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Karnataka High Court: Accused Discharged in Suicide Abetment Case Due to Insufficient Evidence

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Case title: ONKARAPPA G H & ORS VS THE STATE OF KARNATAKA

Case no.: CRIMINAL REVISION PETITION NO. 141 OF 2024

Dated on: 21st may 2024

Quorum: HON’BLE MR JUSTICE S RACHAIAH

FACTS OF THE CASE

The case of the prosecution is that the deceased Shruthi was working as a maid in the house of Sri. G.H. Omkarappa and Smt. Anusuyamma at Shivamogga. The deceased was staying with them since two years. The complainant being a mother of the deceased-Shruthi used to visit the house where Shruthi was working often and she was enquiring about the welfare of her daughter. Such being the fact, she has received a message from the reliable source that her daughter committed suicide in the house of the accused around 2.00 pm. Immediately after receiving the said information, the complainant and others went to Shivamogga and learnt that the deceased Shruthi committed suicide inside the room and it was bolted from inside. It is further stated in the complaint that, the door was opened with the help of the localities in the presence of police. On opening the said room, the complainant found that her daughter was hanging from the ceiling fan and also noticed a chit said to have written by the deceased. Hence, she lodged a complaint. Upon the complaint, the jurisdictional police registered a case in Cr.No.207/2015 for the offence under Section 306 read with Section 34 of IPC. After conducting investigation submitted charge sheet. Being aggrieved by filing of the charge sheet, the petitioner herein filed an application under Section 227 of Code of Criminal Procedure Act (for short, ‘Cr.P.C.’). The said application came to be rejected by the Trial Court. Hence, this revision.

ISSUES

  • Whether the accused can be charged under Section 306 of the IPC for abetting suicide based on the evidence provided in the complaint and charge sheet.
  • Whether the contents of the complaint and charge sheet provide sufficient grounds to proceed against the accused and whether they disclose the necessary elements of instigation or harassment required for abetment of suicide.
  • Whether the Trial Court’s decision to reject the application for discharge was justified or if it amounted to an abuse of process of law.

LEGAL PROVISINS

Indian Penal Code (IPC), Section 306: Abetment of Suicide Section 306 of the IPC deals with the abetment of suicide. It states that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Indian Penal Code (IPC), Section 34: Acts Done by Several Persons in Furtherance of Common Intention Section 34 deals with acts done by several persons in furtherance of a common intention. It states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Code of Criminal Procedure (Cr.P.C.), Section 227: Discharge Section 227 of the Cr.P.C. provides the power to discharge. It states that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.

CONTENTIONS OF THE APPELLANT

Arun Shyam, learned Senior Counsel for Sri. Suyog  Herele, learned counsel for the petitioner and Sri. Rahul Rai, learned High Court Government Pleader for the State. It is the submission of learned Senior Counsel that the findings of the Trial Court in rejecting the application for discharge is erroneous and against to the facts of the case. Hence, the same is liable to be set aside. It is further submitted that the contents of the charge sheet do not disclose the ingredients of Section 306 of IPC. In fact, the complainant in her complaint stated that she was visiting the house of the accused and she was enquiring about the welfare of her daughter. The averments of the complaint did not disclose either instigation or harassment to commit suicide. It is further submitted that a letter said to have been found in the room where the deceased committed suicide clearly discloses that, the deceased was loving a boy and she mentioned the phone numbers and narrated certain facts in it. However, the deceased mentioned in the end of the said letter, that accused are responsible for her suicide. That itself is not sufficient to attract the ingredients of instigation or abetment to commit suicide. Such being the fact, asking the petitioner to face the trial, certainly, amounts to an abuse of process of law. Therefore, the petition deserves to be allowed. Making such submissions, the learned Senior Counsel prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned High Court Government Pleader vehemently justified the order of rejection passed by the Trial Court and submitted that as per the averments of the complaint, the deceased Shruthi was working in the house of the accused as a maid and she committed suicide in their house by leaving death note. The said death note contains some facts and the same are required to be proved during full-fledged trial. In case, if the petition is allowed, the facts remain unchallenged. Therefore, the petition deserves to be dismissed. Making such submission, the learned High Court Government Pleader prays to dismiss the petition. Having heard learned counsel for the respective parties and also after having perused the findings of the Trial Court, the Trial Court while rejecting the application opined that at the stage of framing of charges, the Court has to see only prima-facie material and further opined that the contents of the death note are required to be proved during trial. It is settled principles of law that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. Further, it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

 

COURT’S ANALYSIS AND JUDGEMENT

In the present case, either the averments of the complaint or averments of the charge sheet do not disclose neither mens-rea nor instigation. Even assuming that the contents of the death note are true, it can be inferred from the averments that the deceased was loving a boy and she mentioned the phone numbers and expressed her willingness to meet him and at the same time, she mentioned the reason for committing suicide. “Mere mentioning that the accused are responsible for committing suicide “, is not sufficient to attract the ingredients of abetment. Such being the facts, asking accused to face the trial, certainly would be considered as an abuse of process of law. Therefore, the petition deserves to be allowed. It is needless to say that the Trial Court while considering the application for discharge must satisfy as to whether the material placed in the charge sheet are sufficient to record the conviction. The Hon’ble Supreme Court time and again reiterated that the Trial Court shall not act as a post office between prosecution and investigating agency. Of course, the Trial Court while framing the charge must prima facie satisfy that the materials are sufficient to frame the charge. However, the said word “prima facie” would mean that, even if no other material is placed by the investigating agency, the conviction can be recorded based on the charge sheet materials. The Criminal Revision Petition is allowed. The order dated 18.12.2023 in S.C No.126/2023 passed by the Prl. District and Sessions Judge, Shivamogga, is hereby set aside. The petitioners are discharged for the offence punishable under Sections 306 read with Section 34 of IPC.

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Judgement Reviewed by – HARIRAGHAVA JP

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The Thodu Tangle: The Karnataka High Court Validates Villagers’ Concerns on Bridge Construction.

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Samad A.A. & Ors. v. State of Karnataka & Ors.

Writ Appeal No.: 636 OF 2024

Court: High Court of Karnataka.

Coram: Hon’ble J. B.M. Shyam Prasad, J. T.G. Shivashankare Gowda.

The High Court of Karnataka delivered a judgment on May 2, 2024, on a writ appeal filed against an interim order dated 18.03. 2024. The interim order directed the Deputy Commissioner of Madikeri to remove a concrete road constructed on a thodu within four weeks.

 

FACTS OF THE CASE

The appellants are the residents of Mugatageri village in Kodagu District. A concrete road has been put up on the thodu (a small stream or water channel) in their locality, which might have resulted in the stagnation of water. The initial petition was filed by Sri K.K. Deepak against various state officials and local authorities responsible for the construction and maintenance of the road. After this, there were directions to remove the concrete road, but actions were yet to be taken due to the election.

 

LEGAL ISSUES

  1. Whether the appellant’s rights would be affected by the implementation of the interim order directing the removal of the concrete land?
  2. Whether the appellants should have been impleaded as parties in the writ petition before passing the interim order?

 

LEGAL PROVISIONS

  • Section 4  of the Karnataka High Court Act, 1961, under which the appeal was filed.
  • Rule 27 of the Writ Proceedings Rules, 1977, states that a certiorari writ petition must include certified or authenticated copies of the order to be quashed and, if applicable, copies of orders from all involved authorities.
  • Additionally, the case involves principles under environmental protection laws concerning water bodies.

CONTENTIONS BY THE APPELLANTS

The learned counsel for the appellants contended that the implementation of the interim order directing the removal of the concrete road would affect their rights as they were not made parties to the original writ petition. Thus, their rights and interests were only considered after passing the interim order. The petitioners argued that the construction of concrete roads over thodu may have led to significant water stagnation, affecting the local land properties. They also contended that despite the direction of the Tahsildar, the Panchayat Development Officer, to remove the concrete road, no action was taken.

CONTENTIONS BY THE RESPONDENTS

The learned Additional Government Advocate, representing the respondents, submitted that the interim order could not be implemented due to the elections during the time of order. However, he did not oppose the appellant’s contention that they should have been included and heard before passing the interim order to address their concerns appropriately.

ANALYSIS OF THE JUDGEMENT

The Hon’ble High Court recognized the environmental issues resulting from the construction of the road over the thodu. It observed that the grievances of the appellants regarding the interim order and their concerns were valid as they were not given an opportunity to present their case in the original writ proceedings. The Court acknowledged the delay due to elections and deemed it necessary to provide the appellants an opportunity to file the applications.

CONCLUSION

The case above is an example of the importance given to the principles of natural justice by the courts. The courts allowed the appellants to be heard before the implementation of an order that might affect their rights. This case highlights the necessity of ensuring that all parties are heard in judicial proceedings. It also underscores the importance of maintaining natural environments and addressing the impact of infrastructure projects on the environment.

Judgement reviewed by Maria Therese Syriac.

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Karnataka High Court Directs On Private Clubs Membership Suspension and Maintainability Of Writ Petition

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Case title: M.R.SANJAY VS THE STATE OF KARNATAKA

Case no: WRIT PETITION NO.12325 OF 2024 (GM-KSR)

Order on: May 2, 2024

Quorum: THE HON’BLE MR JUSTICE PRADEEP SINGH YERUR

 

Fact of the case:

In this case, The petitioner M.R. Sanjay, challenged the suspension of his primary membership from a private club (Respondent No. 4) via an order dated 19.04.2024 issued by the club’s Secretary. Sanjay sought a writ of mandamus directing Respondent No. 3 to instruct Respondent No. 4 to withdraw the suspension order and additional reliefs.

Legal provisions:

Articles 226 and 227 of the Constitution of India:

Article 226 empowers High Courts to issue certain writs for the enforcement of fundamental rights and for any other purpose.

Article 227 provides the High Courts with supervisory jurisdiction over all courts and tribunals within its jurisdiction.

 Contentions of Appellant:

The appellant argued that the suspension of his primary membership by the Secretary of Respondent No. 4 (the private club) was arbitrary and without proper justification. Sanjay contended that the suspension order violated the principles of natural justice, as he was not given a fair opportunity to present his case before the suspension was enforced. The appellant sought a writ of mandamus directing Respondent No. 3 to instruct Respondent No. 4 to withdraw the suspension order, arguing that such an order was necessary to rectify the injustice done to him.

 Contentions of Respondents:

The Senior Counsel for Respondent No. 4 argued that the writ petition was not maintainable under Articles 226 and 227 of the Constitution of India because the primary relief sought was against a private club and not against the state or any statutory authority. The respondents contended that the appropriate forum for challenging the suspension order was not the High Court under its writ jurisdiction but a different forum designated for addressing disputes related to private clubs. The respondents pointed out that since there was no direct involvement of the state or any statutory authority in the suspension order, the High Court should not entertain the writ petition.

 Court analysis:

The Court acknowledged the contention of the respondents regarding the maintainability of the writ petition. It agreed that since the primary relief sought was against a private club (Respondent No. 4), the writ petition might not be the appropriate legal recourse under Articles 226 and 227. The Court noted that the petitioner had other legal remedies available to challenge the suspension order, such as approaching the appropriate forum designated for disputes involving private clubs. Despite the maintainability issue, the Court took into account the petitioner’s request to have his representations considered. The petitioner expressed satisfaction if Respondent No. 3 was directed to consider his representations expeditiously. The writ petition was disposed of with directions to Respondent No. 3 to consider the petitioner’s representations and with the liberty granted to the petitioner to pursue other appropriate legal remedies against the suspension order. The Court explicitly stated that it has not expressed any opinion on the merits of the matter.

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Judgement Reviewed By- Antara Ghosh

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Karnataka High Court Upholds Dismissal of Bank Manager for Fraud and Corruption: Disciplinary and Criminal Convictions Validated

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 Case title:   VIJAYA BANK VS M RAVINDRA SHETTY

Case no.:   WRIT APPEAL NO. 7791 OF 2003 (S-DIS)

Dated on: 04th May 2024

Quorum:  Hon’ble. MR Justice KRISHNA S DIXIT and HON’BLE MR JUSTICE RAMACHANDRA D. HUDDAR

FACTS OF THE CASE

The respondent-employee who was in the Senior Manager Cadre i.e., MMGS-III was charged for certain lapses in relation to lending money to the fictitious persons without duly securing the repayment of loans. This happened during the period between 02.06.1986 and 11.05.1990. On account of this, the bank has been put to a huge financial loss. The disciplinary proceedings having been held, penalty order by way of dismissal from service came to be passed by the Competent Authority on 03.04.1997. The Departmental Appeal laying a challenge to the same came to be negatived by the Appellate Authority namely the General Manager (Personnel) on 05.08.1997. In the meanwhile, the same set of facts had resulted into the prosecution of employee in Spl.CC No.141/2005 for the offences punishable u/ss. 120B r/w Secs.420, 468, 471 of IPC and u/ss.13(1)(d) & Sec.13(2) of the Prevention of Corruption Act, 1988. The charges having been framed, trial was held by the Criminal Court that eventually resulted into his conviction vide order dated 19.06.2010 and he was sentenced to undergo a Simple Imprisonment for a period of 3 years coupled with levy of fine of Rs.70,000/- in aggregate, with a usual default clause. His Criminal Appeal No.664/2010 c/w Crl. Appeal No.678/2010 came to be negatived by a learned Single Judge of this court vide order dated 19.09.2022. The matter having been carried in SLP No.12145/2022, the Apex Court vide order dated 02.01.2023 granted some reprieve to him. The sentence came to be modified by reducing the period of Imprisonment from three years to one year; however, the fine came to be enhanced from Rs.70,000/- to Rs.2 lakh.

 ISSUES

  • Whether the disciplinary proceedings conducted by the bank and the subsequent penalty of dismissal from service imposed on the respondent-employee were valid and justified.
  • Whether the writ court overstepped its jurisdiction by interfering with the disciplinary authority’s decision, considering that its role is limited to reviewing the decision-making process rather than the decision itself.
  • Whether the involvement of the Central Vigilance Officer in the disciplinary proceedings was justified and in compliance with Regulation 19 of the Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981.
  • Whether these developments provide additional grounds for the bank’s decision to dismiss the respondent-employee from service.

LEGAL PROVISIONS

The Indian Penal Code (IPC)

Section 120B (Criminal Conspiracy): This section deals with the punishment for criminal conspiracy.

Section 420 (Cheating and Dishonestly Inducing Delivery of Property): This section punishes cheating and inducing delivery of property.

Section 468 (Forgery for Purpose of Cheating): This section deals with forgery intended for the purpose of cheating.

Section 471 (Using as Genuine a Forged Document or Electronic Record): This section punishes using a forged document as genuine.

Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988

Section 13(1)(d) (Criminal Misconduct by a Public Servant): This section deals with the criminal misconduct by a public servant involving abuse of position or obtaining pecuniary advantage.

Section 13(2) (Punishment for Criminal Misconduct): This section prescribes the punishment for criminal misconduct by a public servant.

Section 10(1)(b)(i) of the Banking Regulation Act, 1949 This section mandates the termination of an employee convicted of an offence involving moral turpitude.

Vijaya Bank Officer Employees (Discipline and Appeal) Regulations 1981

Regulation 6 (Procedure for Disciplinary Action): Outlines the procedure to be followed for disciplinary action against bank officers.

Regulation 11 (Penalties): Lists the penalties that can be imposed on bank officers for misconduct.

Regulation 19 (Role of the Central Vigilance Officer): Details the involvement of the Central Vigilance Officer in disciplinary proceedings.

Central Vigilance Commission Act, 2003

Section 3 (Establishment of Central Vigilance Commission): Establishes the Central Vigilance Commission and outlines its functions.

CONTENTIONS OF THE APPELLANT

The Learned Panel Counsel appearing for the appellant-bank seeks to falter the impugned order of the learned Single Judge arguing that: Once the disciplinary proceedings are duly held and penalty order has been passed, a Writ Court should be loath to interfere and it is more so when delinquent employee’s departmental appeal has been negatived. Secondly, on the same set of facts the employee having tried is convicted & sentenced for the offences involving moral turpitude. This happened subsequent to disciplinary proceedings and therefore even otherwise he is liable to be discontinued from service in terms of Sec.10(1)(b)(i) of the Banking Regulation Act, 1949. He has placed reliance on certain rulings in support of his submission. So contending, he seeks for allowing of the appeal. As already mentioned above, there is none to controvert the above submission from the side of respondent-employee. Learned counsel for the appellant is right in contending that no error has been committed by the management in taking the opinions of Central Vigilance Officer inasmuch as, such a course is internalized vide Regulation 19 of Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981. The CVC is constituted under Section 3 of the Central Vigilance Commission Act, 2003 and it has statutory duties. One such duty is to advice the banks in matters of disciplinary proceedings of the kind. that the apprehension of the employee that the decision was taken under pressure, could not be ruled out. However, the ratio in these decisions could have been invoked from the side of delinquent employee, had there been no provision like regulation 19 of 1981 Regulations. Such a provision was conspicuously absent in the aforesaid two decisions. This aspect has not been discussed in the impugned order even though it was very essential. Mr. Sawkar is also right in contending that there is a wealth of material on record that justified dismissal of the delinquent employee. That being the position, we hardly find any reason for upsetting the findings of guilt as recorded by the Enquiry Officer and accepted by the disciplinary authority while awarding the punishment of dismissal from service. The same has been examined by the Appellate Authority who has upheld the same. Therefore, the impugned order of the learned Single Judge who has treated the matter as if he was sitting in appeal suffers from legal infirmity and therefore cannot be sustained. It hardly needs to be reiterated that the focal point of examination of record in writ proceedings is the decision-making process and not the decision itself. Such an approach is not reflected in the impugned order. Thus, the same suffers from grave infirmities warranting our interference.

 CONTENTIONS OF THE RESPONDENTS

SRI.MOHITH KUMR K., ADVOCATE-ABSENT

 COURT’S ANALYSIS AND JUDGEMENT

THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED The Apex Court at para 16 has specifically stated that the offences punishable inter alia under the provisions of PC Act, 1988 do involve moral turpitude. Apparently, the respondent-employee in the subject Criminal Case has been convicted & sentenced not only for the offences punishable under the aforesaid provisions of IPC but also u/ss.13(1)(d) & 13(2) of the PC Act. The provisions of Section 10(1) of the 1949 Act enact a Parliamentary injunction to the bank to discontinue the employment of a person who is convicted for an offence involving moral turpitude, whether he is sentenced or not. In other words, mere conviction results into the obligation to disrupt employer-employee relationship. This provision leaves with the bank no discretion to disobey the direction. It is relevant to state that there is no challenge to the vires of this provision, which continues on the Statute Book with impunity & efficacy. When one is convicted for the offence involving Sec.420, 468 & 471 of IPC, it cannot be contended that his conduct does not involve moral turpitude. Once an employee of a bank is convicted for an offence involving moral turpitude as has happened in this case, he is liable to be discontinued from employment as discussed above. However, the text of Sec.10(1)(b)(i) does not indicate as to whether such disruption of vinculum juris is by way of dismissal or discharge implicatory. When moral turpitude is involved and the bank is put to considerable financial loss, one can safely assume that the legislative intent is dismissal of the delinquent employee. True it is that the respondent-employee has been dismissed from service after holding a disciplinary enquiry in terms of Regulation 6. We are adverting to the provisions of Regulation 11 only as an additional ground that has been generated subsequent to disciplinary proceedings that eventually resulted into dismissal from service and after the disposal of writ petition. As already mentioned above, there were criminal appeals that ended in vain. Matter was carried forward to the highest court of the country that did not set aside the conviction although the period of imprisonment was reduced; in fact, fine has been enhanced almost three-fold. All this subsequent development adds extra merits to the case of appellant bank and against the respondent – employee. In the above circumstances, this appeal succeeds the impugned order of learned Single Judge is set aside and respondent-employee’s writ petition is dismissed, costs having been made easy.

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Judgement Reviewed by – HARIRAGHAVA JP

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Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

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Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

Case title: MR. ABDUL AZEEM VS STATE OF KARNATAKA

Case no.: WRIT PETITION No.17396 OF 2023 (GM – RES)

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE M. NAGAPRASANNA.

FACTS OF THE CASE

The petitioner claims to be a highly qualified citizen having M.A., LL.B. degree and retired as Assistant Police Commissioner and is known for his scientific investigation of high-profile criminal cases. The petitioner was also a Member of the Legislative Council and later in the year 2019 was appointed as the Chairman of the Commission for a period of three years (hereafter referred as the ‘first tenure’). The appointment was in terms of Sections 3 and 4 of the Karnataka State Minorities Commission Act, 1994 (hereinafter referred to as ‘the Act’ for short). The petitioner completes his first tenure on 15-10-2022. On completion of first tenure, an order comes to be passed continuing the petitioner as Chairman of the Commission for another term of three years, for it come to an end on 15-10-2025. When the petitioner was functioning as Chairman of the Commission, the men who man the Government changed. On 22-05-2023 a tippani emerges from the office of the Chief Minister which is communicated by the Chief Secretary to all the Departments. The communication was that the nominations made by the earlier Government will have to be annulled. In furtherance of the aforesaid communication/tippani a Notification comes to be issued on 22-05-2023 by which the continued nomination of the petitioner/2nd tenure is cancelled. The petitioner represents to the respondent/State on 24-05-2023 seeking to withdraw the said Notification. Owing to the representation, a Notification comes to be issued on 24-05-2023 withdrawing the Notification dated 22-05 2023 whereby the notification which cancelled the nomination of the petitioner for the second tenure comes to be withdrawn. The petitioner continues as Chairman of the Commission. The petitioner between the dates 22-05-2023 and 24-05-2023 had submitted a representation 23-05-2023 seeking consideration of the said representation to complete the term as a chairman for another 2 years and 5 months. When there was delay in consideration of the said representation, he had knocked at the doors of this Court in the subject petition by filing it on 05-08-2023. This Court initially issued notice to the respondents. During the pendency of the petition, it appears, the Government issues a Notification on 15-12-2023 cancelling the nomination of the petitioner as Chairman of the Commission. Therefore, the petitioner continues to function as Chairman of the Commission. The State files an application seeking vacation of the interim order and the petitioner files rejoinder to the statement of objections and objections to the application seeking vacation of the interim order. The matter was heard. When it was pointed out that there is no challenge to the order dated 15.12.2023, an amendment comes to be filed by the petitioner which is directed to be taken along with the main matter. With the consent of parties, the matter was heard.

 

ISSUES

  1. whether the petitioner would have any right to continue in the nominated post, which was at all times subject to the pleasure of the State?

LEGAL PROVISIONS

Constitution of India

 ARTICLE 226: Article 226(1) it states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose.

Karnataka State Minorities Commission Act, 1994

Section 3: Constitution of the Commission

This section outlines the formation and composition of the Karnataka State Minorities Commission, including the appointment of the Chairman and other members.

Section 4: Term of Office and Conditions of Service of Chairman and Members

Sub-section (1): Specifies that the Chairman and other members shall hold office for a term of three years and that their tenure is subject to the pleasure of the Government. This implies that their term can be curtailed by the Government at any time.

Sub-section (2): Details other conditions of service for the Chairman and members, which may be prescribed by rules.

Section 5: Disqualifications for Office of Membership

This section lists specific grounds on which a member can be disqualified from holding office.

CONTENTIONS OF THE APPELLANT

The learned senior counsel appearing for the petitioner submits that the appointment of the petitioner was for a fixed tenure of three years on certain terms and conditions. It was continued for another period of three years on the same terms and conditions. Therefore, it becomes an appointment with fixed tenure and the order which withdraws or cancels the nomination or appointment as the case would be, is arbitrary and misuse of power of pleasure that is available to the State to remove any person who is nominated. The learned senior would seek to place reliance upon several judgments of the Apex Court and that of this Court, all of which would bear consideration qua their relevance. n the rejoinder to the submission of the learned Advocate General, the learned senior counsel would submit that the State in its application seeking vacation of the interim order has indicated that there were several misconducts or illegalities on the part of the petitioner while discharging his duties as Chairman. Therefore, the removal of the petitioner would come within Section 5 of the Act and if it is under Section 5, it could not have been passed without following the principles of natural justice. It is her submission that no notice even issued and the petitioner is removed casting a stigma. She would seek quashment of the order.

CONTENTIONS OF THE RESPONDENTS

The learned Advocate General would take this Court through the Act with particular reference to Section 4. The nomination of the petitioner even if it is for a term, the nomination is in terms of Section 4 of the Act. Section 4 of the Act itself indicates that the chairperson of the Commission will be functioning subject to the pleasure of the Government. Pleasure of the Government shall be that it would only be until further orders. He has been nominated and de-nominated now and no fault can be found with the order impugned cancelling the second tenure of the petitioner. He would also seek to place reliance upon several judgments, which would all bear consideration in the course of the order qua their relevance.

 

COURT’S ANALYSIS AND JUDGEMENT

Though the Apex Court has close to five decades ago considered the effect of doctrine of pleasure and has rendered judgments from time to time, it would suffice if reference is made to the Constitution Bench judgment rendered in 2010, in the case of B.P. SINGHAL v. UNION OF INDIA. It is not in dispute that the petitioner was appointed in terms of Section 4 of the Act supra. Sub-section (1) of Section 4 clearly indicates that the Chairman or other members shall hold office for a term of three years subject to pleasure of the Government. Therefore, the statute itself recognizes the right of the Government to tinker with the nomination prior to its expiry as it is subject to pleasure of the Government. There need not be any inference drawn whether it is a pleasure term or otherwise as the statute itself indicates that it is at the pleasure of the Government. The issue is, whether pleasure could be exercised at any time by the State in terms of Section 4(1) of the Act. Before embarking upon its consideration, I deem it appropriate to notice the line of law, both upholding the annulment of appointment / nominations and annulling such annulment of appointment / nominations by the Apex Court and this Court. The Apex Court holds that doctrine of pleasure however is not a licence to act with unfettered discretion to act arbitrarily, whimsically or capriciously. The said judgment has been followed by a Division Bench of this Court in B.K. UDAY KUMAR v. STATE OF KARNATAKA. The Apex Court holds that nomination by itself from its nature is that the nominees do not have any vested right to continue as it is not akin to a fixed tenure as found in statutory appointments. A Division Bench of this Court in the case of THE STATE OF KARNATAKA v. DR. DEEPTHI BHAVA. The Division Bench upturns the order of the learned single Judge holding that the nominees would hold office with the pleasure of the State and cannot be seen to project any right that is taken away when those nominations are cancelled. The Division Bench holds that principles of natural justice also do not apply to cancellation of nominations, unless it is shown that it is exercised in an arbitrary manner. The afore-quoted judgment in the case of KHUSRO QURAISHI was also concerning the nomination of Chairman of the Commission under the Act. The Division Bench holds that Section 4 itself uses the expression subject to pleasure of the Government. Therefore, it cannot be said that it is arbitrary on the part of the State to invoke the mandate of the statute. If the case of the petitioner is considered on the touch stone of the law laid down by the Apex Court and on the coalesce of the reasoning rendered therein what would unmistakably emerge is, that no right of the petitioner is taken away. The petitioner is a nominee who is nominated under Section 4 of the Act. Section 4 itself indicates that it is at the pleasure of the State. It is exercised and he is de nominated. Such de-nomination of a nominee cannot be questioned on the ground that it is arbitrary. Much reliance is placed by the learned senior counsel for the petitioner in the case of B.P. SINGHAL. The same would not merit any acceptance, as the said judgment is considered by three Division Benches of this Court subsequent to the judgment of the Apex Court and have all held that if the statute indicates that it is subject to the pleasure, a person who is nominated subject to such pleasure cannot make a hue and cry about cancellation of such nomination. The averment is that there are several misconducts and illegalities on the part of the petitioner. A statement in the application seeking vacation of interim order cannot generate a right in the petitioner, which the petitioner in law does not have. Even then, any such averment can never supersede the rigour or mandate of the statute. Taking cue from the aforesaid paragraph the learned senior counsel elaborates her submission by strenuously trying to bring in the case of the petitioner under Section 5 of the Act, to contend that if it is removal under Section 5, notice ought to have been issued. Section 5 deals with disqualification for office of membership. The reason for such disqualification is found in clauses (a) to (g) of sub-section (1) of Section 5 and if those clauses are to be invoked and the incumbent is to be removed, it is then a reasonable opportunity of being heard should be granted. The petitioner is not disqualified on any ground whatsoever. He has been de-nominated, and it is a de-nomination simpliciter exercising State’s right under Section 4 of the Act. This submission of the learned senior counsel for the petitioner, on this score also does not merit any acceptance. In the light of none of the submissions of the learned senior counsel for the petitioner being acceptable, the petition deserves to be rejected. The writ petition is dismissed. Interim order if any subsisting, shall stand dissolved. Consequently, pending applications, if any, also stand disposed.

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Judgement Reviewed by – HARIRAGHAVA JP

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