M. Shivalingappa v. State of Karnataka

((((((((((((HC-KAR, NC:(2026:KHC:42941-DB( WP(No.(18843(of(2019( ( ,,,,,,,,,, , CNR:(KAHC010125642019( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU( THDATED(THIS(THE(12 (DAY(OF(AUGUST,(2026(

PRESENT(

THE(HON'BLE(MR.(JUSTICE(D(K(SINGH(

AND((

THE(HON'BLE(MR.(JUSTICE(H.SHANTHI(BHUSHAN(

WRIT(PETITION(NO.(18843(OF(2019((GM-KLA)(

BETWEEN:((

( M.,SHIVALINGAPPA,, S/O,MALIYAPPA,,

AGED,ABOUT,60,YEARS, RETIRED,HEAD,MASTER,, RESIDING,AT,SIDDARAMANAGARA,

HOSADURGA,TOWN,, CHITRADURGA,DISTRICT,–,577,527., …PETITIONER,

, (BY,SRI.,GANGADHARAPPA,A,V.,ADVOCATE), ,

AND:( Digitally ( signedtiby 1., STATE,OF,KARNATAKA, MALA0K0N REPRESENTED,BY,ITS,, Location: PRINCIPAL,SECRETARY, High0Court EDUCATION,DEPARTMENT,,of0Karnataka (SECONDARY,EDUCATION),, M,S,BUILDING,,, AMBEDKAR,ROAD,, BANGALORE,–,560,001., ,

2., KARNATAKA,LOKAYUKTHA, , REPRESENTED,BY,ITS,REGISTRAR, , M,S,BUILDING,,, , AMBEDKAR,ROAD,, , BANGALORE,–,560,001., , , ((((((((((((HC-KAR, NC:(2026:KHC:42941-DB( WP(No.(18843(of(2019( ( ,,,,,,,,,, , CNR:(KAHC010125642019( (

3., SRI.VINAYAKA,EDUCATION,SOCIETY(R),, , SIDDARAMANAGARA,,, HOLALKERE,ROAD,, HOSADURGA,TOWN,, CHITRADURGA,DISTRICT., REPRESENTED,BY,ITS,SECRETARY,, …RESPONDENTS, (BY,SRI.BYRE,GOWDA,N.,AGA,FOR,R1;, ,,,,,,SRI.K,PRASANNA,SHETTY.,,ADVOCATE,FOR,R2;, ,,,,,,,,,,,,R3,SERVED), , , THIS, WRIT, PETITION, IS, FILED, UNDER, ARTICLES, 226, AND,227,OF,THE,CONSTITUTION,OF,INDIA,,PRAYING,TO,CALL, FOR, THE, RECORDS, AND, PROCEEDINGS, OF, THE, CASE, AND, QUASH, THE, REPORT, DATED, 25.08.2016, SUBMITTED, BY, HON'BLE,UPA,LOKAYUKTA,IN,THE,OFFICE,OF,R-2,TRUE,COPY, OF, WHICH, IS, PRODUCED, AS, ANNEXURE-K1, BY, DECLARING, THAT,THE,R-2,HAS,NO,JURISDICTION,OR,AUTHORITY,OF,LAW, TO, ENTERTAIN, THE, COMPLAINTS, DATED, 11.9.2014, &,

17.9.2014, TRUE, COPIES, OF, WHICH, ARE, PRODUCED, AS, ANNEXURES-D,AND,D1,RESPECTIVELY,AND,INVESTIGATE,ON, TEH,SAME,UNDER,THE,KARNATAKA,LOKAYUKTHA,ACT,–,1984, AND,ETC.,, , , THIS,PETITION,,COMING,ON,FOR,PRELIMINARY,HEARING, IN, B, GROUP,, THIS, DAY,, ORDER, WAS, MADE, THEREIN, AS, UNDER:, , CORAM:, HON'BLE,MR.,JUSTICE,D,K,SINGH, AND,, HON'BLE,MR.,JUSTICE,H.SHANTHI,BHUSHAN, , ,

ORAL ORDER

(PER: HON'BLE MR. JUSTICE D K SINGH)

The present petition has been filed by the petitioner seeking for the following relief:

(a) a writ in the nature of certiorari or any other appropriate writ or order the report ring No.Compt/Upa Lok/BD.3211/2014/DRE-5 dated 25/8/2016 submitted by of Hon'ble Upa Lokayukta in the office of 2nd respondent true copy of which is produced as ANNEXURE – K1 by declaring that the 2nd respondent has no jurisdiction or authority of law to entertain the complaints dated 11/9/2014 & 17/9/2014 true copies of which are produced as ANNEXURES – D & D1 respectively and investigate on the same under the Karnataka Lokayuktha Act-1984;

(b) a writ in the nature of certiorari or any other appropriate writ or order quashing the order bearing No.ED SES 2016 dated 30/10/2018 issued by the 1st respondent true copy of which is produced as ANNEXURE-L by declaring that the 1st respondent cannot invoke the provisions of Section 101 of Karnataka Education Act-1983;

(c) a writ in the nature of certiorari or any other appropriate writ or order quashing the order bearing No.UPLOK-2/DE/499/2018 dated 5/11/2018 passed by Hon'ble Upa Lokayuktha certified copy of which is produced as ANNEXURE-M;

(d) a writ in the nature of certiorari or any other appropriate writ or order quashing the Articles of Charge dated 6/12/2018 bearing No.UPLOK-

2/DE-499/2018/ARE-9 issued by 2nd respondent true copy of which is produced as ANNEXURE-N:

(e) any other appropriate writ or order or direction as this Hon'ble court may deems fit to grant under the facts and circumstance of the case including an order as to cost of this writ petition;"

¶2The petitioner was initially appointed as an Assistant Teacher in a school run by Sri Vinayaka Education Society, Siddaramanagara, Holalkere Road, Hosadurga Town, Chitradurga District on 12.07.1983. His appointment was approved by the Education Department, Government of Karnataka on 28.12.1983. He was promoted by the Managing Committee of the said Education Society to the post of Head Master vide order dated 01.08.1986. This promotion was approved by the Education Department, Government of Karnataka on

18.03.1992. It appears that the institution was upgraded to Junior College and the petitioner worked as Principal of the said Junior College till he retired on attaining the age of superannuation on 31.07.2018. The said Vinayaka

Composite Junior College was taken grant in aid in the year 1994.

¶3The complaint against the Petitioner was given to the Lokayukta by former Member of Management Committee of Sri Vinayaka Education Society, stating that he had secured the appointment for the post of Assistant Teacher, Headmaster and the Principal of Sri Vinayaka Composite Junior College on the basis of forged and manipulated documents. These complaints were filed on 11.09.2014 and 17.09.2014. The complaint was addressed to the Superintendent of Police, Karnataka Lokayukta, State of Karnataka, Chitradurga Division for making enquiry and submitting report.

¶4The petitioner was issued notice. To which, he filed reply refuting the allegations made against him. It is said that the petitioner had produced all relevant documents in support of his explanation. The Superintendent of Police had submitted the report. The

report does not mention anything about him manipulating the records to obtain the appointment as Assistant Teacher, Headmaster and Principal of the said school. But, report deals with misappropriation and mismanagement of the funds provided to the said college.

¶5The report of the Superintendent of Police is considered and the Lokayukta under Section 12(3) of the Karnataka Lokayukta Act, 1984 (hereinafter referred to as 'Act' for short) forwarded the report dated 25.08.2016 to the State Government for taking appropriate action and reporting the action taken against the petitioner under Section 12(4) of the Act. This report submitted by Lokayukta under Section 12(3) under the Act and the direction for intimating the action taken on the report are under challenge before the Court in the present Writ Petition.

¶6Sri. Gangadharappa A.V. learned counsel appearing for the petitioner has raised basically three

contentions. One, under Section 8 of the Act, the Lokayukta is empowered to investigate a complaint in respect of the incident which has taken place not before 5 years from the date of the complaint. Second, the petitioner was not a Government servant, when he was appointed way back in the year 1983, inasmuch as, he was employed by the society and the school in which he was employed taken in grant in aid only in 1994 and the complaint in respect of the incident when the petitioner was not the Government servant could not have been enquired into by the Lokayukta. Third, before submitting the report under Section 12(3) of the Act, the petitioner was not issued any Show Cause Notice, nor any opportunity was granted to him to put his case before the Lokayukta.

¶7On the other hand, Sri. K. Prasanna Shetty, learned counsel for Lokayukta and Sri. Byre Gowda N, learned AGA have submitted that the report contains serious charges against the petitioner regarding financial

irregularities and misuse of the Government funds. The irregularities continued till he retired from the office and therefore, even if the complaint was time barred, allegations being serious, the Government should be permitted to go ahead with the enquiry for taking appropriate action under the law.

¶8We have considered the submissions carefully and perused the records of the Writ Petition.

¶9It is not in dispute that the petitioner was appointed before the institution was taken in grant in aid, by a private society registered under the Karnataka Societies Registration Act, and therefore, he was not a Government servant. The complaint is in respect of the initial appointment of the year 1983. Section 8 of the Act, specifically provides that the Karnataka Lokayukta would not have the jurisdiction to investigate a complaint in respect of an incident which had taken place 5 years prior to the date of complaint.

¶10Section 8(2) (d) of the Karnataka Lokayukta Act, 1984 could read as under:

¶8Matters not subject to investigation. –

(2) The Lokayukta or an Upa-Lokayukta shall not investigate. –

(a) xxx

(b) xxx

(c) xxx

(d) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place:"

¶11The provisions of Section 8 of the Act provide that the Lokayukta would not have the jurisdiction to investigate a complaint in respect of an incident which had taken place prior to five years from the date of the complaint.

¶12We are of the view that the Writ Petition deserves to be allowed on a short point as the Lokayukta would not have the jurisdiction to enquire into the

complaint with respect to illegality in appointment of the petitioner in a private institution. Thus, we set aside the report of the Lokayukta and allow the said Writ Petition. However, if the Government has any other material regarding irregularity/misappropriate in using Government funds, Government, if it is so permitted under the law may take appropriate action in accordance with law.

Sd/- (D K SINGH) JUDGE

Sd/- (H.SHANTHI BHUSHAN) JUDGE

BVK List No.: 2 Sl No.: 7