Karnataka High Court
M H Sudhakar vs The State Of Karnataka on 8 April, 2024
Author: K.Somashekar
Bench: K.Somashekar
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WP No. 7537 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO. 7537 OF 2021 (GM-KLA)
BETWEEN:
M.H SUDHAKAR,
S/O M.HARIDAS BHAT,
AGED ABOUT 51 YEARS,
CHIEF OFFICER,
TOWN PANCHAYATH,
I.B ROAD, BELTHANGADY,
DAKSHINA KANNADA DISTRICT-574 214.
...PETITIONER
(BY SRI. MALLEGOWDA H.P, ADVOCATE)
Digitally signed by AND:
HARIKRISHNA V
Location: HIGH 1. THE STATE OF KARNATAKA,
COURT OF BY ITS UNDER SECRETARY,
KARNATAKA
DEPARTMENT OF TOWN DEVELOPMENT
VIKASA SOUDHA, BENGALURU-560 001.
2. HONBLE UP LOKAYUKTA,
REPRESENTED BY ITS REGISTRAR,
M.S BUILDING,
BENGALURU-560 001.
3. SMT. STELLA D SOUZA,
W/O EIAL D SOUZA,
R/AT SADAN, CTO ROAD,
DARBE, PUTTUR,
DAKSHINAKANNADA (D)
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WP No. 7537 of 2021
...RESPONDENTS
(BY SMT. MAMATHA SHETTY, AGA FOR R1;
SRI. ASHWIN S HALADY, SPL. COUNSEL FOR R2;
R3-SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH, BY ISSUE
A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
OR ORDER THE IMPUGNED RECOMMENDATION ORDER
NO.UPLOK-2/DE/576/2017/ARE-14 DATED 15/04/2019 PASSED
BY THE 2ND RESPONDENT (VIDE ANNEXURE-J) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, RAJESH RAI.K, J., MADE THE
FOLLOWING:
ORDER
In this writ petition, the petitioner has prayed
to quash the impugned recommendation order
No.UPLOK-2/DE/576/2017/ARE-14 dated 15.04.2019 passed by
the second respondent and the impugned order dated
16.05.2020 issued by the first respondent as null and void.
Further, it is also prayed to pass such other order or direction
as deems fit by this Court in the facts and circumstances of the
case.
2. The facts that are apposite for consideration as
borne out from the pleadings are as follows:
The petitioner belongs to the Town Municipal Council,
Puttur and presently he is working as Chief Officer, Town
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Panchayath, Belthangady, Dakshina Kannada District. The
petitioner was put in around 25 years of service. One Stella
D'Souza has given a complaint against one Nagaraja Rai on
06.02.2014 before the petitioner stating that the said Nagaraja
Rai is a neighbor of the complainant-Stella D'Souza, was using
a Well which is within the compound of the complaint and was
constructing a house. Hence, he was also using the water from
the said Well by installing the motor pump. The said Nagaraja
Rai had taken an electric connection, bedding the cable on the
compound wall of the complainant-Stella D'Souza. She made
further allegation that, the said Nagaraja Rai has constructed
his house without giving a setback. Hence, the complainant
requested the petitioner to stop the construction of the house
of the said Nagaraja Rai and direct him to take out the electric
cables which are connected to the Well. Subsequently, having
received the complaint, the petitioner along with the junior
engineer, had visited the spot and inspected the premises.
After noticing all the necessary steps taken by the petitioner,
they came to know that the first floor of the house of the said
Nagaraja Rai has been constructed under the approved sketch
granted by the Planning Authority. They also confirmed that the
said Nagaraja Rai had given a setback in his house and he had
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installed the pipe in the slab to avoid the rainwater flowing to
the complainant's house. To that effect, the petitioner gave an
endorsement dated 05.06.2014.
3. Finally, the matter was settled between the parties
in the Lok Adalat held at the office of the Town Municipality,
Puttur. The petitioner had communicated the same to the
second respondent through his letter dated 24.07.2014.
Posteriorly, the matter was taken up by the second respondent
and Articles of Charge was served to the petitioner. However,
the petitioner appeared before the second respondent on
22.12.2017 and his oral statement was recorded. The petitioner
had also filed a defence statement before the second
respondent. Thereafter, the second respondent concluded the
case by proving a charge framed against the petitioner and
accordingly, a report has been submitted to the Uplokayukta-I.
Consequently, Uplokayukta has recommended to the
Government to impose the penalty of withholding four annual
increments payable to the petitioner. Based on the report of the
Uplokayukta, the first respondent had issued a show cause
notice to the petitioner for his explanation regarding the
charges leveled against him. The petitioner replied to the said
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show cause notice issued by the first respondent that there is
no dereliction of duty from his end.
4. However, the first respondent did not considered
the reply dated 29.07.2019 submitted by the petitioner and has
confirmed the recommendation forwarded by the Uplokayukta
and imposed the penalty on the petitioner withholding four
annual increments payable to the petitioner under the Rule
8(iii) of the Karnataka Civil Service Rule, 1957, as per
Annexure-M to this writ petition. Aggrieved by the said order,
the petitioner preferred this writ petition to quash the said
endorsement.
5. We have heard the learned counsel for the
petitioner so also learned Additional Government Advocate for
the respondent-State and learned counsel for respondent No.2-
Uplokayukta.
6. It is the primary contention of the learned counsel
for the petitioner that in respect of the complaint lodged by one
Stella D'Souza against one Nagaraja Rai, the petitioner visited
the spot and inspected the place along with the junior engineer.
After inspecting the spot, the petitioner has concluded that
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Nagaraja Rai has given a setback to his house. Accordingly, he
issued the endorsement. He would further contend that during
the course of enquiry, the complainant Stella D'Souza remained
absent before the authority and the Scrutiny Officer was
examined on her behalf. As such, the evidence of PW.1 i.e., the
Scrutiny Officer cannot be considered for any purpose. Further
the dispute between the complainant and the said Nagaraja Rai
has been settled before the Lok Adalat held at the office of the
Town Municipality, Puttur. Under such circumstances, the
petitioner in no way committed any dereliction of duty and the
Enquiry Officer wrongly passed the impugned order. As such,
he prays to quash the same.
7. Per contra, learned counsel for the respondent-
Uplokayukta would contend that in spite of service of summons
to the petitioner, he remained absent and he did not cross-
examined PW.1, who examined on behalf of the complainant.
As such, the defence of the petitioner has not been proved in
the enquiry proceedings. He would also contend that during
the course of enquiry, apart from the evidence of PW.1, there
are seven documents have been marked and after considering
the evidence of PW.1 as well as the documents placed on behalf
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of PW.1, the Enquiry Officer rightly passed the impugned order,
which does not call for any interference. It is further contended
that the punishment imposed to the petitioner by the
Government is proportionate and the same does not call for
any interference. Accordingly, he prays to dismiss the writ
petition.
8. Learned Additional Government Advocate would
also support the contentions of the learned counsel for the
respondent-Uplokayukta and prays to dismiss the writ petition.
9. Having heard the learned counsel for the parties
and also having perused the evidence and documents made
available before us, the complainant-Stella D'Souza, who
lodged the complaint in respect of the alleged dereliction of
duty by the petitioner, did not appear before the Enquiry
Authority. As such, the Scrutiny Officer has been examined on
her behalf and the relevant documents got marked. Though,
the petitioner remained absent and failed to cross-examine
PW.1, nevertheless, he submitted the representation dated
29.07.2019, wherein he categorically stated that the dispute
between the complainant-Stella D'Souza and her neighbour
Nagaraja Rai, pertaining to the construction of house in respect
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of setback issue and he visited the said spot along with the
junior engineer and inspected the premises. Accordingly, he
issued endorsement dated 05.06.2014. In spite of that, the
said complainant has lodged the complaint before the
respondent-Uplokayukta with an ulterior motive. Such being
the case, the very allegation stated in the complaint of Stella
D'Souza in respect of not leaving the setback by the neibour
Nagaraja Rai was already dealt by the petitioner by visiting the
spot. Moreover, the issue between the complainant-Stella
D'Souza and Nagaraja Rai has already been settled in the Lok
Adalat held at the office of the Town Municipality, Puttur. Under
such circumstances, we do not find any such dereliction of duty
on the part of the petitioner as held by the Enquiry Officer.
We are aware of the fact that the Hon'ble Apex Court held
in catena of judgments that the judicial review on the penalty
imposed by disciplinary authorities is very limited, but in the
same time, if the findings of misconduct by the authority is
without some evidence and suffers from perversity, the Courts
can interfere in the order passed by the disciplinary authorities.
Our view fortified by the judgment rendered by the Hon'ble
Apex Court in the case of State of Karnataka vs. Umesh
reported in (2022) 6 SCC 563. In the case on hand, the
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evidence of PW.1 i.e., the Scrutiny Officer who has examined
on behalf of the complainant does not made out any prima
facie case against the petitioner about dereliction of duty on his
part. Hence, we are of the considered view that the order
passed by the first respondent dated 16.05.2020 is not
sustainable. Accordingly, a writ of certiorari is issued and the
impugned recommendation order dated 15.04.2019 passed by
the second respondent and the subsequent order dated
16.05.2020 passed by the first respondent are hereby quashed.
Consequently, the petitioner is entitled for all consequential
benefits.
Accordingly, the writ petition is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
KTY
