Karnataka High Court
Shri D Lakshman Kumar vs State Of Karnataka on 6 January, 2021
Author: M.Nagaprasannapresided Bymnpj
1
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.
2
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.
3
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
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
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.
5. 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.
7. 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.
10. 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
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
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
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:
"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:
14. 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
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.
Subsequently, 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] .)
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:-
"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
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
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
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
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
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
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
