High Court Dismisses Plea Challenging Transfer Of Investigating Officer Probing Alleged Fraud Perpetrated In Karnataka Bhovi Development Corp

A division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit dismissed the petition filed by Gulihatti D Shekar and said “The Government being the guardian of the public interest and being the principal employer knows, which official should be transferred to what place and which official should be retained for accomplishing the task. The officials come and go; the process however would continue unhindered.”

The petitioner argued that when the investigation was halfway through, the officer was being shifted by way of transfer or otherwise to some other place. It was alleged that this was politically motivated and designed to hush up the conspiracy of many politically influential persons.

Therefore, the petitioner prayed that the said officer be continued with and those tainted ones should be suspended. He also sought a direction to retain the present Managing Director, General Manager and other staff in the respondent Corporation till after the investigation was accomplished by submitting the Final Report.

The State opposed the plea saying it has no parallel in the legal realm, and that the prayers are lavishly made sans any material to substantiate the allegations.

It was submitted that which officer should be placed and continued in which position, is a matter left to the discretion of the Executive and that nobody can interfere and that similarly, the decision to suspend the civil servants was a matter that pertained to the domain of the Executive.

The bench on going through the records said “It hardly needs to be stated that the officials of the Government have a specified retention period as governed by the Transfer Guidelines. If the transfer takes place in violation of these guidelines, it is for the aggrieved official to seek redressal in accordance with law and a third party like the petitioner cannot be permitted to lay a challenge to the displacement in the guise of espousing the public interest. Ordinarily, transfers are effected by the Government in the public interest itself, cannot be discounted.”

Rejecting the prayer for retention of the officer the bench said that the submission that transfer of the Investigating Officer would prejudicially affect the ongoing investigation cannot be sustained in the absence of many evidence to demonstrate the same.

It added that it cannot be assumed that the Government does not understand the implications of periodically transferring the officials even in the Police Department.

The Bench observed that the Constitution was founded on certain Basic Features and one of them was the Doctrine of Separation of Powers which mandates that each of the organs of the State should function within the sphere earmarked for it and show due deference to the decisions of the other.

It opined that the Government being the guardian of public interest and being the principal employer knows which official should be transferred to what place and which official should be retained for accomplishing the task. The officials come and go; the process however would continue unhindered, it held.

It added “This applies to the prayer for the retention of the officials of the respondent-Corporation. It hardly needs to be stated that no one is inevitable to the State and the System, although every one's contribution is significant. At times, retention of certain officials may mar the ongoing investigation process. The suspension of Public Servants/Civil Servants is a matter governed by the Conduct and Discipline Rules that are extant. It is a matter left to the domain of the employer and a third party being a busy body cannot be permitted to poke his nose, to say the least. It is not the case of the petitioner that the Government of the day does not understand things, the strong presumption being that it does.”

Dismissing the petition the court said that there were no elements of public interest that the petitioner sought to argue and that his claims did not generate confidence in the mind of the court.

Appearance: Advocate Amruthesh N P for Advocate Shivanagol Veerbhadra for Petitioner.

AGA Niloufer Akbar for R1 TO R3 & R5.

Citation No: 2023 LiveLaw (Kar) 489.

Case Title: Gulihatti D Shekar AND State of Karnataka & Others

Case No: Writ Petition No 16268 OF 2023.