Karnataka High Court

M Venkatesh Murthy vs The Additional Chief Secretary To The ... on 19 December, 2023

Author: P.S. Dinesh Kumar

Bench: P.S. Dinesh Kumar

                                           W.P No. 17816/2021

                                  1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 19TH DAY OF DECEMBER, 2023

                           PRESENT

         THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                             AND

     THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

       WRIT PETITION NO. 17816 OF 2021 (S-KSAT)

BETWEEN:

M. VENKATESH MURTHY
S/O LATE V. MUNIYAPPA
AGED ABOUT 61 YEARS
R/AT NO.3, 18TH CROSS
JNABHARATHI LAYOUT
2ND STAGE, NAGADEVANAHALLI
BENGALURU-560 056.                                  ...PETITIONER

(BY SHRI. H.B. CHANDRASHEKAR, ADVOCATE)

AND:

1.     THE ADDITIONAL CHIEF SECRETARY
       TO THE GOVERNMENT
       DEPARTMENT OF PERSONAL AND
       ADMINISTRATIVE REFORMS
       (SERIVECES-6)
       VIDHANA SOUDHA
       BENGALURU-560 001.

2.     THE ADDITIONAL REGISTRAR
       ENQUIRY-10
       KARNATAKA LOKAYUKTA
       BENGALURU-560 001.                     ...RESPONDENTS

(BY SHRI. VIKAS ROJIPURA, AGA FOR R1;
    SHRI. VENKATESH S. ARABATTI, ADVOCATE FOR R2)
                                                   W.P No. 17816/2021

                                  2

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
06.08.2021 PASSED BY THE HONBLE KARNATAKA STATE APPELLATE
TRIBUNAL IN APPLICATION NO. 1729/2020 PRODUCED AT ANNEXURE-A
AND CONSEQUENTLY ORDER TO DROP THE PROCEEDING IN G.O.
BEARING NO. G.O.NO.C.AA.SU.E/03/SAA.E.V.2012 DATED 24.04.2020
OF THE RESPONDENT NO.1 VIDE ANNEXURE A1.

      THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 11.09.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, P.S. DINESH KUMAR, J., PRONOUNCED THE FOLLOWING:-

                                ORDER

This writ petition is presented with following prayers:

"1. Quash the order dated 06.08.2021 passed by the Hon'ble Karnataka State Appellate Tribunal in Application No.1729/2020 produced at Annexure-A and consequently drop the proceedings G.O. bearing Mo.G.O.NO.C.AA. SU.E/03/SAA.E.V.2012 dated 24.04.2020 of the respondent No.1 vide Annexure-A1.

2. Pass such other order/s as deemed fit in the facts and circumstances of the case in the interest of justice and equity."

2. We have heard Shri. H.B.Chandrashekar, learned

Advocate for the petitioner and Shri. Vikas Rojipura, learned

Advocate for Respondent No.1 and Shri. Venkatesh Arabatti,

learned Advocate for the Respondent No.2.

3. Brief facts of the case are, while petitioner,

M. Venkatesh Murthy was working as Under Secretary (Land

Acquisition and Rehabilitation), Bengaluru, a complaint1 was

lodged against him alleging that he had demanded bribe from

one Shri. K Manjunath. On investigation, a charge sheet was

filed before the learned XXIII Additional City Civil and Special

Judge. After trial, he was acquitted on 10.01.20182.

4. A Departmental Enquiry3 was also conducted. The

Enquiry Officer4 vide enquiry report dated 31.12.2018, held

that the petitioner is guilty of charges and recorded that he

had failed to maintain absolute integrity and devotion in his

duty. The Hon'ble Lokayukta recommended penalty of

compulsory retirement from service with denial of 25% of the

total retirement benefit payable to him and denial of 30% of

the monthly pension payable for a period of 5 years and the

same was imposed.

dated 25.04.2012

'DE' for short

the Additional Registrar Enquires

5. Aggrieved, the petitioner approached the KSAT5

and his application has been rejected. Hence, this writ

petition.

6. Assailing the impugned order, Shri.Chandrashekar,

for the petitioner, contented that:

 the petitioner was honourably acquitted by the

Special Judge in the criminal case and it has

attained finality;

 the order passed by the Special Judge ought to

have been considered by the Enquiry Officer in the

DE;

 it is settled that if the charges in both criminal case

and DE are one and the same; and if the

delinquent official is acquitted in the criminal case,

he cannot be punished in the departmental

proceedings.

Karnataka State Administrative Tribunal

7. In support of his contentions, Shri. Chandrashekar,

has placed reliance on following authorities:

(i) Capt. M. Paul Anthony Vs. Bharat Gold Mines6;

(ii) State of Andhra Pradesh and another Vs.

C. Murulidharan7;

(iii) Union of India and another Vs. Purushottam 8;

(iv) S. Bhaskarreddy and another Vs. Superintendent of

Police and another9.

8. With the above submissions, he prayed for allowing

this writ petition.

9. Opposing the writ petition, Shri. Arabatti for

respondent No.2, submitted that each case will have to be

examined with reference to the facts of that case. In the case

on hand, petitioner has not been honourably acquitted in

criminal case. Therefore, this petition does not merit any

consideration.

(1999)3 SCC 679

AIR 1997 SC 3005

2015 AIR SCW 812

2015 AIR SCW 571

10. We have carefully considered rival contentions and

perused the records.

11. Based on submissions on both the sides, the

questions that arise for consideration is:

(i) Whether petitioner was honourably acquitted in

the criminal case?

(ii) Whether the impugned order calls for any

interference?

Re. point No.(i):

12. Undisputed facts of the case are, petitioner has

been acquitted in the criminal trial. In the DE, the charges

were held proved and penalty has been imposed.

13. The charges framed in the criminal case and DE

are as follows:

Charges in Criminal Case: Charges in Department Enquiry:

1. Whether the prosecution proves 5(1). That, you DGO-1, Sri.M. Venkatesh beyond all reasonable doubt that the Murthy the then Deputy Secretary to accused No.1 being public servant holding Government, Revenue Department and the post of Deputy Secretary to the you DGO-2 Sri. Venkatesh Murthy M, Government (Land Acquisition and Under Secretary to Government Revenue Rehabilitation), Revenue Department, Department, Bangalore have committed demanded illegal gratification of following dereliction of duty/misconduct:-

Rs.50,000/- which was scaled down to Rs.40,000/- in connection with providing 5(2). You DGOs-1 & 2, when approached the copy of the Government Order leaving by complainant Sri. K. Manjunath on the land bearing Sy.No.34/3 situated at 18.4.2012 for cancellation of Subhadru Nagawara village from acquisition Patras issued by the Government with proceedings and on 19.4.2012, Accused respect to the land bearing Sy. No.34/3 of No.1 received advance illegal gratification Nagavar, Bangalore intending to enter into of Rs.20,000/- from the complainant joint venture with the developer to build CW.1, further demanded balance illegal multi storied buildings. You DGO/s gratification of Rs.20,000/- and on demanded the bribe of Rs.50,000/- to do 25.4.2012 at about 5.15 p.m in his office, an official favour and on negotiation it was accused No.1 demanded and accepted reduced to Rs.40,000/- and on 20.4.2012, illegal gratification of Rs.20,000/- and you received Rs.20,000/- and on thereby accused No.1 committed the 25.4.2012, you demanded and accepted offence punishable U/Sec.7 of Prevention remaining/further bribe of Rs.20,000/-

of Corruption Act, 1988? from the complainant and gave the same to DGO-2 from whose possession, the

2. Whether the Prosecution proves same was seized. beyond all reasonable doubt that on the said date, time and place, the accused 5(3). Thereby, you DGOs have failed to No.1 being public servant, by abusing his maintain absolute integrity besides official position, has obtained illegal devotion to duty and committed an act gratification of Rs.20,000/- from CW.1 which is unbecoming of Government complainant without public interest and servants and thus, you-DGOs have committed criminal misconduct and committed misconduct U/R 3(1)(i) to (iii) thereby accused No.1 has committed an of Karnataka Civil Service (Conduct) Rules offence punishable under section 13(1)(d) 1966. read with section 13(2) of The Prevention of Corruption Act, 1988?

3. Whether the prosecution proves beyond all reasonable doubt that on the said date, time and place accused No.2 being public servant accepted illegal gratification of Rs.20,000/- on behalf of the accused No.1 as a motive or reward, for inducing by corrupt or illegal means to influence accused No.1 for helping the complainant in issuing the Government Order dated 16.4.2010 to CW.1 and thereby accused No.2 committed an offence punishable under section 9 of the Prevention of Corruption Act?

4. What order?

14. The Apex Court in M.Paul Anthony Vs. Bharat Gold

Mines Ltd and Another., 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 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 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."

(Emphasis Supplied)

15. In G.M.Tank Vs. State of Gujarat and Others10 and

held thus:

"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

(2006) 5 SCC 446

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 department 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's case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

(Emphasis Supplied)

16. In S. Bhaskar Reddy Vs. Supt. Of Police11, the Apex

Court has examined the aspect of 'honourable acquittal'.

Citing Inspector General of Police Vs. Samuthiram12; M.Paul

Anthony Vs. Bharat Gold Mines Ltd; and G.M.Tank Vs. State of

Gujarat, has held as follows:

"19. 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 SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. 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 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC.

(2015) 2 SCC 365

(2013) 1 SCC (Cri) 566

The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram, 2013 1 SCC 598, the relevant para from the said case reads as under :-

"24. The meaning of the expression "honourable acquittal"

came up for consideration before this Court in RBI v. Bhopal Singh Panchal. 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 that the accused was honourably acquitted."

After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of

Chandigarh & Ors. in Civil Appeal No. 2325 Of 2009 (decided on November 11, 2014.

Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has 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 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."

Further, in the case of G.M. Tank v. State of Gujarat and Ors this Court held as under:-

"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 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 [pic]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 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

20. 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.

21. 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..

(Emphasis Supplied)

17. A careful reading of the charges framed before the

Trial Court and the DE extracted hereinabove, shows that they

are one and the same. The learned Special Judge has

acquitted the DGO holding thus:

"60. Based on these oral and documentary evidences and relaying upon the authoritative decisions placed before me by the learned counsel for the accused and learned Public Prosecutor, I hold that the prosecution has satisfactorily proved the guilt against the accused No.1 by adducing cogent, convincing and corroborative evidence. But, as far as accused No.2 is concerned, the prosecution has failed to satisfactory bring home the guilt of accused No.2. It can be safely arrived that accused No.1 being public servant has mis- used his official power by voluntarily accepting illegal gratification from Pw 5 to do his official work without public interest and committed misconduct. Thus, I answer point Nos.1 and 2 in the affirmative and point No.3 in the negative."

18. In view of the law laid down in above authorities,

we are of the considered opinion that the DE was conducted

on the same set of facts. If the accused is acquitted of

charges in criminal case and a DE is initiated based on same

set of facts and evidence, the penalty order shall be liable to

be set-aside. However, if the charges are different, it does not

bar the departmental proceedings.

19. On the same set of facts, a DE was conducted. The

witness in the criminal case and DE are same except

H.K.Lakhminarayan Rao, who issued the prosecution order.

The list of witnesses are as follows:

1) J.K.Murthy (Shadow witness) was examined as P.W.1 in criminal case and P.W.2 in DE.

2) Harish (Trap Mahazar witness) was examined as P.W.2 in criminal case and P.W.1 in DE.

3) Wodeyar S.T. (Investigation Officer) was examined as P.W.4 in criminal case and P.W.4 in DE.

4) K. Manjunatha (the complainant) was examined as P.W.5 in criminal case and P.W.3 in DE.

20. Based on the same evidences, the Enquiry officer

has held as follows:

"66. On careful analysis and appreciation of oral and documentary evidence placed on record, it is manifestly clear that the depositions of PW1 to 4 are fully corroborated each other, consistent and fortified by Ex P1 to 10 and same are inspiring confidence of this enquiry authority to rely and to

act upon against DGOs and there is nothing brought on record to disbelieve the same.

67. For the aforesaid reasons and observations made in the light of depositions of PW1 to 4 and relevant documents and provisions of law, under the given set of facts and circumstances of this enquiry, I have arrived at inevitable conclusion to hold that the Disciplinary Authority through its presenting officer is successful in proving the charge framed and leveled against the DGOs 1 & 2 up to the standard of preponderance of probabilities, to record my finding in the affirmative as proved."

21. It is relevant to note Para 34 of the report, which

reads as follows:

"34. PW-3 further deposed that, DGO-1, assured him to do the work, but demanded for Rs.50,000/- and on bargain, DGO-1 agreed for Rs.40,000/-. On next day, PW-3 gave Rs.20,000/- to DGO-1 along with filled application and DGO-1 received the same and asked him to give the remaining/further amount/bribe after completion of the work."

22. In the case on hand, the learned Special Judge

has recorded that the prosecution has failed to satisfactory

bring home the guilt of accused No.2. In S. Bhaskar Reddy,

the Apex Court referring to Depurty Inspector General of

Police and Anr Vs. S. Samuthiram13, it has recorded in para 19

that 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 that the accused was honourably acquitted.

There were two accused before the criminal court in this case,

the learned Special Judge has held accused No.1 guilty and

held in the case of petitioner (accused No.2) prosecution had