Karnataka High Court

Sri. Narayanaswamy vs The State Of Karnataka on 27 January, 2022

Bench: P S Kumar, Rajendra Badamikar

                                        W.P No.7886/2019

                              1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF JANUARY, 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                             AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

       WRIT PETITION No.7886 OF 2019 (GM-KLA)

BETWEEN :

SRI. NARAYANASWAMY
S/O LATE NEELAPPA
AGED ABOUT 54 YEARS
PRESENTLY WORKING AS
FIRST DIVISION ASSISTANT
CITY MUNICIPAL COUNCIL
SHIDLAGHATTA-562 105
CHIKKABALLAPURA DISTRICT
RESIDING AT TANK BUND ROAD
CHINTAMANI-563 125
CHIKKABALLAPURA DISTRICT                ... PETITIONER

(BY SHRI. N.K. RAMESH, ADVOCATE)

AND :

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS
       SECRETARY
       URBAN DEVELOPMENT DEPARTMENT
       VIKASA SOUDHA
       BENGALURU-560 001

2.     THE GOVERNMENT UNDER SECRETARY
       (MUINICIPAL ADMINISTRATION-2
       & BOARD)
       URBAN DEVELOPMENT DEPARTMENT
                                           W.P No.7886/2019

                             2

     VIKASA SOUDHA
     BENGALURU-560 001

3.   THE DIRECTOR
     DIRECTORATE OF MUNICIPAL
     ADMINISTRATION
     VISHVESHWARAIAH TOWERS
     DR. AMBEDKAR VEEDHI
     BENGALURU-560 001

4.   THE DEPUTY COMMISSIONER
     CHIKKABALLAPURA DISTRICT
     CHIKKABALLAPURA-562 101

5.   THE REGISTRAR
     KARNATAKA LOKAYUKTA
     M.S.BUILDING
     DR.AMBEDKAR VEEDHI
     BENGALURU-560 001

6.   ADDITIONAL REGISTRAR ENQUIRIES -3
     KARNATAKA LAOKAYUKTA
     M.S.BUILDING
     DR.AMBEDKAR VEEDHI
     BENGALURU-560 001                     ... RESPONDENTS

(BY SHRI. C.N. MAHADESHWARAN AGA FOR R1 TO R4;
    SHRI. VENKATESH S. ARABATTI, ADVOCATE FOR R5 & R6)
                           ....
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
GOVERNMENT ORDER DATED 19.01.2019 PASSED BY THE R-2 VIDE
ANNEXURE-A PASSED IN PURSUANCE OF ANNEXURE-B AND C AND
CONSEQUENTLY QUASH THE IMPUGNED RECOMMENDATION MADE BY
THE R-5 DATED 31.7.2017 VIDE ANNEXURE-B AND THE IMPUGNED
ENQUIRY REPORT SUBMITTED BY THE R-6 DATED 28.7.2017 VIDE
ANNEXURE-C.

     THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.01.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-
                                                        W.P No.7886/2019

                                       3

                                  ORDER

Heard Shri. N.K. Ramesh, learned Advocate for

petitioner, Shri. C.N. Mahadeshwaran, AGA for R1 to R4 and

Shri. Venkatesh S. Arabatti, learned Advocate for

respondents No. 5 and 6.

2. Petitioner was working as a First Division

Assistant1 in City Municipal Council, Malur in Kolar Distirct.

It was alleged against him that he had demanded a bribe of

Rs.5,000/-. A trap was laid and he had received a sum of

Rs.4,000/-. In the departmental enquiry conducted by the

Lokayukta, the charge has been held to be proved. The

Hon'ble Upalokayukta recommended petitioner's dismissal

from service. The State Government have passed an order

of dismissal. Hence, this writ petition.

3. Shri. Ramesh, learned Advocate for the

petitioner mainly urged two grounds:

FDA W.P No.7886/2019

• that no reasonable opportunity was given to the

petitioner in the Departmental enquiry and the

proceedings were conducted ex parte;

• that the penalty is disproportionate.

4. In reply, Shri. Venkatesh Arabatti, for Lokayukta

mainly contended that on the basis of material collected, an

investigation was taken up under Section 7(2) of the

Karnataka Lokayukta Act, 19842. The petitioner was called

upon to show cause as to why recommendation should not

be made for initiating Departmental Proceedings. Petitioner

submitted his reply denying charges. As the explanation

was not satisfactory, a recommendation was made under

Section 12(3) of the Lokayukta Act to the competent

authority to initiate Disciplinary proceedings under

Rule 14-A of the Karnataka Civil Services (Classification,

Control and Appeal) Rules, 19573. The State Government

entrusted the enquiry to the Hon'ble Upalokayukta. The

Articles of charges and Statement of imputations were

'Lokayukta Act' for short

' KCS Rules' for short W.P No.7886/2019

served on the petitioner. He appeared in person and his

statement was recorded. He has denied the charges. He

also engaged the services of an Advocate. He appeared in

the enquiry for some time and thereafter, remained absent.

His Advocate also remained absent. Therefore, the enquiry

has been completed in the absence of the petitioner and his

Advocate. Hence, the contention urged on behalf of the

petitioner that opportunity was not given to the petitioner,

is factually incorrect.

5. With regard to the penalty, Shri.Arabatti

adverted to proviso to Rule 8 of the KCS Rules and

submitted that the penalty order has been rightly passed.

6. Learned AGA also argued supporting the

impugned order of dismissal.

7. We have carefully considered rival contentions

and perused the records.

W.P No.7886/2019

8. Undisputed facts of the case are, the

complainant, M.S. Srinivas had alleged that he had filed an

application on March 16, 2009 seeking copy of conversion

order and the plan in respect of Sy. No.82 of Malur Town

from the Town Municipal Corporation. Petitioner had

demanded Rs.5,000/- and it was settled for Rs.4,000/-. He

filed a complaint and it was registered as FIR No.3/2009

with the Lokayukta Police for offences punishable under

Section 7, 13(1)(d) read with 13(2) of the Prevention of

Corruption Act, 1988. The complainant was given a micro

tape-recorder by the Lokayukta Police. Complainant

approached along with the recorded conversation.

Thereafter, a trap was laid and four currency notes of

Rs.1,000/- denomination were given to the complainant.

The trap was successful.

9. It is recorded in the preamble to the Government

Order dated March 1, 2012, entrusting the Departmental

enquiry to the Lokayukta that the receipt of Rs.4,000/- was

also forthcoming in petitioner's statement. In the W.P No.7886/2019

departmental enquiry, the complainant was examined as

P.W.1 and the shadow witness as P.W.2; and nine

documents have been marked as Ex.P1 to Ex.P9. In para 4

of the Report, it is recorded that Articles of Charges and

Statement of imputations were served on the petitioner. He

has appeared and his statement has been recorded.

Petitioner has also engaged the services of an Advocate. In

para 7 of the Report, it is stated that petitioner was

regularly appearing till July 18, 2016 and thereafter, neither

he nor his Advocate appeared. The enquiry officer has thus

completed the enquiry after recording the statements of the

witnesses and marking the documents.

10. It is further recorded in para 17 of the Report

that the petitioner in his explanation (Ex.P6) had stated that

he had called upon the complainant to remit Rs.2,000/-

towards the charges for issuing the copies sought by the

complainant. Whilst petitioner was about to issue the

receipt for the said amount, the Lokayukta police had

caught him. Based on the material on record, the enquiry W.P No.7886/2019

officer has held the charge as proved. Having regard to the

gravity of misconduct, the Hon'ble Upalokayukta has

recommended for petitioner's dismissal from service.

11. In his reply dated January 22, 2018, to the

second show cause notice, petitioner has stated that

nothing was proved in the departmental enquiry and that he

was acquitted by the learned Special Judge and requested

to drop all further proceedings. He has precisely stated

thus, in response to the second show cause notice:

"In the case against me before the District and Sessions Court, Kolar, judgment is passed, acquitting me as innocent of any offence. In the meanwhile, departmental enquiry conducted by the Lokayuktha Officers by attributing charges against me and report submitted holding that, the charges against me are proved, is improper and unlawful and it is improper to punish through departmental enquiry. In my trap case, there is neither demand for money nor any receipt of the same. Recommendation of the Lokayuktha in the illusory case that, the charges alleged against me are proved, is unlawful. I have been trapped by the Lokayuktha department and it is improper to recommend the said charges to the government to defend themselves.

Recommendation for my removal from the service, is in excess of their powers. The Court at Kolar has dismissed the case holding that, the charges against me is not proved W.P No.7886/2019

and I am not guilty. I request you kindly not to consider this recommendation."

12. The first contention urged on behalf of the

petitioner is that no reasonable opportunity was given to

the petitioner in the Departmental enquiry. As recorded

hereinabove, a notice was issued calling upon him to show

cause as to why recommendation should not be made under

Section 12(3) of the Lokayukta Act to entrust the

departmental enquiry to the Lokayukta. Petitioner has

replied to the said notice denying the allegation. After

entrustment, Articles of Charges were served on the

petitioner. He has appeared and his statement has been

recorded. He has participated in the enquiry regularly till

July 18, 2016. Thereafter, both the petitioner and his

Advocate have remained absent. Therefore, first contention

is devoid of merits.

13. The second contention is with regard to the

quantum of punishment. The nature of penalties is enlisted

in Part-IV of the KCS Rules. Rule 8(viii) provides for W.P No.7886/2019

dismissal from service. The proviso to Rule 8 reads as

follows:

"Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the order of the Disciplinary Authority, no penalty other than those specified in clauses (vi) to (viii) shall be imposed for an established charge of corruption."

14. Shri. Arabatti, placing reliance on para 20 in

Union of India and others Vs. P. Gunasekaran4, submitted

that it is not open for the High Court, in exercise of

jurisdiction under Articles 226 of the Constitution of India to

go into the proportionality of punishment. In that case, the

Hon'ble Supreme Court of India has held that it was not

open for the High Court to exercise the jurisdiction under

Article 226/227 of the Constitution of India, so long as the

punishment does not shock the conscience of the Court.

15. In the case on hand, the stand taken by the

petitioner in Ex.P6 in the Disciplinary Proceedings is, that

he had asked the complainant to remit Rs.2,000/- for