Disposed

Manoj S. Kawalekar v. the Registrar

Karnataka HC14 Nov 2018WP/22665/2017

Case brief

AI extract

What is this about?

A public employee challenged a Lokayukta report and directed recovery communications for mismanagement of seized sand. Finding a full inquiry was already pending, the Court postponed action on the communications until the inquiry concluded.

What did the court decide?

The writ petitions are disposed of; action on the report and communications is postponed pending the conclusion of the inquiry.

Manoj S. Kawalekar Vs the Registrar — Service and Employment | Karnataka HC (2018)

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WP Nos.22665-668/2017

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF NOVEMBER, 2018

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE A.S. BELLUNKE

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WRIT PETITION Nos.22665-668 OF 2017 (GM-KLA)

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BETWEEN:

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MANOJ S. KAWALEKAR, S/O. SURESH KAWALEKAR, AGED ABOUT 42 YEARS, ASSISTANT ENGINEER, R/AT NO. 133, AYODHYA NAGAR, BELGAVI – 590016.

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... PETITIONER

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(By Sri R.M.KULKARNI, ADV.)

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AND:

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THE REGISTRAR KARNATAKA LOKA AYUKTHA, MULTISTORIED BUILDING, DR. AMBEDKAR ROAD, BANGALORE 560001.

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THE PRINCIPAL SECRETARY DEPARTMENT OF PUBLIC WORKS, PORTS AND INLAND WATER WAYS TRANSPORT DEPARTMENT, VIKASA SOUDHA, DR. AMBEDKAR ROAD, BANGALORE 560001.

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THE CHIEF ENGINEER,

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BUILDINGS & COMMUNICATION NORTH, DHARWAD, D.C. COMPOUND, DHARWAD 580001.

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THE EXECUTIVE ENGINEER, DEPARTMENT OF PUBLIC WORKS, PORTS AND INLAND WATER WAYS TRANSPORT DEPARTMENT, BELAGAVI DIVISION, FORT, BELAGAVI 590016.

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THE ASSISTANT EXECUTIVE ENGINEER DEPARTMENT OF PUBLIC WORKS, PORTS AND INLAND WATER WAYS TRANSPORT DEPARTMENT, BELAGAVI SUB DIVISION - 1, BELAGAVI 590016.

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... RESPONDENTS

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(By Sri. MALLIKARJUNSWAMY B HIREMATH, ADV. FOR R1; SRI.RAVI HOSAMANI, AGA FOR R2 TO R5)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REPORT DATED 09.02.2017 PASSED BY THE UPALOKAYUKTA, KARNATAKA STATE, BANGALORE VIDE ANNEXURE ‘A’, AND ETC.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

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O R D E R

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Though these writ petitions are listed for preliminary hearing, with the consent of learned counsel on both sides, they are heard finally.

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Petitioner has assailed report dated 09.02.2017 in complaint No.Complaint/Upalok/

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BGM-6172/2014/PP by the Hon’ble Upalokayukta, Karnataka State, Bengaluru (Annexure ‘A’); letter dated 24.03.2017 issued by respondent No.2 (Annexure ‘B’) and letter dated 17.04.2017 issued by respondent No.4 (Annexure ‘C’) and another letter dated 06.05.2017 issued by respondent No.5 (Annexure ‘D’).

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We have heard learned counsel for the petitioner and learned counsel for respondent No.1 and learned Additional Government Advocate for respondent Nos.2 to 5 and perused the material on record.

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Briefly stated the facts are that the petitioner was working as a Junior Engineer in the office of the Executive Engineer, Public Works, Ports and Inland Waterways, Transport Department (‘PWD’ for short) till 23.06.2008 on which date he was deputed to the Office of the Assistant Executive Engineer, sub-division No.1,

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Belagavi. Presently he is working as an Assistant Engineer in the Office of Assistant Executive Engineer in sub-division No.1, Belagavi. That, by order dated 28.10.2011, he was given additional duty in respect of prohibition and prevention of illegal sand mining and transportation of sand, etc. That on 10.11.2011, Assistant Executive Engineer along with his subordinates and other revenue authorities seized 2844 cubic meters of sand stacked in Survey No.736, Khanapur Road, Udhyambhag, Belagavi. Later, a communication was issued by the Assistant Executive Engineer in that regard as per Annexure ‘G’. The Tahasildar, Belagavi published Notification dated 22.12.2011 regarding public auction of the seized 2844 cubic meters and 280 cubic meters of seized sand. The auction was to be held on 29.12.2011 and 30.12.2011. However, the public auction was postponed since a writ petition was filed by Prashant Koujalagi, stated to be the owner of

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Sy.No.736 in Writ Petition No.48736 of 2011. Later, the petitioner herein was divested of his additional duties relating to storage, checking and verification of the seized sand and the same were re-allotted to Sri.M.B.Kulkarni, S.V. Naik and S.M.Meti. According to the petitioner, with effect from 03.05.2012, he had no responsibility or duties as regards the sand stored either at Udhyambhag near third railway gate or at Circuit House, Belagavi.

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Two years thereafter, on 31.01.2014, Dhananjay Jadhav gave a complaint to the Hon’ble Lokayukta stating that the seized sand stored on the aforesaid land were mismanaged by the Assistant Executive Engineer, Vreshabhendra Murthy and the petitioner and that they were responsible for the loss of stocked sand and requested for action to be taken in that regard. The Hon’ble Upalokayukta conducted an enquiry

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and submitted a report as per Annexure ‘A’ impugned in these writ petitions.

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On receipt of the said report,

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respondent No.2 directed respondent No.3 to recover a sum of Rs.14,90,089-50 being the value of the lost sand from the petitioner and Assistant Executive Engineer—Vreshabhendra Murthy as per Annexure ‘B’. A communication dated 17.04.2017 was also issued by respondent No.4 as per Annexure ‘C’ and similarly, another communication was issued by respondent No.5 to the petitioner as per Annexure ‘D’ which are impugned in these writ petitions.

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Learned counsel for the petitioner submits that the report submitted by the Hon’ble Upalokayukta under Section 12(1) of the Karnataka Lokyukta Act, 1984 (hereafter referred to as ‘ the Act ’ for the sake of brevity) is only a recommendation and it is not a direction to the

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State Government and having regard to the said recommendation, the State Government had to independently apply its mind and thereafter take a decision as to whether the said recommendation ought to be accepted or not and further the nature of the action to be taken also was within the wisdom of the State Government, but in the instant case, merely on the basis of the recommendation of respondent No.1 authority, the other respondents have directed by the impugned communications recovery of a sum of Rs.14,90,089-50 stated to be the amount of financial loss which has been caused from the petitioner as well as by Sri.K.B.Vrushabhendra Murthy—the then Assistant Executive Engineer. The same is without application of mind.

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Learned counsel for the petitioner also sought to distinguish Section 12(1) of the Act from Section 12(3) of the Act in order to contend hat

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the complainant had made an “allegation” and not a “grievance” and therefore, the report could not have been submitted by the Hon’ble Upalokayukta under Section 12(1) of the Act. Such a report could have been submitted only under Section 12(3) of the Act. Therefore, on that short ground alone, Annexure ‘A’ need to be quashed.

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Further, learned counsel for the

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petitioner submitted that prior to issuance of Annexures ‘B’ to ‘D’ to the petitioner, no independent or preliminary enquiry was conducted by the State Government so as to ascertain the veracity of the report submitted in Annexure ‘A’. He further went on to submit that even Annexure ‘A’ report is not based on any enquiry, preliminary or otherwise being conducted by respondent No.1 and therefore, Annexures ‘A’ to ‘D’ may be quashed and relief may be granted to the petitioner herein.

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Per contra , learned counsel for respondent No.1 contended that apart from Annexure ‘A’ / report, which is under Section 12(1) of the Act, there is another report which has

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been submitted by the Hon’ble Upalokayukta under Section 12(3) of the Act to the State Government and on consideration of the same, enquiry has been entrusted to the Hon’ble Upalokayukta under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereafter referred to as the ‘ Rules’ for the sake of brevity). That the petitioner has appeared before the enquiry authority pursuant to the article of charges issued to him (a copy of which is filed by the learned counsel for respondent No.1 along with memo, which is taken on record). That the subject matter of the said enquiry and the subject matter of Annexures ‘A’ to ‘D’ are one and the same. He further submitted that there is no necessity of quashing of Annexures ‘A’ to ‘D’ in

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these Writ petitions, since the report is submitted under Section 12(3) of the Act, on the basis of which enquiry has been entrusted under Rule 14-A of the Rules which is independent of the report submitted as per Annexure ‘A’ which is under Section 12(1) of the Act.

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11. Learned Additional Government

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Advocate appearing for respondent Nos.2 to 5 also echoed the submissions made by the learned counsel for respondent No.1 and further submitted that having taken into consideration the report of Hon’ble Upalokayukta submitted under Section

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12(1) of the Act, action has been taken as per Annexures ‘B’ to ‘D’ for recovery of financial loss caused from the petitioner and another Assistant Executive Engineer and that the action of the State Government is in accordance with law and that this Court may not interfere in the matter.

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By way of reply, learned counsel for the petitioner submitted that since respondent No.2 has entrusted the enquiry against the petitioner herein under Rule 14-A of the Rules as per the Article of charges, in respect of which Annexures ‘A’ to ‘D’ orders have been passed and the State Government is still at the stage of conducting an enquiry through the Upalokayukta against the petitioner which is in progress, at this stage, this Court may consider quashing of Annexure ‘A’ report and Annexures ‘B’ to ‘D’ communications, as, in the event petitioner is exonerated in the said enquiry, the impugned recovery to be made from him would be illegal. He submits that the petitioner cannot on the one hand be exonerated of the charges leveled against him and on the other hand, recovery be made from him for the very same allegation and that too, without there being any proper enquiry held prior to submission

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of Annexure ‘A’ report and communications

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Annexures ‘B’ to ‘D’.

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Having heard the learned counsel for the respective parties and on perusal of the material on record, we note that Hon’ble Upalokayukta has submitted his report dated 09.02.2017 (Annexure ‘A’) pursuant to the complaint made by Dhananjay R.Jadav of Honnihal village, Belagavi Taluk & District. The said report is submitted under Section 12(1) of the Act to the State Government on the basis of which Annexures ‘B’ to ‘D’ communications have been issued to the

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Commissioner directing the petitioner to make good the financial loss of Rs.14,90,089-50 along with the then Assistant Executive Engineer Sri.K.B. Vreshabhendra Murthy. It is this direction which is assailed by the petitioner which is based on the report submitted under Section 12(1) of the Act.

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14. We have also perused the article of

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charges issued to the petitioner dated 18.07.2017. The same reads as under:

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PÉ.©.ªÀÈ¥sÀ¨sÉÃAzÀæ DzÀ ¤ÃªÀÅ ¨É¼ÀUÁ«AiÀÄ ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉAiÀÄ £ÀA.1£ÉÃ G¥À«¨sÁUÀzÀ°è ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgÀgÁV ªÀÄvÀÄÛ JA.J¸ï. PÀªÀ¼ÉÃPÀgÀ DzÀ ¤ÃªÀÅ ¨É¼ÀUÁ«AiÀÄ ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉAiÀÄ £ÀA.1 G¥À«¨sÁUÀzÀ°è ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛzÀÝ CªÀ¢üAiÀÄ°è C£À¢üPÀÈvÀªÁV ¸ÁUÀuÉ ªÀiÁqÀÄwÛzÀÝ ªÀÄgÀ¼À£ÀÄß d¦Û ªÀiÁr ¨É¼ÀUÁ«AiÀÄ ¸ÀPÀÆåðmï ºË¸ï £À°è gÀÆ.14,90,089-50UÀ¼À ±ÉÃRj¹zÀÄÝ ¸ÀzÀj

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ªÀÄgÀ½£À dªÁ¨ÁÝjAiÀÄ£ÀÄß ¸ÀjAiÀiÁV ¤ªÀð»¸ÀzÉÃ, ªÀÄgÀ¼ÀÄ CPÀæªÀÄªÁV PÁuÉAiÀiÁUÀÄªÀÅzÀPÉÌ ¤ÃªÀÅUÀ¼ÀÄ PÁgÀtgÁVzÀÄÝ D ªÀÄÆ®PÀ ¸ÀPÁðj £ËPÀgÀjUÉ vÀPÀÄÌzÀ®èzÀ jÃwAiÀÄ°è £ÀqÉzÀÄPÉÆAqÀÄ zÀÄ£ÀðqÀvÉ¬ÄAzÀ ªÀwð¹ PÀ£ÁðlPÀ £ÁUÀjPÀ ¸ÉÃªÁ ¤AiÀÄªÀÄUÀ¼ÀÄ (£ÀqÀvÉ) 1966 ¤AiÀÄªÀÄ 3(1)(ii) ªÀÄvÀÄÛ (iii)gÀrAiÀÄ°è zÀÄ£ÀðqÀvÉAiÀÄ£Éß¸ÀVgÀÄwÛÃj.”

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On a comparative and conspectus

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reading of the said documents, it reveals that the

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State Government has now taken a decision to entrust the enquiry to the Hon’ble Upalokayukta pursuant to Rule 14-A of the Rules, which is pursuant to an independent report submitted by the Hon’ble Upalokayukta to the State Government under Section 12(3) of the Act.

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Be that as it may. The subject matter of the enquiry being conducted against the petitioner as well as the subject matter of the report under Section 12(1) of the Act and the impugned communications which are at Annexure ‘A’ and Annexures ‘B’ to ‘D’ respectively are in

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respect of the same allegation and/or grievance. When the State Government has decided to conduct a full fledged enquiry against the petitioner under Section 14-A of the Rules by entrusting the enquiry to the Hon’ble

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Upalokayukta who is seized of the matter and an enquiry officer has also been appointed and it is

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stated at the Bar by the learned counsel for respondent No.1 that the enquiry is in progress, at this stage, we find that it is unnecessary to implement Annexure ‘A’ report followed by Annexures ‘B’ to ‘D’ communications. The reason as to why we have passed such an order is not far to see. Any interference by this Court at this stage would have an inevitable effect or impact on the enquiry being conducted under Rule 14-A of the Rules. It is for the said reason that this Court has refrained from interfering in the matter at this stage.

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In the circumstances, while we do not interfere with the said report and communications, we direct respondent No.2 to consider the same on conclusion of the enquiry against the petitioner and on consideration of the same along with the report of the enquiry, to pass appropriate orders in the matter. Therefore, we clarify that any

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action to be taken on the basis of Annexures ‘A’ to

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‘D’ is only postponed to be considered at the time

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of consideration of the report of the enquiry which

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is in progress by respondent No.2 authority.

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The Writ Petitions are disposed of in the aforesaid terms.

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SD/JUDGE

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SD/JUDGE

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RK/-

Manoj S. Kawalekar v. the Registrar

Case brief

What is this about?

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Manoj S. Kawalekar v. the Registrar

Case brief

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