Karnataka High Court
T K Ramesh Kumar vs State Of Karnataka on 3 February, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.34976 OF 2015(S-DE)
BETWEEN :
T.K.Ramesh Kumar,
S/o.Late T.Kalathimmegowda,
Aged about 42 years,
Occ: Second Division Assistant,
Office of the Assistant Revenue
Officer, BBMP, Koramangala,
Bengaluru. ... Petitioner
(By Sri K.B.Monesh Kumar for Smt.Vijetha
R.Naik, Advocate)
AND:
1. State of Karnataka,
Rep. by its Secretary,
Urban Development Department (BBMP)
Vidhana Soudha,
Bengaluru - 560 001.
2. The Commissioner,
Bruhat Bengaluru Mahanagara Palike,
Bengaluru.
3. Additional Registrar (Enquiries-7),
Karnataka Lokayukta,
M.S.Building,
Bengaluru - 560 001. ...Respondents
(By Sri M.A.Subramani, GP for R1:
Sri K.N.Puttegowda, Advocate for R2:
Sri Mallikarjun C.Basareddy, Advocate for R3)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the Government Order
dated 19.6.2014 passed by the R1 vide Annexure-C and etc.
This writ petition, coming on for preliminary hearing 'B'
Group, this day, the Court made the following:
ORDER
The petitioner has called into question the Government Order, dated 19.06.2014 (Annexure-C) handing over the case to Upa Lokayukta under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 and the enquiry proceedings initiated by the third respondent Additional Registrar, Karnataka Lokayukta.
2. Sri Monesh Kumar, learned counsel for the petitioner submits that the petitioner has got an order of acquittal at the hands of the Hon'ble Supreme Court of India. The judgment of the District and Sessions Court and of the Appellate Court convicting the petitioner of the charges for the offences punishable under Section 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988 are reversed by the Hon'ble Supreme Court in Criminal Appeal No.331/2015 disposed of on 18.02.2015. He submits that the witnesses examined in the Sessions case and to be examined in the departmental enquiry 3 are the same. He submits that the materials for initiating the criminal proceedings and departmental enquiry proceedings are the same. He submits that the alleged trap incident took place in 2002 and that 13 years thereafter the departmental enquiry proceedings are initiated.
3. He read out the following portions from the Apex Court's order:
" ...... If PW.1 is not definite in his evidence that the appellant had received the application of his father for issuing Khata extract in respect of his property on 21.10.2003, both the trial court as well as the first appellate court failed to evaluate and reappreciate the aforesaid important piece of evidence on record which is very material for the purpose of recording a finding on the important aspect of demand of illegal gratification alleged to have made by the appellant with the complainant and his father on 18.10.2003 which is mandatory to record the finding on the charge under Section 13(1)(d) of the Act. In our considered view, the said approach adopted both by the trial court and the appellate court is not only erroneous but also error in law and, therefore, the finding recorded on the above aspect of demand of illegal gratification made by the appellant with the 4 complainant and his father cannot be sustained in law............"
5. He relies on the Apex Court's judgment in the case of SULEKH CHAND AND SALEK CHAND vs. COMISSIONER OF POLICE AND OTHERS reported in 1994 Supp (3) SCC 674. The portion under Head-Note C of the said decision is extracted hereinbelow:
"Once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. Moreover, since the departmental enquiry was itself dropped the very foundation on which the DPC had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits."
6. Nextly, he relies on the Apex Court's judgment in the case of CAPT.M.PAUL ANTHONY vs. BHARAT GOLD MINES 5 LTD. AND ANOTHER reported in (1999) 3 SCC 679. Para 34 of the said decision is extracted hereinbelow:
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 6 "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."
7. The learned counsel also sought to draw support from the Apex Court's judgment in the case of G.M.TANK vs. STATE OF GUJARAT AND ANOTHER reported in AIR 2006 SC 2129, wherein the dismissal order was set aside on noticing that the finding recorded in the departmental enquiry proceedings cannot run contrary to the outcome of the criminal proceedings when both the criminal and departmental proceedings are based on identical and similar set of facts and evidence and that the criminal court has honourably acquitted the employee.
8. Sri M.A.Subramani, learned Government Pleader for the respondent No.1 submits that the reversal of the judgments of the Sessions Court and of the Appellate Court, is only because the relevant witnesses were not examined and because there was no sanction order. He submits that it may not be correct to contend that the petitioner is indeed acquitted on merits. He submits that the standard of proof required in criminal proceedings and departmental enquiry proceedings is entirely 7 different. He relies on the Apex Court's judgment in the case of DEPUTY INSPECTOR GENERAL OF POLICE AND ANOTHER vs. S.SAMUTHIRAM reported in (2013) 1 SCC 598, wherein it is held that mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department.
9. He relies on the Apex Court's judgment in the case of UNION OF INDIA AND ANOTHER vs. PURUSHOTTAM reported in (2015) 3 SCC 779, wherein it is held that the acquittal of an employee by a criminal court could not automatically and conclusively impact the departmental proceedings.
10. Sri Mallikarjun C.Basareddy, learned counsel for the respondent No.3 makes the submissions akin to those of the learned Government Pleader.
11. The submissions of the learned counsel have received my thoughtful consideration. The judgment relied upon by the petitioner do not come to his rescue in any way because the facts of the case on hand and of the reported cases are entirely 8 different. In the case of SULEKH CHAND AND SALEK CHAND (supra) the employee questioned the denial of promotion to him, as he was acquitted by the criminal court, was reinstated into service and as the departmental enquiry itself was dropped. In the case of G.M.TANK (supra), the proceedings culminating in the dismissal of the delinquent from service were called into question. In CAP.M.PAUL ANTHONY's case (supra) the issue that fell for consideration was whether the departmental proceedings and proceedings in a criminal case lodged on the basis of the same set of facts can be continued simultaneously. In the instant case, there is no simultaneity. The criminal case has attained the finality.
12. It is trite that the degree of proof required in criminal proceedings and the departmental or civil proceedings are entirely different. In criminal case the degree of poof required is beyond doubt. In the departmental proceedings it is the preponderance of probabilities. Even when the delinquent is acquitted on merits in a criminal case, it is still open to the employer to hold the enquiry into the alleged misconduct of the delinquent.
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13. In the instant case, the petitioner is charged with receiving illegal gratification for the transfer of khatha. The gravity of misconduct is such that the departmental enquiry cannot be discarded. In this context, I may usefully refer to the Apex Court's judgment in the case of SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND ANOTHER reported in (2012) 3 SCC 64. The relevant paragraph of the said decision is extracted hereinbelow:
"68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court 10 has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
14. Emphasizing the fundamental right of the citizens to the corruption-free Government, the Apex Court has this to say in the case of VINEET NARAIN AND OTHERS v. UNION OF INDIA AND ANOTHER reported in (1998) 1 SCC 226 has this to say in paragraph No.55 of its decision:
"55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law."11
15. I am not persuaded to quash the enquiry proceedings on the ground that the petitioner has secured the clean acquittal on merits.
16. Besides, I do not see any firm cause of action for the institution of this petition. The petitioner has to avail of the opportunity of showing his innocence. Even if the enquiry report goes against the petitioner, the disciplinary authority may not agree with the findings of the enquiry officer. Only when the disciplinary authority passes any punitive order, it is then that the delinquent gets the firm cause of action to challenge the same in appropriate proceedings. A mere show cause notice or initiation of enquiry proceedings, that too, in a case of this nature involving the illegal gratification for the change of khata, does not give any cause of action for filing the writ petition. It is immensely profitable to refer to what the Apex Court has said in the case of UNION OF INDIA & ANOTHER vs. KUNISETTY SATYANARAYANA reported in AIR 2007 SC 906. The portion under Head-Note A of the reported decision reads as follows:
"Ordinarily no writ lies against a charge-sheet or show cause notice. The reason why ordinarily a 12 writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal."
17. The afore-extracted view is reiterated by the Hon'ble Supreme Court in the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS v. PRABHASH CHANDRA MIRDHA reported in (2012) 11 SCC 565 wherein it is held that the law 13 does not permit quashing of the charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet, he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. Para 12 of the said decision is extracted hereinbelolw:
12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues.
Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings." 14
18. Following the said decisions, I dismiss this writ petition. No order as to costs.
19. At this juncture, the petitioner's learned advocate prays for an observation that the enquiry officer shall return the findings on the articles of charges without being influenced by this order.
20. Needless to observe that the enquiry officer has to take an independent decision in the matter and return the findings on the articles of charges depending upon the materials and the evidence to be placed on his record.
Sd/-
JUDGE Cm/-