Smt. Sushma Vs the State of Karnataka

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NC: 2026:KHC:14989 WP No. 19218 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF MARCH, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.19218 OF 2022 (S-RES)

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BETWEEN:

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SMT. SUSHMA W/O HARISH REDDY B K AGED ABOUT 37 YEARS, WORKING AS: ASSISTANT EXECUTIVE ENGINEER (I/C) BBMP, MALLESHWARAM DIVISION R/AT SRI HARIHARA NILAYA DOOR NO.21, 2^ND MAIN 2^ND CROSS, RMV 2^ND STAGE DOLLARS COLONY BENGALURU – 560 094.

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…PETITIONER

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(BY SRI. SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)

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AND:

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Digitally signed by MADHURI S Location: High Court of Karnataka

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THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT VIDHANA SOUDHA BENGALURU – 560 001.

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REP. BY ITS PRINCIPAL SECRETARY.

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BRUHAT BENGALURU MAHANAGARA PALIKE HUDSON CIRCLE, BENGALURU 560 002. REP. BY ITS COMMISSIONER.

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KARNATAKA LOKAYUKTA M S BUILDING, DR AMBEDKAR VEEDHI, BENGALURU 560 001.

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REP. BY ITS ASSISTANT REGISTRAR – 8.

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…RESPONDENTS

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(BY SRI.G. RAMESH NAIK, AGA FOR R-1; SRI. B.S. SHRINIVAS, FOR SRI. B.L. SANJEEV, ADVOCATES FOR R-2 SRI. VENKATESH ARABATTI, ADVOCATE FOR R-3)

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THIS W.P IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF THE INDIA PRAYING TO QUASH THE ORDER OF ENTRUSTMENT BEARING NO.NAE 10 MNU 2019 DATED 29.04.2019 ISSUED BY THE R1 PRODUCED AT ANNEXURE-P; THE ARTICLES OF CHARGE BEARING NO.LOK/DE-126/2019/ARE-8 DATED 03.07.2019 ISSUED BY THE R3 PRODUCED AT ANNEXURE-Q AS FAR AS IT RELATES TO THE PETITIONER.

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

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, petitioner seeks the following reliefs:

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“i) To issue a writ in the nature of certiorari or any other writ, or order or direction quashing (i) the order of entrustment bearing No.NAE 10 MNU 2019 dated 29.04.2019 issued by respondent No.1 produced at Annexure P; (ii) The articles of charge bearing No.LOK/DE126/2019/ARE-8 dated 03.07.2019 issued by Respondent No.3 produced at Annexure-Q; as far as it relates to the petitioner, in the interest of justice.

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ii) To issue a writ in the nature of mandamus or any other appropriate writ or order, directing the Respondent Nos.1 and 2 not to take any coercive action against the petitioner due to the framing of articles of charge and consider the case of the petitioner for promotion to the next higher cadre;

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iii) Issue such other appropriate order or direction as this Hon’ble Court deems fit, in the interest of justice and equity.”

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HC-KAR

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Heard learned counsel for the petitioner and learned

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AGA for respondent No.1 and learned counsel for respondent Nos.2 and 3 and perused the material on record.

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A perusal of the material on record will indicate that the petitioner was working as an Assistant Engineer, when the 3^rd respondent – Lokayuktha issued a Show Cause Notice to the petitioner calling upon the petitioner to show cause why departmental enquiry should not be initiated against the petitioner, who submitted a reply dated 12.10.2018. In pursuance of the same, the 3^rd respondent – Lokayuktha submitted a report dated 28.12.2018 under Section 12(3) of the Karnataka Lokayuktha Act, in pursuance of which, the 1^st respondent – State entrusts the matter to the 3^rd respondent – Lokayuktha to conduct departmental enquiry. In pursuance of the aforesaid entrustment, the 3^rd respondent issued common Articles of Charge and Order of Entrustment against the petitioner / DGO No.2 (Delinquent Government Official) and also against Sri. M. Shantha Kumar, who was arraigned as DGO No.1 in relation to the same enquiry.

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Being aggrieved by the aforesaid report issued under Section 12(3) by the 3^rd respondent – Lokayuktha, petitioner approached this Court in W.P.No.31652/2019, which was disposed of directing the petitioner to appear before the Inquiry Officer and participate in the enquiry and no opinion on the merits / demerits of the rival contentions was expressed. Subsequently, in pursuance of the same, the 3^rd respondent has issued the impugned Articles of Charges and Order of Entrustment, which are assailed in the present petition.

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In the earlier round of litigation in W.P.No.31652/2019 on dated 21.10.2021, the Hon’ble Division Bench has held as under:

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“Heard Shri Nishanth A.V., learned advocate for petitioner, Smt. A.R.Sharadamba, learned AGA for respondent No.1, Smt.D.Manjula, learned advocate for respondents No.2 & 3 and Shri B.V.Muralidhar, learned advocate for respondent No.4.

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2. Petitioner is an Assistant Engineer working with Bruhat Bengaluru Mahanagara Palike (BBMP). Based on the complaint given by one Smt.Manjula, State Government have entrusted the Departmental Enquiry to the Hon'ble Lokayukta. Article of Charges have been issued to the petitioner on 03.07.2019.

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3. Shri Nishanth submitted that the owner of the building has obtained an injunction against demolition. Whilst the said order was in force, the owner had completed the construction of the building and occupied the same. Hence, there is no lapse on the part of the petitioner. Therefore, the Report under Section 12(3) of the Karnataka Lokayukta Act, 1984, is based on incorrect assumption.

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4. Admittedly, BBMP is the employer. Departmental enquiry has been entrusted by the Government to Hon'ble Lokayukta and Article of charges has been issued. In the circumstance, without expressing any opinion on the merits of the case, we dispose of this writ petition, reserving liberty to the petitioner to urge all contentions before the Enquiry Officer.

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5. In view of disposal of the petition, I.A.No.1/2020 does not survive for consideration and it is disposed of.

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No costs.”

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As can be seen from the observations made by this Court,

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no opinion is expressed on the merits of the case by the Hon'ble Division Bench.

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Subsequently, the petitioner preferred the present petition seeking the aforesaid reliefs including assailing the order of entrustment dated 29.04.2019 and Articles of Charges dated

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03.07.2019 produced as Annexures – P and Q, respectively, and for other reliefs.

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During the pendency of the present petition, since there was an interim order only insofar as the petitioner – DGO No.2, is concerned, the Inquiry Officer proceeded only as against the DGO No.1 – Sri. M. Shantha Kumar and submitted an Enquiry Report dated 23.08.2024 recommending dropping of charges by coming to the conclusion that the Disciplinary Authority had not proved the charges levelled against Sri. Shantha Kumar – DGO No.1. In pursuance of aforesaid Enquiry Report passed by the Inquiry Officer, the 3^rd respondent – Lokayuktha confirmed the Enquiry Report and recommended to the State Government to accept the report of the Inquiry Officer and to exonerate the DGO No.1 – Sri. Shantha Kumar from the charges levelled against him. Further, the 3^rd respondent – Lokayuktha also kept the Disciplinary Enquiry against the petitioner pending awaiting orders of this Court as can be seen from the aforesaid recommendation dated 26.08.2024 and the Enquiry Report dated 23.08.2024, which reads as under:

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KARNATAKA LOKAYUKTHA

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No. LOK/DE/126/2019/ARE-08

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Multi Storied Building Dr.B.R. Ambedkar Veedhi Bengaluru – 560 001. Date: 26.08.2024.

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RECOMMENDATION UNDER RULE 14A(2) (d) OF THE KARNATAKA CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1957)

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Sub: Department inquiry against;

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1) Sri.M.Shanthakumar, the then Asst.Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru.

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2) Smt. Sushma, Asst. Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru – reg.

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Ref: 1) Govt. Order No. £ÀC E 10 JAJ£ïAiÀÄ 2019 , Bengaluru dated 29.04.2019.

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2) Nomination order No.LOD/DE/126/ 2019, Bengaluru dated 10.05.2019 of Lokayuktha.

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3) Inquiry Report dated: 23/08/202 of Additional Registrar of Enquiries-8 Karnataka Lokayuktha, Bengaluru.

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The Government by its order dated 29/04/2019 initiated the disciplinary proceedings against (1) Sri.M.Shanthakumar, the then Asst. Executive Engineer, Bruhat Bengaluru Maharanagara Palike, Malleshwaram Sub-Division, Bengaluru and (2) Smt. K.S. Sushma, Asst.Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru (hereinafter referred

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to as Delinquent Government Officials 1 & 2, for short as DGO-1 and DGO-2 respectively) and entrusted the Departmental Inquiry to this Institution.

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2. This Institution by Nomination Order No.LOK/DE/126/2019, Bengaluru dated 10.05.2019, nominated Additional Registrar of Enquiries-8, Karnataka Lokayuktha, Bengaluru, as the Inquiry Officer to frame charges and to conduct Departmental Inquiry against DGOs 1 and 2 for the alleged charge of misconduct, said to have been committed by them.

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3. The substance of the charge framed against the DGOs 1 and 2 by the inquiry officer is that the a building on property No.3374 (New No. 48 and 49) situated at 4^th Cross, 'C' Block, Gayathrinagar, Bengaluru was being constructed in violation of building plan and building byelaws and the DGOs 1 and 2 being responsible officers for taking action against the illegal construction, except issuing Provisional Order and Confirmation order, did not take further action to prevent the owner of the property from continuing with the construction. Further, the DGOs 1 and 2 have failed to take action inspite of the direction of the Executive Engineer and have allowed the owner of the property to complete the construction and occupy the building. Furthermore, the DGOs did not send the Court order to the Legal Cell of Bruhat Bengaluru Mahanagara Palike and even though the Court order did not permit the owner of the property to proceed with the construction they have not taken action to prevent the owner from proceeding

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with the construction. Thereby the DGOs have committed misconduct.

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4. During the pendency of the departmental inquiry, the DGO-2 Smt. Sushma, Asst. Engineer filed Application before the Inquiry officer stating that Writ petition No.19218/2022 before the Hon'ble High Court of Karnataka has been filed challenging the Govt. Order dated 29/4/2019 and also the Articles of charges dated 3/7/2019 and the Hon'ble High Court has granted stay of the Govt. order and the Articles of charges. Therefore, the inquiry officer has proceeded with the inquiry only against DGO-1 Sri M. Shanthakumar, Asst. Executive Engineer.

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5. The Inquiry Officer (Additional Registrar of Enquiries-8) on proper appreciation of oral and documentary evidence has held that the Disciplinary Authority has failed to prove the above charge against DGO-1 Sri M. Shanthakumar, Asst. Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub Division, Bengaluru. The Inquiry officer has considered the Provisional Order dated 3/1/2015 and Confirmation order dated 12/1/2015 issued by DGO-1 and also the Order dated 23/1/2015 passed under Section 462 of the Karnataka Municipal Corporations Act issued by Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Division to hold that the DGO-1 did perform his duty and he was prompt in taking action against the owner of the building. The Inquiry officer has also considered the transfer of the DGO-1 from Bruhat Bengaluru Mahanagara Palike,

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Malleshwaram Sub Division on 27/5/2015. Therefore, the inquiry officer held that no dereliction of duty or misconduct can be attributed to DGO-1 as alleged in the charge and therefore the charge against DGO-1 is not proved.

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6. On re-consideration of inquiry report and taking note of the totality of the circumstances of the case, I do not find any reason to interfere with the findings recorded by the Inquiry Officer.

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7. It is hereby recommended to the Government to accept the report of Inquiry Officer and to exonerate DGO-1 Sri M. Shanthakumar, the then Asst. Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub Division, Bengaluru from the charge leveled against him.

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8. As regards DGO-2 Smt. Sushma, Asst. Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub Division, writ petition No. 19218/2022 is pending before the Hon'ble High Court and stay of entrustment order and Articles of charges is granted by the Hon'ble High Court. Therefore, the disciplinary inquiry against her is kept pending, awaiting the orders of Hon'ble High court.

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9. Action taken in the matter shall be intimated to this Authority.

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Connected records are enclosed herewith.”

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KARNATAKA LOKAYUKTHA

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No. LOK/DE/126/2019/ARE-08 Multi Storied Building

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Dr.B.R. Ambedkar Veedhi Bengaluru – 560 001. Dated: 26.08.2024.

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ENQUIRY REPORT

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Present: Nagajyothi.K.A Addl.Registrar of Enquiries-8 Karnataka Lokayuktha Bengaluru.

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Sub: The Departmental enquiry against DGO(1) Sri. M.Shantha Kumar, the then Assistant Executive Engineer, Bruhat Bengaluru Mahanagara Palike Malleshwaram, Sub-Division, Bengaluru 9now retired) and DGO-(20) Smt. Sushma, Assistant Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram SubDivision, Bengaluru (W.P.No.31652/2019 is pending against her/DGO-2)- reg.

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Ref. 1) Report U/Sec. 12(3) of the Karnataka Lokayuktha Act, 1984, in Compt/Lok/BCD/1093/2015/ARE-1, dtd. 28/12/2018.

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2) Government Order No. £ÀCE 10 JAJ£ïAiÀÄÄ 2019 , ¨ÉAUÀ¼ÀÆgÀÄ, dated 29.04.2019

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3) Nomination Order No.LOK/DE/126/2019 Bengaluru, dtd: 10.05.2019.

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Present Departmental Enquiry is initiated on the basis of the complaint lodged by Kum. Manjula.L Cross, Gayathrinagar, Near Vivekananda Law College, Bangalore, (herein after R/o No.3377, referred as 4th Complainant) against DGO-(1) Sri. M.Shantha Kumar, the then Assistant Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru (now retired) and DGO-(2) Smt. Sushma, Assistant Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru (herein after referred to as the Delinquent Government Officials in short 'DGO-1 and 27.

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2. Brief allegations made in the complaint are that:

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Complainant named Kum. Manjula.L., R/o No.3377, 4^th Cross, Gayathrinagar, Near Vivekananda Law College, Bangalore lodged a complaint before the Lokayuktha alleging that DGO - 1 Sri.M.Shantha Kumar, the then Assistant Executive Engineer, BBMP, Bengaluru and DGO-2 Smt. Sushma, Assistant Engineer, BBMP, Bengaluru along with others working in BBMP Malleshwaram Sub-Division, Bengaluru have not taken any action in respect of illegal construction of building on property No.3373 (new No.48) and 3374, 4th Cross, 'C' Block, Gayathrinagara, Bangalore which was constructed by violating the sanctioned plan and the building license granted by BBMP authorities. Further DGO-1 and 2 except issuing notice, provisional order and confirmation order, did not take any further action to prevent further construction of

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building illegally and failed to take any action. Due to inaction of R-5 and 6 the construction of the building was completed and the owner occupied the building. The Executive Engineer has directed to take action in this regard. Even then Respondent 5 and 6 were not taking any action. So, they acted unbecoming of government servants and liable to proceeded under the provision of service rules for dereliction of duty.

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2. An investigation was undertaken by invoking Section 9(3) of the Karnataka Lokayukthe Act. After conducting investigation, Hon'ble Lokayukta sent report U/Sec. 12(3) of Karnataka Lokayukta Act, in No.Compt/Lok/BCD/1093/2015/ARE-1 on dtd.28/12/2018.

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3. The Competent Authority/State Government acting on the report and materials on record, entrusted the inquiry against DGOs by issuing G.O.No. £ÀCJ£ïAiÀÄÄ 2019, ¨ÉAUÀ¼ÀÆgÀÄ dtd 29/04/2019.

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4. Hon'ble Lokayukta nominated Additional Registrar of Enquiries-8, Karnataka Lokayukta Bengaluru by order No. LOK/DE/126/2019, Bengaluru dt.10/05/2019 for framing charges and to conduct departmental enquiries.

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5. On the basis of the nomination, Article of Charge was framed under Rule 11(3) of the KCS(CCA)Rules, 1957 against DGO-1 and 2. The charges so framed reads thus;

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ANNEXURE NO.1

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CHARGE

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2. You DGO-1 and DGO-2 while working as Assistant Executive Engineer and Assistant Engineer at B.B.Μ.Ρ., Malleshwaram Sub-division, Bengaluru, were

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primarily responsible to take action against the construction of building at property No.3374 and 3374 (New 48 & 49), 4th cross, 'C' Block, Gayathrinagar, Bangalore, as it was constructed in violation of sanctioned plan and building license. You DGOs, except issuing provisional order and confirmation order, did not take further action to prevent the owner of property from continuing with the construction and that you failed to take action inspite of the direction of the Executive Engineer and allowed the owner of the property to complete the construction and occupy the building. You were supposed to send the court order to the legal cell of B.B.M.P. for taking further steps against the owner of the property. But, you intentionally kept quiet, even though the court order did not permit the owner of the property to proceed with the construction: and thereby, you DGOs have committed dereliction of duty and have failed to maintain absolute integrity and devotion to duty, the act of which is unbecoming of a Government Servant and you DGO® have committed misconduct as enumerated under Rule 3(1) of Karnataka Civil Services (Conduct) Rules, 1966.

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ANNEXURE No.II

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STATEMENT OF IMPUTATIONS OF MISCONDUCT

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3. A complaint has been filed in the Karnataka Lokayukta by Kum. Manjula. L., No.3377, 4^th Cross, Gayathrinagar, Near Vivekananda Law college, Bangalore against the officers of BBMP. In the complaint, it is alleged that the owner of property No.3373 and 3374, 5th cross,

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Nayak Hospital Road, Gayathrinagar, has proceeded to construct a building,.after demolishing the old building on the said property. without obtaining sanctioned plan Complainant had further alleged that though she gave complaint to the concerned officers of BBMP. Malleshwaram Sub division, the officers have not taken any action in respect of the illegal construction.

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4. After the complaint was taken up for investigation, comments of the respondents were called on the complaint allegations and respondents No.3, 5 and 6, mentioned in the complaint submitted their comments. Respondent No.3 in his comments has stated that the plan and license was granted to Smt. Kamalamma to construct an apartment complex at No.3374 (new No.48), 4th cross, 'C' Block, Gayathrinagara, Bangalore on 20/8/2014 and the said plan was issued according to the Rules and there was no illegality in sanctioning the plan. Respondent No.3 further stated that when he inspected the property before granting plan and license, there was no building in the property and therefore, he has not violated any Rule while sanctioning the plan.

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5. DGOs 1 and 2 in their identical comments have stated that they were inspecting the building in question since from the time of digging of the foundation pit and in the initial stages the digging of foundation pit was according to the sanctioned plan but afterwards the owner of the property started constructing the building violating the sanctioned plan. Respondents No. 5 and 6 further

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stated that after the complainant in this cast gave a petition dtd 10/12/2014, they inspected the property on 2/1/2015 and found that the owner of the building had not left required set back in front side, as well as on the rear side of the building and therefore a provisional order under Section 321(1)&(2) of KMC Act was served on the owner on 3.1.2015 and since the owner of the property continued with the construction, a confirmation order under Section 321(3) of the KMC Act was served on the owner on 12.1.2015 and then, the owner of the building approached City Civil Court and obtained injunction order on 3.2.2015. Respondents No. 5 and 6 have stated that after obtaining injunction order from the court, the owner of the property continued with the construction and therefore, legal opinion was sought from the Legal Cell of BBMP and a notice was also served on the owner. DGOs 1 and 2 have further stated that they had taken all possible steps available to them and therefore, there is no dereliction of duty on their part.

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6. Complainant has filed rejoinder and in the said rejoinder she reiterated the compliant allegations. Complainant has stated that though the building was constructed violating the sanctioned plan and buikding by laws, the respondents by colluding with the owner of the property failed to take action and therefore, action may be taken against respondents.

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7. On scrutiny of the allegations made in the complaint, documents produced by the complainant and

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the reply given by respondents 3, 5 and 6, it can be seen that though the complainant has alleged in her complaint that owner of property No.3373 and 3374, 54^th Cross, Gayathrinagar, Bangalore, has not obtained sanctioned plan and building license, the documents submitted by respondents 3 shows that one Smt. Kamalamma had obtained sanctioned plan and building license to construct apartment complex on the property No.3374 (New No.48), 4^th Cross, 'C' Block, Gayathrinagara, Bangalore, 3^rd respondent has further stated that before sanctioning the license and sanctioned plan, he had visited the property and found that no building was in existence and then the plan was sanctioned. The documents produced by respondent No.3 clearly shows that the complainant has not verified the fact regarding the plan being sanctioned before filing this complaint. Since respondent No.3 had sanctioned the plan and license, and the said plan and license was issued observing required formalities, no dereliction of duty can be found against respondent No.3 who is the Assistant Director or Town Planning, BBMP.

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8. The circular No. Comm/Cir/Constn. verification, 5/09-10 issued by Commissioner, BBMP, fixed the responsibility of preventing the property owners constructing buildings, without sanctioned plan and license, or contrary to the building byelaws. Primarily the Assistant Executive Engineer and the Assistant Engineer of the concerned Ward, are required to monitor all the construction activity that takes place in their respective ward at every stage of the building i.e., at the foundation

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level, basement level and super structure and to maintain a record for appraisal and verification by the Executive Engineer and the Chief Engineer of the respective Zones and report the same to the Executive Engineer and Superintending Engineer. The circular has further fixed responsibility on the Assistant Executive Engineer and the Assistant Engineer to strictly ensure that there is no violation in the building constructions to the maximum extent for the better development of the City.

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9. In the present case, the materials on record disclose that the owner of property No.3374 and 3374, (new no. 48 and 49) 4th cross, 'C' Block, Gayathrinagar, Bangalore, had started constructing a building after obtaining plan and license dtd: 20/8/2014. The material on record further shows that the owner of the property has constructed the building violating the sanctioned plan as she has not left the required set back in the front side and also on the rear side of the building and the violation is 37.6% in the front side and 36.90% on the rear side of the building. Respondent No.5 issued provisional order under Section 321(1) of KMC Act on 3/1/2015 and also confirmation order under Section 321(3) of the KMC Act on 12/1/2015 listing the building violations committed by the owner of the property. The materials on record disclose that except serving provisional order and confirmation order under section 321 of the KMC Act, the DGOs 1 and 2 have not taken any action to prevent the owner of the property from continuing with the construction of the building The injunction order issued by the court restraining

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the BBMP, the said order had only restrained the BBMP from demolishing the building and there was no order permitting the owner of the property in question to continue with the construction. The reply submitted by DGOs 1 and 2 shows that the owner of the property continued with the construction even after the court order. DGOs 1 and 2 have kept quiet till the owner of the property completed the construction. Therefore, DGOs 1 and 2 have committed dereliction of duty.

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10. DGOs 1 and 2 in their reply to the observation note served on them, have stated they had taken all possible steps to prevent the owner of the building from constructing the building in violation of the plan and license and therefore they have not committed dereliction of duty.

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11. Since the facts and materials on record prima facie show that SGO-1 Sri.M.Shantha kumar, the then Assistant Executive Engineer, Malleshwaram Sub Division, BBMP, Bangalore and DGO-2 Sm K.S.Sushma Assistant Engineer, Malleshwaram Sub Division, BBMP. Bangalore have committed misconduct as described in Rule 3(1) of KCS (Conduct) Rules, 1966, in exercise of the power vested in me under section 12(3) of the Karnataka Lokayukta Act, a recommendation was made to the competent authority to initiate disciplinary proceedings against DGO-1 as prescribed under Rule 214(2)(b)(ii) of the Karnataka Civil Services Rules, 1957. Further, recommendation was also made to the Competent Authority to initiate disciplinary proceedings against DGO-2

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and to entrust the inquiry to this authority under Rule 14-A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. Accordingly, Government entrusted the inquiry to the Hon'ble Lokayukta under Rule 14-A of KCS (CCA) Rules. Hence, the charge.

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12. Summons was issued along with copy of Article of Charges to DGO-1 has appeared through S.H. Advocate and DGO-2 has appeared through SM Advocate. First oral statements of DGOs were recorded. DGO-1 and 2 have denied the charges by pleading not guilty and claimed to be tried. Therefore, the charges by pleading not guilty and claimed to be tried. Therefore, the inquiry has been posted to file their objections/Written Statement.

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13. The parties were provided with an opportunity of verification of records,

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14. DGO-1 filed his detailed written statement contending that the charge is not maintainable as the allegations made are all false and they have taken timely legal action to prevent the further legal construction under KMC Act by issuing a letter and notice on 16/06/2014 in their office letter No. A/22/14-15 and one more notice was given not to construct further, as it may result in damage to the neighbouring buildings Further, third and final notices were given to owner of he contended that initially owner of the property the property on 02/07/2014 and 20/08/2014, Further, constructed the building as per building plan. However thereafter while raising construction, the owner

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has violated the building plan. Therefore, BBMP authorities issued notice under Sec. 321(1) of KMC Act and notice was given to remove portion of illegal construction which were constructed violating the permission granted in the license and plan. Further on 12/01/2015, acting u/Sec. 321(3) of KMC Act, confirmation order was passed. After finding that owner of the building has violated license conditions, approved plan and plan under/Sec. 462 of KMC Act, an order was passed to demolish the building on 23/01/2015 and file was referred to legal-cell of Later on, 27/01/2015 it was decided to demolish the illegal construction of building by estimating the expenses for demolishing at Rs.23,574/-He further contended that the owner of building has obtained injunction from the Civil Court and file was referred to Sr. Legal-consultant of BBMP. In view of the 17 injunction and stay order passed by the court and s per the opinion of legal expert representing BBMP no action was taken for removal or to demolish the building. When the owner went on constructing the building illegally he has informed the same to all the officers and to the legal-cell to get stay vacated from the court. Several notices have been served on the owner of the building to stop the construction. Further he contended that in case any illegal construction are raised by the building owner by violating the approved plan and license, it was the responsibility of Assistant Engineer and AEE of the ward as per the Government Circular No.5/2009-2010. Accordingly, they have taken all the action under KMC Act to stop the construction. Thereafter,

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he was transferred on 27/05/2015. At the time of his transfer, the construction of building was at preliminary stage. He has informed all these facts to Sub-Division of Malleshwaram, BBMP authorities that owner has completed the construction by securing the electric, water supply and residing therein. Hence, he cannot be held personally responsible for the above said allegations and illegal construction.

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15. DGO-2 filed her detailed written statement contending that she has not committed dereliction of duty and she has issued notices at the time of preliminary enquiry and owner of the building filed objection also. She had also issued sufficient notice to the owner of the building to furnish documents Further, four notices were issued to owner of the building. She also reiterated the same statements as made by DGO-1. Further, she referred the file to legal. cell of BBMP to take necessary steps to get the stay vacated from the court. Final notice was also issued to the owner of building. Thereafter on 28/11/2017 DGO-2 was transferred from Malleswaram office. In view of these constructive steps taken by her, it cannot be said that she was not diligent in taking action against the owner of the building.

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16. In the course of preliminary enquiry, advocate for DOO-2/ Smt. Sushma Assistant Engineer, filed application that DOO-2 has filed W.P.No.19218/2022 before Hon'ble High Court of Karnataka and same in pending. Subsequently, permission was taken from the Hon'ble

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Lokayukta by placing a note on 10/03/2023 to proceed against DGO-1 alone.

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17. In order to prove the allegations, Disciplinary Authority has examined Scrutiny Officer as PW.1 and has got marked Ex.P.1 to Ex.P.7 documents and second oral statement of DGO-1 was recorded. Further in defence DGO-1 got examined himself as DW.1 and got marked Ex.D.1 to Ex.D.16. Then, the case was posted for arguments.

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18. Heard, arguments of Presenting Officer and advocate for DGO-1 has submitted written arguments. The enquiry was posted for submitting final report.

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19. Following points arise for my consideration;

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Whether the Charges leveled against DGO-(1) Sri. M. Shantha Kumar, Executive the then Engineer, Assistant Bruhat Bengaluru Mahanagara Palike, Malleshwaram Sub-Division, Bengaluru (now retired) is proved by the Disciplinary Authority?

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20. My answer to the above point is in the Negative

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for the following:

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REASONS

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21. DGO-1 and 2 were Assistant Executive Engineer and Assistant Engineer (Building) respectively working at BBMP, Malleswaram Sub-Division, Bengaluru. Allegations were made against them for their dereliction of duty. Since they were the concerned engineers to supervise the construction of building in question. Their main duty is to

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supervise, monitor and control the construction of the building, so as to ensure that the building complies with bylaws and regulation. To verify the same, they have to conduct spot inspection. The Articles of charge alleges that, except issuing the provisional order and confirmation order they have not taken any further action to prevent the owner of the property from continuing with the construction and it also alleges that they have not informed the legal cell of the department to get proper order against building owner.

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22. During the inquiry proceedings, the disciplinary authority could not examine the complainant, as she was suffering from ill-health and could not move from the place. After considering the medical records of the complainant produced by the Presenting Officer, it has been appreciated that the complainant was not in a condition to adduce evidence. Hence, summons to Scrutiny Officer was issued. The then scrutiny officer, Sri Chandramallegowda, Retired District Judge is examined as PW.1. He has stated in his evidence that, he has examined the allegations made in the complaint i.e., Form No.1 and 2, complaint and documents marked at Ex.P.4 from page No.7 to 17 and objections of DGO-1 and 2 marked at Ex.P.5, observation notes marked at Ex.P.6.

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23. He deposed that, after observing that the building owner was not constructing the building as per the approved sketch, DGOs issued notices, orders u/s 321(1) to (3) of KMC Act and stopped the construction work. But,

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thereafter the building owner obtained an order from civil court, due to which they have not taken any action against him. The Civil Court has passed order not to demolish the building. After obtaining this order the owner continued construction work and completed it.

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24. In the cross-examination he replied that, it is true that DGO-1 issued notice when the building owner was constructing building by violating building bylaws and the plan. On 15/06/2014 they issued notice mentioning that neighbouring owners were facing problems due to continuation of the construction. Further, on 23/07/2014 DGO-1 issued notice to the owner to furnish building documents, license, permission, plan etc.. The owner furnished the plan on 20/08/2014. Then, it was found that the building was constructed by violating the approved plan. Thereafter, they issued notice u/s 321(1) for stopping the construction temporarily. He denied the suggestion that, on 23/01/2015 notice was issued to remove the unauthorizedly constructed portion. But, he himself narrates that DGO-1 informed this matter to his higher authorities in writing. At that time, his higher authority passed order for removal of illegal construction. At the same time civil court issued the stay order. But, he does not know that by that time DGO-1 was transferred. Even in the objection, DGO-1 specified that on 27/05/2015 he was relieved. In support of this, he has produced CTC. So, when the building owner was continuing the construction after obtaining court order admittedly this witness was not working at Malleswaram Division,

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25. Ex.P.1 is the complaint. It alleges that on 09/06/2014 the construction work began by demolishing old building and then the Assistant Executive Engineer issued notice on 10/06/2014 to produce building documents. But, the owner did not produce any document. Instead on 19/06/2014, the Project Manager took 10 days time. Thereafter, on 12/07/2014 the owner of the building moved online application for plan approval. Thereafter, it is alleged, Chief Engineer and Joint Commissioner of concerned area visited the spot and prepared a false report for approval of building plan by suppressing the fact that owner has already constructed a portion of the building without getting approval by BBMP and thereafter BBMP sanctioned the plan. Thus, the allegation made in Ex.P.1 varies from the articles of charge. Ex.P.2 and 3 are complaint filed on 23/03/2015.

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26. Ex P.4 is the scrutiny note of BBMP dated: 25/03/2014. The Assistant Executive Engineer observes deviation of the building. observes 09/06/2014 the note On the commencement of construction work and permission given for issuing notice. On 16/06/2014, permission was given for issuing notice for stopping the construction work. On 02/07/2014 it was observed that the owner has furnished the documents. On 21/07/2014, order was issued for stopping construction work and accordingly notice was issued. The complainant has not given evidence. So her allegation that, owner demolished the building 09/06/2014 and commenced the construction work on 19/06/2014 has no supporting material. But, the demolition of the old

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building is corroborated in Ex .P 4 first note dated 25/03/2014. But, commencement of construction work is not corroborated in the said document. However, it is observed that on 12/07/2014 an online application for approval plan was filed and the same was approved on 03/08/2014. However, there is no material to show that the construction commenced between 19/06/2014 and 24/07/2014. However, on 21/07/2014 it was observed regarding digging of pit. Now the crucial document is Ex.P.5 annexed with the letter of the BBMP dated: 27/04/2015, wherein it shows that the DGO-1 did perform his duty by reporting the progress of work in the said property. On 15/12/2014 it is observed that the construction work was commenced as per sketch and they have observed the violation of building plan in note dated 03/01/2015. Then they have issued notice under section 321(1) of KMC Act on 12/01/2015, 321(3).

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27. It is pertinent to note that in the same document sl.no.12 it has quoted the office No. ¸ÀPÁ¤.C(ªÀÄ)/¦Dgï/22/14-15 dated 14/01/2015, the file was given to Senior Legal Advisor, BBMP to prepare caveat against the owner of the building as there was possibility of getting status quo Further, sLno.13 refers the letter order. no. ¸ÀPÁ¤.C(ªÀÄ)/¦Dgï/88/14-15 dated:27/01/2015. They have sent the said letter for approval on demolishing the unauthorized construction and estimated expense. Sl.No.14 refers that, the owner of the building obtained injunction order on 14/02/2015.

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28. Appreciating the above, it clearly shows the DGOs were prompt in taking steps against the owner of the building from observation of demolition of old building on 25/03/2014 till 02/01/2015. After the file was transferred to the legal department, the duty of the DGO stops because the duty of the DGO is to supervise the building and to verify the same. Thereafter, they have also sent file to legal section.

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29. DGO-1 deposed as DW-1 and narrated defence as given in his written statement. He was relieved on 27/05/2015 and the 80% of the construction work was done after the said date that he is not responsible for the charge and there is no dereliction of duty on his part.

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30. In the cross-examination, he denied the allegations that, they have not taken steps to stop the construction with the assistance of police. He was not aware that the building owner obtained stay order when they were taking steps on construction work. He denied the suggestion that, he purposely delayed in informing the legal cell of the department to take legal action against the owner of the building and also denied the suggestion that by delaying the process been enabled the building owner to complete the construction work.

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31. In support of DGO-1 produced the orders dated 10/06/2014, 17/06/2014 and 19/06/2014, 03/07/2014, 06/08/2014, 14/11/2014, 03/01/2015, 03/01/2010, 12/01/2015 and 04/01/2015 marked as Ex.D.1 to 11. These

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are also notices and orders referred in Ex.P.4 and 5. Crucial document is Ex.D.11 dated: 14/01/2015. It is a letter written by DGO-1 to Senior Legal Advisor of BBMP to take steps against the building owner. Ex.D.12 is same as Ex. P.4 and 5. Ex.D.13 to 15 are demolition orders. Crucial document is Ex.D.16 dated: 12/02/2015 wherein DGO-1 brought to the notice of the legal department that building owner was continuing the construction and he was enquiring whether construction could be continued when the interim stay was against the order of demolition. So, it clearly shows, DGO-1 has taken all steps from his side for stopping the construction work. None of these documents were disputed in the cross examination of the DGO. The Presenting Officer failed to elicit any answer on corroboration of the charge levelled against the DGO. Hence, I hold that the Disciplinary Authority has failed to prove that the DGO did not take steps for stopping the construction work of the house no.3373 and Cross, Nayak Hospital Road, Gayathrinagar. The Disciplinary Authority has also failed to prove that because of the inaction of the DGO-1 the said building owner completed the construction work and occupied the building. 3374, 5^th cross Nayak Hospital Road, Gayathrinagar. The Disciplinary Authority has also failed to prove that because of the inaction of the DGO-1 the said building owner completed the construction work and occupied the building.

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32. Hence, I held Hold Point No.1 in the Negative as against DGO-1 and proceed to record the following:

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FINDINGS

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The Disciplinary Authority has not proved the charges leveled against the Delinquent Government Official DGO-(1) Sri. M. Shantha Kumar, the then Assistant. Executive Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram Bengaluru, Sub-Division, (now retired)

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Further, as regards DOO-(2) Smt.Sushma, Assistant Engineer, Bruhat Bengaluru Mahanagara Palike, Malleshwaram, SubDivision, Bengaluru W.P.No.31652/2019 is pending and therefore, D.E., is kept pending.

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DGO-1 retired on 31/01/2016. DGO-2 will be retiring on 31/08/2045.

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Submitted to Hon'ble Lokayukta, Karnataka Lokayukta, Bengaluru, for further action in the matter.”

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As can be seen from the aforesaid material on record,

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the charges levelled against the petitioner – DGO No.2 and Sri.Shantha Kumar – DGO No.1 are in relation to the very same incident and the subject matter of the Enquiry Report dated 23.08.2024 and Recommendation dated 26.08.2024 of the Lokayuktha, is common and identical both insofar as the petitioner – DGO No.2 as well as DGO No.1 – Sri. Shantha Kumar, is concerned.

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Under these circumstances, I deem it just and appropriate to invoke / apply the doctrine of parity and extend the benefit of the Enquiry Report dated 23.08.2024 and Recommendation dated 26.08.2024 of the Lokayuktha made in favour of Sri. Shantha Kumar – DGO No.1, to the petitioner – DGO No.2 also by quashing the enquiry proceedings.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed .

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(ii) The impugned proceedings pursuant to the Articles of Charge at Annexure – P dated 29.04.2019 and the Order of Entrustment at Annexure – Q dated 03.07.2019 presently pending before the Inquiry Officer of 3^rd respondent

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– Lokayuktha, are hereby quashed.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SV

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List No.: 2 Sl No.: 10

Smt. Sushma v. the State of Karnataka

Case brief

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Smt. Sushma v. the State of Karnataka

Case brief

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