Punjab-Haryana High Court
State Of Haryana And Others vs Satish Kumar on 30 May, 2022
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia, Vikas Suri
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA-565-2020 (O&M)
Reserved on: 04.05.2022
Pronounced on : 30.05.2022
State of Haryana and others
......Appellants
Versus
Satish Kumar
......Respondent
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI
Present: Ms. Palika Monga, DAG, Haryana
for the appellants.
Mr. Akshay Bhan, Senior Advocate with
Mr. Sushant Kareer, Advocate for the respondent.
*****
G.S. Sandhawalia, J.
Present letters patent appeal is directed against the order dated 23.10.2019 passed by learned Single Judge in CWP No.13364 of 2018, whereby the writ petitioner who was working as Assistant Sub Inspector (ASI) who was dismissed on 29.10.2015 (Annexure P-5), whose appeal had been dismissed on 08.06.2016 (Annexure P-7) and also the revision on 21.10.2017 (Annexure P-10), had set aside the same. He was directed to be reinstated in service while quashing the departmental proceedings of charge- sheet dated 21.04.2015 (Annexure P-2A) including the report of the Inquiry Officer dated 26.05.2015 (Annexure P-4). Resultantly, the State had been asked to reinstate the writ petitioner in service and release all statutory benefits in accordance with law within a period of two months.
2. The reasoning as such to arrive at the said conclusion by the learned Single Judge is that the criminal proceedings and the departmental 1 of 20 ::: Downloaded on - 31-05-2022 01:36:06 ::: LPA-565-2020 (O&M) -2- proceedings were overlapping and therefore, it would be oppressive to allow the findings recorded in the departmental proceedings. The learned Single Judge was of the view that since the criminal proceedings resulted in an acquittal of the employee, therefore, the appellate authority and the revisional authority were not correct as they had applied their mind vaguely and it was a fit case to remand the matter, had there been no reference to acquittal. It was accordingly held that if the charges of misconduct and indiscipline were falling out of the FIR which was registered under Section 7 and 13 of the Prevention of Corruption Act, 1988 and the writ petitioner alongwith Manoj were stated to have played pivotal role in making the complainant believe to get his brother discharged or removed from the list of accused persons in FIR No.454 of 2014. Since both of them were not investigating officers, there could not be any imputation on the writ petitioner. Therefore, connection between the writ petitioner and Manoj Kumar having been not proved, it was held that the department had miserably failed to prove any nexus, as the reasoning would not stand the touchstone of reasonability and the impugned orders being not sustainable, leading to the dismissal order and subsequent orders being set aside.
3. Counsel for the State has in her usual vehement style ably argued that Rule 16.3 of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) would have to be examined, which protected the police officers on account of an acquittal and 2 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -3- they were not to be proceeded departmentally on the same charge or on a different charge on the basis of evidence cited in a criminal case. It was submitted that there were exceptions to the said rule and where the criminal charge fails on the technical ground and the prosecution witnesses have been won over, the benefit was not to be given. She further submitted that the complainant Shamsher Singh had supported the case in the departmental proceedings, but not in the criminal proceedings. Reliance was placed upon the statement of the said person recorded under Section 164 Cr.P.C. to contend that there was a demand from the writ petitioner who was serving as ASI and was posted in CIA-3, Rohtak. That the money had been handed over to Satish Kumar who had placed the same in Manoj's car, in pursuance of the demand raised. It was, accordingly, submitted that the charge-sheet had lowered the image of the police department and gross negligence was rampant. Merely on account of the prosecution witnesses turning hostile and on technical grounds acquittal had been recorded. It was further submitted that standard of proof in criminal proceedings and departmental proceedings is different and it was only the preponderance of probability which would prevail and merely acquittal would not be a ground as such to exonerate the writ petitioner.
4. Senior counsel for the respondent-employee on the other hand has submitted that the learned Single Judge was justified in passing the said order. More so when the charge-sheet was 3 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -4- overlapping the departmental side, in which charge had been framed and proceedings had been conducted unsuccessfully against the employee. It was, accordingly, submitted that the allegations in the FIR were against the employee that he had made contact with the brother of the complainant and demanded Rs.5 lakhs in FIR No.454 dated 30.11.2014 which has been registered at Police Station Sampla against his brother and the investigation was done by one S.I. Rattan Singh, Crime Branch, Rohtak. It was submitted that allegations were against Satish that he had contacted the accused that they had a talk with the investigating officer and his case would get lighter and he would be acquitted. It was, thus, submitted that the criminal Court had acquitted the writ petitioner after detailed consideration and even proceedings under Section 340 Cr.P.C. had been initiated and a private complaint was ordered to be filed against the complainant under Section 193 Cr.P.C. Therefore, the finding had been recorded that the guilt of the writ petitioner had not been proved on the ground that it was beyond shadow of reasonable doubt and once the benefit of doubt had been extended on the criminal side, the same had to be also extended in the departmental proceedings. It was submitted that the writ petitioner was not the investigating officer in the case and, therefore, the question of making a demand would not arise.
5. A perusal of the paper-book would go on to show that FIR No.37 dated 15.12.2014 was lodged against the writ petitioner employee as noticed above, wherein allegations were made that he 4 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -5- had raised a demand upon the brother of the complainant namely Shera against whom an FIR No.454 dated 30.11.2014 had been lodged at Police Station, Sampla. Resultantly, the complainant Shamsher Singh brother of Shera had approached the authorities and an FIR was lodged under Section 7 of the Prevention of Corruption Act, 1988. The statement of Shamsher Singh was recorded on 16.12.2014 (Annexure R-1), wherein he stated that Satish Kumar was posted at CIA-3, Rohtak and the investigation was being done by the same branch against his brother. The accused Sher Singh had contacted one Manoj, who was known to him who had mentioned that he knew the writ petitioner Satish Kumar posted at CIA, Rohtak and resultantly the demand had been raised of Rs.5 lakhs for which time was asked for and an assurance was given that he could pay Rs.3 lakhs and balance after 2-3 days. The trap money had been sprinkled with pink powder and was to be given to the writ petitioner. Manoj had called him to come present at SBI Bank Market in Sector-3, Rohtak, where he had reached on the bike alongwith Dharambir and a Vigilance team had followed them. Hands had been shaken with the writ petitioner and confession had been taken place that the Investigating Officer would be talked to and there were allegations that the money was to be taken by the writ petitioner for doing the work. The same was placed in Manoj's car and at that time both of them had been caught red handed. Resultantly, departmental proceedings were initiated on the very next 5 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -6- day on 17.12.2014 and the charge-sheet was issued on 21.04.2015 (Annexure P-2A), which reads as under:-
"I, Vijay Pal, Deputy Superintendent of Police, Haryana Police, Rohtak after examining the statements of the prosecution witnesses and the documents, charge you O.R.P/A.S.I. Satish Kumar 1399/Rohtak that when you were posted in Crime Brnach-1, Rohtak as Researcher, then on 15.12.2014 the complainant Shamsher Singh son of Hawa Singh, Village Asan, District Rohtak had submitted that an application to the Inspector, State Vigilance Bureau, against you that My elder brother Shera son of Hawa Singh is an agriculturist and also studies in Ph.D. Crime Branch-3, Rohtak has got registered an FIR No.454 dated 30.11.2014 P.S. Sampla against my brother. The names of other persons are also mentioned in this F.I.R. My brother is innocent and he is being falsely implicating. The investigation of this case is being conducted by S.I. Rattan Singh, Crime Branch-3, Rohtak, A.S.I. Satish Kumar, posted in C.I.A, Rohtak has contacted my brother Shera on his mobile No.98138- 26769 from the mobile of his brother bearing No.78189- 56400. Satish told that Rs.5,00,000/- would be charged. They had a talk with S.I. Rattan Singh. Your case would get lighter, with the result you would be acquitted from the Court, otherwise, you go anywhere, you would not get the bail. We do not want to give bribe, but the persons in the Crime Branch are compelling us to give bribe. I want to get them caught red-handed. Legal action should be taken. As per the talk, we have come with Rs.3,00,000/-. Kindly legal action be taken. Upon this, Inspector Basheshar Singh, State Vigilance Bureau registered an F.I.R. No.37 dated 15.12.2014 against you U/s 7/13 P.C. Act P.S State Vigilance Bureau, Rohtak
6 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -7- and during the investigation you O.R.P./A.S.I. Satish Kumar No.1399/Rohtak was caught red handed by taking a bribe of Rs.3,00,000/- from the complainant Shamsher Singh. Thus by taking a bribe you have shown sheer carelessness and indiscipline and lowered the image of the Department of Police in the eyes of general public. Your this act is condemnable and punishable.
Sd/-
Deputy Superintendent of Police, Rohtak.
Dated: 21.4.2015"
6. Eventually, the Inquiry Officer examined Shamsher Singh as prosecution witness No.4 including the Inspector of the State Vigilance, Hissar as prosecution witness No.5, who had arrested the writ petitioner and recovered Rs.3 lakhs from him and Manoj. Keeping in view the facts on record, on 26.05.2015 (Annexure P-4), the Inquiry Officer came to the conclusion that the charge as such was proved.
7. Thereafter, show cause notice was issued on 01.06.2015 by the Disciplinary Authority to which reply was filed on 26.06.2015 (Annexure P-4A) by the writ petitioner. Resultantly, the Superintendent of Police, Rohtak vide order dated 29.10.2015 (Annexure P-5) came to the conclusion while agreeing with the report of the Inquiry Officer that the employee being a member of the disciplined force was involved in immoral activities and had lowered the image of the department. He thus came to the conclusion that he was not entitled to remain in service and he has committed moral turpitude and order of dismissal was passed. Relevant part of the
7 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -8- said order reads as under:-
"I have again considered the matter minutely and found that the erring official while posted in Crime Branch-1 Rohtak was arrested by the employees of State Vigilance Bureau on 15.12.2014 while taking bribe of Rs.3 lacs against the demand of Rs.5 lacs, for making the lighter, from Shamsher Singh son of Hawa Singh, Village Asan, whose brother namely Shera was named in an F.I.R. No.454/14, police station Sampla, which is not only condemnable but punishable also. Whereas being a member of the disciplined force like Department of Police, it was the duty of the erring official to protect the life and property of the citizens of the country. But the erring official being doing his job honestly, he was involved in immoral activities. Such incidents have lowered down the image of the Department of Police in the general public. So far as the quantum of punishment to the erring official is concerned, I understand that it is not in the interest of justice to allow him to remain in service, because the erring official has committed moral turpitude and misconduct. Thus, now allowing the erring official to remain in service will be harmful for the general public and by allowing the erring official to remain in service, the possibility of causing irreparable loss to the working and trust of the Department of Police cannot be rules out.
Thus, in view of the above, I decide this departmental inquiry by giving the punishment of dismissal of O.R.P./A.S.I. Satish Kumar No.1399/Rohtak from service with immediate effect and no financial and other benefits will not be given of the suspended period pertaining to this departmental inquiry. The order may be entered in the order book and a copy thereof be supplied
8 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -9- to the erring official free of cost.
Sd/- (Shashank Anand) Superintendent of Police, Rohtak.
No.1463-68/Steno Dated: 29.10.2015"
8. An appeal filed by the writ petitioner was dismissed by the Inspector General of Police, Rohtak Range after hearing the employee and the authority came to the conclusion that it was a serious case which was still under trial and therefore, keeping in view the record in mind had rejected the appeal on 08.06.2016 (Annexure P-7). In the meantime, the acquittal had taken place on 06.02.2017 (Annexure P-8) and the trial Court noticed that the main witness Shamsher Singh had turned hostile and came to the conclusion that there was no direct evidence or proof of demand of bribe, apart from his statement. It was also noticed that the employee had been apprehended and his hands and the cap were got washed with the solution of sodium carbonate and water had been turned pink, which led to the inference of the accused of receiving money. But since the same had been recovered from the rear seat of the Maruti Car, the explanation under Section 313 Cr.P.C. was accepted that it could have been from the hands of the said vigilance official, who had touched the hands of the accused. In such circumstances, the benefit of doubt as such had been granted.
9. The revision thereafter was rejected on 21.10.2017 (Annexure P-10) by the Director General of Police, Haryana by noting that the burden of proof in departmental inquiry and criminal case are not the same and he cannot avail the benefit of his acquittal.
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The said order reads as under:-
"This order shall dispose of revision petition dated 05.05.2017 submitted by Ex-ORP/ASI Satish Kumar No.1399/RTK (hereinafter referred to as revisionist) against the appellate order dated 08.06.2016 passed by the Inspector General of Police, Rohtak Range, Rohtak vide which punishment of dismissal from service inflicted upon him by the Superintendent of Police, Rohtak vide order dated 29.10.2015 was upheld.
The punishment was awarded to the revisionist in a departmental enquiry was conducted against him on the allegations that while he was posted in CIA-1 Rohtak as Investigating Officer. A complaint of Sh. Shamsher Singh R/o village Aashan, District Rohtak in State Vigilance Bureau stated that his old brother namely Shera doing agriculture and studying in Ph.D. An FIR No.454 dated 30.11.2014 PS Sampla has already been registered against him and a few other persons are also including in this FIR, but name of his brother has been included wrongly in this FIR. Investigating Officer of this case SI Rattan Singh of CIA-3 has enquired into the matter. ORP/ASI Satish Kumar No.1399/RTK demanded Rs.5,00,000/- for dispose of the matter by calling on his mobile No.9813826769. In this regard FIR No.37 dated 15.12.2014 u/s 7/13 PC Act, in PS State Vigilance Bureau, Rohtak was registered and revisionist was caught red handed for taking illegal gratification of Rs.3,00,000/- from the complainant.
The revisionist is present before the undersigned. I have heard him. The allegation of corruption levelled against the revisionist were fully proved during the departmental proceedings. Complainant Shamsher Singh has stated before the enquiry officer that he has paid bribe money of Rs.3 lacs to the revisionist. The burden of proof in departmental enquiry and criminal case are not the same 10 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -11- hence he cannot avail the benefit of his acquittal in the criminal case. There is no merit in the revision and the same is rejected. This order is issued today under my seal. Copy of this order is handed over to the revisionist by hand today in my presence."
10. Keeping in view the above background, we are of the considered opinion that the argument raised by the State counsel is well justified. The learned Single Judge seems to have misdirected himself while passing the said order and totally loosing sight of the fact that the difference in standard of proof, which is to be relied upon by the Criminal Court and in the departmental proceedings are all on separate footings. The benefit of doubt in criminal case was given since the Special Judge felt that there is a chink in the case of the prosecution and the accused would be gravely prejudiced, if the conviction still takes place, inspite of the fact that the complainant had turned hostile.
11. The principle of law stands settled beyond any anvil of doubt in the judgment of the Apex Court passed in Deputy Inspector General of Police and another Vs. S. Samuthiram, 2013 (1) SCT 115. In the said case, the State was aggrieved against the order of the High Court of Madras, wherein on account of acquittal on the criminal side, which was based on the same set of facts and evidence, the order of termination had been set aside. The High Court had reversed the order of the Tribunal, which had noticed that there was an acquittal in favour of the employee, who was 11 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -12- serving in the Armed Reserved Police. The judgment in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 had also been considered by the Tribunal, which had also been considered by the learned Single Judge. Eventually, the Apex Court came to the conclusion while noting that complainant had appeared before the Inquiry Officer and had deposed in support of the case. It was, accordingly, held that acquittal was on technical reasons and, therefore, the same was not accepted and it was held that he was not entitled for reinstatement. Resultantly, the order of the High Court was set aside. The relevant portion of the said judgment reads as under:-
"23. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses
12 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -13- since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
12. Similarly, in State of West Bengal and others VS. Sankar Ghosh, 2014 (1) SCT 580, the Apex Court came to the conclusion that acquittal by the trial Court was on account of the fact that accused persons could not be identified during the test identification parade, but the disciplinary authority was of the view that there was vital evidence on record regarding recovery of firearm, money and unused writing pad and the money was also recovered from the house of the employee as well as the motorbike and car. The order of the Tribunal as well as of the High Court wherein reinstatement had been ordered in view of the acquittal order, was set aside.
13. Similarly, in Baljinder Pal Kaur Vs. State of Punjab and others, (2016) 1 SCC 671, the Court was considering Rule 16.3 of the Punjab Police Rules which are applicable herein also and it had came to the conclusion that protection provided was not absolute and it hinges on either of views as mentioned. The learned Single Judge had relied upon the said provisions and the Apex Court while 13 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -14- reproducing the said provision has observed as under:-
"9..................16.3 Action following on a judicial acquittal: - (1) When a Police Officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not, unless: -
(a) the criminal charge has failed on technical grounds; or
(b) in the opinion of the court or of the Superintendent of Police, the prosecution witnesses have been won over; or
(c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or
(e) additional evidence admissible under rule 16.25(1) in departmental proceedings is available."
(2) ........................................................"
10. Rule quoted above provides that when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge subject to certain conditions. In the present case, as is evident from Rule 16.3, requirement of not punishing the officer departmentally is not absolute, and it hinges on either of the five conditions mentioned above [(a) to (e)]. From the copy of the order of acquittal passed by the Judge, Special Court, Ludhiana (Annexure P-6), it is evident that the 14 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -15- prosecution witnesses have turned hostile, and they appear to have been won over."
14. The said judgment would thus squarely apply to the fact of the present case, which has arisen from this Court. In the said case also on the criminal side, the employee had been acquitted of the charge taking money and sending the person to United States of America illegally, alongwith her husband while working as ASI with the Punjab Police. She had been acquitted by the criminal Court, but the Inquiry Officer had found that she was guilty of the charges. This Court had dismissed the writ petition seeking the quashing of the dismissal from the service, which was accordingly upheld.
15. A three Judge Bench judgment passed in Shashi Bhushan Prasad Vs. Inspector General Central Industrial Security Force and others, (2019) 7 SCC 797, which is also applicable to the issue in question, has wrongly been distinguished by the learned Single Judge. The principle of law laid down is that acquittal by the Court does not ipso facto absolve the employee from the liability under the disciplinary jurisdiction. The same may have been given on the peculiar facts and evidence. The Apex Court had thus refused to interfere in the order of the dismissal on account of the adverse finding of the disciplinary authority. The argument raised and the reasoning read as under:-
"5. The main thrust of submission of learned counsel for the appellant is that since both the criminal/departmental proceedings were based on same 15 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -16- set of facts and evidence, and after he has been acquitted by the Court of competent jurisdiction vide judgment dated 12th September, 1995, the Disciplinary/Appellate Authority was under an obligation to give precedence of the judicial proceedings and in the given circumstances, inflicting penalty of dismissal from service based on the report of inquiry was not legally sustainable and further submitted that the error has not only been committed by the departmental authorities but also by the High Court in not appreciating the submission made by the appellant in its right earnest and in the given circumstances, the judgment impugned dated 17th July, 2008 deserves to be interfered by this Court.
xxxxxxxxxxxxxx
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
16 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -17- 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 in detail and needs no interference by this Court."
16. In Karnataka Power Transmission Corporation Limited Vs. Sri C. Nagaraju & another, (2019) 10 SCC 367, the same principle was laid down that a different yardstick applies for disciplinary proceedings and for criminal prosecution and the standard of proof cannot be equated. The relevant portion of the said judgment reads as under:-
"13. Having considered the submissions made on behalf of the Appellant and the Respondent No.1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court."
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17. The Apex Court recently in the case of State of Karnataka and another Vs. Umesh, 2022 SCC online SC 345, wherein the employee had been compulsorily retired after departmental proceedings also held to the same effect. On the criminal side the employee had been proceeded against the provisions under the provisions of Prevention of Corruption Act, but the benefit of doubt had been given. The short question which has been answered reads as under:-
"12. The enquiry report concluded in this backdrop that the misconduct was established on the basis of the evidence of PW2 and PW3. Referring to the evidence of the complainant, the inquiry officer held that if in truth the respondent had not demanded a bribe and PW1 was returning a loan amount to the respondent as stated by DW 1, there was no necessity for the complainant to visit the office of the Lokayukta and to sign a complaint. The complainant was also present for the pre-trap and trap mahazar and appended his signatures. The enquiry report finds that there was no reason for PW2 and PW3 to depose falsely. No material inconsistencies were elicited during the cross examination by the respondent. Consequently, the defense that the amount which was recovered from the respondent represented a loan was disbelieved and the misconduct was held to be proved.
13. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the
18 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -19- offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction."
18. Thus, keeping in view the above settled principles of law, we are of the considered opinion that the learned Single Judge failed to keep the said principles in mind and has wrongly interfered in the departmental inquiry by quashing the charge-sheet and the inquiry report only on the ground that there were overlapping and there was an acquittal as such.
19. The dismissal was never on the basis of the conviction, but was on independent set of circumstances, wherein the complainant himself had appeared and reiterated his version. It is not disputed that the writ petitioner was arrested by the State Vigilance Bureau team and his hands had turned pink and, thus, he had handled the money. It is also a matter of fact that the writ petitioner might not have been the Investigating Officer, but he was working in the same wing where the complainant's brother was 19 of 20 ::: Downloaded on - 31-05-2022 01:36:07 ::: LPA-565-2020 (O&M) -20- sought to be arrested and, therefore, the demand having been made and received would go on to show that he was involved in the misconduct, which was proved on record by examining the necessary witnesses.
19. In such circumstances, the appeal filed by the State is allowed and the judgment of the learned Single Judge is set aside and the writ petition filed by the employee is dismissed.
(G.S. SANDHAWALIA)
JUDGE
May 30, 2022 (VIKAS SURI)
Naveen JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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