Full Judgment Text
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 27 DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 33924 OF 2024 (S-RES)
BETWEEN:
SRI N. PRADEEP KUMAR
S/O SRI. NAGARAJAIAH
AGED ABOUT 36 YEARS,
WORKING AS ASST. DIRECTOR
TOWN PLANNING SOUTH ZONE
BRUHAT BENGALRU MAHAVNAGARA PALIKE
SOUTH END CIRCLE, R V ROAD,
BENGALURU – 560 041
…PETITIONER
(BY SRI. A. RAVISHANKAR, FOR
SRI. MUNIRAJA M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDH,A DR. AMBEDKAR VEEDHI
BENGALURU
REP. BY ITS PRINCIPAL SECRETARY
2. THE CHIEF COMMISSIONER
BRUHAT BENGALRUU MAHANVAGAR PALIKE
HUDSON CIRCLE,
BENGALURU – 560 002
3. THE KARNATAKA LOKAYUKTA
M S BUILDING
BENGAULURU
REP. BY ITS REGISTGRAR
…RESPONDENTS
(BY SRI. G. RAMESH NAIK, AGA FOR R1;
SRI. B. L. SANJEEV, ADVOCATE FOR R2;
SRI. K. PRASANNA SHETTY, ADVOCATE FOR R3)
Digitally
signed by
CHANDANA
B M
Location:
High Court
of Karnataka
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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DTD. 08.11.2024 VIDE GOVERNMENT ORDER NO. UDD 96
MNU 2022 PASSED BYTHE R-1 GOVERNMENT BY ENTRUSTING
THE INQUIRY TO THE R-3 LOKAYUKTHA UNDER RULE 14-A OF
THE CCA RULES AS PER ANNX-A IN SO FAR PETITIONER IS
CONCERNED.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks the following reliefs:
a) To issue a writ of certiorari or any other
appropriate writ, order or direction to quash the
impugned order dated 08.11.2024 vide Government
st
Order No.UDD 96 MNU 2022 passed by the 1
respondent – Government by entrusting the inquiry to
rd
the 3 respondent Lokayukta under Rule 14-A of CCA
Rules as per Annexure-A insofar as the petitioner is
concerned.
b) To grant such other or further relief/s that this
Hon’ble Court may deem fit and proper in the facts and
circumstances of this case, including the cost of this
proceedings, in the interest of justice.
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2. Heard learned counsel for the petitioner, learned AGA
for respondent No.1 and learned counsel for respondent Nos.2 and
3 and perused the material on record.
3. In addition to reiterating the various contentions urged
in the petition and referring to the material on record, learned
counsel for the petitioner submits that the impugned order at
Annexure-A dated 08.11.2024 passed by respondent No.1-State
under Section 14-A of the Karnataka Civil Services (Classification,
Control and Appeal) Rules, 1957, is erroneous, arbitrary or without
jurisdiction of law inasmuch as, the petitioner was not an employee
of respondent No.1 – State but was working as Assistant Executive
Engineer of respondent No.2 – BBMP who was
entitled/authorized/empowered to pass the impugned order and not
respondent No.1 – State and the impugned order deserves to be
quashed on this ground alone. It is further submitted that the
impugned order entrusting the enquiry to be conducted against the
petitioner by the Lokayukta is laconic, cryptic, unreasoned, non
speaking order with absolutely no application of mind, which
deserves to be quashed on this ground also.
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4. Per contra, learned counsel for the respondent submits
that there is no merit in the petition and the same is liable to be set
aside.
5. Though several contentions have been urged by both
sides in support of their respective claims, a perusal of the
impugned order will indicate that respondent No.1 – State has
specifically referred to the communication/letters/correspondence
dated 15.10.2022, 30.01.2024 and 12.08.2024 addressed by the
respondent –State to the BBMP, where petitioner was working as
Assistant Executive Engineer. It is specifically recorded in the
impugned order that the BBMP had not submitted any documents
sought for by the State Government. It is well settled that for the
purpose of passing the order under Rule 14-A of the CCA Rules, it
was incumbent upon the Disciplinary Authority to apply its mind
before entrusting the enquiry to the Lokayukta and any order
passed by the Disciplinary Authority without application of mind
deserves to be quashed as held by the Hon’ble Division Bench in
the case of Sanjeev Kumar Vs. The State of Karnataka and Anr.
– W.P.No.205398/2019 dated 24.02.2020, wherein it is held as
under:
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“Being aggrieved by the order dated 3.10.2019
passed in application No.2127/2017 whereby the
Karnataka Administrative Tribunal, Bengaluru (hereinafter
referred to as ‘Tribunal’ for short) rejected the challenge
nd
to the entrustment of enquiry into the hands of the 2
st
respondent Lokayukta by the 1 respondent-Government,
the instant writ petition is filed.
2. The material facts necessary for appreciation of
the controversy are as follows:
The Water Resources Department introduced a
project called Mullamari Irrigation Project in Chincholi
Taluk, Kalaburagi District, to provide water facilities for
irrigation purpose. Rehabilitation Centres were
established to provide shelters to the displaced families of
the submerged land in respect of three villages in
Chincholi Taluk. Accordingly, the Executive
Engineer/Assistant Executive Engineer of respective
divisions and subdivisions were empowered to allot sites
for displaced families. It transpires that on 20.4.2007, the
then Secretary and Panchayat Development Officer
(hereinafter referred to as ‘PDO’ for short) of
Gadalingadalli Gramapanchayat on the direction of
Karnataka Neeravari Nigam Limited (hereinafter referred
to as ‘KNNL’ for short) issued a letter of allotment in
respect of site No.86 along with sanctioned plan for
construction of a house in favour Smt. Mahananda, W/o.
Adeppa Huli under the Rehabilitation Scheme with certain
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conditions. The rehabilitation Scheme was managed by
the KNNL.
3. It is pleaded that instead of constructing a
house on Site No.86, Smt. Mahananda built a house in
the place reserved for a civic amenity i.e., a park.
Immediately, the Assistant Executive Engineer of the
project, KNNL, caused a notice to Smt. Mahananda in the
year 2007. During the pendency of these proceedings, in
terms of the notice, it transpires that one Sri Lingaraju,
son of Surya Kanth of Chennur village, Chincholi Taluk
made an application on 1.4.2013 to the Assistant
Executive Engineer, KNNL, Dam Sub-Division, Chimman
Chooda, alleging that Smt. Mahananda had constructed a
house in an area reserved for civic amenity under the
Scheme. In response to the application made, the
Assistant Executive Engineer replied that notices were
issued on 10.11.2006 to Smt. Mahananda that the
construction of the house building in the civic amenity site
was illegal and the same had been replied by Smt.
Mahananda stating that she had not built any house in
the place that was alleged, but the house was built in a
farm land which belonged to her and she was ready for a
resurvey of the land.
4. After getting this reply from KNNL, Sri
nd
Lingaraju gave a complaint to the 2 respondent-
Lokayukta alleging that no action is taken against the
owner of the house built on the civic amenity site and the
nd
construction not demolished. The 2 respondent-
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Lokayukta conducted an investigation in the matter under
Section 9 of the Karnataka Lokayukta Act (hereinafter
referred to as ‘Act’ for short) and framed its report under
Sub-section (3) of Section 12 of the Act and
st
communicated the same to the 1 respondent
recommending that a departmental enquiry be conducted
against the petitioner and the same be entrusted to it
under Rule 14-A under Karnataka Civil Services
(Classification, Control and Appeal) Rules, 1957
(hereinafter referred to as ‘Rules’ for short).
5. The Government by its order dated 2.1.2017
entrusted the departmental enquiry to be conducted
against the petitioner to the hands of Lokayukta in terms
of Rule 14-A of the Rules. In terms of which, the
Lokayukta nominated Additional Registrar of Enquiry-III
as the enquiry officer to conduct departmental enquiry
against the petitioner. At that stage, the petitioner
approached the Tribunal in application No.2127/2017 and
the Tribunal, on 11.4.2017, granted interim order of stay
of further proceedings. Finally, the Tribunal by its order
dated 3.10.2019, following the judgment of a Division
Bench of this Court, has dismissed the application filed by
the petitioner on the ground that it is not the stage at
which the Tribunal could interfere in the matter as there is
prima facie material to show the involvement of the
petitioner in the alleged acts and dismissed the
application.
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Feeling aggrieved, the applicant before the
Tribunal has filed the instant writ petition.
6. We have heard. Sri. Mahesh Patil, learned
Counsel appearing for the petitioner, Smt. Archana P.
Tiwari, learned Additional Government Advocate
appearing for respondent No.1 and Sri. Subhash
Mallapur, learned Counsel appearing for respondent
No.2.
7. Learned Counsel for the petitioner would
contend that the petitioner took charge of the post of PDO
of Gadalingadalli Gramapanchayat on 9.10.2012. By
then, the earlier PDO appears to have issued a notice to
Smt. Mahananda with regard to construction of the
house. The property was still under the control of the
KNNL and had not yet been handed over to the
Gadalingadalli Gramapanchayat. It was a matter of 2007
and he had taken charge on 9.10.2012.
7.1. Learned Counsel for petitioner would further
contend that pursuant to the complaint before the KNNL
with regard to construction of the house in the civic
amenity site, notices came to be issued by the KNNL to
Smt. Mahananda, but the complainant not being satisfied,
approached the Lokayukta.
7.2. It is further contended that under Section
8(2) of the Act, the complaint, involving an allegation
made after five years, should not have been entertained
by the Lokayukta. It is also contended by the learned
Counsel that in terms of Section 9(3) of the Act, the
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investigation report that was pursuant to the complaint
ought to have been made available to the petitioner and
not having done so is in violation of the mandatory
provision of the Act.
7.3. The learned Counsel for the petitioner would
st
further contend that the 1 respondent Government ought
to have applied its mind before entrusting the matter to
nd
the hands of the 2 respondent to the conduct of enquiry
and the Government order dated 7.1.2017 is in blatant
violation of Section 12(4) of the Act, in the light of the fact
that the petitioner had contended in his reply that the
property had not been transferred to the hands of
Panchayat and was still under the control of KNNL and he
had no control or jurisdiction over the area in question
and hence, could not have acted against the individual.
7.4. It is also contended that the Tribunal has
grossly erred in rejecting the application notwithstanding
the aforementioned grounds as also on the ground that it
was not a stage at which the Tribunal would interfere in
the proceedings.
nd
8. Per contra, the learned Counsel for the 2
respondent-Lokayukta contends that the Lokayukta has
discretion to entertain a complaint involving an allegation
even after the expiry of five years and the bar contained
under Section 8 is only directory and not mandatory.
8.1. He would contend that there is no obligation
on the part of the Lokayukta to furnish a copy of the
investigation conducted by the Lokayukta under Section 9
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of the Act and it would suffice that if a copy of the
complaint is given to the delinquent official.
8.2. He would further contend that the
application filed before the Tribunal was premature as it
challenged an order entrusting the enquiry to the
Lokayukta and appointment of the enquiry officer to frame
the charge.
8.3. It is also his contention that the order
entrusting enquiry to the Lokayukta under Section 12(4)
of the Act is in consonance with the provisions as every
material is recorded and all the contentions are
addressed.
nd
8.4. Learned Counsel for the 2 respondent
Lokayukta further vehemently contends that once the
investigation is taken up by the Lokayukta, the
Government/competent authority has no choice but to
entrust the enquiry to the Lokayukta. The competent
authority also looses its right to conduct disciplinary
proceedings against its employee. Once the investigation
is conducted by the Lokayukta, a report under Section
12(3) is furnished to the competent authority. It is his
submission that it is immaterial as to whether the order
entrusting the enquiry under Rule 14-A contains reasons
or otherwise.
8.5. By way of a memo dated 12.2.2020, the
nd
learned Counsel for the 2 respondent has placed before
us the complete proceedings right from the date of filing
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of the complaint till the date of the order passed by the
Tribunal.
9. The learned Additional Government
Advocate appearing for respondent No.1 would submit in
support of the order entrusting the enquiry to the hands of
the Lokayukta and reiterate the submissions made by the
nd
learned Counsel for 2 respondent and would also
support the order of the Tribunal contending that the
application before the Tribunal as well as the writ petition
now preferred, are all premature and not the stage at
which the Writ Court could interfere with the proceedings.
The learned Additional Government Advocate would
however dispute with regard to the contention that once
nd
the 2 respondent-Lokayukta investigates into the
complaint, the enquiry has to be entrusted to its hands.
nd
Insofar as the submission of the 2 respondent that the
enquiry has to be entrusted to the Lokayukta, the learned
Additional Government Advocate would submit that the
discretion is always available with the Government and
he disputes the submission made by the learned Counsel
nd
for the 2 respondent.
10. We have given our anxious consideration to
the contentions urged on behalf of the parties and have
perused the writ papers as well as the complete records
pertaining to the complaint against the petitioner.
11. In consequence thereof, the following points
would arise for our consideration:
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(i) Whether the order entrusting the enquiry is in
compliance with Section 12(4) of the Act ?
Whether an enquiry should mandatorily be
(ii)
nd
entrusted to the 2 respondent Lokayukta, once the
investigation is conducted by the Lokayukta on a complaint
and a report is submitted under Section 12(3) of the Act ?
(iii) Whether the order of the Tribunalr equires
interference?
12. Re. point No.1:
Since the issue involves an interplay between
Section 12(4) of the Act, Rule 14-A of the Rules and
discretion of the competent authority/disciplinary
authority, the relevant provisions are required to be
extracted for the purpose of ready reference.
Section 12(1) to (4) of the Act reads as follows:
1. If, after investigation of any action involving a
grievance has been made, the Lokayukta or an
Upalokayukta is satisfied that such action has
resulted in injustice or undue hardship to the
complainant or to any other person, the Lokayukta or
an Upalokayukta shall, by a report in writing,
recommend to the competent authority concerned
that such injustice or hardship shall be remedied or
redressed in such manner and within such time as
may be specified in the report.
2. The competent authority to whom a report is sent
under sub-section(1) shall, within one month of the
expiry of the period specified in the report, intimate
or cause to be intimated to the Lokayukta or the
Upalokayukta the action taken on the report.
If, after investigation of any action involving an
3.
allegation has been made, the Lokayukta or an
Upalokayukta is satisfied that such allegation is
substantiated either wholly or partly, he shall by
report in writing communicate his findings and
recommendations along with the relevant
documents, materials and other evidence to the
competent authority.
4. The Competent authority shall examine the report
forwarded to it under sub-section (3) and within three
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months of the date of receipt of the report, intimate
or cause to be intimated to the Lokayukta or the
Upalokayukta the action taken or proposed to be
taken on the basis of the report.
5. If the Lokayukta or the Upa-lokayukta is satisfied
with the action taken or proposed to be taken on his
recommendations or findings referred to in sub-
sections (1) and (3), he shall close the case under
information to the complainant, the public servant
and the Competent Authority concerned; but where
he is not so satisfied and if he considers that the
case so deserves, he may make a special report
upon the case to the Governor and also inform the
Competent Authority concerned and the
complainant.
In terms of the afore-extracted provisions of the Act,
Subsection (1) of Section 12 of the Act vests
consideration of a complaint involving a grievance which
has resulted in injustice or undue hardship to the
complainant or to any other person, a report is to be
submitted to the competent authority.
Sub-section (3) of Section 12 of the Act revolves
around a complaint involving an allegation and upon
being satisfied that such allegation is either wholly or
partly substantiated, report shall be made to the
competent authority with the recommendations along with
relevant documents, materials and other evidence for
further action.
13. It is after the receipt of the report under
Section12(3) of the Act, the competent authority is
required to examine the report forwarded to it under
Section 12(3) of the Act and action taken or proposed to
be taken on the basis of the report, should be
communicated to the Lokayukta by the competent
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authority within three months. In terms of Section 12(4)
of the Act, the competent authority has to examine the
report forwarded to it under Section 12(3) and intimate or
cause to be intimated the action taken or proposed to be
taken on the basis of the said report of the Lokayukta
under Section 12(3). Section 12(5) of the Act comes into
play in the event the action taken is to the satisfaction of
the Lokayukta or the Upa Lokayukta, he shall close the
case under information to the complainant, the public
servant and the Competent Authority concerned, or if it is
not satisfied and if it is so considered by the Lokayukta or
the Upa Lokayukta may, make a special report to the
Governor. Section 12(7) of the Act further provides that
on receipt of a report under Section 12(5) or annual report
under Section 12(6), a Governor shall cause a copy
thereof together with an explanatory memorandum to be
laid before each house of the State Legislature. The
issue, in the instant case, is whether there has been
compliance with the provisions of the afore-extracted
sections in particular of Section 12(4) of the Act and qua
the facts obtaining in the case on hand.
14. One Lingaraju registered a complaint before
the KNNL on 1.4.2013 alleging that Smt. Mahananda has
constructed her house on a civic amenity site and a
notice was issued by the KNNL on 10.11.2006 and there
was no reply to the notice or any action by the KNNL
against Smt. Mahananda for such construction. It was
also sought in the complaint that in the event it is found
that she has constructed a house in the civic amenity site,
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it should be demolished and a park should be
constructed.
15. On 7.6.2013, the Assistant Executive
Engineer examining the complaint of Sri Lingaraju, replied
that they would examine by conducting survey and if it is
found that the house is constructed on a civic amenity
site, it would be demolished and a park would be put in its
place.
16. To a query by the petitioner, as to whether
the alleged property had been transferred to the
panchayat or still remained with KNNL, the KNNL
communicated on 5.2.2015, that the papers are put up for
transferring the property to the Panchayat but the
decision to transfer the same is not yet taken and the
property still remains under the control of the KNNL.
17. The learned Counsel appearing for the
KNNL was also directed to seek information as to
whether the property had been transferred from the KNNL
to the Panchayat, and on instructions and verification, the
learned Counsel submitted that the property is still with
KNNL and is not yet transferred to the jurisdictional
Panchayath.
18. The petitioner, being a PDO of
Gadilingadalli Grama Panchayath, could not have even
thought of acting against a property that did not come
under his jurisdiction. Notwithstanding the clear
information furnished to Lingaraju, Lingaraju lodged a
complaint before Lokayukta on 14.5.2015. The form of
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the complaint and the letter communicated did not
disclose any allegation against the petitioner. It was his
grievance that, on 7.6.2013, a notice had been issued to
Smt. Mahananda and nothing had been done thereafter,
and vaguely states that the PDO and the Assistant
Executive Engineer have colluded in not taking any action
to demolish the house. A notice was issued to the
petitioner, enclosing the complaint, to which the petitioner
had replied. It appears that the Lokayukta without
considering the reply submitted by the petitioner, a report
under Sub-section (3) of Section 12 of the Act was sent to
the competent authority for entrustment of enquiry to the
nd
hands of the 2 respondent-Lokayukta.
19. It is after this, the disciplinary
authority/competent authority is required to take a call
under Section 12(4) of the Act of entrusting the enquiry
under Rule 14-A of the Rules. Sub-section (3) of Section
12 mandates that report of the Lokayukta along with his
findings, recommendations, relevant documents,
materials and other evidence be forwarded to the
competent authority. The gist of the report under Section
12(3) of the Act has found its place in the order of
nd
entrustment of the enquiry to the hands of the 2
respondent-Lokayukta and is extracted hereunder for the
purpose of ready reference.
1. “An investigation was taken up undersection 9 of the
Karnataka Lokayukta Act, on the basis of complaint
filed by shriLingaraju S/o Suryakanthhuli, Channur,
Chincholi Taluk, Kalaburagi District (hereinafter
referred to as ‘Complainant’ for short) against (1)
Shri.Nagendrappa S/o Sharanappa, Assistant
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Engineer, Lower Bund Mullamari Project Sub –
Division, Chimanachoda, Chincholi Taluk, Kalaburgi
and (2) Shri.Sanju Kumar, PDO,
GandilingadhahalliGrama Panchayath, Chincholi
Taluk, Kalaburgi District (hereinafter referred to as
‘respondents 1 & 2 respectively’ for short).
2. The allegation in the complaint is that the
respondents have allowed on Smt. Mahananda W/o
AdeppaHuli to construct a house in the land reserved
for park near Chennur Rehabilitation Centre.
3. The respondents have offered comments. The
respondents have admitted the construction put up
by the said Smt. Mahananda W/o Adeppa Huli in the
land reserved for park.
4. The respondents have not taken effectivesteps to
remove the construction made on the land reserved
for public park. The comments of respondents are
not satisfactory. There is a prima – facie dereliction
of duty on the part of the respondents. Therefore, he
respondents have failed to maintain absolute
integrity, devotion to duty and have acted in a
manner which is unbecoming of a Government
Servant for which they have made themselves liable
for departmental action.”
20. Based upon this, the Government entrusted
nd
the enquiry to the hands of the 2 respondent-Lokayukta
on 7.1.2017 and a charge sheet was issued by the
nominated Additional Registrar of Enquiry, Karnataka
Lokayukta on 13.1.2017. The entire records pertaining to
the enquiry was placed before us by the learned Counsel
nd
for the 2 respondent-Lokayukta and it is necessary to
extract the same from the inception till the issuance of the
charge sheet. Relevant extracts of the order sheets
pertaining to the case on hand maintained by the
Karnataka Lokayukta, read as follows:
“ 1. Complaint stands
Allotted to : DRE – 3
SCRUTINY AND OPINION
Examine and put up on or before
18.05.2015.
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Sd/-
Upalokayukta – 1
14.05.2015
2) I/c – DRE – 3
prays time to verify and put up preliminary scrutiny note
by 28.06.2015.
Submitted for kind orders
Sd/-
18.05.2015
I/c – DRE – 3
xxxx
3)
4) xxxx
5) I/c DRE – 3
The respondents have not submitted comments. The
postal ack. is also not returned by the postal authority.
Hence My Lord if approved, delivery status may be
secured through postal website and in the mean time
comments of respondents may be awaited by 24.10.2015.
Submitted for kind orders
Sd/-
22/7/15
I/c DRE –
3
xxxx
6)
7) I/c DRE – 3
The respondents have not submitted comments.
Hence my Lord, if approved, a reminder may be sent to
respondents and comments may be awaited by 13.01.2016.
Submitted for kind orders
Sd/-
26/10
I/c DRE – 3
8) xxxx
9) xxxx
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10) DRE – 3
The respondent No.1 has submitted comments by
denying the complaint allegation whereas the respondent No.2
has not submitted comments. But the reminder was sent to
him by an ordinary post.
Hence, my Lord if approved, one more reminder may be
sent to respondent No.2 through our police at Gulbarga and his
comments may be awaited by 04.04.2016.
Submitted for kind orders.
Sd/-
13.1.2016
DRE – 3
11) xxxx
xxxx
12)
13) xxxx
14) DRE – 3
The PI, KLA, Kalaburgi has submitted a letter dated
01.02.2016 requesting one more time to serve the
endorsement on respondent.
Hence my Lord, if approved, time may be granted to PI,
KLA, Kalaburgi to serve the notice on respondent and served
copy from the PI and comments from the respondent may be
awaited by next date of hearing.
Submitted for kind orders.
Sd/-
4/2/16
DRE – 3
15) xxxx
16) xxxx
xxxx
17)
18) DRE – 3
The respondent No.2 has submitted his comments dated
25.02.2016 by denying the complaint allegations. The
respondent no.1 has already submitted his comments.
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Hence, my lord, if approved, rejoinder may be called for
from the complainant by forwarding copy of comments of
respondents 1 and 2 and same may be awaited.
Submitted for kind orders.
Sd/
2/3/16.
DRE – 3
19) xxxx
20) xxxx
xxxx
21)
22) DRE – 3
The complainant has not submitted rejoinder. The Postal
Ack. is also not returned by the postal authorities.
Hence, my lord, if approved, the complainant may be
reminded over phone and the rejoinder of the complainant may
be awaited.
Submitted for kind orders
Sd/-
05.04.16.
DRE – 3
xxxx
23)
24) xxxx
DRE – 3
25)
When contacted the complainant over phone to
submit rejoinder. The complainant has replied that he has
not received this office endorsement and copy of
comments of respondents.
Hence, my lord, if approved, a fresh notice may be
sent to complainant through SP, KLA, Kalaburgi and his
rejoinder may be awaited.
Submitted for kind orders.
Sd/-
23/5/16.
DRE-3
26) Hon’ble Upalokayukta -1
Send notice directly to the address of the complainant for
rejoinder by 20.7.16.
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Sd/-
23.05
27) xxxx
28) xxxx
29) DRE- 3
The RPAD cover sent to complainant calling his
rejoinder is returned unserved with the postal endorsement
as ‘the party is no in the station, returned to sender.’
Hence, My Lord, if approved a fresh endorsement may
be sent to complainant through Lokayukta Police at
Kalaburagi and his rejoinder may be awaited.
Submitted for kind orders
Sd/-
20.7.16
DRE – 3
30) xxxx
31) xxxx
32) DRE – 3
It is respectfully submitted that due to paucity of time,
Final Scrutiny Note could not be prepared and submitted
today in this case.
33) Therefore, My Lord, if approved, time may kindly be
granted to put up Final Scrutiny Note.
Submitted for kind orders.
Sd/
26.8.16.
DRE – 3
34) xxxx
xxxx
35)
36) DRE – 3
It is respectfully submitted that due to paucity of time,
Final Scrutiny Note could not be prepared and submitted
today in this case.
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37) Therefore, My Lord, if approved, time may kindly be
granted to put up Final Scrutiny Note.
Submitted for kind orders.
Sd/
22.9.16
DRE – 3
38) xxxx
xxxx
39)
40) DRE – 3
It is respectfully submitted that due to paucity of time,
Final Scrutiny Note could not be prepared and submitted today
in this case.
Therefore, my lord, if approved, time may kindly be
41)
granted to put up Final Scrutiny Note.
Submitted for kind orders.
Sd/-
02.11.16
DRE – 3
Hon’ble Upalokayukta -1
42)
The complainant has alleged that respondents have
allowed one Smt.Mahananda W/o AdeppaHuli to construct
a house in the land reserved for park near Chennur
Rehabilitation Centre.
43) The respondents have offered comments. The
respondents have admitted the construction put up
by the above Smt. Mahananda W/o AdeppaHuli in the
land reserved for park.
44) The respondents have not taken effective steps
to remove the construction made on the land
reserved for public park. There is prima facie
dereliction of duty on the part of respondents. Put
up draft of report under section 12(3) of Karnataka
Lokayukta Act, in terms of this FSN by 18.11.2016.
Sd/- 5/11
(JUSTICE N. ANANDA)
Upalokayukta – 1
State of Karnataka, Bengaluru.
45) DRE-3
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Draft report under Sec.12(3) of the Karnataka
Lokayukta Act, 1984 has been prepared and submitted
for kind perusal and approval.
Submitted for kind orders
Sd/-
18.11.16.
DRE-3
46) xxxx
47) DRE – 3
Fair copy of report under Sec.12(3) of the
Karnataka Lokayukta Act, 1984 as approved by his
Lordship has been prepared and submitted for kind
perusal and signature.
Submitted for kind orders.
Sd/-
03.12.16
DRE-3
48) xxxx
DRE – 3
49)
The Acknowledgement for having received the
report under Sec.12(3) of the Karnataka Lokayukta Act,
1984 along with required records by the office of
Secretary to Gvoernment, RDPR & Secretary to
Government, Water Resource Department are
submitted for your honour’s kind perusal.
The Competent Authorities have not issued
compliance as required under Sec.12(4) of the
Karnataka Lokayukta Act, 1984.
50) Hence, My Lord, if
approved, Government Order from the
Competent – Authorities may be awaited.
Submitted for kind orders.
Sd/-
7.12.2016
DRE – 3
51) xxxx
52) DRE – 3
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The Competent Authority has issued
Government Order vide No. RDP 863 GPS 2016,
Bengaluru dated 07.01.2017 to hold departmental
enquiry against respondent No.2 / Shri. Sanju Kumar,
PDO, Gadilingadhalli, Chincholi Taluk, Kalaburgi
District (Date of retirement 30.06.2035). The
Government Order issued by the Competent Authority
is in accordance with the recommendation made in the
report under Sec. 12(3) of the Karnataka Lokayukta
Act, 1984.
Copies of the report under Sec.12(3) of the
Karnataka Lokayukta Act, 1984 dated 03.12.2016 &
Government Order dated 07.01.2017 are submitted
herewith for the favour of issuing nomination order.
In this case, no nomination order has been issued
earlier.
Further, with respect to non receipt of Government
order pertaining to respondent No.1, a separate note will
be submitted before the Hon’ble Upalokayukta – 1 seeking
further orders.
Sd/-
12.1.17.
DRE-3
53) Hon’ble Registrar
Put up draft nomination proceedings.
Sd/-
13/1
Registrar
54) In view of the submission made by the Scrutiny
Officer i.e., DRE-3, in Pre-paras, draft proceedings in
No.UPLOK-1/DE/61/2017, for nominating the Inquiry
Officer is submitted in the file for kind perusal.
Sd/- 13.01.2017
Gazetted Assistant
55) Hon’ble Registrar
The Additional Registrar of Enquiries – 3 may
kindly be nominated as the Inquiry Officer.
Accordingly, draft proceedings are placed in the file for
kind approval.
Sd/- 13/1
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Registrar
Hon’ble Upalokayukta
56)
ARE – 3 – is nominated
Sd/- 13/1
Upalokayukta,
State of Karnataka.
Registrar
57)
Copies of Nomination proceedings signed.
Sd/- 13/1
Registrar
58) DRE – 3
In this case 12(3) report was sent against
respondents 1 & 2.
The Competent Authority of respondent No.2 has
issued Government Order. Based on the said Government
Order, nomination order has already been issued and
departmental enquiry against him is under process.
With respect to respondent No.1 who is an official
belongs to Water Resource Department, the Competent
Authority has not issued Government Order to hold
departmental enquiry against him.
59) Hence, my lord, if approved, a reminder may
be sent to the Competent Authority of respondent
no.1 and G.O. against him may be awaited.
Submitted for kind orders.
Sd/-8.2.17
DRE – 3
xxxx
60)
61) DRE – 3
In this case Nomination Order vide No.Uplok-
1/DE/61/2017 has already been issued to hold
departmental inquiry against respondent No.2. The said
enquiry has been entrusted to ARE - 3.
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Now, the Competent Authority of respondent
no.1 has issued Government Order vide No. WRD 193
SDE 2016, Bengaluru dated 13.02.2017 to hold
departmental enquiry against Shri.Nagendrappa S/o
Sharanappa, Assistant Engineer, Lower0 Bund
Mullamari Project sub-Division, Chimmanachola
(respondent no.1). The Government Order issued by
the Competent Authority is in accordance with the
recommendation made in the report under Sec. 12(3) of
the Karnataka Lokayukta Act, 1984.
Copies of the report under Sec.12(3) of the
Karnataka Lokayukta Act, 1984 dated 03.12.2016 &
Government Order dated 13.02.2017 along with copy of
earlier nomination order are submitted herewith for the
favour of issuing nomination order.
The date of retirement of respondent no.1 is
31.05.2030.
Sd/-
DRE – 3
1.3.17.
62) Hon’ble Registrar
Put up draft nomination proceedings.
Sd/- 3/3
Registrar
63) In view of the submissions made by the Scrutiny
Officer i.e., DRE-3, at pre-paras, draft proceedings in
No.UPLOK-1/DE/340/2017, for nominating the Inquiry
Officer is submitted in the file for kind perusal.
Sd/-
Sr.J.W
03.03.17
64) Registrar
The Additional Registrar of Enquiries – 3 may kindly be
nominated as the Inquiry Officer. Accordingly, draft
proceedings are placed in the file for kind approval.
Sd/-
Registrar
65) Hon’ble Upalokayukta
ARE – 3 – is – nominated
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Sd/-
Upalokayukta
State of Karnataka
66) Registrar
Copies of Nomination Proceedings signed.
Sd/- 4/3
Registrar
DRE – 3
67)
In view of the nomination orders vide No.UPLOK-
1/DE/61/2017 dtd.13.01.2017 & UPLOK-1/DE/340/2017dtd.
03.03.2017, records have been sent to ARE-3 to proceed with
the enquiry against the respondents.
68) Hence, kind orders are sought to send this
complaint file to records under ‘B’ disposal
Submitted for kind orders.
Sd/-
13.3.17
DRE – 3
xxxx ”
69)
Two glaring facts emerge from the entire order sheet
nd
maintained by the office of the 2 respondent-Lokayukta
concerning the enquiry against the petitioner would
clearly indicate that the Lokayukta insisted upon the
enquiry to be entrusted to its hands and at note No.61, it
is clearly indicated that the competent authority had
issued the Government Order entrusting the enquiry to
the Lokayukta and the Government Order issued was in
accordance with the recommendation made in its report
under section 12(3) of the Act.
21. Thus, it becomes clear that no discretion
isexercised by the competent authority to take a decision,
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as to whether the enquiry has to be entrusted into the
nd
hands of the 2 respondent-Lokayukta or otherwise. It is
a clear case of the competent authority abdicating its
nd
discretion to an external agency like the 2 respondent-
Lokayukta.
22. Sub-section (4) of Section 12 of the Act
casts aduty upon the competent authority to examine the
report forwarded to it and then take a decision after such
examination. A bare perusal of the order entrusting the
enquiry under Rule 14-A of the Rules depicts flagrant
violation of Section 12(4) of the Act as the competent
authority has not even examined as required under
Section 12(4) of the Act as to whether enquiry requires to
be entrusted to Lokayukta or is there any grievance
worthwhile to hold an enquiry again the petitioner. All that
the order dated 7.1.2017 would say is the extract of the
findings in the report to the Lokayukta under Section
12(3) of the Act and the fact that the Upa-Lokayukta has
sought enquiry to be entrusted to itself and in those
circumstances, the enquiry was entrusted. Perusal of
the order sheet would clearly indicate that the reminders
nd
were sent to the competent authority by the 2
respondent to entrust the enquiry to itself.
23. The unequivocal fact that would emerge,
fromour consideration above, is that the disciplinary
authority/competent authority has surrendered its
nd
discretion of decision making to the dictates of the 2
respondent-Lokayukta thereby abdicating its duty cast
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under Section 12(4) of the Act. Abdication of ones
discretion in decision making and capitulating to the
dictates of the external agency amounts to itself
nonapplication of mind in view of the law laid down by the
Hon'ble Supreme Court in case of STATE OF U.P. VS.
MAHARAJA DHARMANDER PRASAD SINGH reported
in (1989)2 SCC 505, wherein the Hon'ble Supreme Court
at paragraph 55 has held as follows :
55. It is true that in exercise of powers of revoking or
cancelling the permission is akin to and partakes of a quasi-
judicial complexion and that in exercising of the former power
the authority must bring to bear an unbiased mind, consider
impartially the objections raised by the aggrieved party and
decide the matter consistent with the principles of natural
justice.
The authority cannot permit its decision to be influenced by
the dictation of others as this would amount to abdication and
surrender of its discretion. It would then not be the authority's
discretion that is exercised, but someone else's. If an
authority “hands over its discretion to another body it acts
ultra vires”. Such an interference by a person or body
extraneous to the power would plainly be contrary to the
nature of the power conferred upon the authority. De Smith
sums up the position thus:
“The relevant principles formulated by the courts may be
broadly summarised as follows. The authority in which a
discretion is vested can be compelled to exercise that
discretion, but not to exercise it in any particular manner. In
general, a discretion must be exercised only by the authority
to which it is committed. That authority must genuinely
address itself to the matter before it: it must not act under the
dictation of another body or disable itself from exercising a
discretion in each individual case. In the purported exercise
of its discretion it must not do what it has been forbidden to
do, nor must it do what it has not been authorised to do. It
must act in good faith, must have regard to all relevant
considerations and must not be swayed by irrelevant
considerations, must not seek to promote purposes alien to
the letter or to the spirit of the legislation that gives it power
to act, and must not act arbitrarily or capriciously. Nor where
a judgment must be made that certain facts exist can a
discretion be validly exercised on the basis of an erroneous
assumption about those facts. These several principles can
conveniently be grouped in two main categories: failure to
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exercise a discretion, and excess or abuse of discretionary
power. The two classes are not, however, mutually
exclusive.”
In a subsequent judgment, the Hon’ble Supreme Court in
the case ANIRUDHSINHJI KARANSINHJI JADEJA V.
STATE OF GUJARAT reported in (1995) 5 SCC 302 at
paragraphs 12 to 14 has held as follows :
12. Reference may be made in this connectionto Commr. of
Police v. Gordhandas Bhanji [1952 SCR 135 : AIR 1952 SC
16] , in which the action of Commissioner of Police in
cancelling the permission granted to the respondent for
construction of cinema in Greater Bombay at the behest of
the State Government was not upheld, as the rules
concerned had conferred this power on the Commissioner,
because of which it was stated that the Commissioner was
bound to bear his own independent and unfettered judgment
and decide the matter for himself, instead of forwarding an
order which another authority had purported to pass.
13. It has been stated by Wade and Forsyth inAdministrative
Law, 7th Edn. at pp. 358-59 under the heading “Surrender,
Abdication, Dictation” and sub-heading “Power in the wrong
hands” as below:
“Closely akin to delegation, and scarcely distinguishable from
it in some cases, is any arrangement by which a power
conferred upon one authority is in substance exercised by
another. The proper authority may share its power with
someone else, or may allow someone else to dictate to it by
declining to act without their consent or by submitting to their
wishes or instructions. The effect then is that the discretion
conferred by Parliament is exercised, at least in part, by the
wrong authority, and the resulting decision is ultra vires and
void. So strict are the courts in applying this principle that
they condemn some administrative arrangements which
must seem quite natural and proper to those who make
them….
Ministers and their departments have several times fallen foul
of the same rule, no doubt equally to their surprise….”
14. The present was thus a clear case ofexercise of power
on the basis of external dictation. That the dictation came on
the prayer of the DSP will not make any difference to the
principle. The DSP did not exercise the jurisdiction vested in
him by the statute and did not grant approval to the recording
of information under TADA in exercise of his discretion.
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24. In terms of the law declared by the
Hon'bleSupreme Court in the afore extracted judgments,
it becomes unmistakably clear that discretion, which is
surrendered to an external agency, would itself suffer
from the vice of non-application of mind.
25. The report under Section 12(3) of the Act is
nd
communicated by the 2 respondent-Lokayukta to the
competent authority and in terms of the report,
entrustment of enquiry was ordered to the hands of the
nd
2 respondent under Section 12(4) of the Act. The
statute mandates examination of the material before the
enquiry is entrusted. The word ‘examine’ means to ‘test
th
critically’ as defined in the Major Law Lexicon 4 edition
2010 Lexis-Nexis-Butterworth-Wadhwa-Nagpur at page
2455. The words ‘consider’ and ‘examine’ are synonyms
rd
(see Roget’s International Thesaurus, 3 Edition Oxford
Book Company, page No.765 and 316). The importance
of the word consider and its purport has been elucidated
by the Hon’ble Supreme Court in the case of BARIUM
CHEMICALS LTD AND ANOTHER VS. SH. A. J. RANA
AND OTHERS reported in (1972)1 SCC 240 wherein the
Hon'ble Supreme Court has interpreted the word
‘consider’ which is nothing but examination. In
paragraphs 14 and 15 of the aforesaid judgment, the
Hon'ble Supreme Court has held as follows:
14. The words “considers it necessary”postulate that the
authority concerned has thought over the matter deliberately
and with care and it has been found necessary as a result of
such thinking to pass the order. The dictionary meaning of
the word “consider” is “to view attentively, to survey,
examine, inspect (arch), to look attentively, to contemplate
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mentally, to think over, meditate on, give heed to, take note
of, to think deliberately, bethink oneself, to reflect” (vide
Shorter Oxford Dictionary). According to Words and Phrases
— Permanent Edition Vol. 8-A “to consider” means to think
with care. It is also mentioned that to “consider” is to fix the
mind upon with a view to careful examination; to ponder;
study; meditate upon, think or reflect with care. It is therefore,
manifest that careful thinking or due application of the mind
regarding the necessity to obtain and examine the
documents in question is sine qua non for the making of the
order. If the impugned order were to show that there has
been no careful thinking or proper application of the mind as
to the necessity of obtaining and examining the documents
specified in the order, the essential requisite to the making of
the order would be held to be non-existent.
15. A necessary corollary of what has beenobserved above
is that mind has to be applied with regard to the necessity to
obtain and examine all the documents mentioned in the
order. An application of the mind with regard to the necessity
to obtain and examine only a few of the many documents
mentioned in the order, while there has been no such
application of mind in respect of the remaining documents,
would not be sufficient compliance with the requirements of
the statute. If, however, there has been consideration of the
matter regarding the necessity to obtain and examine all the
documents and an order is passed thereafter, the Court
would stay its hand in the matter and would not substitute its
own opinion for that of the authority concerned regarding the
necessity to obtain the documents in question.
Subsequently, the Hon’ble Supreme Court in the case of
LIC Vs. A. MASILAMANI, reported in (2013) 6 SCC 530
at paragraph 19 has held as follows :
19. The word “consider” is of great significance. The
dictionary meaning of the same is, “to think over”, “to regard
as”, or “deem to be”. Hence, there is a clear connotation to
the effect that there must be active application of mind. In
other words, the term “consider” postulates consideration of
all relevant aspects of a matter. Thus, formation of opinion by
the statutory authority should reflect intense application of
mind with reference to the material available on record. The
order of the authority itself should reveal such application of
mind. The appellate authority cannot simply adopt the
language employed by the disciplinary authority and proceed
to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh
Kumar [(2006) 11 SCC 147 : (2007) 1 SCC (L&S) 388] and
BhikhubhaiVithlabhai Patel v. State of Gujarat [(2008) 4 SCC
144 : AIR 2008 SC 1771] .)
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If the case on hand is examined in terms of the law
declared by the Hon’ble Supreme Court as extracted
herein above, it unequivocally demonstrates non-
application of mind by the competent authority. It is
apposite to refer to a Judgment of the learned Division
Bench of this Court in an identical case involving a
challenge to the order of entrustment in the case of
KARNATAKA LOKAYUKTHA Vs. H.N. NIRANJAN &
ANOTHER reported in 2017(6) KLJ 80 , wherein it is held
as follows :
3. It appears that the tribunal has exercised the power of
allegiance breach and noncompliance to the provisions of
section 12(4) of the Karnataka Lokayukta act, 1984. The
relevant reasoning recorded by the tribunal in the impugned
order at para-7 reads as under: One other ground urged on
behalf of the applicant is that there is non-compliance of
Section 12(4) of the Lokayukta Act by the first respondent
while taking further action on the recommendation made by
the Hon’ble UpaLokayukta in the report under Section 12(3)
of the Lokayukta Act. Section 12(4) o the Lokayukta Act
reads as follows:-
“ The Competent Authority shall examine the report forwarded
to it under subsection (3) and within three months of the date
of receipt of the report, intimae or cause to be intimated to
the Lokayukta or the Upa-Lokayukta the action taken or
proposed to be taken on the basis of the repot.”
Inviting our attention to Section 12(4) of the Lokayukta Act, it
is contended by the learned Counsel for the applicant that a
reading of he impugned order dated 12.11.2013 prima facie
indicates that there is non-compliance for Section 12(4) of
the Karnataka Act by the first respondent, for the reason that
the first respondent has failed to examine the report
forwarded under Section 12(3) of the Lokayukta Act before
ordering departmental enquiry in the matter. In the preamble
to the Government Order dated 12.11.2013, paras – 1 and 2
relate to the substance of the recommendation made by the
UpaLokayukta. In para – 3 of the Government Order, it is
stated that as recommended by the Hon’ble UpaLokayukta, it
has been decided to hold disciplinary proceedings against
the applicant and to entrust the same to UpaLokayukta. It
has not been mentioned in the impugned order dated
12.11.2013, that the first respondent has examined the report
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sent under Section 12(3) of the Lokayukta Act. When the
statute mandates examination of the report sent under
Section 12(3) of the Lokayukta Act, it is the bounden duty of
the Competent Authority to which the said report is sent, to
examine the report before taking any decision on the
recommendation made in the report under Section 12(3) of
the Lokayukta Act. The object of examination of the report
sent under Section 12(3) of the Lokayukta Act is to ensure
that the public servant concerned is not subjected to any
unwarranted disciplinary action. When the statute mandates
examination of the report, the Competent Authority has to
comply such mandates and failure in that regard invalidates
the decision taken on such report. A reading of the
impugned Government Order dated 12.11.2013 no where
indicates that the first respondent has examined the report
sent under Section 12(3) of the Lokayukta Act. It is only
stated that as recommended by the Hon’ble UpaLokayukta, it
has been decided to hold disciplinary proceedings and to
entrust the same to UpaLokayukta concerned. It can be
certainly said that the omission of the first respondent in this
regard, which amount to non-compliance of the mandatory
requirement of Rule 12(4) of the Lokayukta Act, has resulted
in the vitiation of the order dated 12.11.2013 passed by the
first respondent. We have to note in this case that in the
complaint filed before the Karnataka Lokayukta in the matter,
there was no allegation against the applicant the name of the
applicant figures in the case for the first time in the report
submitted by the Technical Wing of the Karnataka Lokayukta.
It Is Submitted On Behalf Of the Applicant That the Assistant
Executive Engineer concerned was the implementation
officer as regard to the concerned work and that the applicant
cannot be held to be liable for any irregularity in the matter.
The contentions of the applicant in this regard in the above
facts are required to be examined by the first respondent
while considering the recommendation made by the Upa-
Lokayukta in the report under section 12(3) of the Lokayukta
act. It is for the said reason, the competent authority
concerned has been mandated to examine the report
forwarded to it under section 12(3) of the Lokayukta act. At
the cost of repetition, we may point out that nowhere in the
impugned order report under section 12(3) of the Lokayuktha
act has been examined by the first respondent before
passing the order dated 12.11.2013 directing initiation of
departmental inquiry against the applicant. The Competent
Authority has blindly accepted the recommendation made in
the report sent under section 12(3) of the Lokayukta Act and
directed initiation of inquiry against the applicant. Having
regard to the same, the order of initiation of departmental
inquiry against the applicant and entrustment of the inquiry to
the Hon’ble Upa-Lokayukta as per order dated 12.11.20 13
will have to be quashed. Consequently, all further
proceedings pursuant to the said order, particularly issuance
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of articles of charge dated 20.01.2014 cannot be sustained.
However, the first respondent will be at liberty to examine the
report and take appropriate action in the matter.”
5. It is not the case of the petitioner herein, that the State
Government has independently considered the matter under
section 12(4) Of the Lokayukta Act and thereafter had
passed the order. But the only contention raised by the
learned counsel appearing for the petitioner is that in the
preamble of the order the State Government has referred to
the contents of the recommendation of the Lokayukta and
therefore it may be considered as deemed consideration by
the State Government and resultantly compliance to section
12(4) of the Act.
6. We are afraid that such contention can be accepted.
What is required to be considered as per the provisions of
12(4) of the act is consideration and application of mind by
the Government for concurring with the opening of the
Lokayukta, for initiation of inquiry. When There Is No
Examination of the Case by the Government under Section
12(4) of the Act. It cannot be said that the tribunal had
committed any error which may call for any interference by
this Court.
In terms of the facts narrated hereinabove, perusal of the
entire order sheet pertaining to the case and the law
declared in the afore-extracted judgments, the order of
entrustment impugned, entrusting the enquiry to the
nd nd
hands of the 2 respondent to the hands of the 2
respondent - Lokayukta suffers from non application of
mind and is vitiated. The point is answered accordingly.
26. Re. Point No.2:
To consider this point in terms of the submission
made by learned Counsel for the respondent
No.2Lokayukta, the provisions under which the Lokayukta
would get jurisdiction to hold an enquiry against a
Government Servant requires to be noticed. The relevant
Rule i.e. Rule 14-A of the Rules is extracted hereunder
for the purpose of ready reference.
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“ Rule 14-A: Procedure in cases entrusted to the
Lokayukta: (1) The provisions of sub-rule (2) shall,
notwithstanding anything contained in rule 9 to 11A and 13,
be applicable for purposes of proceeding against
Government Servants whose alleged misconduct has been
investigated into by the Lokayukta or an Upalokayukta either
under the provisions of the Karnataka Lokayukta Act, 1984 or
on a reference from Government. 3 [or where offences
alleged against them punishable under the Prevention of
Corruption Act, 1947, or the Prevention of Corruption Act,
1988 has been investigated by the Karnataka Lokayukta
st
Police before 21 day of December, 1992.]
(2) (a) Where on investigation into any allegation
against –
(i) a member of the State Civil ServicesGroup-A or
Group-B; or
(ii) a member of the State Civil ServicesGroup-A or
Group-B and a member of the State Civil Services Group-C
or Group-D; or
(iii) a member of the State Civil ServicesGroup-C or
Group-D, [the Lokayukta or the Upa-lokayukta or, (before the
twenty first day of December, 1992), the Inspector General of
Police of the Karnataka Lokayukta Police is of the opinion],
that disciplinary proceedings shall be taken, he shall forward
the record of the investigation along with his
recommendation to the Government and the Government,
after examining such record, may either direct an inquiry into
the case by the Lokayukta or the Upalokayukta or direct the
appropriate Disciplinary Authority to take action in
accordance with Rule 12.
Where it is proposed to hold an inquiryinto a case
(b)
under clause (a) the enquiry may be conducted either by the
Lokayukta or the Upalokayuka, as the case may be, or an
officer on the staff of the Lokayukta authorised by the
Lokayukta, or the Upalokayukta to conduct the inquiry;
Provided that the inquiry shall not be conducted by
an officer lower in rank than that of Government servant
against whom it is held.
Provided further that an inquiry against a
Government Servant not lower in rank than that of a Deputy
Commissioner shall not be conducted by any person other
than the Lokayukta or the Upalokayukta or an Additional
Registrar (Inquiries).
Provided also that an officer on the staff of the
Lokayukta authorised to conduct an inquiry under clause (b)
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shall not have the power to appoint another officer to conduct
it wholly or in part.
(c) The Lokayukta, the Upalokayukta orthe Officer
authorised under clause (b) to conduct an inquiry shall
conduct it in accordance with the provisions of rule 11 in so
far as they are not inconsistent with the provisions of this rule
and for that purpose shall have the powers of the Disciplinary
Authority referred to in the said Rule.
(d) After the inquiry is completed, therecord of the
case along with the findings of the Inquiring Officer and the
recommendation of the Lokayukta or the Upalokayukta, as
the case may be, shall be sent to the Government.
(e) On receipt of the record under clause(d) the
Government shall take action in accordance with the
provisions of 1 [xxx] Rule 11-A and in all such cases the
Government shall be the Disciplinary Authority competent to
impose any of the penalties specified in Rule 8.
(3) Nothing in sub-rule (1) shall be applicable to
members of the Karnataka Judicial Service or Government
servants under the administrative control of such members or
of the High Court of Karnataka.
(Explanation.- In this rule, the expressions
'Lokayukta' and 'Upalokayukta' shall respectively have the
meaning assigned to them in the Karnataka Lokayukta Act,
1984, and the expression 'Karnataka Lokayukta Police'
means the Police Wing established under Section 15 of the
Karnataka Lokayukta Act, 1984 and includes, so far as may
be, the corresponding establishment under the Karnataka
State Vigilance Commission Rules, 1980, and the
Expression ‘Inspector General of Police’ shall be construed
accordingly.
27. Relying upon the afore-extracted
provisions,learned Counsel for the respondent No.2 in
particular Rule 14-A (2) (a) (iii) would contend that if the
investigation is conducted by the Lokayukta, the
Government has no other option, but to entrust the
enquiry to the Lokayukta.
28. We are unable to accept the contention.
Rule14-A(2) (a) (iii) cannot be read in isolation, it has to
be read along with the other clauses under Rule 14-A.
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Rule 14-A(1) enumerates classes of cases to which Rule
14-A would apply Sub-Rule (2) commands that record of
investigation should be forwarded by the Lokayukta to the
disciplinary authority with his recommendation and
Government after examining such record shall take a
decision either to entrust the inquiry to the Lokayukta or
Upa-Lokayukta or direct the appropriate authority to
resort to Rule 12 which would be for imposition of a minor
penalty. A further reading of the other clauses would
clearly indicate the purport of the provision relied on by
the learned counsel for the second respondent, Clauses
(d) and (e) of Rule 14-A would clearly indicate that after
the inquiry is completed, the record of the case along with
the findings of the inquiring officer and the
recommendation of the Lokayukta or the Upa Lokayukta
as the case may be, Shall be sent to the Government,
clause (e) mandates that on receipt of the record under
clause (d) the Government shall take action in
accordance with the provisions of Rule 11-A and in all
such cases the Government shall be the disciplinary
authority competent to impose any of the penalties
specified in Rule 8.
29. A conjoint reading of the provisions
indicated herein above would unequivocally make it clear
that the discretion is available to the Government to
entrust the inquiry to the second respondent or otherwise
in case the Government is of the opinion that it is a case
only for imposition of minor penalty under Rule 12, where
there is no necessity to hold regular departmental inquiry,
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it may advise the appropriate disciplinary authority to take
action for imposition of such minor penalty, this provision
would not mean that when the disciplinary authority is of
the opinion that a major penalty should be imposed or in
all cases where proceedings under minor penalties are
not taken up, the inquiry has to be entrusted to the
Lokayukta. This interpretation of the second respondent
that the inquiry has to be entrusted to the Lokayukta,
once the investigation is conducted by them and a report
is submitted to the Government under Section 12(3)
would render the power of the Government or the
discretion of the Government being completely taken
away and rendering the provision nugatory. This is not
the purport of the statute. The law with regard to
discretion as discussed in the preceding paragraphs with
regard to point No.1, would be applicable to this
contention as well. This point is accordingly answered in
favour of the petitioner.
30. Re. Point No.3
The Tribunal, by the impugned order, has rejected
the challenge of the petitioner to the order of entrustment
on the ground that it is premature and the petitioner does
not have a right to question the order of entrustment at
that stage of the proceedings. The Tribunal has followed
the judgment rendered by a Coordinate Bench in Writ
Petition No.104460/2018 and connected cases, by its
order dated 10.09.2018. The facts obtaining in the
aforementioned judgment of learned Division Bench are
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completely distinguishable with the facts obtaining in the
instant case on hand. The Tribunal has failed to notice
that the grounds that were urged before the Tribunal in
the instant case where completely different to the one
considered in the aforementioned judgment. The issue
before the learned Division Bench was not with regard to
non-application of mind by the competent authority at the
time of entrustment of the inquiry to the hands of the
second respondent or that of the abdication of the
decision making power by the competent authority to the
hands of an external agency like that of the second
respondent.
31. The issues in the present case never fell for
consideration before the learned Division Bench in the
writ petition mentioned hereinabove. The Tribunal has
misdirected itself in placing reliance on the judgment of
the coordinate bench without looking into the facts and
issues considered therein. There can be no dispute with
the principle laid down in the judgment of the coordinate
bench following the judgment of the Hon’ble Supreme
Court, on the issue as to whether a writ petition would be
maintained on merits of the charge sheet, but its
applicability qua the facts had to be analysed.
32. Though the charge sheet issued subsequent
to the order of entrustment is under challenge in the
instant writ petition, the principal challenge is to the order
of entrustment and the examination by the Tribunal ought
to have been with regard to the order of entrustment. The
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Tribunal has placed reliance on the judgment of the
coordinate bench without looking into the facts of the
case that was considered by the learned Division Bench.
It is settled principle of law that each case depends on its
own facts and a close similarity between one case and
another is not enough because even a single significant
detail may alter the entire aspect. One additional or
different fact may make a difference between conclusions
in two cases.
33. As stated hereinabove, the facts of the case
before the Tribunal were different from the facts in the
judgment which the Tribunal has placed reliance on. On
the contrary, the finding of the Tribunal runs completely
counter to the law laid down by the by this court in the
case of H.N. Niranjan (Supra), wherein it is clearly
affirmed that the if the order of entrustment does not bear
application of mind, it would sometimes result in
unnecessary proceedings against the Government
servant. Here is also a case, if the proceedings are
permitted to be continued would result in unnecessary
hardship to the petitioner as the property alleged to have
constructed is in civic amenity site, which comes under
the rehabilitation scheme / project of the KNNL and the
petitioner being a PDO of the Gram Panchayat will not
get jurisdiction to demolish the property of another
department unless the property is brought under the
nd
Gram Panchayat. This is an admitted fact by the 2
respondent-Lokayukta and the learned Counsel
appearing for KNNL and the Government that the
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property is yet to be transferred to the hands of the
jurisdictional Grama Panchayat. When the property itself
is not coming under the jurisdiction of the petitioner, there
can be no dereliction of duty, as alleged by the Lokayukta
in its report under Section 12(3) of the Act. If the
petitioner had no duty to perform with regard to the
allegations, it cannot be alleged to be dereliction of his
duty amounting to misconduct. Thus, the Tribunal ought
to have interfered with the order of entrustment dated
7.1.2017 as it was completely contrary to law. In the
peculiar facts of the case, the order of the Tribunal,
impugned herein, warrants appropriate interference.
34. For the aforementioned reasons, we pass
the following:
ORDER
(i) The writ petition is allowed.
(ii) The order of the Tribunal dated order dated
3.10.2019 is set aside and the application
No.2127/2017 is allowed.
(iii) The order of entrustment dated 7.1.2017,
issued by Government/Competent
Authority/Disciplinary Authority and the consequent
charge sheet dated 13.1.2017 are hereby quashed.
(iv) There shall be no order as to costs.”
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6. In the instant case as stated supra, respondent No.1-
State specifically addressed three communications/letters dated
15.10.2022, 30.01.2024 and 12.08.2024 calling for certain
documents from BBMP and despite the same having not been
received by respondent No.1, respondent No.1 specifically passed
the impugned order, which suffers from non application of mind
warranting interference of this Court in the present petition.
7. Under the aforesaid facts and circumstances of the
case, I deem it just and appropriate to allow the petition by issuing
certain directions. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned order dated 08.11.2024 passed by
respondent No.1 is hereby set aside.
iii) Liberty is reserved in favour of respondent No.1 –
State as well as respondent No.2 – BBMP to reconsider the matter
afresh and proceed further in accordance with law.
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iv) It is needless to state that the time spent by the parties
in the present petition shall be excluded for the purpose of
limitation.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 1 Sl No.: 87