Karnataka High Court
Sri.Lokesh M V vs The State Of Karnataka on 23 August, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION NO.20866/2017 (S-DIS) WRIT
PETITION NO.1844 OF 2022 (T - IT)
BETWEEN:
SRI LOKESH M.V.,
S/O VENKATESH
AGED ABOUT 40 YEARS
JUNIOR ENGINEER
CITY MUNICIPAL COUNCIL
CHICKKAMANGALURU DISTRICT
CHICKMANGALURU - 577 101.
R/AT C/O VIJAYAKUMAR
BANASHANKARI NILAYA
KUPPENAHALLI,
JYOTHINAGARA POST
CHICKKAMAGALURU. ... PETITIONER
(BY SRI. C.M. NAGABHUSHANA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
BANGALORE - 560 001.
2. THE DIRECTOR OF MUNICIPAL
ADMINISTRATION IN KARNATAKA
V.V. MAIN TOWERS
BENGALURU - 560 001.
2
3. THE DEPUTY COMMISSIONER
CHICKKAMANGALURU DISTRICT
CHICKMANGALURU - 577 101.
4. THE COMMISSIONER
CITY MUNICIPAL COUNCIL
CHICKMANGALURU - 577 101. ...RESPONDENTS
(BY SMT. M.C. NAGASHREE, AGA FOR R1 TO R3;
SRI A. NAGARAJAPPA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 24.04.2017 VIDE ANNEXURE-J
PASSED BY THE R-1 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has called in question the order of dismissal dated 24.04.2017 at Annexure-'J' whereby the Disciplinary Authority has ordered for dismissal from service in terms of Rule 8 (viii) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short "KCS (CCA) Rules, 1957).
2. Learned Counsel Sri.C.M.Nagabushan appearing on behalf of the petitioner submits that pursuant to the alleged draft proceedings, criminal proceedings were initiated and 3 the petitioner has been acquitted in terms of the judgment passed in Special Case (Corruption) No.43/2009 as per the judgment dated 19.11.2011. It is further pointed out that the said order of acquittal is an honourable acquittal and not based merely beyond reasonable doubt.
3. It is further contended that the disciplinary proceedings were commenced after the closure of proceedings before the criminal court and order of acquittal being passed on 19.11.2011, departmental enquiry came to be commenced only on 11.12.2012. It is submitted that articles of charges that were framed relates to demand of bribe of Rs.20,000/- and acceptance of bribe of Rs.5,000/-. It is contended that the finding in the enquiry report, copy of which is enclosed at Annexure-'E' would clearly indicate that the Enquiry Officer has recorded a finding at internal page 20 of the enquiry report that acceptance of Rs.5,000/- is not a bribe or gratification. It is further submitted that the other finding in the enquiry report that the petitioner has failed to offer any acceptable explanation or reason for 4 having received the amount from PW.1 is a finding that is contrary to the articles of charges framed. It is further submitted that in the event petitioner is sought to be held liable for misconduct as regards accepting amount from PW.1 and not offering any explanation or reason for having received such amount, procedure under Rule 11 (23) of the KCS (CCA) Rules, 1957 has to be adhered to.
It is contended that in the event a finding is sought to be recorded of a misconduct which is not the subject matter of articles of charges, the delinquent employee is required to be given fresh notice and finding recorded thereon unless there is acceptance regarding the same. It is submitted that in the enquiry proceedings, at no point of time, the petitioner has accepted receipt of Rs.5,000/- as bribe and accordingly, Rule 11 (23) cannot be resorted to by the State Government.
4. It is also contended that the order is passed without application of mind by the Disciplinary Authority which is required to apply its mind to the enquiry report and 5 pass an order of penalty. It is submitted that the order at Annexure-'J' merely indicates that the Disciplinary Authority has accepted the recommendation of the Upa Lokayukta without accepting the reply of the petitioner to the second show-cause notice wherein the aspect of finding by the Enquiring Authority relating to acceptance of Rs.5,000/- by PW.1 had been adverted to.
5. It is further submitted that even after setting aside of Annexure-'J' the matter does not call for any remand as the enquiry report and its finding are clear and on the basis of such enquiry report no other conclusion can be arrived at. If enquiry report is construed in an appropriate manner while ignoring the finding of the enquiry officer regarding acceptance and possession of Rs.5,000/-, there is no case for the Disciplinary Authority to impose any penalty on the enquiry report.
6. Learned AGA however would defend the order of the Government and submits that the enquiry report does record a finding regarding acceptance of Rs.5,000/- from 6 PW.1 and that the petitioner has not explained acceptance of the said amount satisfactorily which would amount to misconduct and this court ought to take note of the same and refuse to exercise the power of judicial review in light of the findings of the Enquiry Officer. It must be noted that the enquiry report at Annexure-'E' records a detailed finding regarding demand of bribe. The Enquiry Officer has held at Para 17 as follows:
These facts coupled with negative evidence given by PW1 clearly establish that no bill amount was due to the contractor Sri Prakash as on 21/08/2008, alleged date of demand. Hence it has to be held that neither there was work of preparing bill pending with DGO as on 21/08/2008 nor the contractor Sri Prakash, much less PW1, could have had any grievance against DGO after having received 2nd bill amount only two days earlier on 19/08/2008. Thus the demand of bribe of Rs.20,000/- on 21/08/2008 is not proved for more than one reason. Firstly, work of preparing bill for Rs.87,791/- as stated in the complaint Ex.P1 was not at all pending with DGO. Secondly, PW1 has not stated that he had approached DGO on 21/08/2008 and he had demanded bribe of Rs.20,000/-. Thirdly, PW1 had 7 nothing to do with the work of contract entrusted to Sri Prakash. Fourthly, the contractor had received 2nd bill amount only on 19/08/2008 and third bill was prepared and paid a year thereafter by DW1. Lastly, alleged demand of Rs.20,000/- bribe amount of final bill amount of Rs.13,419/- and FSD amount of Rs.12,926/- even if due, appears absurd and does not inspire confidence.
Other relevant observation of the enquiry officer is at Para 20 which reads as hereunder:
"20. In view of specific finding recorded earlier that demand of bribe by DGO for the alleged preparation of 3rd and final bill of contract work of Sri Prakash is not proved, it has to be held that mere receipt of tainted notes by DGO from PW1 and recovery of said notes from his possession cannot lead to hold that the tainted notes were received as bribe amount. So question arises as to why PW1 had filed complaint against DGO alleging demand of bribe purporting to be for preparing 3rd and final bill of Sri Prakash and why he got him trapped by producing Rs.5,000/- by lodging complaint. The evidence on record has no clear cut answer, to the above question. However, PW1 has stated that though DGO had not demanded bribe he had lodged complaint as advised by on Maruthi. In the judgment in Spl.Case No.43/2009 (certified copy of judgment produced by 8 DGO with his statement of defense) at Paras 34 and 37 with reference to the evidence of complainant PW1, it is observed that PW1 has admitted in his evidence that he had lodged complaint at the instance of one Maruthi, a broker of chicken shop and he had taken him to Hassan though Tarikere is in Chikkamagalur district. So, lodging complaint and getting DGO trapped though there was no demand of bribe could be a plot hatched by PW1 at the instance of one Maruthi.
Similarly, discussion of evidence regarding payment of 2nd bill of contract work of Sri Prakash establish that it was paid only two days earlier i.e., on 19/08/2008 and where as alleged demand is on 21/08/2008, when no 3rd bill was not at all in offing. However, on the basis of this evidence it cannot be concluded that DGO had received tainted notes from PW1 as gratification for having prepared 2nd bill, because it is not the case and version of PW1, and during inquiry a third case cannot be made out which is neither propounded not canvassed through evidence and which is not the component of charge leveled against DGO.
Thus, it can be said that evidence on record establish that DGO, a government servant, working as Junior Engineer in the office of TMC at Tarikere had received Rs.5,000/- from PW1, though not as a bribe 9 or gratification, but has failed to offer any acceptable explanation or reason for having received said amount from PW1 on 28/08/2008. DGO being a government servant was not expected to receive money from a private individual in his official capacity as government servant. Such act on the part of DGO, as a government servant, is also a mis-conduct covered by rule 3 of KCS(Conduct) Rules 1966, however of a letter degree of mis-conduct as compared to mis conduct of demand of bribe compelling to pay bribe and receiving bribe"
7. A reading of the above would clearly reveal that the Enquiry Officer has emphatically recorded that receipt of tainted notes from PW.1 as gratification for having prepared second bill is not proved. It is also specifically recorded that receipt of Rs.5,000/- cannot be construed to be acceptance of bribe or gratification. If that were to be so, Articles of charges stand answered in the negative. It is relevant to extract the Articles of Charges which reads as follows:
"CHARGE No.1
2. That, you Sri M.V. Lokesh, the DGO, while working as the Junior Engineer at Town Municipal Council of Tarikere in Chikmagalur District, 10 you had to release bill amount of Rs.83,791/- to the complainant namely Sri B.R. Manjunatha Prasad and his brother towards contract work undertaken by them for construction of compound wall near pump house of T.M.C. Tarikere and when the complainant asked to release the said amount, you asked for bribe of Rs.20,000/- and on 28-08-2008, received the bribe amount of Rs.5,000/- failing to maintain absolute integrity and devotion to duty, the act of which was un-becoming of a Government Servant and thereby committed mis-conduct as enumerated U/R 3(1)(i) to (iii) of Karnataka Civil Service (Conduct) Rules 1966."
8. The Articles of Charges is specific as regards the aspect whether the DGO had asked for bribe of Rs.20,000/- on 28.08.2008 and received the bribe amount of Rs.5,000/- which conduct amounted to misconduct under Rule 3 (i) to
(iii) of KCS (Conduct) Rules. If that were to be the articles of charge the finding that Rs.5,000/- which was accepted from PW.1 is not accepted as bribe or gratification in effect results in answering the article of charge negative. As regards the further finding that the petitioner had committed misconduct as there is no acceptable explanation 11 or reason for having received the said amount from PW.1 on 28.08.2008, is a finding regarding misconduct which is not the subject matter of articles of charges. As regards such finding or misconduct, separate articles of charges was required to be framed insofar as the mere act of acceptance of Rs.5,000/- from PW.1 without explanation or reason as constituting a misconduct.
9. In light of Rule 11 (23) of the KCS (CCA) Rules, 1957, the enquiry authority may record a finding regarding articles of charges different from the articles of charges framed if the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
10. Rule 11 (23) of the KCS (CCA) Rules, 1957 reads as follows:
11 (23)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-
a) the articles of charge and the statement of the imputations of misconduct or misbehavior; 12
b) the defence of the Government Servant in respect of each articles of charge;
c) an assessment of the evidence in respect of each article of charge;
d) the findings on each article of charge and the reasons therefor.
Explanation.- If in the opinion of the Inquiring Authority the proceeding of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(emphasis supplied)
(ii) The Inquiring Authority, where it is not itself the Disciplinary Authority shall forward to the Disciplinary Authority the record of inquiry which shall include-
a) the report prepared by it under clause (i);
b) the written statement of defence, if any submitted by the Government servant;
c) the oral and documentary evidence produced in the course of the inquiry;13
d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and
e) the orders, if any made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
11. It is clear that it is the specific stand of the petitioner that he has been acquitted by the Criminal Court in Special Case (Corruption) No.43/2009 which is a honourable acquittal. Further, even during the enquiry proceedings, the petitioner has specifically denied receipt of Rs.5,000/-. It is further to be noticed that such being the stand and no further notice of proposed finding on a different charge as envisaged under Rule 11 (23) of the KCS (CCA) Rules, 1957 has been made putting forth to the petitioner that a finding of different article of charge is being made, the procedure of the enquiring authority in coming to such conclusion is contrary to Rule 11 (23) of the KCS (CCA) Rules, 1957.
12. It must be noticed that the Enquiry Officer has concluded that the Disciplinary Authority has proved the 14 charge in part, of the DGO receiving Rs.5,000/- which is the only finding. However, as pointed out above, such a finding is in contravention of Rule 11 (23) and accordingly, the enquiry report has to be understood in a proper fashion while excluding a finding regarding receipt of Rs.5,000/- and that is the legal way of understanding the enquiry report.
13. The order at Annexure-'J' passed by the Appellate Authority has to be by applying its mind as regards to the finding of the Enquiring Authority. There is an element of discretion to be exercised by the Disciplinary Authority while construing the findings of the enquiry report. In fact, the Disciplinary Authority has the power to disagree with the power of the Enquiring Authority.
14. In the present case, the order at Annexure-'J' is passed by mere reliance on the recommendation of the Upa Lokayukta. The application of mind by the Government is not evident from the order at Annexure-'J'. The reply to the second show-cause notice of the petitioner regarding 15 finding of the Enquiry Officer as regards non-acceptance of Rs.5,000/- has not been considered and in fact, the order at Annexure-'J' would reflect that the reply made to the second show-cause notice has not been considered while accepting the recommendation of the Upa Lokayukta and proceeding to pass the impugned order of penalty. At this point of time, no useful purpose would be served for remanding the matter for reconsideration afresh in light of the enquiry report.
15. In light of the discussion made above, the impugned orders are liable to be set aside as articles of charges are not proved. At the point of repetition, the finding by the enquiring authority regarding misconduct on the ground that the petitioner has accepted a sum of Rs.5,000/- from PW.1 which remains unexplained is clearly a finding on the basis of different article of charge without following the procedure under Rule 11 (23) as pointed out above. If that were to be so, the finding in the enquiry report being favourable to that of the petitioner, the 16 Disciplinary Authority will not be in a position to arrive at any different conclusion to hold the petitioner guilty even on remand. Even the finding of receipt of Rs.5,000/- cannot be linked to the clearance of bills. In the absence of such nexus, proposed fresh article of charge on such aspect upon remand may not stand the test of judicial scrutiny. Accordingly, the order at Annexure-'J' is set aside and the petition is disposed off as calling for no further orders. Consequently, the order imposing penalty is set aside. Needless to state consequent to setting aside of the impugned order, if there is any other adverse service condition inflicted upon the petitioner consequent to the impugned order the same is also is set aside.
Sd/-
JUDGE Np/-