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2020 DIGILAW 1415 (KAR)

Shambulingaiah v. State Of Karnataka

2020-07-15

B.V.NAGARATHNA, E.S.INDIRESH

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JUDGMENT E S Indiresh, J. - This petition is filed, challenging order dated 03rd February, 2020 passed in Application No.2586 of 2018 by the Karnataka State Administrative Tribunal (for short, hereinafter referred to as "Tribunal"), whereunder the Tribunal rejected the application filed by the petitioner herein. 2. The brief facts, for the purpose of adjudication of this writ petition are, that the petitioner was initially appointed as a typist in the Secretariat Services on 05th July, 1985 and thereafter, he was promoted as Under Secretary on 05th May, 2012 and as Deputy Secretary on 20th January, 2016. The petitioner, while working as Under Secretary, by order dated 28th March, 2014 was deputed as Tahsildar, Kunigal Taluk and he was working as Tahsildar at Kunigal Taluk between 29th March, 2014 and 08th September, 2015. It is further stated, that the petitioner while so working as Tahsildar at Kunigal Taluk, had passed an order dated 03rd September, 2015 (Annexure-A1) for effecting khata in favour of one T.M. Puttaraju, in respect of land bearing survey No.14/2 measuring an extent of 1 acre 26 guntas of Tarikere village, under the provisions of Karnataka Land Revenue Act, 1964. It is the case of the petitioner that, being aggrieved by the aforesaid order of change of khata made by him, one Sri T.M. Ramanna (complainant) filed a complaint with the second respondent herein alleging that the petitioner and other officers of the Tahsildar, Kunigal had taken bribe from Sri T.M. Puttaraju and accordingly, effected khata in respect of the aforementioned land. The second respondent had forwarded the copy of the complaint to the petitioner and sought his explanation, and pursuant to same, petitioner submitted a detailed reply to the same stating that the allegations made against him are false and baseless. He further stated that the said order of change of khata in favour of Sri T.M. Puttaraju in respect of the aforementioned land was a quasi-judicial order under Section 136 of the Karnataka Land Revenue Act and if at all the complainant was aggrieved by the same, he ought to have preferred an appeal before the competent authority under Section 49 of the Karnataka Land Revenue Act. In view of the said complaint lodged by Sri T.M. Ramanna against the petitioner before the second respondent herein, the Upa- Lokayukta, after considering the reply made by the petitioner, submitted a report under Section 12(3) of the Karnataka Lokayukta Act 1984 (for short hereinafter referred to as "the Act") to the first respondent-Government on 14th June, 2017 (Annexure-A4). The said report was communicated to the petitioner by the first respondent, to which, the petitioner has submitted reply during December, 2017. It was further stated by the petitioner that the first respondent herein, without considering the reply made by the petitioner, passed the order dated 17th March, 2018 (Annexure-A7) entrusting Departmental Enquiry to the second respondent against the petitioner by exercising power under Article 14(A) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short hereinafter referred to as 'CCA Rules'). It is also averred in the writ petition that T.M. Ramanna-complainant has filed suit in OS No.8 of 2016 on the file of Additional Civil Judge and JMFC, Kunigal, seeking a judgment and decree of declaration in respect of the suit schedule property which includes the subject matter of the land in question, and also the plaintiff-Sri T.M. Ramanna filed application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure seeking relief of temporary injunction. The competent Court rejected the said interlocutory application made by Sri T.M. Ramanna and others on 03rd March, 2018. In that view of the matter, the petitioner presented Application No.2586 of 2018 before the Tribunal, challenging order dated 17th March, 2018 (Annexure-A7) passed by the first respondent herein. The Tribunal, after considering the factual aspects of the case on merits, by its order dated 03rd February, 2020, rejected the application. Being aggrieved by the said order, petitioner has approached this Court by this writ petition. 3. We have heard Shri Satish K., learned counsel appearing for the petitioner and Shri T.L. Kiran Kumar learned Additional Government Advocate appearing for the first respondent-State of Karnataka. 4. Shri Satish K, learned counsel for the petitioner submitted that there is no prima facie allegation against the petitioner in the complaint filed by the complainant-Sri T.M. Ramanna. He further submitted that there are no allegations in the 12(3) report submitted by the Upa-Lokayukta to the first respondent herein alleging, that the petitioner effected katha for extraneous consideration. 4. Shri Satish K, learned counsel for the petitioner submitted that there is no prima facie allegation against the petitioner in the complaint filed by the complainant-Sri T.M. Ramanna. He further submitted that there are no allegations in the 12(3) report submitted by the Upa-Lokayukta to the first respondent herein alleging, that the petitioner effected katha for extraneous consideration. He further submitted that the order of effecting khata in favour of T.M. Puttaraju is by virtue of exercising quasi-judicial power under the provisions of Karnataka Land Revenue Act and if at all the complainant was aggrieved by the said order dated 03rd September, 2015, appeal is contemplated under Section 136 of the Karnataka Land Revenue Act, and therefore, this aspect of the matter was not considered by the first respondent before entrusting for enquiry to the second respondent. Learned counsel for the petitioner further submitted that, civil suit which was filed by complainant-T.M. Ramanna and two others in OS No.8 of 2016 is pending consideration before the competent Court. By adverting to these facts, learned counsel for the petitioner submitted that all these material would clearly show that there is no prima facie case made out against the petitioner. He further submitted that as per Section 8(1)(b) of the CCA Rules, when there is efficacious remedy available under the Act, the second respondent ought not to have entertained the complaint made by the complainant- Sri T.M. Ramanna. Lastly, learned counsel for the petitioner submitted that the Tribunal, without considering the law declared by this Court in Writ Petitions No.25078-80 of 2016 disposed of on 15th July, 2016, has passed the impugned order dated 03rd February, 2020 (Annexure-A) which is bad in law and the same is liable to be set aside by this Court. 5. On the other hand, Sri T.L. Kiran Kumar, learned Additional Government Advocate, appearing for the first respondent-State, sought to justify the impugned order passed by the Tribunal and submitted that petitioner's power of effecting khata by the petitioner in favour of Sri T.M. Puttaraju, while working as Tahsildar, Kunigal, was without jurisdiction since T.M. Puttaraju has not made any application for changing khata in his favour. He further submitted that there was no impediment for Upa-Lokayukta to investigate into such matters as there was a clear intention/malice on the part of the petitioner while exercising power under the provisions of Karnataka Land Revenue Act, and accordingly, he sought for rejection of the writ petition. 6. Having heard the learned counsel appearing for the parties and in view of the rival contentions urged as above, the points for consideration in the present petition are: (i) Whether the entrustment of enquiry to the second respondent by the first respondent warrants interference by this Court? and (ii) Whether order dated 03rd February, 2020 passed by the Tribunal in Application No.2586 of 2018 is just and proper? 7. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. It is an undisputed fact that on the basis of complaint made by Sri T.M. Ramanna before the Lokayukta alleging that the petitioner had effected khata in favour of one Sri T.M. Puttaraju for extraneous consideration and having considered the reply made by the petitioner with regard to the said allegations made by the complainant, the Upa- Lokayukta submitted his report under Section 12(3) of the Act to the first respondent vide Annexure-A4. The first respondent herein, having considered the reply given by the petitioner, in furtherance to the report made by the Upa-Lokayukta under Section 12(3) of the Act, passed order dated 17th March, 2018 (Annexure-A) and accordingly entrusted the enquiry to the second respondent herein under Rule 14(A) of CCA Rules. The main grievance of the petitioner is that the first respondent herein ought not to have entrusted the enquiry to the second respondent herein inasmuch as the petitioner herein, by exercising quasi-judicial power under the provisions of Karnataka Land Revenue Act, had effected khata in favour of T.M. Puttaraju. The main grievance of the petitioner is that the first respondent herein ought not to have entrusted the enquiry to the second respondent herein inasmuch as the petitioner herein, by exercising quasi-judicial power under the provisions of Karnataka Land Revenue Act, had effected khata in favour of T.M. Puttaraju. In this regard, we have considered the judgment passed by the Division Bench of this Court referred to by the learned counsel for the petitioner in Writ Petitions No.25078-80 of 2016 disposed of on 15th July, 2016, whereunder the Division Bench has set aside the report submitted by the Lokayukta under Section 12(3) of the Act on the ground that the petitioners in the said petitions are Revenue Officers who have exercised the power under the provisions of Karnataka Land Revenue Act pursuant to the judgment passed in suit OS No.33 of 2000 and OS No.69 of 2003. The aforesaid civil matters had ended in a compromise before the appellate Court and had attained finality and in that view of the matter, the Division Bench of this Court was of the opinion that the entries effected pursuant to the decrees of the civil suit and accordingly held that there was a clear bar for Upa-Lokayukta to enquire/investigate into such matters under Section 8(1) of the Act. However, the factual aspects of the case on hand are different from the facts of the case in the aforesaid writ petitions. In the present case, no such decree has been passed by the competent court between the rival parties. It is also clear from the complaint (Annexure-A2), that the complainant has made a serious allegation that the khata has been changed in the name of Sri T.M. Puttaraju for extraneous considerations by accepting an illegal gratification and in that view of the matter, the law declared by the Division Bench of this Court mentioned supra is not applicable to the facts of the present case. 8. It is not in dispute that Upa-Lokayukta had given sufficient opportunity to the petitioner to submit his objections, before submitting report to the Government under the provisions of Section 12(3) of the Act. The first respondent, having rightly applied its mind in the manner known to law, entrusted the enquiry to the second respondent herein by order dated 17th March, 2018, which cannot be faulted with. The first respondent, having rightly applied its mind in the manner known to law, entrusted the enquiry to the second respondent herein by order dated 17th March, 2018, which cannot be faulted with. It is well-settled law that ordinarily, application before the Tribunal does not lie against the entrustment of the enquiry by the Government to the Lokayukta as it does not give rise to any cause of action. It is also equally true that entrusting an enquiry to a competent authority does not amount to an adverse order which affects the right of a party, unless the same has been issued by the person having no jurisdiction or competence to do so. The Tribunal, after considering the entire material on record including the allegation that the khata has been changed by accepting a bribe as made in the complaint (Annexure-A2), had come to a conclusion that the matter is required to be inquired into by the second respondent and accordingly rejected the Application on the ground that the factual aspects of the case is in accordance with the law declared by the Division Bench of this Court in Writ Petition No.104460 of 2018 disposed of on 10th September, 2018. The said finding recorded by the Tribunal is in accordance with law and within the purview of the decision rendered by this Court in the aforementioned writ petition. 9. By looking into the facts of the case on hand, it is relevant to refer to the Division Bench of this Court in the case of GOPAL HANAMANTH KASE V. STATE OF KARNATAKA AND OTHERS, (2018) ILR(Kar) 2347 has observed thus: "A contents of the report made in this case under Section 12(3) of the Act of 1984 (Annexure-K), particularly paragraphs 6 and 7 thereof, make it clear that the Upa-Lokayukta definitely took into account the replies/comments of the petitioner and found the same not acceptable so as to drop the proceedings against him. Similarly, the order passed by the Government, as the Competent Authority, for entrusting the matter to the Upa-Lokayukta for instituting departmental inquiry cannot be said to be suffering from non-application of mind. Therein, the gist and substance of the report made by the Upa-Lokayukta has been taken note of and it has been indicated that after perusal of the report and the documents enclosed therewith, the Government decided to institute the enquiry. Therein, the gist and substance of the report made by the Upa-Lokayukta has been taken note of and it has been indicated that after perusal of the report and the documents enclosed therewith, the Government decided to institute the enquiry. In our view, at the given stage of entrusting the matter for inquiry, the Government, as the Competent Authority, was not expected to enter into a detailed or even a summary inquiry with consideration for reply/defence of the petitioner. The impugned order dated 07.12.2017, read as a whole, makes it clear that the satisfaction of the Competent Authority about existence of prima facie case has been indicated therein and that had been sufficient compliance of the requirement of law." 10. In the decision of the Hon'ble Supreme Court in the case of UNION OF INDIA v. K.K. DHAWAN, (1993) 2 SCC 56 the Apex Court noted that, the contention that no disciplinary action could be initiated against an officer in respect of quasi-judicial function was negatived. It was further observed in the aforesaid judgment that the officer who exercised judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Hon'ble Supreme Court laid down six instances when such action could be taken, at paragraph 28 of the judgment and the same read as hereunder: "(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if he has acted in a manner which is unbecoming of a government servant; (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party;, (vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great." 11. Reiterating the said principle, Hon'ble Supreme Court in the case of UNION OF INDIA v. DULICHAND, (2006) 5 SCC 680 , has held that initiation of disciplinary proceedings for committing gross negligence while discharging quasi-judicial functions is permissible. Reiterating the said principle, Hon'ble Supreme Court in the case of UNION OF INDIA v. DULICHAND, (2006) 5 SCC 680 , has held that initiation of disciplinary proceedings for committing gross negligence while discharging quasi-judicial functions is permissible. In view of the law declared by the Hon'ble Apex Court stated above, the present case would fall squarely within the fourth and fifth instances listed above. 12. In the instant case, the petitioner, being a Tahasildar of Kunigal Taluk, had no power to effect khata solely on the basis of possession claiming to be held by the parties. Therefore, in our view, the Upa-Lokayukta rightly held in his report that the petitioner's action in performing his functions and discharging his duty called for disciplinary action in the instant case. In that view of the matter, the submissions advanced by the learned counsel for the petitioner are without substance and deserve to be rejected. There is no merit in any of the contentions raised by the learned counsel for the petitioner. In view of the discussion made above, the points that arise for consideration are answered by confirming the impugned order dated 03rd February, 2020 of the Tribunal and it is held that entrustment of enquiry by the first respondent in respect of the allegations made against the petitioner in Complaint (Annexure- A2) is just and proper. Hence, we do not find any ground to entertain the writ petition at this stage. In view of the above discussion, we are of the view that Tribunal is justified in dismissing the Application of the petitioner and no grounds are made out for our interference in this Writ Petition. Hence the following: ORDER 1. Writ petition is dismissed; 2. Order dated 03rd February 2020 passed in Application No.2586 of 2018 by the Karnataka State Administrative Tribunal is confirmed; 3. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way, and the second respondent shall proceed with the matter in accordance with law.