Karnataka Lokayukta Vs Shri Shivaprasada S

THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 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 15/09/2020 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BANGALORE IN APPLICATION NO.3520/2020, AS PER ANNEXURE-A; B) AWARD THE COST OF THIS WRIT PETITION AND C) PASS ANY OTHER ORDER.

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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 S.G.PANDIT AND

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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This writ petition by the Karnataka Lokayukta under

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Article 226 of the Constitution of India is directed against the order dated 15.09.2020 in Application No.3520/2020 passed by the Karnataka State Administrative Tribunal, Bengaluru (for short “Tribunal”) whereunder, the

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application of respondent No.1 questioning the order of entrustment of enquiry dated 10.07.2019 (Annexure-A4) and Articles of Charge dated 06.09.2019 (Annexure-A5) are quashed.

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Heard learned counsel Sri.Mallikarjuna Reddy K.S. for petitioner and learned AGA for respondents No.2 and 3. Perused the entire writ petition papers.

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Learned counsel for the petitioner would submit that

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the petitioner/Institution is before this Court, questioning the impugned order dated 15.09.2020 passed by the Tribunal, setting aside the order of entrustment dated 10.07.2019 as well as Articles of Charge dated 06.09.2019. It is submitted that, after investigation on the complaint dated 10.08.2004, a report under section 12(3) of Karnataka Lokayukta Act, 1984 (for short “1984 Act”) was submitted. The State Government on the report submitted under Section 12(3) of 1984 Act, under order dated 10.07.2019 which is impugned herein entrusted

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enquiry to Upa Lokayukta under Rule 14-A of Karnataka Civil Services (Classification, Control and Appeals) Rules, 1957 (for short “CCA Rules”) and consequently the petitioner issued Articles of Charge dated 06.09.2019. It is also submitted that respondent No.1 in the meanwhile

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retired from service on attaining the age of superannuation on 31.05.2015. Learned counsel would submit that the Tribunal could not have entertained the application and quashed the entrustment order as well as Articles of Charge at the initial stage. Learned counsel would further submit that the Hon'ble Apex Court in catena of decisions has observed that no charge memo could be interfered with, at the initial stage.

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To the Court’s query as to the delay in challenging the order impugned herein dated 15.09.2020 passed by the Tribunal, learned counsel for the petitioner would submit that though decision was taken to file writ petition in the year 2020, there was delay in entrusting the matter to file writ petition to its counsel and also the

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petitioner/Institution was awaiting approval of proposal for amendment to Rule 214 of KCSRs. Thus, learned counsel prays for allowing the writ petition.

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Having heard the learned counsel for the parties and on perusal of the entire writ petition papers, we are not inclined to entertain the writ petition and the writ petition is liable to be dismissed on costs.

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Respondent No.1 admittedly retired from service on attaining the age of superannuation on 31.05.2015. Articles of Charge is dated 06.09.2019, in pursuance of entrustment order under Rule 14-A of CCA Rules dated 10.07.2019. As on the date of filing of the application by respondent No.1 before the Tribunal, he was aged about 65 years. As on the date of filing the writ petition, respondent No.1 was nearing 70 years.

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The writ petition was filed before this Court on 05.03.2024, questioning the order of Tribunal dated 15.09.2020. There is nearly 4 years delay in preferring

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the writ petition. There is no explanation whatsoever in the writ petition as to why there was such a long delay in preferring the writ petition. Though, no period of limitation is prescribed to file writ petition under Article 226 of the Constitution of India, the same shall be filed within a reasonable time. Delay of four years in filing the writ petition would not fall under reasonable time/period. Moreover, the petitioner is nearing 70 years of age and at the evening of his life. If notice is ordered in this writ petition, it would amount to harassing respondent No.1.

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A perusal of the Articles of Charge, it is seen that the incident on which the enquiry was initiated is on the basis of complaint dated 10.08.2004. In terms of Rule 214(2)(b)(ii) of KCSRs, institution of enquiry by issuance of charge memo is not permissible against a retired government servant for an event which has taken place more than 4 years prior to his retirement.

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9. The Hon’ble Apex Court in the case of MRINMOY

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MAITY V. CHHANDA KOLEY AND OTHERS , reported in 2024 SCC OnLine SC 551 was considering the question of delay in approaching the Court under Article 226 of the Constitution of India and held that when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. Relevant paragraphs 9, 10, 11 and 12 read as follows:

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“ 9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the

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factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

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10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

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11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the

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writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect:

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“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a

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writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

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57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court, [AIR 1967 SC 1450] and Bhoop Singh v. Union of India, [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, [(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports & Exports, [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India, [(1970) 1 SCC 84]).

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58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.”

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12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. v. K. Thangappan, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

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“6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports, [(1969) 1 SCC 185 : AIR 1970 SC 769]. Of course, the discretion has to be exercised judicially and reasonably.

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7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, [[L.R.] 5 P.C. 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher, [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service, [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:

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“Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.”

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8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India, [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does

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not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

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9. It was stated in State of M.P. v. Nandlal Jaiswal, [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

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It is an unfortunate case that, without examining the question of delay in initiating enquiry and whether the charge memo could be sustained on a plain reading of Rule 214(2)(b)(ii) of KCSRs, the petitioner/Institution has

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taken decision to file the present writ petition. In the

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above circumstances, it is a fit case for imposing cost while dismissing the writ petition. However, taking note of the fact that the petitioner/Institution is the creation of a statute and also taking note of the assurance given by the

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Registrar of the petitioner/Institution who is present before the Court, that the same would not be repeated in future, we restrain ourselves from imposing the cost.

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With the above, the writ petition stands rejected.

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SD/(S.G.PANDIT) JUDGE

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SD/(K. V. ARAVIND) JUDGE

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MPK CT:bms

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List No.: 1 Sl No.: 50

Karnataka Lokayukta v. Shri Shivaprasada S

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Karnataka Lokayukta v. Shri Shivaprasada S

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