IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT PETITION NO.11008 OF 2017 (GM-KLA) BETWEEN:
SRI BABU NAGAPPA SULEBHAVI AGED ABOUT 53 YEARS SANITARY MAKADUM BELGAVI MUNICIPAL CORPORATION OFFICE BELGAVI.
... PETITIONER (BY SRI. H RAMACHANDRA, ADVOCATE) AND:
1. THE PRINCIPLE SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BENGALURU-560001.
2. THE DIRECTOR URBAN DEVELOPMENT DEPARTMENT 9TH FLOOR, VISHVESHWARAIAH TOWER DR. AMBEDKAR ROAD BENGALURU-560001.
3. THE HON’BLE UPA LOKAYUKTHA NO.1 KARNATAKA LOKAYUKTA M S BUILDING BENGALURU-560001.
REPRESENTED BY THE REGISTRAR.
4. THE ADDITIONAL REGISTRAR OF ENQUIRIES NO.1 KARNATAKA LOKAYUKTA M S BUILDING BENGALURU-560001.
... RESPONDENTS (BY SRI. VENKATESH S ARBATTI, ADVOCATE FOR RESPONDENT Nos.3 AND 4 SMT. N.ANITHA, HCGP FOR RESPONDENT Nos.1 AND 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENQUIRY ORDER UNDER ANNEXURE-J PASSED BY RESPONDENT No.4 IN ENQUIRY DATED 08.12.2015; QUASH THE RECOMMENDATION OF THE UPALOKAYUKTA DATED 04.01.2016 AT ANNEXURE-K PASSED BY RESPONDENT No.3 AND ETC.
THIS PETITION COMING ON FOR HEARING THIS DAY, S.G.PANDIT J., PASSED THE FOLLOWING:
ORDER Though the orders in the writ petition was dictated on 21.03.2019, before putting our signatures, we noticed that the matter requires re-hearing and accordingly, heard the matter afresh on 10.04.2019 and proceeded to pass the order.
2. The petitioner has filed this writ petition assailing Annexure-J/Enquiry Report dated 08.12.2015, Annexure- K/recommendation of Lokayukta dated 04.01.2016 and Annexure-O/order of dismissal from service dated 20.12.2016.
3. The petitioner was working as Sanitary Mukadum in Belagavi Municipal Corporation. While he was working as such, one Sameeulla Mohammed Rafiq Mulla made a complaint before the 3rd respondent that the petitioner demanded Rs.1,000/- as illegal gratification and agreed to receive Rs.700/- for issuance of Trade License for running a Xerox and Computer typing shop. A complaint was registered in Lokayukta as Crime No.17 of 2011 under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’ for short). The DGO was trapped on 21.07.2011 while the petitioner was accepting Rs.700/- as bribe from the complainant, which was seized from the petitioner’s possession. On the said incident, it is stated that the third respondent Lokayukta filed a charge sheet in Special C.C. No.26 of 2012 under Sections 7, 13(1)(d) read with Section 13(2) of the Act. The petitioner was acquitted of the offences by judgment dated 08.09.2014 in Spl.Case No.26 of 2012. Thereafter, Government by its order dated 27.11.2012 referred the matter to Upa Lokayukta for enquiry under Rule 14(a) of the CCA Rules. The third respondent-Upa Lokayukta nominated 4th respondent as Enquiry Officer who issued articles of charges on 04.01.2013. The 4th respondent after conducting full-fledged enquiry submitted report dated 08.12.2015. The third respondent-Upa Lokayukta along with his recommendation dated 04.01.2016 forwarded the Enquiry report to the Director of Municipal Administration. The second respondent issued second show cause notice dated 03.11.2016 to the petitioner to show cause as to why the report of the Upa Lokayukta should not be accepted and why punishment under Rule 8 (vii) of Karnataka Civil Services (CCA) Rules, 1957 (‘CCA Rules’ for short) should not be imposed. The petitioner submitted his reply to the second show cause notice. The second respondent on consideration of the material on record and the contentions raised in the explanation to the second show cause notice, passed the impugned order dated 20.12.2016 imposing punishment of dismissal from service under Rule 8(viii) of the CCA Rules.
4. Heard the learned counsel for the petitioner and learned counsel for the respondents.
5. The learned counsel for the petitioner submits that the impugned order of dismissal is opposed to the material on record both oral and documentary. Further he contends that the petitioner has not taken any illegal gratification from the complainant and on the other hand he contends that the complainant had furnished license renewal fees and Ex.D1 is the Challan towards the said license fee. The learned counsel further contends that after acquittal of the petitioner of the charges under Sections 7, 13(1)(d) of the P.C. Act for the same allegation, the disciplinary authority could not have initiated departmental enquiry. Learned counsel for the petitioner relies on the decision of S.BHASKAR REDDY AND ANOTHER v/s SUPERINTENDANT OF POLICE AND ANOTHER reported in (2015) 2 SCC 365 in support of his contention. Lastly he contends that the impugned order ought to have been passed by the Government and not by the second respondent-Director of Municipal Administration.
6. Per contra, learned counsel for the respondents No.2 and 3 contends that the petitioner was caught red-handed while accepting the bribe from the complainant. There are enough materials to prove the charge against the petitioner. He further contends that notwithstanding the acquittal in criminal proceedings, the Departmental proceedings on the same allegation could be initiated and there is no bar.
7. While the petitioner was working as Sanitary Mukadum at Belagavi Municipal Corporation demanded a sum of Rs.1,000/- as illegal gratification from one Sameeulla Mohammed Rafiq Mulla, complainant and agreed to receive a sum of Rs.700/- for issuance of Trade License for running a Xerox and Computer typing shop. Lokayukta Crime No.17/2011 was registered under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. On 21.07.2011, while the petitioner was accepting bribe of Rs.700/- he was trapped red-handed and the amount was seized from his possession. On reference by the Government, 4th respondent issued articles of charge dated 04.01.2013 alleging that the petitioner demanded and accepted a bribe of Rs.700/- on 21.07.2011 from the complainant for issuing Trade License and thereby failed to maintain absolute integrity and devotion to duty which act is unbecoming of a Government Servant and guilty of misconduct.
8. The Enquiry Officer conducted a detailed enquiry.
P.W.1 to P.W.3 were examined on behalf of the Disciplinary Authority and Ex.P1 to Ex.P15 were marked. The petitioner-DGO did not adduce any evidence. It is noticed from the evidence of P.W.1-complainant that he supported the case of the Disciplinary Authority. It is to be noticed that on trap being laid, phenolphthalein test was conducted on the DGO/petitioner which was found positive. Further the bait amount was also recovered from the petitioner. The petitioner was not able to elicit anything in his favour by cross-examining P.W.1-complainant. P.W.2 is a shadow witness who had accompanied the complainant at the time of trap. On going through the evidence of P.W.2, it corroborates with the evidence of complainant/P.W.1. P.W.3 is the Investigating Officer who has spoken about the procedure of trap. The defense of the petitioner that he had received the amount towards license renewal fee is not proved by the petitioner and he was not able to get anything elicited in the cross- examination of P.W.1 in that regard. Therefore, the 4th Respondent/Enquiry Officer has rightly held that the charge against the petitioner is proved. For the proved charges of receiving illegal gratification, the 3rd respondent-Upa Lokayukta has recommended penalty of dismissal from service. Considering the nature and gravity of charge, the recommendation is proper and is in accordance with law and facts.
9. The next contention canvassed by the learned counsel for the petitioner is that as the petitioner is acquitted of the charges under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act on the same incident of alleged receiving of bribe and no departmental proceedings could have been initiated. It is to be noted that the nature of criminal proceedings and the nature of departmental enquiry are entirely different. In criminal proceedings, strict rules of evidence is required to prove the guilt. Whereas, in the departmental proceedings, it is preponderance of probabilities. The Hon'ble Supreme Court in catena of decisions has held that notwithstanding the acquittal in criminal proceedings, the departmental proceedings on the same allegation could be initiated and there is no bar for such proceedings. The Hon'ble Supreme Court in the case of SOUTH BENGAL STATE TRANSPORT CORPORATION v/s. SAPAN KUMAR MITRA AND OTHERS reported in (2006) 2 SCC 584 at paragraph 10 has held as follows:
“10. Similarly in Senior Supdt. of Post Offices, v. A. Gopalan, the view expressed in Nelason Motis v. Union of India was fully endorsed by this Court and similarly it was held that nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and order of acquittal in the former, cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case departmental proceedings could not be continued and order of removal could not be passed.”
10. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in BHASKAR REDDY’s case supra to contend that once Government Servant is acquitted in criminal proceedings, the initiation of Departmental enquiry would not arise. In BHASKAR REDDY’s case, it was a case of honourable acquittal for want of evidence on record. Whereas, in the case on hand, it is seen from the judgment in Spl.C.C. No.26 of 2012 passed by the learned District and Sessions Judge acquitting the petitioner of the charges under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act the acquittal is not an honourable acquittal. In the case on hand, the acquittal is on technical grounds of non-examination of certain witnesses and no sufficient material on record. In the case of BHASKAR REDDY, it was an honourable acquittal, as such, the same would have no application to the facts of the present case.
11. Learned counsel for the petitioner finally contended that the second respondent had no jurisdiction or competence to pass the impugned order of dismissal since, it is the Government which has to pass final orders on consideration with regard to the contention that the Government ought to have passed the final order, it is seen that on consideration of the enquiry report and on the recommendation of Upa Lokayukta. The learned counsel refers to Rule 14-A(e) and contends that in all cases where the enquiry is conducted by Lokayukta or Upa Lokayukta, the Government shall be the Disciplinary Authority competent to impose any of the penalties under Rule 8 of the Rules. The learned Government Advocate appearing for respondents No.1 and 2 would submit that by notification dated 19.06.2015 which is produced along with the memo dated 10.04.2019, Section 90 of the Karnataka Municipal Corporation Act, 1976 is amended empowering the second respondent to impose punishment under Rule 8 of CCA Rules. The said delegation would have no application to the facts of the present case. The said delegation to impose punishment is when the Departmental enquiry is conducted within the Department and not by entrusting the enquiry to Upa Lokayukta under Rule 14-A of the KCS (CCA) Rules. In the instant case, enquiry is by entrusting the enquiry to Upa Lokayukta and the punishment is imposed in exercise of power under CCA Rules. No delegation of power under CCA Rules in favour of second respondent-Director is pointed out.
12. We find substance in the submission of the learned counsel for the petitioner. The allegation of accepting illegal gratification is investigated by the second respondent-Upa Lokayukta and on receipt of the report under 12(3) of the Act, the Government entrusted the enquiry under Rule 14-A to Upa Lokayukta by its order dated 27.11.2012. After enquiry, Upa Lokayukta, along with his recommendation forwarded the enquiry report to the first respondent under Annexure-K dated 04.01.2016. Rule 14-A (c) (d) and (e) reads as follows:
“Rule 14-A (c) The Lokayukta, the Upalokayukta or the officer authorized under clause (b) to conduct an inquiry shall conduct it in accordance with the provisions of Rule 11 insofar as they are not inconsistent with the provisions of this rule and for that purpose shall have the powers of the Displinary 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 2[xxxxx] Rule 11-A and in all such cases the government shall be the Disciplinary Authority competent to impose any of the penalties specified in Rule 8.”
13. Under sub-Rule (c), the Lokayukta or the Upa Lokayukta or the Officer authorized shall conduct enquiry in accordance with Rule 11 and under sub-Rule (d) after the enquiry, the record of the case along with the findings of the Enquiry Officer and recommendation of the Lokayukta or Upa Lokayukta shall be sent to the Government. Under sub-Rule (e), the Government on receipt of the record under sub-Rule (d) shall be competent to impose any of the penalties specified in Rule 8. In the case on hand, as stated above, the enquiry is referred to Upa Lokayukta under Rule 14-A. After completion of enquiry, enquiry records along with the recommendation of the Upa Lokayukta is sent to Government. The Government instead of taking action under sub-Rule (e) forwarded the enquiry records to the second respondent-Director on 16.04.2016. The Director on receipt of the records from the Government issued second show cause notice on 03.11.2016 and passed the impugned order of dismissal. The second respondent is the head of the Department of Municipal Administration and he had no jurisdiction to pass final orders in view of sub-Rule (e) of Rule 14-A of KCS (CCA) Rules. Under sub- Rule (e) of Rule 14-A, it is only the Government which is competent to pass final order and impose punishment.
14. Hence, we deem it appropriate to set aside the impugned order bearing No.DMA/MANAPA/BELAGAVI/ LOKAYUKTHA/CR16/2016-17 dated 20.12.2016 with a direction to the second respondent to forward the entire enquiry record to the first respondent-Government. The first respondent-Government shall pass appropriate orders in accordance with law taking into consideration the gravity and nature of charge. The order as stated above shall be passed within a period of 30 days from the date of receipt of certified copy of this order.
15. Accordingly, the writ petition is allowed to the above extent.
Sd/- Sd/-
JUDGE JUDGE mpk/-* CT:bms