The Karnataka Lokayukta Vs Sri. R Jagannatha

SRI. R. JAGANNATHA S/O LATE C RANGAIAH AGED ABOUT 67 YEARS RETIRED ASSISTANT EXECUTIVE ENGINEER ’SRIDEVI NILAYA’ NO.8, BEHIND VENKATESHWARA TEMPLE, 6^TH MAIN, 1^ST CROSS, MAHALAKSHMINAGAR BATAWADI, TUMKUR – 574 103.

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY PUBLIC WORKS DEPARTMENT PORT & INTERNAL WATER TRANSPORT

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HC-KAR

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DEPARTMENT (SERVICES-C) VIKASA SOUDHA DR. B. R. AMBEDKAR VEEDHI, BENGALURU – 560 001

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…RESPONDENTS

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(BY SRI. VIKAS ROJIPURA., AGA FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO a) ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION IN THE NATURE OF A WRIT THEREBY QUASHING THE ORDER DATED 06.12.2022 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION No.4131/2020, AS PER ANNEXURE-A; b) AWARD THE COST OF THIS WRIT PETITION; AND c) PASS ANY OTHER ORDER DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE 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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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This petition under Articles 226 and 227 of the Constitution of India is filed by the Registrar of Karnataka Lokayukta, represented through its Registrar, calling in question, the order dated 06.12.2022 in application No.4131/2020 passed by

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Karnataka State Administrative Tribunal, at Bengaluru (for short ‘Tribunal’), allowing the application, setting aside the impugned order dated 17.06.2020, vide Annexure A10, and consequently, directing the Government to pay all consequential benefits, including financial benefits to the applicant.

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The parties are referred to as per the

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rankings before the Tribunal.

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A brief factual matrix of the case leading

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to the filing of the present petition is as under:

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The applicant was a regular employee of respondent No.1, working as an Assistant Executive Engineer. He was on deputation to the Bruhath Bangalore Mahanagara Palike (BBMP) in the year 2010 and he has worked in hebbal Sub-Division, BBMP, Bangalore, in between the period 2010 and 2012. The applicant was repatriated to his parent department and retired from service on attaining the age of superannuation on 31.05.2014.

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A suo-moto investigation was taken up by the petitioner/respondent No.2 under Section 7 of the Karnataka Lokayukta Act, 1984 (the ‘Act of 1984’ for short), on the basis of the information received that a case was registered against the applicant and another employee by name Lakshmanappa, an Executive Engineer, in BBMP, Bengaluru.

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Vide order dated 29.10.2014, the petitioner appointed Additional Registrar Enquiry-5 (‘ARE-5’ for short), as the Enquiry Officer. The Enquiry Officer on 02.01.2015 has issued the Articles

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of charge (Annexure A1). The applicant submitted his reply denying the articles of charge leveled against him (Annexure A2).

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Not being satisfied with the reply, a joint

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enquiry was held against the applicant and another person supra. During the course of enquiry two witnesses have been examined as PW1 and PW2, namely the Chief Engineer, Quality Assurance Zone, PWD as PW1, and Assistant Executive Engineer as PW2 and they marked fifteen documents as Exhibits P1 to P15. The applicant was examined as DW1.

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After completion of the enquiry, the

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Additional Registrar of Enquiry-9 held that charge levelled have been proved and forwarded his report on 08.12.2017 to the respondent No.2, which was further forwarded to the Government along with a recommendation for the permanent withholding of 10% of the pension payable to the applicant by way of

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penalty.

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Upon receipt of the enquiry report with

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the recommendation, the 1^st respondent issued a second show-cause notice to the applicant. The applicant submitted his reply after lapse of two years on 17.06.2020. The 1^st respondent imposed a penalty of withholding 10% of the pension permanently in terms of the recommendation by 2^nd respondent.

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Aggrieved by the order of punishment, the

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applicant approached the Tribunal in application No.4131/2020. The applicant contended before the Tribunal that in terms of the circular issued by the Commissioner of BBMP dated 28/29.10.2011, the applicant was expected to make periodical inspections of ongoing construction and report the same to the Executive Engineer concerned, including issuance of provisional order and confirmation order.

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Upon acceptance of notice, both

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respondent No.1 and respondent No.2 filed their statement of objections. They have contended that the explanation offered by the applicant was not satisfactory and the enquiry was entrusted to the petitioner-Lokayukta. The enquiry was held in terms of the rules provided under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (the ‘Rules, 1957’ for short). The applicant was given a fair opportunity to defend himself and since the charge report being proved came to be submitted by the enquiry officer. The same was forwarded by the petitioner along with recommendation.

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The respondent-Disciplinary Authority

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issued second show-cause notice and upon receipt of the reply applied its mind and after considering the materials placed before it passed the order of imposing penalty of withholding 10% of pension, permanently in terms of Rule 214(1)(a) of KCSR. The same does not call for any interference.

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The Tribunal, upon consideration of the material placed before it, was of the opinion that the Enquiry Officer had not considered the evidence placed before him, inasmuch as the witness volunteers that there was no foundation but only excavation work for laying the foundation has been carried out.

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The witness PW-1, who had conducted an inspection, answered the suggestion in ‘affirmative’, stating that as on the date of inspection there was no structure on the site in question. The Tribunal was further of the opinion that even PW-2 had stated that the entire ground floor was demolished as it was against the sanction plan. This witness has stated that at the time of the spot inspection there was no commencement of construction at the spot and he has not recorded the statement of the neighbours about the damage caused to the neighbours property at the time of demolition of the building. Having

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considered these aspects of the matter, the Tribunal was of the opinion that the allegation of construction of a building violating the building by-laws and the dereliction on the part of the applicant does not arise. Further observed that, this aspect of the matter had not been considered by the Enquiry Officer and the same suffers from perversity of facts as well as the materials placed before him by way of evidence.

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Reasoning its order the Tribunal

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concluded that, the finding recorded by the Enquiry Officer given the facts of the case is perverse in nature and it is not in accordance with the materials

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placed before the Enquiry Officer. Accordingly, allowed the application, set aside the order dated 17.06.2020 and directed the 1st respondent to pay all the consequential benefits including financial benefits to the applicant. It is this order passed by the Tribunal is called in question in this petition.

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Heard Sri.Venkatesh S. Arabatti, learned

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counsel appearing for the petitioner and Sri.Vikas Rojipura, AGA appearing for respondent No.2.

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Sri.Venkatesh S. Arabatti, learned counsel

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reiterating the contentions taken before the Tribunal with all vehemence, submitted that the building was being constructed in violation of the building by-laws. He has invited the attention of this Court to the grounds at page No.12 of the writ petition wherein the applicant in his reply had clearly admitted that at the time of inspection the old building was totally demolished and excavation was done for construction of pillars and the owner of the site had got amended the plan twice, to contend that the demolishing of the existing ground floor before 26.10.2011 i.e, the date of inspection by the Uplokayukta is in violation of the first approved plan. The plan was sanctioned for construction of the first floor over the ground floor, however, as on the date of inspection, the entire

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building was demolished including the ground floor

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in violation of approved plan. He further argued that the Tribunal and this Court under judicial review must restrict its review to determine whether:

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i. The rules of natural justice have been complied with?

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ii. The finding of misconduct is not based on evidence or no evidence?

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iii. The statutory rules governing the conduct of the disciplinary enquiry have been observed?

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iv. The findings of the disciplinary authority suffer from perversity?

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v. The penalty is proportionate to the proven misconduct.

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On this, he has contended that none of

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the above grounds are available to DGO in the case on hand. The Tribunal has appreciated the case as if it is sitting in appeal, which is not permissible in view of the law declared by the Hon’ble Apex Court, in

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catena of cases. Accordingly, he sought to allow the petition and quash the order passed by the Tribunal and the application be dismissed.

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Sri.Vikas Rojipura, learned Additional

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Government Advocate, supported the arguments of the learned counsel appearing for the petitioner.

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Upon hearing both the learned counsel,

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the only point that would arise for consideration is:

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“whether the Tribunal is justified in

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allowing the application.”

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Our answer to the above point for

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consideration is in ‘affirmative’, for the following reasons:

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The Tribunal while considering the entire

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material before it was of the opinion that both the witnesses in unison have admitted the fact that there

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was no construction being carried out in violation of the building by-laws. The only work which was being

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done at the spot was excavation of earth. The Tribunal was of the opinion that there is no misconduct attributable to the applicant. The Tribunal further held that the Enquiry Officer has failed to consider the evidence of PWs-1 and 2 wherein they have visibly stated that there was construction in violation of building plan commenced. Accordingly, it held that the Enquiry Officer had failed to consider this important aspect of the matter which amounts to perversity.

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The Tribunal has gone through the Exhibit P8 which is the report submitted by PW2, wherein indicates that there is no commencement of construction and that there is no damage caused to the neighbor’s property at the time of demolition of the building. In view of this report, and as there was no construction commenced, the Tribunal was of the opinion that there was no dereliction of duty attributable to the applicant in taking action on the

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violation of building laws by the owner of the site. On merits, the Tribunal considered the entire case and comes to a conclusion that the Enquiry Officer has failed to consider the evidence of PW1 and PW2 in the manner known to law and view taken is perverse in nature and against the rules of enquiry. Accordingly, allowed the application. We find no infirmities in the order, passed by the Tribunal.

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There is one more reason for us to dismiss

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this petition.

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Admittedly, the order of the Tribunal came

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to be passed on 06.12.2022. This petition was filed on 07.03.2025 with an inordinate delay of nearly 3 years without there being any plausible explanation for the delay caused. The fact remains that the applicant retired from service on 31.05.2014 on attaining age of superannuation. Even the Enquiry which was proposed commenced on 02.01.2015 with the issuance of the articles of charge and concluded

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by issuing the order of punishment on 17.06.2020.

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The delay caused in holding the enquiry as well as challenging the order passed by the Tribunal has not been properly explained. On query, the learned counsel is unable to give any plausible explanation/ answer to the satisfaction of this Court, accordingly the petition is hit by delay and latches.

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26. For the foregoing reasons, the petition

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fails and is dismissed .

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(T.M.NADAF) JUDGE

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TIN List No.: 1 Sl No.: 3

The Karnataka Lokayukta v. Sri. R Jagannatha

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The Karnataka Lokayukta v. Sri. R Jagannatha

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