-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT WRIT PETITION No.12903/2019 (S-RES) BETWEEN: SMT. U.R. RAMA W/O LATE V.N. ANANTH AGED ABOUT 61 YEARS RETIRED HEAD MISTRESS (IN – CHARGE) VIVEKA VARDHINI HIGH SCHOOL R/AT NO.150, 15TH CROSS I BLOCK, RAJAJINAGAR BANGALORE-560010. ...PETITIONER (BY SRI. SATISH K., ADV.) AND: 1. THE STATE OF KARNATAKA DEPARTMENT OF EDUCATION (PRIMARY AND SECONDARY) REP. BY ITS PRINCIPAL SECRETARY M.S. BUILDING BANGALORE-560001. 2. THE REGISTRAR KARNATAKA LOKAYUKTHA M.S. BUILDING BANGALORE-560001. -2- 3. THE ADDITIONAL REGISTRAR OF ENQUIRIES-15 KARNATAKA LOKAYUKTHA M.S. BUILDING BANGALORE- 560001. ….RESPONDENTS (BY SMT. PRATHIBHA R.K., AGA FOR R1 SRI VENKATESH ARABATTI, ADV. FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE R1 AND QUASH THE IMPUGNED ORDER OF ENTRUSTMENT DATED 10.01.2019 PASSED BY THE R1 (ANNEXURE-L) AND THE IMPUGNED ARTICLES OF CHARGE DATED 14.02.2019 ISSUED BY THE R3 (ANNEXURE-M). THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 18/02/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT CAV ORDER Petitioner, retired Head Mistress (In-charge) of Viveka Vardhini High School, an aided Institution is before this Court under Article 226 of the Constitution of India questioning the Government Order bearing No.Er 27 rfN 2017, ¨ÉAUÀ¼ÀÆgÀÄ, Bengaluru dated 10.01.2019 (Annexure-L) under which enquiry against the petitioner -3- is entrusted to the second respondent under Rule 214(2)(b) of the KCSR read with Section 101 of the Karnataka Education Act, 1983 (for short, ‘1983 Act’) and Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, ‘CCA Rules’); the petitioner has also questioned the articles of charge dated 14.02.2019 bearing No. G¥À¯ÉÆÃPï-1/rE-21/2019/J.Dgï.E-15 (Annexure-M) issued by the third respondent on the ground of jurisdiction of the State to entrust the enquiry to the second respondent and consequential issuance of charge memo by the third respondent. 2. Brief facts of the case are that, one Sri.S.Nagaraju, retired Second Division Assistant (SDA) of Viveka Vardhini High School filed a complaint before the second respondent against the petitioner as well as Block Education Officer, Deputy Director of Public -4- Instructions and the Secretary of Viveka Vardhini High School alleging non-settlement of his pensionary benefits intentionally by misusing their official position by way of corrupt practice. On investigation, the second respondent submitted report under Section 12(3) of the Karnataka Lokayukta Act, 1984 (for short, ‘1984 Act’) dated 31.01.2017 to the first respondent State Government. Considering the said report, the first respondent-State Government under impugned order dated 10.01.2019 (Annexure-L), entrusted the enquiry against the petitioner under Rule 214(2)(b) of KCSRs read with Section 101 of 1983 Act and Rule 14A of CCA Rules to the 2nd respondent-Lokayukta. In pursuance to the entrustment, third respondent was nominated as Enquiry Officer and in turn, he issued articles of charge dated 14.02.2019. Questioning the Government order entrusting the enquiry to the second respondent and consequential articles of charge issued by the third -5- respondent, the petitioner is before this Court under Article 226 of the Constitution of India. 3. Heard learned counsel Sri.K.Satish for petitioner, learned Additional Government Advocate Smt.R.K.Prathibha for respondent No.1 and learned counsel Sri.Venkatesh S. Arabatti for respondent Nos.2 and 3. Perused the entire writ petition papers including the statement of objections filed by the first respondent – State. No statement of objections are filed on behalf of respondent Nos.2 and 3. 4. Learned counsel Sri.K.Satish for petitioner would submit that the entire action of the State as well as second and third respondents in entrusting enquiry as well as issuance of articles of charge is one without jurisdiction. He submits that the petitioner is an employee of aided institution of Viveka Vardhini High School and in respect of the petitioner, Management is -6- the Appointing Authority. He submits that the first respondent – State Government has no jurisdiction or control over the petitioner. It is submitted that the first respondent-State Government is neither Appointing Authority nor Disciplinary Authority insofar as the petitioner is concerned. In that circumstance, he submits that Rule 214 of KCSRs would have no application to the petitioner. It is submitted that the petitioner is governed by 1983 Act and under 1983 Act, there is no provision to entrust the enquiry to second respondent – Lokayukta. Learned counsel would submit that Section 101 of 1983 Act referred to in the impugned order confers power on the Government to direct the Governing Council to take action and if the Governing Council fails to take action, Government could direct a person or authority to take disciplinary action against such employee. He submits that in the instant case, there is no direction to the Management to take -7- any action against the petitioner and there is also no allegation of failure on the part of the Management to carryout the direction issued by the State Government. In the above circumstances, it is submitted that the State could not have invoked Section 101 of 1983 Act. Moreover, he submits that Section 101 of 1983 Act would not empower the State to refer the enquiry against the petitioner to the Lokayukta. 5. Apart from the above, learned counsel for the petitioner would submit that on merit also, the petitioner has good case and referring to the statement of objections filed by the State Government in a writ petition filed by the complainant wherein the State has made a specific averment that original service register is lying with the petitioner himself. Learned counsel for the petitioner would submit that the complaint relates to non-settlement of pension and referring to Section 8 as well as Schedule-II to 1984 Act, he submits that the -8- second respondent-Lokayukta could not have investigated the complaint of the complainant since it involves the non-settlement of pension for which, the complainant has other remedy. Thus, learned counsel would pray for allowing the writ petition. 6. Per contra, learned Additional Government Advocate would submit that the petitioner was responsible for the delay in settlement of pensionary benefits of the complainant Sri.S.Nagaraju and as such, rightly enquiry was ordered against the petitioner. Learned Additional Government Advocate would contend that the institution in which the petitioner was working was an aided institution and as such the employees of aided institution are public servants. Further, it is submitted that, under Section 101 of 1983 Act permits entrustment of enquiry to the second respondent- Lokayukta. -9- 7. Learned counsel Sri.Venkatesh S. Arabatti appearing on behalf of respondent Nos.2 and 3 vehemently opposes the prayer of the petitioner and made all his efforts to justify the action of the State as well as second respondent-Lokayukta. Learned counsel submits that the employees of the aided institution are public servants as defined under the 1984 Act. Further, learned counsel would submit that to provide education is the obligation of the State and the Management are carrying out the functions of the State i.e., affairs of the State. Hence, the employees of the aided educational institutions are public servants. Therefore, he submits that 1984 Act would be applicable to the employees of the aided institutions. Further, learned counsel Sri.Venkatesh S. Arabatti referring to proviso to Section 87 of 1983 Act submits that since it would state that the service condition of the employees of the educational institutions receiving maintenance grant from the State -10- Government shall be the same as those applicable for the corresponding category of employees, if any, in State Institutions, CCA Rules which would be applicable to the State Government employees would also apply to the employees of aided institutions. Therefore, he submits that the State rightly referred the enquiry against the petitioner under Rule 14A of CCA Rules. Thus, he prays for dismissal of the writ petition. 8. Having heard the learned counsel appearing for the parties and on perusal of the entire writ petition papers, including the statement of objections filed by the respondent No.1-State, the following point would arise for consideration: “Whether the State is justified in referring the enquiry against the petitioner to the second respondent-Lokayukta under Rule 14A of CCA Rules?” -11- 9. The answer to the above point would be in the Negative and the State is not justified in referring the enquiry against the petitioner to the second respondent-Lokaukta under Rule 14A of CCA Rules, for the following reasons: Admittedly, the petitioner at the relevant point of time was an employee of Viveka Vardhini High School, a private aided educational institution. One Sri.S.Nagaraju, retired SDA of the same school filed complaint against the petitioner, Secretary of the aided institution, Block Education Officer as well as Deputy Director of Public Instructions before the 2nd respondent- Lokayukta. Learned counsel for the petitioner contended that no notice as required under Section 12 of 1984 Act is issued to the petitioner and further contended that the petitioner is not a public servant. But, those contentions need not be gone into in the present writ petition. -12- 10. As observed above, the petitioner was an employee of aided educational institution and governed by 1983 Act and Rules made thereunder. The CCA Rules would be applicable to the Government servants and the same if adopted by respective institutions or management, would be applicable to the employees other than the Government servants. In the case on hand, 1983 Act prescribes Code of Conduct for employee of private educational institutions and if he violates any provision thereof, he shall be liable for prescribed disciplinary action. Section 92 provides for imposing punishment of dismissal, removal or reduction in rank by following the procedure prescribed therein. Section 87 of 1983 Act reads as follows: “87. Qualifications, conditions of service of employees. – The State Government may after previous publication make rules regulating the recruitment and conditions of service (including rights as regards disciplinary -13- matters) of the employees in recognised private educational institutions: Provided that the minimum qualifications for recruitment, age of recruitment and retirement for employees in educational institutions receiving maintenance grant from the State Government shall be the same as those applicable for the corresponding category of employees, if any, in State Institutions unless otherwise prescribed. Provided further that conditions of service of the employees working in aided educational institutions shall be as such as may be determined by the State Government from time to time. Provided also that since 1974 no employee of the aided institution is required to appear and pass any Service Examination or the Kannada Language Examination as prescribed in the Karnataka Civil Service (Service and Kannada Language Examination) Rules, 1974 and no such employee shall be eligible for or be granted any additional increment for having passed or -14- deemed to have been passed said examination from the date of commencement of said rules.” 11. First proviso to Section 87 on which, learned counsel Sri.Venkatesh S. Arabatti places reliance would state that the minimum qualification for recruitment, age of recruitment and retirement for employees in educational institutions receiving maintenance grant from the State Government shall be same as those applicable for the corresponding category of employees, in State Institutions unless otherwise prescribed. 12. Since it would state that service conditions of the employees of the aided institutions are as that of the Government servants, learned counsel would submit that the CCA Rules would have application. Learned counsel Sri.Venkatesh S. Arabatti failed to notice the words “unless otherwise prescribed”. The State Government has not issued any notification adopting CCA Rules for disciplinary action against the employees -15- of aided institution and on the other hand, it has prescribed separate Rules i.e., the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999, prescribing conditions of service. 13. In the above circumstances, when the field of the disciplinary action against the employees of aided institutions is occupied by the provisions of 1983 Act as well as Rules framed thereunder, it cannot be said that CCA Rules would have application to the employees of the aided institutions. 14. Learned Additional Government Advocate placing reliance on Section 101 of 1983 Act submitted that the Government could entrust the enquiry against the employees of aided institutions to the second -16- respondent-Lokayukta. Section 101 of 1983 Act reads as follows: “101. Power of Government to impose penalties. – Notwithstanding anything contained in sections 92 and 94 and subject to such rules as may be prescribed, where the competent authority is of the opinion that disciplinary action against an employee is necessary, it may direct the Governing Council to take action within a specified period. If the Governing Council fails to comply with the direction, the competent authority shall report the matter to the State Government, which after considering the report may specify by order, a person or authority to take disciplinary action against the employee. The person or authority so specified may thereupon take disciplinary action against the employee and impose all or any of the penalties which the Governing Council can impose. An appeal shall lie from a decision of such person or authority to the tribunal, within the prescribed period.” 15. A careful reading of the above provisions make it abundantly clear that where a competent authority is of the opinion, when the disciplinary action -17- against an employee, if necessary, it may direct the Government to take action within a specified period. If the Governing Council fails to comply with such direction, the competent authority shall report the matter to the State Government which after considering the report may specify by order a person or authority to take action against the employee. Thereupon it would be appropriate for the person or authority so specified to take action against such employee and impose all or any of the penalties which the Governing Council can impose. 16. The first respondent-State Government had failed to demonstrate before this Court that there was a direction to the Governing Council to take disciplinary action against the petitioner and that there was failure on the part of the Governing Council or management to take action against the petitioner, and to invoke Section 101 of 1983 Act and entrusted the enquiry to the second -18- respondent-Lokayukta. Even otherwise, there is no specific provision under 1983 Act or under 2006 Rules to entrust the enquiry to second respondent. Unless there is a specific provision in the service rules governing the employee, the Appointing Authority or Disciplinary Authority would not get jurisdiction to entrust the enquiry to the second respondent-Lokayukta. 17. To appreciate the contention that under Section 8 of 1984 Act, second respondent could not have investigated the complaint of the second respondent, it would be useful to read Section 8(1)(a) and (b) of 1984 Act, which reads as follows: “8. Matters not subject to investigation. - (1) Except as hereinafter provided, the Lokayukta or an Upalokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action,- (a) if such action relates to any matter specified in the second Schedule; or -19- (b) if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any tribunal, court, officer or other authority and has not availed of the same. (2) …………….. (a) ………… (b) ………… (c) ……….. (d) ……….. (3) ………….” 18. Admittedly, the grievance of the complainant Sri.S.Nagaraju, a retired SDA of Viveka Vardhini High School was regarding settlement of pension and pensionary benefits. The petitioner approached this Court in W.P.No.61920-22/2016 praying for a direction to the respondents therein to make payment of pension and other retiral monetary benefits with interest. 19. A Division Bench of this Court in W.P.Nos.25078-80/2016 dated 15.07.2016 in the -20- case of SRI.SUBHINDRA A GUMASTE AND OTHERS VS. THE STATE OF KARNATAKA AND OTHERS, at paragraph 5, after noticing Section 8 of 1984 Act has held as follows: “A bare reading of Section 8(1) of the Karnataka Lokayukta Act makes it clear that, in case, if the complainant has or had any remedy by way of appeal, revision, review or other proceedings before any Tribunal, or other authority and has not availed of the same, it is not open for the Lokayukta or Upa-lokayukta to conduct investigation under the Act in such matters.” 20. In W.P.No.48876/2015 dated 01.07.2016 in the case of MILINDA VIDYASAMSTHE® VS. THE STATE OF KARNATAKA AND OTHERS, at paragraph 4, taking note of Section 8 of 1984 Act, the Division Bench of this Court has observed as follows: “4. Section 8 of the Karnataka Lokayukta Act, 1984 specifies the matters which are not subject to investigation by Lokayukta or Upa- -21- Lokayukta. The said section specifies that Lokayuktha or Upa-Lokayukta shall not conduct any investigation under the Lokayukta Act in the case of complaint involving a grievance in respect of any action, if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any Tribunal, Court Officer or other authority and has not availed of the same. Section 9(5)(c) of the Karnataka Lokayukta Act, 1984 further makes it clear that Lokayukta or Upa-Lokayukta may, in its discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation, if, in his opinion other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies. Thus it is clear that Section 9(5) of Karnataka Lokayukta Act, 1984 mainly deals with discretionary powers of Lokayukta. However, prima facie we find that Section 8(b) of the Karnataka Lokayukta Act, 1984 is staring at Lokayukta/Upalokayukta. In view of the same and as the aggrieved parents of the school have -22- already approached the relevant authority i.e., the District Regulating Authority headed by the Deputy Commissioner, we deem it proper to allow this petition and set aside the impugned communication dated 19.10.2015 issued to the petitioner. However, we direct respondent No.6(a) to hold enquiry, as required under law and pass appropriate orders, after hearing all the concerned parties.” 21. In the instant case also, the complainant approached this Court in W.P.No.61920-22/2016 with a prayer to settle the retrial benefits with interest. As the petitioner had approached this Court, the petitioner could not have approached the second respondent with the same complaint that his pensionary benefits are not settled which has affected his retired life. 22. For the reasons recorded above, the action of the respondents are unsustainable in law and accordingly, petitioner succeeds. Wherefore, the following: -23- ORDER a) Writ petition is allowed. b) Impugned order bearing No.Er 27 rfN 2017, ¨ÉAUÀ¼ÀÆgÀÄ, Bengaluru dated 10.01.2019 (Annexure-L) and articles of charge bearing No.G¥À¯ÉÆÃPï-1/rE- 21/2019/J.Dgï.E-15 dated 14.02.2019 (Annexure-M) are quashed. SD/- (S.G.PANDIT) JUDGE NC. CT:bms