Karnataka High Court
Sri Nagesh vs The State Of Karnataka on 27 September, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE C.M.POONACHA
WRIT PETITION NO.19669/2022 (S-KSAT)
BETWEEN:
SRI NAGESH
S/O LATE B.S. RAJU
AGED ABOUT 41 YEARS
R/AT DOOR NO.21
VINAYAKA BADAVANE
II PHASE, VIJAYANAGAR
4TH STAGE, MYSORE-570032.
... PETITIONER
(BY SRI.SATISH, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
REP. BY ITS PRINCIPAL SECRETARY
M.S. BUILDING
BANGALORE- 560 001.
2. THE KARNATAKA LOKAYUKTHA
REP. BY ITS REGISTRAR
M.S. BUILDING, BANGALORE-560 001.
...RESPONDENTS
(BY SRI SHESHU V, HCGP FOR R1
SRI ASHWIN S HALADY, ADV. FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM THE KSAT BANGALORE IN RESPECT OF THE
IMPUGNED ORDER DATED 25.05.2022 PASSED IN
A.NO.3600/2019 (ANNEXURE-A) AND SET ASIDE THE
IMPUGNED ORDER DATED 25.05.2022 PASSED IN
A.NO.3600/2019 (ANNEXURE-A) BY THE KSAT BANGALORE AND
CONSEQUENTLY ALLOW THE SAID A.NO.3600/2019 AS PRAYED
FOR BY THE PETITIONER BEFORE THE TRIBUNAL (ANNEXURE-
B) IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 12.09.2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE C.M. POONACHA
CAV ORDER
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
Petitioner, a dismissed Village Accountant is
before this Court under Article 226 of the
Constitution of India challenging the order dated
25.05.2022 in Application No.3600/2019 passed by
the Karnataka State Administrative Tribunal at
Bengaluru (for short, 'the Tribunal') dismissing his
application questioning the order of dismissal dated
05.03.2019 (Annexure-A10).
3
2. Brief facts of the case are that, petitioner
was working as Village Accountant at the relevant
point of time at Alaganchi Circle, Nanjangud Taluk and
he was also in-charge of Nagarle Circle, Nanjangud
Taluk. On the complaint of one Sri.S.M.Arafat alleging
demanding illegal gratification to transfer Khatha, trap
was held against the petitioner on 21.02.2007. It is
the case of the respondent No.2 that petitioner
received amount from the complainant and the
amount was recovered from the petitioner. After
investigation, second respondent forwarded report
dated 20.03.2009 under Section 12(3) of the
Karnataka Lokayukta Act, 1984 (for short, '1984 Act').
Based on the said report, first respondent -
Government by Government Order dated 17.04.2009,
entrusted the enquiry against the petitioner to second
respondent under Rule 14A of the Karnataka Civil
Services (Classification, Control and Appeal) Rules,
4
1957 (for short, 'CCA Rules'). On entrustment of
enquiry, second respondent issued articles of charge
(Annexure-A1) dated 18.07.2009.
3. In the meanwhile, charge sheet was filed in
Spl.C.No.20/2008 before the Special Court and III
Additional District and Sessions Judge, Mysore for the
offence punishable under Sections 7, 13(1)(d) read
with 13(2) of the Prevention of Corruption Act, 1988
(for short, '1988 Act') against the petitioner and one
another. The Sessions Court by its judgment dated
11.02.2011 in Spl.C.No.20/2008 convicted the
petitioner for the offence punishable under Sections 7,
13(1)(d) read with 13(2) of 1988 Act and sentenced
to undergo rigorous imprisonment for a period of one
year and also to pay fine of Rs.10,000/-, in default, to
undergo simple imprisonment for further period of
three months. Against which, the petitioner preferred
Crl.A.No.211/2011 before this Court. This Court by
5
judgment dated 17.01.2022, allowed the appeal and
acquitted the petitioner of the charges for the offence
punishable under Sections 7, 13(1)(d) read with
Section 13(2) of 1988 Act.
4. In the departmental enquiry, before the
second respondent, first respondent - Disciplinary
Authority examined three witnesses as PW1 to PW3
and marked documents as many as Ex.P1 to Ex.P12,
whereas petitioner examined himself as DW1 apart
from marking Ex.D1 to Ex.D3 documents. The Enquiry
Officer by report dated 19.02.2018 held that the
charges alleged against the petitioner are proved and
held that the petitioner committed misconduct. The
Upa Lokayukta in his recommendation dated
22.02.2018 recommended for imposition of
punishment of dismissal from service under Rule
8(viii) of CCA Rules. The first respondent -
Government issued second show cause notice dated
6
28.03.2018, enclosing Enquiry Report as well as
recommendation of Upa Lokayukta. The petitioner
submitted his reply on 03.10.2018. The first
respondent - Disciplinary Authority by order dated
05.03.2019 imposed punishment of dismissal under
Rule 8(viii) of CCA Rules. Questioning the same,
petitioner was before the Tribunal in Application
No.3600/2019. The Tribunal under impugned order
dated 25.05.2022, rejected the application holding
that no valid and justifiable grounds are made out by
the petitioner to interfere with the findings of the
Enquiry Officer and that the penalty of dismissal of the
applicant from service is reasonable, proper and
proportionate. Challenging the said order along with
order of dismissal, petitioner is before this Court in
this writ petition.
5. Heard the learned counsel Sri.K.Satish for
petitioner, learned High Court Government Pleader
7
Sri.V.Seshu for respondent No.1 and learned counsel
Sri.Ashwin S. Halady for respondent No.2. Perused the
entire writ petition papers as well as decisions relied
on by the learned counsel for the parties.
6. Learned counsel for the petitioner would
submit that impugned order of the Tribunal is without
looking into the material on record and without
appreciating the fact that none have supported the
case of respondents. Learned counsel would submit
that before the Enquiry Officer, PW2 - shadow witness
has turned hostile. Further, he submits that there is
no evidence or material to prove the demand and
acceptance of alleged illegal gratification. There is also
no evidence to prove the charge on the touchstone of
preponderance of probabilities. Learned counsel for
the petitioner would submit that the Enquiry Officer
has recorded a perverse finding. There is no basis to
hold that the charges are proved against the
8
petitioner. He submits that when PW2 has deposed
that petitioner has not demanded illegal gratification,
Enquiry Officer could not have held that charges are
proved. Learned counsel Sri.K.Satish would submit
that allegation or charge against the petitioner is very
serious and charge of corruption cannot be proved
lightly unless there is strong and convincing evidence.
Placing reliance on the decision of the Hon'ble Apex
Court in the case of UNION OF INDIA AND OTHERS
VS. GYAN CHAND CHATTAR1, learned counsel would
submit that charge of corruption cannot be proved
only on probabilities.
7. Though the petitioner has taken the
contention that charge is vague and not specific and
also that reply to the second show cause notice is not
considered by the Disciplinary Authority, he has not
pressed into service those contentions seriously.
1
(2009) 12 SCC 78
9
8. Learned counsel for the petitioner
vehemently contended that the Enquiry Officer as well
as Disciplinary Authority failed to take note of the fact
that on the same set of facts, identical charge and on
the same set of witnesses and evidence, in
Crl.A.No.211/2011, petitioner is acquitted of the
charges. Learned counsel referring to the judgment in
Crl.A.No.211/2011 submits that it is crystal clear that
this Court has appreciated the evidence on record and
held that charge of corruption against the petitioner is
not proved. He further submits that petitioner has
been honorably acquitted in the criminal case. As
such, Enquiry Officer as well as Disciplinary Authority
ought to have taken note of the judgment in
Crl.A.No.211/2011 and exonerated the petitioner of
the charges leveled against him. In that regard,
learned counsel places reliance on the decision of the
Hon'ble Apex Court in RAM LAL VS. STATE OF
10
RAJASTHAN AND OTHERS2. Further, he submits that
the Hon'ble Apex Court in RAM LAL case supra has
held that if the charges in the departmental enquiry
and the criminal Court are identical and similar, and if
the evidence, witnesses and circumstances are one
and the same, then the matter acquires different
dimension. Further, he submits that it is also observed
by the Hon'ble Apex Court that if the prosecution
miserably fails to prove the charge, the same shall
have to be taken note of by the Court in judicial
review. Thus, he prays for allowing the writ petition by
setting aside the order of the Tribunal as well as order
of dismissal.
9. Per contra, learned counsel Sri.Ashwin S.
Halady for respondent No.2 vehemently opposes the
contentions of the petitioner by submitting that
departmental enquiry would be to find out
2
(2024) 1 SCC 175
11
misconduct committed by a Government servant in
accordance with the disciplinary proceedings rules,
whereas criminal proceedings are for the offences
where strict rules of evidence would be applicable.
Learned counsel would further submit that findings of
the Criminal Court would have no bearing on the
departmental proceedings, since the purpose of the
two proceedings are entirely different. Further, he
submits that in the instant case, though PW2 is
treated as hostile to some extent, PW1 - complainant
and PW3 - Investigating Officer have fully supported
the case of first respondent - Disciplinary Authority.
He submits that in departmental proceedings where
the allegation is acceptance of illegal gratification,
though demand is not proved, if the amount is
recovered from the Delinquent Government Official, it
would amount to misconduct since the Government
servant is not permitted to receive any amount under
12
the Conduct Rules. Thus, he prays for dismissal of the
writ petition.
10. Learned High Court Government Pleader
Sri.V.Seshu for respondent No.1 would support the
submission of the learned counsel for respondent No.2
and further submits that the petitioner was given
ample opportunity to defend himself in the enquiry.
Further he submits that it is not the case of the
petitioner that there is procedural irregularity in
conducting enquiry. He further submits that charges in
the departmental enquiry are to be proved on the
principles of preponderance of probabilities and under
judicial review, sufficiency of evidence cannot be gone
into. Thus, he prays for dismissal of the writ petition.
11. Learned counsel for the petitioner placed
reliance on the following judgments of the Honb'le
13
Apex Court as well as judgments of Co-ordinate Bench
of this Court:
i) RAM LAL VS. STATE OF RAJASTHAN AND
OTHERS (supra)
ii) UNION OF INDIA AND OTHERS VS. GYAN
CHAND CHATTAR (supra)
iii) S. BHASKAR REDDY AND ANOTHER VS.
SUPERINTENDENT OF POLICE AND
ANOTHER3
iv) P.V.RUDRAPPA VS. THE STATE OF
KARNATAKA AND ANOTHER4
v) Dr.SHIVAYOGI M VIJAYAPURA VS. THE
STATE OF KARNATAKA AND OTHERS5
12. Learned counsel for the respondent No.2
Sri.Ashwin S. Halady placed reliance on the judgment
of the Honb'le Apex Court in the case of STATE OF
KARNATAKA AND ANOTHER VS. UMESH6.
3
(2015) 2 SCC 365
4
W.P.No.9642/2020
5
W.P.No.104351/2021
6
(2022) 6 SCC 563
14
13. The Honb'le Apex Court in RAM LAL case
(supra) was considering the case of dismissal of a
constable of Rajasthan constabulary on a proved
misconduct in a departmental enquiry and against
whom on identical allegation criminal trial was also
conducted wherein he was acquitted. One of the
question was "on the facts of the case, what is the
effect of acquittal, ordered by the Appellate Judge in
the criminal trial on the order of dismissal passed in
the departmental enquiry". While answering the said
question, taking note of the facts at paragraph 25 of
the judgment, the Honb'le Apex Court has held as
follows:
"25. Expressions like "benefit of doubt"
and "honourably acquitted", used in judgments
are not to be understood as magic
incantations. A court of law will not be carried
away by the mere use of such terminology. In
the present case, the Appellate Judge has
recorded that Ext. P-3, the original marksheet
15
carries the date of birth as 21-4-1972 and the
same has also been proved by the witnesses
examined on behalf of the prosecution. The
conclusion that the acquittal in the criminal
proceeding was after full consideration of the
prosecution evidence and that the prosecution
miserably failed to prove the charge can only
be arrived at after a reading of the judgment in
its entirety. The Court in judicial review is
obliged to examine the substance of the
judgment and not go by the form of expression
used."
14. In RAM LAL case (supra), the charge was
that delinquent therein has altered his date of birth in
the marks sheet issued by the Government Secondary
School. The Honb'le Apex Court noticing that in the
criminal proceedings, the Appellate Court while
acquitting the delinquent had recorded that in the
original marks sheet (Ex.P3), date of birth was
correctly shown, held that in view of the findings
recorded in the criminal case, the findings recorded in
16
the disciplinary proceedings cannot be allowed to
stand.
15. In GYAN CHAND CHATTAR (supra), the
Honb'le Apex Court was considering a departmental
proceedings wherein dismissed employee was
acquitted in criminal proceedings on the same set of
facts. In that process, the Honb'le Apex Court at
paragraphs 21 and 22 has held as follows:
"21. Such a serious charge of corruption
requires to be proved to the hilt as it brings
civil and criminal consequences upon the
employee concerned. He would be liable to be
prosecuted and would also be liable to suffer
severest penalty awardable in such cases.
Therefore, such a grave charge of quasi-
criminal nature was required to be proved
beyond any shadow of doubt and to the hilt. It
cannot be proved on mere probabilities.
22. Witnesses were examined before
the enquiry officer that they have heard that
the said respondent was asking but none of
17
them was able to point out who was that
person who had been asked to pay 1%
commission. One of such witnesses deposed
that some unknown person had told him.
Learned Single Judge came to the conclusion
that the knowledge of the witnesses in this
regard was based on "hearsay statement of
some unknown persons whom they did not
know". This was certainly not legal evidence to
sustain such a serious charge of corruption
against an employee."
16. Subsequently, the Honb'le Apex Court in
UMESH (supra), was considering the effect of acquittal
in criminal case on departmental enquiry and at
paragraphs 16, 18 and 19 has held as follows:
"16. 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 offence beyond
reasonable doubt. The accused is entitled to a
presumption of innocence. The purpose of a
disciplinary proceeding by an employer is to
18
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.
17. xxxxxxxxxx
18. In the course of the submissions, the
respondents placed reliance on the decision
in Union of India v. Gyan Chand Chattar [Union
of India v. Gyan Chand Chattar, (2009) 12 SCC
78 : (2010) 1 SCC (L&S) 129] . In that case,
six charges were framed against the
respondent. One of the charges was that he
demanded a commission of 1% for paying the
railway staff. The enquiry officer found all the
six charges proved. The disciplinary authority
19
agreed with those findings and imposed the
punishment of reversion to a lower rank.
Allowing the petition under Article 226 of the
Constitution, the High Court observed that
there was no evidence to hold that he was
guilty of the charge of bribery since the
witnesses only said that the motive/reason for
not making the payment could be the
expectation of a commission amount. The
respondent placed reliance on the following
passages from the decision : (SCC pp. 85 &
87, paras 21 & 31)
"21. Such a serious charge of
corruption requires to be proved to the
hilt as it brings both civil and criminal
consequences upon the employee
concerned. He would be liable to be
prosecuted and would also be liable to
suffer severest penalty awardable in
such cases. Therefore, such a grave
charge of quasi-criminal nature was
required to be proved beyond the
shadow of doubt and to the hilt. It
cannot be proved on mere probabilities.
***
31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be 20 dealt with keeping in mind that it has both civil and criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491 :
1977 SCC (L&S) 298 : (1977) 1 SLR 750] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] , SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges.
Enquiry has to be conducted fairly, 21 objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises.
There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law."
(emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard 22 that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."
17. The Honb'le Apex Court in UMESH (supra), has explained the decision of GYAN CHAND CHATTAR (supra) and has particularly observed that the observations of the Honb'le Apex Court in paragraph 21 of GYAN CHAND CHATTAR are not the ratio decidendi of the case and those observations were made while discussing the judgment of the High Court.
18. In S. BHASKAR REDDY (supra), the Honb'le Apex Court has discussed the expression "honorable acquittal" relying on the earlier decisions in CAPT. M. PAUL ANTHONY VS. BHARAT GOLD MINES LTD.,7 and G.M.TANK VS. STATE OF GUJARAT8.
7 (1999) 3 SCC 679 8 (2006) 5 SCC 446 23
19. A Co-ordinate Bench of this Court in P.V.RUDRAPPA (supra), taking note of the decisions of the Hon'ble Apex Court in RAM LAL (supra) and COMMISSIONER OF POLICE, NEW DELHI VS. MEHER SINGH9 with regard to 'honorable acquittal' has held as follows at paragraph 3(b) and (c):
"3. AS TO PLEA OF HONOURABLE ACQUITTAL & ITS EFFECT ON DISCIPLINARY ACTION:
(a) ..............
(b) The concept of 'honourable acquittal' is easy to say, but difficult to employ, there being no statutory definition thereof, more particularly in the IPC, Cr.PC & Indian Evidence Act. Lord Williams, J. in ROBERT STUART WAUCHOPE vs. EMPEROR (1934) 61 ILR Cal.168 observed: "The expression 'honourably acquitted' is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals...". The Apex Court in 9 (2013) 7 SCC 68 24 COMMISSIONER OF POLICE, NEW DELHI v MEHER SINGH, (2013) 7 SCC 68 at para 25 explained the same:
"...the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". ... when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted."
(c) The idea of 'honourable acquittal' is not easy to define although it can be illustrated. If an accused is discharged at pre- trial stage or the criminal proceeding launched against him is quashed, there is no difficulty in treating the same as the cases of 'honourable acquittal' for the limited purpose of disciplinary enquiry. (We are mindful that the question of acquittal comes post trial). A case of 'honourable acquittal' may arise when, after trial the Criminal Court orders acquittal with any of nearly the following illustrives: 25
(i) the accused is falsely prosecuted to seek vengeance or for some ulterior motive.
(ii) that there is absolutely no evidence to implicate the accused in the proceedings;
(iii) there is very little evidence which is insufficient to connect the accused with the commission of crime;
(iv) the prosecution has miserably failed to prove the charges against the accused;
(v) the prosecution witnesses are unworthy of any credit and their version does not generate any confidence.
We again say that the above are only illustrative and not exhaustive. We would also add a caveat that in considering as to whether the case of delinquent is of 'honourable acquittal', the entire judgement in Criminal Case should be perused. It is also desirable to secure a copy of record of the proceedings for examination, unless the said exercise poses practical difficulty. At least, it should be open to the delinquent employee to produce such copies."
20. In S.BHASKAR REDDY (supra), P.V.RUDRAPPA (supra) and Dr.SHIVAYOGI M 26 VIJAYAPURA (supra), the Courts have come to the conclusion that the Delinquent Official concerned was acquitted by the Criminal Court honorably. As such, the order of dismissal was interfered with.
21. The Hon'ble Apex Court in UMESH (supra) has made it clear that in criminal trial, burden lies on prosecution to establish ingredients of offence beyond reasonable doubt and accused is entitled to presumption of innocence. The purpose of disciplinary proceedings, on the other hand is to enquire into allegations of misconduct against Delinquent Employee, which is to be proved on the basis of preponderance of probabilities. It is also observed that Rules of evidence which apply to criminal trial are distinct from those governing disciplinary enquiry. It is also made clear that the acquittal of accused in criminal case does not debar employer from proceedings in exercise of disciplinary jurisdiction. 27 More importantly, it is to be noted that whether the disciplinary proceedings should continue or not where such employee is acquitted in criminal proceedings would largely depend on the facts of each case and evidence let in, in the departmental enquiry by the Disciplinary Authority.
22. Now coming to the facts of the present case, acquittal of petitioner in Crl.A.No.211/2011 is to be appreciated taking note of the findings recorded at paragraphs 34 and 38 in judgment dated 17.01.2022 (Annexure-D) which reads as follows:
"34. In the light of the above facts and circumstances, the trial Court was not justified in holding that the charge of demand of illegal gratification was proved beyond reasonable doubt. So far as acceptance, the trial Court based on the explanations Exs.P15 and 16 holds that the explanation helps the prosecution to raise the presumption under Section 20 of the Act.28
38. So far as accused No.2, though money was allegedly recovered from him, the evidence of independent witnesses i.e. PWs.2 and 3 in that regard was shaky. The denominations of the currency notes mentioned in pre trap mahazar and post trap mahazar Exs.P2 and P3 and the FSL Report Ex.P37 were inconsistent. The Investigating Officer did not explain that. To clarify that the FSL authorities were not examined. Under the circumstances, the trial Court was not justified in raising presumption under Section 20 of the Act in convicting the appellants. The impugned judgment is unsustainable in law. Therefore the appeals are allowed."
23. There is no dispute with regard to recovery of money from the petitioner. To prove the charge under Section 7, 13(1)(d) read with Section 13(2) of 1988 Act, both the demand and acceptance are to be proved beyond reasonable doubt. Though money is recovered, it is observed that the Investigating Officer has not explained the inconsistency and also that FSL 29 Authorities were not examined. Hence, the Appellate Court acquitted the petitioner in the criminal trial.
24. The acquittal of the petitioner in criminal proceedings is not on the ground that there is absolutely no evidence to implicate the petitioner; that the prosecution has miserably failed to prove the charge or that the petitioner-accused is falsely prosecuted to seek vengeance or for some ulterior motive. On the other hand, the amount is recovered from the petitioner and only because FSL authorities were not examined, the Appellate Court acquitted the petitioner. The circumstances under which, the petitioner is acquitted of the charges in the criminal proceedings would not fall under any one of the circumstances explained by Co-ordinate Bench of this Court in P.V.RUDRAPPA CASE (supra). To examine as to whether it is honourable acquittal or otherwise as observed by co-ordinate Bench in P.V.Rudrappa's 30 case, it would be advisable to appreciate the entire judgment in the criminal case along with the record of the proceedings if available.
25. In criminal proceedings, P.W.1 in his evidence stated that when he asked accused No.1 whether his work has been done, accused No.1 stated that if he pays the amount, he would do his work. As asked, he paid the amount to the second accused i.e., Nagesh, petitioner herein. He also stated that the petitioner received the amount from right hand, then he put it into his right side pant pocket. Further, he has deposed that in the temple premises, the first accused asked to pay the amount to second accused i.e., petitioner herein and accordingly, the complainant paid Rs.10,000/- to the petitioner on the date of trap. In the cross-examination, he has categorically stated that mahazar notes were paid to the second accused i.e., petitioner herein and hand 31 wash of the petitioner turned pink. P.W.2-shadow witness has not supported the case of the prosecution and he has been cross-examined by the prosecution. In the said circumstances it is not a honourable acquittal.
26. As held by the Honb'le Apex Court in catena of decisions and in UMESH case (supra) the charge in a departmental proceedings is to be proved on the basis of preponderance of probabilities and rules of evidence which apply to criminal trial is distinct from those governing disciplinary enquiry. In the instant case, in the departmental enquiry, the disciplinary authority has examined 3 witnesses in support of its case. P.W.1 Sri.S.M.Arafat, the complainant, P.W.2 D.N.Thammanna Gowda-Shadow witness and P.W.3- Sri.Jayaram, Investigating Officer. It is settled position of law that in a departmental proceedings, the Court or Tribunal under Article 226 of the Constitution of 32 India would not examine the sufficiency of evidence in the process of judicial review. But, it would only examine as to whether there is some evidence or whether it is a case of no evidence.
27. In departmental enquiry, P.W.1 i.e., complainant and P.W.3-Investigating Officer have fully supported the case of the prosecution. P.W.1- complainant stated that the second accused i.e., petitioner herein informed that for change of katha, Rs.30,000/- is to be paid. Further, he deposed that in the temple premises, accused No.1 asked to pay amount to the second accused. Accordingly, Ex.P2 mahazar notes amounting to Rs.10,000/- were paid to second accused Sri.Nagesh i.e., petitioner herein. P.W.1 has denied the suggestion of the petitioner- DGO that he has not demanded Rs.30,000/- illegal gratification. Further, P.W.1 has deposed that mahazar notes of Rs.10,000/- were paid to second 33 accused i.e., petitioner herein and the hand wash of the petitioner turned to pink.
28. The petitioner-DGO has not disputed recovery of amount from him. The Enquiry Officer in his enquiry report (Annexure-A6) has extracted the statement of the petitioner DGO i.e., Ex.P5, wherein the petitioner has admitted his participation in the crime. The Enquiry Officer has discussed in detail the statement of the petitioner and evidence of the petitioner at paragraphs 21 to 26 and has rightly come to the conclusion that the petitioner is involved in the crime and has received amount from the complainant. At paragraph 31, the Enquiry Officer on the admission of D.W.1 i.e., petitioner herein, has noted that the petitioner has admitted that the work of the complainant was pending at the time of trap. Learned counsel for the petitioner vehemently argued that though the amount is recovered from the 34 petitioner, there is no demand and demand of illegal gratification is not proved.
29. In a departmental proceedings, it is to be remembered that the enquiry would be to find out whether there is misconduct on the part of the DGO. In the instant case, receiving of amount by the petitioner and recovery of amount from the petitioner is proved. Receiving any amount being a government servant would be misconduct in terms of Rule 16(4) of KCS (Conduct) Rules, 1966 and since the petitioner has received the amount and the same is recovered, it cannot be said that the petitioner has not committed any misconduct. There is sufficient evidence to prove the misconduct on the part of the petitioner in receiving illegal gratification.
30. No infirmity in the enquiry proceedings is pointed out. It is not the case of the petitioner that principles of natural justice is violated. On the other 35 hand, the petitioner through his Advocate has cross- examined the witnesses examined on behalf of Disciplinary Authority and he has examined himself as D.W.1 apart from marking Ex.D1 to Ex.D3 before the Enquiry Officer.
31. For the reasons recorded above, there is no merit in any of the contentions raised by the learned counsel for the petitioner and we are not inclined to interfere with the impugned order. Accordingly, the writ petition stands rejected.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(C.M. POONACHA) JUDGE NC/MPK CT: bms