Allowed

Mr B Prabhakar v. the State of Karnataka

Karnataka HC2 Sept 2024WP/30818/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Karnataka allowed a petition challenging a penalty order that withheld four annual increments from an Executive Engineer. The court held that the disciplinary authority failed to apply its mind and the enquiry officer's findings were lopsided and not based on proper evidence.

What did the court decide?

The impugned order bearing No. NaAE 763 MNU 2016 dated 14.11.2018 is set aside and the petitioner is entitled to all consequential benefits.

Mr B Prabhakar Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 30818 OF 2019 (S-DE)

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BETWEEN:

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MR. B. PRABHAKAR S/O BYACHAPPA AGED ABOUT 45 YEARS, WORKING AS EXECUTIVE ENGINEER, BENGALURU SMART CITY LIMITED, OFFICE OF THE NODAL OFFICER AND SPECIAL COMMISSIONER, BRUHATH BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BANGALORE-560001.

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…PETITIONER

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(BY SRI. KASHINATH J.D., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA, BANGALORE-560001, REPRESENTED BY ITS SECRETARY

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THE KARNATKAA LOKAYUKTA M.S. BUILDING, DR. B.R. AMBEDKAR ROAD, BANGALORE-560001, REPRESENTED BY ITS REGISTRAR

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE, N.R. SQUARE, BANGALORE-560001.

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…RESPONDENTS (BY SRI. GOPALAKRISHNA SOODI, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;

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SRI. VENKATESH S. ARABATTI, ADVOCATE FOR RESPONDENT NO.2; SRI. K.N. PUTTEGOWDA, ADVOCATE FOR RESPONDENT NO.3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER BEARING NO.NaAE 763 MNU 2016 DATED 14.11.2018 PASSED BY THE RESPONDENT NO.1 AT ANNEXURE-A AS ILLEGAL AND VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE AND ALSO QUASH THE ENTIRE ENQUIRY PURSUANT TO ARTICLES OF CHARGE BEARING NO.UPLOK-1/DE/72/2017/ARE-10 DATED 28.03.2017 AT ANNEXURE-C AS ILLEGAL.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged an order bearing No.£ÀCE

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763 JAJ£ïAiÀÄÄ 2016, dated 14.11.2018 passed by respondent

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No.1 withholding four annual increments with cumulative effect.

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The petitioner was employed as an Executive Engineer between 31.08.2013 and 16.09.2016. It appears that a proceeding under Sections 321 of the Karnataka Municipal Corporations Act, 1976 (henceforth referred to as 'Act of 1976') was taken out by the concerned Assistant Executive Engineer, which resulted in an order of demolition under Section 462 of the Act of 1976 by the Commissioner of the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short). A complaint was lodged

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by a person named Mr. R. Sandesh alleging delay in implementation of the order under Section 462 of the Act of 1976. Based on this complaint, respondent No.2 submitted a report dated 21.11.2016 under Section 12(3) of the Karnataka Lokayukta Act, 1984 to the respondent No.1 and requested for entrustment of the enquiry to it under Section 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Following this, respondent No.1 entrusted the enquiry to the respondent No.2. The respondent No.2 framed Article of Charge and served on the petitioner, which is as follows:-

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"That, you DGO Sri. Prabhakar, Executive Engineer, BBMP, Rajaji Nagar, Bengaluru though has issued provisional order and final order of demolition on 11.09.2015 and 24.09.2015 respectively and obtained the permission of Executive Engineer u/s 462 of KMC Act demolition order was issued on 3.10.2015. Tender was given to the bidder namely M.S. Venkatesh, but without executing the order of demolition in plot bearing no.1115 situated at 11^th main, 6^th cross, Prakash Nagar, Bengaluru protracted (delayed) the matter on one pretext or the other.

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Thus you DGO being Government/public servant has failed to maintain absolute integrity besides devotion to duty and acted in a manner unbecoming of a Government servant and thus committed misconduct as enumerated U/R 3(1)(ii) & (iii) of Karnataka Civil Service (Conduct) Rules, 1966."

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The petitioner submitted his reply to this charge contending that the order under Section 462 of the Act of 1976 was passed on 07.10.2015. He claimed that he took further steps by submitting cost estimation and other details for demolition and submitted the same to the concerned authority for approval on 05.12.2015. On 08.02.2016, the higher authorities approved the file for demolition and after obtaining all clearance, a tender was invited on 29.02.2016 to demolish the unauthorized building. The tender was opened on 10.03.2016 and sent for approval on 15.03.2016. The bid of one Mr. M.S. Venkatesh was accepted and a letter of acceptance was sent to him on 22.03.2016 calling upon him to enter into an agreement within seven days from the date of issuance of the said letter. He contended that the bidder did not turn up within the time granted and therefore, authorities were

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constrained to take a decision to refer the file to competent authority for forfeiting EMD amount of the said bidder and call for fresh tender to demolish the building. He contended that the file was forwarded to the concerned authority for its approval. He claimed that on 06.04.2016, he requested the authorities to grant approval for publishing fresh short term tender under Rule 17(2) of the Karnataka Transparency in Public Procurement Rules, 2000. The file was thereafter sent to Chief Engineer (West) for approval. He claimed that on 20.07.2016, the authorities have ordered forfeiture of EMD amount of the earlier bidder and to call for fresh tender to demolish the unauthorized building. Thereafter, on 22.08.2016, the work was re-tendered and bids were opened on 06.09.2016. He claimed that the bids were opened on 12.09.2016. Shortly thereafter, he claimed that he was transferred on 16.09.2016 and therefore, claimed that he was not negligent in taking steps to implement the order passed under Section 462 of the Act of 1976.

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The respondent No.2 not satisfied with the reply proceeded to conduct an enquiry. At the enquiry, it examined the complainant Mr. R. Sandesh. The petitioner also adduced

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his evidence. Following this, the enquiry officer submitted a report holding that the charge against the petitioner was proved. The respondent No.1, which was in receipt of the enquiry report, issued a second show-cause notice dated 13.06.2018, which was suitably replied by the petitioner. However, the respondent No.1 passed the impugned order dated 14.11.2018 withholding four annual increments of the petitioner with cumulative effect.

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Being aggrieved by the said order, the petitioner is before this Court.

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The learned counsel for the petitioner submits that the petitioner was in no way responsible for the delay in demolition of the unauthorized construction. He submits that soon after the receipt of the order under Section 462 of the Act of 1976, steps were taken to invite the bids to pull down the construction and that the contractor, whose bid was accepted did not turn up to execute the agreement, which resulted in forfeiture of EMD and taking steps to re-tender the work. He submits that before the work could be re-tendered, the petitioner was transferred out and therefore, the proceedings

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initiated against the petitioner was wholly unwarranted. He further contends that the respondent No.1 being the disciplinary authority, did not consider any of these contentions but the impugned order passed by it showed that there was absolutely no application of mind and the respondent No.1 had heeded to the dictate of the respondent No.2. He contends that the order of demolition of the building was set at naught by the Karnataka Appellate Tribunal, Bengaluru in Appeal No.1097/2017 (Revenue) vide order dated 04.01.2019 and hence, the substratum of the dispute itself did not exist. He therefore, contends that PW1, who was aware of the developments ought to have placed these documents before the enquiry officer.

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Per contra, the petition is opposed by the respondent Nos.1 and 2. The respondent No.1 has contended that it had taken a decision to impose penalty on the petitioner based on the report of the enquiry officer. It also contended that,

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"After examining the report of the Hon'ble Upa Lokayukta-1, Enquiry Officer's report, replies of the petitioner and available records, penalty has

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been imposed on the petitioner as recommended by the Hon'ble Upa Lokayukta-1 and the same is legal and correct."

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The respondent No.1 generally denied the contentions of the petitioner in the writ petition.

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The learned Additional Government Advocate for respondent No.1 reiterated the above contentions.

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The respondent No.2 has filed an elaborate statement of objections and has relied upon several judgments of the Hon'ble Supreme Court and various other courts contending that the order of penalty passed by the respondent No.1 is not harsh and disproportionate. It also claimed that the order of the disciplinary authority is well reasoned and the findings returned by it are based on the evidence adduced and hence, does not call for any interference.

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The learned counsel for the respondent No.2 reiterated the above contentions.

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned

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Additional Government Advocate for respondent No.1 and the learned counsel for respondent No.2.

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The facts as contended by the petitioner in his reply to the Article of charge, is not in serious dispute. After receipt of the order of demolition dated 07.10.2015, steps were taken to invite the bids from suitable contractors to pull down the construction. One of the bidders, whose bid was selected, was issued with a letter of acceptance of the bid and he was called upon to execute an agreement. However, the said bidder did not turn up and therefore, the petitioner cannot be held responsible for the delay. The record reveals that steps were taken afresh for re-tender of the work after cancellation of EMD furnished by the earlier bidder. The competent authority had passed an order forfeiting EMD and directing re-tender of the work, which happened only on 06.09.2016 and the approval for re-tender was granted on 12.09.2016. Following this, the petitioner was transferred from the post of Executive Engineer, BBMP, Rajajinagar. Therefore, on the face of it, the petitioner was not guilty of any dereliction of duty and was not complacent in executing order passed under Section 462 of the Act of 1976. The report of the enquiry officer holding that

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Article of Charge was proved against the petitioner, was not based on an objective assessment of the evidence placed before him. On the contrary, the enquiry officer has proceeded on the assumption that the petitioner did not take any steps for disconnection of electricity and water supply and sewerage to the offending building. The enquiry officer was clearly oblivious of the fact that there was no charge against the petitioner that he had not taken steps to disconnect electricity and water supply and sewerage to the premises in question. Therefore, the finding of the enquiry officer that the Article of Charge is proved, is lopsided and not based on any proper evidence. The enquiry officer also did not consider any of the exhibits marked by the petitioner to establish his innocence. The disciplinary authority before whom the enquiry report was submitted, did not apply its mind before taking any decision to impose penalty upon the petitioner. As a matter of fact, the order of the disciplinary authority does not even bear out reasons for rejecting the reply submitted by the petitioner to the second show-cause notice. On the contrary, a perusal of the order passed by the respondent No.1 shows that the punishment was imposed based upon the recommendation of the respondent

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No.2. Therefore, the impugned order passed by the respondent No.1 deserves to be interfered with on this short ground alone, though there was nothing to show that the petitioner was responsible for the delay in implementation of the order passed for demolition of unauthorized building. It is also appropriate to refer to the order dated 04.01.2019 passed by the Karnataka Appellate Tribunal, Bengaluru, by which, the Tribunal set aside the order of demolition, which ideally must have been placed on record by the complainant/PW.1 before the enquiry officer.

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In view of the aforesaid, this writ petition is allowed . Consequently, the finding of the enquiry officer that the Articles of Charge was proved, is rejected. As a result, the order of the disciplinary authority bearing No.£ÀCE 763 JAJ£ïAiÀÄÄ 2016, dated 14.11.2018 is set aside. In view of the

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above, the petitioner shall be entitled to all consequential benefits in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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PMR List No.: 1 Sl No.: 45

Mr B Prabhakar v. the State of Karnataka

Case brief

What is this about?

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Mr B Prabhakar v. the State of Karnataka

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