Karnataka High Court

Smt Anjali Devi vs The State Of Karnataka on 21 March, 2022

Bench: G.Narendar, M.G.S. Kamal

                             1



                                                     ®
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21st DAY OF MARCH, 2022

                        PRESENT

         THE HON'BLE MR.JUSTICE G.NARENDAR

                           AND

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

     WRIT PETITION NO. 1226 OF 2022 (S-KSAT)

BETWEEN:


SMT. ANJALI DEVI,
W/O V. NARAYANASWAMY
AGED ABOUT 47 YEARS
WORKING AS FIRST DIVISION ASSISTANT
REVENUE DEPARTMENT
UNDER ORDERS OF COMPULSORY RETIREMENT
R/AT H.NO.7/A,
NEAR SRIRAMA TEMPLE
S.G. LAYOUT, P.C.HALLI,
KOLAR-563101.
                                      ....PETITIONER
(BY SRI.PHANINDRA K.N, SENIOR ADVOCATE
     FOR SRI. KARTHIK V, ADVOCATE)

AND:


1.     THE STATE OF KARNATAKA
       REPTD. BY ITS PRINCIPAL SECRETARY
       REVENUE DEPARTMENT
       M.S. BUILDING
       BENGALURU-560001.

2.     THE UNDER SECRETARY
       REVENUE DEPARTMENT (SERVICE-2)
                             2




     M.S. BUILDING
     BENGALURU-560 001.

3.   THE DEPUTY COMMISSIONER
     KOLAR DISTRICT
     KOLAR-563101.

4.   THE REGISTRAR
     GOVERNMENT OF KARNATAKA
     LOKAYUKTA
     M.S. BUILDING
     DR. AMBEDKAR VEEDHI
     BENGALURU-560 001.

5.   THE ADDITIONAL REGISTRAR OF
     ENQUIRIES-4,
     GOVERNMENT OF KARNATAKA
     LOKAYUKTA
     M.S. BUILDING
     DR. AMBEDKAR VEEDHI
     BENGALURU-560 001.
                               ....RESPONDENTS

(BY SMT. SHILPA S. GOGI, HCGP)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 22.12.2021 PASSED BY THE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT BENGALURU
IN APPLICATION NO.1746/2020 VIDE ANNEXURE-A AND ALLOW
THE APPLICATION AS PRAYED FOR AND ETC.,


     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, M.G.S.KAMAL J, MADE THE FOLLOWING:
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                                ORDER

Present writ petition is filed by the Petitioner

seeking to set aside the order dated 22.12.2021

passed in Application No.1746/2020 on the file of the

Karnataka State Administrative Tribunal (hereinafter

referred to as the 'Tribunal'), in and by which, the

Tribunal dismissed the application filed by the

petitioner.

2. The above application was filed by the

Petitioner contending inter-alia that:

(a) She was working as a First

Division Assistant (FDA) in the Revenue

Department and as on the date of filing of

the above application she was working as

Assistant Director in Food and Civil

Supplies & Consumer Affairs Department,

KGF, Kolar Taluk.

(b) One Sri. Venkateshappa, S/o

Munivekatappa had filed a complaint dated

14.08.2007 with Lokayukta Police alleging

that he had filed application for grant of

Saguvali Chit in respect of land bearing

Sy.No.151, measuring 1 acre 10 guntas

situated at Thalagunta Village, Kolar Taluk.

That the petitioner had demanded a bribe

of Rs.20,000/-, out of which a sum of

Rs.4,500/- was paid and another sum of

Rs.3,000/- was given by him to the

petitioner during the trap, in which the

petitioner was caught red-handed and

suspended.

acquitted by the Special Judge, Lokayukta

in the trial held in PCA CC No.04/2008.

(d) On the similar allegations,

departmental enquiry was conducted on

the basis of depositions of PW1 to PW4

and article of charge was proved even

without appreciating the grounds raised

by the Petitioner.

(e) On the basis of the said enquiry

report, the Upa-Lokayukta made a

recommendation that a punishment of

compulsory retirement be imposed on the

Petitioner.

     (f)      Based      on       the          said

recommendation,       respondent      No.2     had

issued second show cause notice to the

Petitioner on 27.05.2019, to which the

Petitioner had replied contending that the

complaint was ill-motivated and the

report was without appreciation of

evidence. It was also contended that the

Petitioner had merely put up the file before

the Land Grant Committee and there was

no order for granting of the land and thus,

sought for exoneration from the

proceedings.

(g) Respondent No.2 by its order

dated 03.02.2020 imposed penalty of

compulsory retirement. Following the said

order, the respondent No.3 being the

Disciplinary Authority, reiterating the same

order under Rule 8(vi) of Karnataka Civil

Services (Classification, Control And

Appeal) Rules, 1957, imposed the penalty

of compulsory retirement on 21.02.2020.

Aggrieved by the same, Petitioner filed the above

Application No.1746/2020 before the Tribunal.

3. The Tribunal after hearing the Petitioner and

Respondents and also taking note of the enquiry report

and material evidence relied upon during the enquiry

and also the reply of the Petitioner to the second show-

cause notice held that the penalty of compulsory

retirement is reasonable, proper and proportionate and

did not call for interference. Consequently, dismissed

the application by its order dated 22.12.2021.

Aggrieved by which, the Petitioner is before this Court.

4. Sri.Phanindra K.N, learned Senior counsel

for Sri.Karthik V, learned counsel for the Petitioner

reiterating the grounds urged in the writ petition

submitted that;

           (a)      the        compliant       was    filed   by

      Venkateshappa             before         Lokayukta      on

14.08.2007, on which date trap of the

Petitioner taking alleged bribe of

Rs.3,000/- was laid.

(b) that the Petitioner was acquitted

in the PCA C.C.No.4/2008 on 06.02.2010.

Subsequent to the acquittal of the

Petitioner, disciplinary proceedings were

initiated by the Government by entrusting

the matter to the Lokayukta on

30.03.2011. The Additional Registrar of

Enquiries-4, Karnataka Lokayukta was

nominated as Inquiry Officer on

21.04.2011 and articles of charge was

issued by the Lokayukta on 16.05.2011.

      (c)    That     enquiry        report     of     the

Additional     Registrar        of   Lokayukta        was

submitted on 04.04.2019, upon which the

Upa-Lokayukta had recommended for

imposition of punishment of compulsory

retirement on 08.04.2019. Show cause

notice dated 27.05.2019 was issued by the

Government proposing the punishment of

compulsory retirement, to which the

petitioner herein replied on 07.11.2019.

The Government passed the Order

imposing the penalty of compulsory

retirement on 03.02.2020.

(d) He further submitted that charges

framed against the Petitioner in criminal

proceedings in P.C.A. CC No.4/2008, as

well as in the Departmental Enquiry are

one and the same. The witnesses

who were examined in the criminal

case are (1) Sri.R.Venkateshappa

(complainant), (2) Sri. S.Prasad (Panch

witness), (3) Sri. Vishwamurthy (Panch

Witness), (4) Sri. Maribasappa Budhihala

(I.O), (5) Sri. Venkatanjaneya Swamy

(Sheristhedar, Taluk Office), (6)

Sri.H.R.Srinivas (Deputy Commissioner),

(7) Sri.Musthaq Ahmed (Engineer) and (8)

Sri. Manjunath. While witnesses examined

in the Departmental Enquiry are aforesaid

witnesses No.1 to 4, the depositions of the

witnesses in both the cases are identical

and strikingly similar. Thus, he submits

that the facts and circumstances, material

evidences and the witnesses in both

criminal proceedings and departmental

enquiry being one and the same, and the

Petitioner having been acquitted in the

Criminal Proceedings on the same set of

facts and evidences could not have been

held guilty of a similar charge in the

departmental enquiry.

(e) He relied upon the Judgment of

the Hon'ble Apex Court in the case of

CORPORATION OF THE CITY OF

NAGPUR, CIVIL LINES, NAGPUR AND

ANOTHER VS. RAMACHANDRA AND

OTHERS reported in (1981) 2 SCC 714

and G.M.TANK vs. STATE OF GUJARATH

AND OTHERS reported in (2006) 5 SCC

446 to the proposition that normally where

the accused is acquitted honorably and

completely exonerated of charges it would

not be expedient to continue a

departmental inquiry on the very same

charges or grounds or evidence.

Hence, seeks for allowing the petition and setting

aside the order passed by the Tribunal.

5. On the contrary, learned HCGP justifying

the order passed by the Tribunal submitted that:

(a) the Order passed by the

Tribunal confirming the enquiry report on

the punishment of compulsory retirement

imposed on the Petitioner is on just and

valid reasons and grounds, warranting no

interference.

(b) it is settled proposition of law

that the degree of proof required in the

criminal proceedings and the departmental

enquiry cannot be equated as the degree of

evidence required in the departmental

enquiry is based on preponderance of

probabilities and strict rule of proof not

applicable as required under criminal

proceedings.

           (c)      the   reliance        placed        by     the

     Petitioner's     counsel        on     the     aforesaid

judgment of the Apex Court are of no avail

in the facts and circumstances of the

present case. Hence, seeks for dismissal of

the petition.

6. Heard learned counsel for the parties.

Perused the records.

7. There is no dispute to the fact that the

complaint was filed by one Sri. Venkateshappa on

14.08.2007 against the Petitioner alleging demand for

bribe by the Petitioner and the complaint giving the

bribe. It is also not in dispute that the criminal case in

PCA CC No.4/2008 filed against the Petitioner on the

said complaint resulted in acquittal of the Petitioner.

8. The Petitioner was tried before the criminal

court for the following charge;

"Whether the complainant party proves the accused, at Kolar Taluk, Tahsildar officer had demanded complainant-Sri. Venkateshappa to pay bribe money of Rs.20,000/- and then received sum of Rs.4,500/- as advance. Again on 14.08.2007 at 5.00 p.m. in the evening had forcibly received the sum of Rs.3,000/- and thus committed offence punishable under Sections 7, 13(1)(D) read with Section 13(2) of the Prevention of Corruption Act, 1988?"

9. The Articles of Charge framed by the

Additional Registrar, Inquiries-4 - Lokayukta against

the Petitioner is as under;

"That you, Anjalidevi, the DGO while working as First Division Assistant in the office of the Tahsildar at Kolar and prior to 14.08.2007 had taken Rs.4,500/- out of demanded bribe of Rs.20,000/- from the complainant namely, Sri. Venkateshappa S/o Munivenkatappa, Dhanamathanahalli village in Kolar Taluk to build up and sent file relating to land bearing

Sy.No.151 to the extent of 4 acres 24 guntas of Talagunda village though file had been built up for "Saguvalli Chit" for 1 acre 10 gunta, out of that and on 14.08.2007 demanded and received bribe of Rs.3,000/- failing to maintain absolute integrity and devotion to duty which act is unbecoming of a Government Servant and thereby committed misconduct as enumerated u/Rule 3(1)(i) to (iii) of the Karnataka Civil Service (Conduct) Rules, 1966."

10. Reading of the aforesaid charges before

criminal Court and the departmental enquiry as

extracted hereinabove would leave no doubt of the

same, being similar and identical.

11. The witnesses examined and the evidence

produced on behalf of the prosecution in the aforesaid

criminal case are as under:

"01. Witnesses examined on behalf of the Prosecution

CW1 : Venkateshappa CW2 : Prasad CW3 : Vishwamurthy CW4 : Venkatanjaneya Swamy CW5 : H.R.Srinivas, Deputy Commissioner CW6 : Musthaq Ahmed, Engineer CW7 : Maribasappa CW8 : Manjunath

02. Evidences produced on behalf of Prosecution

Ex.P1 : Complaint Ex.P2 : Spot Inspection Ex.P3 : Xerox Copies of Taluk Office File Ex.P4 : Attendance register Xerox Copy Ex.P5 : Panchanama Ex.P6 : Photograph Ex.P7 : Voluntary statement of accused Ex.P8 : Grant Order Ex.P9 : Sketch Ex.P10: First Information Report Ex.P11: Report from Forensic Lab"

12. The witnesses examined and the evidence

produced on behalf of the disciplinary authority in the

Departmental enquiry are as under:

LIST OF WITNESSES EXAMINED ON BEHALF OF DISCIPLINARY AUTHORITY:

     PW1:       Sri. Venkateshappa
                (Complainant)
     PW2:       Sri. A.Vishwamurthy (Shadow
                panch witness)

     PW3:       Sri.S.Prasad (another panch
                witness)
     PW4:       Sri Maribasappa Budhihal (I.O)





           LIST OF WITNESSES EXAMINED ON
               BEHALF OF THE DEFENCE:

                            Nil

LIST OF EXHIBITS MARKED ON BEHALF OF DISCIPLINARY AUTHORITY

Ex.P1 : Certified copy of the complaint Ex.P2 : Certified copy of the Entrustment Mahazar Ex.P3 : Certified copy of the explanation of DGO Ex.P4 : Certified copy of the file of the complainant Ex.P4(a) : Relevant entry in Ex.P4 Ex.P5 : Certified copy of the Form No.53 Ex.P5(a) : Relevant entry in Ex.P5 Ex.P6 : Certified copy of the Trap Mahazar Ex.P7 : Certified copy of the chemical examination report Ex.P8 : Certified copy of the sketch

LIST OF EXHIBITS MARKED ON BEHALF OF DGO:

NIL"

13. From the above, it is clear that the charges

framed both in the criminal case and the departmental

enquiry, the witnesses and evidences examined both in

the criminal proceedings and departmental enquiry,

are one and the same.

14. The Apex Court in the case of G.M.TANK

supra, at Paragraphs 30 and 31 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 pronoun cement 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 fo the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

15. In the case of M. PAUL ANTHONY vs.

BHARAT GOLD MINES LTD., reported in (1993) 3

SCC 679 at paragraph 34 held as under:

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 Inquiry 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 Inquiry Officer and the Inquiry 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.

16. The aforesaid settled principle of law came to

be affirmed and reiterated by a Three-Judge Bench of

the Apex Court in the case of SHASHI BHUSHAN

PRASAD vs. INSPECTOR GENERAL, CENTRAL

INDUSTRIAL SECURITY FORCE AND OTHERS

reported in (2019) 7 SCC 797 and squarely applies to

the present facts and circumstances of the case.

Though, the Tribunal has apparently re-appreciated the

facts and evidence of the case of the Petitioner in the

impugned order, has however not taken note of the

aforesaid facts and settled principles of law applicable

to the set of facts of the present case. As noted above,