Karnataka High Court
Smt Bharathi S vs The State Of Karnataka on 19 May, 2025
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WP No. 22235 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WP NO. 22235 of 2024(GM-KLA)
BETWEEN:
SMT. BHARATHI .S,
W/O. MAHESH.K,
AGED ABOUT 53 YEARS,
WORKING AS EXECUTIVE ENGINEER(LAKE),
BRUHATH BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560 002.
...PETITIONER
(BY SRI.M.S.BHAGAWATH, SR. COUNSEL, FOR
SRI. SATISH .K, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIKASA SOUDHA, BENGALURU-560 001.
2. THE BRUHATH BENGALURU
MAHANAGARA PALIKE,
REPRESENTED BY ITS CHIEF COMMISSIONER,
N.R. SQUARE, BENGALURU-560 009.
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WP No. 22235 of 2024
3. THE KARNATAKA LOKAYUKTHA,
REPRESENTED BY ITS REGISTRAR,
M.S. BUILDING,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI.V.SHIVAREDDY, AGA FOR R1, SRI.B.L.SANJEEV, ADVOCATE FOR R2, SRI.VENKATESH S.ARABATTI, ADVOCATE FOR R3) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM RESPONDENTS THE PERTAINING TO THE IMPUGNED ENTRUSTMENT ORDER DATED 18.01.2022 (ANNEXURE-P), THE IMPUGNED ARTICLES OF CHARGE DATED 23.02.2022 (ANNEXURE-Q), THE IMPUGNED ENQUIRY REPORT DATED 20.04.2024 (ANNEXURE-S), THE IMPUGNED RECOMMENDATION DATED 25.04.2024 (ANNEXURE-T) AND THE IMPUGNED SECOND SHOW CAUSE NOTICE DATED 10.06.2024 (ANNEXURE-V), ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.11.2024, COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, V. KAMESWAR RAO J., MADE THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE RAJESH RAI K -3- WP No. 22235 of 2024 CAV ORDER (PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) The present petition is filed by the petitioner with the following prayers:-
a) CALL for records from Respondents the pertaining to the impugned entrustment order dated 18/01/2022 (Annexure-P), the impugned Articles of Charge dated 23/02/2022 (Annexure-Q), the impugned enquiry report dated 20/04/2024 (Annexure-S), the impugned recommendation dated 25/04/2024 (Annexure-T) and the impugned second show cause notice dated 10/06/2024 (Annexure - V);
b) ISSUE WRIT OR ORDER quashing the impugned entrustment order dated 18/01/2022 bearing No.NaAaE 85 DMK 2021 issued by Respondent No. 1 (Annexure-P), the impugned Articles of Charge dated 23/02/2022 bearing No.Upalok-2/ DE/24/2022/ARE-10 issued by Respondent No. 3 (Annexure -Q), the impugned enquiry report dated 20/04/2024 bearing No.Upalok-2/DE/24/2022/ARE-10 issued by Respondent No. 3 (Annexure-S), the impugned recommendation dated 25/04/2024 bearing No. Upalok-2/DE/24/2022/ARE-10 issued by Respondent No. 3 (Annexure-T) and the impugned second show cause notice dated 10/06/2024 bearing No.NaAaE 85 DMK 2021 issued by Respondent No. 1 (Annexure - V), in the interest of justice and equity;-4- WP No. 22235 of 2024
c) PASS any such other Order which this Hon'ble Court deems fit, including the cost of the Writ Petition, in the interest of justice and equity.
2. It is the case of the petitioner and so contended by Sri. M.S.Bhagawath, the learned Senior Counsel appearing for her that, the petitioner was initially appointed on 20.01.2004 as Assistant Engineer in the Respondent No.2- Organization i.e., Bruhat Bengaluru Mahanagara Palike ( 'BBMP' in short). On 14.02.2008 she was promoted to the post of Assistant Executive Engineer. On 26.11.2010 while working as incharge Executive Engineer at Mahadevapura, she was regularly promoted to the post of Executive Engineer.
On 22.09.2012, she was sent on deputation by the Respondent No.1- The Department of Urban Development to the vacant post of Commissioner, Chigtradurga Municipal Council for a period of two years or until further orders, on her own pay scale. On 23.01.2013, the mother of the petitioner Smt.Lalithamma executed a Gift Deed in the name of Sri.Mahesh.K, the husband of the petitioner, in respect of -5- WP No. 22235 of 2024 a vacant site No.293 situated in the 5th Block, Ward No.31, Kelagote Municipal Colony, Chitradurga measuring 30x40 sq.ft.
3. According to Mr. Bhagawath, the said property comes under the purview of the office of the Sub-
Reigstrar, Chitradurga. It is his submission that, pursuant to the Registered Gift Deed dated 23.01.2013, the Katha of Site No.293 is transferred in the name of Sri. Mahesh K., the husband of the petitioner on 28.02.2013. According to Mr. Bhagawath, Smt. Lalithamma, the mother of the petitioner filed OS No.102/2013 before the Civil Court in Chitradurga, disputing the Registered Gift Deed dated 23.01.2013 and sought to cancel the Gift Deed dated 23.01.2013 and for Permanent Injunction restraining the petitioner and her husband, their agents, servants etc., from interfering with the peaceful possession and enjoyment of the suit schedule property therein. On 04.01.2014, the husband of the petitioner, the Defendant No.1 therein filed his written statement in the OS No.102/2013 contending that the suit preferred by the mother of the petitioner is -6- WP No. 22235 of 2024 false, frivolous and vexatious and prayed for the dismissal of the same. When the things stood thus, Smt. B. Umadevi was impleaded as Defendant No.2 on the said suit. She filed a written statement and counter-
claim contending that the property in dispute does not belong to either the plaintiff or the defendant No.1 therein and she is the absolute owner of the said property. She informs that the suit is still pending before the concerned Trial Court. On 03.05.2016, Smt. B. Umadevi filed a complaint before the 3rd Respondent-the Karnataka Lokayuktha with respect to the same matter against the petitioner. On 18.11.2016, an Additional complaint was made to the 3rd Respondent-Karnataka Lokayuktha reiterating the same. On 15.06.2018, the Deputy Registrar of Enquiries-05 attached to the 3rd respondent issued a Memorandum to the petitioner calling upon her to reply to the complaint given against her. On 16.07.2018, the petitioner replied to the said complaint contending that she has not committed any wrong with respect to effecting Katha in the name of her husband Sri. K. Mahesh, as she followed the due -7- WP No. 22235 of 2024 procedure for the same and the OS No.102/2013 is pending before the Civil Court and therefore, no enquiry can be made against her. On 20.04.2021, the 3rd respondent issued a report under Section 12(3) of the Karnataka Lokayuktha Act, 1984 (in short, Act of 1984) stating that the reply provided by the petitioner is not satisfactory and therefore, sought to entrust the matter of holding Departmental Enquiry to the 3rd respondent invoking Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957 ( in short, Rules 1957). Upon receipt of the 12(3) report, the Respondent No.1 passed an order entrusting the matter of holding departmental enquiry to the 3rd Respondent invoking Rule 14-A. It is in pursuance to the said entrustment, the Upa-Lokayuktha appointed Additional Registrar of Enquiries -10 as the Enquiry Officer to conduct the enquiry against the petitioner. On 23.03.2022, the Additional Registrar of Enquiries-10 issued Articles of Charge to the petitioner, whereunder the sole charge against the petitioner is that, when the petitioner was working as Commissioner of Chitradurga -8- WP No. 22235 of 2024 Municipal Council, she has misused her powers and altered the details in the Property Tax Register by rounding off the Site No.294 as Site No.293, which stands in the name of her mother Smt. Lalithamma and has illegally tampered the property documents and has ensured a Gift Deed is executed transferring the said property in the name of her husband Sri. Mahesh K. By doing so, the DGO ie., the petitioner herein has failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Government Servant and guilty of misconduct under Rule 3(1)(i) to (iii) of the Karnataka Civil Services (Conduct) Rules, 1966 (in short, KCS Rules 1966). On 20.40.2024, the Enquiry Officer, after the completion of the evidence, has submitted the report holding the charge against the petitioner as proved. On 25.04.2024, based on the enquiry report dated 20.04.2024, the Respondent No.3 issued the recommendation to Respondent No.1 to impose penalty of compulsory retirement on the delinquent officer/petitioner. On 10.06.2024, upon receipt of the Enquiry Report and recommendation, the -9- WP No. 22235 of 2024 Respondent No.1 issued the second show cause notice to the petitioner and directed the petitioner to submit reply to second show cause notice, within 15 days from the receipt of notice. After receiving the said show cause notice, the petitioner has submitted her representation to the same, seeking 45 days time to submit her reply to the second show cause notice.
4. The writ petition has been filed before this Court on 12.08.2024.
5. The submissions of Mr. Bhagawath, the learned Senior Counsel appearing for the appellant are primarily the following.
a) The impugned initiation of enquiry against the Petitioner by the 3rd Respondent is illegal and contrary to well established principles of law. Since the power of investigating a complaint by way of preliminary enquiry is vested with the Lokayuktha or the Upa Lokayuktha only. In this context, he referred to Section 9 of the Act, of 1984, which is a mandatory provision and runs as under:
"9. Provisions relating to complaint and investigations-
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WP No. 22235 of 2024
(1) XXXXXXXX
(2) XXXXXXXX
(3) Where the Lokayuktha or an
Upalokayuktha proposes, after making
such preliminary inquiry as he deemed fit to conduct any investigation under this Act, he.-
(a) shall forward a copy of the complaint and in the case of an investigation initiated suo-moto by him, the opinion recorded by him to initiate the investigation under sub-
section (1) or (2), as the case may be, of Section 7; to the public servant and the competent authority concerned;
(b) shall afford to such public servant an opportunity to offer his comments on such complaint or opinion recorded under sub- section (1) and (2) of section 7 as the case may be;
(c) may make such order as to the safe custody of documents relevant to the investigation, as he deems fit.
He stated, a bare reading of Section 9 of the Act, of 1984 clearly indicates that it is the Lokayuktha/Upa-Lokayuktha who shall hold or cause a preliminary inquiry and thereafter, decide as to desirability of the investigation into the matter; when forms an opinion on the basis of preliminary inquiry that there is a case for investigation and it is
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WP No. 22235 of 2024he who shall forward a copy of the complaint to the public servant and also to the competent authority concerned; the public servant shall then have an opportunity to offer his comments on the complaint. In the instant case, one Smt. B. Umadevi filed a complaint before the 3rd Respondent against the Petitioner, the 3rd Respondent who is vested with the power of conducting preliminary enquiry to determine whether it is a fit case for investigation has delegated its power to its subordinate officer and the subordinate officer has then issued a notice to the Petitioner forwarding the complaint and calling upon her to reply to the said complaint. Such being the case, the entire impugned departmental enquiry initiated against the Petitioner is liable to be quashed since the complaint is not forwarded by the Lokayuktha or the Upa-Lokayuktha to the Petitioner and the memorandum is issued by the In-charge Deputy Registrar of Enquiries-5. He relied on the Judgment of this Court in the case of BASAVARAJ AND ANOTHER v. THE STATE OF KARNATAKA AND ANOTHER (WRIT PETITION No.100553/2021 and CONNECTED MATTERS decided on 22/07/2021) wherein according to him it is held that the provisions of Section 9 of the Karnataka Lokayuktha Act, 1984 is mandatory provision. On this ground alone, the impugned departmental enquiry initiated against the Petitioner and all subsequent proceedings requires to be set at
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WP No. 22235 of 2024naught at the hands of this Hon'ble Court as it is void-abinitio.
b) He further contended that the very origin of the complaint filed by Smt. B. Umadevi against the Petitioner to the 3rd Respondent relates back to the title dispute between them with respect of vacant Site No.293 situated in 5th Block, Ward No. 31, Kelagote, Municipal Colony, Chitradurga measuring 30X40 square feet which now stands in the name of the husband of the Petitioner Sri. Mahesh K. Initially, the said property was in the name of the mother of the Petitioner Smt. Lalithamma. Thereafter, Smt. Lalithamma executed a registered gift deed dated 23/01/2013 in favour of her son-in- law Sri. Mahesh K. Since, at that relevant point of time, the Petitioner was working as Commissioner, Chitradurga Municipal Council, she has effected the Khatha transfer of the said property in the name of her husband based on the registered gift deed dated 23/01/2013. Thereafter, Smt. Lalithamma filed the Original Suit No. 102/2013 before the Hon'ble II Additional Civil Judge (Junior Division), Chitradurga disputing the registered gift deed dated 23/01/2013 and sought to cancel the said gift deed dated and for permanent injunction restraining the Petitioner herein and her husband, their agents, servants etc., from interfering with the peaceful possession and enjoyment of the suit schedule property therein.
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WP No. 22235 of 2024According to him when things stood thus, the complainant Smt. B. Umadevi has impleaded herself in the said Original Suit as Defendant No. 2 contending that the said property belongs to her. He stated the Original Suit No. 102/2013 is still pending before the Hon'ble II Additional Civil Judge (Junior Division), Chitradurga. When this being the case, there arises no occasion for the complainant to approach the 3rd Respondent because the very origin of that complaint i.e., the title dispute with respect of Site No. 293 situated in 5th Block, Ward No. 31, Kelagote, Municipal Colony, Chitradurga is still pending for consideration before the Trial Court. He stated that the Respondents even though had the knowledge of the above facts and circumstances have still initiated the enquiry against the Petitioner. Therefore, the action of the Respondents thereby setting in motion the enquiry against the Petitioner is wholly illegal and without jurisdiction.
c) He stated impugned initiation of departmental enquiry and all further proceedings by the Respondents are one which is without application of mind, illegal and contrary to the law laid down by this Court. He contended that the allegation in the complaint is with respect to a registered gift deed dated 23/01/2013 executed by the mother of the Petitioner in favour of the husband of the Petitioner and subsequent khatha
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WP No. 22235 of 2024transfer effected by the Petitioner based on such registered gift deed. He stated that there is bar contained under Section 8 (1) (b) read with Section 9 (5) (c) of the Act of 1984 to conduct enquiry by the Respondent No.3. Section 8 (1) (b) of the Lokayuktha Act reads as under:
(1) Except as hereinafter provided, the Lokayuktha an Upa-Lokayuktha shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action,-
(a) XXX
(b) if the complainant has or had any remedy by way of appeal, revision, review or other proceedings before the Tribunal (Court Officer or other authority and has not availed of the same.' According to him it is manifest from the above provision that the Lokayuktha or an Upalokayuktha shall not conduct any investigation under this Act in the case of a 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. In the instant case, the complainant has an alternative remedy before the jurisdictional Civil Court with regards to title dispute
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and cancellation of the registered gift deed. In fact, the complainant Smt. B. Umadevi has availed that alternative remedy before the jurisdictional Civil Court when she impleaded herself in the Original Suit No. 102/2013 which was filed by the mother of the Petitioner disputing the registered gift deed and the same is still pending for consideration before the II Additional Civil Judge (Junior Division), Chitradurga. Therefore, the Complainant having availed a more efficacious remedy available under the statutory rules cannot approach the 3rd Respondent again with respect to the same issue and avail two remedies for the same incident. It is also pertinent to note that all these facts and circumstances have been in the knowledge of the Respondents and the same is reiterated by the Petitioner time and again before them. It is a civil dispute which is given the colour of misconduct under the Conduct Rules which is impermissible in law. The law laid down by this Hon'ble Court in the case of THE STATE OF KARNATAKA AND ANOTHER v. Sri. RAGHAVENDRA M.R. AND OTHERS in WRIT PETITION No. 4260/2022 decided on 21/06/2022 aptly applies to the case. According to him the Division Bench of this Court has examined the ambit of Section 9 (5) (c) of the Act of 1984 and holds that the 3rd Respondent is not justified in receiving the complaint when more appropriate and efficacious remedy is available in
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WP No. 22235 of 2024law and which is availed by the aggrieved person. The very entertainability of the complaint at the hands of the 3rd Respondent is doubtful and therefore, the entire departmental enquiry right from initiation is required to be nipped at the bud. He stated, in the light of the above, Rule 8(1)(b) of the Act of 1984, applies in full force and hence the action of the Respondents thereby setting in motion the enquiry against the Petitioner is wholly illegal and without jurisdiction and is liable to be interfered with at the hands of this Court.
d) He further contended that the Petitioner is governed by the Karnataka Municipal Corporations Act, 1976 and the rules framed thereunder as she is an employee of the Respondent No. 2 Corporation. The Karnataka Government (Transaction of Business) Rules, 1977 was enacted to govern how the Karnataka Government conducts its business. The rules were created by the Governor of Karnataka using the powers given to him by clauses (2) and (3) of Article 166 of the Constitution of India. They replaced all previous rules on the subject. Since, the Petitioner is an employee of the 2nd Respondent Corporation and the matter in the above Writ Petition is with regards to transaction of the government, the said Rules, 1977 are applicable in the present case. He stated that the Petitioner is a Group-A Senior Scale Officer and therefore as per
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WP No. 22235 of 2024Item No. 9 in Schedule II of the said Rules, 1977 any proposals to refer any complaint or disciplinary matter against an officer equivalent in rank to an officer in the Karnataka Administrative Service (Group-A) Senior Scale and above to the Lokayuktha or Upa-Lokayuktha has to be submitted to the Hon'ble Chief Minister. The Item No.9 in Schedule II of the said Rules, 1977 is as under: -
SECOND SCHEDULE (CASES WHICH SHALL BE SUBMITTED TO THE CHIEF MINISTER)
1. XXX XXX
9. Proposals to refer any complaint or disciplinary matter against [an officer equivalent in rank to an officer in the Karnataka Administrative Service (Group-
A) Senior Scale and above] to the [Lokayuktha or an UpaLokayuktha.] The bare perusal of the above rules makes it clear that it is mandatory to refer any complaint or disciplinary matter against an officer equivalent in rank to an officer in the Karnataka Administrative Service (Group-A) Senior Scale and above to the Lokayuktha or Upa-Lokayuktha has to be submitted to the Hon'ble Chief Minister and the same is not complied in the present case. No proposal was made referring the complaint or disciplinary matter against
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the Petitioner to the Hon'ble Chief Minister considering the fact that Petitioner is a Group A Senior Scale Officer. The provisions of the Karnataka Government (Transaction of Business) Rules, 1977 is mandatory in nature in view of the law laid down by the Hon'ble Apex Court in the case of MRF LIMITED v. MANOHAR PARIKKAR reported in 2010 11 SCC 374 and the same is reiterated by this Court in the case of B M MUNIYAPPA v. THE STATE OF KARNATAKA reported in 2010 2 KLJ 54 (Para 8). Therefore, according to him the very initiation of enquiry against the Petitioner and all other further proceedings is one without authority of law and contrary to the Karnataka Government (Transaction of Business) Rules, 1977. On this ground as well the impugned departmental enquiry and all further proceedings is required to be set at naught at the hands of this Court.
e) He further contended that the impugned show cause notice dated 10/06/2024 issued by the 1st Respondent is also one without authority of law. The Karnataka Government (Transaction of Business) Rules, 1977 was enacted to govern how the Karnataka Government conducts its business. The Rule 18 and 19 of the said Rules, 1977 provides for how orders or instruments made or executed by or on behalf of the Government shall be expressed. In this context, he stated, Rule 18 and 19 of the
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WP No. 22235 of 2024Rules 1977 are mandatory provisions and runs as under:
18. All orders or instruments made or executed by or on behalf of Government shall be expressed to be made or executed in the name of the Governor of Karnataka.
19. Orders and instruments made and executed in the name of the Governor of Karnataka, shall be authenticated by the [signature of an Additional Chief Secretary, a Principal Secretary, a Secretary, a Special Secretary, an Additional Secretary] a Joint Secretary, a Deputy Secretary, an Under Secretary. [a Desk Officer] [or any other officer holding these posts on ex-officio basis] or by such other officer as may be specially empowered in that behalf by the Governor in the manner specified below, and such signature shall be deemed to be the proper authentication of such order or instrument.
By Order and in the name of the Governor of Karnataka (Signature) Name and designation of the Officer authorized to sign According to Mr.Bhagawath, a bare reading of the above provision would indicate that any orders or instruments made or executed by or on behalf of
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WP No. 22235 of 2024Government shall be expressed to be made or executed in the name of the Governor of Karnataka and the same shall be authenticated by the signature of authorised officer as described in Rule 19 of the Rules, 1977. In the present case, the impugned second show cause notice dated 10/06/2024 is issued by the Under Secretary of the 1st Respondent Department and the same is not issued or executed on behalf of the Government or expressed to be made or executed in the name of the Governor of Karnataka. This being the case, the impugned second show cause notice would clearly indicate non-compliance of the mandatory provisions of the Karnataka Government (Transaction of Business) Rules, 1977 and all the procedural lapses in the enquiry conducted against the Petitioner. Therefore, on this ground as well, the impugned show cause notice dated 10/06/2024 is liable to be quashed.
f) He stated, Impugned Order of Entrustment dated 18/01/2022 is wholly illegal and contrary to the mandate as provided under Section 12(4) of the Act, 1984. The Division Bench of this Court in SANJEEV KUMAR v. STATE OF KARNATAKA AND OTHERS reported in 2020 SCC OnLine Kar 3339 held that the provision contained in Section 12(4) of the Act of 1984 is mandatory in nature and non- compliance of the same would vitiate the entire
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WP No. 22235 of 2024proceedings. This Court in the case of KARNATAKA LOKAYUKTHA AND OTHERS v. H. N. NIRANJAN reported in 2017 (2) AKR 563 as well as Dr. K. LALITHA v. STATE OF KARNATAKA reported in 2019 (4) KLJ 344 and K. S. NANJEGOWDA v. STATE OF KARNATAKA reported in 2021 (1) KLJ 498 reiterated the said principle. This Court directed the State Government to strictly adhere to the mandatory provisions provided under Section 12(4) of the Act, 1984 and to issue Circular in this regard. The State Government pursuant to the direction issued by this Hon'ble Court has formulated the procedure to be followed and issued the Circular on 09/11/2020. The said Circular dated 09/11/2020 mandates that there shall be a speaking order by the competent Authority while passing the Order of entrustment under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. As could be seen from the impugned Order of entrustment dated 18/01/2022, there is absolutely no application of mind, which is contrary to the Circular dated 09/11/2020 and on this count alone, the impugned Order of entrustment is liable to be set aside.
g) He further contended that the impugned second show notice dated 10/06/2024 issued by the 1st Respondent has pre-determined the penalty of compulsory retirement to be imposed on the
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WP No. 22235 of 2024Petitioner based on the recommendation of the Upa- Lokayuktha. The text and context of the second show cause notice issued by the 1st Respondent makes it clear that the Petitioner has to reply to it contending why the "penalty of compulsory retirement" should not be imposed on her within 15 days from the date of issuance of the second show cause notice. The Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 provides for procedure in cases entrusted to the 3rd Respondent and Rule 14A (2)
(e) of the Rules, 1957 provides for further action to be taken by the Government upon receipt of the enquiry report and recommendation of the Lokayuktha or the Upa-Lokayuktha. He refers to Rule 14A (2) (e) of the Rules, 1957 and the same runs as under: -
14A. Procedure in cases entrusted to the Lokayuktha:
XXX (2) (a) Where on investigation into any allegation against
(i) a member of the State Civil Services Group-"A" or Group-"B" or XXX
(d) After the inquiry is completed, the record of the case along with the findings of the Inquiring Officer and the
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recommendation of the Lokayuktha or the Upa-Lokayuktha, as the case may be, shall be sent to the Government.
(e) On receipt under clause (d) the Government shall take action in accordance with the provisions of Rule 11A and in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties specified in Rule 8.
According to him, a bare perusal of the above provisions clearly indicates that the 1st Respondent can only forward the enquiry report along with the recommendation calling upon the delinquent officer to submit their defence statement as to why penalty should not be imposed on them but in the case at hand, the 1st Respondent has gone ahead and prejudged the penalty of compulsory retirement in the second show cause notice itself merely because the Upa-Lokayuktha has recommended the penalty of compulsory retirement to be imposed on the Petitioner and has called upon her to submit her reply for the same, which is contrary to the law laid down by the Hon'ble Apex Court in the case of HIMACHAL PRADESH STATE ELECTRICITY BORAD LTD. v. MAHESH DAHIYA reported in 2017 (1) SCC 768 (Paras 26 and 31).
h) It is further submitted that the Petitioner was initially appointed by the Respondent No. 2
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WP No. 22235 of 2024Corporation. Therefore, the Disciplinary Authority for the purpose of initiating enquiry against the Petitioner is the 2nd Respondent Corporation and not the 1st Respondent Department. The employees of the 2nd Respondent Corporation are governed by the Karnataka Municipal Corporation Act, 1976. The provisions of the Karnataka Municipal Corporations Act, 1976 pertaining to the Bruhath Bengaluru Mahanagara Palike is repealed by the Bruhath Bengaluru Mahanagara Palike Act, 2020. He stated that, order of appointment of the Petitioner as well all the orders of promotion are issued by the 2nd Respondent Corporation itself. Therefore, the 1st Respondent Department is not the competent authority to initiate enquiry or take any disciplinary action against the Petitioner. On this ground as well, the impugned departmental enquiry and all further proceedings is required to be set at naught at the hands of this Hon'ble Court."
5. On the other hand Sri. V. Shivareddy, the learned AGA appearing for Respondents No.1 & 2 would submit the following:-
xxx xxx xxx xxx "1. The Petitioner was working as Executive Engineer in BBMP; she was deputed as Municipal Commissioner, Chitradurga for a period of two years.
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WP No. 22235 of 2024She was taken charge on 24.09.2012 and she was worked till 01.03.2013 nearly 7 months and she has faced enquiry. Apart from this enquiry, the punishment of recovery of Rs.9,43,168/- and one increment was imposed upon the Petitioner on 24.08.2023. That itself shows the conduct of the Petitioner is not satisfactory to continue as a Government Servant.
2. He submitted that the considerable point in the above Writ Petition is that the Petitioner while working as Municipal Commissioner, Chitradurga was issued the tax paid receipt to her mother and for the Site No.293 and round up the Site No.294 since the Site No.294 is in the name of her mother - Smt. Lalithamma in which they have constructed building and it was existing since 20 years. Smt. B.Umadevi who is the owner of Site No.293 made a complaint on 03.05.2016 before the Lokayuktha. Since the Petitioner has misused her powers and altered Site No.293 measuring to an extent of 30X45 located at 5th Block, 5th Cross was transferred through a gift deed to her husband K.Mahesh. Upon which, Smt. B.Umadevi, W/o.Rudranna has made one more complaint to the Registrar-5,
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WP No. 22235 of 2024Karnataka Lokayuktha, M.S.Building, Dr.B.R.Ambedkar Veedhi, Bengaluru on 18.11.2016. Upon which, enquiry notice was issued by the Registrar-5, Karnataka Lokayuktha to collect the materials for the purpose of preparing a report under Section 12(3) of the Act of 1984 by the Upa-Lokayuktha-2. Accordingly, the Upa-
Lokayuktha-2 has prepared a report under Section 12(3) of the Act of 1984 on 07.02.2021 and the same was forwarded to the Government for seeking entrustment for conducting regular enquiry under Section 14(A) of Act of 1984. The Government after due verification of the records available along with the report by the Upa-Lokayuktha-2, issued permission to conduct full pledged enquiry. Thereafter, the Lokayuktha has followed the procedure and issued the Article of Charges dated 23.02.2022 to the Petitioner by the Assistant Registrar, Enquiries-10, Karnataka Lokayuktha, Bengaluru. Charges are as follows:-
"1. Accused Government Employee Mrs. S.Bharathi, former Commissioner, City Municipal Council, Chitradurga (originally an Executive Engineer, BBMP) during her tenure as Commissioner of Chitradurga City Municipal Council:
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During your tenure as Commissioner of Chitradurga City Municipal Council, you altered the records in the property tax register of Chitradurga City Municipal Council, page number 219, entry number 8, Site No.257/1589/8619/7270/294, Site No.294 (currently in the name of Mrs. Lalithamma) by circling 294 and writing 293. Despite having constructed a house on Plot No.294 around 20 years ago, you recorded it as a vacant site in the municipal records, illegally tampered with the records of the said plot, executed a gift deed in favour of your husband, Mr. K.Mahesh, misused your authority, tampered with public records, committed dereliction of duty, and misconduct, thereby violating Rule 3(1)(i) to (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
2. The Complainant, Mrs. B.Umadevi, wife of Rudranna, retired Assistant Director of Treasury, Kelagote Municipal Colony, Chitradurga District (hereinafter referred to as the Complainant), has filed a complaint against Mrs. S.Bharathi, former Commissioner, City Municipal Council, Chitradurga District (hereinafter referred to as the respondent). The complaint has been taken up for investigation.
According to the Complainant, she purchased vacant Plot No.293, measuring 30X45, located at 5th turn, 5th block, Municipal Colony, Chitradurga Town, from Mr. Nagareddy through a registered sale deed dated 07.09.2000. On 09.11.2015, while cleaning the plot for a ground-breaking ceremony to build a house,
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WP No. 22235 of 2024Mrs. Lalithamma, wife of the late Siddayya, the owner of the adjacent Plot No.294, obstructed the work and claimed that Plot No.293 belonged to her. Upon obtaining and verifying the records from the concerned Sub-Registrar's office, it was found that Mrs. Lalithamma had transferred her Plot No.294 to her son- in-law, Mr. K.Mahesh, through a gift deed. The Complainant further alleged that Mrs. Lalithamma's daughter, Mrs. S. Bharathi, who was then serving as the Commissioner of Chitradurga City Municipal Council, had misused her position to record Plot No.294 as 293 during her tenure and filed complaint with the Lokayuktha on 03.05.2016.
6. He submitted the Petitioner was denied the charges except that she has not produced proper material while conducting the enquiry and also she did not present any witness in her defence and would not examined any witness on her behalf.
7. He submitted that the Enquiry Officer has answered the 4 charges, which are as follows:-
"The following points emerged from my decision:
Point 1: During the tenure of the D.G.O. as Commissioner of Chitradurga Municipality from 24.09.2012 to 01.03.2013, in the property tax register of Chitradurga Municipality, page number 219, serial number 8, plot number 257/1589/8619/7270/294 (in the name of her late mother - Lalithamma), plot number 294 was altered to 293. Despite a house being
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constructed on plot number 294 twenty years ago, it was recorded as a plot in the municipal records, and the records were illegally altered. A gift deed was made in the name of her husband, Mr. K.Mahesh, thereby misusing her authority, altering public records, committing dereliction of duty and misconduct under the Karnataka Civil Services (Conduct) Rules, 1966, Rule 3(1)(i) to (iii).
The D.G.O. denied the charges and stated that she would abide by the decision of the ongoing case O.S.No.102/2013 in the 2nd Additional Civil Court of Chitradurga.
After detailed enquiry, the Enquiry Officer has come to the conclusion that the charges are proved against the Petitioner. The same was forwarded to the Government (Disciplinary Authority). Accordingly, the Government has issued second show-cause notice on 10.06.2024 sought for explanation within 15 days from the date of issuance of said notice. The Petitioner submitted a representation on 16.07.2024 sought for seeking time for a period of 45 days. Considering the same, the Government has given time another 15 days to submit her explanation. Again, one more request has been made by the Petitioner for extension of time, for giving explanation to the notice. In the meanwhile, the Petitioner has approached this Court in the above writ petition questioning the show- cause notice and entire proceedings of the enquiry on the ground that the initiation of enquiry against the Petitioner by the
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WP No. 22235 of 2024Lokayuktha, the power of investigating a complaint by way of preliminary enquiry is vested with the Lokayuktha or the Upa-Lokayuktha only under Section 9(3) of the Karnataka Lokayuktha Act and also the Karnataka Government (Transaction of Business) Rules, 1977 was enacted to govern how the Karnataka Government conducts its business. The rules were created by the Governor of Karnataka using the powers given to him by Clauses (2) and (3) of Article 166 of the Constitution of India. On these above main grounds and also other grounds, the Petitioner assailing this Writ Petition.
8. He stated that the Petitioner has questioned the second show-cause notice by the Government on 10.06.2024 and other proceedings. Normally, a notice cannot be entertained by the Courts, the same issue was dealt in the case of Union of India /vs/ Vicco Laboratories reported in (2007) 13 SCC Page 270. Para 31 reads as under:-
"Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without
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exceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the show-cause notice stage should be rare and not in a routine manner. Mere assertion by the Writ Petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima-facie established to be so. Where factual adjudication would be necessary, interference is ruled out".
9. He submitted that this Court has dealt the issue in respect of preliminary enquiry in the case of the Hon'ble Lokayuktha and another /vs/ Prakash T.V. in W.P.No.29212/2017 (S-KSAT) and connected matters in para 43, the same was confirmed by the Hon'ble Supreme Court of India in Special Leave to Appeal (C) Nos. 13209-13210/2021 disposed of on 26.09.2023 reads as under:-
43. "In the light of the aforesaid judgment, the question of granting an opportunity of hearing as argued by the learned Counsel for Respondent No.1 while conducting a preliminary enquiry does not arise.
Respondent No.1 would certainly be entitled for grant of opportunity during the departmental enquiry to be conducted by the Lokayuktha establishment. It is a well settled proposition of law that in the matter of preliminary enquiry or fact-finding enquiry relating to departmental enquiries, even if an opportunity of
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WP No. 22235 of 2024hearing is not granted to the delinquent, it will not vitiate the departmental enquiry conducted by the disciplinary authority. The departmental enquiry itself is a complete trial wherein the employee gets full. opportunity to defend himself and therefore, merely because the procedure of Section 9 of the Act of 1984 has not been followed, the question of quashing the charge sheet only because of opportunity of hearing was not given during the preliminary enquiry does not arise. The Tribunal has erred in law and in fact in quashing the charge sheet".
He relied on the case of Karnataka Lokayuktha /vs/ State of Karnataka and others in W.P.No.35267/2018 (S-KSAT) and connected matter which was disposed of on 30.06.2021, para 19 reads as under:-
19. "There can be no recording of evidence in such a case and there can be no "investigation" in the strict sense of the term, but the Lokayuktha would "look into"
the available papers and submit a report thereon, indicating the reasonableness or otherwise of such administrative action. Such a report is only for internal purposes of the State Government to enable it to ponder over the next course of action. Therefore, the question of complying the provisions of Section 9(3)(a) and (b) of the Act of 1984 when an action of al Government servant is referred for investigation, would not arise. The judgment of a learned Single Judge of this Court in N.Gundappa (referred supra) is therefore
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declared as not good law, for the proposition that an investigation under Section 7(2-A) of the Act. of 1984 requires the compliance of Section 9(3)(a) and (b) of the Act of 1984. In that view of the matter, the finding of the Tribunal that the report of the Lokayuktha to the State Government was without complying Section 9(3)(a) and (b) of the Act of 1984 is set-aside".
Also in the case of Secretary to Government, Tamilnadu/vs/ D.Subramanyan Rajadevan reported in (1996) 5 SCC Page 334 has held as under in para 7:-
7. "As we are of the view that this being a case of corruption Rule 17 of the Civil Service Rules did not apply, it is not necessary to deal with the requirements of Rule 17 and the question whether the view of the Tribunal in that behalf is correct. We may, however, draw attention to the decision of this Court in Inspector General of Police /vs/ Thavasiappan wherein a similar rule in Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 was considered. In that case, it has been held that Rule 3(b) of the said Rules is a procedural provision and does not provide that the disciplinary authority itself should frame a charge and if a charge. memo is prepared by any other authority, then it has to be regarded as invalid. As regards the decision of this Court in Managing Director, U.P Warehousing Corporation/vs/ Vijay Narayan Vajpayee, to which our attention was drawn, we fail to appreciate how the decision can be of any help to the respondent.
There is no such principle of natural justice that before
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WP No. 22235 of 2024holding a regular departmental enquiry, the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for the written statement of defence before taking a decision to hold a regular departmental enquiry".
Further, the grounds raised by the Petitioner are that under the Karnataka Government (Transaction of Business), Rules, 1977 was enacted to govern how the Karnataka Government conducts its business. The rules were created by the Governor of Karnataka using the powers given to him by Clauses (2) and (3) of Article 166 of the Constitution of India. The same was put up for approval. Accordingly, the concerned Minister was approved for entrustment to conduct the enquiry and also entrustment order was passed on 18.10.2022 by order and in the name of the Governor of Karnataka. In the similar circumstances, the Hon'ble Supreme Court of India in the case of State of Madhya Pradesh V/s. Veerendra Kumar Tripathi reported in 2009 15 SCC 533 para 8 reads as under:-
"8. So far as the defect in sanction aspect is concerned, the circular on which the High Court has placed reliance needs to be noted. The Circular in question is dated 09.02.1988 the relevant portion reads as follows:-
"The Government also decided that before giving approval of prosecutions, the Principal Secretary, Law and Legal Department will obtain the advice of department concerned."
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WP No. 22235 of 2024A bare perusal of the paragraph shows that before giving approval for prosecution, advice of the department concerned was necessary. The question arises whether the absence of advice renders the sanction inoperative. Undisputedly the sanction has been given by the Department of Law and Legislative Affairs. The State Government has granted approval of the prosecution. As noted above, the sanction was granted in the name of the Governor of the State by the Additional Secretary, Department of Law and Legislative Affairs. The advice at the most is an interdepartmental matter.
4. So far as the exclusion of certain alleged income of relatives is concerned, it needs to be noted that these are matters of evidence and in such matters, the decision of this Court in State of Orissa Vs. Dubendra Nath Padhi is relevant. The High Court's judgment in this aspect does not suffer from any infirmity.
5. In the ultimate analysis, the appeal filed by the State deserves to be allowed which we direct while dismissing the appeal filed by the accused."
6. Sri. Venkatesh S. Arabatti, the learned counsel for Respondent No.3 would submit as under:-
1. The above petition seeking calling for the records from the Respondents pertaining to the Entrustment Order dated 18.01.2022. Articles of
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Charge dated 23.02.2022. Enquiry Report dated 20.04.2024. Recommendation dated 25.04.2024 and the Second Show Cause Notice dated 10.06.2023 is not at all maintainable either at law or on facts of the case. The Statement of Objections may be read as part of this Synopsis to avoid repetition. In view of the limited scope during the hearing of the above petition, this synopsis is limited to answer the questions proposed by the Petitioner and hence submission on facts is not made herein.
A. Regarding compliance of Section 9(3) of the KL Act by the Hon'ble Upa-Lokayuktha in relation to dispatch of Notice/Reminder dated 15.06.2018.
A.i The contention of the Petitioner that the Notice / Reminder dated 15.06.2018 (Annexure M) being issued under the signature of the I/c. Deputy Registrar of Enquiries-5, Karnataka Lokayuktha, Bangalore is not in compliance with Section 9(3) of KL Act is an incorrect proposition. The Office of the Karnataka Lokayuktha also includes the staff of Lokayuktha who are required to assist the Lokayuktha/Upa-Lokayuktha to perform their statutory function. Section 15 of the KL Act provides for a full compliment of staff for the Karnataka Lokayuktha. The Karnataka Lokyukta (Cadre, Recruitment and Conditions of Service of the Officer and Employees) Rules 1988 ("KL C&R
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WP No. 22235 of 2024Rules") which is made in exercise of powers under Sections 15(2) & 23(2)(e) of KL Act provides for various officers to be recruited for the performance of the statutory functions. The function of signing and issuing the Notice / Reminder dated 15.06.2018 is performed by the said DRE-5 in rendering Aid & Assistance to the Upa-Lokayuktha. He stated that the said Notice/Reminder dated 15.06.2018 is issued under the "directions of the Hon'ble Upa- Lokayuktha". Hence the said contention is misplaced.
A.ii The reliance placed on the Judgment of this Court in the case of Basavaraj and Another v. The State of Karnataka and Another in WP No.100553/2021 and connected matters decided on 22.07.2021 by the Petitioner is misplaced for the following reasons:
(i) The facts of the said case is entirely different;
in as much as, the notice in that case is said to have been issued by the Assistant Commissioner, who is not one amongst the staff of Karnataka Lokayuktha in terms of Section 15 of KL Act;
(ii) Section 15 of Act of 1984 is not brought to the notice of this Court which is an important criteria in relation to performance of the statutory functions by the Lokayuktha/Upa-Lokayuktha with the Aid and Assistance of the staff; and
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WP No. 22235 of 2024(iii) The challenge to the Entrustment Order was at a preliminary stage, where as in the instant case, several stages have been crossed since passing of the Entrustment Order and no prejudice is shown to have been caused to the Petitioner.
A.iii Rule 14A of the CCA Rules was interpreted in Dr. M. Basappa Reddy v. State of Karnataka 2017(3) KAR.LJ 117 / 2017 (4) KCCR 2830 (DB) ("Basappa Reddy") and its usefulness was also considered along with other provisions and the manner of conducing the disciplinary proceedings was upheld.
B. Regarding non-compliance of Business Transaction Rules - compliance is mandatory MRF Limited v Manohar Parrikar & Others (2010) 11 SCC 374:
B.i In the case of MRF Limited, the Hon'ble Supreme Court was considering the nature of the Transaction of the Business Rules being mandatory or otherwise. While so considering, one of the question on facts that was considered is whether the notifications in question were issued in compliance with the Articles 154 & 156 of Constitution of India and that they were issued at the instance of the Minister of Power and hence could not be termed as decisions of the State Government. In the facts of MRF Limited, the impugned notifications order were
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issued at the instance of the Minister in Charge of the Department.
B.ii However the same is not the case in the facts of the above case. There is no cavil of doubt about the proposition of law that Transaction of Business Rules are mandatory. The contention of the Petitioner that it is mandatory to place the file and seek the approval of the Chief Minister in the case of Officers in the Rank of KAS (Group A) Senior Scale and above is not backed by the text of the Rule 36 of the Karnataka Government (Transaction of Business) Rules, 1977, which is extracted below for ready reference:
RULE 36: All cases of the nature specified in the Second Schedule to these Rules shall, before the issue of orders thereon, be submitted to the Chief Minister by the Secretary of the Department B.iii The said Rule 36 extracted above does not indicate any role for the Chief Minister to perform when the file is placed before him. Hence, non- compliance, if any in not submitting the file to the Chief Minister is only a "simple submitting" in contradistinction to "submitting subject to affirmative / negative decision by the Chief Minister". The same is not mandatory not-withstanding the use of the expression "shall" in the said provision. The Supreme Court in the case of ITC Bhadrachalam
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Paperboards v. Mandal Revenue Officer (1996) 6 SCC 634 at para 29 has held that the non-
submission is not fatal. The said Para 29 is extracted below:
Para 29: It is averred in the petition that as on the date of filing of the petition 4 posts of Information Commissioners were lying vacant in the CIC. As on 4-4-2018, more than 23,500 appeals and complaints were pending before it. The CIC website shows that even appeals and complaints filed in the year 2016 are currently pending for disposal by the Commission. The petitioners further mention that though all the 4 vacancies arose in a routine manner on the retirement of Information Commissioners and upon the expiry of their five years' tenure or upon attaining the age of 65 years, which fact was known to the Central Government much in advance, but no timely steps were taken for filling up of these vacancies. First vacancy had occurred more than 15 months before the filing of the petition. It is also stated that while the Central Government had invited applications for the post of two Information Commissioners vide Circular/Communication dated 2- 9-2016 in anticipation of vacancies occurring in December 2016 and February 2017 till date none of the vacancies has been filled. The representation made by the petitioners in this behalf has also gone unheeded.
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B.iv He further stated the Petitioner has neither pleaded prejudice nor demonstrated that any failure of justice has been occasioned by the passing of the Entrustment Order in its present form. In the case of State of Madhya Pradesh v. Jiyalal AIR 2010 SC 1451, the Hon'ble Apex Court held that if order was clearly passed in discharge of routine official functions, there is a presumption that the same was done in a bona fide manner.
C. Regarding non-compliance of Business Transaction Rules is mandatory B.M. Muniappa v State of Karnataka ILR 2010 KAR 3927:
C.i In the case of B.M.Muniappa, this Hon'ble Court has held that a Secretary or Under Secretary of the Government cannot issue a letter of reference by way of a "Demi Official Letter" in exercise of a statutory power vested in the Government. By referring to Rule 18 and 19 of the Transaction of the Business Rules, this Hon'ble Court came to the conclusion that the Letter signed by the Principal Secretary of the Urban Development Department does not fulfill the requirements as stipulated in the Transactions of Business Rules. He stated that, in the instant case, the Entrustment Order dated 18.01.2022 (Annexure P) has been expressed to be made and executed in the name of the Governor of Karnataka. Further, the said Order has been signed by the Under Secretary, Urban Development
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Department and hence the requirement of Rules 18 and 19 of the Transactions of Business Rules is duly fulfilled.
C.ii In terms of Section 114 of the Indian Evidence Act, 1881, a statutory presumption arises about the propriety of the manner in which the said Order has been passed. In the case of State of Madhya Pradesh v. Jiyalal AIR 2010 SC 1451, the Hon'ble Apex Court held that if order was clearly passed in discharge of routine official functions, there is a presumption that the same was done in a bona fide manner.
Natural Justice
2. According to Mr.Arabatti the Petitioner has been notified about the proceedings before the UpaLokayuktha, by calling for her comments. The Petitioner has also submitted her comments/objections to the Complaint and the Investigation Report. Hence, the proceedings before the Upa-Lokayuktha cannot be questioned on the ground of violation of principles of natural justice.
Stage of Challenge - Delay & Laches
3. The Petitioner has participated in the Enquiry proceedings, which has been conducted in accordance with law. The Petitioner was also notified with the Second Show Cause Notice. The Petitioner has been granted sufficient opportunities as required
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WP No. 22235 of 2024under law at every stage. It is clear that the Petitioner has committed the acts of misconduct as found in the Enquiry Report dated 20.04.2024 (Annexure S) and is liable to be met with proper penalty as per the Recommendation dated 25.04.2024 (Annexure T). Hence the proceedings do not merit interdiction on alleged technicalities at this stage.
Grounds for Challenge - Not available
4. He submitted that since there is no contention regarding breach of principles of natural justice or perversity in findings, the question of interdiction by this Hon'ble Court under Article 226 & 227 of Constitution of India does not arise. It is settled law that in the above proceedings, this Hon'ble Court while considering the challenge to the Second Show Cause Notice, the power of review is limited.
General
5. He pray for dismissal of the writ petition in the ends of justice and equity."
ANALYSIS:
7. Having heard the learned counsel for the parties and perused the record, the submission of Mr. Bhagawath can be summed up as under:-
i) The initiation of the enquiry against the petitioner by Respondent 3-Lokayuktha is illegal, as the power to
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hold preliminary enquiry and to conduct investigation is vested with the Lokayuktha or Upa-Lokayuktha only and not with the Deputy Registrar of Enquiries-5 attached to Respondent No.3.
ii) It is mandatory to refer any complaint or disciplinary matter against an officer equivalent in rank to an officer in KAS (Group 'S') Senior Scale and above to the Lokayuktha or Upa-Lokayuktha to the Chief Minister and the same has not been complied with.
iii) The very origin of the complaint filed by Smt. B. Umadevi against petitioner to Respondent No.3 relates to the title dispute between them with respect to Site No.293 situated in the 5th Block Ward No.39, of Kelagote Municipal Colony, Chitradurga, which now stands in the name of Sri. Mahesh K., the husband of the petitioner The petitioner who was working as the Commissioner of Chditradurga Municipal Council, has effected the Khatha Transfer in the name of her husband based on the registered Gift Deed and Smt. Lalithamma has filed an Original Suit in O.S. 102/2013, which is still pending before the concerned Court. When this being the case, there arises no occasion for the complainant-Smt. B. Umadevi to approach the Respondent No.3 as the very origin of that complaint is a subject matter before the Trial Court.
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WP No. 22235 of 20248. Insofar as the first submission of Mr. Bhagawath is concerned, few facts required to be noted are:-
a) On 03.05.2016, Smt. B. Umadevi lodged a complaint before the Lokayuktha against the petitioner.
b) On 18.11.2016, an additional complaint was made by Smt. B. Umadevi. Based on the complaint(s) made, pursuant to preliminary enquiry and investigation, the Deputy Registrar (Enquiries)-5 issued a Memorandum dated 04.12.2017 and 15-06.2018 calling upon the petitioner to submit her response, on the Investigation Report with all its enclosures. The petitioner had replied to the said Memorandum vide her letter dated 16.07.2018 and pursuant thereto, the Upa-
Lokayuktha on 20.04.2021, issued a report under Section 12(3) of the Act of 1984 recommending holding of Departmental Enquiry. Accordingly, the Respondent No.1-The State of Karnataka had passed an Entrustment Order dated 18.01.2022 thereby entrusting the matter to the Upa-Lokayuktha, which resulted in the issuance of a charge sheet to the petitioner, which became the subject matter of the Departmental Proceedings, which have
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WP No. 22235 of 2024been challenged by the petitioner at the show-cause notice stage i.e., on the issuance of show-cause notice on 10.06.2016.
9. Suffice to state that the submission of Mr. Bhagawath is primarily that, the Deputy Registrar (Enquiries)-5 could not have issued the Memorandum dated 15.06.2018. It is his submission that, any proceedings pursuant thereto including the Entrustment Order of 18.01.2022 also stands vitiated. His submission is not appealing for the reason that, no prayer has been made in the writ petition challenging the Memorandum dated 15.06.2018, whereby the Deputy Registrar (Enquiries)-05 had called upon the petitioner to respond to the Investigation Report. In the absence of any challenge, the Memorandum dated 15.06.2018 cannot be interfered with. This Court must proceed on the premise that the Memorandum dated 15.06.2018 is a valid Memorandum. If it is a valid document, any consequential order including entrustment order dated 18.01.2022 also cannot be questioned. In fact no such plea was urged by the petitioner in the reply dated
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WP No. 22235 of 202416.07.2018 filed by her to the memorandum dated 15.06.2018. She in fact participated in the proceedings without demur and allowed the enquiry officer to give the Enquiry Report and based on the same, the impugned second show cause notice has been issued. It is too late in the day to lay a challenge, that too without a prayer in the petition.
10. Having said that, Mr. Bhagawath had relied upon the judgment of this Court in the case of Sri. Basavaraj and Another Vs. State of Karnataka and Another (Supra) to contend that the Deputy Registrar (Enquiries)-5 could not have issued the Memorandum. It should have been issued by the Lokayuktha or Upa-
Lokayuktha, who shall forward the copy of the complaint to the public servant and also to the Competent Authority concerned, and such a provision being a mandatory provision, is required to be followed. It may be stated that, in view of our finding that, the Memorandum dated 15.06.2018, which has been issued by the Deputy Registrar (Enquiries)-5 has not been challenged any plea
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WP No. 22235 of 2024relatable to the said Memorandum, shall be unsustainable.
11. Be it noted Mr. Arabatti on this plea of Mr. Bhagawath has referred to Section 15 of the Lokayuktha Act to state that, Section-15 provides for appointment of the staff of Lokayuktha etc. thereby the Officers and Employees as may be prescribed to assist the Lokayuktha and the Upa-Lokayuktha as the case may be in discharge of their functions under the Lokayuktha Act and in this regard, the Karnataka Lokayuktha (Cadre, Recruitment and Conditions of Service of the Officers and Employees) Rules 1988 made in exercise of the powers under Section 15(2) and Section 23(2)(e) of the Karnataka Lokayuktha Act provides for officers such as the Deputy Registrar (Enquiries)-05. Hence, the performance or the functions performed by the DR(E)-5 in signing and issuing notices under the directions and orders of the Upa-Lokayuktha cannot be found fault with.
He has also distinguished the judgment in the case of Basavaraj (supra) by stating that, in that case, it was the Assistant Commissioner, who had issued notice to
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WP No. 22235 of 2024the complainant along with a copy of the complaint calling for comments. He stated that the Assistant Commissioner is not an Officer of the Karnataka Lokayuktha appointed under Section 15 of the Karnataka Lokayuktha Act. This Court having noted the submission of Mr. Arabatti is of the view that, in view of our finding above that in the absence of any challenge in the Memorandum dated 15.06.2018, which Memorandum was issued by the Deputy Registrar (Enquiries)-05, the plea of Mr. Bhagawath is not sustainable, shall hold good.
Even the plea of Mr. Bhagawath by referring to the judgments to state that, (1) there is no estoppel against law (Krishna Raj (Dead) through LR's (Supra); (2) the order without authority of law can be challenged at any stage even if not raised before the authorities when the issue is pure question of law [Ref: Union of India and Others (Supra) & (Balvant N.Vishwamitra and Others (Supra)], is also unmerited for the simple reason that, even assuming, such a plea is a question of law, even then there has to be an express prayer made in the writ petition to seek quashing of the Memorandum
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WP No. 22235 of 2024dated 15.06.2018. Having not done that, the prayer as sought cannot be granted. It is settled law that no relief in the absence of a prayer can be granted.
12. In sofar as the second submission of Mr. Bhagawath by relying Upon the Transactions Business Rules is concerned, the same is primarily by stating that, the Rule 36 of Rules 1977 read with Item No.9 of Schedule-II, which stipulates proposal to refer any complaint or disciplinary matter against an officer equivalent in rank to an officer in the Karnataka Administrative Service, (Group-A) Senior Scale and above to the Lokayuktha or Upa-Lokayuktha to be submitted to the Chief Minister is concerned, the same is unmerited for the simple reason, in the case in hand, there is no proposal to refer any Complaint or Disciplinary Matter against the petitioner to the Lokayuktha or Upa-Lokayuktha. Rather a complaint has been made by the complainant Smt. B. Umadevi directly to the Lokayuktha/Upa-Lokayuktha against the petitioner, which complaint pursuant to a preliminary enquiry and on investigation has been undertaken, by
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WP No. 22235 of 2024the Upa-Lokayuktha and upon referring the matter to the Competent Authority, the Competent Authority entrusting the enquiry to the Upa-Lokayuktha, who in turn had entrusted the same to the Additional Registrar (Enquiries) and as such the process/procedure as urged by Mr. Bhagawath is not required to be followed. This we say so because, the complaint made and action undertaken is under Section 9 of the Act of 1984. The said Section do not stipulate any such condition/procedure, as a prerequisite. Even otherwise, no plea in that regard has been taken by the petitioner in her reply dated 16.07.2018. Hence, in that sense, the reliance placed by Mr. Bhagawath on the allocation of Business Rules, is clearly unmerited. In so far as the judgment(s) relied upon by Mr. Bhagawath in support of his submission shall have no applicability in view of our findings.
13. In so far as the plea of Mr. Bhagawath that, the Civil Suit being pending in respect of subject matter of complaint and as such, the proceedings initiated are unsustainable, is also without any merit. The remedy of
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WP No. 22235 of 2024suit availed by the mother of the petitioner against the Gift Deed relating to the same Katha number, but that shall not preclude the Lokayuktha/Upa-Lokayuktha to take action against the petitioner under the conduct Rules. Both the proceedings are separate/independent need to be decided under the provisions/process governing them. It is also a settled law that Criminal Proceedings (in this case Civil Proceedings) and Departmental proceedings are separate proceedings and can be held parallely.
14. In so far as the plea of Mr. Bhagawath by relying on Rule 18 and 19 of the Rules of 1977, to say that the show cause notice dated 10.06.2024 is issued by an Under Secretary and not issued or executed in the name of the Governor is concerned, the petitioner has pleaded such a case in her representation to the show-
cause notice, surely the authorities shall consider the plea of the petitioner and decide the same in accordance with law. That cannot be a ground to interfere with by the process of the enquiry, which is yet to reach a finality. The petitioner shall also be at liberty to take all
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WP No. 22235 of 2024pleas (but not those which have been decided by this order) in her representation to the show-cause notice dated 10.06.2024 for the consideration of the competent authority. Mr. Reddy is justified in relying upon the judgment of the Hon'ble Supreme Court in Union of India Vs. Vicco Laboratories (Supra) in as much as no interference is called for by the Court at the show-cause notice stage.
15. We by granting 30 days time from today to the petitioner to file a detailed reply to the show-cause notice dated 10.06.2024 for the consideration of the competent authority, dismiss the petition.
No costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
( RAJESH RAI K) JUDGE KGR*