Karnataka High Court

Sri Hemanth Kumar vs The State Of Karnataka on 1 August, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                           WP No. 11946 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 1ST DAY OF AUGUST, 2024

                                             PRESENT
                              THE HON'BLE MR JUSTICE S.G.PANDIT
                                                AND
                            THE HON'BLE MR JUSTICE C.M. POONACHA
                           WRIT PETITION NO. 11946 OF 2017 (S-KAT)
                   BETWEEN:

                   SRI HEMANTH KUMAR
                   S/O LATE K.N.MALLESHAPPA,
                   AGED ABOUT 49 YEARS,
                   WORKING AS FIRST DIVISION ASSISTANT
                   OFFICE OF TAHSILDHAR,
                   ARASIKERE, HASSAN DISTRICT - 573 103.
                                                                     ...PETITIONER
                   (BY SRI. SATISH K., ADVOCATE)

                   AND:

                   1.    THE STATE OF KARNATAKA
                         DEPARTMENT OF REVENUE,
                         REPRESENTED BY ITS PRINCIPAL SECRETARY,
                         M.S.BUILDING, BANGALORE - 560 001.
Digitally signed
by BHARATHI S      2.    THE HONBLE UPALOKAYUKTHA
Location: HIGH
COURT OF                 M.S.BUILDING,
KARNATAKA                BANGALORE - 560 001.

                   3.    THE DEPUTY COMMISSIONER
                         HASSAN DISTRICT,
                         HASSAN - 573 201.
                                                                   ...RESPONDENTS
                   (BY SRI. SESHU V, HCGP FOR R1 & R3
                       SRI. VENKATESH S ARABATTI, ADVOCATE FOR R2)

                        THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
                   CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM
                   THE HON'BLE KARNATAKA STATE ADMINISTRATIVE     TRIBUNAL
                   PERTAINING TO APPLICATION NO.5268/2013, QUASH THE
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                                              WP No. 11946 of 2017




IMPUGNED ORDER TO THE HON'BLE STATE ADMINISTRATIVE
TRIBUNAL DTD 4.1.2017 PASSED IN APPLICATION NO.5268/2013
[ANNEXURE-A] AND CONSEQUENTLY ALLOW THE APPLICATION
NO.5268/2013 FILED BY THE PETITIONER BEFORE THE HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AS PRAYED FOR
AND ETC.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:       HON'BLE MR JUSTICE S.G.PANDIT
             and
             HON'BLE MR JUSTICE C.M. POONACHA

                             ORAL ORDER

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

The petitioner, a First Division Assistant belonging to the

Revenue Department is before this Court under Article 226 of

the Constitution of India questioning the correctness and

legality of the order dated 4.1.2017 passed in Application

No.5268/2013 by the Karnataka State Administrative Tribunal,

Bengaluru (for short 'Tribunal') rejecting his application

questioning the show cause notice dated 25.7.2013 (Annexure-

A11).

2. Brief facts of the case are that while the petitioner

was working as a First Division Assistant at the Taluk Office,

Arasikere, Hassan District, a trap was laid against the petitioner

by the Lokayukta Police on 25.6.1997. The Lokayukta, on

investigation submitted a report under Section 12(3) of the

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Karnataka Lokayukta Act, 1984 (for short '1984 Act') to the

State Government. Based on the said report, the State

Government took a decision to initiate departmental enquiry

and entrusted the enquiry to the Lokayukta. In pursuance to

the said entrustment order, Lokayukta had nominated an

Enquiry Officer and the said nominated Enquiry Officer issued

Articles of Charge dated 30.6.2000. The Enquiry Officer on

conducting enquiry submitted his report on 26.9.2002. Based

on the enquiry report, the petitioner was issued with a second

show cause notice. After obtaining reply from the petitioner,

the State Government passed an order dated 31.5.2003

dismissing the petitioner from service. The said order of

dismissal was the subject matter of Application No.5913/2003

before the Tribunal. The Tribunal by order dated 16.12.2010

(Annexure-A6) allowed the application following the decision of

the coordinate Bench of this Court in the case of Prof.

S.M.Hegde and another v. The Lokayuktha, Bangalore

and others, reported in ILR 2004 KAR 3892, reserving

liberty to the respondent to initiate departmental enquiry in

accordance with law, strictly following the procedure laid down

under the Karnataka Lokayukta Act and also as per the

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Karnataka Civil Services (Conduct, Classification and Appeal)

Rules, 1957 (for short 'CCA Rules'), if the respondent so

desires. Thereafter, the State Government by Government

order dated 2.11.2011 (Annexure-A9) entrusted the enquiry

under Rule-14-A of the CCA Rules to the Upalokayukta to

conduct further departmental enquiry. It is stated that in

pursuance to the said order, Upalokayukta nominated the

Additional Registrar of Enquiries-4, Karnataka Lokayukta, as

Enquiry Officer by order dated 5.9.2011. The Enquiry Officer is

said to have proceeded on the basis of earlier charge

memo/Articles of charge and submitted fresh enquiry report

dated 18.12.2012. The same was forwarded to the

Government along with the recommendation of the

Upalokayukta. The Enquiry Officer without framing fresh

Articles of charge proceeded from the stage of arguments

based on the evidence recorded earlier. On the said enquiry

report and recommendation of the Upalokayukta, the State

Government issued a second show cause notice dated

25.7.2013 enclosing enquiry report. Challenging the said

second show cause notice dated 25.7.2013 the petitioner was

before the Tribunal in Application No.5268/2013 on the ground

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that on fresh entrustment of enquiry, the nominated Enquiry

Officer was required to follow Rule-11 of the CCA Rules and

ought to have framed fresh Articles of charge and then

proceeded with the enquiry. The Tribunal, under the impugned

order dismissed the application with a direction to the first

respondent to furnish Enquiry Officer's report and Upalokayukta

recommendation to the applicant, if not already furnished and

pass appropriate orders after considering the representation

that may be given by the applicant. Being aggrieved by the

said order, the petitioner is before this Court.

3. Heard Sri Satish K, learned counsel for the

petitioner and Sri Seshu V, learned HCGP for respondent Nos.1

and 3 as well as Sri Venkatesh S.Arbatti, learned counsel for

respondent No.2. Perused the entire writ petition papers.

4. Learned counsel Sri Satish K, would submit that the

Enquiry Officer committed a grave error in not framing Articles

of charge on fresh entrustment of enquiry by the State

Government under order dated 2.11.2011. The learned counsel

would submit that the earlier nomination of Enquiry Officer by

the Lokayukta is set aside under order dated 16.12.2010

passed in Application No.5913/2003 by the Tribunal with liberty

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to initiate departmental enquiry in accordance with law. When

the earlier order of punishment is quashed with liberty to

initiate departmental enquiry in accordance with law and when

the State Government passes fresh entrustment order dated

2.11.2011, it is incumbent upon the nominated Enquiry Officer

to frame Articles of charge in terms of Rule-11 of the CCA Rules

and ought to have proceeded from the stage of framing Articles

of charge. The learned counsel would submit that non framing

of fresh Articles of charge by the nominated Enquiry Officer has

vitiated the entire proceedings and as such, the government

could not take action on such enquiry report.

5. Learned counsel Sri Satish further contended

referring to the judgment dated 2.8.2006 passed in Special

Case No.35/1998 that the petitioner is honourably acquitted in

the special case registered under Sections 7, 13(a)(d) read with

Section 13(2) Prevention of Corruption Act, 1988 on the same

set of facts and evidence. Therefore, he submits that the

departmental enquiry against the petitioner on the same set of

facts and evidence cannot be conducted. On this point, the

learned counsel after arguing at length submits that he would

raise the said contention before the Enquiry Officer.

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6. The said submission is placed on record.

7. On the contrary, learned counsel Sri Arbatti for

respondent No.2 would support the order passed by the

Tribunal and would submit that since the entrustment order

would state that the UpaLokayukta to continue further

departmental enquiry, it would mean that the Enquiry Officer to

continue the enquiry from the stage where the infirmity had

been pointed out. The learned counsel would submit that in

terms of the entrustment order, the Enquiry Officer continued

further enquiry from the stage of recording arguments in the

enquiry. Further, the learned counsel referring to Sub Rule

(22) of Rule-11 of the CCA Rules would submit that whenever

an Enquiry Officer is changed or ceases to exercise his

jurisdiction or another Enquiry Officer is succeeded to to

continue the enquiry, the said Enquiry Officer would continue

from the stage where the enquiry was stopped by his

predecessor. Thus, he justifies the action of the Enquiry

Officer. Further, in the interest of time, the Enquiry Officer

proceeded to complete the enquiry from the stage of hearing

the arguments of the parties.

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8. Learned HCGP for respondent Nos.1 and 3 also

would support the order passed by the Tribunal and would

submit that it is open for the petitioner to file his objections to

the second show cause notice which would be considered by

the government before passing any order. Thus, he justifies the

action of the Enquiry Officer and prays for dismissal of the writ

petition.

9. Having heard the learned counsel for the parties

and on perusal of the entire writ petition papers, the only point

which falls for consideration is as to whether the impugned

order of the Tribunal requires interference.

10. The answer to the above point would be in the

affirmative for the following reasons:

The facts are not in dispute. The only question is as to

whether in pursuance to the fresh entrustment order dated

21.11.2011 the enquiry ought to be proceeded from the stage

where the earlier enquiry had stopped or whether the Enquiry

Officer ought to have proceeded in terms of Rule-11 of the CCA

Rules by issuing a fresh Articles of charge. The Tribunal,

however, failed to consider petitioner's ground that pursuant to

the direction issued by the Tribunal, no departmental enquiry is

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initiated, but the Enquiry Officer continued the enquiry on the

evidence collected earlier. The Tribunal ought to have

considered the said issue and ought to have answered the

same. In the facts of the case, we are of the considered view

that on fresh entrustment under Government Order dated

2.11.2011 to conduct enquiry, the nominated Enquiry Officer

ought to have proceeded by following Rule-11 of the CCA

Rules. On fresh entrustment in terms of Rule 14-A(2c) the

authorized Enquiry Officer is required to conduct enquiry in

accordance with the provisions of Rule-11. Rule-11 requires

framing of Articles of charge, obtaining defence statement,

recording of evidence and submitting report in terms of Sub

Rule (23) of Rule-11 of the CCA Rules.

11. The Tribunal in its order dated 16.12.2010 in

Application No.5913/2002 while quashing the order of dismissal

reserved liberty to the respondent to initiate departmental

enquiry in accordance with law strictly following the procedure

laid down under the Karnataka Lokayukta Act and as per CCA

Rules, if the respondent so desires. The observation of the

Tribunal is clear and unambiguous. Liberty is to initiate

departmental enquiry in accordance with law. The

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departmental enquiry would be initiated by issuing Articles of

charge. For all purposes the departmental enquiry is said to

have been initiated on the date of issuance of charge

memo/Articles of charge.

12. For the reasons recorded above, the following:

ORDER

i. The writ petition is allowed;

           ii.      The   order      dated      4.1.2017   passed    in

     Application    No.5268/2013           by   the   Karnataka   State

Administrative Tribunal, Bengaluru, is set aside;

iii. The second show cause notice dated

16.2.2017 bearing No.Kum E 34 BAC 2004, (Annexure-E)

and another second show cause notice dated 25.7.2013

bearing No.Kum E 34 BAC 2004 (Annexure-A11) as well

as the enquiry report dated 18.12.2012 are quashed.

iv. The Enquiry Officer nominated by the second

respondent is directed to follow Rule-11 of the CCA Rules,

issue fresh Articles of Charge and proceed further with

the enquiry;

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v. The petitioner to appear before the concerned

Enquiry Officer on 29.8.2024 without expecting any

fresh notice from the Enquiry Officer;

vi. The Enquiry Officer to complete the enquiry

within 4 months from the date of appearance and the

petitioner shall co-operate for completion of the enquiry