Karnataka High Court
Jameer Pasha vs State Of Karnataka on 28 June, 2022
Bench: G.Narendar, P.N.Desai
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO.35043 OF 2018 (S-KSAT)
BETWEEN:
JAMEER PASHA,
AGED ABOUT 50 YEARS,
S/O. ABDUL NAZEER,
WORKING AS SECOND DIVISION
ASSISTANT, O/O TAHSILDAR,
KOLAR.
... PETITIONER
(BY SRI. K.N.PHANINDRA., SENIOR ADVOCATE FOR
SRI. KARTHIK.V., ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT,
M.S BUILDING, BENGALURU-560 001.
... RESPONDENT
(BY SRI. RAJENDRA PRASAD.,HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DTD 30.03.2017 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BANGALORE IN APPLICATION
NO.9730 OF 2016 VIDE ANNX-A AND ALLOW APPLICATION
2
NO.9730 OF 2016 FILED BY THE PETITIONER BEFORE THE
TRIBUNAL VIDE ANNX-B AS PRAYED FOR THEREIN AND GRANT ALL
CONSEQUENTIAL BENEFITS AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, P.N.DESAI J., PASSED THE
FOLLOWING:
ORDER
This petition is filed challenging the order dated 30.03.2017 passed in Application No.9730/2016 by the Karnataka State Administrative Tribunal, Bengaluru, wherein the tribunal dismissed the application.
2. In brief the contention of the petitioner is that he was working as Group-D employee in the Department of Revenue with effect from 25.05.1988 and at the relevant point of time, the petitioner was working at NadaKacheri, Byrakur, Kolar District. The petitioner was promoted as Second Division Assistant on 31.07.2003. On 21.05.2009, an application was made by one Mr.Thimmanabhovi for issue of grant certificate and Saguvali chit in respect of land bearing Sy.No.10 to the extent of 02 acres 20 guntas of Kaggalanatha Village. It was 3 alleged by the said Thimmanabhovi that for issuance of RTC, the petitioner demanded bribe amount of Rs.2,000/- and the same was complained to the office of the Lokayukta. In this regard, a trap was laid in the office of the petitioner. On the basis of the said trap, a criminal case was filed against the petitioner before the Principal Sessions Judge, Kolar. Then in the criminal case, the learned Sessions Judge vide order dated 07.03.2011, acquitted the petitioner. Subsequently, after acquittal, a departmental enquiry was initiated and the enquiry was entrusted to the office of the Lokayukta under Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules (for short hereinafter referred to as 'KCS (CCA), Rules) by the State Government. Thereafter, the Government by referring to the enquiry report vide order dated 26.09.2016, has imposed the punishment of compulsory retirement from service against the petitioner. The said order came to be challenged by the petitioner before the tribunal.
The tribunal dismissed the said application. Aggrieved by the same, this present writ petition is filed.
43. We have heard Sri. K.N.Phanindra, learned Senior counsel for Sri.Karthik V, learned counsel for petitioner and Sri. B.Rajendra Prasad, learned HCGP for respondent.
4. Learned Senior counsel for the petitioner argued that the tribunal has dismissed the application of the petitioner on the ground that the acquittal of the petitioner by the criminal court was not a honorable acquittal, wherein, the criminal court has given a categorical finding that there was no evidence to prove the demand and acceptance of bribe by the petitioner. The phraseology employed by the criminal court cannot said to be illegal. On the other hand, it is a clear case of an honorable acquittal. The learned counsel further argued that the criminal court has fully exonerated the accused from the charge leveled against him, after holding a full fledged trial. Again on the same set of facts and evidence disciplinary enquiry was initiated in order to trouble the petitioner. The learned counsel argued that both the complainant and shadow witnesses have not supported the case of the prosecution and except the investigating officer, 5 the other witnesses have not supported the charge against the petitioner. Evidence of shadow witness is also not enough to prove the charge against the petitioner. The tribunal without considering the pleadings and the materials placed on record, rejected the application. Hence, prayed to allow the writ petition.
5. On the other hand, learned HCGP argued that the consideration of departmental enquiry are different from appreciation of evidence in criminal case. It is based on preponderance of probabilities and strict rules of Evidence Act is not applicable. Learned HCGP submitted that the Enquiry Officer after considering the evidence placed against the Delinquent Government Officer (for short hereinafter referred to as 'DGO') has held the charges are proved. The disciplinary authority after considering the explanation imposed appropriate penalty of compulsory retirement. Therefore, merely because the petitioner is acquitted in the criminal case, is not a ground to set aside finding of the Departmental 6 Enquiry and the punishment imposed on the petitioner. Hence, prayed to dismiss the petition.
6. We have perused the records.
7. Having heard the submissions made by learned counsel for the parties, the point that would arise for our consideration is:
"When there is a criminal case and departmental enquiry are instituted against the petitioner on the identical set of evidence, facts and circumstances, what is the effect of acquittal of petitioner in criminal case on the departmental proceedings against him?"
In this regard, it is useful to refer to the principles stated by the Hon'ble Supreme Court.
8. The Hon'ble Supreme Court in the case of G.M.Tank Vs. State of Gujarat and others - (2006) 5 SCC 446 held that normally where the accused is acquitted honorably and completely exonerated of the charges, it would not be expedient to continue departmental enquiry on the 7 very same charge or grounds or evidence. At paragraph No.21 to 24 it is held as under:
"21. We shall now scan through the judgments on this issue.
22. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999) 3 SCC 679, the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In Paragraph 34, this Court held as under:
"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 the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They 8 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."
23. In R.P. Kapur vs. Union of India - (1964) 5 SCR 431, a Constitution Bench of this Court observed: "If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable." (emphasis supplied) 9
24. In Corpn. of the City of Nagpur, Civil Lines, Nagpur & Anr. Vs. Ramchandra G. Modak & Ors. - (1981) 2 SCC 714, the same question arose before this Court. This Court, in paragraph 6, held as under:
"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honorably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. " (emphasis supplied)."
9. In the case of Roop Singh Negi Vs. Punjab National Bank and others - (2009) 2 SCC 570 Hon'ble Supreme Court dealt with the manner in which the charges 10 are required to be proved in a departmental enquiry and at paragraph Nos.16, 17, 18, 21, 22 and 23 it is held as under:
"16. In Union of India vs. H.C.Goel [(1964) 4 SCR 718, it was held:
"22.....The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.
23. That takes us to the merits of the respondent's contention that the conclusion of the 11 appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondent's case is, is there any evidence on which a finding can be made against the respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the 12 enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that Charge 3 is proved against him is based on no evidence."
17. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
"17. The departmental proceeding is a quasi- judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be 13 based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
18. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. - (2006) 4 SCC 713, whereupon both the learned counsel relied upon, this Court held:
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental 14 proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements - (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject- matter of the charges is wholly illegal. [See 15 Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v.
Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v. Commissioner of Police and Ors. (1999) 2 SCC 10]."
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be 16 applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
10. Further the Hon'ble Supreme Court in the case of Allahabad Bank and others Vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 at paragraph Nos.7 and 10 it is held as under:
7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty - bound to examine the matter and grant 17 relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply 18 reproduced the findings of the Disciplinary Authority. All told, the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.
10. The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court's direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period 19 between the date of dismissal and the date of superannuation would not also be justified.
11. It is evident from the principles stated in the above referred decisions that the writ court would be slow in interfering with the findings of fact recorded by a departmental authority on the basis of evidence available on record. But it is equally true, that in a case, where the disciplinary authority records a finding that is unsupported by any evidence, whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. When there is no infirmity in the order passed by the disciplinary authority and appellate authority, the writ court is justified in not interfering with the 20 order passed by such order of the tribunal. In the light of these decisions, we have considered the petitioner's contention.
12. Admittedly, a criminal case was instituted against the petitioner stating that the petitioner/accused demanded a sum of Rs.2,000/- as bribe for official favour, it was subsequently reduced to a sum of Rs.1,500/-. The petitioner received an advance of Rs.1,000/- on 27.05.2009. It is alleged that if the complainant pays the balance sum of Rs.500/-, petitioner would proceed to make an entry of his name in the Pahani (RTC). Admittedly, the criminal case ended in acquittal of petitioner on 07.03.2011. Thereafter, in the year 2011, respondent No.2 moved for entrustment of an enquiry and after enquiry, the punishment of compulsory retirement from service was imposed on petitioner on 26.09.2016. Totally six witnesses were examined as PWs.1 to 6 on behalf of the prosecution before the criminal court and out of them in the disciplinary enquiry proceedings, except PW.3 - Gangadharaiah and PW.5 - Vasanthkumar, other 21 witnesses i.e., PW.1 - Thimmanabhovi, PW.2 - Shivashankar, PW.4 - Thimmagangaiah and PW.6 - Manjunath/I.O. were examined. The complainant who was examined as PW.1, did not support the case of the prosecution. PW.2 has clearly stated during the evidence in criminal case and during the enquiry proceedings that he has not heard DGO demanding Rs.500/- from the complainant and he was standing about 10- 15 feet away. Due to the distance, he could not hear the conversation. Investigating Officer/PW.6 - Manjunath has admitted before the criminal court that during the course of investigation, he came to know that name of the complainant has already been entered in the computerised pahani (RTC) much before filing of the complaint by the complainant against the petitioner. PW.6 also stated that the complainant was not fluent either in writing or reading Kannada and put his signature on the written complaint drafted by some other person. PW.4 admitted that he was unable to identify the voice of the DGO and he stated that the voice recorded was not of the DGO. It is clear from the evidence that name of the complainant was appearing in computerized RTC from the year 22 2003-2004. Therefore, it cannot be believed that for entering the name of complainant to RTC, the petitioner demanded bribe amount. The phani's are computerized and anybody can take the computerized phani by going to "Bhoomi" app. a Government of Karnataka Website. Hence, as on the date of filing of the complaint, admittedly no work of the complainant was pending with the petitioner/DGO. Therefore, the question of the petitioner demanding money for showing the official favour does not arise. The finding of the tribunal is based on some guess work. There is no iota evidence against DGO. The tribunal ought to have exonerated the petitioner from the charges leveled against him. We have perused the order dated 29.06.2016 (Annexure-13) passed by the Government imposing penalty on petitioner of compulsory retirement.
There is no discussion or reasons as to why the report is to be accepted. Even the reply of the petitioner/Delinquent Employee is not referred and no reasons are found as to why the reply was not acceptable?
2313. In order to appreciate that as to whether the acquittal of petitioner in criminal case is honorable acquittal or not, it is necessary to refer to the judgment passed in PCA C.C.No.5/2010 dated 07.03.2011 by the learned Sessions Judge, Kolar in PCA C.C.No.5/2010
14. Learned Principal Sessions Judge at paragraph No.16 of judgment observed as under:
"16. It is submitted by the learned counsel for the accused that, the entire case of prosecution is false. PW1 Thimmanabovi and PW2 Shivashankar are the two witnesses examined by the prosecution to prove that accused demanded and accepted the bribe.
Unfortunately, for the prosecution PW.1 Thimmanabovi, complainant has not supported the case of prosecution and has totally turned hostile.
It is the case of prosecution that, the land bearing Sy.No.10 of Kaggalanatha village was granted to the complainant by Tahsildar, Mulbagal by an order dated 29.06.2009 under No.LND RUO 195/1991-92 dated 29.06.1996. This fact has not been denied by the accused.24
The prosecution is able to prove that, the said land was granted to the complainant. It is further case of prosecution that, even as on 27.05.2009 the date on which complaint was filed, the name of complainant was not appearing in computerized pahani in respect of the said land. In this regard, he had approached the Taluka office many times. Hence, the prosecution was required to prove that the name of complainant was not appearing in computerized pahani.
The learned counsel has cross-examined PW3 Gangadharaiah and PW6 Manjunatha in this regard. PW3 Gangadharaiah in his cross- examination states that, from the year 2003-04 the name of complainant was appearing in computerized pahani. Similarly, PW6 Manjunatha states that, when he made enquiry, he came to know that, the name of complainant was already entered in computerized pahani before the complainant filed his complaint. It means that, complainant had filed a false complaint alleging that his name was not entered in computerized pahani in respect of Sy.No.10 of Kaggalanatha village and in this connection he approached the 25 accused. The very basis of the case of prosecution is shaken by this evidence."
15. Therefore, in view of the clear finding given by the learned Principal Sessions Judge in criminal case, the tribunal without considering the said judgment had opined that acquittal of the petitioner is not a honorable acquittal, such a observation of Tribunal is illegal and not based on any material.
16. The Hon'ble Supreme Court in the case of S.Bhaskar Reddy and another Vs. Superintendent of Police and another - (2015) 2 SCC 365 and at paragraph No.22 as under:
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, the relevant paragraph from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal 26 Singh Panchal - (1994) 1 SCC 541.. 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 can possibly be said that the accused was honourably acquitted."
(Emphasis supplied)."
17. The Coordinate Bench of this Court where one of us (Hon'ble GNJ) was a member, in W.P.No.114543/2015 dated 08.01.2021 in the case of Srikrishna Nagendrappa 27 Megalamani Vs. The State of Karnataka referred the decision of Hon'ble Supreme Court on the same set of facts and at paragraph nos.8 and 9 it is held as under:
8. 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 28 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 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 29 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."
30The 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 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 31 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."
The Hon'ble supreme Court in the case of Shashi Bhusan Prasad Vs. Inspector General, CISF reported in 32 (2019) 7 SCC 797 in paragraph Nos.19, 20, 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 of 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 33 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., (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) (Emphasis supplied by this Court) "22. The conclusions which are deducible from various 34 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 35 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 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 36 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 leveled 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 37 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 proceedings and in a criminal trial and acquittal in 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)
9. 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 38 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 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 39 accused, we can term it an Honourable acquittal. In those circumstances, a divergent finding of the departmental enquiry can be set aside."
18. Therefore, in view of the principles stated in the above decisions, if the charges leveled against the petitioner in criminal case and disciplinary enquiry are one and the same, then it is evident that they are based on identical set of facts, evidence. They are co-related with each other. The witnesses which are examined and documents which are marked both in the criminal trial and departmental enquiry are same. It is evident that the evidence is also same. The Sessions Court has held that it is a false case and there is no evidence to prove demand or acceptance of bribe by the petitioner. It is also pertinent to note that the petitioner was acquitted by the learned Sessions Judge holding that, there is not an iota of evidence against the petitioner to prove the demand and acceptance. But the tribunal wrongly held that it is not a honorable acquittal and upheld the punishment which is not based on legal finding and without application of mind.
40Therefore, penalty imposed by respondent No.1 based on the report dated 06.08.2015 warrants interference at the hands of this Court, as the same suffers from perversity and illegality.
19. In view of the discussions made above, we hold that the order of tribunal is needs interference by this Court.
Accordingly, we pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The order of the tribunal dated 30.03.2017 passed in Application No.9730/2016 (Annexure-A) is set aside. The application filed by petitioner is allowed.
(iii) Consequently, the Government order dated 26.09.2016 (Annexure-A18) is also set aside.
(iii) The respondent is directed to reinstate the petitioner forthwith.
(iv) The petitioner is entitled for all consequential benefits, in view of allowing the petition.
41(v) The said benefits shall be paid to petitioner by respondent within a period of three months from the date of receipt of a copy of this order.
(vi) No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE HJ