M/S KARNATAKA POWER TRANSMISSION CORPORATION v. P N HANUMANTHAIAH

Judgment

1. P N HANUMANTHAIAH S/O LATE NANJAPPA AGED ABOUT 57 YEARS WORKING AS ASSISTANT EXECUTIVE ENGINEER R/A NO.42, SHREE SHARADA KRUPA, 2 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 10TH CROSS, ULLALA MAIN ROAD, GNANA JYOTHI NAGAR MALLATHAHALLI BENGALURU, NATIVE OF PALYADAHALLI, THIPPASANDRA HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT - 571 511

2. P T SHESHACHALAIAH S/O LATE THIRUVENKATAJIYAR AGED ABOUT 46 YEARS ELECTRICAL CONTRACTOR R/A SRI MARUTHI NILAYA, NEXT TO SRINAGARASARA, GANESH BHAVAN, HALLI URU ROAD, HULIYURUDURGA ..RESPONDENTS (BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI. MADHUKAR S, ADVOCATE FOR R1 & R2) THIS CRIMINAL RP IS FILED UNDER SECTION 397 AND 401 OF CR.P.C, 1973 PRAYING TO a) SET ASIDE THE ORDER DATED 01.06.2019 (ANNEXURE-A) PASSED BY THE COURT OF VII ADDITIONAL SESSIONS AND SPECIAL JUDGE AT TUMAKURU IN SPL.C.C.NO.138/2015; b) PASS SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE. IN CRL.RP NO.155 OF 2021 BETWEEN: STATE OF KARNATAKA BY LOKAYUKTA POLICE TUMAKURU - 572 101 REPRESENTED BY POLICE INSPECTOR (BY SRI. PRASAD B.S, ADVOCATE) AND: P N HANUMANTHAIAH S/O LATE NANJAPPA AGED ABOUT 57 YEARS …PETITIONER 3 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 ASSISTANT EXECUTIVE ENGINEER KUNIGAL SUB DIVISION, BESCOM R/O NO.42, SHREE SHARAD KRUPA, 10TH CROSS, ULLALA MAIN ROAD, GNANA JYOTHI NAGAR MALLATHAHALLI, BENGALURU - 560 056 NATIVE OF PALYADAHALLI, THIPPASANDRA HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT - 562 120 (BY SRI. C.G.SUNDAR, ADVOCATE) ……. RESPONDENT THIS CRIMINAL RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 01.06.2019 PASSED BY THE VII ADDITIONAL SESSIONS AND SPECIAL IN SPECIAL CASE NO.138/2015, IN THE INTEREST OF JUSTICE. JUDGE AT TUMAKURU THESE CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED ON 23.01.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T In these two petitions filed under Section 27 of Prevention of Corruption Act (for short "P.C. Act") r/w Section 397 and 401 of Cr.P.C, the challenge is to the order dated 01.06.2019 in Spl.C.No.138/2015, by which the trial Court has allowed application filed by accused No.1 under Section 227 of Cr.P.C and discharged him.

2. While Crl.RP.No.56/2020 filed by M/s Karnataka Power Transmission Corporation Ltd, 4 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 Crl.RP.No.155/2021 is filed by the State represented by Lokayukta Police. In fact in Crl.RP.No.56/2020, initially the State represented by Lokayukta Police was arraigned as respondent No.1. Later on it has been transposed as petitioner No.2.

Since these two petitions are arising out of the same order and the grounds urged by petitioner are similar, they are clubbed together and decided by a common order.

4. For the sake of convenience, parties are referred to by their rank before the trial Court.

5. One Manu lodged a complaint on 23.01.2014 with Lokayukta police, City Wing Bangalore-01, alleging that he applied to BESCOM Sub-division to install additional transformers to the borewells of neighbours as they are facing voltage problem. The said file was pending with accused No.1 who was working as Assistant Executive Engineer. It is alleged that accused No.1 was not approving the file and went on postponing for one or 5 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 the other reason. Later accused No.1 directed the complainant to approach him through accused No.2 - an Electrical Contractor so that his work would be expedited. When complainant contacted accused No.2, he demanded bribe of Rs.5,000/-. With these allegations, complainant filed the complaint.

5.1 Based on it case was registered and after complying with the pre-trap procedure, a trap was laid. However, accused No.2 refused to receive Rs.5,000/- and demanded bribe of Rs.70,000/-. The trap team tried to trap accused No.1 and 2 on many occasions. On

25.01.2014, when the trap team assembled at Lokayukta Police Station, complainant informed him that accused No.2 has telephoned him and directed to pay Rs.30,000/- as advance bribe. Accordingly, the trap was laid and accused No.2 was trapped while receiving bribe of Rs.30,000/-.

5.2 After receiving the bribe amount, accused No.2 took complainant to accused No.1, where he produced the file of the complainant and promised do the 6 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 work. Both accused Nos.1 and 2 were caught red handed. After concluding the investigation, charge sheet was filed in Spl.C.C.No.138/2015 against accused Nos.1 and 2. Prosecution was initiated against accused No.1 after obtaining proper Sanction Order dated 23.04.2015 from the Competent Authority as envisaged under Section 19 of the P.C. Act.

6. Before the trial Court, the accused No.1 filed application under Section 239 of Cr.P.C. r/w Section 19 of P.C Act, with a prayer to discharge him. It is contended by him that the proceedings are not maintainable against him and that he is entitled for discharge. He has specifically contended that as per the Karnataka Electricity Board Regulations, the Board is the Competent Authority to remove him and therefore it is the Competent Authority to issue sanction to prosecute accused No.1. Consequently, the sanction order issued by Director(Admin and HR) of the M/s Karnataka Power Transmission Corporation Ltd (for short "KPTCL") is not a 7 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 valid sanction to prosecute accused No.1 since the same was not issued by the Board.

7. On the other hand, it was contended by the learned Public Prosecutor that question of validity of the sanction can be considered at the trial. Since the cognizance is already taken, the question of validity of sanction would not arise. It was further contended by the learned Public Prosecutor that there is no bar for the Director(Admin and HR) to issue sanction, since serial No.1 of Schedule VI A of the Karnataka Electricity Board Employees' (Classification, Disciplinary Control, and Appeal) Regulations, 1987 (for short "1987 Regulations") provides that Director (Admin and HR), KPTCL being the Removing Authority in respect of accused No.1 is competent to grant sanction. The sanction order issued by Director (Admin and HR) was sought to be justified by relying upon the provisions of Section 14A and Schedule VI(A) of the Karnataka Electricity Board Employees (Classification, Disciplinary, control, and Appeal) Regulation 1987. 8 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021

8. The prosecution also adverted to Regulation 14A (f) of 1987 Regulations which was included by way of an amendment vide Board order dated 20.03.2002 bearing No.KPTCL/B37/B21/5710/2001-02 provides that in respect of cases of criminal prosecution investigated either by the Lokayukta or by any other authorities, the Appointing Authorities specified in the Schedules to these Regulations, are competent to impose penalty of removal on the accused/employee, etc.. By relying upon the said provision, it was specifically contended that Director (Admn & HR) being the Appointing Authority of accused No.1 and a Competent Authority for imposing penalty of removal was conferred powers to issue sanction for prosecution by Lokayukta or by any other Authority. The sanction order makes it clear that the Director (Admn & HR) KPTCL, who has passed sanction deligate/representative of the Board of Directors, but has issued the sanction order in his capacity as the Competent Authority and it is valid. The petitioner has 9 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 challenged the impugned order on the following among other: GROUNDS (i) The trial Court has completely misdirected itself regarding the provisions of electricity Laws and service regulations pertaining to M/s KPTCL. Neither the complainant nor accused No.1 have adverted to certain provisions of electricity Laws. Being aggrieved by the same the M/s KPTCL not being arraigned as a party before the trial Court has approached this Hon'ble Court under revisional jurisdiction. Moreover the impugned order passed by the trial Court have wide repercations on other similar cases relating to employees of M/s KPTCL. (ii) The entire premise on which accused No.1 is discharged is that the Competent Authority who issue sanction against accused No.1 is Board and not the Director (Admn & HR). Therefore at the very outset it is significant to demonstrate that Director (Admn & HR) is in fact Appointing Authority of accused No.1 and therefore, competent to issue sanction for prosecution. 10 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 Accused No.1 being an Assistant Engineer (Electrical), the relevant entry is Schedule VI(A) which stipulates that Director (Admn & HR) is the Authority empowered to appoint and the Authority to impose penalty. Therefore, as per Schedule VI, the Director (Admn & HR) is the Appointing Authority. As per Regulation 14A (f) the Appointing Authorities are specified in the Schedules which are competent to impose penalty of removal of the accused/employee is empowered to accord sanction to prosecute him. Hence, it is clear that Director (Admn & HR) is the Competent Authority not only to appoint and remove the accused/employee, but also to issue sanction to prosecute him in cases where investigation is by the Lokayukta or by any other Authority. The trial Court has failed to appreciate the aforesaid provisions of 1987 Regulations i.e., entry VIA of Schedule VI and Regulation 14A (f) in conjunction with each other. (iii) The trial Court has only considered Regulation 10(1) and 10(3) of 1987 Regulations, but failed to advert to provision 10(2) of the said Regulation, which states 11 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 that any of the penalties specified in Regulation 9 may be imposed on a Board/Corporation employee by the Appointing Authority or the Authority specified in the Schedules in this behalf, to the extent indicated thereon. As per this provision, the Director (Admn & HR) is the Appointing Authority and also Competent Authority to impose major penalty which includes removal of the employee also. Hence, the observation of the trial Court that Board is the Appointing Authority and a Competent Authority to impose major penalties is wholly contrary to the above said provisions of the Regulations and as such liable to be set aside. (iv) Though adverted to it , the trial Court has also failed to consider Regulation 10(3) in its entirety and true sense which require that no penalty specified in Clause (v) to (viii) of Regulation 9 shall be imposed by any other Authority lower than the Appointing Authority. It has failed to appreciate that the Director (Admn & HR) being the Appointing Authority for Assistant Engineer (Elec) is also Competent Authority to remove/dismiss him from service. In the light of various decisions of the Hon'ble 12 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 Supreme Court, the trial Court has also failed to appreciate the fact that the question of validity of sanction is required to be raised at the trial and not at the threshold. Therefore, the impugned order is perverse and liable to be set aside.

9. In support of the petitions, the learned counsel for petitioners have relied upon the following decisions: (i) Parkash Singh Badal Vs. State of Punjab and Ors. (Parkash)1 (ii) Dinesh Kumar Vs. Chairman AAI (Dinesh Kumar)2 (iii) B.M.Janardhan Vs. IG Stamps (B.M.Janardhan)3 (iv) State of Bihar V. Ramangal Ram (Ramangal Ram)4 (v) C.B.I Vs. Mrs. Pramila Virendra Kumar Agrawal (Pramila Virendra)5 (vi) State of Karnataka Vs. K.Shankaramurthy (K.Shankaramurthy)6 (vii) Major M.C.Ashish Chinappa Vs. CBI (M.C.Ashish Chinappa)7

20.03.2002 KPTCL/B.37/B.21/5710/2001-02 Bangalore, Clause(f) is added to Regulation 14A to the effect that in the respect 18 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 of cases of criminal prosecution investigated either by the Lokayukta or by any other authorities, the appointing authorities specified the schedules regulations, competent to impose the penalty of removal on the accused employee shall, if they deem fit after verifying that record, accord sanction to prosecute the accused employee. On the outcome of the said criminal case, the Appointing Authority of the post of the said criminal case, the appointing authority of the post of the said employee shall be competent to take further action.

15. Thus as per these amendments, Appointing Authority is authorized to remove the employee and also empowered to issue the sanction order. Without referring subsequent amendments and insertions, the trial Court referring to the old regulations has come to a wrong conclusion that the sanction issued by Director (Admn & HR) is not valid, and therefore, accused No.1 is entitled for discharge. The trial Court has also failed to consider the ratio in the above decisions which provide that in case of sanction 19 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 order being there, its validity is required to be appreciated at the trial and not at the threshold.

16. In fact in the decisions relied upon by the learned counsel for respondent/accused No.1 also, it is held that where there is sanction order, its validity is required to be decided at the trial. They are not of any assistance to respondent/accused No.1.

17. Thus, from the above discussion, this Court is of the considered opinion that the impugned order is illegal and perverse. It calls for interference by this Court and accordingly, the following: ORDER (i) Both Criminal Revision petitions filed by the State as well as KPTCL are allowed. (ii) The impugned order dated 01.06.2019 in a Spl.C.C.No.138/2015 on the file of VII Addl.Sessions Special Judge, Tumakuru is set aside. 20 CRL.RP No.56 of 2020 c/w CRL.RP No.155 of 2021 (iii) The trial Court is directed to frame charge against accused No.1 and proceed with the matter in accordance with law. (iv) The Registry to send back trial Court records along with copy of this order to the trial Court forthwith. Sd/- JUDGE RR