w w w . L a w y e r S e r v i c e s . i n



V. Divakar v/s The State of Karnataka, Department of Urban Development, Represented by its Principal Secretary, Bengaluru & Others


Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- KARNATAKA URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = U45202KA1970ULL001975

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    W.P. No. 34376 of 2018 (GM-KLA)

    Decided On, 05 May 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ARAVIND KUMAR & THE HONOURABLE MR. JUSTICE SURAJ GOVINDARAJ

    For the Petitioner: Sathish Bhat, M.S. Bhagwat, Advocates. For the Respondents: R1, K.R. Nithyanda, HCGP, R2 & R3, Venkatesh S. Arabatti, K.N. Puttegowda, Advocates.



Judgment Text

(Prayer: This Writ Petition is filed Under Article 226 of Constitution of India praying to quash the impugned report dated:22.01.2018 issued by the R-2 (Annexure-H), impugned of entrustment dated:09.03.2018 issued by the R-1 (Annexure-J) and impugned Articles of charge dated:14.06.2018 issued by the R-3 (Annexure-L) in so far as the petitioner is concerned.)Aravind Kumar, J.1. The short issue which arises for our consideration in this writ petition revolves around as to whether the Upa lokayukta could have initiated proceedings suo motu under Rule 14-A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short 'CCA Rules').2. Records on hand would disclose that on a sting operation conducted by a News channel, petitioner herein was proceeded against by issuance of show cause notice dated 19.01.2016 (Annexure-A) intimating petitioner thereunder that he should explain his defence with regard to the alleged incident that occurred on 17.12.2015, failing which action would be taken in accordance with CCA Rules. Subsequently, second show cause notice came to be issued on 25.01.2016 - Annexure-B, for which petitioner submitted his reply/explanation on 28.01.2016 and after considering the reply and also entire material on record available, Disciplinary Authority - fourth respondent directed Joint Commissioner of BBMP to impose penalty on the petitioner and as such, penalty of censure came to be imposed on petitioner which has been accepted and said order imposing penalty dated 12.02.2016 (Annexure-D) has reached finality.3. During the interregnum complainant- Sri.Rowland Soans has lodged a complaint in Form No.I on 29.12.2015 - Annexure-E before second respondent alleging petitioner and others had demanded bribe for issuance of food license. Second respondent issued notice to the petitioner on the same set of allegations which was subject matter of earlier show cause notices dated 19.01.2016 - Annexure-A and 25.01.2016 - Annexure-B by calling upon petitioner to offer his reply to the allegation made in the complaint. Petitioner offered his reply on 20.02.2016 - Annexure-G by denying the allegation of demand of bribe and also denied entire allegation made against him. After lapse of two years i.e. 22.01.2018 vide Annexure-H, second respondent submitted a report under Section 12(3) of Karnataka Lokayukta Act, 1984 (for short 'Lokayukta Act') by recommending initiation of disciplinary proceedings against petitioner and two others, based on the sting operation made by a Private news channel, as aforestated. In fact, in the report under Section 12(3) of the Lokayukta Act submitted by the Upalokayukta, a reference has been made to the defence raised by the petitioner to the show cause whereunder petitioner had specifically contended that on same set of allegations, penalty had already been imposed by the Disciplinary Authority. This factual aspect seems to have not been delved upon in said report (Annexure-H) as to why said plea is not being considered except making an observation that no regular enquiry proceedings had been held under Rules 11 & 12 of Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957 though allegation is of grave nature and therefore same cannot be a bar for proceeding against petitioner herein.4. Based on the recommendation or report dated 23.01.2018 (Annexure-H) of second respondent, first respondent has passed an order on 09.03.2018 (Annexure-J) whereunder it has been resolved to hold enquiry by entrusting the said enquiry to second respondent. Hence, second respondent has nominated third respondent as Inquiry Officer and has directed third respondent to frame charges and to conduct enquiry against petitioner and 2 others vide order dated 21.03.2018 (Annexure-K). Accordingly, Articles of Charge came to be issued to the petitioner on 14.06.2018 (Annexure-L). Hence, this writ petition.5. We have heard the arguments of Sri Sathish K, learned Advocate appearing on behalf of Sri M.S.Bhagawat, for petitioner, Sri Kiran Kumar, learned HCGP appearing for respondent-1, Sri Venkatesh S Arabatti, learned Advocate appearing for respondent-2 and 3 and Smt.Nandini C.G., learned Advocate appearing on behalf of Sri K.N.Puttegowda, for respondent-4. Perused the records.6. It is the contention of Sri K Sathish, learned Advocate appearing for petitioner that recommendation made by second respondent to hold enquiry against petitioner is based on the alleged sting operation conducted by a private Television Channel and consequent order of entrustment of such enquiry by first respondent to second respondent is one without authority of law. He would contend that since it is evident from records that regular departmental enquiry had already been held by fourth respondent against the petitioner and an order dated 12.02.2016 came to be passed by the competent Disciplinary Authority by imposing penalty, there cannot be any denova enquiry or fresh enquiry on set of allegations, when said order imposing penalty having been set aside. Hence, by relying upon the following judgments, he prays for allowing the writ petition.(i) 1971(2) SCC 102: K.R.DEB vs THE COLLECTOR OF CENTRAL EXCISE, SHILLONG(ii) (2014)6 SCC 495: RAJAT PRASAD vs CENTRAL BUREAU OF INVESTIGATION(iii) (2013)11 SCC 173: D.H.B.V.N.L. VIDYUT NAGAR, HISAR & OTHERS vs YASHVIR SINGH GULIA(iv) Unreported judgment dated 21.10.2016 passed in W.P.Nos.40643/2016 and 42245/2016 and connected matters in the matter of STATE OF KARNATAKA AND ANOTHER vs MOHAMMED GHOUSE AND ANOTHER.7. Per contra, Sri Venkatesh S Arabatti, learned Advocate appearing for respondents-2 and 3 would seek for dismissal of the writ petition by reiterating the contentions raised in the statement of objections. He would submit that order of censure dated 12.02.2016 (Annexure-D) suffers from infirmities as it does not mention about invoking of CCA Rules and as such, it is clear that disciplinary authority has neither invoked nor adhered to the said provision. He would submit that no regular enquiry proceedings as contemplated under Rule 11 and 12 of CCA Rules had been initiated against petitioner and orders had been passed thereon and as such, respondents-2 and 3 have acted upon the complaint by virtue of powers conferred under Sections 7, 9 & 12 of the Lokayukta Act. Hence, he prays for dismissal of the writ petition.8. Learned HCGP appearing for respondent-1 as well as learned Advocate appearing for respondent-4 would pray for suitable orders being passed.9. Facts relating to filing of the petition has already been delved upon and as such, we are of the view that narrating same would only be repetition of facts, except to the extent required.10. There is no dispute to the fact that a sting operation having been conducted by a private Television Channel on 07.12.2015 and same having been aired on 17.12.2015, wherein it was relayed that petitioner and two others were demanding bribe for issue of business licence. This resulted in a show cause notices being issued by the Disciplinary Authority to the petitioner on 19.01.2016 and 25.01.2016 (Annexures-A & B), which was on account of communication dated 16.01.2016 from the office of the fourth respondent to take action against erring officials under KCS (CCA) Rules, 1957. An explanation came to be offered by petitioner on 28.01.2016 (Annexure-C) to the said show cause notices. Disciplinary Authority - Joint Commissioner of BBMP by taking into consideration reply submitted by the petitioner and other material available before him, passed an order on 12.02.2016 (Annexure-D) imposing penalty of censure.11. At this juncture itself, it would be apt and appropriate to note the contention of learned Advocate appearing for respondents-2 and 3 whereunder it has been contended that there was no proceedings initiated against petitioner under KCS (CCA) Rules, 1957. The very show cause notice dated 19.01.2016 (Annexure-A) would clearly indicate that said show cause has been issued under KCS (CCA) Rules, 1957 namely, Rule 8 and also under Rule 214(1)(a). It is based on the said show cause notice, reply came to be submitted by petitioner on 28.01.2016 (Annexure-C) which culminated in the order of censure being passed on 12.02.2016 (Annexure-D). If at all, the Disciplinary Authority was not satisfied with the reply offered by petitioner to the show cause notices, same could have been rejected or in the alternate, further enquiry could have been conducted.12. In the instant case, show cause notice dated 19.01.2016 (Annexure-A) issued to the petitioner would disclose that same is issued proposing thereunder to impose penalty prescribed under Rule 8 of CCA Rules. For imposing any of the penalties specified in clauses(v) to (viii) of Rule 8, conducting of enquiry in the manner provided under Rule 11 or 11A would be necessary. Insofar as imposing of penalty under clauses(i) to (iv), the Disciplinary Authority is required to issue notice and then pass an order imposing penalty. Conducting of an inquiry would not be mandatory in such circumstances. Thus, when the show cause notice dated 19.01.2016 itself clearly specifies that same has been issued for imposing minor penalty, question of holding an inquiry under Rule 11 of CCA Rules which prescribes for imposing major penalty would not arise. As such, contention raised by Mr.Venkatesh S Arabatti, learned Advocate appearing for respondents-2 and 3 to the effect that order dated 12.02.2016 (Annexure-D) does not reflect regular inquiry against petitioner having been held under Rule 11 of CCA Rules and thereby second respondent is empowered to inquire into the complaint afresh does not hold water.13. In fact, even in circumstances where an inquiry is held under Rule 11 of CCA Rules and the Disciplinary Authority itself not being inquiring authority, it may for reasons to be recorded in writing, remit the matter to the inquiring authority for further inquiry and report.14. The consequences of action being taken or otherwise on an inquiry report as provided under Rule 11A was the subject matter of consideration by the Division Bench of this Court in the case of STATE OF KARNATAKA AND ANOTHER -V- MOHAMMED GHOUSE in Writ Petition Nos.40643/2016 & 42245/2016, disposed of on 21.10.2016 whereunder it has affirmed the view of Karnataka Administrative Tribunal wherein it was held that there was no provision made for fresh inquiry under Rule 11-A(1) and it has been further held that as per scheme of the Rules, what is permissible is only further inquiry and not fresh inquiry. It came to be held as under:"12. If the observations made by the Tribunal are considered in the light of the aforesaid, the Tribunal is right in holding that there is no provision made for fresh inquiry under Rule 11-A (1). Even as per the Scheme, in our view, fresh inquiry is not permissible and what is permissible is only further inquiry. What is meant of 'further inquiry' is already observed by us hereinabove. Therefore, the finding recorded by the Tribunal that no fresh inquiry is permissible can be said as correct. But at the same time, one cannot lose sight of the fact that, if the evidence was already there on record and Disciplinary Authority finds that the conclusion recorded by the Inquiry Officer that the charges not proved is not correct then by virtue of Sub-Rule 2 of Rule 11-A, the reasons for disagreement are required to be recorded and the further procedure will be required to be followed. The Tribunal, after having found that fresh inquiry was not permissible, even if was of the view that the impugned orders of the Authority were illegal, it ought to have observed that the Disciplinary Authority shall be at the liberty to take action based on the Inquiry Report in accordance with law, which may included the recording of reasons for disagreement and further action in accordance with law. The Tribunal proceeded on the basis that, once the impugned order of the Authority is set aside, in respect of some of the employees, it has directed the payment of retrial benefits as if the disciplinary proceedings are concluded and on the date of retirement of the concerned respondent/employee, there were no disciplinary proceeding pending at all but such in our view can be said as erroneous approach".15. In the instant case, second respondent who has forwarded a report under Section 12(3) of the Lokayukta Act has in fact noticed about domestic enquiry having been conducted by the Disciplinary Authority namely the Joint Commissioner, Bommanahalli Zone, BBMP and yet held there was no regular inquiry proceedings conducted as required under Rules 11 and 12 of CCA Rules. It is for the Disciplinary Authority to decide as to the manner in which enquiry is to be held or conducted. Competent Authority would decide the said fact. In the instant case, second respondent has found there was an inquiry already held by Disciplinary Authority. However, proceeded to hold inquiry as contemplated under Rules 11 and 12 had not been held by Disciplinary Authority against petitioner. Whereas, the factual matrix would disclose that Disciplinary Authority had issued show cause notices to petitioner for imposing minor penalty as contemplated under Rule 8 of CCA Rules and said show cause notice was an offshoot of the order passed by the Commissioner, BBMP - fourth respondent herein on 16.01.2016 directing the Disciplinary Authority to initiate proceedings against petitioner in accordance with law. Pursuant to same, show cause notices came to be issued to petitioner and reply was submitted, which resulted in an order of censure being passed on 12.02.2016 (Annexure-D) against petitioner. As such, conducting of enquiry afresh against petitioner in respect of an incident which had been inquired into by the Disciplinary Authority, which resulted in imposition of penalty would not arise as it would amount to vexing the delinquent employee of second inquiry and same is impermissible.16. For the reasons aforestated, we are of the considered view that petitioner is entitled to the relief sought for.17. Though we have granted relief to the writ petitioner on a technical ground namely on account of order of censure having been passed on 12.02.2016- Annexure-D and even before report dated 22.01.2018 (Annexure-H) under Section 12(3) of the Act came to be submitted by second respondent recommending to the Competent Authority to initiate disciplinary proceedings against petitioner and two others, we are of the view that certain directions deserves to be issued to avoid repetition of such incidents.18. Chronology of events as noted above would indicate though show cause notices (Annexure-A & B) came to be issued by Competent Authority to petitioner on 19.01.2016 and 25.01.2016 respectively, petitioner chose to reply to the same only on 28.01.2016- Annexure-C. Based on material available on record, Competent Authority had passed an order on 12.02.2016 -Annexure-D imposing penalty of censure on petitioner. In the meanwhile, third respondent acting on the complaint dated 29.12.2015-Annexure-E, had commenced the proceedings and had issued a notice to petitioner on 06.01.2016 enclosing copy of complaint with enclosures by calling upon the petitioner to submit his reply/objection, if any, to the said complaint. Though petitioner was in the know- how of the complaint and had received the notice dated 06.01.2016 from third respondent, yet while submitting reply on 28.01.2016-Annexure-C to the Competent Authority has not whispered a word about the proceedings initiated by third respondent obviously to stage manage of obtaining an order of censure from the Competent Authority. Hence, petitioner had not disclosed about proceedings having been initiated by the third respondent while replying to the show cause notices issued by the Competent Authority, which fact is writ large in the light of original records produced by the learned Standing Counsel appearing for the Lokayuktha. In fact, petitioner did not reply to the show cause notice dated 06.01.2016 issued by third respondent immediately though it has been received by him on 08.01.2016. Postal cover produced along with memo dated 18.12.2019 would evidence the fact that show cause notice dated 06.01.2016 issued by third respondent had been received by the petitioner on 08.01.2016 and yet he did not reply to the same, obviously expecting a favourable order from the Competent Authority, which he received on 12.02.2016- Annnexure-D. It is thereafter petitioner submitted his reply on 20.02.2016 to the show cause notice dated 06.01.2016 issued by third respondent raising a plea thereunder that Competent Authority namely, fourth respondent had already passed an order on 12.02.2016 whereunder punishment of censure (minor penalty) had been imposed.19. Thus, it is clear from the records that in order to short circuit the process initiated by third respondent - Lokayuktha, petitioner did not reply to the show cause notice dated 06.01.2016 issued by said authority till the order dated 12.02.2016-Annexure-D came to be passed by the Competent Authority.20. Petitioner while submitting his reply dated 28.01.2016 - Annexure-C to the show cause notices dated 19.01.2016 and 25.01.2016 - Annexures-A and B issued by Competent Authority, has not whispered a word about having received the show cause notice dated 06.01.2016 issued by third respondent namely, Lokayuktha which was well within his knowledge. Thus, from original records it is clear that petitioner has adopted trick and stratagem to scuttle the enquiry proceedings initiated by third respondent by suppressing this fact before the fourth respondent. In the event of petitioner had intimated in his reply dated 28.01.2016 -Annexure-C submitted to fourth respondent about the pendency of proceedings initiated by third respondent, probably the Competent Authority would not have proceeded further or would not have passed the order dated 12.02.2016-Annexure-D or would have taken such appropriate steps as it may have deemed fit. Hence, to overcome such strategies being adopted by the delinquent officials it would be necessary for us to issue certain d

Please Login To View The Full Judgment!

irections which will avoid misuse of procedural law in the matter of enquiry proceedings and to prevent abuse of process of law, which may be adopted by such officials to achieve their malafide goals. Though, petitioner in the instant case has been successful in the enquiry proceedings initiated by departmental authorities, whereunder an order of censure has been imposed, this Court cannot lose sight of the fact that such instances cannot be allowed to be recurred or repeated in future. As such directions are to be issued as under:(a) We direct that in respect of all pending and future enquiries it would be the duty and responsibility of a delinquent official or the noticee against whom show cause notices have been issued by the Office of Lokayuktha to inform and declare before the competent authority about pendency or non pendency of any other proceedings before any other forum, to enable such Competent Authority to take appropriate decision in the matter.(b) Enquiry Officer or Competent Authority shall enquire from the delinquent employee about the pendency of any other proceedings before any other authority or Court, before proceeding to pass orders of imposing penalty.(c) In the event of any enquiry against the official is pending before the Central Bureau of Investigation, Lokayuktha, Anti-Corruption Bureau or any other like agencies, such enquiries may have to receive precedence over the domestic enquiry and it is for the competent authorities to decide the course of action to be adopted depending on fact situations.Hence, we proceed to pass the following:ORDER(i) Writ petition is allowed subject to directions issued herein above.(ii) Report dated 22.01.2018 bearing No. Compt/Uplok/BCD.4581/2015/DRE-3 (Annexure-H) issued by second respondent, MNG 2018 (Annexure-J) issued by first respondent and Article of Charge dated 14.06.2018 bearing No. Uplok-1/DE-154/2018/ARE-8 (Annexure-L) issued by third respondent insofar as it relates to petitioner are hereby quashed.(iii) No order as to costs.
O R