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2016 DIGILAW 421 (KAR)

Yellappa Veerappa Maddikar v. State of Karnataka

2016-06-07

H.G.RAMESH, RATHNAKALA

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ORDER : H.G. Ramesh, J. Whether non-filing of charge sheet by police against a government servant, on completion of investigation, precludes holding of a disciplinary inquiry against him on the same allegation of demanding a bribe made against him in the complaint to the police? This is the question that requires to be determined in this writ petition. 2. Correctness of the order dated 17.12.2015 passed by the Karnataka Administrative Tribunal dismissing the petitioner’s Application No.1561/2012 is questioned in this writ petition. The said application was filed by the petitioner to set aside the report dated 31.10.2011 submitted by the Upa-Lokayukta to the State Government under Section 12(3) of the Karnataka Lokayukta Act, 1984, recommending to hold an inquiry against the petitioner and another, and also to set aside the consequent order dated 17.12.2011 passed by the State Government entrusting the matter to the Upa-Lokayukta as provided under Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (‘the Rules’ for short) to hold an inquiry against the petitioner and another as per Rule 11 of the Rules. 3. We have heard learned counsel appearing for the petitioner and perused the record. The allegation against the petitioner is that on 03.03.2008, while he was working as a Commercial Tax Officer at Dhulakheda check post, he demanded a bribe of Rs.20,000/- from one Yellappa Kenchappa Paye (complainant) for releasing his concrete mixer machine. A copy of the complaint given by the said Yellappa is produced as part of Annexure B. This complaint resulted in registering a criminal case by Bijapur Lokayukta Police in Crime No.3/2008 against the petitioner and another for offences punishable under the provisions of the Prevention of Corruption Act, 1988. 4. The sole contention urged by the learned counsel for the petitioner is that, there is absolutely no material to hold any inquiry against the petitioner on the aforesaid allegation of demanding the bribe. He stated that on the same allegation, a criminal case in Crime No.3/2008 was registered by the Lokayukta Police against the petitioner and another, and after completion of investigation, not only the name of the petitioner was deleted from the criminal case Lokayukta Special Case No.8/2010 but he was also examined as a prosecution witness (PW5) in the said criminal case. In view of this, according to the learned counsel, holding of a disciplinary inquiry on the same allegation against the petitioner is not justified. 5. The Karnataka Administrative Tribunal, on a detailed consideration of the matter, has declined to interfere with the inquiry initiated against the petitioner pursuant to the report of the Upa-Lokayukta and the consequent Government Order referred to above. To examine the correctness of the impugned order, it is appropriate to refer to the following reasoning of the Administrative Tribunal: “12. We have carefully gone through the impugned report dated 31.10.2011. In the report dated 31.10.2011, the Hon’ble Upa-Lokayukta has examined the complaint dated 03.03.2008. The complaint against the applicant and Sri S.R. Biradar, was that the applicant demanded and accepted illegal gratification of Rs.20,000/- from the complainant to do an official favour. There was a trap conducted on the applicant and Sri S.R. Biradar. The Hon’ble Upa-Lokayukta has entrusted the matter to the Additional Registrar of Enquiries2 to issue a show cause notice. Accordingly, the Additional Registrar of Enquiries8 issued a show cause notice dated 09.09.2011 vide Observation Note of the Hon’ble Upa-Lokayukta, calling for explanation as to why a recommendation should not be to the competent authority for initiating disciplinary action against the applicant. The applicant submitted his reply dated nil to the said show cause notice. That reply was submitted to the Additional Registrar of Enquiries on 04.10.2011 (Annexure A11). After perusal of the report of the lokayukta police, the Hon’ble Upa-Lokayukta has recommended the 1st Respondent to initiate departmental proceedings against the applicant. The Hon’ble Upa-Lokayukta has got powers under Rule 12(3) of the Karnataka Lokayukta Act 1984 to recommend the 1st respondent. We find there is (no) error in jurisdiction or violation of Section 12(3) of the said Act. After perusal of the impugned report of the Hon’ble Upa-Lokayukta, we are of the view that the Hon’ble Upa-Lokayukta, has not exceeded his power under Section 12(3) of the Act 1984. Though the name of the applicant has been dropped from the criminal charge, there is no bar for initiation of proceedings under Rule 11 of the CCA Rules. The impugned report dated 31.10.2011 is in accordance with the provisions of Section 12(3) of the Act 1984. Accordingly, the contention of the applicant that the impugned report dated 31.10.2011 is illegal, is rejected. 13. The impugned report dated 31.10.2011 is in accordance with the provisions of Section 12(3) of the Act 1984. Accordingly, the contention of the applicant that the impugned report dated 31.10.2011 is illegal, is rejected. 13. We have carefully gone through the orders of the 1st Respondent dated 17.12.2011. The 1st Respondent is the competent authority to take a decision whether departmental proceedings can be initiated against the delinquent government official based on the report of the Hon’ble Upa-Lokayukta. While issuing the said order, the 1st Respondent has examined the complaint dated 03.03.2008 in S.C. No. 3/2008. The report of the investigation officer dated 03.03.2008. A trap was laid in Deepika Hotel against the applicant and Sri S.R. Biradar. The 1st Respondent has also examined the report of the Hon’ble Upa-Lokayukta dated 31.10.2011. The 1st Respondent has decided to entrust the matter to the Hon’ble Upa-Lokayukta to initiate departmental proceedings against the applicant. 16. …………… The contention of the applicant that after having dropped the name of the applicant from the charge memo in the criminal proceedings in Lokayukta Special Case No.8/2010 on the ground that there was no evidence against the applicant in respect of the charges framed against him and the applicant having been given evidence as PW5 in the said criminal proceedings, initiation of departmental proceedings on the very same charge is contrary to the decision of the Hon’ble Supreme Court. After careful consideration of the contention and the judgment of the Hon’ble Supreme Court, we refer the judgment of the Hon’ble Supreme Court in the case of State of West Bengal Vs. Shankar Ghosh [ 2014 (3) SLR 682 (SC)] it was held that acquittal or discharge in criminal proceedings shall not be a bar to award punishment in departmental proceedings in respect of the case or matter. In another judgment in the case of Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd. reported in [ (2005)7 SCC 764 ], the Hon’ble Supreme Court has held that acquittal of the appellant by judicial magistrate, ipso facto does not absolve him from liability under the disciplinary proceedings. The same view has been taken by the Hon’ble Supreme Court in the case of Commissioner of Police, New Delhi Vs. Narender Singh [2006 SCC 1800]. Ltd. reported in [ (2005)7 SCC 764 ], the Hon’ble Supreme Court has held that acquittal of the appellant by judicial magistrate, ipso facto does not absolve him from liability under the disciplinary proceedings. The same view has been taken by the Hon’ble Supreme Court in the case of Commissioner of Police, New Delhi Vs. Narender Singh [2006 SCC 1800]. It is seen that enquiry has been initiated against the applicant in view of severe misdemeanor and dereliction of duty, however, criminal case has resulted in dropping the proceedings against the applicant, the respondents took recourse to disciplinary proceedings. Considering the circumstances and nature of the case, we do not consider it is a fit case to interfere with the initiation of the disciplinary proceedings.” (Underlining supplied) 6. It is relevant to state that the aforesaid Yellappa Kenchappa Paye (complainant) had filed a written complaint on 03.03.2008 to the Lokayukta police, Bijapur, inter alia stating that the petitioner demanded a bribe of Rs.20,000/- to release his concrete mixer machine and that he asked the complainant to give the said amount at Bijapur. It is also stated therein that the petitioner stated his name and also gave his mobile phone number to the complainant. A copy of the complaint given by the said Yellappa is produced by the petitioner as part of Annexure-B. Hence, the contention urged by the learned counsel for the petitioner that there is absolutely no material against the petitioner to hold an inquiry is not correct. 7. The question of law raised in this petition is settled by a three judge Bench of the Supreme Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd. [ (2005)7 SCC 764 ]. We deem it appropriate to refer to the following observations made therein: 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. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.” (Underlining supplied) 8. As stated by a three Judge Bench of Supreme Court in Ajit Kumar Nag extracted above, termination of criminal proceedings against an employee does not ipsofactoabsolve him from the liability arising under the disciplinary jurisdiction as per service rules. It is also stated therein that the two proceedings, criminal and departmental, are entirely different and they operate in different fields and have different objectives. It is also stated therein that the two proceedings, criminal and departmental, are entirely different and they operate in different fields and have different objectives. Therefore, non-filing of charge sheet by police against a government servant, on completion of the investigation, or his acquittal in the criminal case, does not preclude the Disciplinary Authority from holding a disciplinary inquiry against him as per service Rules, on the same allegation made against him in the complaint to the police. 9. In our opinion, the consideration made by the Administrative Tribunal is in conformity with the law laid down by the Supreme Court in Ajit Kumar Nag (supra). No ground to interfere with the order of the Administrative Tribunal. The writ petition is devoid of merit and is accordingly dismissed. All contentions of the petitioner, except what is decided herein, are kept open to be raised by him in the disciplinary inquiry initiated against him.