Judgment:
ORDER
1. Sri Nagarajulu Naidu, learned Additional Government Advocate is directed to take notice for respondents 1 and 2. Sri Srinivasa Rao, learned Counsel is directed to take notice for respondent 3.
2. Petitioner claims that he is working as Junior Engineer in Karnataka Power Transmission Corporation Limited, third respondent herein. On 5-11-1997 one Gopal Pandurang Pawar gave a complaint to the Police Inspector attached to Lokayukta, Bijapur, that petitioner had made a demand for illegal gratification. On the basis of the said complaint, a raid/trap was held and the petitioner was prosecuted in Special Case No. 20 of 1998 on the file of the Special Judge, Bijapur charging him with the offence of demanding and accepting illegal gratification of Rs. 250.00 for providing electrical supply to the newly constructed house of complainant's grandfather, punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Before the Special Judge, seven witnesses were examined. Of the seven witnesses, P.W. 5 was the Police Inspector who laid the trap, P.W. 6 was the Sanctioning Authority, P.W. 7 was another Police Inspector, P.W. 4 was the complainant and P.Ws. 1 to 3 were the Panch witnesses. During trial, complainant and two Panch witnesses (P.Ws. 4, 1 and 2) turned hostile. As a consequence, prosecution case collapsed and the Special Judge, by judgment dated 7-12-2001 acquitted the petitioner of the charges against him holding that there was no material to prove that the petitioner demanded and accepted illegal gratification from the complainant.
3. Thereafter, Karnataka Lokayukta has issued Articles of Charges dated 2-2-2002 charging him with the misconduct of demanding and accepting illegal gratification of Rs. 250.00 on 5-11-1997 from one Gopal P. Pawar to show an official favour of giving power connection to the newly constructed house of grandfather of the complainant. In the said Articles of Charges, witnesses cited are the said Gopal Pandurang Pawar, complainant, Panch witnesses who were P.Ws. 1 and 2 apart from the Police Inspector who was examined as P.W. 5 in the criminal case.
4. Petitioner filed objections dated 28-2-2002 contending that he has been honourably acquitted in the criminal case and therefore disciplinary proceedings cannot be initiated or proceeded against him. His request for dropping the disciplinary proceedings was not accepted and by notice dated 5-3-2002 petitioner was directed to appear before the Enquiry Officer.
5. Feeling aggrieved, petitioner has filed this petition for quashing of Articles of Charges dated 2-2-2002 and the consequential departmental enquiry initiated against him contending that on acquittal by the Criminal Court, no disciplinary proceedings can be initiated on the same charge. In that behalf the petitioner relied on the decision in L. Shankaregouda v. Karnataka Power Transmission Corporation Limited and Anr., 2001(4) Kar. L.J. 49 : ILR 2001 Kar. 229, wherein a learned Single Judge observed thus:
'I have no hesitation in holding that once the 'B' report is accepted and an order is passed by a competent jurisdictional Magistrate, the management has no power or jurisdiction to initiate any proceedings either by way of departmental proceedings or by way of criminal proceedings on the very facts. Any initiation after acceptance of the 'B' Report by a learned Magistrate in respect of the same charges is without jurisdiction'.
According to the petitioner, the position will be the same when the Criminal Court acquits the employee in regard to the same charges.
6. Another learned Judge of this Court, before whom this petition came up for preliminary hearing, being of the view that L. Shankaregouda's case, supra, was not correctly decided, referred the matter for consideration by a Division Bench, being of the following view:
'It is well-settled law that the criminal proceedings stand on a different footing. Further, the standard of proof that may be applied by the Criminal Court is different from the standard of proof that may be applied in the departmental proceedings. Further, in a criminal proceedings, the proceedings are always by the State and not by the Management. Therefore, in the absence of management being a party in the criminal proceedings any order passed by the Criminal Court is not binding on the management. The evidence given in one Court cannot be automatically treated as an evidence in other Court. Therefore, on the basis of any order passed by the Criminal Court, management cannot be compelled to continue its employee if the management has no confidence in such employee on certain charges. Therefore, I am not in agreement with the view expressed in the decision referred to above. Therefore, I feel it is a fit case to refer to the Division Bench for consideration'.
7. When the matter came up before us, the learned Counsel for the petitioner also relied on the following observations of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Limited and Anr., : (1999)ILLJ1094SC , in addition to the decision in L. Shankaregouda's case, supra, in support of his contention that disciplinary proceedings cannot be initiated, if the employee has been acquitted or exonerated by the Criminal Court in regard to the very same charges:
'There is yet another reason of 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'.
8. On the other hand, the learned Counsel for respondent contended that the decision of the Criminal Court has no bearing on disciplinary proceedings, either already initiated or intended to be initiated, as the nature of two proceedings are completely different and therefore an order of acquittal will not conclude or bar a departmental proceedings. He relied on the decisions of the Supreme Court in Nelson Motis v. Union of India and Anr., : (1992)IILLJ744SC and State of Rajasthan v. B.K. Meena and Ors., : (1997)ILLJ746SC , to contend that the objective of criminal proceedings and of disciplinary proceedings, and the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in the two proceedings, are altogether distinct and different; that in a disciplinary proceedings, the question is whether the employee is guilty of such conduct as would merit his removal from service or a lesser punishment, whereas in the criminal proceedings the question is whether the offences registered against him are established and if established, what sentence should be imposed upon him; that disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied, by getting rid of bad elements. They alternatively contended that an acquittal, to be relevant, should be a honourable acquittal by way of a complete exoneration of the employee/accused. It is submitted that when a Criminal Court accepts a 'B' Report and files/closes the proceedings, or when the Criminal Court acquits an accused by giving him the benefit of doubt or an account of witnesses turning hostile, it cannot be said that the accused is honourably acquitted; and that in case of such acquittals, nothing prevents the management from initiating or continuing the disciplinary proceedings on the very same charges.
9. On the rival contentions urged, the following questions arise for consideration:
(i) Whether the management is barred from initiating disciplinary proceedings in regard to any charge/s, if the employee has been acquitted by the Criminal Court in regard to the very same charges. If the answer is in the negative, then whether there are any exceptions?
(ii) Whether submissions of a 'B' Report by the Police and acceptance thereof by the Magistrate, bars the subsequent initiation of disciplinary proceedings?
10. Re: Point No. (i).--In J.K. Cotton Spinning and Weaving Company Limited v. Its Workmen, 1965-II-LLJ-153(SC), an employee of appellant charged with theft was convicted by the Criminal Court. The management initiated disciplinary proceedings against the employee in regard to the very same charge. The employee was found guilty and was dismissed from service by way of punishment. The employee challenged his conviction by the Criminal Court, and the conviction was set aside in appeal. The Industrial Tribunal, before whom the dismissal was challenged, held that the decision in the domestic enquiry was based on the conviction by the Criminal Court and that as the conviction was set aside, no value could be attached to the finding arrived in the domestic enquiry. The Supreme Court held that there was nothing in the report of the Enquiry Officer to show that he was influenced by the conviction by the Criminal Court and restored the order of dismissal of the employee, in spite of the fact that the employee has been acquitted in appeal against the decision of the Criminal Court. In other words, the Supreme Court proceeded on the principle that acquittal by the Criminal Court will in no way affect an order of punishment for misconduct in a disciplinary proceedings in regard to the same charge.
11. A Pull Bench of this Court in T.V. Gouda v. State of Mysore and Anr., ILR 1975 Kar. 895, brought out the distinction between criminal proceedings and disciplinary proceedings as follows:
(1) Domestic enquiry is not a criminal trial. Unlike in a criminal proceedings, the strict rules of evidence and the provisions of the Indian Evidence Act do not apply in a disciplinary proceedings.
(2) In criminal proceedings, the purpose sought to be achieved is protection of the public, while in disciplinary proceedings the purpose sought to be achieved is purity and efficiency of pubic service.
(3) While Criminal Court requires high standard of proof for convicting an accused, such a standard of proof is not required for finding a person guilty in disciplinary proceedings and it is enough if there is preponderance of probability of the delinquent's guilt.
The Full Bench held that initiation of disciplinary proceedings against a civil servant acquitted in a criminal trial on the same charge is not violative of any provision of law or principles of natural justice. The Full Bench held that even if an employee is honourably acquitted by the Criminal Court, it will still be possible for the employer to start disciplinary proceedings in appropriate cases. The Full Bench rejected the plea that to initiate disciplinary proceedings against an employee who had been acquitted in the criminal proceedings would be improper and amount to circumventing the order of acquittal made by a competent Court, on the following reasoning:
'.... Criminal proceedings and disciplinary proceedings undoubtedly operate in different fields. It is well-settled that the findings given by a Criminal Court is irrelevant in a civil proceeding. For instance, if an accused is acquitted of the offences of criminal misappropriation or breach of trust or cheating, a Civil Court can make a decree against him if there is evidence to fasten civil liability on him. It is not uncommon that even though a Criminal Court acquits an accused of a charge of rash and negligent driving, the Motor Accidents Claims Tribunal holds that his negligence is established and awards compensation for the death or injury resulting from his negligence. In such cases there is bound to be conflict between the decisions of the Civil Court and the Criminal Court. Can it be said that such a conflict would shake the confidence of the public in the judiciary? Or can it be said that in such circumstances initiation of civil proceedings in spite of acquittal by the Criminal Court would be improper or unfair or would amount to circumventing the acquittal made by a competent Criminal Court?'
12. The Supreme Court has expressed the same view, but has clarified that where an employee is honourably acquitted by complete exoneration by the Criminal Court, it would not be appropriate (though there is no legal bar) for the employer to initiate or continue the disciplinary proceedings in regard to the same charges.
12.1 In R.P. Kapur v. Union of India and Anr., : (1966)IILLJ164SC , the Supreme Court observed thus:
'If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted; even in case of acquittal, proceedings may follow where the acquittal is other than honourable'.
(emphasis supplied)
12.2 In Corporation of the City of Nagpur, Civil Lines, Nagpur and Anr. v. Ramchandra G. Modak and Ors., : (1981)IILLJ6SC , the Supreme Court held thus:
'The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally, where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered'.
(emphasis supplied)
13. In Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya, : (1997)IILLJ902SC , the Supreme Court reiterated the difference between criminal and disciplinary proceedings thus:
'.......The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. .... When trial for criminal offence is conducted it should be in accordance with proof of the offences as per the evidence defined under the provisions of the Indian Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the Delinquent Officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Indian Evidence Act stands excluded is a settled legal position. The enquiry in a departmental proceedings relates to conduct of the Delinquent Officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Indian Evidence Act. The evidence required in the departmental enquiry is not regulated by the Indian Evidence Act...'.
14. We may now refer to the decision in Paul Anthony's case, supra, relied on by the petitioner. In the case of Paul Anthony, supra, the Supreme Court did not lay down any principle contrary to the principles laid down in the cases of Ramchandra Modak and Mohd. Yousuf Miya, supra, which are decisions of larger Benches. In Paul Anthony's case, supra, the criminal case and departmental proceedings against the employee were based on the same facts/charges. In an ex parte departmental enquiry, the charges framed against the employee were held to be proved on the basis of the evidence of by Police Officers who had raided the house of the employee and had effected recovery and the Panch witnesses in regard to the search and recovery. They were the only witnesses examined in the domestic enquiry. The same witnesses were examined in the criminal case. The Criminal Court on consideration of the evidence, came to the conclusion that no search was conducted at all nor was any recovery made from the residence of the employee and threw out the whole case of the prosecution as fabricated. When the order of dismissal was challenged by the employee in a writ petition before this Court, a learned Single Judge of this Court allowed the petition on the ground that the management ought not to have proceeded with the disciplinary enquiry till the disposal of the criminal case. While directing reinstatement, the learned Single Judge gave liberty to the management to initiate fresh enquiry against the employee after examining the judgment in the criminal case. A Division Bench of this Court set aside the order of the learned Single Judge in a writ appeal (Bharat Gold Mines Limited, K.G.F. v. Capt. M. Paul Anthony, 2000(5) Kar. L.J. Sh. N. 13. The employee took up the matter to the Supreme Court. The Supreme Court held that it would be unjust, unfair and oppressive to allow the findings recorded in an export disciplinary proceedings to stand. The Supreme Court also held that the said disciplinary proceedings, held without paying subsistence allowance during the period of suspension, violated the fundamental rights of the employee. It therefore, restored the order of the learned Single Judge of this Court. The Supreme Court recognised and accepted that the management can initiate a fresh disciplinary enquiry after taking note of the judgment of the Criminal Court. But on the peculiar facts of that case, the Supreme Court conducted that it was not necessary to direct fresh departmental enquiry. The decision in Paul Anthony's case, supra, does not therefore affect the right of management to proceed with or initiate disciplinary proceedings, after the employee is acquitted in a criminal trial on the very same charges.
15. The position is made clear by the Supreme Court in State of Andhra Pradesh v. K. Allabaksh, : (2000)10SCC177 . In that case, a Government servant, who was convicted under Section 302 of the IPC, was, on appeal, acquitted by the High Court for want of evidence, as all the material witnesses had turned hostile. In a criminal appeal by the State, the Supreme Court was of the view that the High Court was justified in holding that the prosecution had failed to bring home the charges. The Supreme Court however made it clear that the acquittal of the respondent in the criminal case shall not be construed as a clear exoneration of the respondent, by the following observations:
'However, we make it clear that the acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him'.
The Supreme Court thus clearly recognised that the acquittal in a criminal case on the witnesses turning hostile, would not come in the way of disciplinary proceedings being initiated or continued in respect of the same charges.
16. We may also refer to a decision of the Allahabad High Court in Brij Bhushan Dwivedi v. Chief Executive Officer, Khadi and Village Industries Commission, 1985 UPSC 365 (All.) wherein it is held thus:
'The decision rendered in the criminal case is not binding on the Enquiry Officer, who conducts disciplinary proceedings. .... Normally on an honourable acquittal of the employee by the Criminal Court, the departmental proceedings, in deference to the findings recorded by the Court, are not initiated but if the acquittal is based on a technical ground or the employee concerned is given benefit of doubt, the departmental proceedings on the same charges can still be initiated and if already pending can be concluded uninfluenced by the order of discharge or acquittal recorded in the criminal case on the said grounds'.
17. Therefore, the principle that emerges is that an acquittal in a criminal proceedings does not take away the right of the employer to initiate or continue departmental proceedings against the employee, in regard to the same charges. But, where the employee is honourably acquitted by being completely exonerated, then normally it would not be expedient or appropriate to initiate or continue the departmental enquiry, on the very same charges.
18. Where the Criminal Court acquits an accused on a technical ground [for example on the ground of failure to obtain requisite sanction for prosecution or on the ground of limitation] or where the accused is acquitted for want of sufficient evidence or non-examination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that the prosecution had failed to establish its case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honourable acquittal. In such cases, the management is at liberty to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal. The reasons are evident.
18.1 Firstly, employer is not a party to the criminal prosecution. The proceedings in the Criminal Court are initiated by the State and the employer has no role to play in such proceedings, unless he is called as a witness by the State/prosecution.
18.2 Secondly, high standard of proof is required in a criminal trial, which involves proving the case beyond reasonable doubt by applying the provisions of the Indian Evidence Act strictly. The underlying principle of criminal jurisprudence are: 'It in better that ten guilty persons are acquitted, rather than one innocent person is convicted', 'It is for the State to establish the guilt of the accused beyond reasonable doubt and an accused is innocent till the contrary is clearly established by the prosecution and where there is a reasonable doubt as to the guilt of the accused, the benefit of doubt goes to the accused'. The provisions of Criminal Procedure Code and the Indian Evidence Act are so structured to ensure not only the punishment of guilty, but also to protect innocents from false or wrong prosecutions. On the other hand, as noticed above, the technical and strict rules of evidence and principles underlying criminal justice are inapplicable to departmental proceedings, the object of which is to ensure discipline in the workplace and to effectuate efficiency in administration and in performance/production.
18.3 Thirdly, neither the plea of double jeopardy based on Article 20(3) of the Constitution and Section 300 of the Cr. P.C., nor the bar based on the principle of res judicata/estoppel, has any application to the initiation of departmental proceedings on the same charges.
19. We, therefore, answer the first point in the negative. But there is an exception. If the employee is honourably acquitted resulting in complete exoneration of the employee in regard to the charge/s, then in deference to the decision of the Court, the employer should not initiate an enquiry by way of disciplinary proceedings on the same charges and if any such enquiry is pending, drop such enquiry.
20. Re: Point No. (ii).--We have already held that where an employee is acquitted by a Criminal Court, otherwise than by way of honourable acquittal, disciplinary proceedings can be continued or initiated in regard to the very same charges. What then is the position when a 'B' Report is submitted? The person against whom a complaint is lodged is neither charged nor exonerated, when a 'B' Report is filed, 'B' Report is nothing but an expression of the opinion by the officer in charge of the investigation that there is no case to place the accused under trial. A complaint/FIR followed by an investigation, results in formation of an opinion by the Investigating Officer which is recorded in the final report under Section 173 of the Cr. P.C. If the Investigating Officer is of the opinion that there is a case to place the accused on trial, it results in filing of charge-sheet. If the Investigating Officer is of the opinion that there is no case to place the accused on trial, it results in submission of a 'B' Report. Submission of 'B' Report, when accepted by the Criminal Court, ends in closure/filing of the proceedings. Therefore, filing of 'B' Report is only an expression of the opinion of the Investigating Officer that there is no material to place the accused under criminal trial; and when a Criminal Court accepts the 'B' Report and orders filing of the proceedings, it neither enquires into any charge, nor records a finding that the accused is not guilty. In fact, when there is no charge, the question of exoneration from such charge does not arise. Therefore, submission and acceptance of 'B' Report under no circumstance can be treated as a bar to subsequent disciplinary proceedings.
21. We, therefore, hold that the decision of a learned Single Judge in L. Shankaregouda's case, supra, does not state the legal position correctly. We are fortified in this view by the Division Bench of this Court in Mysore Paper Mills Limited, Bhadravathi v. G. Shekar alias Gyana Shekharan, 2002(2) Kar. L.J. 469 : ILR 2002 Kar. 1069. We accordingly, answer point (ii) in the negative.
22. Conclusion.--We find that the acquittal in this case is not an honourable acquittal, exonerating the accused/employee. We find that the acquittal is on account of material witnesses turning hostile. Therefore, such an acquittal will not come in the way of initiation of departmental proceedings in regard to the very same charges. The matter is in fact directly covered by the decision of the Supreme Court in Allabaksh's case, supra. In view of the above, petitioner cannot challenge the initiation of any enquiry against him.
23. In view of the above, there is no merit in this petition and accordingly, it is rejected. Sri H. Nagarajulu Naidu, learned Additional Government Advocate is permitted to file memo of appearance for respondents 1 and 2 in six weeks. Sri Srinivasa Rao, learned Counsel is permitted to file vakalath for respondent 3 in six weeks.