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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.42883/2018 (S - RES)
BETWEEN
1. SHRI D.LAKSHMAN KUMAR
S/O LATE C.B.DODDAIAH,
AGE:52 YEARS,
OFFICE MANAGER,
TOWN MUNICIPALITY
KUNIGAL, TUMKURU DISTRICT - 572 130.
2. SHRI YESHWANTH N.,
S/O NARASAIAH N.,
AGE : 34 YEARS,
REVENUE OFFICER,
DAVANAGERE MAHANAGARA PALIKE,
DAVANAGERE - 577 101.
... PETITIONERS
(BY SRI VIJAYAKUMAR, ADVOCATE (VIDEO CONFERENCING))
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKAS SOUDHA,
BENGALURU - 560 001.
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2. THE DIRECTOR
DEPARTMENT OF
MUNICIPAL ADMINSITRATION,
9TH FLOOR, V.V.TOWER,
DR. B.R.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
3. THE KARNATAKA LOKAYUKTA
REPRESENTED BY ITS REGISTRAR,
M.S.BUILDING,
DR.B.R.AMBEDAKAR VEEDHI,
BENGALURU - 560 001.
4. THE ADDITIONAL REGISTRAR
OF ENQUIRIES-3,
KARNATAKA LOKAYUKTA,
DR.B.R.AMBEDAKAR VEEDHI,
BENGALURU - 560 001.
... RESPONDENTS
(BY SMT.SHARADAMBA A.R., AGA FOR R1 AND R2;
SRI VENKATESH S.ARBATTI, ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS RELATING TO ISSUE OF THE IMPUGNED
ENTRUSTEMENT ORDER DATED 09/03/2017 PASSED BY THE
R-1 ENTRUSTING ENQUIRY UNDER RULE 14-A OF KCS (CCA)
RULES, 1957, VIDE ANNEXURE-H AND THE CHARGE MEMO
ISSUED ON 31/08/2017 BY THE R-4 VIDE ANNEXURE-J AND
AFTER PERUSAL SET ASIDE THE SAME.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners in this writ petition have called in question the order dated 09.03.2017 by which conduct of departmental enquiry is entrusted to the hands of the third respondent - Lokayukta and the consequent action of the fourth respondent issuing charge sheet on 31.8.2017.
2. Brief facts of the case leading to filing of the writ petition as pleaded are that:
The first petitioner at the relevant point of time was working as Office Manager and second petitioner as Revenue Officer at Tumkur Town Municipality. During their service, one Smt.Rajamma filed an application for change of khata of property bearing site No.518/3390 measuring 49.5'/22' and site No.518/3391 measuring 25'x65.5', both situate at Tumkur town on the strength of a gift deed executed by the owner of 4 the said property Smt.Puttahonnamma. The application submitted by Smt.Rajamma was accompanied with gift deed and other documents that are required for change of khata in the name of the applicant. The application was submitted to the first petitioner on 05.06.2013. After scrutiny of documents and calling for objections, the second petitioner effected change of khata in favour of the applicant Smt.Rajamma on 31.7.2013.
3. After the change of khata, a complaint came to be registered before the Lokayukta by one Shivananda contending that the khata is changed on the strength of a document i.e., General Power of Attorney which is allegedly executed by Puttahonnamma who had by then died. On this complaint, a notice was issued to the petitioners as required under Section 9 of the Karnataka Lokayukta Act, 1984 (hereinafter referred to as the 'said Act' for short) and petitioners replied to the same. Not being satisfied with the 5 reply submitted by the petitioners, the Lokayukta furnished its report under Section 12(3) of the said Act seeking an order to be passed under Section 12(4) of the said Act by the Government. The Government by its order dated 09.03.2017 passed an order entrusting the enquiry to the hands of the third respondent in terms of Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the 'KCS(CCA) Rules' for short) in compliance whereof a charge sheet was issued by the fourth respondent on 31.8.2017. It is this order of entrustment and the charge sheet that are called in question in the writ petition.
4. Heard Sri.Vijaya kumar, learned counsel appearing for petitioners, Smt.Sharadamba.A.R, learned Additional Government Advocate for respondent Nos.1 and 2 and Sri.Venkatesh.S.Arbatti, learned counsel for respondent Nos.3 and 4.
65. Sri.Vijaya Kumar, learned counsel appearing for petitioners would submit that the first petitioner who was in the cadre of Office Manager reported to duty to the post of Office Manager only after the incident of change of khata was over and he had nothing to do with the change of khata effected by the second petitioner and his name is dragged into the proceedings unnecessarily.
6. Insofar as it pertains to the second petitioner who was at the relevant point of time working as Revenue Officer, the learned counsel would submit that in terms of the application that was brought before him which contained all the requisite documents to effect change of khata, same was accepted and khata was effected by order dated 31.7.2013. He would submit that he has committed no misconduct in change of khata as what was brought before him is in accordance with law and what he has effected is also in accordance with law.
77. Sri.Venkatesh.S.Arbatti, learned counsel appearing for third and fourth respondents would submit the enquiry proceedings are yet to commence in terms of the charge sheet dated 31.8.2017 and unless the same is proceeded and culminates in an order or otherwise, the writ petition would not be maintainable as it would be premature. No right of the petitioner is taken away by the act of entrustment or the issuance of articles of charge is his vehement contention.
8. Smt.Sharadamba.A.R., learned Additional Government Advocate would also support the submission of the learned counsel appearing for third and fourth respondents and would contend that the order of entrustment does bear application of mind and the arguments to the contrary are unfounded.
9. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
810. The undisputed facts are that the first petitioner joined the post of Office Manager pursuant to his order of transfer on 26.08.2013. Before the said date when the second petitioner was working as Revenue Officer, an application was placed before him by one Smt.Rajamma who wanted khata to be changed of the property bearing site No.518/3390 measuring 49.5'/22' and site No.518/3391 measuring 25'x65.5', both situated at Tumkur town on the strength of the gift deed which was in her favour, executed by one Putta Honnamma who was the owner of the property, the ownership of which was sought to be changed. On a scrutiny of the application, the second petitioner effected change of khata on 31.7.2013 in respect of both the properties in question. Long after the change of khata which was on 31.7.2013, one Sri.Shivananda lodges a complaint before the Lokayukta on 21.6.2014 contending that there is irregularity in the change of khata in respect of both the sites by the petitioners.
Though in the format of the complaint the names of the 9 petitioners are found, in the description the names of the petitioners are not found. Nevertheless, the names of the petitioners as was found in the format of the complaint, a notice was issued as required under Section 9 of the said Act by the Lokayukta and the petitioners were heard. The first petitioner contended in reply that he was not even holding the post when the change of khata was effected and the second petitioner contended that he had changed the khata in accordance with law and he had not committed any misconduct.
11. The reply given by the petitioners having met its consideration by the Lokayukta and being found unsatisfactory, a report under Section 12(3) of the said Act is furnished to the Government indicating that the petitioners herein have committed misconduct under Rule 3(1)(i) and (ii) of the Karnataka Civil Service (Conduct) Rules, 1966 prima facie and sought enquiry to its hands by passage of an order 10 under Section 12(4) of the said Act. Section 12(4) of the said Act reads as follows:
"12(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 Upa-lokayukta the action taken or proposed to be taken on the basis of the report."
In terms of the mandate of the afore-extracted statute, it is obligatory on the part of the Government to consider and examine all the aspects relating to the case as furnished by the Lokayukta in its report and the documents and then pass orders in accordance with law.
12. A cursory perusal at the order of entrustment dated 09.03.2017 does not bear any application of mind to the facts obtaining in the case at hand, as the order is a mere narration of facts as narrated in the report and the consideration of the 11 Government of the said facts as narrated runs only into one line, which reads as follows:
"¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼À£ÄÀ ß PÀÆ®APÀµÀªÁV ¥Àj²Ã°¹, F PɼÀPÀAqÀAvÉ DzÉò¹zÉ."
This can hardly be said to be in compliance with the mandate of Section 12(4) of the said Act which requires the Government to examine. To examine presupposes that there should be application of mind on the authority entrusting enquiry to the hands of Lokayukta, as such, entrustment is for the purpose of conduct of disciplinary proceedings. A conduct of disciplinary proceedings cannot be preceded by a consideration of the kind that is made in the case at hand.
13. This view of mine in this regard is fortified by the judgment of the Division Bench of this Court rendered in W.P.No.205398/2019 disposed on 24.02.2020 in the case of Sri Sanjeev Kumar Vs. The State of Karnataka and another, wherein at paragraph No.25, it is held as follows:
12"25.The report under Section 12(3) of the Act is communicated by the 2nd respondent- Lokayukta to the competent authority and in terms of the report, entrustment of enquiry was ordered to the hands of the 2nd respondent under Section 12(4) of the Act. The statute mandates examination of the material before the enquiry is entrusted. The word 'examine' means to 'test critically' as defined in the Major Law Lexicon 4th edition 2010 Lexis-Nexis-Butterworth-Wadhwa- Nagpur at page 2455. The words 'consider' and 'examine' are synonyms (see Roget's International Thesaurus, 3rd Edition Oxford Book Company, page No.765 and 316). The importance of the word consider and its purport has been elucidated by the Hon'ble Supreme Court in the case of BARIUM CHEMICALS LTD AND ANOTHER VS. SH. A. J. RANA AND OTHERS reported in (1972)1 SCC 240 wherein the Hon'ble Supreme Court has interpreted the word 'consider' which is nothing but examination. In paragraph NOs.14, 15, 39 and 41 of the aforesaid judgment, the Hon'ble Supreme Court has held as follows:
1314. The words "considers it necessary" postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word "consider" is "to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, meditate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect" (vide Shorter Oxford Dictionary). According to Words and Phrases -- Permanent Edition Vol. 8-A "to consider" means to think with care. It is also mentioned that to "consider" is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. It is therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question is sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents 14 specified in the order, the essential requisite to the making of the order would be held to be non- existent.
15. A necessary corollary of what has been observed above is that mind has to be applied with regard to the necessity to obtain and examine all the documents mentioned in the order. An application of the mind with regard to the necessity to obtain and examine only a few of the many documents mentioned in the order, while there has been no such application of mind in respect of the remaining documents, would not be sufficient compliance with the requirements of the statute. If, however, there has been consideration of the matter regarding the necessity to obtain and examine all the documents and an order is passed thereafter, the Court would stay its hand in the matter and would not substitute its own opinion for that of the authority concerned regarding the necessity to obtain the documents in question.
15Subsequently, the Hon'ble Supreme Court in the case of LIC v. A. Masilamani, reported in (2013) 6 SCC 530 has held as follows :
19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mindThe appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147 : (2007) 1 SCC (L&S) 388] and BhikhubhaiVithlabhai Patel v. State of Gujarat [(2008) 4 SCC 144 : AIR 2008 SC 1771] .) 16 In terms of the law declared by the Hon'ble Supreme Court as extracted herein above, if the case on hand is examined, it unequivocally demonstrates non-application of mind by the competent authority. It is useful to refer to a Judgment of the learned Division Bench of this Court in the case of Karnataka Lokayuktha .v. H.N.Niranjan& another reported in 2017(6) KLJ 80 wherein it is held as follows :
3. It appears that the tribunal has exercised the power of allegiance breach and non- compliance to the provisions of section 12(4) of the Karnataka Lokayukta act, 1984. The relevant reasoning recorded by the tribunal in the impugned order at para-7 reads as under:
One other ground urged on behalf of the applicant is that there is non-compliance of Section 12(4) of the Lokayukta Act by the first respondent while taking further action on the recommendation made by the Hon'ble UpaLokayukta in the report under Section 12(3) of the Lokayukta Act. Section 12(4) o the Lokayukta Act reads as follows:-
17"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, intimae or cause to be intimated to the Lokayukta or the Upa-Lokayukta the action taken or proposed to be taken on the basis of the repot."
Inviting our attention to Section 12(4) of the Lokayukta Act, it is contended by the learned Counsel for the applicant that a reading of he impugned order dated 12.11.2013 prima facie indicates that there is non-compliance for Section 12(4) of the Karnataka Act by the first respondent, for the reason that the first respondent has failed to examine the report forwarded under Section 12(3) of the Lokayukta Act before ordering departmental enquiry in the matter. In the preamble to the Government Order dated 12.11.2013, paras - 1 and 2 relate to the substance of the recommendation made by the UpaLokayukta. In para - 3 of the Government Order, it is stated that as recommended by the Hon'ble UpaLokayukta, it has been decided to hold disciplinary proceedings 18 against the applicant and to entrust the same to UpaLokayukta. It has not been mentioned in the impugned order dated 12.11.2013, that the first respondent has examined the report sent under Section 12(3) of the Lokayukta Act. When the statute mandates examination of the report sent under Section 12(3) of the Lokayukta Act, it is the bounden duty of the Competent Authority to which the said report is sent, to examine the report before taking any decision on the recommendation made in the report under Section 12(3) of the Lokayukta Act. The object of examination of the report sent under Section 12(3) of the Lokayukta Act is to ensure that the public servant concerned is not subjected to any unwarranted disciplinary action. When the statute mandates examination of the report, the Competent Authority has to comply such mandates and failure in that regard invalidates the decision taken on such report. A reading of the impugned Government Order dated 12.11.2013 no where indicates that the first respondent has examined the report sent under Section 12(3) of the Lokayukta Act. It is only 19 stated that as recommended by the Hon'ble UpaLokayukta, it has been decided to hold disciplinary proceedings and to entrust the same to UpaLokayukta concerned. It can be certainly said that the omission of the first respondent in this regard, which amount to non-compliance of the mandatory requirement of Rule 12(4) of the Lokayukta Act, has resulted in the vitiation of the order dated 12.11.2013 passed by the first respondent. We have to note in this case that in the complaint filed before the Karnataka Lokayukta in the matter, there was no allegation against the applicant the name of the applicant figures in the case for the first time in the report submitted by the Technical Wing of the Karnataka Lokayukta. It Is Submitted On Behalf Of the Applicant That the Assistant Executive Engineer concerned was the implementation officer as regard to the concerned work and that the applicant cannot be held to be liable for any irregularity in the matter. The contentions of the applicant in this regard in the above facts are required to be examined by the first respondent while considering the recommendation made by 20 the Upa-Lokayukta in the report under section 12(3) of the Lokayukta act. It is for the said reason, the competent authority concerned has been mandated to examine the report forwarded to it under section 12(3) of the Lokayukta act. At the cost of repetition, we may point out that nowhere in the impugned order report under section 12(3) of the Lokayuktha act has been examined by the first respondent before passing the order dated 12.11.2013 directing initiation of departmental inquiry against the applicant. The Competent Authority has blindly accepted the recommendation made in the report sent under section 12(3) of the Lokayukta Act and directed initiation of inquiry against the applicant. Having regard to the same, the order of initiation of departmental inquiry against the applicant and entrustment of the inquiry to the Hon'ble Upa- Lokayukta as per order dated 12.11.20 13 will have to be quashed. Consequently, all further proceedings pursuant to the said order, particularly issuance of articles of charge dated 20.01.2014 cannot be sustained. However, the 21 first respondent will be at liberty to examine the report and take appropriate action in the matter."
1. It is not the case of the petitioner herein, that the State Government has independently considered the matter under section 12(4) Of the Lokayukta Act and thereafter had passed the order. But the only contention raised by the learned counsel appearing for the petitioner is that in the preamble of the order the State Government has referred to the contents of the recommendation of the Lokayukta and therefore it may be considered as deemed consideration by the State Government and resultantly compliance to section 12(4) of the Act.
2. We are afraid that such contention can be accepted. What is required to be considered as per the provisions of 12(4) of the act is consideration and application of mind by the Government for concurring with the opening of the Lokayukta, for initiation of inquiry. When There Is No Examination of the Case by the Government under Section 12(4) of the Act. It cannot be said that the tribunal had 22 committed any error which may call for any interference by this Court.
14. If the judgments of the Division Bench as extracted hereinabove, are considered qua the order of entrustment would lead to an unmistakable conclusion that the order of entrustment suffers from want of application of mind and requires re-consideration at the hands of the first respondent-
Government. Therefore, the following:
ORDER
(i) Writ petition is allowed in part.
(ii) The order of entrustment bearing No.Na.Aa.E.07.Tu.Ma.Pa 2017 dated 09.03.2017 is quashed.
(iii) Consequently, the charge sheet bearing No.UPLOK-2/DE/451/2017/ARE-3 issued on 31.8.2017 also stands quashed.
(iv) The matter is remitted back to the first respondent to reconsider the report dated 23 05.01.2017 of the Lokayukta under Section 12(3) of the Act and pass appropriate orders under Rule 14-A of the KCS(CCA) Rules, keeping in mind the facts and the observations made in the order.
Sd/-
JUDGE bkp CT:MJ