Karnataka High Court
Bhaskar Gouda S/O Venkataraman B. Gouda vs State Of Karnataka on 4 December, 2021
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE DAY OF 4TH DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WP NO 102552 OF 2015 (S/DE)
BETWEEN
1 . BHASKAR GOUDA S/O VENKATARAMAN B. GOUDA
WORKING AS JUNIOR ENGINEER
OFFICE OF TOWN PANCHAYAT
ANKOLA, UTTARA KANANDA DIST-581 314
2 . AMBHAR KHAN S/O YAKUB AMBAR KHAN
AGE:42 YEARS, WORKING AS JUNIOR ENGINEER,
OFFICE OF CITY MUNUCUOAK COUNCIL
GANGAVATHI, KOPPAL DISTRICT-583 227
3. MANJUNATH NAMADHARI
S/O GANGADHAR G. NAMADHARAI,
AGE: 40 YEARS,WORKING AS JUNIOR ENGINEER
OFFICE OF CITY MUNICIPAL COUNCIL
KARWAR-581 301
4 . RAMESH P. NAIK S/O PANDURANGA N. NAIK
AGE:50 YEARS, WORKING AS ASSISTANT
EXECUTIVE ENGINEER
DISTRICT URBAN DEVELOPMENT CELL
KARWAR-581 301
...PETITIONERS
(BY SRI.M S BHAGWAT AND SURESH S BHAT, ADVS.,)
AND
2
1 . STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMETN
REPRESENTED BY
ITS PRINCIPAL SECRETARY
VIKASA SOUDHA,
BANGALURU-560 001
2 . THE REGISTRAR
KARNATAKA LOKAYUKTHA
M.S. BUILDING
BANGALURU-560 001
3 . ADDITIONAL REGISTRAR OF ENQURIREIS-1
KARNATAKA LOKAYUKTHA
M.S. BUILDING,
BANGALURU-560 001
...RESPONDENTS
(BY SRI.VINAYAK S KULKARNI, AGA FOR R1;
SRI.G.I.GACHCHINAMATH, ADV., FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 07.10.2014 PASSED BY RESPONDENT
NO.1 (ANNEXURE-A) AND IMPUGNED ARTICLES OF CHARGE
DATED 08.12.2014 / 17.01.2015 ISSUED BY RESPONDENT NO.3
(ANNEXURE-B), SO FAR AS PETITIONERS ARE CONCERNED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioners are the employees of the Town Panchayath and while they were working at Town Panchayath Yellapur, a proposal was submitted to carry out work under SFC scheme and the action plan was approved by the Deputy Commissioner, Karwar.
2. Petitioners state that the work was executed in the year 2007-2008 and inspection was made by the Globe Tech Consultancy Services, Goa, certifying that work carried out by the petitioners is completed and found to be satisfactory.
3. When things stood thus, a complaint was lodged with the 2nd respondent by two persons alleging that the petitioners have misappropriated the funds and work executed by the petitioners are sub standard. Petitioners state that after lapse of 6 years from the date of completion of work, the Technical Wing, Karnataka Lokayuktha, inspected the spot and submitted inspection report on 10/5/2013 wherein it is reported that there is no 4 misappropriation of funds but there are some discrepancies while executing the work as alleged in the complaint against the petitioners.
4. Petitioners further state that they have replied to the notice by denying the allegations therein. When such being the case, the 1st respondent without application of mind to the material on record, has entrusted the matter with the 2nd respondent to hold departmental inquiry against the petitioners. In pursuance of the order entrusting the inquiry to the 2nd respondent, the 2nd respondent has issued article of charges to the petitioners alleging that the petitioners have failed to use proper quantity of bitumen binder content used for tarring of Ramanakoppa road work and further failed to execute culvert work and thereby failed to maintain absolute specifications used for the project work and there by the petitioners were guilty of misconduct as per Rule 3(1) (ii &
iii) of KCS (Conduct) Rules, 1966.
5
5. The petitioners being aggrieved by the entrustment of the enquiry by the Government with the 2nd respondent and also the issuance of article of charges against the petitioners, have filed this writ petition.
6. Sri. M.S.Bhagwat, learned counsel appearing for the petitioners made the following submissions:
a) that the entrustment of the enquiry by
respondent No.1 to respondent No.2 is without
application of mind. In support of the said averment, he relied on the division bench judgment of this Court passed in W.P. No.205398/2019 (Sanjeev Kumar Vs. State of Karnataka, disposed of on 24.02.2020 reported in (2021)2 Kar.L.J. 1) and W.P. No.48384/2017 (Sri. K.S.Nanjegowda Vs. State of Karnataka By Lokayuktha and another, disposed of on 12.11.2020).
b) The incident is of the year 2007-08 and Article of Charges was issued in the year 2015. Hence, there is an inordinate delay in initiating the disciplinary enquiry. In support of the said contention, reliance is placed on a 6 division bench decision of this Court passed in W.P. No.6116/2020 (M.R.Waddar Vs. State of Karnataka and another, disposed of on 11.12.2020)
c) The disciplinary enquiry initiated against the petitioner is selective and discriminatory since no enquiry is initiated against the Deputy Commissioner and the Tahasildar concerned who have approved the project work. In support of the same, reliance is placed on the order of this Court passed in W.P. NO.147900/2020 (Shri. N.Mahesh Babu Vs. State of Karnataka and Others, disposed of on 08.09.2021). Hence, he submits that the impugned order entrusting the enquiry to respondent No.2 and the Article of Charges issued against the petitioner is not sustainable in law.
6. On the other hand, learned counsel for respondent Nos.2 &3 made the following submissions:
a) The writ petition filed by the petitioner challenging the entrustment of enquiry to respondent No.2 and so also the Article of Charges issued against 7 the petitioner is premature since the same does not infringe the rights of the petitioner. In support of the said contention, reliance is placed on the decisions of the Apex Court in the case of Union of India (UOI) and Anr. Vs. Kunishetty Satyanaraya, reported in [(2006)3 BLJR 2533(SC)].
b) He further submitted that the petitioner in the objection submitted before the Enquiry Officer has not taken up the ground that the order passed by the Government entrusting the enquiry to respondent No.2 is without application of mind and also the ground of inordinate delay in initiating the enquiry. Hence, he submits that these grounds which were not urged before the Enquiry Officer cannot be allowed to be urged before this Court. In support of this contention, reliance is place on the division bench order of this Court passed in W.P. No.8563/2020 (Sri. Maheshwarappa Vs. The State of Karnataka and Others, disposed of on 05.08.2020).8
7. Learned Additional Government Advocate appearing for the respondent-State would submit that the Government, after applying its mind, has passed the impugned order entrusting enquiry to respondent No.2. Hence, he submits that the writ petition is devoid of merits and liable to be dismissed.
8. Perusal of the Government order dated 7/10/2014 indicates that the enquiry has been entrusted to the 2nd respondent based on the recommendation made by the Upa Lokayuktha. However the State Government under Sections 12(3) was required to examine the report forwarded to it and the relevant materials and evidence in relation to the allegations made.
9. The Division Bench of this Court in writ petition No.20182/2015 has held that section 12(4) the Karnataka Lokayuktha Act, 1984 (for short the Act) makes it mandatory for the competent authority to examine the report forwarded to it by the Upa Lokayuktha. 9
10. The Division Bench of this Court in W.P. No.205398/2019 disposed of on 24.02.2020 reiterated the law laid down in the case of Sri. K.S.Nanjegowda Vs. State of Karnataka By Lokayuktha and another has held that the if the order of entrustment does not bear application of mind, it would result in unnecessary proceeding against the Government servants. It was further held that by the conjoint reading of Rule 14-A of KCSR and Section 12 of the Act unequivocally makes it clear that the discretion is available to the Government to entrust the inquiry to the second respondent or otherwise. In case the Government is of the opinion that it is a case only for imposition of minor penalty under Rule 12, then there is no necessity to hold regular departmental inquiry.
11. The Co-ordinate Bench of this Court in W.P. No.48384/2017 disposed of on 12.11.2020 has held that the provision contained in Section 12(4) of the Act, 1984 and Rule 14-A(2)(iii) of the Rules, 1957 mandates the competent authority to examine the investigation report 10 submitted on behalf of the Lokayukta/Upalokayukta and in the absence of the same the entrustment of inquiry with the Lokayuktha is not permissible.
12. The order passed by the Co-ordinate Bench of this Court in writ petition No.48384/2017 has been accepted by the Government which is evident from the Circular dated 9/11/2020. In view of the decisions of the Division Bench of this Court and also the Circular issued by the Government, the order passed by the respondent State entrusting the enquiry with the 2nd respondent is without application of mind. Since, relevant materials were not examined before passing of such an order.
13. The Division Bench of this Court in W.P. No.8563/2020 disposed of on 05.08.2020 has held at para 11 that challenge to the entrustment of the inquiry under Section 14-A of the CCA Rules and article of charges are premature. However, the Division Bench in various decisions has interfered with the order of entrustment enquiry with the Lokayuktha and also the article of charges 11 issued in pursuance of the entrustment order and the same have been accepted by the Government. Hence, the submission of the learned counsel for respondent Lokayuktha that the writ petition is premature is not accepted.
14. The complaint was lodged against the petitioners for the project work in question which was completed in the year 2007-2008 and the complaint was filed on 25/4/2009. However, the impugned order passed by the Government entrusting the enquiry is passed on 7/10/2014 and article of charges was issued to the petitioners on 17/01/2015 which is only after an inordinate delay of more than 7 to 8 years from the date of completion of the project work in question. The impugned order entrusting the inquiry with the 2nd respondent was passed and also article of charges were issued to the petitioners in the year 2015.
15. The Division Bench of this Court in W.P. No.147900/2020 disposed of on 08.09.2021, after referring to the decisions of the Hon'ble Apex Court in the 12 cases of Sri. K.S.Nanjegowda Vs. State of Karnataka By the Lokayuktha and another and Union of India (UOI) and Anr. Vs. Kunishetty Satyanaraya, reported in (2006) 12 SCC 28 and also in the case of Secretary, Minister of Defence and other V/s Prabhash Chadra Mirdha, reported in (2012) 11 SCC 565 has held that the delay of more than 7 to 8 years in initiating the disciplinary action without offering any explanation is not permissible.
16. In the present case, enquiry is initiated after more than eight years from the date of incident and no explanation is offered in the inordinate delay in initiating the enquiry. Hence, on this ground also the petitions succeeds.
17. The case of the petitioners is that the enquiry is selective and discriminative, since no inquiry was initiated as against the Deputy Commissioner and Tahasildar approving the project work. The Division Bench of this Court in W.P. NO.147900/2020 disposed of on 08.09.2021 has held that no reasons have been assigned as to why the 13 departmental inquiry is initiated to the petitioner therein without initiating the inquiry against other officers who were involved in the project work, was held to be discriminatory. However, in the present case, the Deputy Commissioner and the Tahasildar have only approved the project work, but were not involved in execution of the work. Hence, the submission of the learned counsel for petitioners that the inquiry initiated against the petitioners is selective and discriminatory is not acceptable.
18. In view of the preceding analysis, I am of the considered view that the entrustment of inquiry by the Government to the 2nd respondent is one without application of mind and there is inordinate delay of more than 7 to 8 years in initiating the disciplinary action without offering explanation is not permissive in law. Hence, I pass the following:
ORDER
i) The writ petition is allowed.14
ii) The impugned order dated 7/10/2014 passed by the respondent No.1 Annexure- A is quashed and consequently the article of charges issued by respondent No. 3 is also quashed.
Sd/-
JUDGE Vb/-