inquiry or disciplinary inquiry even if such proceedings is entrusted to it by respondent No.1 or respondent No.2 herein. There is absolutely no dispute about the fact that for the purpose of disciplinary control, employees of the Board including the petitioners are governed by the Karnataka Housing Board Rules, 1964 in general and Rule 5 in particular.
21. As already noticed and as extracted herein above, sub-Rule (2) of Rule 5 of the said Rules makes CCA Rules applicable to the Officers and servants of the Board. This legislative device by which CCA Rules is adopted into the body of KHB Rules, 1964 by citation is popular among law makers and frequently resorted to while making legislation. It is known by the moniker ‘referential legislation’. A schedule attached to sub-Rule (2) of Rule 5 of the KHB Rules states that for the Executive Engineers and Assistant Executive Engineers, the disciplinary authority is respondent No.2 (Housing Commissioner) and he is the authority having jurisdiction to impose penalties provided in Rule 8 sub- -:
24. :- rule (ii to viii) of CCA Rules which includes imposing of major penalties.
22. Significantly, sub-rule (2) of Rule 5 of the KHB Rules states that the CCA Rules shall mutatis mutandis be applicable to the Officers and servants of the Board. The question now is, what is the significance of the expression used "mutatis mutandis" on the applicability of the CCA Rules to the employees of the Board and whether employing such expression in any way limits the applicability of CCA Rules in its full amplitude to the disciplinary proceedings against the employees of the Board is concerned?.
23. The precise connotation of the phrase mutatis mutandis has been considered in various decisions of the Hon'ble Supreme Court and it is held that if a statute or any provision thereof is mentioned as applicable in another Statute, entirely or for any specific purpose, the former shall have full play in its operation in the latter ‘with necessary changes in points of detail’ and ‘matters or things are generally the same, but to be -:
25. :- altered when necessary, as to names, offices, and the like’. In other words, in the current context, evidently CCA Rules will completely apply and govern the holding of disciplinary inquiry against the employees of the Board like the petitioners herein, in its complete vigour except in some points of detail where departure is specifically made in the Karnataka Housing Board Rules as, for example, the schedule attached to sub-Rule (2) of Rule 5 specifically makes a mention as to who are the disciplinary authorities and who are the appellate authorities, with their powers regarding imposition of penalties clearly specified therein.
24. In this behalf it is useful to make reference to the observations of the Hon'ble Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., ; (2013) 5 SCC470where it is observed as follows:
"17. In Ashok Service Centre v. State of Orissa this Court held as under : (SCC p. 93, para
17) “17. … Earl Jowitt's The Dictionary of English Law (1959) defines ‘mutatis mutandis’ as ‘with the necessary changes in points of detail’. Black's Law -:
26. :- Dictionary (Revised 4th Edn. 1968) defines ‘mutatis mutandis’ as: ‘With the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like.’ … Extension of an earlier Act ‘mutatis mutandis’ to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act. … In the circumstances the conclusion reached by the High Court that the two Acts were independent of each other was wrong. We are of the view that it is necessary to read and to construe the two Acts together as if the two Acts are one, and while doing so to give effect to the provisions of the Act which is a later one in preference to the provisions of the principal Act wherever the Act has manifested an intention to modify the principal Act.” Similarly, in Prahlad Sharma v. State of U.P., the phrase “mutatis mutandis” has been explained as under: “11. The expression ‘mutatis mutandis’itself implies applicability of any provision with necessary changes in points of detail.
25. There is yet another reason - equally strong if not more - why we say CCA Rules is applicable to the -:
27. :- case of petitioners herein. While it is true that the Board is a 'body corporate', albeit, wholly controlled by the Government of Karnataka, the Officers and servants of the Board are 'public servants' and are not 'Government servants'. Sub-Rule (2) of Rule 5 of the KHB Rules makes (subject to some modifications in points of detail) CCA Rules applicable to Officers and servants of the Board. There is no separate and independent Rules or Regulation framed by the Board governing the procedure for holding disciplinary inquiry against Officers and servants of the Board. The question therefore which arises for consideration in this context is, the Board being a 'body corporate' controlled by the State, whether the employees of such Board like the petitioners could be proceeded with for disciplinary purposes under the CCA Rules which without doubt is applicable only to the 'Government servants'?. The importance of the true answer to this question lies in the fact that it is only if the answer is in the affirmative could the disciplinary inquiry be held by respondent No.3 against the petitioners. In other words, the only -:
28. :- means by which the disciplinary inquiry could be entrusted to the respondent No.3 for the employees of the Board is by invoking Rule 14A of the CCA Rules. To be precise, unless the CCA Rules is found applicable to the Officers and servants of the Board, the disciplinary proceedings for holding disciplinary inquiry cannot be entrusted to the respondent No.3 as sought to be done in this particular instance.
26. A perusal of Rule 5 of the KHB Rules shows that sub-Rule (1) makes reference to Karnataka Civil Services Rules for the purpose of determination of entitlement of retirement benefits to the Officers and servants of the Board. Sub-rule (2) of Rule 5 of the Rules states that CCA Rules shall be applicable to the Officers and servants of the Board subject to certain departures specifically made therein. Reading of the Karnataka Housing Board Rules, 1964 more particularly Rule 5 thereof clearly indicates that the rule making authority has avoided the normal and more usual route of making an elaborate legislation comprehensively outlining the contours of the manner in -:
29. :- which the inquiry is required to be held and the competent authorities empowered to institute proceedings and impose penalties on the delinquent employees. But instead it has adopted a legislative device which is more popularly known as "legislation by incorporation" or " legislation by reference". Sub-rules (1) and (2) of Rule 5 have both adopted this device for altogether different purposes. This legislative device of making law by reference or incorporation and the amplitude of the same has fallen for consideration in various decisions of Indian Courts. Reference to some of them is apposite in this context. An illuminating exposition of the law on this aspect is found in the following passage of the decision of a Division Bench of Hon'ble Travancore - Cochin High Court:
"(6) ….. The following passage in American Jurisprudence, Vol. 50, page 57, shows that the law governing a particular subject may be adopted by reference in a statute: “Statutes which refer to other statutes and make them applicable to the subject of the new legislation are called ‘reference statutes’. The purpose of such practice is to incorporate into the new Act the provisions of the other -:
30. :- statutes by reference and adoption and thereby to avoid encumbering the statute books by unnecessary repetition. In the absence of constitutional restrictions reference statutes are frequently recognised as an approved method of legislation. It is however, reasonable to suppose that when the legislature undertakes to legislate specifically on a subject it does so fully and it cannot be deemed to have incorporated into the law parts of a former law unless the language employed is such as to indicate with a reasonable degree of certainty that was the legislative intention. Reference statutes generally adopt all or a part of another statute by a specific reference thereto, and a descriptive reference thereof. Sometimes, however, the reference is not merely to a particular statute, but to the law generally governing a certain subject, or to the laws generally covering a certain subject with the exception of those for which specific provision is otherwise made. Similarly, a Code or compilation of laws need not be embodied in the Act adopting it; a reference in such Act to the Code or compilation adopted is sufficient. The adoption of an earlier statute by reference makes it as much a part of the later Act as though it had been incorporated in full length”. [Ref: Kurian Augusty vs. Devassy Aley reported in AIR1957TC17 -:
31. :- 27. Similarly in State of M.P. v. M.V. Narasimhan reported in (1975) 2 SCC377 Hon'ble Supreme Court observed as follows:
4. ….. It is well settled that where the subsequent Act incorporates a provision of the previous Act, the position is that the borrowed provision is bodily lifted from the previous Act and placed in the subsequent Act and becomes an integral and independent part of it so as to remain unaffected by any repeal, change or amendment in the previous Act. In Clarke v. Bradlaugh, Brett, L.J.
observed as follows: ... but there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second. These observations were noticed and approved by this Court in Ram Sarup v. Munshi where this Court made the following observations: Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L.J.
in Clarke v. Bradlaugh: Where a statute is incorporated, by reference into a second statute the repeal of the first statute by a third does not affect the second. xxxxxx -:
32. :- 5. The doctrine of incorporation by reference to earlier legislation has been very aptly described by Lord Esher, M.R. in In re Wood's Estate, Ex Porte Her Majesty's Commissioners of Works and Buildings where he observed as follows: “If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855.
6. Craies on Statute Law, (7th Edition), while referring to the observations of Brett, L.J.
observed at p. 361 as follows: “There is a rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second, as the incorporated provisions have become part of the second statute.
7. The Privy Council in Secretary of State for India- in-Council v. Hindusthan Cooperative Insurance Society Ltd. while amplifying this doctrine, observed as follows: “Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at -:
33. :- length the provisions which it was desired to adopt .... The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country.
8. Thus the position is that after the provision of the previous Act is incorporated in the subsequent Act, the offspring, namely the incorporated provision, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book. …….
28. The above position is reiterated by the Hon'ble Supreme Court in U.P. Avas Evam Vikas Parishad v. Jainul Islam reported in (1998) 2 SCC467“17. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be -:
34. :- applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R., the legal effect of such incorporation by reference “is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all”. (See: Wood's Estate, Re, Ch D at p. 615.) As to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of M.P. v. M.V. Narasimhan (SCR p. 14 : SCC p. 385, para
15) -:
35. :- “Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases: (a) Where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.
29. A close reading of the above authorities shows that the device of 'referential legislation' and 'legislation by incorporation' admits of being formulated as following propositions: “(1) In the absence of constitutional restrictions, 'referential legislation' and 'legislation by incorporation' are frequently recognised as an approved method of legislation; -:
36. :- (2) The purpose of resorting to such legislation device is to incorporate into new Act the provisions of other statutes by reference and adoption and thereby avoid encumbering the statute books by unnecessary repetition; (3) It makes for clarity and certainty in the law in as much as the previous Act or provision thereof incorporated in a later statute would have been already construed by courts and therefore a presumption would arise that the law maker being aware of the same would have intended it to convey the same meaning in the later Act as well. (4) Such a legislation may be of two kinds, viz.: (a) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; (b) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference; (5) If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. This means, any amendment made in the earlier legislation -:
37. :- after the date of enactment of the subsequent legislation would also be applicable. (6) In the case of legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the later legislation. (7) The principle stated at serial No.6 above will not apply in the following cases: (a) Where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary -:
38. :- intendment, applies the said provisions to the subsequent Act.” (8) As to whether a particular legislation falls in the category of 'referential legislation' or 'legislation by incorporation' depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances.
30. From the foregoing it is absolutely clear that CCA Rules to the extent it is not departed from in the Karnataka Housing Board Rules, 1964 itself by incorporating a schedule to sub-rule (2) of Rule 5 therein is applicable with regard to disciplinary control of the Officers and servants of the Board and therefore the present petitioners as well. The above view of ours receives support from a decision of a Co-ordinate Bench of this Court to which one of us is a party (Justice B.V. Nagarathna) in W.P. No.12300/2020 and connected matters [R.F. Hudedavar Vs. State of Karnataka & Others, para 38].. In that view of the matter, we do not find any merit in the contention of the learned Senior Counsel for the petitioners that CCA Rules is not applicable to the case of the present petitioners and -:
39. :- therefore the respondent No.3 cannot be entrusted with the disciplinary proceedings / inquiry against the petitioners herein.
31. The next question that needs to be gone into is regarding the legality of the Order dated 17.09.2018 (Annexure-A) passed by respondent No.1. It is absolutely clear - and on this both the learned counsel appearing for respondent No.3 as well respondent No.1 were not in a position to substantiate otherwise - the respondent No.1 is not the appointing authority and it is not the disciplinary authority for the Officers and servants of the Board like the petitioners herein. Therefore the report under Section 12(3) of the Karnataka Lokayukta Act forwarded to it - (Annexure- A1) has to be received by it only as a matter of apprisal to the Government having controlling interest over the working and operation of the Board. It is, therefore, plain that respondent No.1 did not have the jurisdiction to institute disciplinary proceedings against the petitioners herein and further entrust holding of such inquiry to the respondent No.3. The same is therefore -:
40. :- liable to be quashed. However it is required to be noticed that an interesting feature of this case is that after the respondent No.3 prepared a report under sub- Section (3) of Section 12 on the petitioners, it had not only sent a report to respondent No.1 but also to the 'competent authority' within the meaning of (clause (g)) of sub-Section 4 of Section 2 of the Karnataka Lokayukta Act, 1984, namely respondent No.2.
32. The show-cause notices both dated 24.05.2018 (Annexure-T and T1) evidences the fact that the report under Section 12 (3) of the Karnataka Lokayukta Act, 1984, dated 19.02.2018 (Annexure-A1) was forwarded to the 'competent authority' namely respondent No.2 by a letter of the Registrar of respondent No.3 dated 28.02.2018 and pursuant to the same, explanation was called for from the petitioners as to why the 'competent authority' should not initiate disciplinary action and entrust holding of inquiry to respondent No.3. On receipt of the same the petitioners have sought time to submit explanation and they also sought documents from respondent No.2 and on receipt -:
41. :- of the same they have submitted their explanations. In view of filing of these writ petitions, respondent No.2 has not proceeded with the matter and it is awaiting his considered decision. In a way, therefore, the challenge made by the petitioners herein to the impugned orders passed by respondent No.1 is superfluous. Having regard to the aforesaid discussion and also the Judgment of a Co-ordinate Bench of this Court in Writ Petition No.12300/2020 and connected matters, disposed of on 23.07.2021(noted supra), the order bearing No.VaEi 57 Ka.Gru.Mam 2018 dated 17.09.2018 (Annexure-A) is quashed. Respondent No.1-State is directed to submit the report under Section 12(3) of the Karnataka Lokayukta Act to the Housing Commissioner-respondent No.2. On receipt of the aforesaid report, the Housing Commissioner-respondent No.2 is at liberty to appoint the Enquiry Officer for conducting enquiry against the petitioners herein having regard to Section 12(4) of the Karnataka Lokayukta Act and Rule 5(2) of the -:
42. :- Karnataka Housing Board Rules, 1964, and in accordance with law. All contentions raised by both sides on merits of the allegations against the petitioners herein are kept open to be raised at an appropriate stage. All other contentions raised on behalf of the petitioners and which have not been answered in this petition, are permitted to be raised before the Enquiry Officer in accordance with law or before the appropriate forum, as the case may be. This writ petition is allowed in part and disposed of in the aforesaid terms. Parties to bear their respective costs. Sd/- JUDGE Sd/- JUDGE sac* CT-HR