Karnataka High Court
Balaji Pokalwar vs State Of Karnataka And Ors on 3 January, 2023
Bench: K.S.Mudagal, Anil B Katti
W.P.No.202428/2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
WRIT PETITION NO.202428/2022 (S-KAT)
BETWEEN:
SRI BALAJI POKALWAR
AGED ABOUT 57 YEARS
S/O HONNAYYA POKALWAR
JUNIOR ENGINEER - 2
O/O ASSISTANT EXECUTIVE ENGINEER
PROJECT SUB-DIVISION
NEAR RTO OFFICE, BIDAR
R/AT NEAR CHURCH GATE
SHIVANAGAR, BIDAR DISTRICT ...PETITIONER
(BY SMT.MANJULA V ACHARI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
RURAL DEVELOPMENT AND
PANCHAYATH RAJ DEPARTMENT
VIKASA SOUDHA
BANGALORE - 560 001
2. THE KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR
M.S. BUILDING
DR.AMBEDKAR VEEDHI
BANGALORE - 560 001
W.P.No.202428/2022
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3. THE ADDITIONAL REGISTRAR OF ENQUIRIES - 8
KARNATAKA LOKAYUKTA
DR.AMBEDKAR VEEDHI
BANGALORE - 560 001 ...RESPONDENTS
(BY SRI MALLIKARJUN C BASAREDDY, GOVT. ADVOCATE FOR R1;
SRI SUBHASH MALLAPUR, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED
02.12.2021 (ANNEXURE-E) PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, KALABURAGI BENCH IN APPLICATION
NO.20564/2020 AND ETC.
THIS WRIT PETITION PERTAINING TO KALABURAGI BENCH
HAVING BEEN HEARD AND RESERVED ON 02.12.2022 COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY, K.S.MUDAGAL J.,
SITTING AT PRINCIPAL BENCH THROUGH VIDEO CONFERENCING,
MADE THE FOLLOWING:
ORDER
During the year 2003-2005, the petitioner worked as
Junior Engineer at Taluk Panchayat, Bidar. On 18.11.2008 one
Narayanarao lodged complaint as per Annexure-A1 against the
petitioner and seven others before the Lokayukta/Upa-
lokayukta of Karnataka under Rule 4(1) of the Karnataka
Lokayukta Rules, 1985 alleging that during that period the
petitioner and others have diverted/misappropriated/
mis-utilized the Government Funds earmarked for water
drainage/constructions works and amounts recovered as
taxes.
W.P.No.202428/2022
2. Based on such complaint, Upa-lokayukta
submitted report Annexure-A2 dated 23.03.2018 purportedly
under Section 12(3) of the Karnataka Lokayukta Act, 1984
('the Act' for short) opining that prima-facie the petitioner and
delinquent Nos.1 to 7 have committed financial
mismanagement amounting to misconduct. Upa-lokayukta
also recommended to initiate disciplinary enquiry against the
petitioner and other delinquents and to entrust enquiry to
Lokayukta under Rule 14A of the Karnataka Civil Services
(Classification, Control and Appeal) Rules, 1957 ('the Rules'
for short).
3. Based on such report, respondent No.1 by order
Annexure-A3 dated 25.10.2018 acting under Rule 14 of the
Rules entrusted the matter to Upa-lokayukta for holding
enquiry against the petitioner and others. On such
entrustment, the matter was referred to respondent No.3 the
Additional Registrar of Enquiries-8. On such entrustment,
respondent No.3 issued articles of charges as per
Annexure-A4 on 28.12.2018 to the petitioner and three
others. In the said articles of charge, the petitioner is shown
W.P.No.202428/2022
as Delinquent Government Official No.1. One Thanjiwadikar,
Junior Engineer, Devanand Deshmukh, Junior Engineer,
V.Nagaraj of Taluk Panchayat are shown as delinquent Nos.2
to 4. The charge against the petitioner is that he received
Rs.3,18,000/- as advance for execution of SGRY Project in the
year 2005-06 and submitted vouchers only for Rs.2,16,755/-
and he has not accounted for the balance amount of
Rs.1,01,245/-, thereby he has misappropriated the same.
4. The petitioner filed application under Section 19 of
the Karnataka Administrative Tribunals Act, 1985 '(the KAT
Act' for short) in Application No.20564/2020 before the
Karnataka State Administrative Tribunal, Kalaburagi seeking
quashing of entrustment order Annexure-A3 dated 25.10.2018
passed by respondent No.1 and articles of charges
Annexure-A4 issued by respondent No.3. There was ten
months delay in filing the application before the Tribunal.
Therefore, the petitioner filed I.A.No.1 under Section 21(4) of
the KAT Act seeking condonation of the said delay.
5. The Tribunal took up I.A.No.1 and the main
application together for hearing. By the impugned order
W.P.No.202428/2022
Annexure-E dated 02.12.2021 dismissed the application for
condonation of delay as well as the application on the
following grounds:
(i) The applicant has not given acceptable explanation
for condonation of delay;
(ii) The articles of charges cannot be quashed on the
ground of delay in initiation of the disciplinary proceedings;
(iii) The petitioner has not made out how the delay in
the initiation of the disciplinary proceedings has prejudicially
affected him;
(iv) The contention that the articles of charge is vague
and unspecific is unacceptable.
(v) The contention that before entrusting the matter
to Upa-lokayukta, respondent No.1 has not examined the
records as required under Section 12(4) of the Act is
unacceptable;
(vi) Despite the applicant receiving notice from
Upa-lokayukta under Section 9(3) of the Act, he has not
submitted any reply.
W.P.No.202428/2022
(vii) The charges of misappropriation are grave in
nature. Therefore they cannot be quashed on the ground of
delay.
6. Reiterating the grounds of the petition and the
application Smt.Manjula V.Achari, learned Counsel for the
petitioner seeks reversal of the Tribunal's order by quashing
the disciplinary proceedings against the petitioner. She further
submits that the Tribunal committed discrimination in allowing
Application No.20577/2020 of a co-delinquent and dismissing
the petitioner's application by the impugned order at
Annexure-E. In support of her submissions, she relies on the
following judgments:
(i) M.V.Bijalani v. Union of India
(ii) Union of India v. Kuni Setty Satyanarayana
(iii) UCO Bank v. Rajendra Singh Shukla3
(iv) Karnataka Lokayukta v. H.N.Niranjan4
7. Learned Government Advocate and learned
Standing Counsel for Lokayukta justify the impugned order
(2006) 5 SCC 88
(2006) 12 SCC 28
(2018) 14 SCC 92
W.P.No.43079/2015 (S-KAT) DD 06.03.2017
W.P.No.202428/2022
and submit that the contention with regard to non-compliance
of Section 9 and Sections 12(3) & (4) of the Act are
unsustainable. They further submitted that the petitioner
despite service of notice neither appeared before Lokayukta
nor made out such grounds of prejudice before the enquiry
Officer-respondent No.3. It is open to the petitioner to make
out such grounds during enquiry. In support of their
submissions, they rely on the following judgments:
(i) Union of India v. Kuni Setty Satyanarayana5
(ii) Secretary, Ministry of Defence v. Prabhas
Chandra Mishra6
(iii) Vijayakumar G.Sulake v. State of Karnataka
Reg. Non-compliance of Sections 8(2) and 9(3) of the Act:
8. There is no dispute that during 2005-2006, the
petitioner was serving as Junior Engineer, Bhandarkumtha
Village, Aurad Taluk. The first contention of the petitioner is
that Section 9(3) of the Act is not complied.
(2006) 12 SCC 28
(2012) 11 SCC 565
W.P.No.104460/2018 DD 10.09.2018
W.P.No.202428/2022
9. Section 9 of the Act deals with the provision
relating to the complaints and investigations. Section 8(2) of
the Act deals with the power of Lokayukta and Upa-lokayukta
to investigate. Section 8(2)(c) of the Act bars the Lokayukta
or Upa-lokayukta in investigating any complaints involving
grievance filed beyond six months from the date on which
action complained of becomes known to the complainant.
Section 2(8) of the Act defines grievance. Section 2(8) of the
Act says ''Grievance'' means a claim by a person that he
sustained injustice or undue hardship in consequence of
maladministration. In the complaint, Annexure-A1 the
complainant does not allege that such maladministration of
the petitioner has caused any suffering, injustice or hardship
to him. Therefore such complaint is not covered under Section
8(2)(a) to (c) of the Act.
10. Section 8(2)(d) of the Act bars Lokayukta or Upa-
lokayukta from investigating complaints involving allegation,
beyond five years from the date of cause of action. The
allegations as defined in Section 2(2) of the Act relate to
corrupt practice. In the case on hand, the complaint relates to
W.P.No.202428/2022
corrupt practice and more over that is filed within five years
from the date of such cause of action. Hence, the contention
that Upa-lokayukta was barred from entertaining such
complaints in view of the delay is unsustainable.
11. Section 9(3)(b) of the Act requires Upa-lokayukta
or Lokayukta to afford to the public servant an opportunity to
offer his comments on the complaints. The petitioner claims
that such opportunity was not given to him.
12. Para 22 of the report of the Upa-lokayukta/
Annexure-A2 indicates that the notice issued to Prabhakar
Kulkarni and Devanand Deshmukh were not served. The
report further says that except Thanaji Wadikar, other
opponents had not submitted their objections. However, the
said report does not specifically state that the notice was
served on the present petitioner.
13. In the complaint given on 18.11.2008 (Annexure-
A1), the report was submitted on 23.03.2018. It is not known
during 10 years period where the petitioner was working. The
records do not contain proof of such service of notice.
W.P.No.202428/2022
Therefore there is force in the contention of the petitioner that
Section 9(3) of the Act was not complied. The Tribunal failed
to take note of that aspect. There was unexplained inordinate
delay of 10 years in filing of report after submission of the
complaint, entrustment of enquiry to Lokayukta and
respondent No.3 issuing the articles of charges.
14. According to the Tribunal itself the petitioner's
pleaded that due to such inordinate delay, he was unable to
collect and collate the documents and that caused delay in
filing the application.
15. The Tribunal was of the view that, it is open for
the petitioner to make his defence during enquiry. But the
incident said to have taken place in the year 2005-2006. The
Disciplinary enquiry is initiated in 2018 i.e. after thirteen
years. It is not the case of the respondents that the petitioner
delayed the proceedings.
16. Right from 2005-2006, till commencement of the
enquiry, and even thereafter, the respondents are the
custodians of the documents. The petitioner has no hold over
W.P.No.202428/2022
them. Under such circumstances the Tribunal was not justified
in rejecting delay condoning application.
17. Further at this length of time, it is hard to expect
that the petitioner would be able to collect the documents or
the witnesses to make a defence in the enquiry. Therefore
initiation of enquiry after 13 years has certainly prejudiced the
defence of the petitioner. The report of the Lokayukta was
violative of Section 9(3) of the Act and principles of natural
justice. The consequent entrustment of the enquiry by
respondent No.1 to respondent No.2 and issuance of the
articles of charges suffer illegality. Therefore the judgments
relied on by the respondents' counsel cannot be justifiably
applied to the facts of the case.
18. Under the aforesaid circumstances, the Tribunal
was not justified in rejecting the application for condonation of
delay and consequently the application. The impugned order
of the Tribunal is liable to be set aside. Hence the following:
ORDER
(i) The petition is allowed.
W.P.No.202428/2022
(ii) The impugned order of the Tribunal Annexure-E
dated 02.12.2021 is hereby set aside.
(iii) Application No.20564/2020 is hereby allowed.
(iv) The order of respondent No.1 dated 25.10.2018
entrusting the matter to Lokayukta for enquiry
and the charge memo Annexure-A4 dated
28.12.2018 issued by respondent No.3 so far it
relates to the petitioner are hereby quashed.
(v) Consequently, respondent No.1 shall restore all
consequential service benefits to the petitioner.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
