Karnataka High Court
Sri. H.T. Mohan Das vs The State Of Karnataka on 5 March, 2022
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF MARCH, 2022
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.15287 OF 2020 (S-RES)
BETWEEN
SRI. H.T. MOHAN DAS
S/O SRI.H.C.THAMMAIAH
AGE 58 YEARS,
EXECUTIVE ENGINEER,
BYTARAYANAPURA DIVISION,
YELAHANKA ZONE,
BBMP BELGANURU
R/AT NO.52, 3RD CROSS ROAD,
SATHYANARAYANA LAYOUT,
BASAVESWARANAGAR,
BENGALURU-560079 ... PETITIONER
(BY SRI.VIJAY SIMHA REDDY D.V, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP BY ITS ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
BANGALORE-560 001.
2. THE HON'BLE ADDITIONAL
REGISTRAR OF INQUIRIES-4
KARNATAKA LOKAYUKTA
M.S.BUILDING, K.R.CIRCLE,
BANGALORE-560 001. ...RESPONDENTS
(BY SMT. M.C. NAGASHREE, AGA FOR R1)
SRI. VENKATESH S ARABATTI FOR R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS PERTAINING TO THE IMPUGNED
ENQUIRY REPORT VIDE ANNEXURE-S PASSED BY THE R-2
AND THE IMPUGNED ORDER DATED 02.11.2018 VIDE
ANNEXURE-Y PASSED BY THE R-1 AND ETC.,
THIS WRIT PETITION COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner, who was earlier working as Assistant Executive Engineer during the year 2004-05 at Basavanagudi Sub-division, BBMP was issued with a show cause notice on a charge that during the year 2004-05, in ward No.50, as per the work order issued, the asphalting of Rama Iyengar road was required to be taken up, however, the petitioner and the officers including the Executive Engineer did not undertake the asphalting of Rama Iyengar Road and that they entered the measurement in Measurement Book (MB) to show that asphalting of Rama Iyengar Road is carried out, although no work was done and they 3 misappropriated the funds. The reply given by the petitioner was not accepted and the matter was entrusted to the Lokayukta for enquiry. The 2nd respondent-Additional Registrar of Inquiries-4, Karnataka Lokayukta conducted enquiry and although the Enquiring Officer come to a conclusion that there was no misappropriation on the part of the petitioner and other officers, since it was found that on account of BWSSB undertaking the works of laying pipeline on Rama Iyengar Road, the work was instead undertaken at the adjacent road, including the market road and entry was made in the MB Book for having undertaken works on the market road and funds were utilised, payment was made to the contractor, however, the Enquiry Officer come to a conclusion that the petitioner and his higher officer i.e., the Executive Engineer have violated the procedure prescribed in the BBMP tender document, more particularly clause 13(a)(i). Consequently, it was held that the petitioner 4 and the other officers who were chargesheeted alongwith the petitioner have unauthorisedly utilised the money approved for the financial year 2004-05 for some other works and have committed misconduct under Rule 3(i) & (iii) of the Karnataka Civil Service (CCA) Rules, 1966.
2. Learned counsel for the petitioner submits that in paragraph No.21 of the report of the Enquiry Officer, it is found that in terms of clause 13(a)(i), it is the Executive Engineer who has the power to make any alterations, omissions, additions to or substitutions for the original specifications, drawings, designs and instructions. The Executive Engineer has the power, for the reasons to be recorded that it is desirable to direct the contractor to act as per his directions keeping in mind the scope of such powers conferred on the Executive Engineer in the said clause. The learned counsel submits that sufficient material has been placed before the Enquiry Officer to 5 substantiate the contention of the petitioner that the petitioner, being the Assistant Executive Engineer had acted as per the directions of the Executive Engineer, who in turn took note of the communication dated 02.02.2005 made by the former Mayor, who brought to the notice of the authorities that the BWSSB had undertaken work on Rama Iyengar Road and therefore instead of waiting for completion of the work at the hands of the BWSSB, works could be undertaken at the neighbouring roads which also fall within the jurisdiction of ward No.50.
3. The learned counsel for the petitioner further draws the attention of this Court to a communication dated 15.06.2006 made by the Chief Engineer (South) BBMP to the editor Times of India, Bangalore clarifying the news item carried by the news paper that "BBMP has paid for road not done"
and it was further suggested Rs.10 lakhs was paid to the contractor for work not done on the Rama Iyengar 6 Road. The Chief Engineer clarified the position to the editor while stating that as per the records, the Executive Engineer, Basavanagudi Division was entrusted with works estimated at a sum of Rs.9.35 lakhs for asphalting the Middle School Road, Rama Iyengar Road, S.B. Road in ward No.50 for the year 2004-05. Though work order was issued to the contractor to undertake the asphalting of the roads, however the local residents of the Ram Iyengar Road requested the palike not to asphalt the road till sanitary lines rectification was completed by BWSSB. Since the work were not undertaken on the Rama Iyengar Road there was a savings in quantity in SDBC-107.10 CMT (4284.00 Sqm) involving an amount of Rs.2,88,955/-. The Chief Engineer proceeds to clarify that this savings were utilised on the adjacent road namely cross roads of Shranddananda Bhavan road, Middle School cross road, Market Road, Magadi Venkatappa Lane & 9th 7 Cross Md.Block, at the request of the area Corporator Sri P.R.Ramesh. It was clarified that the amount was therefore properly utilised.
4. The learned counsel has also drawn the attention of this Court to the deposition of the witnesses, including the cross-examination made on behalf of the petitioner. The learned counsel would therefore submit that the conclusion arrived at by the Enquiry Officer that the petitioner is guilty of misconduct in terms of Rule 3(1), cannot be sustained.
5. Per contra, learned AGA and the learned counsel for the 2nd respondent-Lokayukta would submit that with the material on record, the Enquiring Officer has rightly noticed that the petitioner and the Executive Engineer, who were chargesheeted along with the petitioner have not followed the due process of law. It was found that to cover up their misdeeds, 8 the petitioner and the Executive Engineer have tried to make insertions in the Inward Registry and have tried to fabricate the evidence in their favour. It is found by the Enquiring Officer that the work at the adjacent market road were taken up subsequently by the delinquent officer after a complaint was lodged by one of the resident of Rama Iyengar Road, who had stated in his complaint that the petitioner and the Executive Engineer have raised bills for having undertaken the works at Rama Iyengar Road.
6. Heard the learned counsel for the petitioner, the learned AGA on behalf of the respondent No.1 - State and the learned counsel for the 2nd respondent- Additional Registrar of Inquiry-IV, Karnataka Lokayukta and perused the petition papers.
7. It is clear from the material available on record that even the Enquiry Officer has come to a conclusion that there has been no misappropriation at 9 the hands of the petitioner or the Executive Engineer under whom the petitioner was working, during the relevant point of time. However, much is sought to be made out regarding the communication dated 02.02.2005 said to have been made by the Former Mayor, requesting the executive Engineer to halt the works at Rama Iyengar Road in view of the BWSSB undertaking works for laying the pipeline and further requesting the Executive Engineer to take up the works on the adjacent market roads and other cross roads utilising the funds which were earmarked for the purpose of asphalting Rama Ieygnar Road. The Investigating Officer has noticed in paragraph No.18 of his report that the Hon'ble Upa-Lokayukta in his report under Section 12(3) of the Karnataka Lokayukta Act, 1984 had given a finding that the investigation report reveals that the Corporator's letter was inserted in the inward registry on 02.02.2005 at Sl.No.183 by altering Sl.No.183 as 10 Sl.No.183A. It was therefore felt that the delinquent officer has not given cogent reasons for not asphalting the Rama Iyengar Road.
8. In the considered opinion of this Court, what is evident from the enquiry report is that even the Enquiring Officer was convinced with the fact there has been no misappropriation at the hands of the petitioner or the Executive Engineer. Although initially it was sought to be imputed on the petitioner and other delinquent officer that they have made entry in the measurement book that they had carried out the works on Rama Iyengar Road and that bills were raised as per the measurement Book, it was found that no such entry was made in the measurement book in respect of Ram Iyengar Road. No bills were raised even by the contractor with respect of Rama Iyengar Road. Therefore, it is clear from the material available on record and as per the conclusion arrived by the Enquiry Officer that neither the petitioner nor 11 the Executive Engineer had made any entry in the measurement book in respect of works carried on Rama Iyengar Road. Even before the show cause notice could be issued or enquiry was commenced against the petitioner, the Chief Engineer (South) BBMP had made a communication on 15.06.2006 to the Editor of Times of India Newspaper, clarifying the position that for the reasons stated therein, the works were not carried on Rama Iyengar Road, however the works were carried out on the adjacent market road and other cross roads and the funds were utilised properly. Most importantly what has to be noticed is that as per the clauses in the tender notification, it is the Executive Engineer, who is empowered to take a decision to do any alteration. Therefore, when the petitioner, who was then the Assistant Executive Engineer is on record even in reply dated 16.06.2006 at Annexure-D, that as per the directions of the Executive Engineer, he carried out the works at 12 market road and other cross roads since it was found that works were undertaken by the BWSSB on Rama Iyengar Road, no fault can be found on the part of the petitioner. Along with the petitioner, the then Executive Engineer has also been chargesheeted. The Executive Engineer has given his explanation before the Enquiry Officer and stood by the statement given by the petitioner herein that as per his instructions the works were carried out in the market roads instead of Rama Iyengar Road.
9. This Court has also gone through the provisions contained in Rule 3 of the Karnataka Civil Services (Conduct) Rules, 1966. Rule 3 provides that every Government Servant shall at all times;-(i) maintain absolute integrity;(ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government Servant.
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10. In the considered opinion of this Court, the charges leveled against the petitioner and finding given by the Enquiry Officer, do not establish anything against the petitioner by which the Disciplinary Authority could have imputed the charges contained in Rule 3 of the conduct rules. Therefore, this court proceeds to hold that the punishment imposed on the petitioner by the Disciplinary Authority, directing to withhold two increments with cumulative effect cannot be sustained.
11. For the reasons stated above, this Court proceeds to pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The order of punishment as contained in
Government Order dated 2.11.2018 at
Annexure-Y is hereby quashed and set
aside.
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(iii) The petitioner is entitled for all
consequential benefits including the
promotion, if it was withheld either during the course of enquiry or after the impugned order of punishment was passed by the State Government - 1st respondent.
Ordered accordingly.
Sd/-
JUDGE KLY