Karnataka High Court
Ramesh S/O Revu Nayak Rathod vs Karnataka Lok Ayukta And Ors on 7 December, 2023
Author: R.Devdas
Bench: R.Devdas
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WP No. 200426 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
WRIT PETITION NO. 200426 OF 2017 (GM-KLA)
BETWEEN:
1. RAMESH S/O REVU NAYAK RATHOD,
AGE:45 YEARS,
OCC:ASST.ENGINEER (ELE),
R/O H.NO. 2910-40/33 POOJA COLONY,
KUSNOOR ROAD,
DIST:KALABURAGI-585106.
...PETITIONER
(BY SRI. AVINASH A UPLOANKAR, ADVOCATE)
AND:
Digitally signed by
SOMANATH 1. KARNATAKA LOK AYUKTA,
PENTAPPA MITTE
Location: HIGH REPRESENTED BY ITS
COURT OF
KARNATAKA ADDITIONAL REGISTRAR OF ENQUIRIES-4
M.S.BUILDING,
BANGALORE-560001.
2. THE UPLOKAYUKTA,
MULTI STORIED BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
3. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560009.
REPRESENTED BY ITS MANAGING DIRECTOR.
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WP No. 200426 of 2017
4. THE DIRECTOR,
(ADM & HRD) KPTCL,
KAVERI BHAVAN, BANGALORE-560009.
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, SPL. PP FOR R1 & R2;
SRI. RAVINDRA REDDY, ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSITTUTION OF INDIA, PRAYING TO
I) CALL FOR THE RECORDS RELATING TO ENQUIRY REPORT
DATED 06TH JULY 2015 PASSED BY THE 1ST RESPONDENT IN
No. LOK/ARE-4/ENQ-106/2011 VIDE ANNEXURE-C, AND IN
PURSUANCE OF WHICH THE DECISION/ORDER TAKEN BY THE
4TH RESPONDENT VIDE ORDER No. KPTCL/B37/103RD BM/
2016-17 DATED 19TH DECEMBER 2016 VIDE ANNEXURE-G.
II) ISSUE ANY APPROPRIATE ORDER OR DIRECTION OR A
WRIT IN THE NATURE OF CERTIORARI AND TO QUASH THE
ENQUIRY REPORT PASSED BY THE 1ST RESPONDENT IN No.
LOK/ARE-4/ENQ-106/2011 DATED 06.07.2015 VIDE
ANNEXURE-C, THE RECOMMENDATION ORDER PASSED BY THE
2ND RESPONDENT IN No. LOK/ARE-4/ENQ-106/2011
DATED:10.07.2015 VIDE ANNEXURE-D, AND IN PURSUANCE
OF WHICH THE DECISION/ORDER TAKEN BY THE 4TH
RESPONDENT VIDE ORDER No. KPTCL/B37/103RD BM/2016-17
DATED 19TH DECEMBER 2016 VIDE ANNEXURE-G, AND
III) GRANT SUCH OTHER RELIEF OR RELIEF'S AS THIS
HON'BLE COURT DEEMS FIT TO GRANT ON THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, C M JOSHI, J., MADE THE FOLLOWING:
ORDER
The petitioner being aggrieved by the report of the
Enquiry Officer dated 06.07.2015 (Annexure-C), the
recommendation order passed by the respondent No.2
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dated 10.07.2015 (Annexure-D) and in pursuance of which
order passed by the respondent No.4 dated 19.12.2016
(Annexure-G) imposing the penalty of dismissal from
service and discharging him from his service, has
approached this Court in the instant writ petition.
2. The material facts that are necessary for the
appreciation of the issue involved in this case are as
below:
The petitioner was appointed as Assistant Engineer
at GESCOM in the year 2003-04 vide the Corporate Office
letter dated 10.02.2003 and reported to the duty on
18.02.2003 as Section Officer at Bhalki Section, O & M
Sub-Division, GESCOM, Bidar. While discharging his
duties as Assistant Electrical Engineer, GESCOM, Aland,
Kamalapur in Gulbarga District, a case came to be
registered against him in Crime No.192/2005 by
Lokayukta police for the offences punishable under Section
Section 7 and 13(1)(d) R/w Section 13(2) of the
Prevention of Corruption Act, 1988. It was alleged that
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the petitioner had received a sum of Rs.5,000/- as a bribe
to install an independent electricity transformer for
"Zeenath Saw Mill" of the complainant therein. Being not
willing to pay the bribe, the complainant approached the
Police Inspector, Lokayukta Police Station and lodged the
complaint. Following the pre-trap formalities and
conducting entrustment mahazar, the petitioner was
trapped on 21.03.2005 after he accepted illegal
gratification of Rs.5,000/- from the complainant in the
presence of shadow witness and the said amount was also
recovered from the petitioner and then required post-trap
formalities were completed. During the course of
investigation, the investigating officer recorded the
statements of the witnesses, panch witnesses and etc.,
and the Investigating officer sent the articles sized during
the pre-trap and post-trap formalities to the chemical
examiner, who submitted his report, which showed the
result as positive. The Investigating officer filed the charge
sheet against the writ petitioner herein before the Special
Court for the above said offences. The learned Sessions
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Judge tried the matter and convicted the writ petitioner for
the said offences.
3. The petitioner approached this Court in Criminal
Appeal No.3509/2009. This Court by the judgment dated
13.07.2010 set aside the judgment of conviction passed
by the Trial Court and held that the prosecution had failed
to prove the guilt of the accused and as such the petitioner
came to be acquitted of the above said alleged offences.
Thereafter, on the basis of the same set of facts the
Lokayukta prepared a report under Section 12(3) of the
Karnataka Lokayukta Act, 1984 (hereinafter referred to as
'Act 1984') and furnished the same to the GESCOM
seeking entrustment of the Departmental Enquiry.
Accordingly, the enquiry was entrusted to the Lokayukta
by GESCOM by order dated 30.05.2011. Pursuant to the
same, the Enquiry Officer issued Articles of charge on
30.08.2011, held the enquiry and submitted his report
dated 06.07.2015 recommending imposition minimum
penalty of compulsory retirement from service as provided
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in Regulation No.9(vi) of the KEB Employees'
(Classification, Disciplinary Control and Appeal)
Regulations, 1987. In pursuance to the recommendations,
the GESCOM (respondent No. 3) accepting the report took
a decision to discharge the petitioner from service.
4. Challenging the report of the Enquiry Officer,
recommendation and the order passed by GESCOM, the
petitioner has filed the instant petition.
5. We have heard learned counsel Avinash
Uplaonkar appearing for the petitioner and the learned
counsel Sri.Subhash Mallapur, Spl. PP appearing for the
respondent Nos.1 and 2 and Sri. Ravindra Reddy, learned
counsel appearing for respondent No.3 and 4.
6. The learned counsel for the petitioner would
contend that though the petitioner was convicted by the
Special Judge, in the appeal this Court has entered a
finding of acquittal. He contends that the petitioner has
been acquitted by this Court in Criminal Appeal
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No.3509/2009 on the ground that the demand and
acceptance are not proved and also that as on date of the
alleged trap, there was no such work, concerning the
complainant which was pending before the petitioner. He
further contends that the entire proceedings initiated
against the petitioner and the recommendation made by
the second respondent and order passed by the fourth
respondent in its 103rd Board meeting is highly arbitrary,
illegal and are liable to be quashed. It is submitted that
the enquiry officer has lost sight of in appreciating the
evidence of PW1, who is the complainant; and he had
turned hostile to the case of the prosecution. In view of
he resiling from the contents of the complaint, the very
factum of the demand is not established. It is also
submitted that the issue of the electricity connection for
the saw mill is not established, since, there was no such
saw mill which was standing in the name of the
complainant. It is also submitted that the shadow witness
who is the important witness in the entire transaction has
also resiled from the contents of the panchanama and has
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given a go bye to the entire case. It is submitted that the
enquiry officer has only looked into the evidence of the
investigating officer and has come to erroneous
conclusion. It is submitted that the enquiry officer has not
taken into consideration the evidence of the petitioner who
was examined as DW1 and Ex.D1 and Ex.D2 were marked.
He also submitted that in the Criminal prosecution the
petitioner had been acquitted 'honorably' and also that the
disciplinary enquiry was also on the same set of facts.
There was no 'other circumstances' which were brought
against the petitioner in the disciplinary proceeding and
therefore the order of removal from the service is at all
sustainable in law.
7. The second contention is that when the enquiry
was on exactly the same set of facts and the same set of
witnesses who were examined before the Criminal Court,
the report of the enquiry officer is perverse and it could
not have been accepted by the Disciplinary Authority.
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8. In this connection, he relied on the decision in
the case of M.Paul Anthony V/s Bharat Gold Mines
Limited1, G.M.Tank V/s State of Gujarat2, S.Bhaskar
Reddy V/s Supt. Of Police3. He also relied on a decision
of Division Bench of this Court in W.P.No.203239/2019
dated 29.05.2020 in the case of Aejaz Hussain S/o
Ashraf Hussain V/s The State of Karnataka. He also
relied on the decision in the case of Shri. Ramesh
Balappa Pammar V/s The Karnataka Power
Transmission Corporation Limited and other, in
W.A.No.100169/2023 dated 20.04.2023.
9. Per contra, learned counsel appearing for the
respondent Nos.3 and 4 submits that the consideration for
the Criminal Court is entirely different and considerations
for the disciplinary enquiry are entirely different. He
submits that the disciplinary enquiry is based on the
principle of preponderance of probability but not on strict
(1999) 3 SCC 679
(2006) 5 SCC
(2015) 2 SCC 365
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proof of evidence as required under the Criminal law.
Therefore, even though the PW1 had turned hostile to the
prosecution, the fact that the tainted currency notes were
recovered from the petitioner has been established and
therefore the enquiry holds the field. He contends that
the petitioner was imposed the penalty after considering
the gravity of the misconduct committed by the petitioner.
It is submitted that the penalty imposed is also adequate
and he was still under the probation and therefore no fault
can be found with the respondent No.3 and 4.
10. He relied on the following judgments.
1) (2020) 3 SCC 423; State of Karnataka V/s
N.Gangaraj.
2) (2020) 9 SCC 471; Pravin Kumar V/s
Union of India.
3) (2020) 2 SCC 130; State of Bihar V/s
Phulpari Kumari.
4) (2016) SCC 671; Baljinder Pal Kaur V/s
State of Punjab.
5) (2019) 10 SCC 367; Karnataka Power
Transmission Corporation Ltd. V/s
C.Nagaraju.
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6) 2017(1) KCCR 944; D.G.Manjunath V/s
Karnataka Lokayukta.
7) 2020 (2) KCCR 996 (DB); Dr. Banappa N
V/s The state of Karnataka.
8) AIR 1991 SC 1853 (FD); Khujji alias
Surendra Tiwari V/s State of M.P.
9) AIR 1979 SC 1848; Syad Akbar V/s State
of Karnataka.
10) AIR 1977 SC 170; Rabindra Kumar Dey
V/s State of Orissa.
11) 1976 Cri. L. J. 203 (FB); Bhagwan Singh
V/s The State of Haryana.
11. In all these judgments, it is held that the
standard of proof in a disciplinary proceeding is based on
the principle of preponderance of probability and in
Criminal proceeding it is based on strict proof of beyond
reasonable doubt. The second proposition is that the
Criminal proceeding as well as the Disciplinary proceedings
can proceed independently.
12. The learned counsel representing the
respondent No.1 and 2, Lokayukta contends that the trial
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in the Criminal Case and the Department enquiry are
entirely different. He states that both can be held and
continued simultaneously or department enquiry can be
conducted even after the acquittal of the Government
servant by the Criminal Court. According to him, it is
settled principle of law that the findings of the Criminal
Court will not have any bearing upon the conduct and
result of the departmental enquiry. In this connection, he
relies on a catena of decisions which are as below:
13. In the light of the above submissions, the only
point that arise for consideration is whether the acquittal
of the petitioner by the Criminal Court would have a
bearing on the departmental enquiry and the resultant
penalty imposed on him.
14. Before venturing into the factual aspects of this
case, it is to be noted that the Apex Court in M.Paul
Anthony V/s Bharat Gold Mines Limited, has held as
below:
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"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."
15. Later in the case of G.M.Tank V/s State of
Gujarat, the Apex Court observed that the witnesses
examined, the evidence lead, the document relying in
departmental proceedings as well as the Criminal
proceeding were one and the same and there was no iota
of difference between the two proceedings and therefore
the departmental proceedings should also end with the
same result. In para 31 it was held as below:
"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
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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
[(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."
16. Thereafter, in the case of S.Bhaskar Reddy V/s
Supt. Of Police, the Apex Court by referring to the case of
Inspector General of Police V/s S.Samuthiram and
various other decisions, considered the meaning of the
expression of 'honourable acquittal' and came to the
conclusion that the findings in the Criminal case would
have a bearing on the departmental enquiry also.
Ultimately in para 26, reiterating the view taken in M.Paul
Anthony (supra) came to the conclusion in following
words;
"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
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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."
17. Therefore, the consistent view of the Apex
Court as can be found from the above decisions is that, if
the departmental proceedings and the criminal
proceedings are identical and if the criminal proceedings
result in an 'honourable acquittal', similar result should
also follow in a departmental proceedings. If there are
other complicated questions and other charges under the
departmental enquiry, that the acquittal in the criminal
proceedings would not have any bearing on the
departmental enquiry. There is no doubt that in
departmental enquiry the principle of preponderance
probability is applicable and the standard of evidence
required is not that of proof beyond doubt. Most of the
decisions relied by the learned counsel appearing for the
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respondent No.3 and 4 pertain to this distinction of
standard of proof in these proceedings.
18. A Coordinate Bench of this Court in Aejaz
Hussain S/o Ashraf Hussain V/s The State of
Karnataka, has considered the above decisions and
applied the same. So also, another Coordinate Bench of
this Court in the case of Shri. Ramesh Balappa Pammar
V/s The Karnataka Power Transmission Corporation
Limited and other, has also considered the effect of
identical evidence being lead in the departmental
proceedings and the criminal case.
19. The latest decision of the Apex Court in the
case of Ramlal V/s State of Rajasthan and others
(Civil Appeal No.7935/2023, dated 04.12.2023), also
considered the expressions 'honourable acquittal' and
'benefit of doubt' and ultimately in para 25, 26 and 27, it
was observed as below:
"25. Expressions like "benefit of doubt"
and "honorably acquitted", used in judgments
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are not to be understood as magic
incantations. A court of law will not be carried
away by the mere use of such terminology. In
the present case, the Appellate Judge has
recorded that Exh. P-3, the original
marksheet carries the date of birth as
21.04.1972 and the same has also been
proved by the witnesses examined on behalf
of the prosecution. The conclusion that the
acquittal in the criminal proceeding was after
full consideration of the prosecution evidence
and that the prosecution miserably failed to
prove the charge can only be arrived at after
a reading of the judgment in its entirety. The
court in judicial review is obliged to examine
the substance of the judgment and not go by
the form of expression used.
26. We are satisfied that the findings of
the appellate judge in the criminal case
clearly indicate that the charge against the
appellant was not just, "not proved" - in fact
the charge even stood "disproved" by the
very prosecution evidence. As held by this
Court, a fact is said to be "disproved" when,
after considering the matters before it, the
court either believes that it does not exist or
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considers its non-existence so probable that a
prudent man ought, under the circumstances
of the particular case, to act upon the
supposition that it does not exist. A fact is
said to be "not proved" when it is neither
"proved" nor "disproved" [See Vijayee Singh
and Others v. State of U.P. (1990) 3 SCC
190].
27. We are additionally satisfied that in
the teeth of the finding of the appellate
Judge, the disciplinary proceedings and the
orders passed thereon cannot be allowed to
stand. The charges were not just similar but
identical and the evidence, witnesses and
circumstances were all the same. This is a
case where in exercise of our discretion, we
quash the orders of the disciplinary authority
and the appellate authority as allowing them
to stand will be unjust, unfair and oppressive.
This case is very similar to the situation that
arose in G.M. Tank (supra)"
20. In the case of hand, the complainant who
alleged that the petitioner had demanded bribe for the
purpose of installing an independent transformer for his
Zeenath Saw Mill, but turned hostile to the prosecution
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and had not deposed that there was any demand by the
petitioner. He took same stand before the Criminal Court
as well as before the Enquiry Officer. In the cross
examination it was elicited that there was a saw mill
standing in the name of his son. Nevertheless, the fact
that there was no such demand, was reiterated by him
and it was the only evidence that was available to prove
demand.
21. The shadow witness PW2 states about the pre-
trap formalities and then states that they went to the
office of the petitioner, but he was absent and then they
went to the house of the petitioner searching him.
Evidently he does not say that there was any demand by
the petitioner, but the PW1 had gone into the house of the
petitioner and came out and gave signal. Thus, the
statement of the PW2 also does not show that there was
any demand. The sine-qua-non of any conduct
unbecoming of a public servant attracting the provisions of
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Sec 7 and 13 of Prevention of Corruption Act, were not
met with.
22. It is relevant to note that in criminal
proceedings i.e., Special Case No.192/2005, the
complainant was examined as PW6 and the shadow
witness was examined as PW1. The investigating officer
was examined as PW8. In departmental proceedings also
the complainant was examined as PW1 and shadow
witness was examined as PW2 and other pancha was
examined as PW3 and investigating officer was examined
as PW4. Same set of documents pertaining to the criminal
case were produced in departmental enquiry also. The
Articles of charge leveled against the petitioner read as
below:
CHARGE
That, you Sri Ramesh Rathod the DCO, while
working as Assistant Engineer (Elcl) GESCOM,
Alanda, Kamalapura in Gulbarga district demanded
bribe of Rs.6,000/-from the complainant namely Sri
Mohammed Suleman S/o Abdul Rahiman the
proprietor of "Zeenath Saw Mill" Alanda for the
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purpose of providing independent electricity
transformer and when the complainant showed
inability reduced the bribe to Rs.5000/- and on
21.03.2005 accepted bribe of Rs.5000/- from the
complainant to show official favour, failing to
maintain absolute integrity and devotion to duty
which act is un-becoming of a Govt. servant and
thereby committed mis-conduct as enumerated
Regulation 3 of KEB Employees (Conduct)
Regulations, 1988)
23. Though the Trial Court had convicted the
petitioner, this Court in Criminal Appeal No.3509/2009
dated 13.07.2010, acquitted the petitioner observing in
para 8 as below:
"8. After hearing both sides it has to be seen that
on the very day of the incident, the appellant had
given an explanation as per Ex.PP-15. In the said
explanation he has stated that Suleman had given a
sum of Rs.5,000/- for temporary connection for a
sugar cane crusher for six days effective from the
date of service and hence the said sum of Rs.5,000/-
is towards issuance of temporary connection for
sugar cane crusher. This explanation has been
reiterated by him in the suggestion to the witnesses
and so far as the "demand and acceptance"
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requirement of the prosecution is concerned, the
prosecution has totally turning hostile both regarding
demand and regarding acceptance of the money,
further it is seen that the complainant is not the
owner of any saw mill nor any other document is
produced to show that he has any connection with
the file. The prosecution has also not produced the
file alleged to have been maintained containing the
application of the complainant PW-6 regarding
furnishing of a transformer. Hence, the prosecution
is lacking not only the oral evidence of PW-6, there is
also no documentary evidence produced in the case
to show that there was an official work pending
before the appellant at the time when the alleged
bribe was accepted by the appellant. PW-8 in his
cross examination has stated that he has not seized
any documents connected to the saw mill of PW-6
from the office of GESCOM. On the other hand there
is a letter in the file, though it is not marked, gets
significance, which says that there is no saw mill in
the name Zeneth Saw Mill in Aland Town standing in
the name of Mohammad Suleman. The said
certificate is issued by Assistant Executive Engineer
(El) on 13.10.2008. Under the circumstances, the
prosecution has failed to prove that there was such
an application pending before the appellant wherein
the appellant had requested the GESCOM office to
give an additional transformer to his saw mill. In the
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absence of such material on record, the learned
Sessions Judge could not have found that the
appellant was in the position of performing the
official duty for which he would have demanded the
illegal gratification...."
24. The Enquiry officer in para 25 of his report
observes that this Court had not considered the full
evidence and acquitted the accused only on the point that
the application of the complainant for supply of new /
independent transformer was not seized and produced but
the enquiry officer had discussed the same. It is also
pertinent to note that no such material was produced
before the Enquiry officer which was not produced before
the Criminal Court. Thus, it is evident that there was no
file pertaining to the complainant available before the
respondent No. 3 and 4.
25. Under these circumstances, we do not find that
there was any other material which was placed before the
enquiry officer to come to conclusion that the Articles of
the charge was proved. It is also worth to note that the
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articles of charge do not mention anything except the trap
proceedings conducted by the investigating officer. No
other allegations were leveled against the petitioner. No
other evidence was also placed before the enquiry
authority. The witnesses were one and the same. Hence,
we find that there was no iota of difference between the
facts and evidence in the criminal case as well as
departmental enquiry. The law laid down by the Apex
Court in the case of Paul Anthony as well as Ramlal,
covers the instant case on all fours and as a result, the
petitioner is entitled to succeed in the departmental
enquiry.
26. Hence, we hold the point raised above in favour
of the petitioner. In our considered view, the penalty
passed by the respondent No.3 and 4 dated 19.12.2016 to
discharge the petitioner from service, based on the report
of the enquiry officer dated 06.07.2015 and
recommendation of respondent No.2 dated 10.07.2015
warrants appropriate interference. We make it clear that
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the department is at liberty to consider the discharge on
other material if any, since he was under probationary
period. Hence, the following:
ORDER
The writ petition is allowed.
The report of the enquiry officer dated
06.07.2015 as per Annexure-C, the
recommendation of the respondent No.2
dated 10.07.2015 and order on penalty
passed by the respondent No.4 dated
19.12.2016 and orders there upon are all
set aside.
The petitioner is entitled for
consequential benefit that would flow from
setting aside the order on penalty.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
