Karnataka High Court

Srikrishna Nagendrappa ... vs The State Of Karnataka on 8 January, 2021

Author: G.Narendar And M.I.Arun

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        IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH
 DATED THIS THE 08TH DAY OF JANUARY 2021
                           PRESENT
       THE HON'BLE MR. JUSTICE G.NARENDAR
                              AND
        THE HON'BLE MR. JUSTICE M.I.ARUN
     WRIT PETITION NO.114543/2015 (S-KAT)

Between:
Srikrishna Nagendrappa Megalamani,
Aged about 38 years, Occ: Forest Guard,
(Compulsorily Retired) R/o.: #Shri Someshwari,
Gowrishankara Nagar, Ranebennur-581 115,
District Haveri.
                                                      ... Petitioner
(By Shri Aravind D.Kulkarni, Advocate)

And:
1.     The State of Karnataka,
       Rep. by its Principal Secretary to Forest,
       Ecology & Environment Department,
       Bengaluru-560 001.
2.     The Karnataka Lokayukta,
       Additional Registrar Enquiries-4,
       M.S. Building, Dr.B.R. Ambedkar Road,
       Bengaluru-560 001.
                                                    ... Respondents
(By Shri G.K. Hiregoudar, GA for R1;
 Smt. Nirmala S. Sutagattimath, Advocate for R2)


     This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to set aside the order dated
02.06.2015     of   the   Hon'ble Tribunal      in   application
                                -2-

No.7872/2014 and allow the application No.7872/2014 vide
Annexure-A filed by the petitioner before the Hon'ble Tribunal
and to set aside the enquiry report dated 16.04.2014, vide
Annexure-A2    submitted     by   respondent    No.2    herein
consequently also set aside the order dated 26.08.2014, vide
Annexure-A passed by respondent No.1 herein whereby
punishment of compulsory retirement is imposed.

      This petition having been heard and reserved on
22.10.2020 for orders and coming on for pronouncement of
order, this day, M.I.Arun, J., delivered the following:

                              ORDER

1. Aggrieved by the enquiry report of respondent

No.2 dated 16.04.2014 produced as Annexure-A2 and

the order dated 26.08.2014 vide Annexure-A1 by

respondent No.1 and the order of the Karnataka

Administrative Tribunal (for short "the KAT") in

application No.7872/2016, dated 02.06.2015 vide

Annexure-A, the petitioner has preferred this writ

petition.

2. While the petitioner was working as a Forest

Guard, a complaint was lodged against him with the

Lokayukta Police with the allegation that the complainant

therein had applied for compensation for the damages

caused to him on account of destruction of his crop by

wild boar. The Range Forest Officer had forwarded the

application to the petitioner herein to inspect and submit

a report and to do that act, the petitioner had demanded

an amount of Rs.2,000/- from the complainant. In

pursuance of the complaint, the Lokayukta Police

registered a case against the accused and did formalities

by conducting entrustment mahazar and trapped the

accused on 06.01.2007 and thereafter conducted the

investigation and filed the charge sheet against the

accused for the offences punishable under Sections 7

and 38(1)(d) read with Sectiion 13(2) of the P.C. Act.

The criminal case against the petitioner was tried by the

Special Judge at Haveri in Spl.(Lok) C.No.4/2007 and by

the judgment date 13th September 2012 acquitted the

petitioner of all the charges.

3. The said incident of petitioner demanding

bribe, him being trapped resulted in departmental

enquiry conducted by the Additional Registrar Enquiries,

Karnataka Lokayukta and by an order dated 16.04.2014,

it has been held as under:

"REPORT

The Disciplinary Authority has proved that, DGO- Sri S.N. Megalamani, Forester, Negaluru (Guthalu), Haveri district has demanded and accepted a bribe of Rs.2,000/- on 16.01.2007 from the complainant/Sri Shivappa Ramappa Lamani of Guthala Thanda to conduct spot inspection and submit a report about the loss and damage caused to the crop in his land and land of others and thereby committed the mis-conduct under Rule 3(1)(i) to (iii) of K.C.S. (Conduct) Rules, 1966."

4. Based on the said enquiry report, the Upa-

Lokayukta recommended for punishment of compulsory

retirement from service of the petitioner, vide its

communication dated 22.04.2014. Based on the said

recommendation, the first respondent imposed

punishment of compulsory retirement on the petitioner

by order dated 26.08.2014. Aggrieved by the same, the

petitioner approached the KAT by application

No.7872/2014, which has been dismissed. Challenging

the same, the petitioner has preferred this writ petition.

5. The main ground of challenge is that the

acquittal of the petitioner in the criminal case was a

honourable acquittal. It was prior to the enquiry report

by the Additional Registrar Enquiries, Karnataka

Lokayukta. That the evidence let in and the witnesses

examined were similar in the criminal case as well as in

the departmental enquiry. The criminal case having been

decided by the District and Sessions Judge, wherein the

petitioner has been honorably acquitted, the Additional

Registrar Enquiries, Karnataka Lokayukta could not have

held him guilty on the same set of facts, witnesses and

material evidence and that the first respondent should

not have accepted the report of Upa-Lokayukta, which is

based on the enquiry report, which is contrary to the

decision the Sessions Court. It is further stated that the

KAT has erred in not appreciating this fact and has

dismissed the application.

6. On facts, the KAT has found that the

disciplinary enquiry which has been conducted against

the petitioner is in accordance with law and there is no

reason to hold that the same is perverse or bad in law.

7. The only question that would arise for

consideration in this case is what is the nature of

acquittal in Spl.(Lok) C.No.4/2007 and does it entail the

petitioner from being absolved of any disciplinary

proceeding as sought for by him?

8. The Hon'ble Supreme Court in the case of M.

Paul Anthony v. Bharat Gold Mines Ltd., reported in

(1999) 3 SCC 679, at paragraph Nos.34 and 35 has

held as follows:

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the

charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."

This principle was again considered by the Hon'ble

Supreme Court in the case of G.M. Tank Vs. State of

Gujarat, reported in (2006) 5 SCC 446, wherein at

paragraph Nos.30 and 31, which has held as under:

"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the

criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of

the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

This principle was again considered by the Hon'ble

Supreme Court in the case of S. Bhaskar Reddy Vs.

Supt. of Police reported in (2015) 2 SCC 365 and the

relevant paragraph Nos.21 to 26, which are as under:

"21. It is an undisputed fact that the charges in the criminal case and the disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Our attention was drawn to the said judgment which is produced at Ext. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the disciplinary proceeding are similar. From perusal of the charge-sheet issued in the disciplinary proceedings and the enquiry report submitted by the enquiry officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial Judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under Section 3(1)(x) of the Scheduled Castes

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and the Scheduled Tribes (Prevention of Atrocities) Act and under Sections 307 and 302 read with Section 34 IPC. The law declared by this Court with regard to honourable acquittal of the accused for criminal offences means that they are acquitted for want of evidence to prove the charges.

22. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in Inspector General of Police v. S. Samuthiram [(2013) 1 SCC 598: (2013) 1 SCC (Cri) 566 : (2013) 1 SCC(L&S) 229], the relevant paragraph from the said case reads as under: (SCC p. 609, para 24)

"24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619]. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said tha the accused was honourably acquitted."

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After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in Joginder Singh v. UT of Chandigarh [(2015) 2 SCC 377].

23. Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,(1999) 3 SCC 679 : 1999 SCC (L&S) 810 : (1999) 2 SCR 257] this Court has held as under: (SCC p. 695, paras 34-35)

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom'. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather

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oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."

24. Further, in G.M. Tank v. State of Gujarat [(2006) 5 SCC 446:2006 SCC(L&S) 1121 : AIR 2006 SC 2129] this Court held as under: (SCC pp.

456 & 460-61, paras 20 & 30-31) "20. ... Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

                        ***
            30. The judgments relied on by the
      learned    counsel    appearing    for   the

respondents are distinguishable on facts and on law. ... It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on

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the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

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the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810 : (1999) 2 SCR 257] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

25. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings.

26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case."

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The Hon'ble Supreme Court in the case of A.P SRTC vs.

Mohd. Yousuf Miya reported in (1997) 2 SCC 699 in

paragraph No.8 has held as under:

"8. ... The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of

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proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."

The Hon'ble Apex Court in the case of Ajit Kumar Nag v.

Indian Oil Corpn. Ltd. reported in (2005) 7 SCC 764 in

paragraph No.11 has held as under:

"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the

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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. 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 [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., 2004 SCC On Line Cal 59: (2004) 4 LLN 512] dismissing him from service deserves to be quashed and set aside."

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The Hon'ble supreme Court in the case of Shashi Bhusan

Prasad Vs. Inspector General, CISF reported in (2019) 7

SCC 797 in paragraph Nos.19, 20, 21 and 22 has held as

under:

"19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of "preponderance of probability". Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment [Shashi Bhusan Prasad v. CISF, 2008 SCC On Line Ori 544 : 2008 Lab IC 3733] in detail and needs no interference by this Court.

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20. The judgment in M. Paul Anthony case [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810] on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under: (SCC p. 691).

(Emphasis supplied by this Court)

"22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceeding still the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

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(iv) The factors mentioned at (ii) and

(iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

21. It may not be of assistance to the appellant in the instant case for the reason that the charge levelled against the appellant in the criminal case and departmental proceedings of which detailed reference has been made were on different sets of facts and evidence having no nexus/co-relationship. The kind of criminal act/delinquency which he had committed in discharge of his duties in the course of employment. That apart, much before the judgment of the criminal case could be pronounced, the departmental enquiry was concluded and after the enquiry officer had held him guilty, he was punished with the penalty of dismissal from service.

22. The judgment in G.M. Tank case [G.M. Tank v. State of Gujarat, (2006) 5 SCC 446 : 2006 SCC (L&S) 1121] on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be

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of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/co-relationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service."

(emphasis supplied)

9. Thus, as per the ratio laid down in the

aforementioned judgments, a single act can lead to

initiation of departmental proceedings and also a criminal

case against the person. When a trial for criminal offence

is conducted, it should be in accordance with the proof of

offence as per the evidence defined under the provisions

of the Evidence Act, the guilt of the accused needs to be

proved beyond all reasonable doubt. However, the nature

of evidence in a departmental proceedings is entirely

different from that of criminal trial. The standard of proof

is not the same. The evidence required in the

departmental enquiry is not regulated by the Evidence

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Act. Here malfeasance or misfeasance of the delinquent

officer is proved based on the preponderance of

probabilities. Thus, it is possible that a person can be

acquitted in a criminal trial, but found guilty of the

misconduct in a departmental proceedings, both arising

out of the same act. However, when the charges in both

proceedings of the criminal case and the disciplinary

proceedings are similar and the evidence let in is also

same and in the criminal trial when the accused has been

acquitted honourablly for want of evidence, in that event

it is not advisable to hold that the said person guilty in

the departmental proceedings on the same piece of

evidence. However, it should be noticed that the acquittal

needs to be honourable. When the accused is acquitted

after full consideration of prosecution evidence and that

the prosecution had miserably failed to establish the

charge leveled against the accused, we can term it an

Honourable acquittal. In those circumstances, a

divergent finding of the departmental enquiry can be set

aside.

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10. The Special Judge at Haveri in its judgment in

Spl.(Lok) C.No.4/2007 at paragraph No.31, has held as

under:

"31. By considering the material on record, it has to be noted that the complainant has not supported the case of the prosecution and the other applicants who have been examined before the court also except they say that they have given an application for compensation for crop damages, they did not support the case of the prosecution. The evidence remains only is shadow witness and the pancha witness and the shadow witness also not given any explanation regarding notes which were crumpled and he also gives the evidence in the line of the explanation of the prosecution that during the course of resistance, the notes might have torn and it has to be noted that it is the case of the prosecution that he resisted to assist the Lokayuktha police and he was forcibly taken to local police station in the Jeep and how notes were torn were also no explanation and hence the theory of the defence is more probable than the case of the prosecution. In the citations quoted by the defence also the Apex court held that "Mere recovery of bait money is not sufficient" and the Apex court held that "Mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money." In the case on hand, I have already pointed out that notes are torn i.e., all the notes not one note and immediately the accused has given an explanation in terms of Ex.P.57 that notes are thrust to his hands forcibly and hence prosecution has not made out the case that the accused voluntarily demanded money and accepted the same. The shadow witness evidence is also not inspires the confidence of the court to comes to a conclusion that accused has

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Voluntarily demanded and accepted the money and there is no any explanation from his part also how the notes were torn. For having considered the material on record it is not safe on the part of this court to convict the accused for the offences u/Ss.7 and 13(1)(d) r/w. Sec.13(2) of Prevention of Corruption Act 1988 since there is no any ample evidence before this court that he has demanded and, accepted the money. The trap case mainly rests upon the circumstantial evidence and the said circumstances also inspire confidence of the court and I have already pointed out that there is no explanation on the part of prosecution regarding torn notes and result of left hand wash also positive even though the accused has not touched the notes in his left hand and so also the documents of Exs.P.54 and 55 came into existence in the doubtful circumstances and hence accused is entitled for the benefit of doubt. Hence, I answer the Point Nos.1 and 2 in the negative."

11. As could be seen from the judgment in

Spl.(Lok) C. No.4/2007, the demand and acceptance of

bribe has not been proved at all. The complainant himself

has not supported the case of the prosecution.

12. Under the said circumstances, the acquittal

needs to be considered as honourable acquittal. Further,

the Special Court, which is presided by the Sessions

Judge had passed its judgment on 13.09.2012. It has

attained the finality. The enquiry report is subsequent to

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the decision in criminal case and the same has not been

considered. Admittedly, the evidence tendered and the