Allowed

Prasanna Kumar a v. Vs State of Karnataka

Karnataka HC20 Dec 2023WP/870/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging compulsory retirement due to a bribe charge. The Court quashed the orders, holding the enquiry report unsustainable as it lacked primary evidence proving the complainant requested a separate Khata extract, creating no nexus to the alleged bribe demand.

What did the court decide?

Impugned orders quashed; petitioner to be reinstated immediately entitled to consequential benefits and arrears of salary.

Prasanna Kumar a v Vs State of… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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NC: 2023:KHC:46608 WP No. 870 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION No.870 OF 2022 (S-RES)

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BETWEEN:

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PRASANNA KUMAR.A.V., S/O LATE AJ VIJAYKUMAR, AGED ABOUT 36 YEARS, R/A #5-1-4, SHAMANNA GARDEN, 1^ST CROSS, BANNERGHATTA, MAIN ROAD, ADUGODI POST, BANGALORE-560 030.

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…PETITIONER

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(BY SRI.BIPIN HEGDE., ADVOCATE)

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AND:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA, REPRESENTED BY SECRETARY, URBAN DEVELOPMENT, GOVERNMENT OF KARNATAKA, M.S.BUILDING, BANGALORE-560 001.

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THE HON’BLE LOKAYUKTA, BY ITS REGISTRAR, M.S.BUILDING, BANGALORE-560 001.

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DIRECTORATE OF MUNICIPAL ADMINISTRATION, AMBEDKAR ROAD, 9^TH AND 10^TH FLOOR, SAMPANGI RAMA NAGAR,

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NC: 2023:KHC:46608 WP No. 870 of 2022

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BANGALORE, KARNATAKA-560 001. REPRESENTED BY AUTHORISED OFFICER.

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CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, BIDADI, KARNATAKA-562 159.

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…RESPONDENTS

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(BY SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3; SRI.VENKATESH S.ARABATTI, ADVOCATE FOR R-2; SRI.RAMESH KUMAR.R.V., ADVOCATE FOR R-4)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY GOVERNMENT ORDER DATED:16.08.2021 AS PER ANNEXURE-M, ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.12.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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The petitioner, who was imposed with the

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punishment of compulsory retirement, is before this Court questioning the punishment.

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On 30.07.2014, a complaint had been lodged with the Lokayukta Police, alleging that the petitioner had demanded a bribe to make a separate Khata of a property and a trap was laid in which the petitioner was caught red-

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handed when accepting the bribe.

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NC: 2023:KHC:46608 WP No. 870 of 2022

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Pursuant to the above complaint and the initiation of

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a criminal case, respondent No.3, who is also his employer, initiated a departmental enquiry by laying a charge-sheet against him. In this charge-sheet, only one charge was alleged, and the same reads as under :

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“ That you DGO Sri.Prasanna Kumar A.V S/o Late A.G.Vijaykumar while working as First Grade Revenue Inspector in Town Municipal Council, Mulbagilu, Kolar District had demanded bribe of Rs.2,000/- from Sri.T.V.Shankarappa S/o Late Chikkavenkatappa, Thotlapalya, Mulbagilu, Kolar district and on negotiation you had agreed to receive Rs.1,000/- to make separate katha of property Asst.No.2671/2475 measuring 50 x 60 in his name and his brother Sri.C.Subramanyam at 22 ½ x 30 each and on 30/07/2014 you again demanded and received tainted money of Rs.1,000/from the complainant when Lokayukta police sent him along with a shadow witness and therefore you the DGO has failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Government

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Servant and therefore you are guilty of misconduct under Rule 3(1)(i) to (iii) of KCS (Conduct) Rules 1966. Hence, this charge.”

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As could be seen from the charge, the allegation was that he had demanded illegal gratification to make a separate Khata of the property belonging to the complainant—Sri.T.V.Shankarappa and his brother— C.Subramanyam.

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The enquiry was entrusted to the Lokayukta, which was also prosecuting on the criminal side.

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The petitioner filed a written statement denying the entire allegations made against him. Four witnesses were cited in the charge-sheet and five documents were listed in support of the Articles of Charge.

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An enquiry was conducted and a report was submitted that the charge against the petitioner had been proved.

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NC: 2023:KHC:46608 WP No. 870 of 2022

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This enquiry report was forwarded to the Department

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i.e., the employer of the petitioner along with the recommendations of Upa Lokayukta that the petitioner be imposed with the punishment of compulsory retirement.

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The employer accepted the said recommendation and proceeded to impose the order of compulsory retirement, as a result of which, the petitioner is before this Court.

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It may be pertinent to state here that the Criminal proceedings that had been launched against the petitioner ended in acquittal by judgment dated 31.07.2020.

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The learned counsel for the petitioner contended that

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there was absolutely no basis for holding that the petitioner was guilty of the charge leveled against him when the critical document i.e., the application seeking for change of Khata, was itself not produced to indicate that a

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plea for change of Khata was pending before the petitioner, and for acting upon the said request, he had demanded illegal gratification.

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It was submitted that the enquiry officer, instead of noticing these serious lacunae, has proceeded to take the view that the petitioner had admitted that it was his duty to inspect the spot and to give a report in order to change the Khata of any property and therefore, it could be inferred that the complainant met the petitioner and had requested for change of Khata.

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The learned counsel also submitted that the enquiry officer was in error in coming to the conclusion that the application that had been filed seeking a Khata extract was, in fact, a request for change of Khata, since the application for Khata extract was to be made after the change of Khata.

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He also highlighted the fact that even before the Criminal Court, the Lokayukta had failed to produce the application for change of Khata and the Criminal Court had recorded a clear finding that the complainant had admitted that he and his brother had only filed an application for a certified copy of the extracts of the Khata and Khata

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Assessment, and he had also specifically admitted that he had never made an application to the Town Municipality seeking separation of joint Khata of his property.

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Lastly, it was argued that the punishment of compulsory retirement was grossly disproportionate to the charge alleged against the petitioner.

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The learned counsel for the respondents, on the other hand, contended that the enquiry officer has appreciated the evidence that was adduced and he has recorded a clear finding that the charges had been established and therefore, the interference under Article 226 of the Constitution of India was not warranted.

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It was also submitted that since there was clear evidence that a demand for a bribe had been made, the punishment imposed was just and appropriate.

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It is settled law that in a proceeding under Article 226 of the Constitution, the writ court would not embark upon the re-appreciation of the evidence that has been

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adduced, nor sit in judgment over the enquiry report as an Appellate Court. The Writ Court would fundamentally examine whether there was evidence to support the charge and whether a fair opportunity to defend himself was given to the delinquent.

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In this writ petition, as could be noticed from the charge, the allegation was that the petitioner had demanded illegal gratification “to make separate Khata of property of Assessment No.2671/2475 of the site measuring 50’ x 60’ in his name and his brother Sri.C.Subramanyam measuring 22.5’ X 30’ each”. Therefore, the specific allegation was that a demand for illegal gratification was made for effecting a separate Khata in favour of complainant and his brother— C.Subramanyam.

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Fundamentally, in order to establish this charge, the request for making of a separate Khata of the property belonging to the complainant and his brother was required to be established, because only if the request for making a

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separate Kahata existed, would the opportunity of making

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a demand for making a separate Khata arise.

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21. The enquiry officer in the enquiry report has stated as follows:

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“26. The I.O has been cross examined by the advocate for DGO by putting suggestions to him for which the I.O has denied. The main defence of the DGO is that, the complainant gave his application for “Khatha transfer” and not for “khatha change” of the property. He has relied upon Ex.P.7, which is a computerized “receipt details at the office of town municipal Council, Mulabagilu”. In this Ex.P.7, Sl.No.1 reveals the name of this complainant as applicant T.V.Shankarappa and the date and time as 30.07.2014 at 10:18:00 for ‘Khatha Extract’. Further, it also reveals the status as, ‘pending’. So, by relying upon this Ex.P7, the argument of the learned counsel for the DGO is that, he filed an application for ‘katha extract’ only and not for ‘khatha change’ and the said application was filed on 30.07.2014 and on the same day in the noon at about 1:10 P.M. he had lodged a complaint before the Lokayukta Police. As the entry in Ex.P7 is for ‘khatha extract’, the DGO has taken this defence.

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NC: 2023:KHC:46608 WP No. 870 of 2022

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It is very pertinent to note that after changing the Khatha only, they will issue Khatha extract. Here, the DGO is also got examined as DW-1. He has very clearly deposed in his chief examination itself as, “PÀAzÁAiÀÄ ¤jÃPÀëPÀ£ÁV £À£Àß PÉ®¸ÀUÀ¼ÀÄ J£ÉAzÀgÉ ¸ÀzÀj ¥ÀÄgÀ¸À¨sÁ ªÁå¦ÛAiÀÄ°è §gÀÄªÀ ªÀÄ£ÉUÀ¼ÀÄ, ªÀÄvÀÄÛ ¤ªÉÃ±À£ÀUÀ¼À vÉjUÉ ªÀ¸ÀÆ¯Áw, ¤Ãj£À PÀAzÁAiÀÄ ªÀ¸ÀÆ¯Áw ªÀÄvÀÄÛ SÁvÉ §zÀ¯ÁªÀuÉUÉ ¸ÀÜ¼À ¥Àj²Ã®£Á ªÀgÀ¢AiÀÄ£ÀÄß ¥ÀÄgÀ¸À¨sÁ ªÀÄÄSÁå¢üPÁjUÀ½UÉ ¸À°è¸ÀÄªÀÅzÀÄ DVgÀÄvÀÛzÉ.” Further, he has also deposed in his further cross examination as, “SÁvÉ §zÀ¯ÁªÀuÉ EzÀÝ°è ¸ÀÜ¼À ¥Àj²Ã®£Á ªÀgÀ¢UÁV £À£Àß ªÀÄÄAzÉ §gÀÄvÀÛªÉ J£ÀÄßªÀÅzÀÄ ¸Àj. §jÃ SÁvÉ £ÀPÀ°UÁV CfðAiÀÄ£ÀÄß PÉÆnÖzÉÝÃ DVzÀÝ°è CzÀÄ £ÉÃgÀªÁV ¥ÀÄgÀ¸À¨sÉAiÀÄ ªÀÄÄSÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÆÃUÀÄwÛvÀÄÛ J£ÀÄßªÀÅzÀÄ ¸Àj. ¸ÁQë ¸ÀévÀB £ÀÄrAiÀÄÄvÁÛgÉ J¯Áè CfðUÀ¼ÀÄ ªÀÄÄSÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÆÃVAiÉÄÃ ºÉÆÃUÀÄvÀÛªÉ”. Thus, he has admitted that his duty is to inspect the spot and to give report in order to change the Khatha of any property. So, definitely it can be inferred that the complainant met this DGO and requested for change of kahatha.”

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22. As could be seen from the above reasoning, Ex.P-7

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was an application for the Khata extract only. However, the enquiry officer has taken the view that only after changing the Khata, a Khata extract would be issued and

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since the delinquent had admitted that it was his duty to inspect the spot and give a report for changing of the Khata, it would have to be inferred that he had met the complainant and the complainant had requested for change of Khata.

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In the absence of this basic requirement of establishing that a request for making separate Khata was made by the complainant, and the same was pending consideration before the petitioner for his action, the allegation that he would have made a demand and did make a demand, would really fall to the ground.

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It is, therefore, clear that this was a case of there being no evidence at all of the primary requirement of establishing that the particular file for change of separate khata was pending before the petitioner, in respect of which he was required to take some action, for which he had made the demand. If this fundamental fact is not established by production of relevant evidence, it was obvious that the entire charge would fall to the ground.

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NC: 2023:KHC:46608 WP No. 870 of 2022

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The enquiry officer, though noticed that the application for making a separate Khata was not available, has proceeded to come to the conclusion that an inference can be drawn that an application for issue of Khata extract would be made only after the Khata is changed.

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On what basis this inference is drawn, is not forthcoming in the enquiry report. The enquiry officer further goes on to state that it could be inferred that the complainant met the petitioner, because he has admitted can be drawn that it was his duty to inspect the spot and give a report.

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In my view, the primary evidence required to establish a charge was not available and therefore, the report submitted by the petitioner that the charges were proved, would have to fail.

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It may also be pertinent to notice here that even in the criminal proceedings, the Lokayukta had failed to produce the application. In fact, the Sessions Court has

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NC: 2023:KHC:46608 WP No. 870 of 2022

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recorded a finding that Ex.P-3, which had been filed by the complainant and his brother, was the application filed seeking certified copies of the Khata extract and Khata Assessment. In fact, the Sessions Court has recorded a finding in the following terms:

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“……However, during the course of cross-examination of the complainant by the accused, the complainant - PW-3 unequivocally admitted that on 30.07.2014 he and his brother have filed the application Ex.P3 seeking extracts of khata and assessment. He has also specifically admits that he never filed any application to the Town Municipality seeking separation of joint khata of his property. So, on perusal of Ex.P.3, as well as the evidence of PW-3, it is very much clear that on 30.07.2014 the complainant filed the application Ex.P.3 only for seeking extracts of khata and assessment of his property and not for separation of khata into his name and into the name of his brother as alleged by the prosecution……”

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NC: 2023:KHC:46608 WP No. 870 of 2022

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In the light of the above, it is clear that the report of

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the enquiry officer that the petitioner had made the demand for illegal gratification to make a separate Khata could not have been held to be established, since the primary piece of evidence i.e., the demand for making a separate Khata, was simply non-existent.

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Despite this crucial defect in the enquiry report, the Upa Lokayukta has gone on to make a recommendation for acceptance of the enquiry report and for imposition of the punishment of compulsory retirement.

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The Disciplinary Authority has simply accepted the enquiry report and the recommendation, and has proceeded to impose the punishment. The Disciplinary Authority has not even taken into consideration the above defect that was apparent, before accepting the recommendation made by the Upa Lokayukta.

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In my view, therefore, since this is a case of there being absolutely no evidence to establish the charge of the

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NC: 2023:KHC:46608 WP No. 870 of 2022

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petitioner making a demand of illegal gratification for making a separate Khata in his name and in his brother’s

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name, the enquiry report, the acceptance of the said report and the imposition of the punishment cannot be sustained.

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As a result, the writ petition is allowed and the

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impugned orders are quashed .

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The petitioner shall be reinstated immediately.

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He shall also be entitled to all the consequential

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benefits arising out of his reinstatement, including the arrears of salary.

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Sd/JUDGE

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RK/-

Prasanna Kumar a v. Vs State of Karnataka

Case brief

What is this about?

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Prasanna Kumar a v. Vs State of Karnataka

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