Sri S Nagabhushana Vs the State of Karnataka

THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER SETTING ASIDE THE ORDER DATED 29.10.2021 PASSED BY THE KSAT IN A.No-3767/2019 (ANNEXURE-C); ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED PENALTY ORDER VIDE G.O BEARING No.NaAaE 217 MNU 2017 DATED 12.04.2019 PASSED BY THE 1ST RESPONDENT (ANNEXUREA14) IN SO FAR AS RELATES TO THE PETITIONER WITH ALL CONSEQUENTIAL BENEFITS IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE T.M.NADAF

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NC: 2025:KHC:41710-DB WP No. 25941 of 2024

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HC-KAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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The petitioner has called in question the common order dated 29.10.2021 insofar as it relates to his application in No.3767/2019 with the Karnataka State Administrative Tribunal, Bengaluru [for short, ' the Tribunal' ]. The Tribunal, by this impugned common order, has rejected the petitioner's application as also the application of a co-delinquent [ an Assistant Executive Engineer, and he is referred to as ‘the co-delinquent’ ]. The petitioner and the co-delinquent have filed this common application calling in question the first respondent's decision to withhold four annual increments with cumulative effect.

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2. The Tribunal, on perusal of the Inquiry

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Officer's report that forms the basis for the first respondent's decision, has opined that there is no

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HC-KAR

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reason for interference given the scope of judicial review in the concluded disciplinary proceedings. The petitioner has not immediately called in question the Tribunal's common order, but he has filed this petition after the co-delinquent has successfully challenged such order in question before this Court in W.P.No.289/2022, which is decided on 14.02.2024.

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This Court in W.P.No.289/2022, on a detailed inquiry of the facts relevant for the purposes, has quashed the Tribunal's common order insofar as the co-delinquent. This Court has concluded that he emerges unscathed in the legal battle, and this Court's observation is as follows;

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"(d) It hardly needs to be stated that the scrupulous public servants like the Petitioner need to be protected against unscrupulous allegations and unverified assumptions. That is the reason that Lord Macaulay the Chairman of First Law Commission had suggested for enacting Sections 196 & 197 in

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HC-KAR

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the Code of Criminal Procedure, for the protection of honest officials even when they may err despite bonafides in the discharge of their duties. There is absolutely no material to hold the Petitioner guilty when he has done all that he was expected to. Within one day, it was humanly impossible for anyone to demolish the unauthorized structures, that too without necessary force & implements made available to him."

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Mr. Govindaraj K. Joisa, the learned counsel for the petitioner, submits that

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[a] a Co-ordinate Bench of this Court has been persuaded because the co-delinquent was on deputation between 03.03.2015 and 24.04.2015,

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[b] the co-delinquent, as the competent authority, had acted on the complaint of a construction deviating from the sanctioned plan in issuing provisional order dated 08.04.2015 under the Karnataka Municipal Corporations Act, 1976 [for short, ' the KMC Act' ] leading to the confirmation order on 16.04.2015, [c] as required in law, the

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HC-KAR

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co-delinquent has granted a week for the compliance, which expired only on 23.04.2015 and [d] the codelinquent was repatriated to the parent department on 24.04.2015 within a day.

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Mr. Govindaraj K. Joisa elaborates that

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the petitioner was on deputation as an Assistant Engineer between 22.07.2013 and 25.04.2015 and he is also repatriated like the co-delinquent on 25.04.2015 - within two days from the date of the expiry of the time allowed for demolition. The learned counsel emphasizes that the petitioner did not have the independent charge to initiate any action and the action had to be initiated only by the co-delinquent, and that this Court must consider that in any event there could not have been any action for demolition immediately after the expiry of the seven day period allowed or thereafter as the concerned owner had invoked the appeal remedy under Section 444 of the KMC Act.

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NC: 2025:KHC:41710-DB WP No. 25941 of 2024

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HC-KAR

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Mr. Vikas Rojipura, the learned Additional

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Government Advocate, submits that

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[a] it is settled law that when a particular employee or a set of employees is given relief by the Courts, all other identically situated persons must be treated alike, but this settled proposition is subject to the exception when there is delay and latches, and

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[b] the petitioner did not challenge the Tribunal's order as the co-delinquent and he has approached this Court with this petition only after the outcome in the writ petition filed by the co-delinquent and as such, he is a fence-sitter and the delay must go against the petitioner.

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HC-KAR

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In fact, the learned Additional Government Advocate relies upon the reiteration of the decision by the Apex

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Court in R. Mukthukumar and Others Vs. the Chairman and Managing Director, TANGEDCO and

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Others¹ .

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In the facts and circumstances of the case

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and the rival submissions, this Court opines that the question for consideration is:

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Should the petitioner fail only because he has approached this Court belatedly after the decision of a Co-ordinate Bench in W.P.No.289/2022 despite the undisputed fact that the petitioner did not hold any independent charge ?

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The Co-ordinate Bench of this Court, after

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recording that the co-delinquent was on deputation and that before his repatriation he had acted under

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the provisions of the KMC Act for removal of illegal

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1 2022 SCC Online SC 151

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HC-KAR

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construction, has opined that it may not have been permissible, even legally, for removal of the deviated construction within a day, and as such, the codelinquent must have the advantage of inference of bonafides in acting under the Act, and his failure to demolish the deviated construction cannot be fatal. This Court opines that these findings will apply with

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full force even in the present case because the petitioner, like the co-delinquent was on deputation and is repatriated contemporaneously.

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The petitioner is similarly placed because

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of these circumstances, and he is even better placed

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because he did not have the charge to act independently. If the co-delinquent is extended the benefit of acting bonafide , the petitioner, who only worked under him, should be extended the same benefit. Further, this Court opines that in the afore circumstances the delay cannot defeat the rule and

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HC-KAR

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similar treatment must be extended to similarly

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placed persons. Hence, the following:

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ORDER

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The petition is allowed and the Disciplinary Authority's impugned order dated 12.04.2019 insofar as the petitioner as well as the Tribunal's order dated 29.10.2021 are quashed declaring that the petitioner will be entitled to all consequential benefits but without interest.

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sd/- (B M SHYAM PRASAD) JUDGE

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sd/- (T.M. NADAF) JUDGE

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RB

Sri S Nagabhushana v. the State of Karnataka

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Sri S Nagabhushana v. the State of Karnataka

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