Karnataka High Court
Sri.K.S.Linge Gowda vs The State Of Karnataka on 29 September, 2023
W.P.No.36300/2017
C/w W.P.No.47293/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE RAMACHANDRA D. HUDDAR
WRIT PETITION No.36300/2017 (GM-KLA)
C/w
WRIT PETITION No.47293/2016 (GM-KLA)
W.P.No.36300/2017:
BETWEEN:
SRI K.S.LINGE GOWDA
S/O LATE R SIDDEGOWDA
AGED ABOUT 50 YEARS
WORKING AS EXECUTIVE ENGINEER
MANGALORE CITY CORPORATION
MANGALORE - 575 004 ...PETITIONER
(BY SRI GOPAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
REP. BY ITS PRINCIPAL SECRETARY
VIKASA SOUDHA, BANGALORE-560 001
2. THE KARNATAKA LOKAYUKTA
REP. BY IT REGISTRAR
M.S. BUILDING, BANGALORE-560 001
3. THE MANGALURU MAHANAGARA PALIKE
REP. BY ITS COMMISSIONER
M.G ROAD, LALBAGH
MANGALURU - 575 003 ...RESPONDENTS
(BY SRI BASAVARAJ GODACHI, AGA, FOR R1;
SRI ASHWIN S HALADY, ADVOCATE FOR R2;
SRI K.V.NARASIMHAN, ADVOCATE FOR R3)
W.P.No.36300/2017
C/w W.P.No.47293/2016
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
REPORT DATED 11.06.2015 (ANNEXURE-A) SUBMITTED BY
RESPONDENT NO.2 AND THE IMPUGNED GOVERNMENT ORDER
DATED 31.05.2016 (ANNEXURE-B) PASSED BY RESPONDENT
NO.1.
W.P.No.47293/2016:
BETWEEN:
SMT ARATI ANAVEKAR
W/O SANTOSH SHET
AGED ABOUT 45 YEARS
WORKING AS JUNIOR ENGINEER
MANGALURU MAHANAGARA PALIKE
MANGALURU - 575003 ...PETITIONER
(BY SRI M.S.BHAGAWAT, SENIOR COUNSEL FOR
SMT.D.SUDHA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
REP. BY ITS PRINCIPAL SECRETARY
VIKASA SOUDHA, BANGALORE-560 001
2. THE KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR
DR AMBEDKAR VEEDHI
BANGALORE-560 001
3. THE ADDITIONAL REGISTRAR ENQUIRIES-7
THE KARNATAKA LOKAYUKTA
DR.AMBEDKAR VEEDHI
BANGALORE-560001
4. THE MANGALURU MAHANAGARA PALIKE
REP.BY ITS COMMISSIONER
M.G ROAD, LALBAGH
MANGALURU - 575 003 ...RESPONDENTS
(BY SRI BASAVARAJ GODACHI, AGA, FOR R1;
SRI ASHWIN S HALADY, ADVOCATE FOR R2 & R3;
SRI K.V.NARASIMHAN, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
W.P.No.36300/2017
C/w W.P.No.47293/2016
3
ORDER DATED 31.05.2016 (ANNEXURE-A) PASSED BY
RESPONDENT NO.1.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 19.06.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, K.S.MUDAGAL J., MADE THE FOLLOWING:
ORDER
During the year 2010-2011, the petitioner in W.P.No.36300/2017 and W.P.No.47293/2016 were working as Assistant Executive Engineer and Junior Engineer respectively in Mangalore City Corporation (for short 'MCC'). On 18.07.2011 the tender was invited to construct interlock to Bijey-Anegundi Road in Ward No.31 in MCC. The tenders were floated and the work was executed.
2. One Ajay Christopher Silva lodged the complaint on 21.10.2014 before respondent No.2 against Ajith Kumar the Commissioner, Krishnamurthy Reddy the Junior Engineer and Anil Kumar the Assistant Executive Engineer alleging that the work in question was not executed according to the norms/work order, despite that the said officers have released the funds to the contractor. It was further alleged that the funds released were in excess of the work executed.
3. On the instructions of respondent No.2, the Technical Audit Cell (for short 'TAC') conducted investigation W.P.No.36300/2017 C/w W.P.No.47293/2016 4 and submitted the report dated 24.04.2015 alleging that the petitioners along with the Executive Engineer Rajashekhar have committed irregularities in execution of the aforesaid work and caused pecuniary loss to the tune of Rs.1,43,453/- to the exchequer of the State. Under the said report, TAC held that each of the petitioners and the said Rajashekhar were responsible for loss of Rs.47,818/-.
4. On investigation, respondent No.2 submitted report dated 11.06.2015 holding that the petitioners and Rajashekhar the Executive Engineer have committed irregularities in execution of the work and are responsible for loss to the exchequer of the State to the tune of Rs.47,818/- each. Respondent No.2 further opined that the petitioners and Rajashekhar have committed misconduct as per the service rules. Therefore recommended to the competent authority to initiate disciplinary proceedings against them. On such report, respondent No.1 issued show cause notice to the petitioners. On receiving the show cause notice, the petitioners replied to the same. On receiving such reply, respondent No.1 by order dated 31.05.2016 acting under Rule 14-A of the Karnataka Civil Services (Classification, W.P.No.36300/2017 C/w W.P.No.47293/2016 5 Control and Appeal) Rules, 1957 (for short 'CCA Rules') entrusted the enquiry to respondent No.2.
5. Petitioner in W.P.No.36300/2017 has sought quashing of both the investigation report/recommendation dated 11.06.2015 as well as the entrustment order dated 31.05.2016 passed by the Government. In W.P.No.47293/2016 the petitioner has sought quashing of the entrustment order dated 31.05.2016 Annexure-A in the said case.
Submissions of Sri Gopal and Sri M.S.Bhagwat, learned Senior Counsel appearing on behalf of Smt.D.Sudha, learned Counsel on record for the petitioners:
6. The complaint against the petitioners was not in the format prescribed under Rules 4(1) & 4(2) of the Karnataka Lokayukta Rules, 1985 (for short 'KL Rules'). That was not accompanied by the affidavit. Therefore Lokayukta committed error in entertaining the said complaint. The investigation report and the entrustment order are without jurisdiction as the petitioners are not Government servants.
They are governed by the Karnataka Municipal Administrative Service Rules 1970 and not CCA Rules. The report and the entrustment orders were without application of mind. At the W.P.No.36300/2017 C/w W.P.No.47293/2016 6 time of alleged misconduct, the petitioner in W.P.No.36300/2017 was not working in said branch of MCC. The investigation by Lokayukta was contrary to Section 7(1)(b) of the Karnataka Lokayukta Act, 1984 (for short 'KL Act'). The investigation report and the entrustment orders were passed six years after the alleged misconduct, thereby the defence of the petitioners is prejudiced. The Commissioner of MCC is the Disciplinary Authority for the petitioners. Therefore the entrustment should have been in consultation with the Commissioner of Mangalore Mahanagara Palike.
7. In support of his submissions he relied on the following judgments:
(i) Sri R.F.Hudedavar v. The State of Karnataka & Ors.1
(ii) Sri Sanjeev Kumar v. State of Karnataka & Ors.2
(iii) The Registrar v. Dr.Dakshayini K & Ors.3
(iv) K.S.Nanjegowda v. State of Karnataka & Ors.4
(v) Sri G.S.Nethravathi v. State of Karnataka5 1 (2021) 6 Kant LJ 385 2 W.P.No.205398/2019 DD 24.02.2020 3 W.P.No.58804/2016 DD 07.06.2021 4 W.P.No.48384/2017 DD 12.11.2020 5 W.P.No.24451/2018 C/w W.P.No.44840/2018 DD 17.02.2021 W.P.No.36300/2017 C/w W.P.No.47293/2016 7 Submissions of Sri Gopal Krishna Soodi, learned HCGP, Sri Ashwin S.Halady, learned Counsel and Sri K.V.Narasimhan, learned Counsel for the respondents.
8. The writ petitions are prematured ones. The petitioners can raise all such contentions in the inquiry. The investigation report dated 11.06.2015 shows that the same was submitted on holding investigation and on application of mind. The petitioners are governed by the Karnataka Municipal Corporations (Common Recruitment of Officers & Employees) Rules, 2011 (for short 'Rules 2011') also. Under Rule 10 of Rules 2011, the CCA Rules, Karnataka Civil Service Rules 1958 were adopted. Therefore the Government is the competent authority to pass entrustment order. As per Section 8(2)(d) of KL Act, the complaint involving allegations can be filed upto five years from the date of action. The complaint was within that time. Therefore the contention that the complaint was barred by time is unsustainable. The complaint was in the prescribed format supported by affidavit. Even that contention is not sustainable. The Court at this stage cannot consider the merits of the case. It is open to the petitioners to take up all available defence regarding merits of allegation in the course of inquiry. The petitions shall be dismissed.
W.P.No.36300/2017C/w W.P.No.47293/2016 8
9. In support of their submissions, they rely on the following judgments:
(i) Sri Gopal Hanumanth Kase vs. The State of Kar.Dept. of UD, rep. by its Prl.Secy. & Others6
(ii) Vijay Kumar G.Sulakhe v. State of Karnataka7
(iii) Sri R.V.Jattanna & Ors. V. The State of Karnataka & Ors.8 Analysis Reg. Competent Authority & Section 7(1)(b) of KL Act:
10. The allegations in the impugned report of the Lokayukta is that though the contractor did not execute the work according to the norms/work order, they released the funds to the contractor. The other allegation is that the funds released were in excess of the work executed. Therefore apparently the report was in the complaint involving allegation as contemplated under Section 2(2) of KL Act.
11. The petitioners have challenged the report of Lokayukta submitted under Section 12(3) of KL Act and the common entrustment order passed by respondent No.1 on the basis of the said report entrusting the disciplinary inquiry against the petitioners to the Lokayukta. The said 6 ILR 2018 KAR 2347 7 LAWS (KAR)-2018-9-242 8 (2020) 3 Kant LJ 561 (DB) W.P.No.36300/2017 C/w W.P.No.47293/2016 9 entrustment order is purportedly passed acting under Rule 14-A of CCA Rules.
12. First and foremost challenge of the petitioners is that they are not the Government servants, therefore the entrustment order issued by the Government under Rule 14-A of CCA Rules is without jurisdiction. The second contention is that the said entrustment order is without application of mind.
13. The impugned report is one under Section 12(3) of KL Act. Sections 12(3) and 12(4) of KL Act reads as follows:
"12. Reports of Lokayukta, etc. - (3) If, after investigation of any action involving an allegation has been made, the Lokayukta or an Upa-lokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the Competent Authority.
(4) The Competent authority shall examine the report forwarded to it under sub-section (3) and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upalokayukta the action taken or proposed to be taken on the basis of the report"W.P.No.36300/2017 C/w W.P.No.47293/2016 10
14. The above provisions show that Lokayukta shall make recommendation to the competent authority and in turn the competent authority shall entrust enquiry to Lokayukta or take action under Sections 12(4) or 12(5) of KL Act. The recommendation is made to the respondents directing that action shall be taken by the competent authority.
15. Therefore who is the competent authority for the petitioners is the question. The term competent authority relevant to this case is defined in Section 2(4) of KL Act which reads as follows:
"2(4) "competent authority'' in relation to a public servant means,-
(a) .................................................................
(b) ..................................................................
(c) In the case of the Government servant other than a Secretary, the Government of Karnataka;
(d) in the case of any other public servant, such authority as may be prescribed"
16. Section 2(6) of KL Act defines Government servant as follows:
"2(6) "Government servant" means a person who is a member of the Civil Services of the State of Karnataka or who holds a civil post or is serving W.P.No.36300/2017 C/w W.P.No.47293/2016 11 in connection with the affairs of the State of Karnataka and includes any such person whose services are temporarily placed at the disposal of the Government of India, the Government of another State, a local authority or any person, whether incorporated or not, and also any person in the service of the Central or another State Government or a local or other authority whose services are temporarily placed at the disposal of the Government of Karnataka;"
17. Admittedly, the petitioners are not the members of Civil Services of the State of Karnataka or not holding any civil post and not covered under Section 2(6) of KL Act. But Section 7(1)(b) of KL Act empowers Lokayukta to investigate against public servant also. The said Section reads as follows:
"7. Matters which may be investigated by the Lokayukta and an Upalokayukta.- (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or special approval of,-
(a) (i) ..................................................................;
(ii) ..................................................................;
(iii) ....................................................................;
(iv) .....................................................................;
(b) any other public servant holding a post or office carrying either a fixed pay, salary or remuneration of more than rupees twenty thousand per month or a pay scale the W.P.No.36300/2017 C/w W.P.No.47293/2016 12 minimum of which is more than rupees twenty thousand, as may be revised, from time to time in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokayukta, recorded in writing, the subject of a grievance or an allegation."
18. The term public servant is defined under Section 2(12) of KL Act. For the purpose of this case, Sections 12(d) and 12(g)(i) of KL Act are relevant which read as follows:
"(12) "public servant" means a person who is or was at any time,-
(d) a Government Servant;
(g) a person in the service or pay of,-
(i) a local authority in the State of Karnataka;"
19. In the light of the above provisions, there is no merit in the contention that Lokayukta can investigate only Government servant cases.
20. Admittedly, the petitioners are in service and pay of Mangalore Mahanagara Palike which is the local Authority in the State of Karnataka. The respondents also did not dispute that the petitioners are not the Government servants and governed by the Karnataka City Corporation Employees W.P.No.36300/2017 C/w W.P.No.47293/2016 13 (Conditions of Service) Rules, 1991 (for short 'Rules 1991'). As per Section 2(4)(d) of KL Act noted supra in case of public servant the prescribed authority is the competent authority.
21. The impugned order of entrustment is purportedly made exercising the power under Rule 14-A of CCA Rules which reads as follows:
"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 Upalokayukta 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 on 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 21-12-1992), the Inspector-General of W.P.No.36300/2017 C/w W.P.No.47293/2016 14 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. ...................................................................................................."
22. Reading of the above Rule clearly shows that the said Rule is applicable only to the Government servants and not the public servants. The above Rule further indicates that even in case of Government servants, the Government may entrust the inquiry either to Lokayukta or Upa Lokayukta or appropriate disciplinary authority.
23. As discussed earlier, the petitioners are not the Government servants covered under Section 2(6) of KL Act, but they are the public servants as defined in Section 2(12)(g)(i) of the KL Act. As per Section 2(4)(d) of KL Act, the 'competent authority' for them was the authority prescribed for the said purpose under the Service Rules governing them.
24. Learned Counsel for the petitioners submit that the petitioners are governed by Rules 1991 and Rules 2011 W.P.No.36300/2017 C/w W.P.No.47293/2016 15 and as per those Rules, the Government is neither the appointing authority nor the disciplinary authority, therefore the entrustment order is bad in law.
25. Rules 1991 were framed and brought into force with effect from 06.06.1991 to regulate the service condition of Municipal City Corporation Employees. They were framed exercising the power conferred under Section 421 read with Section 90(4) and Section 91 of the Karnataka Municipal Corporations Act, 1976 (for short 'KMC Act' 1976). Section 421 of KMC Act is the general power of the Government to make Rules to carry out the purpose of the said Act. Section 421(2) of KMC Act provides for making Rules for the subjects specified in Clauses (a) to (f) of the said sub Section without prejudice to its power under Section 421 of KMC Act.
26. Section 90(1) to (4) of KMC Act deal with punishments against the Corporation Officers and other employees, the procedure in disciplinary inquiry and the prescribed appellate authority against such punishment orders. Section 91 of KMC Act provides for power of the Government to make rules regarding conditions of service applicable to the employees.
W.P.No.36300/2017C/w W.P.No.47293/2016 16
27. Section 91(1)(b) of KMC Act, provides for making rules regarding procedure to be followed in imposing the penalty, suspension pending departmental enquiry, before imposition of such penalty and the authority by whom such suspensions may be ordered or the officer or the authority to whom an appeal shall lie under Section 90 (4) of KMC Act.
28. Section 91(1)(c) of KMC Act provides for making Rules regarding any other matter incidental to or necessary for the purpose of regulating the appointment and service condition of the employees of the corporation. Therefore it is clear that Rules 1991 were made to deal with service conditions such as initiation and conducting of disciplinary inquiry, imposition of penalty, competent authority to impose penalty and the appellate authority against such order.
29. As per the payslip produced by the petitioner in W.P.No.47293/2016 in October 2013, she was working as Group C Cadre Officer in Mangalore City Corporation. Rule 4(1)(b)(c) read with Rule 4(2)(b) of Rules 2011 the appointing authority for Group 'C' employees is the Director of Municipal Administration or the Officer empowered by the Government.
W.P.No.36300/2017C/w W.P.No.47293/2016 17
30. Schedule II of Rules 1991 prescribes the authority competent to impose penalty on Municipal Service employees and the appellate authority against such order. Schedule II-A was added to the said Rules by way of amendment with effect from 02.08.2005 which prescribes the authority to impose penalties and the appellate authority for the employees of Bangalore City Corporation. Therefore for the petitioners, Schedule II applies. As per the said schedule, for imposing the penalty for Group C employees, the Deputy Commissioner/Heads of the Department was the competent authority. The Government was not the competent authority for her. Therefore there is force in the contention that the impugned entrustment order against her is without the authority of law.
31. Relying on Rule 4 of Rules 1991 and Rule 10 of Rules 2011, it was argued by learned Counsel for the respondents that under those Rules the Government has adopted CCA Rules which provides for the Government to entrust inquiry to Lokayukta, therefore the order of entrustment is well within Rules 1991 and Rules 2011.
32. First of all, Rules 2011 are framed only for the purpose of common recruitment of officers or employees. W.P.No.36300/2017 C/w W.P.No.47293/2016 18 That is evident from the fact that those rules specifically say that they are made only in exercise of power under Section 421 of KMC Act. Whereas Rules 1991 were made specifically referring to Section 421, Section 90(4) and Section 91 of KMC Act which provide for the procedure for initiation of disciplinary enquiry, imposition of penalties etc. Therefore they are the Rules which are aptly applicable to the case on hand.
33. Rule 4 of Rules 1991 also provides for adoption of CCA Rules and several other rules. However, such adoption was subject to modification specified in Schedule I and II. Therefore Schedule II which is relevant for the purpose of these cases takes precedence over CCA rules even in case of adoption of CCA Rules. Resultantly, the Deputy Commissioner or the Heads of the Department continue to be the competent authority. Hence, such adoption of rules in no way advances the contention that the Government is the competent authority to entrust the matter. For the aforesaid reasons, there is force in the submission of the petitioner's Counsel that the entrustment order in respect of petitioner in W.P.No.47293/2016 was without authority of law. W.P.No.36300/2017 C/w W.P.No.47293/2016 19
34. As per Annexure-J the payslip of the petitioner in W.P.No.36300/2017, at the relevant time he was a Group 'A' employee on pay scale of Rs.36,300-53,850/-. As per Schedule II Entry I for Group 'A' employee, the Government is the disciplinary authority. Therefore his contention regarding entrustment order being without authority of law is unsustainable.
35. Relying on the judgment in Gopal Hanumantha Kase's case referred to supra it was contended that for the purpose of KL Act, the Government is the competent authority, therefore the entrustment order is valid. In that judgment relying on Rule 3 of KL Rules, it was held that though the prescribed competent authority under Schedule III to impose punishment is some other authority, for the purpose of Section 12 of KL Act and Rule 3 of the KL Rules, the Government is the prescribed competent authority to entrust the matter. It was further held that the service Rules prescribing some other authority does not in any manner nullify or override the effect of KL Act and the KL Rules made there under.
W.P.No.36300/2017C/w W.P.No.47293/2016 20
36. Subsequent to Gopal Hanumantha Kase's case referred to supra another coordinate Bench of this Court in the judgment in R.F.Hudedavar's case referred to supra referring to Rule 3 of KL Rules clarified that for the purpose of Sections 2(4) and 12 of the KL Act, the Government may be the competent authority, however Rule 14-A of CCA Rules apply only to the Government servant and that does not cover public servant. It was further held that in such cases, the Government which was the competent authority for the purpose of KL Act has to forward the report to the Disciplinary Authority and the Disciplinary Authority on examining the records may either itself conduct disciplinary enquiry or decide to entrust the same to Lokayukta. The Government without any input from the immediate employer/competent authority cannot decide to entrust or entrust the matter to Lokayukta.
37. Since in R.F.Hudedavar's case interplay of Rule 3 of KL Rules and Rule 14-A of CCA Rules and the object of interpretation of Rule 14-A of CCA Rules was considered in detail, the said case is aptly applicable to the facts of the present case. Having regard to such position, this Court does not find it necessary to refer to other judgments relied on by W.P.No.36300/2017 C/w W.P.No.47293/2016 21 learned Counsel for the respondents. Still only the contention of the petitioner in W.P.No.47293/2016 succeeds on the ground of competence of the entrustment order. Reg. Delay:
38. The other ground urged is that the investigation was barred by Section 8(2)(c) of KL Act. Section 8(2)(c) of KL Act bars investigation into any complaint involving grievance after period of six months from the date of action alleged becomes known to the complainant. Section 8(2)(d) of KL Act bars investigation in any complaint involving allegation which is made after expiry of five years from the date on which the action complained against is alleged to have taken place. Since the report under Section 12(3) of KL Act relates to investigation involving allegation, Section 8(2)(d) of KL Act is applicable and not Section 8(2)(c) of KL Act. In this case, the complaint was filed on 21.10.2014 in respect of the tender in question issued on 18.07.2011. That was within five years prescribed under Section 8(2)(d) of KL Act. Therefore that contention of the petitioners is unsustainable.
W.P.No.36300/2017C/w W.P.No.47293/2016 22 Reg. Application of mind:
39. It was contended that at the relevant time, the petitioner in W.P.No.36300/2017 was not working in the branch concerned to this case and he was not incharge of the supervision of the work. It was further contended that the entrustment order was without application of mind. The very fact of issuing entrustment order though respondent No.1 was not the competent authority for the petitioner in W.P.No.47293/2016 shows that, that was without application of mind.
40. Further the contention of the petitioner in W.P.No.36300/2017 that in reply to the notice issued by respondent No.1 seeking explanation on the impugned report under Section 12(3) of the KL Act, he submitted the reply as per Annexure-H is not disputed. In Annexure-H, he contended that on 17.08.2011 he was transferred from Development Cell and he was relieved on 18.08.2011 handing over the charge to one Naresh Shenoy, Assistant Executive Engineer, therefore there was no scope for him to supervise the work and the allegations against him were untenable. In the impugned entrustment order there is no whisper about reference to such reply. The said contention is W.P.No.36300/2017 C/w W.P.No.47293/2016 23 not addressed also. That also goes to show that the impugned entrustment order was without application of mind. Therefore on that count and the other grounds mentioned above, the impugned entrustment order in both the petitions is liable to be quashed.
Reg. Quashing of the report of Lokayukta:
41. It was contended that Lokayukta has found the petitioners prima-facie guilty of misconduct without appreciating their counter to the show cause notice, therefore the same is liable to be quashed. Firstly the petitioner in W.P.No.47293/2016 has not sought quashing of the report under Section 12(3) of KL Act. Secondly the report does not refer to the reply of the petitioners and the contention taken by them. It is the settled position of law that the supervisory jurisdiction under Article 226 of the Constitution of India, the disputed question of facts cannot be adjudicated. It is open to the petitioners to appear before the competent authority to urge those grounds when the competent authority is taking a decision under Section 12(4) of KL Act or during inquiry. Therefore the prayer for quashing of the said report is unsustainable. Hence the following:
W.P.No.36300/2017C/w W.P.No.47293/2016 24
ORDER W.P.No.36300/2017 and W.P.No.47293/2016 are partly allowed.
The impugned order of entrustment dated 31.05.2016 passed by respondent No.1 against the petitioners is hereby quashed.
Respondent No.1 is hereby directed to forward the report of Lokayukta dated 11.06.2015 under Section 12(3) of KL Act so far it relates to petitioner in W.P.No.47293/2016 to the competent authority. On receipt of such report, the competent authority shall take action in accordance with law.
So far as the petitioner in W.P.No.36300/2017 respondent No.1 shall consider the matter afresh in the light of Annexure-H/his reply dated 13.07.2015.
All contentions of both the parties in both petitions on merits are kept open to be raised at the appropriate time.
Sd/-
JUDGE Sd/-
JUDGE KSR