Karnataka High Court
The Karnataka Lokayukta vs The State Of Karnataka on 27 October, 2022
Bench: G.Narendar, P.N.Desai
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO.15559/2022 (S-KSAT)
BETWEEN:
THE KARNATAKA LOKAYUKTA,
REP BY ITS REGISTRAR,
M S BUILDING, K R CIRCLE
BENGALURU-560001.
... PETITIONER
(BY SRI ASHWIN S.HALADY, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF ANIMAL HUSBANDRY
AND FISHERIES, M S BUILDINGS,
BANGALORE-560001.
2. DR B ANAND
AGED ABOUT 56 YEARS
S/O SRI T BORAIAH
WORKING AS DEPUTY DIRECTOR
DISTRICT POLY CLINIC,
DEPARTMENT OF ANIMAL HUSBANDRY
AND FISHERIES,
MADIKERI, ODAGU DISTRICT-571201
... RESPONDENTS
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER PASSED BY THE HON'LE KSAT BENGALURU IN A.No-
244/2016 DATED 26.06.2019 (ANNEXURE-A).
THIS WRIT PETITION COMING ON FOR "PRELIMINARY
HEARING" THIS DAY, G.NARENDAR J, MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner.
2. Keeping open the issue regarding maintainability of the writ petition, we have considered the matter otherwise on merits.
3. The facts in a nutshell are that; a charge memo dated 15.11.2010 came to be issued to the second respondent alleging misappropriation and pursuant to the charge memo, an enquiry came to be conducted by the Deputy Director. The Enquiry Officer perused the material on records and submitted a report absolving the second respondent of any wrong doing by rendering a report stating that the allegation of misappropriations are not proved. A copy of the enquiry report is produced as Annexure-A1 and the endorsement by the Chief Executive 3 Officer accepting the report dated 23.11.2010 is produced as Annexure-A2. A show cause notice is produced as Annexure-A3 and Annexure-A5 is the articles of charge. Annexure-A6 is the reply and Annexure-
A11 is the Government Order intimating the second respondent about dropping of the proceedings. Thereafter, the Deputy Registrar (Enquiries-IV) of the Lokayukta has communicated by a DO letter, thereby calling upon the first respondent to hand over the enquiry to the Lokayukta and the first respondent appears to have dutifully complied with the demand on 01.12.2015. The same came to be impugned before the Tribunal. The Tribunal has rendered a categorical finding that the entrustment is done in a mechanical manner without reference to the earlier enquiry and the endorsement issued by the Government. The fact that there was an earlier enquiry and a report absolving the DGO, has been given a go-bye. The fact that the articles of charge were issued in 2010 and a show cause notice was issued, explanation called for, enquiry conducted and endorsement issued, accepting the enquiry report and 4 dropping the charges are not in dispute. If that be so, whether a second enquiry merely on the asking of the Lokayukta is permissible?
4. The tribunal has rendered a finding that the impugned entrustment order is vitiated by non application of mind as the same has been passed in a mechanical manner without appreciating the findings of the Enquiry Officer and the report absolving the second respondent of any wrong doing and that too after a period of nearly five years. The charge appears to be related to the year 2008-
09. Enquiry has been concluded in 2014. The learned counsel for the petitioner is unable to point out as to which provision enables the Government to reopen an enquiry or which provision enables the Lokayukta to revisit or reopen a concluded enquiry. The conclusion drawn by the Government, dropping the proceedings have not been called in question and have become final. It is settled law that no man can be vexed twice. In support of our conclusion we place reliance on the rulings of the Hon'ble Apex Court 5 rendered in (2007) 11 SCC 517 in the case of Kanailal Bera Vs. Union of India and Others, wherein at para Nos.5 and 6 the Hon'ble Apex Court has held as follows:-
"5. Learned counsel appearing on behalf of the appellant in support of his appeal submitted that the High Court in a situation of this nature should not have refused to entertain the writ petition as also the letters patent appeal preferred by the appellant herein only on the ground of delay and laches as a result whereof manifest injustice has been caused to him. Learned counsel would point out that in terms of Rule 27 of the Central Reserve Police Force Rules, the respondent could not have initiated a second inquiry after having found that the charges have been partially proved in the first inquiry. It was, furthermore, contended that in the Central Reserve Police Force Act and the Rules framed thereunder, there does not exist any provision for imposition of punishment of confinement to Civil Lines which was applicable only to the persons governed by the Army Act.
6. The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5-4-1995 of the disciplinary authority was unsustainable in law. Rule 27 of the 6 Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges leveled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges leveled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry."
5. If the above be the admitted position, in our considered opinion, the first respondent could not have, in a mechanical fashion, exercised the power under Section 14-A of the Karnataka Civil Services (C.C.A.) Rules, 1957 (for short KCS (C.C.A.) Rules, 1957, which reads as under:-
"[14-A. Procedure in cases entrusted to the Lokayukta. - (1) The provisions of sub-rule (2) shall, notwithstanding anything contained in Rules 9 to 11-A and 13, be applicable for purposes of proceeding against Government Servants whose alleged misconduct has been investigated into by the Lokayukta or an 7 Uplokayukta either under the provisions of the Karnataka Lokayukta Act, 1984 or on reference from Government [or where offences alleged against them punishable under the Prevention of Corruption Act, 1947, or the Prevention of Corruption Act, 1988 has been investigated by the Karnataka Lokayukta Police before 21st day of December, 1992.] (2) (a) Where an investigation into any allegation against. -
(i) a member of the State Civil Services Group-'A' or Group-'B'; or
(ii) a member of the State Civil Services Group-'A' or Group-'B' and a member of the State Civil Services Group-'C' or Group-'D'; or
(iii) a member of the State Civil Services Group-'C' or Group-'D', [the Lokayukta or the Upalokayukta or, (before the 21-12-1922), the Inspector-General of Police of the Karnataka Lokayukta Police is of the opinion], that disciplinary proceedings shall be taken, he shall forward the record of the investigation along with his recommendation to the Government and the Government, after examining such record, may either direct an inquiry into the case by the Lokayukta or the Upalokayukta or direct the appropriate Disciplinary Authority to take action in accordance with Rule 12.8
(b) Where it is proposed to hold an inquiry into a case under clause (a) the enquiry may be conducted either by the Lokayukta or the Upalokayukta, as the case may be, or an officer on the staff of the Lokayukta authorized by the Lokayukta or the Upalokayukta to conduct the inquiry:
Provided that the inquiry shall not be conducted by an officer lower in rank than that of Government servant against whom it is held:
Provided further that an inquiry against a Government Servant not lower in rank than that of a Deputy Commissioner shall not be conducted by any person other than the Lokayukta or the Upalokayukta or an Additional Registrar (Inquiries):
Provided also that an officer on the staff of the Lokayukta authorized to conduct an inquiry under clause (b) shall not have the power to appoint another officer to conduct it wholly or in part.
(c) The Lokayukta, the Upalokayukta or the Officer authorized under clause (b) to conduct an inquiry shall conduct it in accordance with the provisions of Rule 11 in so far as they are not inconsistent with the provisions of this rule and for that purpose shall have the powers 9 of the Disciplinary Authority referred to in the said rule.
(d) After the inquiry is completed, the record of the case along with the findings of the Inquiring Officer and the recommendation of the Lokayukta or the Upalokayukta as the case may be, shall be sent to the Government.
(e) On receipt of the record under clause
(d) the Government shall take action in accordance with the provisions of [xxx] Rule 11-
A and in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties specified in Rule 8.
(3) Nothing in sub-rule (1) shall be applicable to members of the Karnataka Judicial Service or Government servants under the administrative control of such members or of the High Court of Karnataka."
6. Neither the learned counsel for the petitioner nor the learned Additional Government Advocate are able to point out the provisions of the Act or Rules, which empowers them to suo-motu reopen a concluded enquiry and that too in the absence of any allegation of fraud. It is almost more than a decade since the charge was made and 10 yet the pot is kept boiling for reasons best known to the first respondent. No conclusive material is placed before us to even prima-facie demonstrate that the conclusions drawn by the earlier enquiry officer and the findings of the enquiry report are contrary to material evidence. When queried, the learned counsel for the petitioner would submit, that it is a matter that can be looked into during the enquiry and that materials can be garnered during the course of the enquiry. In our opinion, the said approach amounts to a roving enquiry and also an implicit admission that they do not possess any material which prima-facie demonstrate the guilt. Rule 11(4) of the KCS (C.C.A.) Rules, 1957 provides for the issuance of articles of charge and rules mandate that all the material upon which reliance is placed on, ought to be available to the delinquent. Sub-Rule (4) of Rule 11 of KCS (C.C.A.) Rules, 1957, reads as under:-
"(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of 11 charges is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person."
7. From a reading of the above, it is apparent that the articles of charge are required to be accompanied by a list of documents upon which reliance is to be placed to prove each of the charges and also a list of witnesses is also required to be furnished to the delinquent/noticee. Thus the rule pre-supposes that an enquiry shall be preceded by marshalling of material evidences and witnesses and is unlike an investigation. The provisions of rules do not authorize commencement of an investigation after commission of an enquiry. The provisions of KCS (C.C.A.) Rules, 1957, are not on par with the provisions of Chapter- XII (Section 156) of the Cr.P.C. Hence, the said contention that marshalling of material, evidence and witnesses could be done during the course of the enquiry, in our opinion, is anathema to service jurisprudence.
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8. In that view of the matter, we do not find any error in the orders impugned. The order of the tribunal does not warrant any interference at the hands of this Court. Accordingly, writ petition stands dismissed.
9. Before parting, we desire to place on record our anxiety about the long winding enquiries, and in view of the enormous length of time during which, the Government Servant is required to face enquiries. We are of the firm opinion that pendency of the enquiries will reduce the productivity of the Government Official and in fact, provides for completion of the enquiry within nine months. Yet, this is one other case where the allegations are successfully kept smoldering for more than a decade. In our opinion allowing enquiries to linger on would certainly be counter productive. Passage of time can allow the delinquent to win over witnesses and achieve success by screening the critical material or even destroying it. Hence, we direct the Government to take such action that would ensure early 13 completion of the enquires in compliance with the rules/circulars.
In view of disposal of the petition, pending applications do not survive for consideration and are accordingly, disposed off.
Sd/-
JUDGE Sd/-
JUDGE Chs CT-HR