IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT PETITION Nos.28677-28678 OF 2017 (GM-KLA) C/W WRIT PETITION No.11322 OF 2017 (GM-KLA) In W.P.Nos.28677-28678 OF 2017 BETWEEN:
1. SRI.DINESH J SON OF LATE JAYARAM NAIDU AGED ABOUT 45 YEARS WORKING AS JUNIOR ENGINEER TOWN MUNICIPAL COUNCIL BOMMASANDRA, ANEKAL TALUK BENGALURU URBAN DISTRICT-562106.
2. SRI LINGAPPA SON OF LATE LINGEGOWDA AGED ABOUT 61 YEARS RETIRED AS ASSISTANT EXECUTIVE ENGINEER RESIDING AT NO.705 3RD MAIN ROAD O M B R LAYOUT, BANASWADI BENGALURU-560043.
... PETITIONERS (BY SRI. M S BHAGWAT, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT REPRESENTED BY PRINCIPAL SECRETARY VIKASA SOUDHA BENGALURU -560001.
2. THE KARNATAKA LOKAYUKTHA REPRESENTED BY ITS REGISTRAR M S BUILDING BENGALURU -560001.
3. ADDITIONAL REGISTRAR OF ENQUIRIES-4 KARNATAKA LOKAYUKTHA M S BUILDING BENGALURU -560001.
4. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE BENGALURU -560002.
5. DR. S SURESH KUMAR SON OF A.SUNDER RAO AGED ABOUT 53 YEARS RESIDING AT FLAT NO.796 9TH ‘A’ MAIN ROAD 1ST STAGE, INDIRANAGAR BENGALURU -560038.
... RESPONDENTS (BY SRI.VASANTH V. FERNANDES, HCGP FOR RESPONDENT No.1 SRI. V.S.ARBATTI, ADVOCATE FOR RESPONDENT Nos.2 AND 3 SRI.KEMPANNA, ADVOCATE FOR RESPONDENT No.4 SRI.B.RAVINDRA PRASAD, ADVOCATE FOR RESPONDENT No.5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM RESPONDENT NO.1 AND QUASH THE IMPUGNED REPORT DT.14.3.2016 ISSUED BY RESPONDENT NO.2 (ANNX-G) IMPUGNED ORDER OF ENTRUSTMENT DT.30.5.2016 ISSUED BY RESPONDENT NO-1 (ANNX-H) AND IMPUGNED ARTICLES OF CHARGE DT.19.8.2016 ISSUED BY RESPONDENT NO-3 (ANNX-K) INSOFAR AS THE PETITIONERS ARE CONCERNED.
In W.P.No.11322 OF 2017 BETWEEN: SRI.S.P.RANGANATH SON OF S.D.PURUSHOTHAM AGED ABOUT 51 YEARS WORKING AS EXECUTIVE ENGINEER K.R.PURAM DIVISION BRUHUTH BENGALURU MAHANAGAR PALIKE BENGALURU -560 036.
... PETITIONER (BY SRI. M S BHAGWAT, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT REPRESENTED BY PRINCIPAL SECRETARY VIKASA SOUDHA BENGALURU -560001 2. THE KARNATAKA LOKAYUKTHA REPRESENTED BY ITS REGISTRAR M S BUILDING BENGALURU -560001.
3. ADDITIONAL REGISTRAR OF ENQUIRIES-4 KARNATAKA LOKAYUKTHA M S BUILDING BENGALURU -560001.
4. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE BENGALURU -560002.
5. DR. S SURESH KUMAR SON OF MR.A. SUNDER RAO AGED ABOUT 53 YEARS RESIDING AT FLAT NO.796 9TH A MAIN ROAD 1ST STAGE, INDIRANAGAR BENGALURU -560038.
... RESPONDENTS (BY SRI.VASANTH V. FERNANDES, HCGP FOR RESPONDENT No.1 SRI. V.S.ARBATTI, ADVOCATE FOR RESPONDENT Nos.2 AND 3 SRI.R RAMACHANDRAN, ADVOCATE FOR RESPONDENT No.4 SRI.B.RAVINDRA PRASAD, ADVOCATE FOR RESPONDENT NO.5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE RESPONDENT NO-1 AND QUASH THE IMPUGNED REPORT DATED 14.03.2016 ISSUED BY RESPONDENT NO-2 AT ANNX-E, IMPUGNED OF ENTRUSTMENT DATED 30.05.2016 ISSUED BY RESPONDENT NO-1 AT ANNX-F AND IMPUGNED ARTICLES OF CHARGE DATED 19.08.2016 ISSUED BY THE RESPONDENT NO-3 AT ANNEX-H.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT THIS DAY, S.G. PANDIT J., PASSED THE FOLLOWING:
ORDER The petitioners in these writ petitions have prayed for common prayer. The writ petitions arise out of common facts. Hence, the above petitions are heard together at the request of the learned counsels for the parties and disposed off by this common order.
2. The petitioners have filed the above writ petitions with a common prayer as follows:
(i) Call for records from Respondent No.1;
(ii) Issue writ or order quashing the impugned report dated 14.03.2016 bearing No.Comp/Uplok/BCD/948/2015/DRE-2 issued by the 2nd respondent (Annexure-E), impugned order of entrustment dated 30.05.2016 bearing No.NaAaE 274 MNU 2016 issued by the 1st Respondent (Annexure-F) and impugned Articles of Charge dated 19.08.2016 bearing NO.UPLOK-1/DE/247/2016/ARE-4 issued by the 3rd respondent (Annexure-K), in the interest of justice and equity.
3. The first petitioner in W.P.No.28677-78 of 2017 is working as Junior Engineer in the 4th respondent-Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) and second petitioner is Retired Assistant Executive Engineer from Public Works Department, whereas in W.P.No.11322 of 2017, the petitioner is working as Executive Engineer in the 4th respondent-BBMP. It is stated that, during 2013- 14, while the petitioners were working at K.R.Puram Division of 4th respondent-BBMP, one Smt.Chandrakala started construction in site No.151, Katha No.106/2, T.C.Palya Main Road, Mahadevapura Zone, BBMP, Bengaluru. The construction was contrary to the by-laws and building plan. Noticing the illegal construction, Provisional Order under Section 321(1) of the Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as ‘the Act’ for short) was issued to the owner on 10.12.2014. Thereafter the confirmation order was issued on 19.12.2014. When the matter stood thus, the 5th respondent filed complaint before the second respondent- the Karnataka Lokayukta on 07.03.2015 making allegations that Smt.Chandrakala, owner of Site No.151 is constructing the building on the public road, and the BBMP officials have not taken any action against Smt.Chandrakala or to stop unauthorized construction. Based on the complaint of the 5th respondent, proceedings were initiated under the provisions of the Karnataka Lokayukta Act, 1984 (for short ‘the Lokayukta Act). It is stated that the second respondent issued notice to Assistant Executive Engineer and Junior Engineer, seeking explanation on the complaint of the 5th respondent. Further stated that no notice was issued to Executive Engineer i.e., petitioner in W.P.No.11322 of 2017. The second respondent, after investigation under Section 9 of the Lokayukta Act submitted report under Section 12(3) of Lokayukta Act, recommending initiation of disciplinary proceedings against the petitioners and to entrust the enquiry to the 2nd respondent under Rule 14-A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as ‘the CCA’ Rules).
4. On the basis of the report submitted by the second respondent, the first respondent-Government passed order dated 30.05.2016 entrusting the disciplinary enquiry to the second respondent for the alleged dereliction of duty. The Upa Lokayukta nominated respondent No.3 as Enquiry Officer to hold enquiry against the petitioners. The 3rd respondent Enquiry Officer framed article of charges dated 19.08.2016 and issued the same to the petitioners. It is stated that the petitioners were not given proper opportunity while investigating the complaint under Section 9 of the Lokayukta Act. The petitioners aggrieved by the very initiation of disciplinary proceedings are before this Court, in these writ petitions.
5. Heard the learned counsel for the petitioners and learned Additional Government Advocate for Respondent No.1 and learned counsels for respondents No.2 and 3. Perused the writ papers.
6. Learned counsel for the petitioners contends that the very initiation of proceedings against the petitioners is without jurisdiction as the complaint by the 5th respondent to the 2nd respondent is not in accordance with Section 9(2) of the Lokayukta Act and Rule 4 of Karnataka Lokayukta Rules, 1985. It is further contended that the complaint is by designation, whereas the complaint requires to be made by name. The learned counsel contends that the Lokayukta Act and the Rules prescribe Form No.1 and 2 for complaint and the complaint shall be made in the prescribed format. Learned counsel for the petitioners would also contend that the complaint is further not maintainable in view of Section 8(1)(b) of the Lokayukta Act. Learned counsel taking us through Section 8(1)(b) of the Lokayukta Act would submit that when the complainant has alternate remedy which she has already availed by filing the suit in O.S.No.1444 of 2014 could not have filed a complaint before the Lokayukta and thus, Lokayukta entertaining the complaint is wholly illegal. It is his submission that Section 8(1)(b) of the Lokayukta Act makes it clear that the Lokayukta or Upa Lokayukta shall not conduct any investigation under the Lokayukta Act in case if the complainant has or had, any other remedy. Since the complainant had already filed the suit which was brought to the notice of the Upa Lokayukta, conducting of investigation was wholly illegal. Lastly, learned counsel for the petitioners contended that the petitioner in W.P.No.11322 of 2017 is an Executive Engineer in the 4th respondent-BBMP and he is drawing salary of more than Rs.20,000/- p.m. As such, the Upa Lokayukta would not get jurisdiction to investigate the complaint against him. He invites attention of this Court to Section 7(1)(b) of the Lokayukta Act in that regard.
7. Per contra, the learned counsel for respondents No.2 and 3 would contend that in the background and intention with which the Act is enacted, mentioning of the designation in the complaint would be sufficient compliance of Rule-4 of the Karnataka Lokayukta Rules. Learned counsel for the Lokayukta with regard to contention that the Lokayukta could not have entertained the complaint against the petitioners in view of Section 8(1)(b) submits that Section 8(1)(b) of the Act refers to grievance and not complaint. In the instant case, the complaint/allegation is made against the petitioners with regard to their dereliction of duty as public servants. He invites the attention of this Court to definition of ‘allegation’ under Section 2(2) and definition of ‘grievance’ under Section 2(8) of the Lokayukta Act. Since, it is a complaint/allegation against the petitioners, Section 8(1)(b) of the Lokayukta Act would not be attracted. Further, learned counsel submits that, Section 7(1)(b) relied upon by the counsel for petitioners to say that Upa Lokayukta has no jurisdiction to investigate the complaint against the petitioners is not correct and he submits that the said Section contemplates pay scale, the minimum of which is more than Rs.20,000/-, as may be revised, from time to time. He emphasizes on the words “may be revised from time to time”. It is his submission that subsequently, the same is revised and revised pay scale permits the Upa Lokayukta to investigate the complaint against the petitioner in W.P.No.11322 of 2017.
8. To examine the contention that the complaint is not in the format, it would be necessary to look into relevant provisions of the Lokayukta Act. Section 9(2) of Lokayukta Act reads as follows:
“9(2): Every complaint shall be made in the form of a statement supported by an affidavit and in such form and in such manner as may be prescribed.”
9. Rule 4 of the Karnataka Lokayukta Rules 1985 reads as follows:
“Complaint:- (1) Every complaint shall be made in Form I, signed by the complainant and shall be supported by his affidavit in Form II duly sworn to before any Judicial Magistrate First Class, Notary Public (Oath Commissioner) (Judicial Officers working on deputation in the Karnataka Lokayukta) or any Gazetted Officer duly authorised to administer oaths.
(2) The complaint may be presented in person or sent by registered post to the Registrar. Such complaint shall be acknowledged by the Registrar specifying the name and designation of the public servant against whom such complaint is made.”
10. On reading of the above provision, it would be clear that the complaint shall be made in the form of statement supported by an affidavit and in the prescribed form. Rule 4 would indicate that the complaint shall be presented in person or sent by registered post to the Registrar, who shall acknowledge such complaint specifying the name and designation of the public servant against whom such complaint is made. In the case on hand, the petitioners contend that the complaint is made not specifying any name but against official designation which would be against the format prescribed. On looking into the complaint which is produced as Annexure-C to the writ petition, it is seen that in the complaint against whom the complainant has complained, the name column is left blank but designation is mentioned. In the light of the submission made by the learned counsel for the petitioners and looking into the complaint, we have to examine whether complaint filed is defective and as contended, it is not in accordance with provisions of Lokayukta Act and Rules. In the instant case, from perusal of the complaint, it is clear that the complainant has complained against the Assistant Engineer, Assistant Executive Engineer and Executive Engineer complaining that they have failed to take action against Smt.Chandrakala, owner of site bearing No.151, Mahadevapura Zone, who alleged to be constructing the building unauthorizedly on a public road and negligent in their duties. The complainant or general public cannot be expected to know the name of the person who holds the post of Assistant Engineer or Assistant Executive Engineer or Executive Engineer. The complainant or the general public would be aware that it is the duty of the concerned Engineers to take action against illegal or unauthorized construction. In order to know the name of the concerned person who holds the post against whom complainant intends to complain, before making complaint, will have to conduct mini investigation to know the names of the officials. Hence, looking into the intention and purpose of the Act, we are of the view that in the facts and circumstances of the present case, mentioning of the designation by the complainant would be sufficient compliance with the provisions of the Act and the Rules.
11. The Lokayukta Act is enacted for the purpose of improving the standards of Public Administration by looking into the complaints against administrative action including cases of corruption, favouritism and official indiscipline in Administrative Machinery. While such being the object and purpose of Lokayukta Act, mere non- mentioning of the names in the complaint would not render the complaint ineffective or that the complaint cannot be looked into. It is not in dispute that the petitioners were holding the posts of Assistant Engineer, Assistant Executive Engineer and Executive Engineer at the relevant point of time. The petitioners were holding the posts of Assistant Engineer, Assistant Executive Engineer and Executive Engineer as indicated in the complaint vide Annexure-C. Hence the contention of the petitioners that the complaint is defective and not in accordance with law cannot be accepted and is liable to be rejected.
12. The petitioners next contended that the complaint of 5th respondent is not maintainable in view of provisions of Section 8(1)(b) of Lokayukta Act. Section 8(1)(b) of Lokayukta Act reads as follows:
8. Matters not subject to investigation:- (1) Except as hereinafter provided, the Lokayukta or an Upa Lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action,-
(a)………… (b) If the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any Tribunal, Court Officer or other authority and has not availed of the same.”
13. From the reading of the above provision, it would be clear that if the complainant has or had any remedy by way of appeal, revision or review or other proceedings, the Lokayukta or Upa Lokayukta shall not investigate such complaint. In the present case, learned counsel for the petitioners would contend that since the complainant has filed suit in O.S.No.1444 of 2014, the complaint before the 2nd respondent-Lokayukta would not be maintainable. In support of his contention, learned counsel for the petitioners would rely on the decision of Division Bench of this Court in the case of M/S.KUMARASWAMY MINERAL EXPORTS PRIVATE LIMITATED v/s STATE OF KARNATAKA reported in ILR 2015 KAR 5591. The allegation of the complainant/5th respondent is that the petitioners failed to take action against the unauthorized construction being carried on by one Smt.Chandrakala even though it was brought to their notice. In the case referred supra, the petitioner therein had applied for mining lease. His application for mining lease was rejected, against the said rejection order, he filed a revision in which the rejection order was set aside and directed the State Government to consider the application for grant of mining lease. The 3rd respondent therein had also applied for mining lease including the area which was leased in favour of the petitioner. The application of the 3rd respondent was rejected. Against the said rejection order, he preferred revision and the said revision came to be dismissed. Against the said dismissal of revision, the 3rd respondent therein filed writ petition. After several rounds of litigation between the petitioner and 3rd respondent, the 3rd respondent therein approached the Karnataka Lokayukta by filing a complaint stating that the petitioner therein is mining illegally in the area which is not granted to him. In those facts and circumstances, this Court held that when once the complainant had remedy by way of review, revision and also writ petition and having lost the legal battle, the Lokayukta should not have conducted any investigation in respect of the so called grievance of the complainant.
14. But, in the case on hand, the facts are entirely different. It is not a “grievance” of the complainant, but it is the “allegation” against the petitioners. In sum and substance, the complaint against the petitioners is that they have failed to perform their duties as public servants and failed to prevent the unauthorized construction.
15. The suit in O.S.No.1444 of 2014 filed by the 5th respondent-complainant is for the following reliefs:
“(i) Pass Judgment and Decree for Permanent injunction in favour of the Plaintiff and against the Defendant restraining the Defendant, their agents, henchmen, supporters and any other person constructing the building or any structure on the suit schedule public road;
(ii) Direct the Defendant No.3 and 4 not to allow the construction in and over the suit schedule public road and further direct to take action against the Defendant No.3 and 4;
(iii) Pass such other appropriate order or direction as this Hon’ble Court may deem fit to grant in the circumstances of the case including an order as to costs, in the interest of justice and equity.”
16. The above prayers made in the suit would indicate that the suit filed is for permanent injunction restraining the defendants No.1 and 2 from constructing the building or any structure on suit schedule public road; seeking a direction to defendants No.3 and 4 not to allow the construction in and over the suit schedule public road and to take action against defendants No.3 and 4. The Civil Suit filed is to restrain the defendants therein from carrying on the construction and to stop further construction. The remedy sought in the suit is to see that illegal construction is stopped immediately, whereas complaint against the petitioners is for their negligence or failure to perform their duties as Government servants.
The ‘allegation’ is defined under Section 2(2) of the Lokayukta Act which reads as follows:
(2) “Allegation” in relation to a public servant means any affirmation that such public servant-
(a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism, or lack of integrity in his capacity as such public servant;
OR (d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs;
The above definition of allegation is very wide to include the abuse of his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person, discharge functions as public servant by personal interest or corrupt motives, guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as public servant or unbecoming of a public servant by conduct. In the case on hand, the allegation against the petitioners is that they have failed to take appropriate action against the illegal construction and failure to prevent unauthorized construction. The complaint or allegation is for dereliction of duty as public servants by the petitioners. It is not personal grievance of the complainant and the complainant has not sought any redressal of his personal grievance. The prayer sought in the suit is not the remedy for complainant against the petitioners as noticed under Section 8(1)(b) of the Lokayukta Act. Moreover, Section 8(1) speaks of grievance in respect of any action. Section 8 would not speak of allegations. ‘Grievance’ is defined under Section 2(8) of the Lokayukta Act, which reads as follows:
2(8) “Grievance” means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration.”
17. The above definition of ‘grievance’ would suggest that it is one’s individual grievance sustained or suffered due to maladministration. If the complaint is with regard to one’s grievance, if he has any other alternate remedy, the complainant cannot maintain complaint before the Lokayukta or Upa Lokayukta. In the case on hand, it is not the grievance of the complainant/5th respondent; it is the allegation against the petitioners by the 5th respondent/complainant. If a person has any grievance, which is not redressed, by inaction of the officials or authority, if such aggrieved person has any statutory remedy against such grievance, by way of appeal, review or revision, such aggrieved person cannot approach Lokayukta or Upa Lokayukta and Lokayukta or Upa Lokayukta shall not investigate such complaints. Hence, Section 8(1)(b) of the Lokayukta Act would not come to the aid of the petitioners. The decision relied upon by the petitioners (supra) would not assist the petitioners since on facts, the complainant-5th respondent has no other remedy against the petitioners. In the case relied upon by the petitioners, the complainant had filed the complaint before the Lokayukta after availing remedy available to him under the Mines and Minerals (Development and Regulation )Act, 1957. Hence, under that circumstances, the co-ordinate bench of this Court had held that the complaint filed is not maintainable in view of Sections 8(1)(b) and 8(2)(c) of the Lokayukta Act.
18. Thirdly, learned counsel for the petitioners contended that the 2nd respondent has no jurisdiction to investigate the complaint against the petitioner in W.P.No.11322 of 2017, since he is a Class-I Senior Scale Officer drawing a net salary of Rs.62,385/- p.m. The learned counsel for the petitioners would submit that Upa Lokayukta has no jurisdiction to enquire against the petitioner since the petitioner draws remuneration of more than Rs.20,000/- p.m. If the pay scale, minimum of which is more than Rs.20,000/- as may be revised from time to time, the complaint would lie before the Lokayukta. Where the pay scale, the minimum of which is less than Rs.20,000/- the same would fall within the jurisdiction of Upa Lokayukta. The petitioner, as submitted by the learned counsel for the petitioners is drawing salary in the pay scale of Rs.40,050 – 56,550 which is equivalent to earlier pay scale of Rs.20,025 – 28,275. Earlier pay scale of Rs.20,025/- is revised to Rs.40,050/- under Government Order dated 21.5.2012. The petitioner is drawing net salary of Rs.62,385/- p.m. in the pay scale of Rs.40,050-56,550. The words used in Section 7(1)(b) is “as may be revised from time to time”. The pay scale of Rs.20,025/- is revised to Rs.40,050/-. Hence, the Upa Lokayukta has jurisdiction to entertain the complaint against the petitioner.
19. Lastly, learned counsel for the petitioners contended that the order under Sections 12(3) and 12(4) of the Lokayukta Act are passed without application of mind. The learned counsel submits that the Government while passing the order under Section 12(4) has mechanically referred the enquiry to the Upa Lokayukta under Rule 14-A of CCA Rules.
20. On going through Annexure-E report under Section 12(3) and Annexure-F dated 30.05.2016, the order passed under Section 12(4) of the Lokayukta Act, we are of the view that the authorities while passing the orders have applied their mind. The Upa Lokayukta while submitting his report under Section 12(3) of the Lokayukta Act has discussed about the complaint against Smt.Chandrakala K.N. and also the complaint against the petitioners filed by the 5th respondent Dr.Suresh Kumar. The report also notes the notice issued and the reply submitted by the petitioners. Further, the Government while passing the order under Section 12(4) has noted that it has examined in detail the report submitted by the Upa Lokayukta and has come to prima facie conclusion that the petitioners have committed dereliction of duty.
21. Looking from any angle, we are of the view that the petitioners have not made out any ground to interfere with the orders under challenge. There is no merit in the writ petitions. Accordingly, the writ petitions are dismissed.
Sd/- Sd/-
JUDGE JUDGE mpk/-* CT:bms