IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2017 PRESENT THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI AND THE HON’BLE MRS.JUSTICE K.S.MUDAGAL W.P.Nos.5981-5983 OF 2017 (GM-KLA) BETWEEN:
1. Smt. R.Malathi, W/o G.Ashok Kumar, Aged about 44 years, Executive Engineer, Office of the Chief Engineer, Storm water drain Division BBMP, Bangalore.
2. Sri K.Pandurangaiah, S/o Kempashetty, Aged about 58 years, Assistant Executive Engineer, Office of the Chief Engineer, (Storm water drain Division) BBMP, Bangalore.
3. Sri B.N.Raghavendra, S/o S.L.Narayana, Aged about 39 years, Junior Engineer, Office of the Chief Engineer, (Storm water drain Division) BBMP, Bangalore. ... Petitioners (By Sri Subramanya Jois, Senior counsel for Sri G.T.Kumar, Advocate) AND:
1. The Principal Secretary, Urban Development, Department (BBMP), Vikasa Soudha, Bangalore-1.
2. The Registrar, Karnataka Lokayukta, M.S.Buildings, Bangalore-1.
3. The Commissioner, Bruhat Bangalore Mahanagara Palike, N.R.Square, Bangalore-2. …Respondents (By Sri D.Ashwathappa, AGA for R1, Sri G.Devaraj, Adv., for R2, Sri I. Gacchinamath, Adv., for R3) These writ petition are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned report dated:03.10.2016 and Order dated:22.12.2016 vide Annex-S and T respectively issued by the R-1 and 2 as illegal, arbitrary and unsustainable in nature in so far as petitioners are concerned, etc., These writ petitions coming on for preliminary hearing this day, ASHOK B.HINCHIGERI J., made the following:
ORDER The petitioners have called into question the order, dated 3.10.2016 (Annexure-S) and 22.12.2016 (Annexure-T) passed by the respondent Nos.1 and 2 respectively. Annexure-S is a report of the Upalokayukta under Section 12(3) of the Karnataka Lokayukta Act, 1984 (‘the said Act’ for short) recommending to the competent authority to initiate the enquiry proceedings against the petitioners and for the entrustment of the enquiry to the Lokayukta under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Annexure-T is the order entrusting enquiry to the Upalokayukta.
2. Sri Subramanya Jois, the learned Senior Counsel appearing for Sri G.T. Kumar for the petitioners submits that the copies of the complaints filed by one Saidutta are not furnished to the petitioners. He submits that the requirements of Section 9(3)(a) of the said Act are not complied with. In support of his submission, he relies on this Court’s decision in the case of N. GUNDAPPA v. STATE OF KARNATAKA reported in I.L.R. 1990 KAR 223. Section 9(3)(a) of the said Act reads as follows:
“9. Provisions relating to complaints and investigations.– (3) Where the Lokayukta or an Upa-lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he.– (a) shall forward a copy of the complaint [and in the case of an investigation initiated suo moto by him, the opinion recorded by him to initiate the investigation under sub-section (1) or (2), as the case may be, of Section7] to the public servant and the competent authority concerned;
3. Nextly he argues that the competent authority has not considered the petitioners’ reply filed before the Enquiry Officer. He submits that the impugned order, dated 22.12.2016 (Annexure-T) is not a speaking order; it is not reflective of the application of mind; he contends that every State action has to be informed by reasons; any act uninformed by reasons is arbitrary and hence violative of the rule of law. For advancing this submission, he relies upon the Apex Court’s judgment in the case of RAVI YASHVANTH BHOIR v. DISTRICT COLLECTOR RAIGHAD AND OTHERS reported in 2002 (4) SCC 407.
4. Sri D. Ashwathappa, the learned Additional Government Advocate appearing for the respondent No.1 submits that the impugned orders do not determine the fate of the petitioners. They have not curtailed the rights of the petitioners in any way.
5. Sri G. Devaraj, the learned counsel for the respondent No.2 submits that three complaints are filed against the petitioners. In respect of complaint No.2214/2015, the notices accompanied by the complaint with supporting documents are sent to the petitioners on 15.7.2015 (Annexures-K, K1 and K2). In respect of the complaint No.1361/2015, the petitioners have already taken part in the proceedings after receiving the copies of the complaint and the supporting documents. He submits that nowhere in the proceedings they have raised the objection that they have not been given the copies of the complaint. In support of his contention, he also produced the copy of the order sheet in Misc.1361/2015, which is duly signed by the petitioners. He makes similar submissions and produced similar documents in respect of complaint No.1362/2015.
6. The submissions of the learned counsel have received our thoughtful consideration. The first question that arises for our consideration is Whether the requirement of Section 9(3) of the said Act is complied with?
7. The petitioners themselves have referred to the receipt of the notice in paragraph No.15 of the memorandum of the writ petitions. It is not in dispute that the receipt of the copies is in complaint No.2214/2015. The petitioners have signed the order sheet in the proceedings in complaint Nos.1361/2015 and 1362/2015. The perusal of the order sheet further reveals that the petitioners have undertaken to submit the action taken report in the proceedings in the complaint No.1361/2015. In the proceedings in complaint No.1362/2015, adjournment was granted to submit their action taken report.
8. Therefore we do not find any substance in the argument raised with reference to Section 9(3) of the said Act. The copies of the records placed on record clearly show that the petitioners were given the copies of all the three complaints. The requirements of Section 9(3)(a) of the said Act are complied with.
9. The next question that arises for our consideration is whether the impugned order, dated 22.12.2016 (Annexure-T) suffers from the non-application of mind. Our perusal of the said order reveals that the competent authority has considered the impugned report sent by Upalokayukta and that it has arrived at the conclusion that the matter calls for the holding of enquiry into the alleged misconducts of the petitioners.
10. It is trite that the submission of the investigation report, ordering of the enquiry, issuance of the charge sheet, etc. do not give any firm cause of action to the delinquent employees to approach this Court. The delinquent employees have an opportunity to show their innocence in the enquiry proceedings. If the enquiry report goes adverse to their interests, they would also get an opportunity to offer their comments on it before the disciplinary authority. It is only, if, as and when the disciplinary authority passes any order affecting the rights of the delinquents that they get a firm cause of action to challenge the said order in appropriate proceedings. In saying so, we are fortified by the Apex Court’s judgment in the case of UNION OF INDIA AND ANOTHER v. KUNISETTY SATYANARAYANA reported in AIR 2007 SC 906. The portion under Head Note ‘A’ of the said reported decision reads as follows:
“Ordinarily no writ lies against a charge-sheet or show cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. No doubt, in some very rare and exceptional cases the High Court can quash a charge- sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal.”
11. We may also usefully refer to the Apex Court’s judgment in the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS v. PRABHASH CHANDRA MIRDHA reported in (2012) 11 SCC 565. Paragraph No.12 of the said decision reads as follows:
“12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”
12. In the result, we dismiss these petitions. No order as to costs.
Sd/- JUDGE Sd/- JUDGE HR/MD