Karnataka High Court
Shri.Babusab vs The State Of Karnataka on 7 December, 2020
Author: G.Narendar
Bench: G.Narendar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT PETITION NO.105058 OF 2016 (S-DE)
Between:
Shri Bausab Rajasab Shidenur,
Age 49 years, Occ: Chief Offier,
Town Municipal Council,
Lakshmeshwar, Tq.: Shirahatti,
Dist.: Gadag.
... Petitioner
(By Shri H.M. Dharigond, Advocate)
And:
1. The State of Karnataka,
Rep. by its Secretary,
Department of Urban Development,
Vikas Soudha, Bengaluru-560 001.
2. The Karnataka Lokayukta,
Upalokayukta-1, Multistoried
Building, Dr.B.R. Ambedkar Veedhi,
Bengaluru-560 001.
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3. The Karnataka Lokayukta,
Addl. Registrar Enquiries-11,
M.S. Building, Dr. B.R. Ambedkar
Veedhi, Bengaluru-560 001.
4. The Managing Director,
Karnataka State Financial Corporation,
Head Office: No.1/1,Thimmaiah Road,
Near Contonment Railway Station,
Bengaluru-52.
... Respondents
(By Shri G.K. Hiregoudar, GA for R1;
Shri M.B. Hiremath, Advocate for R2 & R3;
Shri M.H. Patil for Shri Prakash S.Udikeri, Adv. For R4)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to set aside the report
No.LOKA/ARE-11/ENQ-119/2014, dated 06.05.2016,
submitted by respondent No.3, produced as Annexure-B,
and recommendation made by respondent No.2 vide
No.LOK/ARE-11/ENQ-119/2014, dated 13.05.2016,
produced as Annexure-C and to set aside the second show
cause notice No.NAE 153 DMK 2013, dated 01.06.2016,
issued by respondent No.1, produced as Annexure-D.
This petition having been heard and reserved on
16.10.2020 for orders and coming on for pronouncement of
order, this day, M.I.Arun, J., delivered the following:
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ORDER
1. Aggrieved by the orders passed by respondent No.3- the Addl. Registrar for Enquiry-II, Karnataka Lokayukta; recommendation made by respondent No.2-Upa-Lokayukta-I, pursuant to the said order of respondent No.3; the show cause notice issued by respondent No.1 dated 01.06.2016, pursuant to the recommendation of Upa-Lokayukta-I; and the order of respondent No.4, the Managing Director, Karnataka State Financial Corporation imposing the penalty of compulsory retirement on the petitioner pursuant to the enquiry report of respondent No.3 and the recommendation of respondent No.2, the petitioner has preferred this writ petition.
2. The petitioner was appointed on 24.06.1996 in the Karnataka State Financial Corporation, Bengaluru as an Assistant. He was subsequently deputed to the Urban Development Department and was posted as a Chief Officer in Bankapur Town Municipality. In the year 2011, a case came to be filed against the -4- petitioner on the allegation made by one Mr. Maltesh that to facilitate him by issuing a No Objection Certificate, to obtain electricity connection from KEB;
the petitioner demanded a bribe of Rs.10,000/- and that he was trapped by the Lokayukta Police while receiving the said bribe amount. The alleged incident resulted in a departmental enquiry being conducted against the petitioner by respondent No.3 and also criminal proceedings under the relevant provisions of the P.C. Act before the Prl. District and Sessions Judge, Haveri.
3. After the enquiry was completed, respondent No.2 gave a report dated 06.05.2016 finding him guilty of the allegations alleged. Pursuant to the enquiry report, respondent No.2 made a recommendation on 13.05.2016 that the petitioner be imposed penalty of compulsory retirement from the services, pursuant to the recommendation, second show cause notice was issued by the Government to the petitioner on -5- 01.06.2016 asking him as to why action should not be initiated against him as per the recommendation.
4. Accepting the said recommendation, respondent No.4 by an order dated 07.02.2017 imposed penalty of compulsory retirement from the services of the Corporation on the petitioner. However, the Sessions Court by its judgment dated 20.07.2017 acquitted the petitioner of the offences alleged to have been committed under the various provisions of the P.C. Act.
5. The contention of the petitioner is that the report of respondent No.3 is perverse. That respondent No.2 has no authority to make recommendation as to what penalty or punishment has to be imposed. It is his further contention that he is honorably acquitted by the Sessions Court in the criminal case based on the same set of facts and the evidence let in as it was before the disciplinary proceedings and hence, the enquiry report of respondent No.3 has to be rejected -6- and consequently the recommendation of respondent No.2, the show-cause notice issued by respondent No.1 and the penalty imposing compulsory retirement from the service is to be set aside.
6. Per contra, the respondents have justified the enquiry report, recommendation made thereon, issuance of second show cause notice and imposition of penalty of compulsory retirement by respondent No.4.
7. The Hon'ble Apex Court in the case of Union of India and others vs. P.Gunasekaran reported in (2015) 2 SCC 610, wherein at paragraph No.12 has held as under:
"12. xxxxx In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;-7-
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;-8-
(v) interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
8. Taking into consideration the aforementioned principles, it is noticed that in the instant case, the enquiry has been held by the Addl. Registrar for Enquiry, Karnataka Lokayukta in accordance with law and there is no illegality or perversity is forthcoming in the said report of respondent No.3 and the petitioner has miserably failed to show that any of the alleged perversity or illegality on the same.
9. Section 12 of the Karnataka Lokayukta Act empowers Upa-Lokayukta to make recommendation to the Government based on the enquiry report of the Addl.
Registrar for Enquiry. Accordingly, the report has been made and there is no illegality or perversity in the same. Based on the said report, respondent No.1 has -9- issued second show cause notice to the petitioner and there is no illegality on the same also.
10. Considering the findings in the enquiry report, respondent No.4 has imposed the penalty of compulsory retirement on the petitioner. The only contention i.e., deserve consideration is effect of acquittal of the petitioner in the criminal case initiated against him, wherein, he was charged for the offences under the P.C. Act.
11. The Hon'ble Supreme Court in the case of M. Paul Anthony v. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679, at paragraph Nos.34 and 35 has held as follows:
"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 there from".
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
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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 "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.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
This principle was again considered by the Hon'ble Supreme Court in the case of G.M. Tank Vs. State of Gujarat, reported in (2006) 5 SCC 446, wherein at paragraph Nos.30 and 31, which has held as under:
"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental
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case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge- sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the
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courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
This principle was again considered by the Hon'ble Supreme Court in the case of S. Bhaskar Reddy Vs. Supt. of Police reported in (2015) 2 SCC 365 and the relevant paragraph Nos.21 to 26, which are as under:
"21. It is an undisputed fact that the charges in the criminal case and the disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Our attention was drawn to the said judgment which is produced at Ext. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the disciplinary proceeding are similar. From perusal of the charge-sheet issued in the disciplinary proceedings and the enquiry report submitted by the enquiry officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial Judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges
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framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and under Sections 307 and 302 read with Section 34 IPC. The law declared by this Court with regard to honourable acquittal of the accused for criminal offences means that they are acquitted for want of evidence to prove the charges.
22. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in Inspector General of Police v. S. Samuthiram [(2013) 1 SCC 598: (2013) 1 SCC (Cri) 566 : (2013) 1 SCC(L&S) 229], the relevant paragraph from the said case reads as under:
(SCC p. 609, para 24) "24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in RBI v.
Bhopal Singh Panchal [(1994) 1 SCC 541 :
1994 SCC (L&S) 594 : (1994) 26 ATC 619]. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it
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can possibly be said tha the accused was honourably acquitted."
(emphasis supplied) After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in Joginder Singh v. UT of Chandigarh [(2015) 2 SCC 377].
23. Further, in Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd. [Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,(1999) 3 SCC 679 : 1999 SCC (L&S) 810 : (1999) 2 SCR 257] this Court has held as under: (SCC p. 695, paras 34-35) "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
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by a judicial pronouncement with the finding that the '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.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
(emphasis supplied)
24. Further, in G.M. Tank v. State of Gujarat [(2006) 5 SCC 446:2006 SCC(L&S) 1121 : AIR 2006 SC 2129] this Court held as under: (SCC pp. 456 & 460-61, paras 20 & 30-31) "20. ... Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
***
30. The judgments relied on by the learned counsel appearing for the
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respondents are distinguishable on facts and on law. ... It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The
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distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810 :
(1999) 2 SCR 257] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
25. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings.
26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case."
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The Hon'ble Supreme Court in the case of A.P SRTC vs. Mohd. Yousuf Miya reported in (1997) 2 SCC 699 in paragraph No.8 has held as under:
"8. ... The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances.
There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict
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standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
(emphasis supplied) The Hon'ble Apex Court in the case of Ajit Kumar Nag v. Indian Oil Corpn. Ltd. reported in (2005) 7 SCC 764 in paragraph No.11 has held as under: "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation
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from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., 2004 SCC On Line Cal 59: (2004) 4 LLN 512] dismissing him from service deserves to be quashed and set aside."
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The Hon'ble supreme Court in the case of Shashi Bhusan Prasad Vs. Inspector General, CISF reported in (2019) 7 SCC 797 in paragraph Nos.19, 21 and 22 has held as under:
"19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of "preponderance of probability". Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment [Shashi Bhusan Prasad v. CISF, 2008 SCC On Line Ori 544 : 2008 Lab IC 3733] in detail and needs no interference by this Court.
20. The judgment in M. Paul Anthony case [M. Paul Anthony v. Bharat Gold Mines Ltd.,
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(1999) 3 SCC 679 : 1999 SCC (L&S) 810] on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under:
(SCC p. 691).
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceeding still the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be
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given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
21. It may not be of assistance to the appellant in the instant case for the reason that the charge levelled against the appellant in the criminal case and departmental proceedings of which detailed reference has been made were on different sets of facts and evidence having no nexus/co-relationship. The kind of criminal act/delinquency which he had committed in discharge of his duties in the course of employment. That apart, much before the judgment of the criminal case could be pronounced, the departmental enquiry was concluded and after the enquiry officer had held him guilty, he was punished with the penalty of dismissal from service.
22. The judgment in G.M. Tank case [G.M. Tank v. State of Gujarat, (2006) 5 SCC 446 :
2006 SCC (L&S) 1121] on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/co-relationship based on different sets of facts and evidence which has been independently enquired in the disciplinary
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proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service."
(emphasis supplied)
12. Thus, as per the ratio laid down in the aforementioned judgments, a single act can lead to initiation of departmental proceedings and also a criminal case against the person. When a trial for criminal offence is conducted, it should be in accordance with the proof of offence as per the evidence defined under the provisions of the Evidence Act, the guilt of the accused needs to be proved beyond all reasonable doubt.
However, the nature of evidence in a departmental proceedings is entirely different from that of criminal trial. The standard of proof is not the same. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Here malfeasance or misfeasance of the delinquent officer is proved based on the preponderance of probabilities. Thus, it is possible that a person can be acquitted in a criminal
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trial, but found guilty of the misconduct in a departmental proceedings, both arising out of the same act. However, when the charges in both proceedings of the criminal case and the disciplinary proceedings are similar and the evidence let in is also same and in the criminal trial when the accused has been acquitted honourablly for want of evidence, in that event it is not advisable to hold that the said person guilty in the departmental proceedings on the same piece of evidence. However, it should be noticed that the acquittal needs to be honourable. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to establish the charge leveled against the accused, we can term it at Honourable acquittal. In those circumstances, a divergent finding of the departmental enquiry can be set aside.
13. In the instant case, the departmental enqiry is conducted by the Addl. Registrar for Enquiry, Karnataka Lokayukta, who is of the cadre of District
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and Sessions Judge. The said enqiry has been conducted in accordance with law. He has found the petitioner guilty of the charges leveled against him.
The criminal trial also has been conducted by a District and Sessions Judge. In the judgment of the District and Sessions Judge and Special Judge in Spl.(Lok) C.No.3/2013, dated 20.07.2017, which is subsequent to the enquiry report and the disciplinary proceedings initiated against the petitioner, it has been held as under:
"29) It is settled position of law that mere grave circumstances alleged in the case are not sufficient to prove the charge alleged in the case.
In other words, it can be observed here that mere grave allegations do not takes the place of proof of the charge alleged in the case. The prosecution by adducing an acceptable evidence has to prove the charge alleged in the case. In the aforesaid para of the discussion, this court has observed that oral evidence of PWs.1 to 5 are not sufficient to prove the serious charges alleged against the accused. When that is so, this court has no option except to extend the benefit of doubt arising in the evidence of prosecution to the accused and to answer the points raised for consideration in the negative. Accordingly I answer Point Nos.1 and 2 in the negative."
14. Thus, by reading of the judgment in Spl.(Lok) C.No.3/2013, it is clear that the acquittal cannot be
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considered as Honourable acquittal, but because the prosecution failed to prove its case beyond all reasonable doubt. This type of acquittal cannot be a ground for the petitioner to seek setting aside the enquiry report of respondent No.3, the recommendation of respondent No.2, second show cause notice issued by respondent No.1 and the penalty of compulsory retirement imposed by respondent No.4.
15. For the aforementioned reasons, the writ petition is devoid of merits and hereby dismissed.
SD/-
JUDGE SD/-
JUDGE Vnp*