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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8th DAY OF MARCH, 2016

PRESENT

THE HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR

AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

WRIT PETITION NO.2581/2016 (GM-KLA)

BETWEEN:

Sri S.V.Ramesh

S/o Late P. Venkatachalaiah

Aged about 51 years

Working as Assistant Executive Engineer

Bangalore Water Supply and

Sewerage Board

East-II Sub-Division

Kundalahalli, BEML Layout

Bangalore-560 066

..Petitioner

(By Sri M.S.Bhagwat, Adv.,)

AND :

1. State of Karnataka

Department of Urban Development

Represented by its Principal Secretary

Bangalore-560 001

R

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2. The Karnataka Lokayukta

Represented by its Registrar

M.S. Building

Bangalore-560 001

3. The Additional of Enquiries-6

Karnataka Lokayuktha

M.S.Building

Bangalore-560 001

4. Bangalore Water Supply and

Sewerage Board

9th Floor, Cauvery Bhavan

Rep. by its Chief Administrative Officer/

Secretary

Bangalore-09

(amended as per

Court Order dated 8.2.2016)

..Respondents

(By Sri E.S.Indiresh, HCGP for R-1)

(Sri G. Devaraj, Adv., for R-2 & R-3)

This Writ Petition is filed under Article 226 of the

Constitution of India praying to quash the impugned report

dated 7.4.2015 issued by the R-2 vide Annexure-J, the

impugned the order dated 12.6.2015 passed by R-1 vide

Annexure-A and Articles of charge dated 23.7.2015 issued

by R-2 vide Annexure-B.

This Writ Petition coming on for Preliminary Hearing

this day, MOHAN M. SHANTANAGOUDAR J., made the

following:-

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O R D E R

The petitioner has called in question, (a) the report of

Karnataka Upa-Lokayukta issued under Section 12(3) of

Karnataka Lokayukta Act, 1984 dated 7.4.2015; (b) the

order dated 12.6.2015 passed by the first respondent State

Government; and (c) the Articles of Charge dated

23.7.2015 issued by the second respondent Karnataka

Lokayukta against the petitioner.

2. Based on the allegation that the petitioner has

permitted an unauthorised and illegal construction in

property bearing No.1/1A, Rathna Complex, Byadarahalli,

Magadi Main Road, Bangalore, complaint came to be lodged

against the petitioner on 13.10.2010 before Karnataka

Lokayukta; the complaint reveals that the petitioner while

working as Assistant Executive Engineer, Herohalli Sub-

division under Bruhat Bangalore Mahanagara Palike (‘BBMP’

for short) during the period 5.3.2010 to 26.5.2010,

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permitted an unauthorised and illegal construction as

mentioned supra. The Statement of Objections were filed by

the petitioner before the Karnataka Upa-Lokayukta;

however, Upa-Lokayukta after conducting investigation,

submitted the report dated 7.4.2015 under Section 12(3) of

Karnataka Lokayukta Act, 1984 to the State Government

with the recommendation to initiate action against the

petitioner and similarly situated other officials. The State

Government passed the order dated 12.6.2015 vide

Annexure-A entrusting the Disciplinary Enquiry to the

Karnataka Upa-Lokayukta, to be held against the petitioner

and others. Pursuant to the said order dated 12.6.2015,

the Articles of charge are framed by the Karnataka

Upa-Lokayukta against the petitioner and others on

23.7.2015 vide Annexure-B. All these orders are called in

question in this writ petition.

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3. Learned counsel for the petitioner submits that the

petitioner is basically an employee of Bangalore Water

Supply and Sewerage Board (‘BWSSB’ for short) and he is

not an employee of the Urban Development Authority or

BBMP and therefore, Karnataka Lokayukta has no

jurisdiction to conduct the enquiry and it is only the

BWSSB, who has to conduct the enquiry; the State

Government has mechanically passed the order dated

12.6.2015 accepting the investigation report of Upa-

Lokayukta and entrusting the matter for disciplinary enquiry

to Karnataka Upa-Lokayukta; certain other employees

against whom similar allegations were made are not

proceeded with; the enquiry is sought to be held in respect

of the alleged act after the petitioner demitted the office at

BBMP.

4. All the aforementioned submissions made by the

learned counsel for the petitioner cannot be accepted. It is

not in dispute that the petitioner is an employee of BWSSB.

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It is also not in dispute that the petitioner was deputed to

work as Assistant Executive Engineer under BBMP in

Herohalli Sub-division from 5.3.2010 to 26.5.2010.

Undisputedly, the petitioner has discharged his duties as

Assistant Executive Engineer under BBMP during the said

period. Within the said period only, the alleged illegality is

committed by the petitioner. The unauthorised or illegal

construction was allegedly permitted by the petitioner while

he was working as Assistant Executive Engineer under

BBMP during relevant point of time.

5. Learned counsel for the petitioner relying on the

Judgment of this Court in the case of S.V. RAMESH .vs.

STATE OF KARNATAKA {2015(2) AKR 580} submits that

the order entrusting the disciplinary proceedings to the

Upa-Lokayukta is invalid inasmuch as the Government has

no power in respect of taking disciplinary action against the

employees of BWSSB. Thus according to him, the issuance

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of order by the Government and framing of articles of

charge by the enquiring authority is without jurisdiction.

6. It is no doubt true that the facts in the case of S.V.

Ramesh cited supra are exactly similar to the facts on hand.

In the said matter also, the employee of BWSSB was

deputed to work in BBMP and while working in BBMP certain

allegations were made and ultimately investigation was

conducted and report was submitted by Lokayukta under

Section 12(3) of the Lokayukta Act to the State

Government. In turn the State Government on

examination of the material, entrusted the disciplinary

proceedings to the Upa-Lokayukta under Rule-14-A of the

Karnataka Civil Services (Classification, Control and Appeal)

Rules, 1957 {‘CCA Rules’ for short). Hence it is clear that

the facts contained in the case of S.V. Ramesh cited supra

and facts contained in the matter on hand are one and the

same. However with respect, we disagree with certain

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reasons assigned and the conclusion arrived at by the

learned Single Judge in the case of S.V. Ramesh cited

supra.

7. Under Section-124 of the BWSSB Act, 1964 all

Officers and servants of the Board shall be deemed to be

public servants within the meaning of Section 21 of the IPC

and the Prevention of Corruption of Act, 1947. The words,

“State Government” and “Government” in Section 161 of

the IPC (as it existed prior to amendment of IPC of the year

2013 i.e., prior to 3.2.2013) shall for the purposes of sub-

section (1) of Section 124 of the BWSSB Act be deemed to

include the Board. Thus it is clear from Section 124 of the

BWSSB Act that the Officers of BWSSB are treated as public

servants within the meaning of Sections 21 and 161 of IPC

(prior to amendment as mentioned supra) as well as under

the provisions of Prevention of Corruption Act (after

amendment of IPC w.e.f. 3.2.2013).

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8. The Notification bearing No.SWL.72.LBW.82 dated

12th October 1982 issued by the Government of Karnataka

states that the Karnataka Civil Service Rules etc., are

adopted by BWSSB. It is made clear in the very

Notification that BWSSB shall follow Karnataka Civil Service

Rules etc., till the service regulations of BWSSB are

formulated. Notification No.BWSSB/CAO-S/112/Est-

1/4163/2005-06 dated 1.3.2006 issued by BWSSB discloses

that the Board has accorded approval to delegate to the

Chairman of the Board the power to impose major penalties

as specified in Rule 8(v) to (viii) of CCA Rules on the

employees holding posts for which the Chairman is the

Appointing Authority. In view of the aforementioned

Notifications, it is evident that CCA Rules are applicable to

BWSSB employees also for the purposes of conducting

investigation and disciplinary enquiry.

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9. Under Rule-15 of the CCA Rules, where the

services of the Government servant are lent to local or

other authority (i.e., the borrowing authority), the

borrowing authority shall have the powers of the Appointing

Authority for the purposes of placing an employee under

suspension and of the Disciplinary Authority for the purpose

of taking disciplinary proceedings against him. Proviso to

sub-rule (1) of Rule-15 of the CCA Rules further states that

the Borrowing Authority shall not take any disciplinary

proceedings against such servant without prior approval of

the Lending Authority (in this case ‘BWSSB’). However we

find that sub-Rule 2-B of Rule-15 of the CCA Rules has got

overriding effect and the same reads thus:

Rule-15 (sub-rule 2-B) of CCA Rules

(2-B) Notwithstanding anything contained in

these rules:-

(i) the Government in Urban Development

Department, in respect of Government Servant

holding a Group ‘A’ or ‘B’ post whose services are

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lent to City Municipal Corporation by an order

issued by the Government in Urban Development

Department under the Karnataka Municipal

Corporations Act, 1976;

(ii) the Commissioner, City Municipal

Corporation in respect of a Government servant

holding a Group ‘C’ or Group ‘D’ post whose

services are lent to the City Municipal

Corporation,

shall have the powers of the Appointing Authority

for placing such Government servant under

suspension and of the Disciplinary Authority for

the purpose of taking a disciplinary proceedings

against him and to impose any of the penalties

specified in clauses (i) to (iva) of Rule 8 on such

Government servant. It shall not be necessary

for the Government in Urban Development

Department or the Commissioner to get the

approval of, or to consult, the lending authority

or the Appointing Authority as the case may be,

before placing such Government servant under

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suspension or imposing on him any of the said

penalties.

From sub-Rule 2-B of Rule-15 of CCA Rules mentioned

supra, it is amply clear that the Government in Urban

Development Department, in respect of Government

servant holding a Group ‘A’ or ‘B’ post whose services are

lent to City Municipal Corporation by an order issued by the

Government under the Karnataka Municipal Corporations

Act, 1976, shall have the powers of the Appointing

Authority for placing Government servant under suspension

and of the Disciplinary Authority for the purpose of taking a

disciplinary proceedings against him and to impose any of

the penalties specified in clauses (i) to (iva) of Rule 8 on

such Government servant. It shall not be necessary for

the Government in Urban Development Department or the

Commissioner to get the approval of, or to consult the

lending authority or the Appointing Authority as the case

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may be, before placing such Government servant under

suspension or imposing on him any of the said penalties.

10. Rule 14-A of the CCA Rules states that the

provisions of sub-rule (2) of Rule 14-A shall,

notwithstanding anything contained in Rules 9 to 11-A and

13 of CCA Rules, be applicable for purposes of proceeding

against Government servants whose alleged misconduct

has been investigated into by the Lokayukta or an Upa-

Lokayukta either under the provisions of the Karnataka

Lokayukta Act or on reference from Government. Sub-rule

(2) of Rule 14-A deals with investigation and enquiry by

Lokayukta or Upa-Lokayukta. A reading of Rule 14-A of

CCA Rules in its entirety makes it further clear that

Lokayukta or Upa-Lokayukta may conduct investigation and

enquire into the allegations made against the Government

servant and after completion of the enquiry, the record of

the case alongwith the findings of the Enquiry Officer and

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recommendation of the Lokayukta or Upa-Lokayukta shall

be sent to Government.

11. In the matter on hand, the action has been taken

under the provisions of the Karnataka Lokayukta Act based

on the complaint lodged under Section 9 of the Karnataka

Lokayukta Act.

12. It would be beneficial to refer to the provisions of

the Karnataka Lokayukta Act. Section 2(12) of the

Karnataka Lokayukta Act defines “public servant”. Section

2(12(g) is relevant for the purpose of this case which reads

thus:

2 (12) “Public Servant” means a person who is

or was at any time.-

(a) to (f) xxx xxx

xxx xxx

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(g) a person in the service or pay of.-

(i) a local authority in the State of

Karnataka;

(ii) a statutory body or a corporation (not

being a local authority) established by or

under a State or Central Act, owned or

controlled by the State Government and any

other board or corporation as the State

Government may, having regard to its

financial interest therein, by notification, from

time to time, specify;

(iii) xxx xxx

(iv) xxx xxx

From the aforementioned definition, it is amply clear

that a person in the service or pay of a statutory body or a

Corporation established by or under a State or Central Act,

owned or controlled by the State Government and any

other Board or Corporation as the State Government may,

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having regard to its financial interest therein, by notification

specify, shall be the public servant.

Admittedly, in the matter on hand, the petitioner is in

service and pay of the BWSSB, which is a statutory body

established under the State Act. Thus he is a public servant

for the purposes of Karnataka Lokayukta Act.

13. Section 7 of the Karnataka Lokayukta Act deals

with matters which may be investigated by the Lokayukta

and an Upa-Lokayukta. Sub-sections (1), (2) and (2-A) of

Section-7 of the Karnataka Lokayukta Act are relevant to

the facts of this case, which read thus:

7. Matters which may be investigated by the

Lokayukta and an Upa-lokayukta.-

(1) Subject to the provisions of this Act, the

Lokayukta may investigate any action which is

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taken by or with the general or special approval

of.-

(a) xxx xxx

(b) any other public servant holding a post or

office carrying either a fixed pay, salary or

remuneration of more than rupees twenty

thousand per month or a pay scale the

minimum of which is more than rupees

twenty thousand, as may be revised, from

time to time in any case where a

complaint involving a grievance or an

allegation is made in respect of such action

or such action can be or could have been,

in the opinion of the Lokayukta, recorded

in writing, the subject of a grievance or an

allegation.

(2) Subject to the provisions of this Act, an

Upa-lokayukta may investigate any action which

is taken by or with the general or specific

approval of, any public servant not being the

Chief Minister, Minister, Member of the

Legislature, Secretary or other public servant

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referred to in sub-section (1), in any case where

a complaint involving a grievance or an

allegation is made in respect of such action or

such action can be or could have been, in the

opinion of the Upa-lokayukta (recorded in

writing), the subject of a grievance or an

allegation.

(2-A) Notwithstanding anything contained in

sub-sections (1) and (2), the Lokayukta or an

Upa-lokayukta may investigate any action taken

by or with the general or specific approval of a

public servant, if it is referred to him by the

State Government.

From the aforementioned provisions, it is further clear

that any public servant holding a post or office carrying

salary or remuneration of more than rupees twenty

thousand per month commits any illegality or irregularity,

the Lokayukta or Upa-Lokayukta may investigate such

matter involving any grievance or allegation. Lokayukta or

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an Upa-Lokayukta may also investigate any action if it is

referred to him by the State Government.

14. Section 9 of the Karnataka Lokayukta Act

contains the provisions relating to complaints and

investigations against the public servant. As per the said

provision, any person may make a complaint under the

Karnataka Lokayukta Act to the Lokayukta or an Upa-

Lokayukta. Where a complaint is made, and if the

Lokayukta or Upa-Lokayukta proposes, after making such

preliminary inquiry as he deemed fit, to conduct any

investigation under Lokayukta Act, he shall forward a copy

of the complaint to the concerned public servant and the

Competent Authority concerned. In case of an investigation

initiated suo moto by the Lokayukta or Upa-Lokayukta, the

opinion recorded by him to initiate investigation will be

forwarded to the public servant and the Competent

Authority concerned. Thereafter the public servant will be

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afforded an opportunity to offer his comments on such

complaint and thereafter the investigation will take place as

prescribed under Section 9 of the Karnataka Lokayukta Act.

15. From the aforementioned discussion, it is amply

clear that by virtue of the Notifications dated 12.10.1982

and 1.3.2006 mentioned supra, the CCA Rules are made

applicable to the BWSSB officials also. Thus aforementioned

provisions of CCA Rules clearly depict that disciplinary

action can be initiated against the petitioner (BWSSB

employee) without taking consent of BWSSB under the

provisions of Lokayukta Act. Moreover as clarified by us

in the aforementioned paragraphs, the petitioner falls within

the definition of ‘public servant’ as found under Section

2(12)(g) of the Karnataka Lokayukta Act. Hence there is

no hurdle for Upa-Lokayukta to investigate into the matter

and to submit the report under Section 12(3) of the

Karnataka Lokayukta Act. So also there is no bar for the

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State Government to entrust the matter for disciplinary

enquiry to Upa-Lokayukta as per the provisions of Section

12(4) of the Karnataka Lokayukta Act.

16. In view of the above, we are unable to agree with

the finding laid down by the learned Single Judge in the

case of S.V. RAMESH .vs. STATE OF KARNATAKA {2015(2)

AKR 580} that Karnataka Lokayukta has no jurisdiction to

investigate and enquire into such matters and hence such

finding is liable to be overruled and accordingly, the same

stands overruled.

17. The report of Upa-Lokayukta dated 7.4.2015

clearly reveals that the complaint came to be lodged

against many persons. However, Upa-Lokayukta on

conducting investigation in the matter has submitted the

report to the State Government with a recommendation to

initiate disciplinary action only against certain persons, who

were allegedly involved in the incident. The employees,

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who were actually not involved in the incident were dropped

from enquiry and such persons were exonerated.

Therefore, it is not open for the petitioner to contend that

he should not have been proceeded with, particularly when

Upa-Lokayukta after conducting investigation, has

concluded that prima facie material is found against the

petitioner.

18. So also there is no bar for conducting

investigation/ Disciplinary Enquiry in the matter, even after

the petitioner’s transfer from one particular place. There is

no hard and fast rule that the enquiry should be initiated by

department, only when the petitioner was holding the office

during particular period and at a particular place. The Rules

permit that the enquiry may be conducted even after his

transfer from one place to another.

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19. Since the charges are already framed and

enquiry is being proceeded with, it is open for the

petitioner to contest the proceedings on facts. This

Court, will not sit in appeal on the orders passed by

the Upa-Lokayukta or the State Government on facts

as if it is an Appellate Authority. In view of the same,

we do not find any ground to interfere with the

impugned report dated 7.4.2015, impugned order

dated 12.6.2015 and impugned Articles of Charge

dated 23.7.2015. Hence, the petition fails and the

same stands dismissed accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

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