Karnataka High Court
V Hanumantharayappa vs State Of Karnataka on 6 March, 2020
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.44577 OF 2017(S-KAT)
BETWEEN:
V HANUMANTHARAYAPPA
AGED ABOUT 34 YEARS,
S/O VENKATACHALAIAH,
WORKING AS TAHSILDAR GRADE-I
BANGALORE NORTH TALUK
BANGALORE DISTRICT
...PETITIONER
(BY SRI.P.S.RAJAGOPAL, SR.COUNSEL FOR
SRI.JAYANTH DEV KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
TO THE GOVERNMENT
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA,
DR B.R. AMBEDKAR VEEDHI
BENGALURU-560 001
2
2. SECRETARY TO THE GOVERNMENT
DEPARTMENT OF REVENUE (SERVICES-III)
M.S. BUILDING
BENGALURU-560 001
3. KARNATAKA LOKAYUKTA
REPRESENTED BY ITS REGISTRAR
M.S. BUILDING
DR AMBEDKAR VEEDHI,
BENGALURU-560 001
...RESPONDENTS
(BY SRI.VENKATESH DODDERI, AGA FOR R1 & R2;
SMT.A.D.VIJAYA, ADVOCATE FOR R3)
THIS PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE ENTIRE RECORDS LEADING TO THE
ORDER DATED 24.08.2016 IN APPLICATION NO.3297
OF 2017 PASSED BY THE TRIBUNAL AND QUASH
ORDER DATED 04.07.2017 PASSED BY THE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL,
BENGALURU IN APPLICATION NO.3297 OF 2017
(UNDER ANNEXURE-A TO THE WRIT PETITION) AND
CONSEQUENTLY ALLOW THE APPLICATION NO.3297
OF 2017, AND GRANT ALL CONSEQUENTIAL RELIEFS.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 10.12.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, SACHIN
SHANKAR MAGADUM J., MADE THE FOLLOWING:
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ORDER
The petitioner joined the services of State Government as Tahsildar Grade-I with effect from 03.06.2008. The petitioner worked as Tahsildar Grade-I between 01.03.2010 and 22.11.2011 in Coorg District, which is the relevant period of time, wherein the acts done during the course of his official duty is the subject matter of joint departmental inquiry. The petitioner approached the Karnataka State Administrative Tribunal (for short 'the Tribunal') being aggrieved by the order dated 10.05.2017 passed by the respondent No.2, by which departmental inquiry was entrusted to the Upa-Lokayukta under Section 14(A) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, on the basis of report of Upa-Lokayukta dated 02.07.2015 submitted under Section 12(3) of the Karnataka Lokayukta Act, 1984 (for short 'the Act').
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2. The allegation against the present petitioner is that the petitioner being part of Anadhikrutha Saguvali Sakraminkarana Committee has approved grants contrary to Rules and Regulations. The petitioner being aggrieved by the order dated 15.10.2015 passed by the respondent No.2 entrusting departmental inquiry to the Lokayukta filed Original Application No.2266/2016 before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985. The contention of the petitioner before the Tribunal was that long before the petitioner assuming the charge of Tahsildar Grade-I, his predecessor Tahsildar on an application submitted by Smt. M.C.Tara in Form No.53 had directed the Revenue Inspector for inspection, production of sketch of the said property to be undertaken by a Surveyor and to submit the report to him. The grievance of the petitioner before the 5 Tribunal was that it is after conclusion of this proceedings, more particularly conducting of survey and consequently, on receipt of survey report and sketch, the present petitioner directed the Revenue Inspector one Jayakumar to conduct inspection again and prepare checklist in that regard for further action. In terms of the said order of the petitioner, the Revenue Inspector Jayakumar conducted the inspection and furnished checklist along with his note stating that the land could be granted in terms of law as the applicant had been in possession for a long time. The contention of the petitioner that entire file relating to grant of land in Form No.53 in Sy.No.219/1 was placed before the Committee for approval of said grant. It is only in terms of proceedings of the Committee, the petitioner issued an order indicating the decision of the Committee granting land in favour of Smt. M.C.Tara. The contention of the petitioner 6 before the Tribunal was that it was not a solitary decision taken by the Committee on 01.04.2011 as there were 69 grants made on the day and the proceedings of the Committee would indicate that it was a collective decision of the Committee on collective files and not selective files.
3. The petitioner specifically contended before the Tribunal that entrustment of joint departmental inquiry was not at all preceded by application of mind and the ingredient of examination of the report submitted was totally missing in the present case on hand and on this count, the petitioner sought for quashing of the order bearing No.RD 49 ADE 2015 dated 15.10.2015 passed by respondent No.2.
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4. The Tribunal after hearing both the parties allowed the application by order dated 06.06.2016 by holding that the impugned order entrusting the joint departmental inquiry did not indicate compliance of Section 12(4) of the Act. The Tribunal was of the view that the Authority while issuing the said order has not examined the report sent under Section 12(3) of the Act as required under Section 12(4) of the said Act and the Tribunal allowed the application and remitted the matter to the respondent No.2 to consider the matter afresh and set aside the order dated 15.10.2015 and all further proceedings pursuant to the said order against the petitioner reserving liberty to the competent authority to examine the report in complaint No.UpaLok/MYS-2533/14/ARE-7 dated 02.07.2015 strictly in terms of Section 12(4) of the Act and thereafter, proceed to take appropriate action in the matter in accordance with law.
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5. The respondent - State without examining the report under Section 12(3) and without following the directions issued by the Tribunal entrusted joint inquiry against the petitioner and three others to the Upa-Lokayukta. After the order of the Tribunal, the respondent - State assigned reasons for not initiating inquiry against Jayakumar but, however, inspite of there being a specific direction by the Tribunal, did not even make a reference to the contentions of the petitioner and proceeded to recommend joint departmental inquiry.
6. Being aggrieved by the order passed by the respondent - State under Section 12(4) of the Act, the applicant filed application in Application No.3297/2017. The Tribunal by its order dated 04.07.2017 has proceeded to reject the application on the ground that in a disciplinary proceedings, the 9 power of judicial review is permissible only (i) where the disciplinary proceedings are initiated by an incompetent authority; (ii) such proceedings are in violation of any statutory rule of law; (iii) where there has been gross violation of principles of natural justice; and (iv) on account of proven bias and mala fides. The Tribunal while rejecting the application has proceeded to hold that none of the above grounds are present in the case on hand which would warrant interference and on these set of reasonings, the Tribunal rejected the application.
7. The present petitioner being aggrieved by the order dated 04.07.2017 passed in Application No.3297/2017 has filed the top noted writ petition.
8. Heard Sri P.S. Rajagopal, learned Senior Counsel for the petitioner and Sri Venkatesh Dodderi, learned AGA for the State.
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9. Sri P.S. Rajagopal, learned Senior Counsel while marshalling his arguments has raised several points to demonstrate that the order passed by the Tribunal is perverse and contrary to its findings in the earlier Application No.2266/2016. Learned Senior Counsel would rely on the following judgments of the Hon'ble Apex Court:
Sl. Particulars Citation No 1. Canara Bank & Others v. Swapan (2006) 3 SCC 251 Kumar Pani & Another 2. Babu Verghese & Others v. Bar (1999) 3 SCC 422 Council of Kerala & Others 3. Sukhdev Singh & Others v. (1975) 1 SCC 421 Bhagatram Sardar Singh Raghuvanshi & Another 4. Mohinder Singh Gill & Another v. (1978) 4 SCC 405 The Chief Election Commissioner, New Delhi & Others 5. Ranjit Thakur v. Union of India & (1987) 4 SCC 611 Others
6. Institute of Chartered Accountants (1986) 4 SCC 537 of India v. L.K.Ratna & Others
7. Chief of Army Staff & Others v. (1985) 2 SCC 412 Major Dharam Pal Kukrety
8. The Barium Chemical Ltd & (1972) 1 SCC 240 Another v. SH.A. J. Rana & Others
9. Chairman, Life Insurance (2013) 6 SCC 530 11 Corporation of India & Others v.
A.Masilamani
10. M/s. Maharana Mills (Private) Ltd AIR 1959 SC 881 v. The Income Tax Officer, Porbander
11. Zunjarrao Bhikaji Nagarkar v. (1999) 7 SCC 409 Union of India & Others and would point out several laches and infractions of mandatory procedure. He would vehemently argue and submit that under Section 9 of the Act which is a pre-investigation stage, the authorities are required to notify and secure explanation from the Government servant against whom the investigation is initiated and relying on Section 9 of the Act, he would submit to this Court that though the petitioner had submitted reply, the authority has not conducted investigation post petitioner offering explanation and in this background, learned Senior Counsel would submit that the report prepared under Section 12(3) of the Act stands vitiated for want of investigation as per Section 9(3)(b) of the Act. Learned Senior Counsel would also 12 rely on Rule 14(A)(iii) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 and would submit to this Court that an employee against whom an investigation is initiated is required to be heard at two stages, one at pre-investigation stage and the second which would be of much significance is after seeking an explanation.
10. Learned Senior Counsel by harping on law and relevant provisions would vehemently argue and contend that it is a fit case for remand on the ground that the authority have failed to follow the mandatory procedure. He would further take us to Annexure-A13 and contend before us that the authorities have failed to send a copy of report along with show cause notice and since the opinion of recording and writing is not served on the public servant, the very report under Section 12(3) of the Act stands vitiated. 13
11. Learned Senior Counsel would take us to the second order of the authority after remand by the Tribunal and would vehemently argue and contend before us that the order dated 10.05.2017 is a cyclostyled order and in fact in the second order, there is absolutely no application of mind and the authority has not at all examined the report as mandated by the Tribunal in Application No.2266/2016. Learned Senior Counsel would further take us to the order under challenge and would vehemently argue and contend that in fact in the second order, no reasons are forthcoming for entrusting the departmental inquiry against the present petitioner. By reading the contents of the order under challenge, he would bring it to our notice that the authority has assigned reasons for not initiating inquiry against Jayakumar but, however, there is absolutely no reference to even the 14 contentions of the petitioner. While relying on this laches on the part of authority, he would contend that the authority has not at all attended the case of the petitioner, let alone consideration and examination of such contention. Learned Senior Counsel while questioning the reasoning assigned by the Tribunal would contend before us that the very Tribunal in earlier application No.2266/2016 had rightly allowed the application and set aside earlier order recommending departmental inquiry. In fact after remand, the order of the respondent - authority is a reproduction of earlier order and there is absolutely no reference to the case of the petitioner. On the contrary, there are some fresh allegations attributed towards the petitioner which were not at all notified to the petitioner. Learned Senior Counsel would further contend that the Tribunal has not at all examined all these material aspects which goes to the root of the 15 case. He would further submit that the impugned order passed by the respondent - State as per Annexure-A24 to the writ petition is biased and on perusal of the order it only indicates that the authority has given stress more on the case of Jayakumar and there is absolutely no reference to the petitioner's case and in this background, he would submit that the Tribunal erred in rejecting the application and would request this Court to quash the order of the Tribunal.
12. Per contra, learned AGA would support the order of the Tribunal and would submit to this Court that the authority pursuant to remand by the Tribunal has examined the report of the Lokayukta submitted under Section 12(3) of the Act and after giving anxious consideration to the report and only after applying its mind has proceeded to entrust joint departmental inquiry to Upa-Lokayukta against the present petitioner and since there is no infraction or 16 violation of the procedure contemplated under Sections 7, 9(3), 10 and 12(3) & (4) of the Act, he would request this Court to dismiss the writ petition. Learned AGA in support of his contention would rely on the judgments of this Court in Vijay Kumar G. Sulakhe .vs. State of Karnataka and others[LAWS(KAR)2018 9 242] and also on the proposition relied on by this Court in the case of The State of Karnataka, Dept. of Transport and another .vs. Sri. Shivanand B. Magadum and others[WP.No.104460 of 2018 and connected matter disposed of on 10.9.2018].
13. The Tribunal while considering the claim of the petitioner in Application No.2266/2016 had set aside the report sought by Upa-Lokayukta under Section 12(3) of the Act and there was specific finding by the Tribunal in the earlier round of litigation that the authority concerned while passing the impugned 17 order has not at all meticulously examined the report sent by Upa-Lokayukta and the order dated 15.10.2015 is only confined to Jayakumar, Revenue Inspector. The Tribunal further proceeded to hold that the mandatory requirement of examining the petitioner's case was not done. The Tribunal was of the view that the respondent - authority though did examine the case of Jayakumar, Revenue Inspector, however, found that similar exercise was not carried in regard to petitioner's case and the Tribunal on this set of material facts, proceeded to hold that the entrustment of departmental inquiry against the petitioner stands vitiated on account of non- compliance of Section 12(4) of the Act and accordingly, the order dated 15.10.2015 was set aside by the Tribunal reserving liberty to the authority to take further action in the matter in accordance with law.
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14. Pursuant to the order passed by the Tribunal in Application No.2266/2016, the authority took up the matter for fresh consideration. On perusal of order dated 10.05.2017, which is the subject matter in the present writ petition passed by the respondent No.1, it is quite astonishing to note that it is virtually a replica and mirror image of the earlier order dated 15.10.2015. If the order dated 15.10.2015 and the present order dated 10.05.2017 passed under Section 12(4) of the Act are examined by comparing, every paragraph of the orders are almost similar and identical. On perusal of the impugned order dated 10.05.2017, there is a total reproduction of earlier order upto page 3 of the order dated 10.05.2017 and at page 3 from 3rd paragraph, three new paragraphs are added and some new allegations are attributed. It is quite strange to note that the authority has not even referred to the name 19 of the petitioner in the impugned order under challenge. Leave out considering the case of the petitioner and his objections, the respondent No.1 - authority has not taken note of the explanation submitted and the grievance of the petitioner are also not examined and since there is absolutely no attempt made by the authority to attend the case of the present petitioner herein, question of examination of the report would not arise in the present case on hand.
15. In view of the above material aspects, if we examine the reasons assigned by the Tribunal passed in Application No.3297/2017, the order passed by the Tribunal suffers from serious infirmities. The finding of the Tribunal that the impugned order of entrustment of inquiry dated 10.05.2017 to the Lokayukta would not call for interference and when the institutions like Lokayukta/Human Rights 20 Commission/Commission for Women/Commission for Scheduled Caste and Scheduled Tribes have inherent power to take suo motu cognizance of any offence and order for investigation and hence, the entrustment of departmental inquiry would not warrant interference is contrary to the provisions of Section 12(4) of the Act. The Tribunal while coming to the above said conclusion has not at all examined its earlier order which was passed in Application No.2266/2016. The Tribunal has not examined the order of entrustment which was earlier set aside by the Tribunal. The earlier order dated 15.10.2015 and the present impugned order of entrustment dated 10.05.2017 are replica of each other and in spite of the earlier order of the Tribunal setting aside entrustment for non- examination which is a mandatory requirement under Section 12(4), the Tribunal in the second round of litigation was required to examine the impugned order 21 passed by the authority under Section 12(4). In spite of direction by the Tribunal, the authority for the reasons best known, has not at all taken up the case of the present petitioner and hence, the finding of the Tribunal that entrustment of departmental inquiry is in accordance with law is not at all sustainable.
16. The petitioner has specifically contended before the Tribunal that the Tribunal has rightly set aside the earlier order of entrustment on the ground of non-application of mind on the part of the Authority and while doing so, there was a specific contention in the application as to how the second order came to be passed mechanically without even referring the name of the present petitioner in the second order which is under challenge. At paragraph 4 of the application, the petitioner has meticulously averred and has furnished the details and has countered every 22 paragraph of the impugned order dated 10.05.2017 and if this specific averment made at para 4 of the application in Application No.3297/2017 is examined, then the finding of the Tribunal that the order of the authority under Section 12(4) thereby ordering for entrustment does not suffer from any infirmities is contrary to the material on record and also there is a specific pleading which clearly demonstrates that even on the second occasion, the respondent - authority has not at all examined the case of the petitioner.
17. The Tribunal has held in the concluding para that judicial review is permissible only (i) where the disciplinary proceedings are initiated by an incompetent authority; (ii) such proceedings are in violation of any statutory rule of law; (iii) where there has been gross violation of principles of natural justice; and (iv) on account of proven bias and mala 23 fides. The findings of the Tribunal that none of the above grounds are present warranting interference is palpably erroneous. The impugned order dated 10.05.2017 passed by the authority clearly discloses gross non-application of mind and the same is vitiated by absence of reasons and gross discrimination while dropping the case against Jayakumar. The impugned order does not indicate that the authority has examined the report sent by the Lokayukta under Section 12(3) of the Act and this would clearly indicate that there is violation of mandatory provision contemplated under Section 12(4) of the Act. The petitioner has submitted a detailed reply on 10.09.2014 and has raised several vital defence in his reply. There is absolutely no reference to the reply submitted by the petitioner and on this count, the impugned order passed is in gross violation of principles of natural justice and the Tribunal erred in 24 not interfering with the same. The authorities have taken pain to consider the case of Jayakumar on both occasions and no reasons are forthcoming insofar as the petitioner's case is concerned. This clearly indicates the bias and malafides on the part of the authority and on this count also the Tribunal ought to have interfered and set aside the impugned order dated 10.05.2017. The Tribunal has also not examined the material fact that after remand, the authority has added an additional paragraph attributing fresh allegations and without notifying the present petitioner and affording an opportunity, the impugned order is passed. On this count also, the Tribunal ought to have set aside the order of entrustment of departmental inquiry.
18. Learned Senior Counsel has cited the judgments of the Hon'ble Apex Court and has made 25 legal submissions in regard to powers of the Upa- Lokayukta and it is bounden duty to exercise powers strictly within the four corners of statutes and by relying on the Hon'ble Apex Court judgment, learned counsel has taken us to the impugned order and has been able to demonstrate that the strict procedure for taking up investigation and conduct investigation and the mandatory rules which requires the authority to examine and pass orders have been meticulously examined by us. Learned Senior Counsel has also cited judgments of Hon'ble Apex Court and has taken us to the order under challenge thereby demonstrating that the validity of the order must be judged by the reasons mentioned in the order itself and while doing so, has tried to convince us that natural justice is applicable to both administrative orders and quasi judicial orders and that natural justice cannot be stumped out when there is right to 26 the statutory procedure. It is also relevant to note that several questions are raised by the learned Senior Counsel in regard to the provisions of Sections 6, 7(2), 9(3)(a), 8(b) and 10 of the Karnataka Lokayuktha Act. However, all these grounds are not urged in the application filed by the petitioner before the Tribunal. However, the authority while accepting the report submitted by the Lokayuktha under Section 12(3), is required to examine Section 12(3) report in terms of Sections 7(2), 9(3)(a) and Section 10 of Karnataka Lokayuktha Act and thereafter pass appropriate orders.
19. On meticulous examination of the pleadings in the application, the earlier order passed by the Tribunal and the order passed by the authority ordering for entrustment of departmental inquiry and the present order dated 10.05.2017 entrusting 27 departmental inquiry, we are of the view that there is breach of fundamental procedure and we hold that the impugned order dated 10.05.2017 is not only contrary to its earlier order, but the same is contrary to the proposition laid down by this Court in the case of Karnataka Lokayuktha, Bangalore vs. H.N. Niranjan & Another reported in 2017 (2) AKR 463 and similar identical cases.
20. For the reasons stated supra, the impugned order dated 04.07.2017 passed in Application No.3297/2017 by the Tribunal is set aside and consequently, the order dated 10.05.2017 passed in No.RD 49 ADE 2015 (Part-I), Bengaluru, by respondent No.2 vide Annexure-24 is set aside . The authorities are at liberty to consider the case of the petitioner afresh and it is only after examination of Section 12(3) report, shall proceed to pass 28 appropriate orders under Section 12(4) of the Act by following due procedure as contemplated under the Act.
With these observations, the writ petition is disposed of.
Sd/-
JUDGE Sd/-
JUDGE CA