IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.48963 OF 2016 (LB-RES) Between:
Sri. R. Chandrahasa, S/o. Late Ramesha, Aged about 30 years, R/o. Basavalingana Doddi Village, Kesthur Post, Maddur Taluk – 571 428, Mandya District. ... Petitioner (By Sri. P.D. Subrahmanya, Advocate) And:
1. State of Karnataka, Represented by Chief Secretary, Vidhana Soudha, Bengaluru – 560 001.
2. State of Karnataka, Represented by the Principal Secretary, Rural Development & P.R.Dept., M.S.Building, Bengaluru – 560 001.
3. State of Karnataka, Represented by Under Secretary, Rural Development & P.R. Dept., M.S.Building, Bengaluru – 560 001.
4. The Dy. Commissioner, Mandya District, Mandya – 571 401.
5. The Chief Executive Officer, Zilla Panchayath, Mandya District, Mandya – 571 401.
6. The Chief Executive Officer, Taluk Panchayath, Maddur – 571 428, Mandya District.
7. Sri. Govinde Gowda K.P., S/o. Puttaswamy Gowda, Aged about Major, President Kestur Grama Panchayath, Kestur Post, Maddur Taluk – 571 428, Mandya District. ... Respondents (By Smt. B.P. Radha, AGA for R1 to R4;
Sri. B.J. Somayaji, Advocate for R5 & R6 R7 – Served) This petition is filed under Article 226 and 227 of the Constitution of India, praying to quash the impugned order passed by respondent No.3 and approved by respondent No.2 in Sarkarada Adesha Sanke: Grapanha 499 gra pan ha 2016, Bengaluru dated 05.08.2016 vide Annexure – H and etc.
This petition coming on for Orders, this day, the Court made the following:
ORDER Petitioner who is the member of Kesthur Gram Panchayath was subsequently elected as the Adhyaksha of the said Gram Panchayath.
2. It is stated that pursuant to a complaint made by an employee, FIR came to be registered in FIR No.62/2016 for the offences punishable under Sections 354(A), 376 and 511 of IPC. It was alleged that the petitioner had committed rape and sexual assault against the complainant. It is stated that proceedings have been initiated before the criminal Court as regards the offences said to have been committed by the petitioner. On 15.06.2016, show cause notice came to be issued calling upon the petitioner to state as to why no action has to be initiated under Section 43(A) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred as ‘Act’ for short) on the ground that petitioner had committed the offence of rape on the women employee, which was prima facie established. The petitioner at the point of time when he was called upon to answer the show cause notice, was in judicial custody in connection with the proceedings initiated in Cr.No.62/2016 and the petitioner had sought time to furnish a detailed reply to the show cause notice, in the light of he being in judicial custody. Said request was communicated to respondent No.2 through communication dated 02.07.2016 by the Jail Superintendent, District Prison, Mandya. It is stated that, despite such request being made as per Annexure- H, impugned order came to be passed wherein it was recorded after taking note of the facts and circumstances that in view of the provision of Section 58(C) of the Act, which provides for a duty of Gram Panchayath to prevent sexual harassment of women, the enquiring Authority taking note of the facts as made out in the complaint has held that the petitioner has committed an act of misconduct as contemplated under Section 43(A) of the Act and has proceeded to pass the impugned order by removing the petitioner in terms of Section 43(A) of the Act.
3. The petitioner contends that there is a mandatory provision for full fledged enquiry as contemplated under Section 43(A) and also under Section 48(4) of the Act and that he was not afforded an opportunity of personal hearing and there was no sufficient opportunity of furnishing a reply in light of the fact that he was in judicial custody at the time when he received the show cause notice. Petitioner further contends that the rejection of his request by going ahead with enquiry without waiting for the reply from the petitioner by itself was in violation of principles of natural justice.
4. It is clear from the impugned order that respondent No.2 records that in light of the facts made out there was no necessity to hold an enquiry or afford any opportunity. It is to be noted that the show cause notice itself records that a prima facie case has been made out that the petitioner had committed an offence of rape as against the women D-Group employee.
5. It is to be noted that when criminal proceedings are pending, if any decision has to be taken as to misconduct, a separate enquiry will have to be conducted parallel to the proceedings pending before the criminal Court. The mandate of Section 43(A) is clear that if proceedings have to be initiated there has to be an enquiry after giving an opportunity of being heard. In the present case, no such opportunity has been afforded. In fact, even no sufficient opportunity has been provided to reply to the show cause notice as the petitioner had sought for time as he was in judicial custody, as rightly contended by the petitioner. In fact, the proceedings before the criminal Court have ended in acquittal of the petitioner and the petitioner in all fairness was entitled to an opportunity of participating in the enquiry, resulting in the passing of the impugned order.
6. The learned AGA has vigorously contended by relying on the statement of objections that the nature of offence committed by the petitioner is heinous and taking note of the provisions of Section 58(C) of the Act, there is no question of affording any leniency as regards the petitioner, even if the impugned order is set aside and the petitioner not to be permitted to occupy the post of Adhyaksha, till a fresh enquiry is held.
7. In the light of the admitted facts that there was no enquiry, even if a finding was sought to be recorded regarding commission of an act of misconduct in terms of Section 58(C) of the Act, a separate enquiry with opportunity is a pre-condition. In the light of the law laid down by this Court in W.P.No.20304/2018 providing for detailed guidelines as to the nature of adherence to principles of natural justice in enquiries held for removal of elected members, it is clear that the present enquiry on hand would in fact be no enquiry in eye of law. This Court in the order passed in W.P.201726/2017 has clearly held that the enquiry as contemplated relating to removal of members under Section 43(A) is an enquiry different and distinct from the issuance of show cause notice and obtaining reply from the concerned member.
8. In the judgment delivered in the case of BASANAGOUDA VS. THE STATE OF KARNATAKA, REP. BY ITS SECRETARY, PANCHAYATH RAJ AND OTHERS REPORTED IN ILR 2012 KAR 3315, the Court has clearly observed that though the criminal complaint is registered, if pending disposal of the proceedings before the criminal Court, if action is to be initiated holding a person guilty of misconduct in other proceedings there has to be a separate enquiry. In the light of settled position of law and the admitted fact that there was no separate enquiry affording any opportunity to petitioner, the impugned order is set aside.
9. However, respondent No.2 is at liberty to continue the proceedings said to have been initiated and is directed to issue notice to the petitioner affording sufficient opportunity of hearing by observing principles of natural justice and complete the enquiry. It is made clear that before embarking upon an enquiry the judgment of acquittal by the Court is to be looked into. The authority is at liberty to drop the proceedings if a case is made out for not resuming the proceedings in light of the judgment of the criminal Court.
10. Keeping in mind the observations made in W.P.No.20304/2018 and ILR 2012 KAR 3315 insofar as respondent No.7, who is elected Adhyaksha is concerned, it is clear that the election of respondent No.7 was consequent to the vacancy created pursuant to the impugned order passed in the light of the order being set aside. The election of respondent No.7 being only consequent to the vacancy created would automatically be subject to the final order being passed as regards the impugned order. In light of the impugned order being set aside, election of respondent No.7 would also be set aside and the petitioner is entitled for the relief of being restored forthwith.
11. Accordingly, petition is disposed of, subject to the above observations.
I.A.No.1/2019 for production of additional documents is allowed and the said documents are taken on record.
Sd/- JUDGE SN/-