Karnataka High Court

The State Of Karnataka vs Sri Raghavendra M R on 21 June, 2022

Bench: G.Narendar, P.N.Desai

                                                           R

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 21ST DAY OF JUNE, 2022
                           PRESENT
             THE HON'BLE MR. JUSTICE G. NARENDAR
                             AND

               THE HON'BLE MR. JUSTICE P.N.DESAI
          WRIT PETITION NO.4260 OF 2022 (S-KSAT)
BETWEEN:

1.     THE STATE OF KARNATAKA,
       REP. BY ITS PRINCIPAL SECRETARY,
       URBAN DEVELOPMENT DEPARTMENT,
       VIKAS SOUDHA ,
       BENGALURU - 560 001.

2.     THE PRINCIPAL SECRETARY TO GOVT.,
       PUBLIC WORKS, PORTS AND INLAND
       WATER TRANSPORT DEPARTMENT,
       VIKAS SOUDHA,
       BENGALURU-560 001.
                                              ... PETITIONERS
(BY SMT. SHILPA S. GOGI, HCGP)

AND:
1.     SRI. RAGHAVENDRA M R.,
       S/O. LATE M.G. RANGA RAO,
       AGED ABOUT 62 YEARS
       EXECUTIVE ENGINEER,
       PUBLIC WORKS DEPARTMENT
       (ON DEPUTATION),
       MYSORE MAHANAGARA PALIKE,
       MYSORE-570 001.

2.     THE COMMISSIONER,
       BHRUTH MAHANAGARA PALIKE,
       N.R.SQUARE,
       BENGALURU-560 002.
                                       2




3.     THE KARNATAKA LOKAYUKTHA,
       REP. BY ITS REGISTRAR,
       DR.AMBEDKAR VEEDHI,
       M.S. BUILDING,
       BENGALURU- 560 001.
4.     THE ADDITIONAL REGISTRAR OF ENQUIRIES-8,
       KARNATAKA LOKAYUKTHA,
       M.S BUILDING,
       BENGALURU-560 001.
                                            ... RESPONDENTS
(BY SRI. VIJAYA KUMAR., ADVOCATE FOR R-1)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
IN    APPLICATION     NO.1433/2018        IN    ORDERS       PASSED     BY   THE
HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL DATED
11.06.2020 WHICH IS MARKED AS ANNEXURE-C AND TO SET ASIDE
THE    ORDER    DATED      11.06.2020          PASSED       BY    THE   HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL BENGALURU IN
APPLICATION No.1433/2018 WHICH IS PRODUCTD AS ANNEXURE-C
AS ILLEGAL AND ULTRA VIRES.


       THIS    WRIT    PETITION       COMING         ON     FOR    PRELIMINARY
HEARING, THIS DAY, P.N.DESAI J., PASSED THE FOLLOWING:


                                 ORDER

This writ petition is filed by the petitioners-State

challenging the order passed in Application No.1433/2018,

dated 11.06.2020 by Karnataka State Administrative Tribunal,

Bengaluru (for short hereinafter referred to as 'Tribunal').

2. Respondent No.1 who is the applicant before the

tribunal was working in the Public Works Department as

Assistant Engineer. Subsequently, he was posted to work in

Bruhat Bengaluru Mahanagara Palike at Bengaluru (for short

'BBMP'). It is contended that one Deepak V., had filed a

complaint to the BBMP on 03.04.2014 against one Rajkumar

alleging that the said Rajkumar has put up an illegal

construction of a compound wall and the said construction was

made without the approved plan and license. Subsequently,

Deepak V., has filed another complaint dated 12.11.2014

before respondent No.3 against private respondent

No.1/Assistant Engineer for dereliction of duty for not taking

any action against Rajakumar. A detailed explanation was given

by private respondent No.1 on 20.12.2014 and he has stated

that the alleged compound wall was constructed on

conservancy area which belongs to BBMP, the same was

inspected on 16.12.2014 and the said compound wall was

removed on 20.12.2014.

3. Based on the complaint filed by the owner -

Rajkumar, a notice was issued to the complainant - Sri. Deepak

to furnish the sanctioned plan/site documents relating to the

ownership of site No.29/30. In the meanwhile, the

petitioners/Government without examining the materials and

appreciating the facts, passed the order under Rule 14A of the

Karnataka Civil Services (Classification, Control and Appeal),

Rules, 1957 (for short 'KCS (CCA) Rules'), entrusting

Lokayuktha Authorities to initiate enquiry against respondent

No.1. Subsequently, articles of charges were issued by

respondent No.4 against respondent No.1. The respondent No.1

challenging the correctness and legality of the said order, filed

an application before the tribunal. The tribunal after considering

the reply of respondent No.1 and other documents, allowed the

said application and set aside the impugned articles of charge

bearing No.LOK/DE/877/2017/ARE-8 dated 22.07.2017.

Aggrieved by the impugned order, the State has preferred this

petition.

4. We have heard Smt. Shilpa S.Gogi, learned HCGP

for petitioners/State and Sri. Vijaya Kumar, learned counsel for

Caveator/respondent No.1 and perused the records.

5. The records disclose that soon after complaint was

lodged with the BBMP, respondent No.1 had initiated the action

to demolish the compound wall which was built without any

sanctioned plan, but the complainant without waiting for the

action to be taken by respondent No.1, has approached

respondent No.3, though the applicant/respondent No.1 has

immediately taken steps. Looking into the provisions under The

Karnataka Municipal Corporations Act, 1976, (for short

hereinafter referred to as 'KMC Act'), specific provisions are

provided in the very act itself. Ignoring the same, the

complainant has approached Lokayuktha Authorities.

Respondent No.3 ought to have suggested the complainant that

when more appropriate and efficacious remedies are available

under the KMC Act, the complainant could have proceeded with

his complaint filed before respondent No.2 instead of

approaching respondent No.3. But the same was not done and

respondent No.3 proceeded to take action against respondent

No.1.

6. It is the settled principles of law that when an

efficacious remedy is available to the aggrieved party under the

particular enactment or law, then the party cannot avail the

other alternative remedy. It is evident that the explanation

given by respondent No.1 has not been taken into consideration

before passing of the entrustment order to initiate enquiry

against respondent No.1. It is evident that respondent No.1

has now retired from the service. Infact on a counter complaint

made by the owner of the site No.30, a notice was issued to the

complainant - Deepak to produce documents relating to site

No.29 & 30. When things stood thus, a technical wing of

respondent No.3 gave a report of investigation, based on that

an enquiry against respondent No.1 under Section 14A of KCS

(CCA) Rules was entrusted to respondent No.3, which in our

considered view, is not legally tenable. It is evident from the

records that respondent No.1 has inspected the spot and

demolished the wall. The competent authority before entrusting

the enquiry under Section 14A of KCS (CCA) Rule, is bound to

examine all the materials available on record to come to a

prima-facie opinion to entrust an enquiry. The provision of

Section 321(B) of KMC Act, provides for an alternative remedy.

It is evident that respondent No.1 belongs to Public Works

Department and he was deputed to BBMP. On receiving the

complaint by one Deepak, the respondent No.1 has visited the

spot and noticed the illegal construction of compound wall

which was built in violation of KMC Act, and immediately took

steps to demolish the same. It appears subsequently he was

transferred from the said place.

7. At the stage of entrustment, prima-facie, the

satisfaction of Competent Authority is necessary before passing

the entrustment order. The satisfaction of the Government

must be subjective satisfaction. The authority must arrive at

subjective satisfaction after objective assessment of the

material. The scope of enquiry with regard to accord of sanction

is very limited as it is an administrative function. The

sanctioning authority is required to demonstrate subjective

satisfaction. It is necessary that the authority must also look

into the material which may come to the aid of the person

against whom sanction is sought. The Authority is not required

to deliver an order in the form of a judgment.

8. A similar issue came for consideration before the

Coordinate bench of this court where one of us (Hon'ble GNJ)

was a member, in the case of SANJEEV KUMAR VS. THE

STATE OF KARNATAKA AND ANR. - W.P.NO.205398/2019

DATED 24.02.2020 where at paragraph No.25 it is held as

under:

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 paragraphs 14 and 15 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 Vs. A. MASILAMANI, reported in (2013) 6 SCC 530 at paragraph 19 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 mind. The 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] .)

If the case on hand is examined in terms of the law declared by the Hon'ble Supreme Court as extracted herein above, it unequivocally demonstrates non- application of mind by the competent authority. It is

apposite to refer to a Judgment of the learned Division Bench of this Court in an identical case involving a challenge to the order of entrustment in the case of KARNATAKA LOKAYUKTHA Vs. 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) of 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, 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."

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 12.11.2013 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."

5. 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.

6. 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.

In terms of the facts narrated hereinabove, perusal of the entire order sheet pertaining to the case and the law declared in the afore-extracted judgments, the order of entrustment impugned, entrusting the enquiry to the hands of the 2nd respondent to the - Lokayukta suffers from non application of mind and is vitiated. The point is answered accordingly."

9. Further the Hon'ble Supreme Court in the case of

SADHU ROY Vs. STATE OF WEST BENGAL reported in

(1975) 1 SCC 660 held at paragraph No.5 of the judgment as

under:

"5. The crucial submission that deserves close study turns on the colorable nature or mindless manner of the impugned order. What are the facts germane to this issue? It is seen that the petitioner's name is not in the first information statements. Had a court occasion to adjudge the guilt of an accused person charged with serious crime committed in the

presence of quasi-police officers and his name is not seen in the earliest report, to the police, that would have received adverse notice unless explained.

Likewise, the circumstance that the final report to the Court terminated the criminal proceedings may, unless other reasons are given, militate against the implication of the petitioner since s. 169 Cr.P.C. refers to two situations one of which at least nullifies possible inference of incrimination i.e., that there is no 'reasonable ground of suspicion to justify the forwarding of the accused to a magistrate'. It behoves the detaining authority to tell this Court how he reached his mental result in the face of a 'release report' by the police. For, the legal label that the satisfaction of the executive authority about potential prejudicial activity is 'subjective' does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under Art. 32 of the Constitution. If material factors are slurred over, the formula of 'subjective, satisfaction' cannot salvage the deprivatory order. Statutory immunology hardly saves such invalidity. After all, the jurisprudence of

'detention without trial is not the vanishing point of judicial review. The area and depth of the probe, of course, is conditioned by the particular law, its purpose and language. But our freedoms axe not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations."

10. Further the Hon'ble Supreme Court in the case of

SRI. G.RAMESH AND OTHERS Vs. THE SURVEYOR

GENERAL OF INDIA APPOINTING AND DISCIPLINARY

AUTHORITY, OFFICE OF THE SURVEYOR GENERAL OF

INDIA, DEHRADUN AND OTHERS reported in 2017 SCC

ONLINE KAR 2328 at paragraph No.11 held as under:

"11. It is seen that the scope of enquiry with regard to accord of sanction is very limited as it is an Administrative function. The Sanctioning Authority is required to demonstrate subjective satisfaction and it is further required that the subjective satisfaction is arrived after objective assessment of the material. It is necessary that the Authority must also look into the material which may come to the aid of the person against whom sanction is sought. The Authority is not required to deliver an order in the

form of a judgment. As stated supra, it would suffice that the order by the Authority demonstrates a subjective satisfaction of the Authority concerned and further demonstrates the fact that the satisfaction is arrived at after objective appraisal of the material."

11. In view of the principles stated in the above

referred decisions, if entrustment order and the order of the

tribunal is considered, it is evident that the tribunal has rightly

held that the respondent No.3 was not justified in receiving the

complaint of one Deepak looking into Section 9(5)(c) of

Karnataka Lokayukta Act, 1984 and respondent No.3 ought to

have suggested the complainant that when more appropriate

and efficacious remedies are available under the KMC Act and

as he has already filed the complaint before the Commissioner

of BBMP on 03.11.2014 itself, he could have been advised to

proceed with his complaint with BBMP. But the same was not

done by respondent No.3 in this case. Therefore, in view of