IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NOs.7025-7026/2019(S-RES) BETWEEN SRI. T. R. SWAMY SON OF LATE T. M. RANGAPPA AGED ABOUT 58 YEARS, CHIEF DEVELOPMENT OFFICER & CHIEF ENGINEER (PRESENTLY UNDER SUSPENSION) KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD HEAD OFFICE, NO. 49, 4TH AND 5TH FLOORS, ’EAST WING’, KHANIJA BHAVAN RACE COURSE ROAD, BENGALURU – 560001.
RESIDING AT NO. 1405, C TOWER 14TH FLOOR, MANTRI GREENS APARTMENT MALLESHWARAM BENGALURU – 560003.
... PETITIONER (BY SRI. P. S. RAJAGOPAL, SENIOR COUNSEL FOR SMT. ASHWINI RAJAGOPAL, ADVOCATE) AND 1. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, A BODY CONSTITUTED UNDER THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT ACT, 1966, REPRESENTED BY CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER, NO.49, 4TH AND 5TH FLOORS, ‘EAST WING’, KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU – 560001.
2. CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD NO. 49, 4TH & 5TH FLOORS, ’EAST WING’, KHANIJA BHAVAN RACE COURSE ROAD, BENGALURU – 560001.
... RESPONDENTS (BY SRI S N MURTHY, SENIOR COUNSEL FOR SRI P V CHANDRASHEKAR, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DTD: 09.10.2018 [UNDER ANNEXURE-C TO THE W.P.] PASSED BY THE R-2 AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner is working as Chief Development Officer & Chief Engineer in the respondent-Karnataka Industrial Areas Development Board (for short ‘KIADB’). On 04.10.2018, an FIR came to be registered against the petitioner by the Anti Corruption Bureau, (for short ‘ACB’), in Cr.No.27/2018. The allegation against the petitioner is that he possesses assets disproportionate to his known sources of income. On 05.10.2018, a search was conducted in the house of the petitioner and on 06.10.2018, the Additional Inspector General of Police, ACB, communicated to the Principal Secretary, Commerce and Industries Department, who is the Chairman of the KIADB, asking him to initiate disciplinary enquiry against the petitioner and to report within 15 days regarding the steps and action taken against the petitioner.
2. On 09.10.2018, an order of suspension is passed against the petitioner by the 2nd respondent-Chief Executive Officer and the Executive Member of the KIADB.
3. Learned Senior Counsel Sri. P.S.Rajagopal, appearing for the petitioner relying upon a judgment of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India and another, reported in (2015) 7 SCC 291, submits that the order of suspension cannot be extended beyond three months, if within the said period, the memorandum of charges/charge sheet is not served on the delinquent officer, as held in the case of Ajay Kumar Choudhary. It is therefore submitted at the hands of the petitioner that the order of suspension needs to be set-aside in the light of the judgment of the Hon’ble Supreme Court. It is also submitted that it is an admitted fact that charge sheet is not filed against the petitioner.
4. Per contra, learned Senior Counsel, Sri. S.N.Murthy, appearing for the respondent-KIADB submits that the decision in Ajay Kumar Choudhary has been rendered under the provisions of Code of Criminal Procedure and therefore, the same is not applicable to the facts and circumstances of this case, where a separate Service Regulations i. e., Karnataka Industrial Areas Development Board, Service Regulations (for short ‘Service Regulation’) governs the matter of suspension or revision of the suspension of an employee of KIADB.
5. Learned Senior Counsel also places reliance on another judgment of the Honb’le Supreme Court in the case of Union of India and others Vs. Dipak Mali, reported in (2010) 2 SCC 222, to contend that the decisions of the Hon’ble Supreme Court have been rendered keeping in mind the provisions contained in the Central Civil Services (CCA) Rules, 1965, where Rule 10 would provide that before the expiry of 90 days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purposes, the authority competent is required to modify or revoke the suspension, review and pass orders. But in the case of Karnataka Civil Services (CCA) Rules, 1957 or the Service Regulations, there is no such requirement of review to be done before the expiry of 90 days period. In that regard, it is submitted that the decision in Ajay Kumar Choudhary is not applicable to the facts and circumstances of the case.
6. Learned Senior Counsel also places reliance on another judgment of the Hon’ble Supreme Court in the case of State of Tamil Nadu Vs. Thiru G.A. Ethiraj, reported in MANU/SC/2395/1997, was pressed into service to contend that the order of suspension could continue to operate even after the charge sheet is filed, since the reason for keeping the delinquent officer under suspension continues and it cannot be contended that the said reason has ceased to exist after filing of the charge sheet.
7. Sri. P. S. Rajagopal, learned Senior Counsel appearing for the petitioner, seeks to counter the argument made by the learned Senior Counsel appearing for the respondent-KIADB, by placing reliance of another judgment of a Division Bench of this Court in the case of State of Karnataka Vs. A Nataraj, reported in W.P.No.40026/2015, which was decided on 02.11.2015. It is submitted that in the case of A. Nataraj (supra), the provisions of the Karnataka Civil Services (CCA) Rules, 1957 in particular Rule 10 (1) (c) and (d) and the provisions of the Prevention of Corruption Act, 1988, more particularly, Section 13(1) (c) (d) read with Section 13(2) have also been considered and in the light of the judgment of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra) it was held that the State Government has not produced any material documents to show that the charge sheet nor the charge memo is issued to the respondent in relation to the allegations made against him. Therefore, the suspension order and the continuation order of suspension passed by the State Government was held to be against the provisions of Rule 10 (1) (c) and (d) of the Karnataka Civil Services (CCA) Rules, 1957 and contrary to the dictum of the Apex Court in the case of Ajay Kumar Choudhary (supra).
8. Learned Senior Counsel also submits that the Prevention of the Corruption Act, 1988 and more particularly, Section 22 provides that the provisions of the Code of Criminal Procedure, 1973, shall in their applications to any proceedings in relation to an offence punishable under this Act have effect mutatis mutandis. It is also submitted that under the Prevention of Corruption Act, 1988 there are other provisions which would demonstrate that the provisions of the Code of Criminal Procedure, 1973 are made applicable with the required changes in view of the special provision.
9. On hearing the learned Senior Counsels and on perusing the writ papers including the statement of objections filed by the respondents, what is to be decided is whether the decision in Ajay Kumar Choudhary (supra), wherein it has been held that the currency of suspension order cannot extend beyond three months, if within the said period charge sheet is not served on the delinquent officer, could be made applicable to the facts and circumstances of this case.
10. In Ajay Kumar Choudhary (supra), the issue was whether the order of suspension issued against the delinquent officer, could be continued beyond the period of 90 days. That was a case where the appellant’s suspension was extended for the first time for the further period of 180 days. This prompted the appellant to approach the Central Administrative Tribunal, Chandigarh Bench, (CAT) and during the pendency of the proceedings, the second extension was ordered with effect from 26.06.2012 for another period of 180 days. Further, the third extension of the appellant’s suspension was ordered on 21.12.2012, but for a period of 90 days. Another suspension order for the fourth time was issued on 22.03.2013 extending the period of suspension for another 90 days. The Tribunal gave partial relief to the appellant in terms of its order dated 22.05.2013 opining that no employee can be indefinitely suspended; and that disciplinary proceedings have to be concluded within a reasonable period. When the matter reached the High Court, the writ Court formulated the following question “Whether the impugned directions circumscribing the Government’s power to continue the suspension and also to issue a charge-sheet within a time-bound manner can be sustained”? The High Court opined that the Tribunal’s view was “nothing but a substitution of a judicial determination to that of the authority possessing the power i.e., the executive Government as to the justification or rationale to continue with the suspension”. The writ petition was allowed and the Central Government was directed to pass appropriate orders “as to whether it wishes to continue with the suspension or not, having regard to all the relevant factors, including the report of CBI”.
11. Therefore, it is clear that the crux of the matter in Ajay Kumar Choudhary (supra) was regarding the power to keep the delinquent officer under suspension beyond a reasonable period. The provisions of the Code of Criminal Procedure, 1973, has been made use of by the Hon’ble Supreme Court keeping in mind the legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental enquiries, the same having been emphasized by the Supreme Court on numerous occasions. It is also clear that the decision in the case of Ajay Kumar Choudhary (supra), is not based on the provisions of the Central Civil Service (CCA) Rules, 1965, and more particularly, Rule 10 as was found in the case of Dipak Mali which was relied upon by the learned Senior Counsel representing the respondent-KIADB.
12. On the other hand, in the case of State of Karnataka Vs. A. Nataraj, the Division Bench has taken note of all the provisions including the Prevention of Corruption Act, 1988, Karnataka Civil Services (CCA) Rules, and in the light of the judgment of Ajay Kumar Choudhary’s case (supra), the Division Bench has come to a conclusion that the suspension order was continued by passing a subsequent order and extending the period of suspension, which was found to be against the Provisions of Rule 10(1) (c) and (d) of the Karnataka Civil Services (CCA) Rules and contrary to the dictum of the Apex Court in the case of Ajay Kumar Choudhary (supra).
13. In the light of the above, this Court is of the opinion that the decision in the case of Ajay Kumar Choudhary (supra) is applicable to the facts of the case on hand, on all fours. Therefore, the writ petition is partly allowed, while quashing the order of suspension dated 09.10.2018, at Annexure ‘C’, in view of the fact that the charge sheet is not filed against the petitioner within a reasonable period as provided in the case of Ajay Kumar Choudhary.
14. At this stage, the learned Senior Counsel appearing for the petitioner submits that the petitioner would undertake before this Court that he shall not interfere in the investigation in any manner, whatsoever and if such interference is found, the respondents are free to pursue any action against the petitioner, in accordance with law.
It is ordered accordingly.
SD/- JUDGE DL