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2020 DIGILAW 788 (KAR)

Govinda Kuntegowda v. State of Karnataka

2020-03-20

H.P.SANDESH, S.N.SATYANARAYANA

body2020
JUDGMENT : H.P. Sandesh, J. 1. This writ petition is filed praying this Court to issue writ or order to quash the impugned order dated 27.07.2018 passed by the Karnataka State Administrative Tribunal ('Tribunal' for short) in Application No. 1015/2017, Annexure-A in so far as it relates to denying the relief as prayed for and consequently, allow the said application and set aside the impugned order of penalty dated 11.01.2017 issued by the first respondent vide Annexure-A11. 2. The factual matrix of the case is that the petitioner was initially appointed as Bill Collector on 27.12.1987 and thereafter, promoted to the post of Secretary, Grade-II in the first respondent department. Thereafter, he was further promoted to the post of Secretary-Grade-I. He would contend that he has served the first respondent- Department with great honesty and sincerity right from inception into service to this day. 3. It is relevant to note that when petitioner was working as Secretary, Hanchya Panchayath, Mysuru Taluk and District, one Smt. Shobha, wife of B. Srinivas purchased a site and thereafter applied for change of khatha of said site in her name. In this connection, the husband of said Shobha has given a complaint before the Lokayuktha Police alleging that petitioner has demanded illegal gratification for change of khatha. On the basis of complaint, case was registered against the petitioner for the offence punishable under Sections 7, 13(l)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 after conducting trap which was numbered as Special Case No. 15/2011 on the file of Principal Sessions and Special Judge, Mysuru and the same has ended in acquittal. The Special Court has given a finding that the complaint against the petitioner is not proved, on appreciation of evidence available on record, accordingly acquitted the petitioner. The Lokayuktha Police have not preferred any appeal against the judgment dated 26.12.2012. 4. The case of the prosecution is that on 20.03.2009, the petitioner has accepted the bribe amount and transferred the same to one Sri Venkatesh and the said Venkatesh ran away from the spot and the bait money was not re-covered. In this connection, the petitioner and another were booked under Section 332 of Indian Penal Code which is numbered as C.C.No.581/2013. In the said case as well, the petitioner and another person were acquitted. In this connection, the petitioner and another were booked under Section 332 of Indian Penal Code which is numbered as C.C.No.581/2013. In the said case as well, the petitioner and another person were acquitted. In respect of the trap, the second respondent issued observation note and sought to initiate departmental enquiry against the petitioner and inspite of the petitioner giving reply to the same, the first respondent-Government, based on the report submitted by the second respondent, has entrusted the matter to the second respondent to hold an enquiry against the petitioner on 04.10.2011. There is absolutely no independent application of mind by the first respondent while passing such an order of entrustment of enquiry. 5. The second respondent has nominated the Additional Registrar of Enquiries-IV as the Enquiry Officer. The Enquiry Officer has framed the Articles of Charges and the petitioner has given a reply requesting to drop the proceedings. However, the Disciplinary Authority, instead of dropping the proceedings, recorded the evidence of four witnesses i.e., the complainant, shadow witness, panch witness and the Investigating Officer. The petitioner has also filed his written arguments on his behalf. However, very strangely, the Enquiry Officer has submitted the report holding that the charges levelled against the petitioner were proved. The Enquiry Officer has not considered the evidence adduced by the complainant and the shadow witness in a right perspective. The second respondent has accepted the enquiry report and made recommendation to the first respondent to impose a penalty of dismissal from service on the petitioner under Rule 8 (viii) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The first respondent has blindly accepted the enquiry report as well as recommendation of the second respondent and issued second show-cause notice calling for explanation and the petitioner has submitted his detailed reply to the second show-cause notice urging that the same is impermissible to hold an enquiry against him after he was honorably acquitted in the criminal case and there is no evidence against the petitioner to hold that charges are proved against him. In spite of the reply given by the petitioner, the same was not considered by the first respondent and passed an order of dismissal which was challenged before the Tribunal. In spite of the reply given by the petitioner, the same was not considered by the first respondent and passed an order of dismissal which was challenged before the Tribunal. The Tribunal though holds that the petitioner was acquitted in the criminal case, erroneously held that it is not a honorable acquittal and such finding of the Tribunal is contrary to material available on record. In fact, a bear reading of the order of acquittal in the criminal case would clearly demonstrate that the petitioner has been falsely implicated in the case and it has not extended the benefit of doubt in favour of the petitioner. Therefore, the finding of the Tribunal is contrary to records and the Tribunal has erred in denying the relief sought to set aside the order of dismissal. 5. A bear reading of order of acquittal dated 26.12.2012 shows that the prosecution has utterly failed to prove the charges levelled against him and he has been falsely implicated in the case. The Tribunal, instead of quashing the impugned order of penalty dated 11.01.2017, modified the same to that of com-I pulsory retirement. Mere registration of FIR itself would not amount to proof of commission of offence and that is not the scheme of either criminal jurisprudence or service law. In the absence of corroborated evidence to the complaint, the Enquiry Officer ought not to have come to the conclusion that charges levelled against the petitioner was proved. The order of the Tribunal is against the settled principle of law laid down in the recent decision of this Court in the case of Umesh v. State of Karnataka and another reported in 2018 (1) KLJ 605 (DB) : ( 2018 (1) AKR 515). The Tribunal has failed to maintain judicial consistency and propriety requires that the Tribunal shall follow its earlier order. The Tribunal has allowed similar and identical matter in Application Nos.5266/2017 and 10818/2016. The order of Trial Court unequivocally concludes that the petitioner has been honorably acquitted in the criminal case and no benefit of doubt is extended to the petitioner. 6. Learned counsel for the petitioner also in support of his argument relied upon the judgment of the Apex Court in the case of S. Bhaskar Reddy and another v. Superintendent of Police and another, reported in (2015) 2 SCC 365 : (2015 AIR SCW 571). 6. Learned counsel for the petitioner also in support of his argument relied upon the judgment of the Apex Court in the case of S. Bhaskar Reddy and another v. Superintendent of Police and another, reported in (2015) 2 SCC 365 : (2015 AIR SCW 571). The counsel referring this judgment would contend that when the criminal Court has honorably acquitted the petitioner, no departmental enquiry can be initiated on the same set of facts, since the charges levelled against the petitioner in the criminal case, as well as the departmental enquiry, are similar to each other. 7. Learned counsel for the petitioner also relied upon the judgment in the case of C.D. Venkatramana Shetty v. State of Karnataka and others reported in 2006 (6) AIR Kar 445 (DB). The counsel referring this judgment would contend that when the Judicial Officer has given his finding of acquittal, the decision rendered by the Judicial Officer will be preferred to the finding of the Enquiry Officer as the jurisdiction of the Enquiry Officer is quasi judicial in nature. 8. Learned counsel for the petitioner further relied upon the judgment in the case of Commissioner of Police, New Delhi and another v. Mehar Singh reported in 2013 (4) Supreme 531 : AIR 2013 SC 2861 . The counsel referring this judgment would contend that no departmental enquiry could be held against the petitioner, since he was acquitted by the Trial Court. The counsel would contend that Hon'ble Supreme Court has held that acquittal after full consideration of the case of prosecution and prosecution miserably failed to prove the charge amounts to honorable acquittal. In the instant case, the Trial Court has considered evidence and on overall appreciation of documentary as well as oral evidence, acquitted the petitioner from the charges levelled against him. Hence, there cannot be any departmental enquiry in respect of the same incident when he was honorably acquitted in the criminal case. 9. The Enquiry Officer has submitted perverse enquiry report which has no basis to hold that charges are proved in the enquiry. It is a case of no evidence and there is no oral evidence to link the charge. Further, the charge made against the petitioner relating to corruption cannot be proved merely based on conjectures and probabilities. 9. The Enquiry Officer has submitted perverse enquiry report which has no basis to hold that charges are proved in the enquiry. It is a case of no evidence and there is no oral evidence to link the charge. Further, the charge made against the petitioner relating to corruption cannot be proved merely based on conjectures and probabilities. Hence, the impugned order of penalty is opposed to the principles laid down in the judgment of the Apex Court in the case of Union of India and others v. Gyan Chand Chattar, reported in (2009) 12 SCC 78 . 10. Learned counsel for the petitioner also relied upon the order of the Co-ordinate Bench of this Court in W.P.No.40255/2018 dated 27.09.2019. The counsel referring this order would contend that when the factum of demand is not proved and one of the circumstances which can be considered regarding non-proving of the factum of demand i.e., the judgment passed in a criminal case, the respondents could not have dismissed the petitioner from service. The dismissal order is too harsh and illegal. The Tribunal has modified the order of dismissal substituting the same to order of penalty of compulsory retirement without considering the hardship that would be caused to the petitioner taking his age as on the date of filing the application before the Tribunal. If the petitioner is dismissed from service, his entire family will be put to starvation and further he would not get any job in future because of the stigmatic order. Hence, the Tribunal has committed an error in modifying the order, instead of setting aside the order of dismissal. Therefore, the facts and circumstances of the instant case are similar and it requires interference of this Court. 11. The learned counsel for the petitioner relying upon the judgments referred (supra) would vehemently contend that the Tribunal has failed to consider the grounds urged in the application and erroneously passed an order modifying the punishment substituting the same to compulsory retirement, instead of setting aside the order of dismissal. The Tribunal failed to appreciate the facts of the case and in the absence of corroborative evidence of proof with regard to misconduct, the Tribunal ought to have set aside the order and the same has not been done. The first respondent also blindly accepted the recommendation made by the second respondent and imposed severe punishment of dismissal from service. The Tribunal failed to appreciate the facts of the case and in the absence of corroborative evidence of proof with regard to misconduct, the Tribunal ought to have set aside the order and the same has not been done. The first respondent also blindly accepted the recommendation made by the second respondent and imposed severe punishment of dismissal from service. Hence, it requires interference of this Court. 12. Per contra, learned counsel appearing for the respondents in his argument vehemently contend that the Enquiry Officer, based on the material available on record i.e., the evidence of P.Ws.l to 4 has rightly come to the conclusion that the charges levelled against the petitioner has been proved, particularly, the complainant and shadow witness have supported the case of the first respondent- Department. The evidence of the other witnesses i.e., panch witness and the Investigating Officer also corroborates the evidence of complainant as well as the shadow witness. The very contention of the petitioner that there is no corroborative evidence with regard to misconduct of the petitioner cannot be accepted. 13. The learned counsel appearing for the respondents would further contend that the Tribunal in detail considered the material on record and discussed the evidence of PW.3 and also noticed that impugned order itself is based on the statement of P.W.3 that DGO had handed over the khatha certificate transferred in the name of wife of the complainant on receiving the bribe amount of Rs. 10,000/-from the complainant in his house at Hallikerehundi Village in the presence of P.W.3, whose presence cannot be disputed. The Tribunal also noticed that, in the enquiry report itself, the Enquiry Officer has discussed in detail about the same which was extracted from the report of the Enquiry Officer in the impugned order. The Tribunal had come to the definite conclusion on the ground that there is no violation of principles of natural justice either in the enquiry or in passing the order impugned. 14. The Tribunal had come to the definite conclusion on the ground that there is no violation of principles of natural justice either in the enquiry or in passing the order impugned. 14. The Tribunal also relied upon the judgment of the Apex Court in the case of Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation, reported in (2005) 7 SCC 764 : AIR 2005 SC 4217 wherein, it is held that acquittal of the petitioner by a Judicial Magistrate, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation and hence, the contention of the petitioner that when the petitioner was acquitted in the criminal proceedings there cannot be any departmental enquiry cannot be accepted. 15. Learned counsel appearing for the respondents would further contend that the Tribunal also referred the judgment in the case of Commissioner of Police Delhi v. Narender Singh, reported in AIR 2006 SC 1800 wherein it is observed that, it is settled law that if an employee has been acquitted of a criminal charge, the same may by itself would not be a ground not to initiate a departmental proceedings against him or to drop the same in the event, an order or acquittal is passed. Hence, the Tribunal did not accept the contention of the petitioner. The counsel would also contend that the Tribunal also relied upon the judgment in S.Bhaskar Reddy's case and arrived at the conclusion that the order of dismissal cannot be quashed, based on the fact that the applicant has been acquitted in the criminal case. However, taking into consideration the fact that dismissal of the petitioner from service would amount to harsh punishment, substituted the same to compulsory retirement. Therefore, the Tribunal has passed a reasoned order and hence, it does not call for interference of this Court. 16. The learned counsel appearing for the respondents in support of his contention relied upon the judgment in the case of Mehiboobsab v. Upalokayukta and others,reported in ILR 2002 KAR 2535 : (2002 AIR Kant HCR 2288) and brought to our notice para Nos. 16. The learned counsel appearing for the respondents in support of his contention relied upon the judgment in the case of Mehiboobsab v. Upalokayukta and others,reported in ILR 2002 KAR 2535 : (2002 AIR Kant HCR 2288) and brought to our notice para Nos. 18 and 18 (1) to (3) contending that where the accused is acquitted for want of sufficient evidence or non-examination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that the prosecution had failed to establish its case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honorable acquittal. In such cases, the management is at liberty to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal. 17. The learned counsel referring the very same judgment would further contend that merely because the petitioner was acquitted in the criminal case, he cannot be exonerated for his misconduct. The Enquiry Officer has come to a right conclusion that the witnesses, who have been examined have fully supported the case of the first respondent-Department and arrived at the conclusion that charges have been proved. The second respondent, based on the report, recommended for taking action against the petitioner and accordingly, the Disciplinary Authority i.e., the first respondent has rightly imposed the punishment to dismiss the petitioner from service. However, the Tribunal modified the said sentence substituting the same to compulsory retirement. When such being the facts and circumstances of the case, the very contention of the petitioner that the Tribunal failed to consider the material available on record and ought to have set aside the order of dismissal cannot be accepted and there are no grounds to interfere with the findings of the Tribunal since, the Tribunal has assigned reasons, while passing the order impugned. 18. Having considered the grounds urged in the writ petition as well as the submissions made by respective counsels and after giving anxious consideration to the principles laid down in the judgments referred supra by both the counsels, this Court has to reconsider the material available on record. 19. It is the case of the respondents that the petitioner, who was working as Secretary, Hanchya Panchayath, Mysuru Taluk and District, demanded an amount of Rs. 19. It is the case of the respondents that the petitioner, who was working as Secretary, Hanchya Panchayath, Mysuru Taluk and District, demanded an amount of Rs. 15,000/- to enter the name of his wife in the khatha pertaining to a site that his wife had purchased on 17.03.2009. When the demand was made, the complainant, Sri B. Srinivas, who is the husband of the purchaser lodged a complaint that the petitioner has demanded an amount of Rs. 15,000/- as bribe and after negotiation, the same was reduced to Rs. 10,000/- and he is inclined to give the said bribe amount. Thereafter, he has approached the Lokayukta police and filed a complaint. In pursuance of the said complaint, a trap was laid and the Lokayukta police have filed charge sheet against the petitioner in Special Case No. 15/2011 on the file of Principal Sessions and Special Judge at Mysuru for the offence punishable under Sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Simultaneously, the Upalokayukta recommended for departmental action against the applicant and hence, the matter was entrusted to Upalokayukta for enquiry. Consequently, Upalokayukta nominated the Additional Registrar of Enquiries-IV to conduct enquiry. The enquiry was conducted and the charge of demand and acceptance of Rs. 10,000/- as bribe by the applicant was proved. 20. It is the main contention of the petitioner that bait money was not recovered and criminal case registered against him has ended in acquittal. The other case registered against the petitioner also ended in acquittal and in spite of the same, the Enquiry Officer held that the charges levelled against him are proved. The very finding of the Enquiry Officer is erroneous and the respondent No. 1 has passed the impugned order to dismiss the petitioner from service. It is also contended that the Tribunal did not apply its mind and not properly appreciated the facts of the case on hand. The Tribunal, instead of setting aside the order of dismissal from service, modified the same into penalty of compulsory retirement and the same is contrary to the material on record. 21. Having considered the grounds urged and the material available on record particularly, the enquiry report which is marked as Annexure-A7, it is evident that Enquiry Officer has considered in detail the evidence of RWs.l to 4, who have been examined before him. 21. Having considered the grounds urged and the material available on record particularly, the enquiry report which is marked as Annexure-A7, it is evident that Enquiry Officer has considered in detail the evidence of RWs.l to 4, who have been examined before him. On perusal of the material on record, it is clear that RW. 1 has reiterated the allegation made in the complaint and the petitioner was subjected to trap as per Ex.P3 which was conducted in the presence of witnesses P.Ws.l and 3. It is emerged in the evidence that, when the trap was conducted, the petitioner had received the amount from the complainant, gave the same to another person and instructed him to disappear and hence, the bait money could not be recovered. 22. P.Ws. 1 and 3 are the persons, who have accompanied the complainant. P.W.2 has reiterated that they went to the house of the petitioner. When the petitioner received money, they gave a signal and immediately, the Lokayukta Police entered inside the house. Though bait money was not seized, the hand wash of the Delinquent Government Official turned pink colour and the petitioner has also given an explanation for the same in terms of Ex.P4. However, it is the contention of the petitioner that the said explanation at Ex.P4 was taken forcibly. But, the Enquiry Officer in the report has categorically mentioned that the findings which are mentioned in Ex.P4 was in the knowledge of the petitioner and if the said explanation has been taken forcibly, the same would not find a place in Ex.P4. Having considered the material on record, the Enquiry Officer has come to the conclusion that the charges levelled against him are proved. Based on the said report, the respondent No.1 has passed the impugned order in terms of Annexure- A11 dismissing the petitioner from service. 23. The main contention of the petitioner is that, he was acquitted in the criminal proceedings. Now the question before this Court is, whether the acquittal ensures to the benefit of the petitioner to contend that when he has been acquitted in the criminal proceedings, he cannot be dismissed from service. The said contention cannot be accepted. 23. The main contention of the petitioner is that, he was acquitted in the criminal proceedings. Now the question before this Court is, whether the acquittal ensures to the benefit of the petitioner to contend that when he has been acquitted in the criminal proceedings, he cannot be dismissed from service. The said contention cannot be accepted. On perusal of the order of acquittal which has been produced before this Court as Annexure-Al, it is clear that the petitioner was acquitted on the benefit of doubt and the same is not an honorable acquittal as contended by the petitioner. 24. This Court, in Mehiboobsab's case reported in ILR 2002 KAR 2535 : (2002 AIR Kant HCR 2288) in para-18 of the judgment has categorically held that when the acquittal order has been passed for want of sufficient evidence or non-examination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that prosecution had failed to establish its case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honorable acquittal. In such cases, the management is at liberty to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal. The said judgment is aptly applicable to the case on hand and the contention of the petitioner cannot be accepted since, it is not an honorable acquittal. The Enquiry Officer has relied upon the evidence of P.Ws.l and 3, who reiterate that they went to the house of the petitioner and when the petitioner received money, they gave a signal and immediately, the Lokayukta Police entered inside the house, but the bait money could not be seized. When such being the case, mere non-recovery of bait money is not a ground to come to an other conclusion. 25. It is the specific case of the witnesses, who have been examined that the accused had instructed the other person, who was along with him to disappear with the money. When such being the case, the contention of the petitioner that he was acquitted in the criminal case is not a ground to set aside the order of dismissal. 25. It is the specific case of the witnesses, who have been examined that the accused had instructed the other person, who was along with him to disappear with the money. When such being the case, the contention of the petitioner that he was acquitted in the criminal case is not a ground to set aside the order of dismissal. The acquittal itself ipso facto preclude the Department from taking any action against the official, who committed misconduct and the same has to be considered based on the touchstone of intrinsic value of the evidence available on record. The Tribunal also while considering the case on hand, has discussed in detail the material on record and also taken note of the principles laid down in the judgments of Apex Court in the case of Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Limited, reported in (2005) 7 SCC 764 : AIR 2005 SC 4217 and Commissioner of Police, Delhi v. Narender Singh, reported in AIR 2006 SC 1800 : AIR 2006 SC 1800 . In the said judgments, the Apex Court has held that, if an employee has been acquitted of a criminal charge, the same may by itself would not be a ground not to initiate a departmental proceedings against him or to drop the same in the event an order or acquittal is passed. Apart from that, the Tribunal has also considered S. Bhaskar Reddy's case and modified the order of respondents and ordered for penalty of compulsory retirement, instead of dismissal from service. 26. When such being the case and the Tribunal has also applied its mind and modified the sentence, we do not find any merit in the petition to come to a conclusion that the order impugned is liable to be set aside. The Tribunal has considered the misconduct of the petitioner and has also taken note of the pendency of the proceedings from 2009. Hence, we do not find any merit in the petition to set aside the order of dismissal and also to modify the order of penalty of compulsory retirement 27. Accordingly, the writ petition is dismissed. Petition dismissed.