IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.25583/2019 (LB-RES) Between:
Sri V.J. Sebestian, Aged about 53 years, Son of B.S. Joseph, Kokkada Village and Post, Kokkada Grama Panchayath, Belthangady Taluk, D.K. District. … Petitioner (By Sri P. Karunakar, Advocate) And:
1. State of Karnataka, Department of Rural Development And Panchayath Raj, M.S. Building, Dr. Ambedkar Veedhi, Bengaluru – 560 001 By its Secretary.
2. The Deputy Commissioner, Mangaluru D.K. District – 575 006.
3. The Chief Executive Officer, Zilla Panchayath, Mangaluru, D.K. District – 575 006.
4. The Chief Executive Officer, Taluk Panchayath, Belthangady Taluk, D.K. District – 574 214.
5. The P.D.O., Grama Panchayath, Kokkada Village, Belthangady Taluk, D.K. District – 574 214. … Respondents (By Smt. Prathima Honnapura, AGA for R1 & R2; Sri S.K. Acharya, Advocate for R5;
R3 & R4 – Served and Unrepresented) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 12.04.2019 passed by the R-1 dated 12.04.2019 at Annexure-A and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner, who is the President of fifth respondent Kokkada Grama Panchayat, has challenged the order at Annexure-A dated 12.04.2019 whereby, the respondent No.1 has passed the impugned order removing the petitioner from his membership and also from the post of President.
2. A complaint had been filed before the Anti Corruption Bureau by Mr.Ummar @ Ibrahim alleging that he had paid Rs.20,000/- to the petitioner who had demanded a sum of Rs.35,000/- as illegal gratification for clearing the bills. It is stated that pursuant to the said complaint in the trap proceedings, the Panchayat Development Officer Mr.Purushotham was caught while accepting the bribe amount and subsequently charge sheet has been filed by Anti Corruption Bureau on 02.01.2019 indicting the petitioner as well as the Panchayat Development Officer.
3. It is not in dispute that show cause notice came to be issued and petitioner has submitted his reply and not being satisfied with such reply, the Government has instituted an enquiry and concluded in the manner as found in the impugned order at Annexure-A.
4. Learned counsel for the petitioner would contend that the enquiry is merely on the basis of the proceedings of Anti Corruption Bureau and that, as was submitted in reply to the show cause notice the Authorities ought to have waited till the conclusion of proceedings pending before the criminal court. It is also contended that the proceedings have been initiated in a mala fide manner keeping in mind the oblique motives, including the political affiliation of the petitioner.
5. The petitioner contends that during the course of enquiry the petitioner has taken a specific stand that works relating to contract were concluded on 8.2.2019 whereas, the alleged trap is said to have been made on 5.2.2019 and hence the version of complainant was inherently improbable and cannot be accepted. It was further contended that the total amount payable under the bill was Rs.90,526/- and the say of the complainant that Rs.35,000/- was demanded as illegal gratification was improbable and has raised doubts as to the veracity of the complaint.
6. The petitioner further contends that the enquiry as envisaged under Sections 43-A and 48(4) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’), ought to have been conducted independent of the criminal proceedings and an independent conclusion should be arrived at and mere acceptance of criminal proceedings by itself in the enquiry that was to be held illegal. The petitioner has placed reliance on the decision of this Court in the case of Basanagouda v. The State of Karnataka, rep. by its Secretary, Panchayath Raj and Others reported in ILR 2012 KAR 3315.
7. Learned Additional Government Advocate representing the respondent State on the other hand supports the impugned order and contends that it is only after final report was submitted that enquiry was concluded after taking note of such final report. It is further submitted that there is no infirmity as such and the requirement as contained under Section 43-A(1) of the Act includes not only misconduct in discharge of duties or guilty of any disgraceful conduct.
8. Heard both sides.
9. It needs to be determined as to whether an enquiry independent of the criminal proceedings had been conducted and finding recorded was as required to pass an order determining misconduct or disgraceful conduct as envisaged under Section 43-A of the Act. It was also necessary to see if there has been acts of the petitioner which could be described as being ‘persistently remiss or guilty of misconduct’ in the discharge of duties as envisaged under Section 48 (4) of the Act.
10. It is to be noted that no doubt impugned order contains summary of the reply to the show cause notice enumerating the contentions of the petitioner in the enquiry and the authority relying upon the final report submitted by Anti Corruption Bureau passes the order. However, there is no independent consideration by the Authority regarding the stand taken in the enquiry as is found in para-4 of the impugned order, which reads as follows:-
“4. DgÉÆævÀ CzsÀåPÀëgÁzÀ ²æà «.eÉ.¸É¨Á¹ÖAiÀÄ£ïgÀªÀgÀ ¥ÀgÀªÁV ªÀQîgÁzÀ J¸ï.eÉ.ªÀPÁ®vÀÄÛ ¸À°è¹gÀÄvÁÛgÉ. ¸É¨Á¹ÖAiÀÄ£ïgÀªÀgÀÄ vÀªÀÄä «gÀÄzÀÞ ªÀiÁrgÀĪÀ DgÉÆÃ¥ÀUÀ¼À£ÀÄß ¤gÁPÀj¸ÀÄvÁÛgÉ. vÁªÀÅ ®AZÀzÀ ¨ÉÃrPÉUÀ¼À£ÀÄß EnÖgÀĪÀÅ¢®è ºÁUÀÆ ºÀtªÀ£ÀÄß ¹éÃPÀj¹gÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ. zÀÆgÀÄ PÉÆnÖgÀĪÀ UÀÄwÛUÉzÁgÀgÁzÀ PÀĪÀiÁgï gÀªÀgÀÄ 14£Éà ºÀtPÁ¹£À AiÉÆÃd£ÉAiÀÄ°è PÉ®¸À ªÀiÁr PÉ®¸ÀUÀ¼À£ÀÄß ¥ÀÆtðUÉÆArgÀĪÀ ¢£ÁAPÀ: 08.02.2018 DVgÀÄvÀÛzÉ. DzÀgÉ mÁæ¥ï ¥ÀæPÀgÀt ¢£ÁAPÀ: 05.02.2018gÀAzÀÄ £ÀqÉ¢zÉ. PÉ®¸ÀUÀ¼ÀÄ ªÀÄÄVzÀ £ÀAvÀgÀ JA.©. §gÉzÀÄ ©®Äè ¥ÁªÀwUÁV PÉÆqÀzÉ, ªÀÄÄAZÉ ©®Äè ¥ÁªÀw¸ÀĪÀ ¥Àæ±Éß GzÀ㫸ÀĪÀÅ¢®è ºÁUÀÆ ®AZÀ ºÀtzÀ ¨ÉÃrPÉ ªÀiÁqÀĪÀ ¥Àæ±Éß EgÀĪÀÅ¢®è. ¸ÀzÀj UÀÄwÛUÉzÁgÀgÀÄ ªÀiÁrgÀĪÀ MlÄÖ PÁªÀÄUÁjUÀ¼À ªÉÆvÀÛ 90,526/- DVzÀÄÝ CzÀPÉÌ 35000/-
®AZÀzÀ ªÉÆvÀÛ ¨ÉÃrPÉ EqÀĪÀÅzÀÄ ºÉÃUÉ ¸ÁzsÀåªÁUÀÄvÀÛzÉ JAzÀÄ ºÉýPÉ ¤ÃrgÀÄvÁÛgÉ”.
11. The Authority has concluded by placing reliance on the final report submitted by Anti Corruption Bureau that the petitioner has been involved in misconduct and has proceeded to pass the order. It is to be noted that where proceedings are parallel, such as in this case one before the criminal court and another in exercise of statutory power, the Authority must independently come to a conclusion and record a finding as to whether as noticed above, the petitioner has been guilty of misconduct or disgraceful conduct or persistently remiss or was guilty of misconduct as envisaged under Sections 43-A and 48(4) of the Act. There has to be an independent application of mind followed by the conclusion. In the present case, despite specific stand taken by the petitioner which are that the works were completed on 8.2.2019, but the trap proceedings have been made on 5.2.2018 has raised inconsistencies, the same has not been explained or considered in an appropriate manner in the impugned order. Insofar as the other contention that the bill amount is Rs.90,526/- and the illegal gratification demand of Rs.35,000/- is also contended to be an allegation that is inherently contradictory, such contention has not been adverted to.
12. It is clear that the respondent Authority while coming to the conclusion in exercise of power could not have placed reliance solely on the proceedings of Anti Corrutpion Bureau, which would not be in accordance with the independent enquiry in exercise of statutory power as envisaged under Sections 43-A and 48(4) of the Act.
13. Accordingly, the writ petition is allowed and the impugned order dated 12.04.2019 at Annexure-A is set aside.
14. In light of setting aside of the impugned order consequently, the petitioner is entitled to be restored in his post as ‘President’ of the fifth respondent Kokkada Grama Panchayat and also as a member.
Sd/- JUDGE VGR