Karnataka High Court
Sri. B M Nagesh vs The State Of Karnataka on 7 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
NC: 2024:KHC:5239-DB
WP No. 8494 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 8494 OF 2020 (S-KSAT)
BETWEEN:
SRI. B.M. NAGESH,
S/O LATE MAHADEVA M. NAYAK,
AGED ABOUT 42 YEARS,
RESIDING AT DURGASHREE HOUSE,
NEAR S.V.TEMPLE ROAD, KURANGRAPADY,
UDUPI-574 118.
...PETITIONER
(BY SRI. SATHISH K.,ADVOCATE)
AND:
Digitally signed 1. THE STATE OF KARNATAKA,
by CHETAN B
C REPRESENTED BY ITS PRINCIPAL SECRETARY
Location: HIGH DEPARTMENT OF REVENUE (REGISTRATION AND STAMPS),
COURT OF M.S.BUILDING, BENGALURU-560 001.
KARNATAKA
2. INSPECTOR GENERAL OF REGISTRATION AND
COMMISSIONER OF STAMPS,
KANDAYA BHAVAN, K.G.ROAD,
BENGALURU-560 009.
3. THE KARNATAKA LOKAYUKTHA,
REPRESENTED BY ITS REGISTRAR,
MS.BUILDINGS, BENGALURU-560 001.
...RESPONDENTS
(BY SRI.KHAMROZ KHAN., AGA FOR R1 & R2;
SRI.VENKATESH S ARABATII., ADVOCATE FOR R3)
-2-
NC: 2024:KHC:5239-DB
WP No. 8494 of 2020
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENTS AND SET ASIDE THE
IMPUGNED ORDER DATED 19.03.2020 PASSED IN
APPLICATION NO.6836/2018 BY THE HON'BLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU
(ANNEXURE-A) AND CONSEQUENTLY ALLOW THE SAID
APPLICATION NO.6836/2018 FILED BY THE PETITIONER
BEFORE THE HON'BLE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL AT BENGALURU.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN B GROUP, THIS DAY, KRISHNA S. DIXIT. J., MADE THE
FOLLOWING:
ORDER
Petitioner, an employee in the cadre of SDA, was
before the Karnataka State Administrative Tribunal in
Application No.6836/2018 calling in question the
disciplinary order of penalty dated 1.8.2018 whereby, he
was compulsorily retired from service on the basis of
Enquiry Report that had found him guilty of misconduct,
the bribe amount even according to the respondents,
being a paltry sum of Rs.915/-.
2. Learned counsel appearing for the petitioner
seeks to falter the impugned order of punishment on the
following grounds:
NC: 2024:KHC:5239-DB
(a) Petitioner after a full-fledged trial in Special
Case No.40/2012 has been granted honourable acquittal
by the learned Principal Sessions Judge, Udupi vide order
dated 16.08.2014; State's challenge in Criminal Appeal
No.980/2014 against the said order has been dismissed by
this Court on 29.09.2022; there is no further challenge.
(b) The Enquiry Officer 05.03.2018 has specifically
stated that the DE proceedings were held on the principle
of preponderance of probability when the applicable Rule
of Evidence was 'beyond reasonable doubt' since the
charges were grave and the consequences of 'finding
guilty' were graver.
(c) The District Registrar vide Endorsement dated
05.09.2014 had exonerated the petitioner from the
allegations of corruption & bribery, that too after
considering acquittal order of the Criminal Court. The
impugned order of compulsory retirement has been
quashed without saying a word about this Endorsement of
the District Registrar.
(d) The Tribunal failed to appreciate the case of
petitioner in the right perspective. It did not treat the
effect of District Registrar's Endorsement also though it
was specifically taken up in the reply of the petitioner at
Annexure-A8; the Tribunal has not duly followed the
NC: 2024:KHC:5239-DB
settled principles of disciplinary proceedings in matters
involving grave charges of bribery & corruption
In support of his submissions learned counsel
pressed into service certain rulings of the Apex Court.
3. The respondents after service of notice have
entered appearance. The State is represented by the
learned AGA and the Lokayukta office is represented by its
Panel Counsel. No Statement of Objections has been
filed. Learned Lokayukta counsel opposes the petition
with the following submissions:
(i) Criminal Trial and Disciplinary Proceedings are
different from each other; one does not control the other;
what happens in the former has nothing to do with what
should happen in the latter; acquittal in criminal trial is not
a bar against holding Disciplinary Enquiry; it is not a case
of honourable acquittal but it is founded on the failure of
prosecution to prove its case beyond reasonable doubt.
The applicable rule to disciplinary enquires is the 'Rule of
Preponderance of Probability'.
(ii) The Disciplinary Authority having considered all
aspects of the matter accepted the Enquiry Report after
looking to the version of petitioner to the same; he found
NC: 2024:KHC:5239-DB
him guilty of charges by accepting Enquiry Report; since
he was still young, a lenient punishment of compulsory
retirement has been awarded, instead of dismissal.
(iii) Petitioner cannot place reliance on the District
Registrar's Endorsement dated 05.09.2014 when
Government had entrusted the enquiry to the Lokayukta
office under Rule 14A of KCS (CCA) Rules, 1957 pursuant
to Upa-Lokayukta's Report dated 05.03.2018 submitted
u/s.12(3) of the Karnataka Lokayukta Act, 1984.
(iv) The matter having been examined by the
Tribunal, relief has been denied to the petitioner and the
Writ Court exercising a limited supervisory jurisdiction
cannot undertake a deeper examination of impugned
orders, the focal point of such examination being the
decision making process alone; therefore, Petition should
be dismissed on settled principles.
Learned Panel Counsel also relies upon certain rulings of
the Apex Court in support of his vehement stand.
4. Having heard the learned counsel for the parties
and having perused the petition papers, we are inclined to
grant indulgence in the matter for the following reasons:
A. BRIEF FACTS ARISING FROM THE RECORD:
NC: 2024:KHC:5239-DB
(i) One Mr. Sandeep Kumar had lodged complaint of
bribery on 03.10.2011 before the Lokayukta Police, Udupi;
Crime No.11 of 2011 for offences punishable u/ss. 7,
13(1)(d) r/w Sec.13(2) of P.C. Act, 1988. The trap was
laid on 03.10.2011 and an amount of Rs.1,350/- was
retrieved, of which only Rs.915/- was the bribe amount for
having copies of Nil Encumbrance Certificate in respect of
a property covering a period of 15 years. The Special
Case No.40/2012 ended in acquittal vide order dated
16.08.2014.
(ii) The Government pursuant to report had entrusted
the matter to the Lokayukta under Rule 14(A) of 1957
Rules vide order dated 28.02.2013. Accordingly, a
Disciplinary Enquiry was conducted on the basis of very
same allegations. The Enquiry Report dated 05.03.2018
found the petitioner guilty of charges on the version of
three witnesses PW 1 to 3 and on the basis of as many as
12 documents Ex.P1 to P12. Petitioner's reply dated
09.05.2018 was submitted against the Enquiry Report.
The Government handed the punishment order on
NC: 2024:KHC:5239-DB
01.08.2018 by way of compulsory retirement in terms of
recommendation of the Upa-Lokayukta. The challenge to
this failed before the Tribunal. That is how the petitioner
is before this court.
B. AS TO HONOURABLE ACQUITTAL & ITS IMPACT ON
DISCIPLINARY PROCEEDINGS:
1. This aspect of the matter has been examined in
detail by this Court in W.P.No.9642/2020 (S-KSAT)
between P.V.RUDRAPPA vs. STATE disposed off on
30.01.2024. The observations made therein at para IV(1)
which set the legal perspective in the focus read as under:
"(a) The vehement submission of learned AGA &
learned Panel Counsel that there is difference between
Criminal Proceedings and Disciplinary Proceedings, cannot
be disputed. Even an average law student would not
disagree with this. The nature of criminal proceedings, the
form before which they are brought, the quality &
quantum of evidence, degree of proof and the outcome of
such proceedings, are all much different from those in a
Disciplinary Proceeding. The rule of evidence applicable to
Departmental Proceedings is not the same for criminal
trial; criminal cases are ordinarily governed inter alia by
the provisions of the Indian Evidence Act, 1872 & the
Criminal Procedure Code, 1973. The technical rule relating
NC: 2024:KHC:5239-DB
to sufficiency of evidence does not apply to departmental
enquiries. The authority conducting such enquiry is
guided by the Rules of Natural Justice & Fairness. In a
departmental enquiry, there is no inhibition against placing
reliance on the evidence of a co-delinquent, unlike in a
criminal case. This is the reason why courts ordinarily do
not stay the disciplinary proceedings only on the ground
that a parallel criminal proceeding pends.
(b) What is observed by the Apex Court in AJIT
KUMAR NAG vs. INDIAN OIL CORPORATION LTD., 2005
SCC Online SC 1352 at para 11 is worth reproducing:
"As far as acquittal of the appellant by a
criminal court is concerned, in our opinion, the
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 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 offender, the
purpose of enquiry proceedings is to deal with
the delinquent departmentally and to impose
penalty in accordance with 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
NC: 2024:KHC:5239-DB
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 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 dismissing
him from service deserves to be quashed and
set aside.
However, the above observations are by way of general
rule which admits at least one exception namely the
abnorm of honourable acquittal.
(c) In RAM LAL v. STATE OF RAJASTHAN,
(2024) 1 SCC 175, it is observed at para 30 as under:
'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
- 10 -
NC: 2024:KHC:5239-DB
authority as allowing them to stand will be
unjust, unfair and oppressive.'
In other words, when the facts, evidentiary material
and the circumstances arising from the criminal
case are identical to those in the disciplinary
proceedings, ordinarily there cannot be difference in
terms of their outcome. If on identical set of
facts/allegations that are vouched by the very same
evidentiary material/witnesses, an accused
employee is acquitted after a full-fledged trial,
ordinarily he cannot be punished in a disciplinary
enquiry. In a way, this can be likened to doctrine of
double jeopardy, constitutionally enacted in Article
20(2); the Apex Court in a catena of decisions has
applied the same even in disciplinary proceedings
eg., STATE OF HARYANA vs. BALWANT SINGH,
(2003) 3 SCC 362. This vital aspect has not figured
in the consideration of petitioner's case at the hands
of disciplinary authority... ".
2. What has been above observed equally applies to
the case of petitioner as well inasmuch as the Criminal
Court in its Acquittal Order dated 16.08.2014 at internal
page 14 has discussed the version of the complainant PW1
as under:
- 11 -
NC: 2024:KHC:5239-DB
"He has further stated that the
complainant has been regularly paying the
Government fees and on that belief he received
the currency notes given by the complainant
and as he was busy he could not have counted
them and kept them in the almirah. Looking to
the said explanation given by the accused, it is
clear that he has received the amount from the
complainant treating them as it is towards
Government fee payable by the complainant and
without counting them he kept it in the almirah.
It is lawful for the accused to take the
Government fee from the complainant for
furnishing the certified copies of the documents
applied by him. The Investigating Officer has
also seized the documents furnished by the
accused to the complainant and they are at
Exs.P4 to P6 and they are kept ready by the
accused on 30-9-2011 and they bear the
signatures of the accused. P.W.1 went to the
office of the Sub-Registrar on 1-10-2011 to
meet the accused and at that time he did not
ask about the documents sought by him in the
office and when he was told the accused is on
casual leave, simply he went back. On that day
also the complainant did not pay the
Government fee for supply of certified copies of
the documents sought by him. Therefore, the
amount received by the accused includes the
Government fee for supply of the certified
copies of the documents and the accused under
the belief that the amount given by the
complainant is towards the Government fee, has
received and kept it in the almirah without
counting."
A plausible explanation offered by the petitioner as to how
an amount of Rs.1,350/- was kept in the office almirah has
- 12 -
NC: 2024:KHC:5239-DB
been accepted by the Court after examining all aspects of
the matter. We hasten to add that in all fairness, Panel
Counsel for the Lokayukta submitted that out of the said
amount, a sum of Rs.435/- was payable to the State
Exchequer towards charges for furnishing certified copies
of the documents and thus, the alleged bribe amount
would, arithmetically speaking, stands diminished to
Rs.915/- only.
3. The District Registrar happens to be the
appointing authority of the petitioner, outside Bengaluru
jurisdiction vide Schedule II to 1957 Rules. He had
examined the entire matter in the light of acquittal order
of the Criminal Court and thereafter issued the
Endorsement dated 05.09.2014. Its operative portion
reads as under:
"DzÉñÀ ¸ÀASÉå:f£ÉÆÃPÀ/GqÀĦ/E«/01/2011
¦/E«/01/2011-12 ¢£ÁAPÀ:05-
05-09-
09-
¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß PÀÆ®APÀıÀªÁV ¥Àj²Ã°¹ ºÁUÀÆ «ZÁgÀ
«ªÀıÉðUÀ¼À »£É߯ÉAiÀÄ°è J£ï.w¥ÉàøÁé«Ä, f¯Áè £ÉÆÃAzÀuÁ¢üPÁj
ºÁUÀÆ ªÀÄÄzÁæAPÀUÀ¼À G¥À DAiÀÄÄPÀÛgÀÄ ªÀÄvÀÄÛ ¢éwÃAiÀÄ zÀeÉð
¸ÀºÁAiÀÄPÀgÀ £ÉêÀÄPÁw ºÁUÀÆ ²¸ÀÄÛ ¥Áæ¢üPÁjUÀ¼ÀÄ GqÀĦ f¯É
f¯Éè,
GqÀĦ DzÀ £Á£ÀÄ ªÀiÁ£Àå °ÃPÁAiÀÄÄPÀÛ «±ÉõÀ WÀ£À
£ÁåAiÀiÁ®AiÀĪÀÅ ¢£ÁAPÀ:16-08-2014gÀAzÀÄ ¤ÃrgÀĪÀ wÃ¥Àð£ÀÄß
- 13 -
NC: 2024:KHC:5239-DB
UËgÀ«¹, PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉêÁ (ªÀVÃðPÀgÀt, ¤AiÀÄAvÀæt
ªÀÄvÀÄÛ C¦Ã®Ä) ¤AiÀĪÀÄUÀ¼ÀÄ 1957gÀr ¤ÃrgÀĪÀ ¥ÀæzÀvÀÛªÁzÀ
D¢üPÁgÀªÀÅß ZÀ¯Á¬Ä¹ ²æÃ.©,JªÀiï.£ÁUÉÃ±ï ¢éwÃAiÀÄ zÀeÉð
¸ÀºÁAiÀÄPÀgÀÄ G¥À£ÉÆÃAzÀt PÀbÉÃj PÀÄAzÁ¥ÀÄgÀ EªÀgÀ ªÉÄð£À
¯ÉÆÃPÁAiÀÄÄPÀÛ «ZÁgÀuÉAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉƽ¹ DzÉò¹zÉ."
The contention of the petitioner that his case is of
honourable acquittal thus impresses us not only by the
perusal of the above endorsement but the very acquittal
order itself in general and the paragraph reproduced
above in particular.
4. It is not a case of acquittal of the accused on the
ground of 'beyond reasonable doubt'. The Criminal Court
after a full fledged trial has recorded a specific finding at
page 24 of the acquittal order as under:
"...PW-1 in his Examination-in-Chief has not
stated that the accused demanded bribe when he
met him on 03.10.2011 in his office... PW-4 who
is the shadow Panch has also not stated ... about
the demand made by the accused ... so, from the
evidence of PW-1 and 4, it is quite clear that
there was no demand made by the accused...".
Further at page 14 of the acquittal order which is already
reproduced above has given elaborate reason for
accepting the explanation of the petitioner, this acquittal
- 14 -
NC: 2024:KHC:5239-DB
order has got the seal of this court in the Criminal Appeal
filed by the State that came to be dismissed. It was not
the case of complainant who was examined as PW-1 in the
disciplinary enquiry that what explanation the petitioner
had offered in the Criminal case was not true & correct
and therefore his version in variance of the same should
gain acceptance.
C. AS TO DEFECT IN THE ENQUIRY PROCEEDINGS:
1. As already observed both the criminal trial
and the disciplinary proceedings were structured on the
basis of very same allegations and evidentiary material.
Therefore, the outcome of the former would have a great
bearing on that of the later in the light of RAM LAL supra.
The contention of the petitioner that the enquiry
proceedings are even otherwise vitiated because the
Enquiry Officer had treated them as simple DE when they
were quasi-criminal in nature, stands to reason & law.
Ordinarily, the rule of preponderance of probability
governs proceedings in DE. However, where allegations
- 15 -
NC: 2024:KHC:5239-DB
are grave like bribery/corruption different considerations
figure: The rule of preponderance of probability has to
yield to the rule of proof beyond reasonable doubt,
although a bit lesser in degree qua the criminal
proceedings. The EO in the enquiry report dated
5.03.2018 has specifically stated that he had followed the
rule of preponderance of probability. Therefore, counsel
for the petitioner is right in contending that there is a legal
infirmity which was lost sight of both by the disciplinary
authority and the Tribunal. In fact, there is also a
misdirection in law, in proceeding with the disciplinary
enquiry in disregard of the findings of the Criminal Court
on the assumption that 'proof beyond reasonable doubt' is
confined to criminal trial. This view gains support vide
Apex Court decision in UNION OF INDIA vs. GYAN CHAND
CHATTAR (2009) 12 SCC 78, wherein para 21 reads as
under:
"Such a serious charge of corruption
requires to be proved to the hilt as it brings
civil and criminal consequences upon the
employee concerned. He would be liable to be
prosecuted and would also be liable to suffer
- 16 -
NC: 2024:KHC:5239-DB
severest penalty awardable in such cases.
Therefore, such a grave charge of quasi-
criminal nature was required to be proved
beyond any shadow of doubt and to the hilt. It
cannot be proved on mere probabilities. "
2. Learned panel Counsel appearing for the
Lokayukta next contended that the District Registrar's
endorsement dated 5.9.2014 could not have interdicted
the ongoing enquiry proceedings because of Government
entrustment order dated 28.2.2013 issued under Rule 14A
of the 1957 Rules does not much come to the rescue of
respondents. Firstly, this order is not in dispute; it was
specifically referred to in the petitioner's reply dated
9.5.2018 filed against the Enquiry Report dated 5.3.2018.
A copy of the said reply was produced as Annexure-A8
before the Tribunal. We repeat that the District Registrar
happens to be the designated appointing authority vide
Schedule II to the 1957 Rules and he has issued the said
endorsement after accepting the acquittal order of the
criminal court. We are amazed, to say the least, that
despite the said order, the disciplinary enquiry was
- 17 -
NC: 2024:KHC:5239-DB
continued against the petitioner. This is nothing but a
harassment to a government servant. If the District
Registrar had committed any error in issuing this
endorsement, no corrective measures are taken by the
respondents nor has he been chided for the same. When
statutorily designated appointing authority has closed the
matter, the things should have come to a halt.
In the above circumstances, this petition succeeds; a
Writ of Certiorari issues quashing the impugned orders of
Tribunal and the Disciplinary Authority; a Writ of
Mandamus issues to the first respondent to reinstate the
petitioner in service, forthwith without any financial benefit
for the period of out of service on the principle of 'no work
no pay'; however, the said period shall be treated as
service as such for all other purposes.
Since this decision has been rendered in the peculiar
fact matrix of the case, we do not intend to lay down any
concrete proposition of law and that this judgment is
structured as being substantially inter parte.
- 18 -
NC: 2024:KHC:5239-DB
This court appreciates the effective assistance
rendered by learned Panel Counsel Sri.Venkatesh S
Arabatti and learned AGA Sri.Khamroz Khan appearing for
the State.
Costs made easy.
Sd/-
JUDGE
Sd/-
JUDGE
cbc
