Allowed

M H Sudhakar v. the State of Karnataka

Karnataka HC8 Apr 2024WP/7537/2021

Case brief

AI extract

What is this about?

The High Court issued a writ of certiorari to quash orders imposing a penalty of withholding annual increments on the Chief Officer of a Town Panchayath. The court held that the enquiry suffered from perversity and lack of prima facie evidence since the underlying civil dispute was settled and the complainant failed to substantiate the allegations. The judgment disposed of the writ petition in fav

What did the court decide?

Writ of certiorari issued to quash the recommendation order dated 15.04.2019 and the subsequent order dated 16.05.2020. Petitioner entitled to consequential benefits.

M H Sudhakar Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:14746-DB WP No. 7537 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF APRIL, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WRIT PETITION NO. 7537 OF 2021 (GM-KLA)

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BETWEEN:

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M.H SUDHAKAR, S/O M.HARIDAS BHAT, AGED ABOUT 51 YEARS, CHIEF OFFICER, TOWN PANCHAYATH, I.B ROAD, BELTHANGADY, DAKSHINA KANNADA DISTRICT-574 214.

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…PETITIONER

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(BY SRI. MALLEGOWDA H.P, ADVOCATE)

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AND:

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AND: Digitally signed by HARIKRISHNA V Location: HIGH 1. THE STATE OF KARNATAKA, COURT OF BY ITS UNDER SECRETARY, KARNATAKA DEPARTMENT OF TOWN DEVELOPMENT VIKASA SOUDHA, BENGALURU-560 001.

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HONBLE UP LOKAYUKTA, REPRESENTED BY ITS REGISTRAR, M.S BUILDING, BENGALURU-560 001.

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SMT. STELLA D SOUZA, W/O EIAL D SOUZA, R/AT SADAN, CTO ROAD, DARBE, PUTTUR, DAKSHINAKANNADA (D)

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NC: 2024:KHC:14746-DB WP No. 7537 of 2021

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…RESPONDENTS

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(BY SMT. MAMATHA SHETTY, AGA FOR R1; SRI. ASHWIN S HALADY, SPL. COUNSEL FOR R2; R3-SERVED AND UNREPRESENTED)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH, BY ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER THE IMPUGNED RECOMMENDATION ORDER NO.UPLOK-2/DE/576/2017/ARE-14 DATED 15/04/2019 PASSED BY THE 2ND RESPONDENT (VIDE ANNEXURE-J) AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:

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ORDER

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In this writ petition, the petitioner has prayed to quash the impugned recommendation order

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No.UPLOK-2/DE/576/2017/ARE-14 dated 15.04.2019 passed by the second respondent and the impugned order dated 16.05.2020 issued by the first respondent as null and void. Further, it is also prayed to pass such other order or direction as deems fit by this Court in the facts and circumstances of the case.

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The facts that are apposite for consideration as borne out from the pleadings are as follows:

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The petitioner belongs to the Town Municipal Council, Puttur and presently he is working as Chief Officer, Town

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Panchayath, Belthangady, Dakshina Kannada District. The petitioner was put in around 25 years of service. One Stella D'Souza has given a complaint against one Nagaraja Rai on 06.02.2014 before the petitioner stating that the said Nagaraja Rai is a neighbor of the complainant-Stella D'Souza, was using a Well which is within the compound of the complaint and was constructing a house. Hence, he was also using the water from the said Well by installing the motor pump. The said Nagaraja Rai had taken an electric connection, bedding the cable on the compound wall of the complainant-Stella D'Souza. She made further allegation that, the said Nagaraja Rai has constructed his house without giving a setback. Hence, the complainant requested the petitioner to stop the construction of the house of the said Nagaraja Rai and direct him to take out the electric cables which are connected to the Well. Subsequently, having received the complaint, the petitioner along with the junior engineer, had visited the spot and inspected the premises. After noticing all the necessary steps taken by the petitioner, they came to know that the first floor of the house of the said Nagaraja Rai has been constructed under the approved sketch granted by the Planning Authority. They also confirmed that the said Nagaraja Rai had given a setback in his house and he had

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NC: 2024:KHC:14746-DB WP No. 7537 of 2021

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installed the pipe in the slab to avoid the rainwater flowing to the complainant's house. To that effect, the petitioner gave an endorsement dated 05.06.2014.

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Finally, the matter was settled between the parties in the Lok Adalat held at the office of the Town Municipality, Puttur. The petitioner had communicated the same to the second respondent through his letter dated 24.07.2014. Posteriorly, the matter was taken up by the second respondent and Articles of Charge was served to the petitioner. However, the petitioner appeared before the second respondent on 22.12.2017 and his oral statement was recorded. The petitioner had also filed a defence statement before the second respondent. Thereafter, the second respondent concluded the case by proving a charge framed against the petitioner and accordingly, a report has been submitted to the Uplokayukta-I. Consequently, Uplokayukta has recommended to the Government to impose the penalty of withholding four annual increments payable to the petitioner. Based on the report of the Uplokayukta, the first respondent had issued a show cause notice to the petitioner for his explanation regarding the charges leveled against him. The petitioner replied to the said

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show cause notice issued by the first respondent that there is no dereliction of duty from his end.

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However, the first respondent did not considered the reply dated 29.07.2019 submitted by the petitioner and has confirmed the recommendation forwarded by the Uplokayukta and imposed the penalty on the petitioner withholding four annual increments payable to the petitioner under the Rule 8(iii) of the Karnataka Civil Service Rule, 1957, as per Annexure-M to this writ petition. Aggrieved by the said order, the petitioner preferred this writ petition to quash the said endorsement.

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We have heard the learned counsel for the petitioner so also learned Additional Government Advocate for the respondent-State and learned counsel for respondent No.2Uplokayukta.

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It is the primary contention of the learned counsel for the petitioner that in respect of the complaint lodged by one Stella D'Souza against one Nagaraja Rai, the petitioner visited the spot and inspected the place along with the junior engineer. After inspecting the spot, the petitioner has concluded that

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Nagaraja Rai has given a setback to his house. Accordingly, he issued the endorsement. He would further contend that during the course of enquiry, the complainant Stella D'Souza remained absent before the authority and the Scrutiny Officer was examined on her behalf. As such, the evidence of PW.1 i.e., the Scrutiny Officer cannot be considered for any purpose. Further the dispute between the complainant and the said Nagaraja Rai has been settled before the Lok Adalat held at the office of the Town Municipality, Puttur. Under such circumstances, the petitioner in no way committed any dereliction of duty and the Enquiry Officer wrongly passed the impugned order. As such, he prays to quash the same.

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Per contra , learned counsel for the respondentUplokayukta would contend that in spite of service of summons to the petitioner, he remained absent and he did not crossexamined PW.1, who examined on behalf of the complainant. As such, the defence of the petitioner has not been proved in the enquiry proceedings. He would also contend that during the course of enquiry, apart from the evidence of PW.1, there are seven documents have been marked and after considering the evidence of PW.1 as well as the documents placed on behalf

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of PW.1, the Enquiry Officer rightly passed the impugned order, which does not call for any interference. It is further contended that the punishment imposed to the petitioner by the Government is proportionate and the same does not call for any interference. Accordingly, he prays to dismiss the writ petition.

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Learned Additional Government Advocate would

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also support the contentions of the learned counsel for the respondent-Uplokayukta and prays to dismiss the writ petition.

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Having heard the learned counsel for the parties and also having perused the evidence and documents made available before us, the complainant-Stella D'Souza, who lodged the complaint in respect of the alleged dereliction of duty by the petitioner, did not appear before the Enquiry Authority. As such, the Scrutiny Officer has been examined on her behalf and the relevant documents got marked. Though, the petitioner remained absent and failed to cross-examine PW.1, nevertheless, he submitted the representation dated 29.07.2019, wherein he categorically stated that the dispute between the complainant-Stella D'Souza and her neighbour Nagaraja Rai, pertaining to the construction of house in respect

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of setback issue and he visited the said spot along with the junior engineer and inspected the premises. Accordingly, he issued endorsement dated 05.06.2014. In spite of that, the said complainant has lodged the complaint before the respondent-Uplokayukta with an ulterior motive. Such being the case, the very allegation stated in the complaint of Stella D'Souza in respect of not leaving the setback by the neibour Nagaraja Rai was already dealt by the petitioner by visiting the spot. Moreover, the issue between the complainant-Stella D'Souza and Nagaraja Rai has already been settled in the Lok Adalat held at the office of the Town Municipality, Puttur. Under such circumstances, we do not find any such dereliction of duty on the part of the petitioner as held by the Enquiry Officer.

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We are aware of the fact that the Hon'ble Apex Court held in catena of judgments that the judicial review on the penalty imposed by disciplinary authorities is very limited, but in the same time, if the findings of misconduct by the authority is without some evidence and suffers from perversity, the Courts can interfere in the order passed by the disciplinary authorities. Our view fortified by the judgment rendered by the Hon'ble Apex Court in the case of State of Karnataka vs. Umesh reported in (2022) 6 SCC 563 . In the case on hand, the

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evidence of PW.1 i.e., the Scrutiny Officer who has examined on behalf of the complainant does not made out any prima facie case against the petitioner about dereliction of duty on his part. Hence, we are of the considered view that the order passed by the first respondent dated 16.05.2020 is not sustainable. Accordingly, a writ of certiorari is issued and the impugned recommendation order dated 15.04.2019 passed by the second respondent and the subsequent order dated 16.05.2020 passed by the first respondent are hereby quashed . Consequently, the petitioner is entitled for all consequential benefits.

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Accordingly, the writ petition is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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List No.: 1 Sl No.: 24

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KTY

M H Sudhakar v. the State of Karnataka

Case brief

What is this about?

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M H Sudhakar v. the State of Karnataka

Case brief

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