IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 486 OF 2016 BETWEEN:
Sri N. S. Ramanjaneyalu S/o M. Narayanaswamy Aged about 60 years Ex-District Officer Backward Classes and Minorities Office Kolar District, Kolar R/o Chintamani Town R/a No. 355, Tank Bund Road “Sai Nivas” Chinthamani Chikkaballapur District-563125.
(By Smt. Shwetha Anand - Advocate) AND:
1. The State of Karnataka Represented by the Police sub-inspector Kolar Town Police Station Kolar – 563101.
2. Jagadish Gangannavar District Officer Backward Class Welfare Department, Kolar-563101 …Petitioner Karnataka. ...Respondents (Sri. Vijayakumar Majage – Additional SPP for Respondents) This Criminal petition is filed under Section 482 Cr.P.C. praying to quash the FIR registered by respondent police against the petitioner, in Crime No.145/2015 for the offence P/U/S 409 of IPC r/w rule 23 of the Karnataka Transparency in Public Procurements Act, 1999 and consequently quash the proceedings in Case No.Cr.No.145/2015 produced vide Annexure-F pending on the file of the Hon’ble Prl. Civil Judge (Sr. Dn) and CJM court at Kolar.
This Criminal petition coming on for Admission, this day, the court made the following:
O R D E R Heard learned counsel for petitioner and learned SPP-II for respondents.
2. The only question that falls for consideration in this petition is whether criminal prosecution instituted against the petitioner is barred under Rule 214(3) and (6) of the Karnataka Civil Services Rules, 1958 ?
3. The undisputed facts are that the petitioner herein was working as Block Development Officer in Kolar District along with other officers at the relevant time during the year 2004- 2005. It is alleged that during this period there was mis- appropriation of Rs.11,47,360/- in respect of the expenses incurred towards the purchase of materials for the students hostels. The only accusation made against the petitioner herein is that the petitioner failed to comply with the provisions of Karnataka Transparency in Public Procurements Act, 1999 and Rules 2000 (for short the “KTTP Act”) and thereby committed an offence punishable under Section 23 of the KTTP Act and Section 409 of Indian Penal Code.
4. Learned counsel for the petitioner, referring to Section 214(3) of the Karnataka Civil Services Rules (for short “KCSR”) has taken up a contention that the petitioner herein being a public servant who retired from service on 31.05.2015, no proceedings could have been instituted against him in respect of the offence which is alleged to have taken place more than four years before the institution of the case, in view of the specific bar contained in Rule 214(2)(b) and (3) of the KCSR 1958.
5. The above contention is disputed by the learned SPP-II. Placing reliance on the decision of the Division Bench of this Court in A.K.Chowdekar vs. State of Karnataka W.P.No.101291/2013 dated 21.08.2013, he pointed out that the words “judicial proceedings” appearing in sub-rule (3) of Rule 214 of KCSR signify only civil proceedings and not criminal proceedings and hence, the bar prescribed under sub-rule (3) of Rule 214 of KCSR is not applicable to the facts of the case and as such there is no illegality in the prosecution launched against the petitioner. Further, referring to sub-rule (1) of Rule 214, learned SPP-II emphasized that said rule is applicable only in cases where the proceedings are initiated for withholding or withdrawing of pension for misconduct or negligence and for recovery of pecuniary loss from pension arising on account of alleged misconduct. The said rule does not apply to a criminal proceeding launched in respect of the offences committed under the provisions of Indian Penal Code or other laws and hence, the provisions quoted by the learned counsel for the petitioner are not applicable to the facts of the case and thus sought to dismiss the petition.
6. The contention raised by the learned SPP – II and the decision relied on by him in support of this arguments is seriously challenged by the learned counsel for the petitioner contending that the Division Bench of this Court has interpreted only sub-rule (3) of Rule 214 of KCSR, whereas, sub-rule (6) of Rule 214 of KCSR creates a clear embargo on registration of criminal proceedings four years after the accrual of cause of action. In support of this submission, the learned counsel has placed reliance on the following decisions:
i) A.T.Patil vs. The Commissioner and others (W.P.No.26212/2005 dated 02.09.2010) ii) The State of Karnataka vs. Sangappa B.Derad and others (RFA No.200057/2016 dated 29.09.2016) iii) Malikajappa Kidiyappa Nashi vs. State of Karnataka (Crl.P.No.10814/2013 and connected matters Disposed on 19.04.2017) iv) S.M.Rajasekharappa vs. State of Karnataka (Civil Revision Petition No.412/2017 dated 25.04.2018) 7. I have bestowed my careful thought to the rival contentions urged by the parties and have carefully scrutinized the materials available on record.
8. The basic facts are not in dispute. The petitioner was a Government servant at the relevant point of time. The report submitted by the COD clearly reveals that during his tenure of service between 2004-2005, petitioner failed to abide by the provisions of KTTP Act and thereby caused a loss of Rs.11,47,360/- to the State exchequer. The investigation was handed over to the COD by orders of the Government dated 13.05.2008. The COD submitted its report on 20.07.2010. Based on the said report, FIR was registered against the petitioner for the above offences on 07.09.2015 whereas, the petitioner herein retired from service on 31.05.2015.
9. Rule 214 of the Karnataka Civil Services Rules reads as under:
214 (1)(a) Withholding or withdrawing pension for misconduct or negligence.- The Government reserve to themselves the right of either withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including the service under a foreign employer and the service rendered upon re-employment after retirement.
(b) Recovery of pecuniary loss from pension: The Government reserve to themselves the right of ordering recovery from a pension, the whole or part of any pecuniary loss caused to the Government or to a foreign employer under whom the Government servant has worked on deputation or otherwise. If in any departmental or judicial proceedings, the pensioner is found guilty of grave negligence during the period of his service, including the service rendered upon re-employment after retirement:
Provided that the Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of pension shall not be reduced below the amount of minimum pension prescribed under the rules.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority other than Government, that authority shall submit a report recording its findings to the Government.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction of the Government.
(ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 214A shall be sanctioned.
(5) Where the Government decided not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule,-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date: and (b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognisance is made; and (ii) in the case of civil proceedings, on the date the plaint is presented in the court.
10. A plain reading of the above rule manifest that under sub-rule (1)(a) of Rule 214 Government has reserved its right to proceed against a Government employee of either withholding or withdrawing a pension or part thereof, either permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service.
11. Sub-rule (1)(b) deals with the recovery of pecuniary loss caused to the Government from the pension, which is not applicable to the facts of case before us.
12. Sub-rule 2(b) deals with the situation where departmental proceedings, if not instituted while the Government servant was in service, the said rule explicitly provides that, no departmental proceedings shall be instituted against the government servant except with the sanction of the Government and such a departmental enquiry shall not be initiated in respect of any event which took place more than four years before such institution. In the instant case, the proposed proceedings do not fall within sub-rule (2) and as such, this sub- rule is also not applicable to the facts of the case.
13. Sub rule (3) which is relevant for the purpose of our discussion, refers to ‘judicial proceedings’, and provides that, if any ‘judicial proceedings’ were not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall not be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. The words “judicial proceedings” and the expression “in respect of a cause of action which arose in respect of an event which took place more than four years before such institution” appearing in the sub-rule has to be read noscitur a sociis, that is in association with the words found in the immediate context. Interpreted in that manner, these words take colour from the preceding rules which essentially deal with withholding/ withdrawing of pension or recovery of pecuniary loss from pension and not in respect of initiation of prosecution for a criminal offence. A harmonious reading of the various sub-rules enacted under Rule 214 therefore would only mean that any judicial proceedings, be it civil or criminal, associated with the recovery of pecuniary loss from pension or withholding of the pension for any criminal misconduct only would attract the rigors of sub-rule (3). In other words, any criminal proceedings initiated against the Government servant either before or after retirement unconnected with the withholding of pension or recovery of pecuniary loss from pension would not be governed by sub-rule (3) of Rule 214 of KCSR 1958. Viewed in that manner, the bar engrafted in Rule 214 (3), in my view, does not apply to the criminal proceedings initiated against the petitioner for the alleged offence under section 409 of IPC and section 23 of KTTP Act. The view taken by me that Rule 214 (3) as above finds support in the decision of the Division Bench of this Court in A.K.CHOWDEKAR Vs. STATE OF KARNATAKA, referred supra. Therefore, in the light of the above enunciation of law and in view of the clear and unambiguous language employed in Rule 214 (3), I do not have any hesitation to hold that the bar contemplated under sub-rule 214(3) of KCSR 1958, is not applicable to criminal proceedings initiated against a Government employee either before his retirement or subsequent to his retirement for the offence punishable under I.P.C. or other laws.
14. The reliance placed by learned counsel for the petitioner on sub-rule (6) of Rule 214 is wholly misplaced and is not applicable to the facts of the case. A bare reading of Rule 214(6) makes it clear that it provides only for computation of period of limitation for commencement of departmental proceedings or judicial proceedings. It does not prescribe any period of limitation for taking cognizance of a criminal offence against a Government servant in respect of a criminal offence either under IPC or under general law as argued by the learned counsel for the petitioner. It merely provides the procedure for computation of the period of limitation and therefore, the contention urged by the learned counsel for petitioner based on Rule 214(6) is also liable to be rejected. Since, the averments made in the report and the allegations made in the complaint prima-facie disclose commission of the alleged offences, I do not find any justifiable reason to interfere in the matter. Consequently, the petition is dismissed.
Sd/- JUDGE DKB