IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT PETITION NO.37437 OF 2017 (GM-KLA) BETWEEN:
P JAGANNATHA SHETTY SON OF LATE RAMAIAH SHETTY AGED 64 YEARS RETIRED CHIEF EXECUTIVE OFFICER OF AMPAR CO-OPERATIVE AGRICULTURAL SOCIETY LIMITED (R) SHANKARA NARAYANA ROAD POST AND VILLAGE AMPAR KUNDAPURA TALUK-576211 UDUPI DISTRICT.
... PETITIONER (BY SRI.L S CHIKKANAGOUDAR, ADVOCATE FOR SRI.Y RAJENDRA PRASAD SHETTY, ADVOCATE ) AND:
1. STATE OF KARNATAKA DEPARTMENT OF CO-OPERATIVE M.S.BUILDING BENGALURU-560001 REPRESENTED BY ITS REGISTRAR.
2. UPA-LOKAYUKTA DR.AMBEDKAR BEEDHI M.S.BUILDING BENGALURU-560001 REPRESENTED BY ITS REGISTRAR.
3. REGISTRAR OF CO-OPERATIVE SOCIETIES NO.1, ALI ASKAR ROAD BENGALURU-560001.
4. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES UDUPI DISTRICT UDUPI-576101.
5. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES KUNDAPURA SUB-DIVISION KUNDAPURA-576201 UDUPI DISTRICT.
6. K GOPALKRISHNA KINI AGED ABOUT 51 YEARS SON OF SHESHAGIRI KINI PRESIDENT AMPAR CO-OPERATIVE AGRICULTURAL SOCIETY LIMITED (R) POST AND VILLAGE AMPAR KUNDAPURA TALUK-576211 UDUPI DISTRICT.
7. AMPAR CO-OPERATIVE AGRICULTURAL SOCIETY LIMITED (R) POST AND VILLAGE AMPAR KUNDAPURA TALUK-576211 UDUPI DISTRICT REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SRI.VENKATESH S ARBATTI, ADVOCATE FOR RESPONDENT No.2 SMT.N ANITHA, HCGP. FOR RESPONDENT Nos.1 AND 3-5 M/S. ARUNA SHYAM ASSOCIATES FOR RESPONDENT Nos.6 AND 7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT No.2 DATED 03.12.2016 PASSED BY THE RESPONDENT No.2 UPA-LOKAYUKTA KARNATAKA, BENGALURU VIDE ANNEX-A.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT THIS DAY, S.G. PANDIT J., PASSED THE FOLLOWING:
ORDER The petitioner is a retired Chief Executive Officer of Ampar Co-operative Agricultural Society filed writ petition praying to quash the order passed by the second respondent bearing No.COMPT/UPLOK/MYS-7057/2014/PP dated 03.12.2016.
2. The petitioner states that he joined the services of the 7th respondent-Society as probationary Clerk on 01.04.1976. The 7th respondent-Society merged with Shankarnarayana Sahakara Sangha Niyamitha and the petitioner was transferred as Branch Manager and joined duty as such, on 04.09.1976. The petitioner produced his SSLC certificate at the time of reporting to duty on his appointment. It is stated that after 38 years of service, on attaining superannuation he retired from service on 31.07.2014.
3. The petitioner further states that after his retirement, a private complaint No.264 of 2014 was filed before the Additional Civil Judge and JMFC at Kundapura under Section 200 of the Code of Criminal Procedure for the offences punishable under Sections 406, 417, 420, 201 of the Indian Penal Code, alleging that he had given false date of birth to gain additional two more years of service. It is alleged that the actual date of birth of the petitioner is 16.06.1952 and he has falsely submitted 16.07.1954 as his date of birth. The complaint was referred to jurisdictional police for investigation. On investigation, the police filed ‘B’ report on 20.11.2015. Against the ‘B’ report, the 6th respondent filed protest memo and summons was issued to the petitioner. The petitioner has challenged the same in Criminal Revision Petition before the District and Sessions Judge at Udupi and there is an interim order of stay. It is stated that the 6th respondent also filed complaint before the second respondent on 25.07.2014 on the same allegation. The second respondent issued notice to the petitioner and petitioner filed objections to the complaint. The second respondent on considering the complaint and the objections filed by the petitioner submitted report under Section 12(3) of the Karnataka Lokayukta Act, 1984 (hereinafter referred to as ‘the Act’ for short) recommending initiation of disciplinary proceedings and to conduct enquiry against the petitioner as per the provisions of Karnataka Co-operative Societies Act. The report submitted under 12(3) of the Act is impugned in this writ petition.
4. Heard the learned counsel for the petitioner and learned counsel for the respondents 5. Learned counsel for the petitioner has raised a contention that the allegation against the petitioner is with regard to furnishing of false date of birth. It is alleged that the actual date of birth of the petitioner is 16.06.1952 whereas the petitioner has furnished 16.07.1954 as his date of birth. With regard to the said allegation, the Upa Lokayukta has no jurisdiction to entertain the complaint. In support of his contention, he refers to Section 8(1)(a) of the Act and Schedule II to the Act. He further contends that as the date of birth relates to conditions of service of public servant, the same could not have been enquired by the Upa Lokayukta. As the second respondent had no jurisdiction to enquire into the allegation of furnishing false date of birth, Annexure-A Section 12(3) report is liable to be quashed.
6. Per contra, learned counsel for the second respondent submits that the Upa Lokayukta has jurisdiction to enquire into the allegations made against the petitioner since it would not be covered under Schedule-II to Section 8(1)(a) of the Act. He invites attention of the Court to second part of clause (d) of II Schedule to say that the Upa Lokayukta has jurisdiction. Further, he contends that the words ‘grievance’ and ‘allegation’ are different and they are defined separately under the Act.
7. The 6th respondent submitted a complaint to 2nd respondent on 25.08.2014 alleging that the petitioner by furnishing false date of birth has caused loss to the Society for a period of two years. It is alleged that actual date of birth of the petitioner is 16.06.1952 and the petitioner had furnished his date of birth at the time of joining duty as 16.07.1954, thereby he gained two years extra service in the Society. The only contention raised by the petitioner is that the second respondent-Upa Lokayukta has no jurisdiction to enquire into the complaint with regard to furnishing of false date of birth as it pertains to his service condition. To examine the said contention, it would be useful to extract Section 8(1)(a) and II Schedule to the Act, which is as under:
“Section 8(1)(a): Except as hereinafter provided, the Lokayukta or an Upa-Lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action, -
(a) if such action relates to any matter specified in the Second Schedule SECOND SCHEDULE:
(a) Action taken for the purpose of investigating crimes relating to the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court or not.
(c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers, except where the complainant alleges harassment or gross delay in meeting contractual obligations.
(d) Action taken in respect of appointments, removals, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service.
(e) Grant of honours and awards.”
8. Reading of the above provision would make it clear that if the complaint involving grievance relates to matters specified in the Second Schedule, the Lokayukta or Upa Lokayukta shall not conduct any investigation under the Act. Clause (d) of Second Schedule would indicate that if grievance of the complainant is with regard to appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service, the Lokayukta or Upa Lokayukta as the case may be, cannot enquire into or investigate. The grievance referred to in Section 8 is relatable to the grievance of the complainant who comes before the Lokayukta or Upa Lokayukta. If the grievance relates to his service conditions, he has to seek remedy elsewhere and the complaint would not be maintainable before the Lokayukta or Upa Lokayukta in view of Section 8(1).
9. The words ‘allegation’ and ‘grievance’ are defined under Section 2(2) and 2(8) of the Act respectively, which reads as follows:
“Section 2(2)-“Allegation” in relation to a public servant means any affirmation that such public servant, -
(a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism, or lack of integrity in his capacity as such public servant;
OR (d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs;”
Section 2(8) – “Grievance” means a claim by a person that he sustained injustice pr undue hardship in consequence of maladministration.”
10. From the reading of definition of ‘allegation’, it is relatable to a public servant with regard to abuse of his position by any public such as, failure to discharge his function as public servant or corrupt motives or guilty of corruption, favouritism, nepotism, or lack of integrity or failure to act in accordance with the norms of integrity. Whereas the grievance relates to the personal grievance of an individual i.e., injustice or hardship caused to him in consequence of maladministration. Since, in the case on hand it is not the petitioner’s individual grievance with regard to any of the subject falling under Clause (d) of Schedule II. It is the allegation against him, alleging that he has furnished false date of birth while joining service as Secretary with the 7th respondent-Society. As the subject matter is allegation against the petitioner, the petitioner cannot invoke Section 8(1)(a) of the Act since it refers to complaint involving a grievance. The specific allegation is that of furnishing of false date of birth and receiving salary for two years causing loss to the Society. With regard to the said allegation the second respondent has jurisdiction to investigate and submit report.
11. Moreover, the report submitted by the second respondent under Section 12(3) of the Act is in the nature of recommendation wherein the second respondent recommended to initiate disciplinary proceedings and to conduct enquiry as per the provisions of Karnataka Co- operative Societies Act. The second respondent on examination of material on record i.e., Passport and the Transfer Certificate relating to the petitioner which would indicate his date of birth as 16.06.1952, recommended for initiation of enquiry. We see no illegality in the report submitted under Section 12(3) of the Act recommending initiation of disciplinary proceedings against the petitioner.
12. For the reasons stated above, the writ petition is dismissed being devoid of merit.
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JUDGE JUDGE mpk/-
CT:bms