Karnataka High Court
Sri S M Harish vs The State Of Karnataka on 20 January, 2023
Bench: G.Narendar, P.N.Desai
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO.13745 OF 2020 ( S-KSAT)
BETWEEN:
SRI. S.M.HARISH,
S/O. LATE U.J.MAHABALA,
AGED ABOUT 58 YEARS,
WORKING AS TECHNICAL ASSISTANT,
PUBLIC WORKS DEPARTMENT DIVISION,
SHIVAMOGGA-577 201.
... PETITIONER
(BY SRI. SATHISH K, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT PUBLIC WORKS,
PORTS AND INLAND WATER TRANSPORT,
VIKASA SOUDHA,
BANGALORE-560 001.
2. KARNATAKA LOKAYUKTHA
REPRESENTED BY ITS REGISTRAR,
M.S.BUILDING,
BANGALORE-560 001.
3. THE ADDITIONAL REGISTRAR
OF ENQUIRIES -13,
2
KARNATAKA LOKAYUKTHA,
M.S. BUILDING,
BANGALORE-560 001.
... RESPONDENTS
(BY SRI. VENKATESH ARABATTI, ADVOCATE FOR R2 AND R3,
SRI. H.R.SHOWRI, AGA FOR R1)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 06.11.2020 PASSED BY THE HONBLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION
NO.6277/2019 ANNEXURE-A AND CONSEQUENTLY ALLOW THE SAID
APPLICATION NO.6277/2019 AS PRAYED FOR PREFERRED BY THE
PETITIONER BEFORE THE HONBLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL (ANNEXURE-B) AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY,
P.N.DESAI J, PASSED THE FOLLOWING:
ORDER
This petition is filed challenging the order dated 06.11.2020 passed by the Karnataka State Administrative Tribunal, Bengaluru (for short hereinafter referred to as 'Tribunal') in Application No.6277/2019, wherein the Tribunal dismissed the application filed by the petitioner.
2. The brief contention of the petitioner is that he was initially working as Assistant Executive Engineer. When 3 he was due for promotion to the post of Executive Engineer, one Sri. N.Annappa, Contractor in Shivamogga has filed a complaint before the second respondent alleging that the petitioner/applicant has acquired property illegally by misusing his official powers. The Deputy Superintendent of Police, Karnataka Lokayukta, Shivamogga was directed to conduct an enquiry and submit a report. Thereafter a report was submitted on 02.01.2018 stating that the allegations made against the petitioner that he is having assets disproportionate to known source of income is not substantiated. It is contended that the second respondent send a report under Section 12(3) of the Karnataka Lokayukta Act, 1984. Based on the said report, the first respondent has passed an order to institute an enquiry and entrusted the matter to the Lokayukta.
3. It is further contended that in view of the enquiry pending against the petitioner, the Departmental Promotional Committee has ordered to keep the decision 4 regarding promotion of the petitioner in a sealed cover and his juniors were given promotions. Aggrieved by the same, the petitioner submitted representations but the same was not considered. Hence, filed application before the Tribunal. It is contended that the Tribunal based on the 12(3) report has come to the conclusion that there is no cause of action for the petitioner to approach the Tribunal and there is a misconduct committed by the applicant and further held that the petitioner has approached the Tribunal at the premature stage, consequently dismissed the application. Hence this petition is filed.
4. Heard learned counsel Sri.Sathish K, appearing for the petitioner and Sri.Venkatesh Arabatti, learned counsel for respondent Nos.2 and 3 and Sri. H.R.Showri, learned Additional Government Advocate for respondent No.1.
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5. Learned counsel for the petitioner argued that the petitioner has worked without any blemish on his record. In the year 1987, there was a litigation pending between one Annappa and petitioner in respect of certain ancestral property and at the instance of him, through a third person, a complaint was lodged against the petitioner, when he was due for promotion. Learned counsel argued that the Tribunal without considering the material on record has dismissed the application. The allegations made against the petitioner by one Annappa was that he has amassed wealth disproportionate to the known source of income. The Hon'ble Supreme Court in the case of State of Karnataka and others Vs. Kempaiah reported in 1998 (6) SCC 103 has held that the amassing of wealth by public servant is not covered under the ambit of the provisions of the Karnataka Lokayukta Act, 1984. The Deputy Superintendent of Police, Karnataka Lokayukta, Shivamogga who investigated the matter and gave status 6 report found that the allegations made against the petitioner are not true and the complaint itself is false. From the perusal of the records it is clear that the total income of petitioner is Rs.40,00,000/- and the total expenditure including the expenses incurred for education of his children is a sum of Rs.40,38,600/-. Therefore, since the income is more than the expenditure, there is absolutely no case against the petitioner in respect of the disproportionate income. The learned counsel further argued that on the other hand, though the allegation in the articles of charge is primarily with regard to the known source of income, subsequently, respondent No.2, framed another charge against the petitioner that he has constructed a building without prior permission of the competent authority, which is not true and contrary to the records. It is argued that the petitioner has already communicated the Assistant Executive Engineer on 04.07.2005 seeking permission to construct the building 7 and also to secure loan from the housing society. Therefore, such being the case, the order is totally illegal and contrary to the principles laid by the Hon'ble Supreme Court. With these main arguments, learned counsel prayed to set aside the impugned order. In support of his arguments, learned counsel for the petitioner has relied on the following decisions:
1) Uco Bank and others Vs. Rajendra Shankar Shukla Reported in (2018) 14 SCC 92;
2) Kempaiah Vs. State of Karnataka -
W.P.No.16857/1993 and Crl.P.No.1155/1993
6. Learned counsel for respondent Nos.2 and 3 and learned AGA for respondent No.1 supported the order of the Tribunal and contended that the allegations are required to be enquired and if at all in the enquiry, the petitioner come out with clean hand, then, the petitioner will get his promotion, if he is otherwise entitled for promotion. The 8 first respondent has only entrusted the enquiry to the Lokayukta and at this stage, articles of charges are framed. Therefore, the Tribunal has rightly rejected the application, as the application was preferred at the premature stage. The respondent counsel prays to dismiss the petition as there are no grounds to interfere with finding of Tribunal. Learned counsel for respondent Nos.2 and 3 in support of his arguments relied on following decisions:
1. Union of India and Another Vs. B.C.Chaturvedi - (1995) 6 SCC 749;
2. State of Karnataka, by Chief Secretary, Bangalore and others Vs. Basavaraj Guddappa Maliger - ILR 2003 KAR 3589;
3. Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha -
(2012) 11 SCC 565;
4. Sri. Gopal Hanumanth Kase Vs. The State Karnataka, Department of Urban 9 Development, rep. by its Principal Secretary and others.
7. We have perused the records. In the report of the Deputy Superintendent of Police, Lokayukta, he has stated, as to what is the petitioner's income, expenditure and educational expenses of children, what is his movable and immovable assets and the value of the assets etc., He found that there is no material to show that the petitioner has amassed the wealth disproportionate to his known source of income. The Deputy Superintendent of Police has stated in his report that the petitioner is serving in the Shivamogga district nearly for a period of 27 years. The said report is available at Annexure-A1.
8. In reply statement of petitioner produced at Annexure-A2, he has denied all the allegations and he has stated that he has served thirty years of unblemished service. He has also stated that his mother died in the year 10 1994 and his father has again married. The second wife and her children have sold the entire nine acres of land belongs to his father without his knowledge to a third person in the year 1996. Therefore, there was a litigation pending between them. In this regard, he was harassed, as he was in the Government Service. He has also stated that his daughter is a Dentist and his son is an Engineer. He has further stated that in the year 1994, he has purchased a site from Sri. Sharana Veeresha Rural Government Employees Housing Co-operative Society for a sum of Rs.30,600/- and in the year 2008, by spending a sum of Rs.9,00,000/- he has constructed a house and he has also borrowed a loan of Rs.6,00,000/- from the Syndicate Bank and repaid a sum of Rs.2,00,000/- to the bank and submitted that he has not committed any misconduct and prays to dismiss the complaint before the Lokayuktha. But his explanation was not accepted and enquiry was instituted.
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9. We have perused the charges alleged against the petitioner. The first charge is that the petitioner without taking prior permission from the concerned authority has constructed the house and thereby committed misconduct; the second allegation is that the petitioner's father-in-law was the member of one M/s. Gagan Paints partnership firm and the petitioner's wife was also one of the member of said partnership firm and the same is not intimated to the concerned authority. The third charge is that his daughter is a Dentist and his son is an Engineer, but the petitioner has not submitted his source of income to show that how he has meet the cost of education of his children.
10. The complainant is a contractor and he has alleged that the petitioner has amassed the wealth disproportionate to known source of income and he has committed misconduct and he is serving in Shivamogga nearly for a period of 27 years. To prove the same, the 12 complainant has not produced any iota of material or documents in support of his allegations. From the report submitted by the Deputy Superintendent of Police, it is clear that the allegations made against the petitioner are not proved except the fact that the petitioner is working in Shivamogga district only for a period of 27 years. The Tribunal without considering all these aspects, dismissed the application as stated that it is filed at the premature stage.
11. The petitioner has stated that while constructing his house, he has borrowed loan and same was intimated to the concerned authority and he has also declared the same. He has submitted all his income tax returns documents and he has also declared assets and liabilities with respect to his movable and immovable properties every year. The petitioner has also produced the documents relating to loan borrowed from the Syndicate bank for a sum of Rs.6,00,000/- and he has submitted requisition dated 13 04.07.2008 to Assistant Executive Engineer seeking permission to construct the house by furnishing the details of source of income to construct the same. There is no material to show that the petitioner has not intimated the concerned competent authority before construction of his house. On the other hand, the concerned authority to whom the petitioner has submitted his details (Annexure-J) with regard to his movable and immovable properties and assets and liabilities statement, has accepted the same and affixed the seal. The respondents also not raised any objections. Therefore, it is apparent that the petitioner has not amassed the wealth. Without considering all these aspects and without considering the reply submitted by petitioner which is produced at Annexure-A5, the charges were framed without there being any material, on imaginary grounds. Initiation of such enquiry at the fag end of his service, is nothing but harassing the petitioner. Due to 14 framing of such charges, his promotion is held up and his juniors were given promotions.
12. When he has intimated about the purchase of site and construction of house, question of framing first charge has no basis at all. With regard to second allegation is concerned, there were no transactions took place in the partnership firm and no amount was invested and the partnership firm itself was dissolved. With regard to the third allegation is concerned, the petitioner has furnished the details of source of income and he has stated that his children have got merit seats in their college and he has spent only a sum of Rs.37,300/- and a sum of Rs.9,450/- respectively as annual fee to both his daughter and son. Both the children of petitioner have got merit seats in Government Colleges, hence, question of spending huge amount towards their education expenses does not arise. Infact the petitioner's son got 25th ranking in CET for Engineering. There is no material produced by the 15 complainant prima facie to show that the allegations made against the petitioner much less to frame any charge. Looking to the material placed on record by the petitioner, framing of charges based on the allegations made by the complainant is nothing but harassing the petitioner. Admittedly, the articles of charges shows that the first charge is in respect of the misconduct of the year 1997 and second charge is of the year 1995. The complaint was made in the year 2017 i.e., nearly after more than 13 years, when the petitioner was due for promotion. Therefore, initiation of departmental proceedings without there being any material vitiate the proceedings.
13. Learned counsel for the petitioner has relied on the decision of Hon'ble Supreme Court in the case of UCO Bank and Others referred supra and at paragraph Nos.12 held as under:
12. We do not find any reason to interfere with the judgment and order passed by the 16 High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by the learned counsel.
The first issue of concern is the enormous delay of about 7 years in issuing a charge-
sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge-sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance.
14. The decisions relied on by the learned counsel for respondent Nos.2 and 3 in the case of State of Karnataka by Chief Secretary, Bangalore, B.C.Chaturvedi's case, Secretary, Ministry of Defence and others and Sri. Gopal Hanumanth Kase's cases referred supra are not applicable to this case, in view of 17 peculiar facts and circumstances of this case. Though the principles stated in those cases are not disputed, same are not applicable to the facts of this case.
15. Therefore, viewed from any angle, though the power of the Government to entrust enquiry cannot be disputed, but there must be some material for framing articles of charges. Without taking into consideration the report submitted by the Deputy Superintendent of Police, Lokayuktha and reply given by the petitioner and when he was due for promotion at the instance of complainant who has not at all furnished any material, the articles of charges are framed. Therefore, we find that the finding of the Tribunal in this regard are not based on justifiable reasons and the same is erroneous.
16. The petitioner has satisfactorily accounted his income. In this case no FIR is registered against the petitioner. The written submission and the explanation 18 submitted by the DGO is not considered by the Tribunal. When there is no prima facie material to show any misconduct committed by the petitioner, the report issued under Section 12(3) of the Karnataka Lokayukta has no basis at all. In view of the peculiar facts and circumstances of this case, if the respondents proceed with the departmental enquiry, at this length of time, the same would cause prejudice to the petitioner, when the petitioner is at the verge of his retirement. He has served without any blemish on his record in entire service being a Government Servant. The petitioner has also produced necessary documents to disprove the allegations made against him. There is an inordinate delay in initiating the enquiry. An imaginary and baseless allegations are made against the petitioner in order to deny the promotion to the petitioner at the fag end of his service just to harass him.
17. In view of the discussions made above, we are of the considered view that the order of tribunal being 19 erroneous, needs interference by this Court. Therefore, the petition deserves to be allowed.
Accordingly, we pass the following:
ORDER
(i) The petition is allowed.
(ii) The order dated 06.11.2020 passed by Tribunal at Annexure-A in Application No. 6277/2019 is hereby set aside and the said application is allowed.
(iii) The articles of charges dated 02.01.2019 at Annexure-A4 framed against the petitioner and initiation of departmental enquiry in furtherance of such articles of charge is hereby quashed.
(iv) No order as to costs.
SD/-
JUDGE
SD/-
JUDGE
HJ