JUDGMENT G. Narendar, J. - Heard the learned Counsel for the petitioner Sri R.B. Sadashivappa and the learned Senior Counsel Sri G. Krishnamurthy along with the Counsel for the respondent Sri Chandrakanth Patil. Facts in brief: 2. The petitioner is the delinquent and was working as Mechanic Grade-II with the Meter Sealing Section, MRT South Division of the Karnataka Power Transmission Corporation Limited. 3. It is alleged that the delinquent was found tampering with the electrical energy meters installed in the premises of M/s. Vijayadarshini Hotel, Mysuru Road, Bengaluru. That CW-8-Police Inspector attached to the Vigilance Wing, on prior information along with the Assistant Executive Engineer, kept a watch on the premises of Vijayadarshini Hotel on 04.12.2010. That the hotel is situated opposite to BHEL Gate. That the delinquent arrived on his scooter and after parking the scooter he went into the premises and was seen talking to a person who turned out to be the owner of the hotel and thereafter, he collected a key from the said person and went inside the premises to a room, in which it is alleged, the electrical energy meters were installed. That CW-8 along with one Sri Srinivasa Babu, Assistant Executive Engineer of the Vigilance Wing observed the delinquent meddling with the energy meters with the help of tools which he had carried in the bag. That CW-8 and his team including the said Assistant Executive Engineer confronted him as he came out of the room, housing the energy meters, upon which the delinquent/petitioner confessed to having tampered with the energy meters. (i) It is further alleged that on the information provided in the course of his confession, the team is said to have inspected four other premises and detected similar tampering of energy meters. That out of the three energy meters in the premises of Vijayadarshini Hotel, only two meters were found tampered and the other one remained untouched. (ii) It is alleged that the modus operandi adopted by the delinquent for tampering the energy meters is by cutting the main cover seal of the energy meter and thereafter reversing the recorded consumption of electrical energy and thereafter re-sealing the same by using adhesive material. (iii) That he was taken to the KPTCL, Vigilance Police Station on the same night i.e., on 04.12.2001 and was detained in police custody and thereafter a complaint came to be lodged. (iii) That he was taken to the KPTCL, Vigilance Police Station on the same night i.e., on 04.12.2001 and was detained in police custody and thereafter a complaint came to be lodged. That in the police station, the delinquent is alleged to have made the confessional statement which is produced and marked as Ex.P11 and in the confessional statement, the delinquent had detailed the procedure adopted by him for tampering with the meters which is as stated supra. Based on the above set of allegations, five criminal cases came to be registered and prosecution was launched. 4. The criminal courts after full-fledged trial, have held that the prosecution is vitiated by lot of discrepancies and improvements in the evidence tendered by PW-2 who is none other than CW-8. The courts have also uniformly held that the method and manner of seizure of the alleged tampered meters is contrary to law. The Special Court has also given credence to the allegation that the foisting of the cases is on account of the personal enmity that CW-8/PW-2 harbored against the delinquent accused. It also took note of the lengthy and detailed cross-examination of PW-2. The Court further proceeded to concur with the contention canvassed on behalf of the delinquent accused that the complaint lodged is not in accordance with law. The Court also took note of the evidence of PWs-3 & 4, the Engineers who were said to be present at the spot and who are said to have observed the delinquent meddling with the energy meters but admitted that the owner of the premises was not present and the Special Court has categorically held that the prosecution has failed to prove the charge. Accordingly, the accused were acquitted. (i) It is also relevant to note that no appeals have been preferred against the judgment of acquittal. Though all the five cases were separately tried, not even in a single case, the respondents have deemed it necessary to prefer an appeal against the judgment acquitting the delinquent accused. It is also relevant to note that the Trial Court has observed that neither the prosecution nor the witnesses have stated as to what is the quantum of energy that is stolen. The judgment of acquittals have been passed on 05.11.2003, 26.07.2004, 01.04.2004, 05.11.2003 & 05.11.2003. 5. On the above said allegations, the petitioner came to be suspended on 19.12.2001. It is also relevant to note that the Trial Court has observed that neither the prosecution nor the witnesses have stated as to what is the quantum of energy that is stolen. The judgment of acquittals have been passed on 05.11.2003, 26.07.2004, 01.04.2004, 05.11.2003 & 05.11.2003. 5. On the above said allegations, the petitioner came to be suspended on 19.12.2001. Thereafter, the respondent-authority invoking Regulation 14(iii) was pleased to dismiss the petitioner from service by order dated 18.10.2002 in view of the petitioner having been arrested and remanded to police custody on 04.12.2001 and in the light of the alleged confession given by the petitioner on 05.12.2001. The appeal came to be preferred with the reviewing authority and the said appeal came to be rejected on 27.12.2002. In the meanwhile, by the year 2004, the petitioner stood acquitted in all the criminal cases. 6. The dispute raised by the delinquent petitioner came to be allowed by the Labour Court by order dated 17.05.2005 and the order of dismissal dated 18.10.2002 came to be set aside with a further direction to reinstate the petitioner with 80% back wages. The respondents preferred W.P. No. 20838/2005 and the petitioner preferred W.P. No. 27/2006 and both the writ petitions came to be clubbed and heard together and by common order dated 11.08.2009, the learned Single Judge was pleased to partially uphold the award of the Labour Court. But in so far as it pertained to payment of back wages, the same was rejected and the learned Single Judge was further pleased to order stoppage of four increments with cumulative effect. Both the petitioner and respondents aggrieved by the order of the learned Single Judge preferred writ appeals. Both the writ appeals were taken up for consideration and came to be disposed off by order 19.08.2010. The Division Bench by its order directed reinstatement and further directed completion of the departmental inquiry within five months. 7. Pursuant to the orders of the Honble Division Bench vide Annexure-B, departmental proceedings came to be initiated against the petitioner. The charge framed against the petitioner was as follows: 'The delinquent was working as Mechanic Gr. II, at the Meter Sealing Section, MRT South Division, KPTCL. 7. Pursuant to the orders of the Honble Division Bench vide Annexure-B, departmental proceedings came to be initiated against the petitioner. The charge framed against the petitioner was as follows: 'The delinquent was working as Mechanic Gr. II, at the Meter Sealing Section, MRT South Division, KPTCL. It has been alleged that on 4.12.2001, he was found by the Vigilance Wing of the KPTCL tampering with electrical energy meters on the commercial business premises of M/s. Vijaya Darshini hotel, Mysore Road, Bangalore. On his information, the Vigilance Wing team inspected four other premises and found that the energy meters on these premises were also tampered. It has been stated that the delinquent admitted to having tampered with the said four energy meters. It has been further alleged that the method adopted for tampering the energy meter was cutting its main cover seal, reversing the recorded consumption and resealing the same by using adhesive material. It has been alleged that the monetary loss on account of such tampering in all the five cases totaled to an amount of Rs. 9,39,624/-. Hence, the charges against the delinquent leading to these proceedings.' 8. From a reading of the above charge, it can be safely discerned that the charge framed, pertains to the act of tampering with the energy meter and thereby facilitating the theft of energy resulting in monetary loss to the tune of Rs. 9,39,624/-. The charge is nothing but a repetition of the charge that was framed by the criminal courts and which charge the criminal courts held was not proved. Despite the criminal courts having acquitted the petitioner on the same set of charges, the disciplinary inquiry came to be initiated on the same set of fact, charge, material and witnesses. 9. In the above set of facts, the Inquiry Officer proceeded to hold that the officers of the MRT Division have certified the tampering of the meters and after taking note of the fact of initiation of the prosecution, the inquiry officer proceeded on the lines that the underlying object of the disciplinary proceedings is to find out the official misconduct committed by the delinquent on the basis of the facts revealed during police investigation [the result of which investigation has been rejected by the courts], touching upon the responsibilities of the delinquent in his capacity as Mechanic Grade-II. It is relevant to quote the report of the inquiry authority in the unnumbered last paragraph of page 5 and continued in page 6 of the report. '.........The investigation by the police eventually leads to filing cases for violation of the I.E. Act and IPC. The intention underlying institution of these proceedings is to find out the official misconduct committed by the delinquent on the basis of facts as revealed during the police investigation touching upon the responsibilities of the Delinquent in his capacity as Mechanic Gr.II.' 10. The inquiry officer proceeded to formulate the following point for consideration as below: (i) whether the delinquent was acting in his official capacity as Mechanic Gr.II at the MRT Sealing Section, in visiting the premises of the consumer and handling the energy meter, for any purpose whatsoever? (ii) whether such handling has resulted in the consumer deriving any advantage due to prejudicial use of energy? 11. The inquiry officer proceeded to hold that as the work of the delinquent was confined to the laboratory, he was not required to visit the premises of consumers for handling the meters, but while so holding, he has relied upon the evidence tendered in the police case with regard to tampering of the meter. In the unnumbered second paragraph, the inquiry officer has observed as under: 'The delinquent has expressed doubt about the appropriateness of the procedure adopted in recording the oral evidence of the charge witnesses. It is clear that the charges are based on evidence from official documents listed to be explained by evidences.' 12. Thereafter, the Inquiring Authority has in the unnumbered paragraph at page 6 set out the substance of the allegations, which is as under: 'The substance of the allegations against the delinquent is that he while working as Mechanic Grade II in the MRT South Division tampered with the energy meters of five consumers, by cutting the main cover seal wire of the meters and reversing the record consumption shown on the meter.' 13. From a reading of the allegations set out above, one can discern that there was no allegation that the petitioner ever claimed to have visited the premises of Vijayadarshini Hotel in an official capacity. It is not even the case of the employer/disciplinary authority that the delinquent visited or either claimed to have visited the premises of the consumer in an official capacity. It is not even the case of the employer/disciplinary authority that the delinquent visited or either claimed to have visited the premises of the consumer in an official capacity. On the contrary, it was alleged that he was caught red-handed while coming out of the premises after tampering with the energy meter. Despite the said charge, the Inquiry Authority has proceeded to frame points for consideration which have no bearing on the charge alleged. 14. The Inquiry Authority proceeding further has placed reliance on the statements of CW-7 & 8 and the documentary evidence at Exs.P1 to P4. The Inquiry Authority has relied upon the ocular evidence of CW-8, 7 & 1 who have deposed about the delinquent entering the premises of the consumer, meddling with the energy meters and attempting to exit from the premises. The Inquiry Authority has also placed reliance on the testimony of the ocular witnesses with regard to the method adopted by the delinquent to tamper with the energy meters. The Inquiry Authority has also placed reliance on the alleged confessional statement said to have made in the police station while he was in custody of the police (vigilance). On the above, the Inquiry Authority concluded that the delinquent has indeed indulged in a conduct unbecoming an employee of the Corporation as it was intended to help the consumer in making prejudicial use of electrical energy and thereby concluded that the delinquent was guilty of the conduct violative of Regulation 3 of the Karnataka Electricity Board Employees Service (Conduct) Rules and thereby caused financial loss to the Corporation calculated as per the provisions of the KERC Electrical Supply and Distribution Code. 15. The report came to be furnished to the delinquent petitioner and the petitioner submitted his reply to the show cause notice pursuant to the report. In paragraphs 11 and 12, he has stated as under: '11. I, submit that the enquiring officer has not directed the presenting officer and witnesses - AEE(E) VIG to conduct a demonstration as to how the seal was cut and widened hole and applying adhesive and to show whether it holds tightly. If this would have been demonstrated, this was a must to prove the charges undoubtedly. But it has not been done in this enquiry. If this would have been demonstrated, this was a must to prove the charges undoubtedly. But it has not been done in this enquiry. This shows very clearly that the enquiring officer is not interested to go into the depth in getting the evidence with the witnesses presented in the case. They have created a scene by taking official to police custody and there is no justification in the findings of the enquiry officer. 12. I, further submit that the findings of the enquiry officer regarding to confession statement (Ex.P11 of delinquent) in enquiry report that he was arrived to the conclusion that the delinquent has voluntarily confessed the charges and enquiry officer has failed to notice that the confession statement was taken under police custody under pressure, inducement and threat and he has also failed to know that according to Evidence Act. The confession statement taken under police custody are invalid. Hence the findings arrived by the enquiring officer on that confession statement also becomes invalid and the same should not be taken into consideration.' 16. From a reading of the objection raised in paragraph 11, it is seen that the petitioner has specifically contended that the witnesses have failed to demonstrate that the modus operandi or the method of tampering alleged against the petitioner delinquent has not been proved. In other words, the oral evidence about the method adopted to tamper has not been demonstrated to show that the said method would actually result in tampering or the reversing of the meter and falsification of the reading resulting in theft of electricity and consequent loss to the Board. 17. That apart, this Court has observed that neither in the criminal proceedings nor in the disciplinary proceedings, the alleged bag of tools has been produced in evidence. Though the charge was that he was seen cutting the meter, reversing the reading and re-sealing, no equipment like a cutting plier or a screw driver or knife have been seized and produced in the proceedings to demonstrate the allegation of cutting of the seal, the rewinding the meter and re-sealing is produced. This fact assumes significance as the allegation is that the petitioner delinquent was detained when exiting the meter room and that he was holding the bag containing the tools said to have been used for the tampering work. This fact assumes significance as the allegation is that the petitioner delinquent was detained when exiting the meter room and that he was holding the bag containing the tools said to have been used for the tampering work. A pointed query was put to the learned Senior Counsel and the learned Senior Counsel would fairly admit that no such object or tool has been placed, either before the Inquiry Authority or the Criminal Courts which tried the charge of theft of electricity by means of tampering the meter. There is absolutely no explanation in this regard by the Inquiry Authority. This aspect has not even been looked into by the Inquiry Authority though it was the specific case of the Disciplinary Authority that he was detained by CW-8 along with the bag of tools. The allegation is not that he managed the tampering with bare hands. It is also not the case of the authority that it is possible to tamper with the meter with bare hands. If that be the case, this Court is unable to comprehend as to how the Inquiry Authority concluded that the act of tampering of the energy meters stood proved. The specific objection at paragraph 11 has not been considered either by the Disciplinary Authority or the Appellate Authority. 18. It is contended by the learned Counsel for the petitioner that the disciplinary proceedings are contrary to the law laid down by the Apex Court. The learned Counsel for the petitioner would contend that the Disciplinary Authority cannot arrive at a different conclusion when the charge alleged against the delinquent in the disciplinary proceedings is similar to the charge framed by the criminal court. He would submit that the criminal courts charged the petitioner delinquent with the offence of theft of electricity by tampering with the meters. The charge as framed in the disciplinary proceedings is also one of tampering with the energy meters and thereby causing loss to the Corporation. (i) He would contend that the petitioner has been honourably acquitted by the criminal courts and the criminal courts have categorically held that the respondents have failed to prove the charges in all the five cases. There can be no dispute on this as the courts have uniformly held that the prosecution has miserably failed to prove the charges. (i) He would contend that the petitioner has been honourably acquitted by the criminal courts and the criminal courts have categorically held that the respondents have failed to prove the charges in all the five cases. There can be no dispute on this as the courts have uniformly held that the prosecution has miserably failed to prove the charges. In this regard, learned Counsel for the petitioner would place reliance on the ruling of the Apex Court in the case of S. Bhaskar Reddy & Another v. Superintendent of Police & Another - (2015)2 SCC 365 and would place reliance on the observations made in paragraphs 20, 21, 22, 23 & 24, wherein the Apex Court after placing reliance on its own rulings reported in Inspector General of Police v. S. Samuthiram - (2013)1 SCC 598 , M. Paul Anthony v. Bharat Gold Mines Ltd. - (1999)3 SCC 679 and in the case of G.M. Tank v. State of Gujarath - (2006)5 SCC 446 , was pleased to hold that in the case of honble acquittal by the criminal courts, the disciplinary inquiry on the same charge should fail. Reliance is placed on the observations made in paragraph 32 of the ruling in G.M. Tanks case, in particular to canvass the entitlement of the petitioner to monetary benefits. Learned Counsel for the petitioner would also place reliance on the ruling of the Apex Court in the case of Roop Singh Negi v. Punjab National Bank & Others - (2009)2 SCC 570 , to contend that the reliance on the uncorroborated confession statement (Ex.P11) is unsustainable. He would place reliance on the observation in paragraph 15. 19. The fact remains that, as noted above by this Court, though heavy reliance is placed on the method deployed by the delinquent petitioner to tamper the meters and heavy reliance is placed on the ocular testimony and the confessional statement with regard to the method adopted, there is no corroboration of the said method as the respondents have failed to prove as to whether by the said method it is possible to reverse the reading of the meters nor are the tools alleged to have been used for the tampering brought on record, though it is alleged that he was held with the bag of tools. 20. 20. The learned Counsel for the petitioner places reliance on the ruling of the Apex Court rendered in the case of State of Jharkhand & Others v. Jitendra Kumar Srivastava & Another - (2013)12 SCC 210 , to contend that the withholding of the pension during disciplinary proceedings is an illegality. The said principle of law as settled by the Honble Apex Court needs no elucidation. In this regard, reliance is also placed on the ruling rendered by the Constitution Bench in the case of Deokinandan Prasad v. The State of Bihar & Others - (1971)2 SCC 330 . 21. Per contra, the learned Senior Counsel for the respondents would contend that it is a settled proposition that standards of proof to demonstrate a criminal charge or charge before a criminal court and a charge in the course of a departmental inquiry are of different standards. That the charge before a criminal court is required to be demonstrated beyond reasonable doubt, whereas a charge in the course of a departmental inquiry can be demonstrated on the basis of preponderance of probabilities. In this regard, he would place reliance on the ruling of the Apex Court in the case of The Divisional Controller, KSRTC v. M.G. Vittal Rao - (2012)1 SCC 442 , and in particular the observations in paragraphs 13 & 20 and would contend that question of reinstatement of the employee would not arise. He would place reliance on the ruling in the case of Ajit Kumar Rao v. General Manager, IOCL & Others - (2005)7 SCC 764 , to contend that acquittal by criminal court would not debar an employer from exercising power in accordance with rules and regulations in force. There can be no quarrel with the proposition and principle of law evolved by the Apex Court. 22. There can be no quarrel with the proposition and principle of law evolved by the Apex Court. 22. The fact remains that in the light of the law laid down by the Apex Court as noted supra, more importantly the Constitution Bench, the charge in the disciplinary inquiry cannot be similar to the charge adjudicated by the criminal courts and more importantly, the charge cannot be sought to be sustained on the same set of facts, evidences and material i.e., material and testimonies placed before the criminal court and in the disciplinary inquiry cannot be one and the same, for if the material, testimony and evidences examined by the criminal courts and appreciated by it to hold that the charge is not proved, is relied upon by the Inquiry Authority and the Inquiry Authority holds the charge as proved and if the same is accepted, it would virtually amount to the Inquiry Authority sitting in judgment or acting as an Appellate Authority over the judgment of the criminal court which is impermissible, more so when the judgments have not been appealed against. 23. Apparently, the material placed before the Inquiry Authority and the evidences both ocular and other testimonies are the same that were placed before the criminal courts which evidence has been disbelieved by the criminal courts and the judgment of acquittal has been rendered. That apart, as noted by this Court, though an allegation of the petitioner having witnessed the act of tampering i.e., by cutting open the seal, tampering the meter reading and re-sealing with adhesives is alleged, neither any equipment used or any adhesive used to re-seal have been seized and produced. The Inquiry Authority failed miserably to take note of these facts and appreciating this aspect. 24. Learned Senior Counsel would place reliance on the ruling of the Apex Court in the case of Union of India & Others v. P. Gunasekaran - (2015)2 SCC 610 , to contend that it is not open for the High Court to re-appreciate the evidence or go into the adequacy of the evidence. 24. Learned Senior Counsel would place reliance on the ruling of the Apex Court in the case of Union of India & Others v. P. Gunasekaran - (2015)2 SCC 610 , to contend that it is not open for the High Court to re-appreciate the evidence or go into the adequacy of the evidence. In the opinion of this Court, the said ruling is of no avail, as this Court has not re-appreciated the evidence, but is pointing out the glaring lacunae which is demonstrated by the evidence on record for it was the allegation that he was held with the bag of tools, but neither the bag nor the tools are looked into either by the Inquiry Authority or the Disciplinary Authority. There can be no dispute that if the tools had been produced, they would have gone to clinch the issue against the delinquent. Having alleged that he was held by CW-8 with the bag of tools while exiting the meter room, the onus was on the Disciplinary Authority to explain the absence of the same or as to why the said bag of tools have not been produced before the Inquiry Authority. It is not the case that the tools have been produced before the criminal courts as the perusal of the evidence does not reveal the production of any material objects. This inherent lacunae glares at the respondents, who have miserably failed in convincing this Court with regard to the absence of the material objects which otherwise would have clinched the issue. 25. As rightly contended by the learned Counsel for the petitioner, mere oral statement of the witnesses with regard to the procedure adopted to tamper has been taken as the gospel truth and as rightly pointed out by the petitioner, there is no material on record to demonstrate as to whether the energy meter can be tampered in the manner alleged by them. The onus was on the Disciplinary Authority to demonstrate that the meter can be actually tampered in the manner alleged against the delinquent. The commission of a criminal act cannot be presumed and needs to be proved. In that view of the matter, the petitioner is entitled to succeed. 26. Accordingly, the petition is allowed in part. The onus was on the Disciplinary Authority to demonstrate that the meter can be actually tampered in the manner alleged against the delinquent. The commission of a criminal act cannot be presumed and needs to be proved. In that view of the matter, the petitioner is entitled to succeed. 26. Accordingly, the petition is allowed in part. The order of compulsory retirement is set aside, but keeping in mind that the petitioner has already superannuated and in the light of the earlier pronouncements, the petitioner would not be entitled for back wages, but would be entitled for continuity of service for the purpose of calculating the pension and other retiral benefits. The petitioner is held entitled for full pension. Petition stands ordered accordingly. There shall be no order as to costs.