Karnataka High Court
Bhaskar Gouda S/O Venkataraman B. ... vs State Of Karnataka on 4 December, 2021
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE DAY OF 4TH DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WP NO 102552 OF 2015 (S/DE)
BETWEEN
1 . BHASKAR GOUDA S/O VENKATARAMAN B. GOUDA
WORKING AS JUNIOR ENGINEER
OFFICE OF TOWN PANCHAYAT
ANKOLA, UTTARA KANANDA DIST-581 314
2 . AMBHAR KHAN S/O YAKUB AMBAR KHAN
AGE:42 YEARS, WORKING AS JUNIOR ENGINEER,
OFFICE OF CITY MUNUCUOAK COUNCIL
GANGAVATHI, KOPPAL DISTRICT-583 227
3. MANJUNATH NAMADHARI
S/O GANGADHAR G. NAMADHARAI,
AGE: 40 YEARS,WORKING AS JUNIOR ENGINEER
OFFICE OF CITY MUNICIPAL COUNCIL
KARWAR-581 301
4 . RAMESH P. NAIK S/O PANDURANGA N. NAIK
AGE:50 YEARS, WORKING AS ASSISTANT
EXECUTIVE ENGINEER
DISTRICT URBAN DEVELOPMENT CELL
KARWAR-581 301
...PETITIONERS
(BY SRI.M S BHAGWAT AND SURESH S BHAT, ADVS.,)
AND
2
1 . STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMETN
REPRESENTED BY
ITS PRINCIPAL SECRETARY
VIKASA SOUDHA,
BANGALURU-560 001
2 . THE REGISTRAR
KARNATAKA LOKAYUKTHA
M.S. BUILDING
BANGALURU-560 001
3 . ADDITIONAL REGISTRAR OF ENQURIREIS-1
KARNATAKA LOKAYUKTHA
M.S. BUILDING,
BANGALURU-560 001
...RESPONDENTS
(BY SRI.VINAYAK S KULKARNI, AGA FOR R1;
SRI.G.I.GACHCHINAMATH, ADV., FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 07.10.2014 PASSED BY RESPONDENT
NO.1 (ANNEXURE-A) AND IMPUGNED ARTICLES OF CHARGE
DATED 08.12.2014 / 17.01.2015 ISSUED BY RESPONDENT NO.3
(ANNEXURE-B), SO FAR AS PETITIONERS ARE CONCERNED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioners are the employees of the Town
Panchayath and while they were working at Town
Panchayath Yellapur, a proposal was submitted to carry
out work under SFC scheme and the action plan was
approved by the Deputy Commissioner, Karwar.
2. Petitioners state that the work was executed in the
year 2007-2008 and inspection was made by the Globe
Tech Consultancy Services, Goa, certifying that work
carried out by the petitioners is completed and found to be
satisfactory.
3. When things stood thus, a complaint was lodged with
the 2nd respondent by two persons alleging that the
petitioners have misappropriated the funds and work
executed by the petitioners are sub standard. Petitioners
state that after lapse of 6 years from the date of
completion of work, the Technical Wing, Karnataka
Lokayuktha, inspected the spot and submitted inspection
report on 10/5/2013 wherein it is reported that there is no
misappropriation of funds but there are some
discrepancies while executing the work as alleged in the
complaint against the petitioners.
4. Petitioners further state that they have replied to the
notice by denying the allegations therein. When such
being the case, the 1st respondent without application of
mind to the material on record, has entrusted the matter
with the 2nd respondent to hold departmental inquiry
against the petitioners. In pursuance of the order
entrusting the inquiry to the 2nd respondent, the 2nd
respondent has issued article of charges to the petitioners
alleging that the petitioners have failed to use proper
quantity of bitumen binder content used for tarring of
Ramanakoppa road work and further failed to execute
culvert work and thereby failed to maintain absolute
specifications used for the project work and there by the
petitioners were guilty of misconduct as per Rule 3(1) (ii &
iii) of KCS (Conduct) Rules, 1966.
5. The petitioners being aggrieved by the entrustment
of the enquiry by the Government with the 2nd respondent
and also the issuance of article of charges against the
petitioners, have filed this writ petition.
6. Sri. M.S.Bhagwat, learned counsel appearing for the
petitioners made the following submissions:
a) that the entrustment of the enquiry by
respondent No.1 to respondent No.2 is without
application of mind. In support of the said averment, he
relied on the division bench judgment of this Court
passed in W.P. No.205398/2019 (Sanjeev Kumar Vs.
State of Karnataka, disposed of on 24.02.2020 reported
in (2021)2 Kar.L.J. 1) and W.P. No.48384/2017 (Sri.
K.S.Nanjegowda Vs. State of Karnataka By Lokayuktha
and another, disposed of on 12.11.2020).
b) The incident is of the year 2007-08 and Article
of Charges was issued in the year 2015. Hence, there is
an inordinate delay in initiating the disciplinary enquiry.
In support of the said contention, reliance is placed on a
division bench decision of this Court passed in W.P.
No.6116/2020 (M.R.Waddar Vs. State of Karnataka and
another, disposed of on 11.12.2020)
c) The disciplinary enquiry initiated against the
petitioner is selective and discriminatory since no
enquiry is initiated against the Deputy Commissioner
and the Tahasildar concerned who have approved the
project work. In support of the same, reliance is placed
on the order of this Court passed in W.P.
NO.147900/2020 (Shri. N.Mahesh Babu Vs. State of
Karnataka and Others, disposed of on 08.09.2021).
Hence, he submits that the impugned order entrusting the
enquiry to respondent No.2 and the Article of Charges issued
against the petitioner is not sustainable in law.
6. On the other hand, learned counsel for respondent
Nos.2 &3 made the following submissions:
a) The writ petition filed by the petitioner
challenging the entrustment of enquiry to respondent
No.2 and so also the Article of Charges issued against
the petitioner is premature since the same does not
infringe the rights of the petitioner. In support of the
said contention, reliance is placed on the decisions of
the Apex Court in the case of Union of India (UOI) and
Anr. Vs. Kunishetty Satyanaraya, reported in [(2006)3
BLJR 2533(SC)].
b) He further submitted that the petitioner in the
objection submitted before the Enquiry Officer has not
taken up the ground that the order passed by the
Government entrusting the enquiry to respondent No.2
is without application of mind and also the ground of
inordinate delay in initiating the enquiry. Hence, he
submits that these grounds which were not urged
before the Enquiry Officer cannot be allowed to be
urged before this Court. In support of this contention,
reliance is place on the division bench order of this
Court passed in W.P. No.8563/2020 (Sri.
Maheshwarappa Vs. The State of Karnataka and Others,
disposed of on 05.08.2020).
7. Learned Additional Government Advocate appearing
for the respondent-State would submit that the
Government, after applying its mind, has passed the
impugned order entrusting enquiry to respondent No.2.
Hence, he submits that the writ petition is devoid of merits
and liable to be dismissed.
8. Perusal of the Government order dated 7/10/2014
indicates that the enquiry has been entrusted to the 2nd
respondent based on the recommendation made by the
Upa Lokayuktha. However the State Government under
Sections 12(3) was required to examine the report
forwarded to it and the relevant materials and evidence in
relation to the allegations made.
9. The Division Bench of this Court in writ petition
No.20182/2015 has held that section 12(4) the Karnataka
Lokayuktha Act, 1984 (for short the Act) makes it
mandatory for the competent authority to examine the
report forwarded to it by the Upa Lokayuktha.
10. The Division Bench of this Court in W.P.
No.205398/2019 disposed of on 24.02.2020 reiterated the
law laid down in the case of Sri. K.S.Nanjegowda Vs. State
of Karnataka By Lokayuktha and another has held that the
if the order of entrustment does not bear application of
mind, it would result in unnecessary proceeding against
the Government servants. It was further held that by the
conjoint reading of Rule 14-A of KCSR and Section 12 of
the Act unequivocally makes it clear that the discretion is
available to the Government to entrust the inquiry to the
second respondent or otherwise. In case the Government
is of the opinion that it is a case only for imposition of
minor penalty under Rule 12, then there is no necessity to
hold regular departmental inquiry.
11. The Co-ordinate Bench of this Court in W.P.
No.48384/2017 disposed of on 12.11.2020 has held that
the provision contained in Section 12(4) of the Act, 1984
and Rule 14-A(2)(iii) of the Rules, 1957 mandates the
competent authority to examine the investigation report
submitted on behalf of the Lokayukta/Upalokayukta and in
the absence of the same the entrustment of inquiry with
the Lokayuktha is not permissible.
12. The order passed by the Co-ordinate Bench of this
Court in writ petition No.48384/2017 has been accepted by
the Government which is evident from the Circular dated
9/11/2020. In view of the decisions of the Division Bench
of this Court and also the Circular issued by the
Government, the order passed by the respondent State
entrusting the enquiry with the 2nd respondent is without
application of mind. Since, relevant materials were not
examined before passing of such an order.
13. The Division Bench of this Court in W.P.
No.8563/2020 disposed of on 05.08.2020 has held at para
11 that challenge to the entrustment of the inquiry under
Section 14-A of the CCA Rules and article of charges are
premature. However, the Division Bench in various
decisions has interfered with the order of entrustment
enquiry with the Lokayuktha and also the article of charges
issued in pursuance of the entrustment order and the
same have been accepted by the Government. Hence, the
submission of the learned counsel for respondent
Lokayuktha that the writ petition is premature is not
accepted.
14. The complaint was lodged against the petitioners for
the project work in question which was completed in the
year 2007-2008 and the complaint was filed on 25/4/2009.
However, the impugned order passed by the Government
entrusting the enquiry is passed on 7/10/2014 and article
of charges was issued to the petitioners on 17/01/2015
which is only after an inordinate delay of more than 7 to 8
years from the date of completion of the project work in
question. The impugned order entrusting the inquiry with
the 2nd respondent was passed and also article of charges
were issued to the petitioners in the year 2015.
15. The Division Bench of this Court in W.P.
No.147900/2020 disposed of on 08.09.2021, after
referring to the decisions of the Hon'ble Apex Court in the
cases of Sri. K.S.Nanjegowda Vs. State of Karnataka By
the Lokayuktha and another and Union of India (UOI) and
Anr. Vs. Kunishetty Satyanaraya, reported in (2006) 12
SCC 28 and also in the case of Secretary, Minister of
Defence and other V/s Prabhash Chadra Mirdha, reported
in (2012) 11 SCC 565 has held that the delay of more than
7 to 8 years in initiating the disciplinary action without
offering any explanation is not permissible.
16. In the present case, enquiry is initiated after more
than eight years from the date of incident and no
explanation is offered in the inordinate delay in initiating
the enquiry. Hence, on this ground also the petitions
succeeds.
17. The case of the petitioners is that the enquiry is
selective and discriminative, since no inquiry was initiated
as against the Deputy Commissioner and Tahasildar
approving the project work. The Division Bench of this
Court in W.P. NO.147900/2020 disposed of on 08.09.2021
has held that no reasons have been assigned as to why the
departmental inquiry is initiated to the petitioner therein
without initiating the inquiry against other officers who
were involved in the project work, was held to be
discriminatory. However, in the present case, the Deputy
Commissioner and the Tahasildar have only approved the
project work, but were not involved in execution of the
work. Hence, the submission of the learned counsel for
petitioners that the inquiry initiated against the petitioners
is selective and discriminatory is not acceptable.
18. In view of the preceding analysis, I am of the
considered view that the entrustment of inquiry by the
Government to the 2nd respondent is one without
application of mind and there is inordinate delay of more
than 7 to 8 years in initiating the disciplinary action
without offering explanation is not permissive in law.
Hence, I pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dated 7/10/2014
passed by the respondent No.1 Annexure- A is
quashed and consequently the article of charges
issued by respondent No. 3 is also quashed.
Sd/-
JUDGE
Vb/-
