Karnataka High Court
Prasanna Kumar A V vs State Of Karnataka on 20 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 870 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No.870 OF 2022 (S-RES)
BETWEEN:
PRASANNA KUMAR.A.V.,
S/O LATE AJ VIJAYKUMAR,
AGED ABOUT 36 YEARS,
R/A #5-1-4, SHAMANNA GARDEN,
1ST CROSS, BANNERGHATTA,
MAIN ROAD, ADUGODI POST,
BANGALORE-560 030.
...PETITIONER
(BY SRI.BIPIN HEGDE., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
Digitally REPRESENTED BY SECRETARY,
signed by URBAN DEVELOPMENT,
KIRAN
KUMAR R GOVERNMENT OF KARNATAKA,
Location: M.S.BUILDING,
HIGH
COURT OF BANGALORE-560 001.
KARNATAKA
2. THE HON'BLE LOKAYUKTA,
BY ITS REGISTRAR,
M.S.BUILDING,
BANGALORE-560 001.
3. DIRECTORATE OF
MUNICIPAL ADMINISTRATION,
AMBEDKAR ROAD,
9TH AND 10TH FLOOR,
SAMPANGI RAMA NAGAR,
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WP No. 870 of 2022
BANGALORE, KARNATAKA-560 001.
REPRESENTED BY AUTHORISED OFFICER.
4. CHIEF OFFICER,
TOWN MUNICIPAL COUNCIL,
BIDADI, KARNATAKA-562 159.
...RESPONDENTS
(BY SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3;
SRI.VENKATESH S.ARABATTI, ADVOCATE FOR R-2;
SRI.RAMESH KUMAR.R.V., ADVOCATE FOR R-4)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER PASSED BY GOVERNMENT ORDER DATED:16.08.2021
AS PER ANNEXURE-M, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. The petitioner, who was imposed with the
punishment of compulsory retirement, is before this Court
questioning the punishment.
2. On 30.07.2014, a complaint had been lodged with
the Lokayukta Police, alleging that the petitioner had
demanded a bribe to make a separate Khata of a property
and a trap was laid in which the petitioner was caught red-
handed when accepting the bribe.
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3. Pursuant to the above complaint and the initiation of
a criminal case, respondent No.3, who is also his
employer, initiated a departmental enquiry by laying a
charge-sheet against him. In this charge-sheet, only one
charge was alleged, and the same reads as under :
" That you DGO Sri.Prasanna Kumar A.V
S/o Late A.G.Vijaykumar while working
as First Grade Revenue Inspector in Town
Municipal Council, Mulbagilu, Kolar
District had demanded bribe of
Rs.2,000/- from Sri.T.V.Shankarappa S/o
Late Chikkavenkatappa, Thotlapalya,
Mulbagilu, Kolar district and on
negotiation you had agreed to receive
Rs.1,000/- to make separate katha of
property Asst.No.2671/2475 measuring
50 x 60 in his name and his brother
Sri.C.Subramanyam at 22 ½ x 30 each
and on 30/07/2014 you again demanded
and received tainted money of Rs.1,000/-
from the complainant when Lokayukta
police sent him along with a shadow
witness and therefore you the DGO has
failed to maintain absolute integrity and
devotion to duty and committed an act
which is unbecoming of a Government
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Servant and therefore you are guilty of
misconduct under Rule 3(1)(i) to (iii) of
KCS (Conduct) Rules 1966. Hence, this
charge."
4. As could be seen from the charge, the allegation was
that he had demanded illegal gratification to make a
separate Khata of the property belonging to the
complainant--Sri.T.V.Shankarappa and his brother--
C.Subramanyam.
5. The enquiry was entrusted to the Lokayukta, which
was also prosecuting on the criminal side.
6. The petitioner filed a written statement denying the
entire allegations made against him. Four witnesses were
cited in the charge-sheet and five documents were listed
in support of the Articles of Charge.
7. An enquiry was conducted and a report was
submitted that the charge against the petitioner had been
proved.
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8. This enquiry report was forwarded to the Department
i.e., the employer of the petitioner along with the
recommendations of Upa Lokayukta that the petitioner be
imposed with the punishment of compulsory retirement.
9. The employer accepted the said recommendation and
proceeded to impose the order of compulsory retirement,
as a result of which, the petitioner is before this Court.
10. It may be pertinent to state here that the Criminal
proceedings that had been launched against the petitioner
ended in acquittal by judgment dated 31.07.2020.
11. The learned counsel for the petitioner contended that
there was absolutely no basis for holding that the
petitioner was guilty of the charge leveled against him
when the critical document i.e., the application seeking for
change of Khata, was itself not produced to indicate that a
plea for change of Khata was pending before the
petitioner, and for acting upon the said request, he had
demanded illegal gratification.
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12. It was submitted that the enquiry officer, instead of
noticing these serious lacunae, has proceeded to take the
view that the petitioner had admitted that it was his duty
to inspect the spot and to give a report in order to change
the Khata of any property and therefore, it could be
inferred that the complainant met the petitioner and had
requested for change of Khata.
13. The learned counsel also submitted that the enquiry
officer was in error in coming to the conclusion that the
application that had been filed seeking a Khata extract
was, in fact, a request for change of Khata, since the
application for Khata extract was to be made after the
change of Khata.
14. He also highlighted the fact that even before the
Criminal Court, the Lokayukta had failed to produce the
application for change of Khata and the Criminal Court had
recorded a clear finding that the complainant had admitted
that he and his brother had only filed an application for a
certified copy of the extracts of the Khata and Khata
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Assessment, and he had also specifically admitted that he
had never made an application to the Town Municipality
seeking separation of joint Khata of his property.
15. Lastly, it was argued that the punishment of
compulsory retirement was grossly disproportionate to the
charge alleged against the petitioner.
16. The learned counsel for the respondents, on the
other hand, contended that the enquiry officer has
appreciated the evidence that was adduced and he has
recorded a clear finding that the charges had been
established and therefore, the interference under Article
226 of the Constitution of India was not warranted.
17. It was also submitted that since there was clear
evidence that a demand for a bribe had been made, the
punishment imposed was just and appropriate.
18. It is settled law that in a proceeding under Article
226 of the Constitution, the writ court would not embark
upon the re-appreciation of the evidence that has been
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adduced, nor sit in judgment over the enquiry report as an
Appellate Court. The Writ Court would fundamentally
examine whether there was evidence to support the
charge and whether a fair opportunity to defend himself
was given to the delinquent.
19. In this writ petition, as could be noticed from the
charge, the allegation was that the petitioner had
demanded illegal gratification "to make separate Khata of
property of Assessment No.2671/2475 of the site
measuring 50' x 60' in his name and his brother
Sri.C.Subramanyam measuring 22.5' X 30' each".
Therefore, the specific allegation was that a demand for
illegal gratification was made for effecting a separate
Khata in favour of complainant and his brother--
C.Subramanyam.
20. Fundamentally, in order to establish this charge, the
request for making of a separate Khata of the property
belonging to the complainant and his brother was required
to be established, because only if the request for making a
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separate Kahata existed, would the opportunity of making
a demand for making a separate Khata arise.
21. The enquiry officer in the enquiry report has stated
as follows:
"26. The I.O has been cross examined by
the advocate for DGO by putting suggestions
to him for which the I.O has denied. The
main defence of the DGO is that, the
complainant gave his application for "Khatha
transfer" and not for "khatha change" of the
property. He has relied upon Ex.P.7, which is
a computerized "receipt details at the office
of town municipal Council, Mulabagilu". In
this Ex.P.7, Sl.No.1 reveals the name of this
complainant as applicant T.V.Shankarappa
and the date and time as 30.07.2014 at
10:18:00 for 'Khatha Extract'. Further, it
also reveals the status as, 'pending'. So, by
relying upon this Ex.P7, the argument of the
learned counsel for the DGO is that, he filed
an application for 'katha extract' only and not
for 'khatha change' and the said application
was filed on 30.07.2014 and on the same
day in the noon at about 1:10 P.M. he had
lodged a complaint before the Lokayukta
Police. As the entry in Ex.P7 is for 'khatha
extract', the DGO has taken this defence.
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27. It is very pertinent to note that after
changing the Khatha only, they will issue
Khatha extract. Here, the DGO is also got
examined as DW-1. He has very clearly
deposed in his chief examination itself as,
"PÀAzÁAiÀÄ ¤jÃPÀëPÀ£ÁV £À£ßÀ PÉ®¸ÀUÀ¼ÄÀ J£ÉAzÀgÉ ¸ÀzÀj
¥ÀÄgÀ¸À¨sÁ ªÁå¦ÛAiÀÄ°è §gÀĪÀ ªÀÄ£ÉUÀ¼ÄÀ , ªÀÄvÀÄÛ ¤ªÉñÀ£ÀUÀ¼À
vÉjUÉ ªÀ¸ÀƯÁw, ¤Ãj£À PÀAzÁAiÀÄ ªÀ¸Æ
À ¯Áw ªÀÄvÀÄÛ SÁvÉ
§zÀ¯ÁªÀuÉUÉ ¸ÀܼÀ ¥Àj²Ã®£Á ªÀgÀ¢AiÀÄ£ÀÄß ¥ÀÄgÀ¸À¨Ás
ªÀÄÄSÁå¢üPÁjUÀ½UÉ ¸À°è¸ÄÀ ªÀÅzÀÄ DVgÀÄvÀÛzÉ." Further, he
has also deposed in his further cross
examination as, "SÁvÉ §zÀ¯ÁªÀuÉ EzÀÝ°è ¸ÀܼÀ
¥Àj²Ã®£Á ªÀgÀ¢UÁV £À£Àß ªÀÄÄAzÉ §gÀÄvÀÛªÉ J£ÀÄߪÀÅzÀÄ ¸Àj.
§jà SÁvÉ £ÀPÀ°UÁV CfðAiÀÄ£ÀÄß PÉÆnÖzÝÉ Ã DVzÀÝ°è CzÀÄ
£ÉÃgÀªÁV ¥ÀÄgÀ¸À¨sÉAiÀÄ ªÀÄÄSÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÆÃUÀÄwÛvÄÀ Û
J£ÀÄߪÀÅzÀÄ ¸Àj. ¸ÁQë ¸ÀévÀB £ÀÄrAiÀÄÄvÁÛgÉ J¯Áè CfðUÀ¼ÄÀ
ªÀÄÄSÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÆÃVAiÉÄà ºÉÆÃUÀÄvÀÛªÉ". Thus,
he has admitted that his duty is to inspect
the spot and to give report in order to
change the Khatha of any property. So,
definitely it can be inferred that the
complainant met this DGO and requested for
change of kahatha."
22. As could be seen from the above reasoning, Ex.P-7
was an application for the Khata extract only. However,
the enquiry officer has taken the view that only after
changing the Khata, a Khata extract would be issued and
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since the delinquent had admitted that it was his duty to
inspect the spot and give a report for changing of the
Khata, it would have to be inferred that he had met the
complainant and the complainant had requested for
change of Khata.
23. In the absence of this basic requirement of
establishing that a request for making separate Khata was
made by the complainant, and the same was pending
consideration before the petitioner for his action, the
allegation that he would have made a demand and did
make a demand, would really fall to the ground.
24. It is, therefore, clear that this was a case of there
being no evidence at all of the primary requirement of
establishing that the particular file for change of separate
khata was pending before the petitioner, in respect of
which he was required to take some action, for which he
had made the demand. If this fundamental fact is not
established by production of relevant evidence, it was
obvious that the entire charge would fall to the ground.
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25. The enquiry officer, though noticed that the
application for making a separate Khata was not available,
has proceeded to come to the conclusion that an inference
can be drawn that an application for issue of Khata extract
would be made only after the Khata is changed.
26. On what basis this inference is drawn, is not
forthcoming in the enquiry report. The enquiry officer
further goes on to state that it could be inferred that the
complainant met the petitioner, because he has admitted
can be drawn that it was his duty to inspect the spot and
give a report.
27. In my view, the primary evidence required to
establish a charge was not available and therefore, the
report submitted by the petitioner that the charges were
proved, would have to fail.
28. It may also be pertinent to notice here that even in
the criminal proceedings, the Lokayukta had failed to
produce the application. In fact, the Sessions Court has
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recorded a finding that Ex.P-3, which had been filed by the
complainant and his brother, was the application filed
seeking certified copies of the Khata extract and Khata
Assessment. In fact, the Sessions Court has recorded a
finding in the following terms:
"......However, during the course of
cross-examination of the complainant by
the accused, the complainant - PW-3
unequivocally admitted that on
30.07.2014 he and his brother have filed
the application Ex.P3 seeking extracts of
khata and assessment. He has also
specifically admits that he never filed
any application to the Town Municipality
seeking separation of joint khata of his
property. So, on perusal of Ex.P.3, as
well as the evidence of PW-3, it is very
much clear that on 30.07.2014 the
complainant filed the application Ex.P.3
only for seeking extracts of khata and
assessment of his property and not for
separation of khata into his name and
into the name of his brother as alleged
by the prosecution......"
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29. In the light of the above, it is clear that the report of
the enquiry officer that the petitioner had made the
demand for illegal gratification to make a separate Khata
could not have been held to be established, since the
primary piece of evidence i.e., the demand for making a
separate Khata, was simply non-existent.
30. Despite this crucial defect in the enquiry report, the
Upa Lokayukta has gone on to make a recommendation
for acceptance of the enquiry report and for imposition of
the punishment of compulsory retirement.
31. The Disciplinary Authority has simply accepted the
enquiry report and the recommendation, and has
proceeded to impose the punishment. The Disciplinary
Authority has not even taken into consideration the above
defect that was apparent, before accepting the
recommendation made by the Upa Lokayukta.
32. In my view, therefore, since this is a case of there
being absolutely no evidence to establish the charge of the
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petitioner making a demand of illegal gratification for
making a separate Khata in his name and in his brother's
name, the enquiry report, the acceptance of the said
report and the imposition of the punishment cannot be
sustained.
33. As a result, the writ petition is allowed and the
impugned orders are quashed.
34. The petitioner shall be reinstated immediately.
35. He shall also be entitled to all the consequential
benefits arising out of his reinstatement, including the
arrears of salary.
Sd/-
JUDGE
RK/-
