Nanjunda S/O. Puttaiah, Attender, Vs. Sri. Chamarajendra Zoolological Garden by Its Executive Director and the Enquiry Officer, Sri. Chamarajendra Zoological Gardens - Court Judgment

Excerpt:
(a) service - disciplinary proceedings -simultaneous criminal proceedings--whether departmental proceedings can be stayed pending disposal of the criminal case--held, the object of holding a departmental enquiry is to find out whether the delinquent is guilty of any misconduct or delinquency. the purpose of the disciplinary proceedings is purity and efficiency of the public service. the dominant purpose of a criminal proceeding is to achieve the protection of the public. therefore, the fields of operation of the two proceedings are quite different and independent. the criminal court requires high standard of proof for convicting an accused. in disciplinary proceedings, strict rules of evidence and high standard of proof are not required for finding a person guilty. it is enough if there is preponderance of probability of delinquent's guilt. there is no constitutional, statutory or legal bar to conduct a departmental enquiry pending disposal of a criminal case. it is only when the accused is acquitted honourably and completely exonerated with the charges, it would not be expedient lo continue a departmental enquiry on the very same charges or grounds on evidence. therefore, the departmental proceedings cannot be stayed pending disposal of the criminal case.(b) karnataka civil services (classification, control and appeals), 1993 - service--domestic enquiry--the right of representation by a lawyer -consideration of--request of a delinquent/employee seeking assistance of an advocate to cross-examine the management witnesses--rejection of--held, examination of witnesses by adverse party is called the cross examination. it is the most effective of all the means of extracting the truth and exposing falsehood. it is not an empty formality, but the valuable right to substantiate the defence. it is true that if the allegations are simple, the disciplinary authority need not permit the petitioners to appoint a lawyer to defend their case, which is not so in the present case. it is their specific case that they are illiterate persons and that they are not in a position to cross-examine the expert witnesses of the management. the charges are so serious as to the entail dismissal from service. in the circumstances, denial of assistance of a lawyer may amount to denial of a real and reasonable opportunity of defence.--hence, petitioners are permitted lo engage the services of an advocate to represent them in the disciplinary enquiry.writ petition no. 10644/2006 is dismissed.writ petition no. 10577/2006 is allowed. - karnataka civil services (classification, control & appeals) rules, 1993 domestic enquiry: [s. abdul nazeer, j] request of a delinquent / employee seeking assistance of an advocate to cross-examine the management witnesses rejection of - held, examination ow witness by adverse party is called the cross examination. it is the most effective of all means of extracting the truth and exposing falsehood. it is not an empty formality, but the valuable right to substantiate the defence. it is true that if the allegations are simple, the disciplinary authority need not permit the petitioners to appoint a lawyer to defend their case, which is not so in the present case. it is their specific case that they are illiterate persons and that they are not in a position to cross-examine the expert witnesses of the management. the charges are as serious as to entail dismissal from service. in the circumstances, denial of assistance of a lawyer amount to denial of a real and reasonable opportunity of defence. hence, petitioners are permitted to engage the services of an advocate to represent them in the disciplinary enquiry labour & services disciplinary proceedings: [s. abdul nazeer, j] simultaneous criminal proceedings whether departmental proceedings can be stayed pending disposal of the criminal case ? held, the object of holding a departmental enquiry is to find out whether the delinquent is guilty of any misconduct or delinquency. the purpose of the disciplinary proceedings is purity and efficiency of the public service. the dominant purpose of a criminal proceeding is to achieve the protection of the public. therefore, the fields of operation of the two proceedings are quite different and independent. the criminal court requires high standard of proof for convicting an accused. in disciplinary proceedings, strict rules of evidence and high standard of proof are not required for finding a person guilty. it is enough if there is no constitutional, statutory or legal bar to conduct a departmental enquiry pending disposal of a criminal case. it is only when the accused is acquitted honourably and completely exonerated with the charges, it would not be expedient to continue a departmental enquiry on the very same charges or grounds on evidence. therefore, the departmental proceedings cannot be stayed pending disposal of the criminal case. - being not satisfied with the reply, the disciplinary authority constituted a one man enquiry committee headed by a retired judicial officer, who is a practicing advocate at bangalore. being not satisfied with the reply, the respondents appointed a one-man enquiry committee headed by a retired judicial officer, who is a practicing advocate at bangalore. madak air 1984 sc 626. 10. it is well settled that the ratio of any decision must be understood in the background of the facts of that case. this court while distinguishing the decision in paul anthony's case (supra) has held that where the criminal court acquits an accused on a technical ground 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 on the ground that the prosecution had failed to establish the case beyond reasonable doubt, such an acquittal is not an exoneration of the accused by an honourable acquittal in such cases, the management is at libeity to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal for the following reasons: 'it is better than 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 in innocent till the contrary is clearly established by the prosecution and where there is a reasonable about as to the guilt of the accused, the benefit of doubt goes to the accused. in our opinion, even that case would not support the respondents herein because in the said case, the evidence fed in the criminal case as well as in the domestic enquiry was one and the same and the criminal having acquitted workmen on the very same evidence, this court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. collector of customs air 1972 sc 2178, it has been held that since a government servant by and large has no legal training and there is a threat to his livelihood, and he is not likely to be in a position to present his case as best as should be, then in appropriate cases, there should be permitted legal representation. in the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailng a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the employee being pitted against a presenting officer who is trained in law.orders. abdul nazeer, j.1. the petitioners-1 to 3 in w.p. no. 10644/2006 and the petitioners in w.p. no. 10577/2006 are common. though the reliefs sought in the writ petitions an; different, the basic facts leading to filing of the writ petitions are also common. therefore, both the writ petitions are clubbed together, heard and disposed of by this common order.2. the petitioners have been working as attenders at sri chamarajendra zoological garden, mysore, the 1st respondent at w.p. no. 10644/2006. an order dated 21.11.2005 wan passed by the disciplinary authority keeping them under suspension on the ground that they are responsible for the death of certain zoo animals. subsequently, show cause notices were issued proposing to hold the disciplinary enquiry against them. criminal prosecution was launched against them on the basis of the same set of facts. the petitioners denied the charge by filing their reply. being not satisfied with the reply, the disciplinary authority constituted a one man enquiry committee headed by a retired judicial officer, who is a practicing advocate at bangalore. the enquiry officer issued notices to the petitioners as per annexures-m (dated 06.01.2006), n, n1 and n2 (all dated 26.06.2006) directing them to appear before him in person on 02.07.2006. the petitioners filed an application before the disciplinary authority dated 15.07.2006 seeking his permission to appoint an advocate to appear for their defence. in the said application, it is contended that they are illiterate persons and not exposed to the outer world. they do not know anything about law and procedure of disciplinary enquiry. therefore, they want the assistance of an advocate to defend their case. the said application was rejected by the disciplinary authority vide older dated 20.07.2006. therefore, petitioners have filed w.p. no. 10644/2006 for quashing the notices issued by the enquiry officer dated 26.6.2006 and in w.p. no. 10577/2006, they have questioned the validity of the order of die disciplinary authority dated 20.07.2006.3. i have heard learned counsel for the parties.4. in w.p. no. 10644/2006, learned counsel for the petitioners would contend that die disciplinary authority has issued show cause notices proposing to hold the disciplinary enquiry and has simultaneously launched criminal prosecution on the basis of the same set of facts, since the departmental proceedings and the criminal proceedings air based on similar set of facts, it is necessary to stay the departmental proceedings till the conclusion of the criminal case. in this connection, he has relied on the decision of the apex court in captain m. paul anthony v. bharat gold mines ltd. and anr. : air 1999 sc 1416. in w.r no. 10577/2006, learned counsel for the petitioners would contend that the petitioners are illiterate persons, and not exposed to outer world and they do not know anything about the law and procedures of disciplinary enquiry. the management in order to prove the charges has cited 14 witnesses. six of them are veterinary scientists from the institute of animal health and veterinary hospital, mysore. one is a scientific officer (department of toxicology of fisl, bangalore). it is impossible for an ordinary defence assistant to defend the case by cross examining these expert witnesses. there is no bar in karnataka zoo authority service rules, 1993 (for short 'rules') for appointment of a legal practitioner. therefore, the disciplinary authority was not right in rejecting the application of the petitioners on the ground that there is no provision for appointment of a legal practitioner in the rules.5. on the other hand, learned counsel for the respondents submits that there is no bar for conducting a disciplinary enquiry even if criminal prosecution is launched on the same set of facts. secondly, it is contended that presenting officer is not a legal practitioner. therefore, the petitioners cannot claim, as a matter of right, the appointment of a legal practitioner to present their case before the disciplinary authority.6. in the light of the arguments of the learned counsel for the parties, the questions for consideration in these writ petitions are:1. whether the departmental proceedings proposed against the petitioners requires to be stayed till the conclusion of the criminal prosecution launched against them?2. whether the disciplinary authority is justified in rejecting the application of the petitioners for appointment of a legal practitioner to represent them in the disciplinary proceedings?re. point no. 1:7. it is clear from the materials on record that the petitioners were placed under suspension vide order dated 21.11.2005 pending enquiry. subsequently, show cause notices dated 13.05.2006 were issued to them proposing to hold disciplinary enquiry. criminal prosecution was also launched against them on the basis of the same set of facts. the petitioners have filed their reply dated 8th april and 5th may 2006 denying the charges. being not satisfied with the reply, the respondents appointed a one-man enquiry committee headed by a retired judicial officer, who is a practicing advocate at bangalore. the enquiry officer has issued notices to the petitioners as per annexures-m, n, n1 and n2 informing them of his appointment as an enquiry officer. he has further informed that the enquiry is fixed at his chambers on the dates mentioned in the notices. the petitioners have challenged the said notices on the ground that since the departmental enquiry and criminal proceedings launched against them are on the same set of facts, the departmental proceedings have to be stayed till the conclusion of the criminal case.8. the object of holding a departmental enquiry is to find out whether the delinquent is guilty of any misconduct or delinquency. the purpose of the disciplinary proceedings is purity and efficiency of the public service. the dominant purpose of a criminal proceeding is to achieve the protection of the public. therefore, the fields of operation of the two proceedings arc quite different and independent the criminal court requires high standard of proof for convicting an accused. in disciplinary proceedings, strict rules of evidence and high standard of proof are not required for finding a person guilty. it is enough if there is preponderance of probability of delinquent's guilt. there is no constitutional, statutory or legal bar to conduct a departmental enquiry pending disposal of a criminal case. it is only when the accused is acquitted honourably and completely exonerated with the charges, it would not be expedient to continue a departmental enquiry on the very same charges or grounds on evidence.9. in r.p. kapur v. union of india : air 1964 sc 787, the apex court has held that if the trial of a 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 acquittal is the other than honourable. similar view has been expressed by the supreme court in corporation of city of nagpur v. ramachandra g. madak : air 1984 sc 626.10. it is well settled that the ratio of any decision must be understood in the background of the facts of that case. it has been said long time ago that a case in an authority for what it actually decides and not what logically follows from it see ambika quarry works v. state of gujarath and ors. : air 1987 sc 1073. with this back ground, let me examine whether paul anthony's case (supra) has application to the facts of this case. in paul anthony's case, a fir was lodged against an employee on the basis of a raid conducted by the police at his house. disciplinary proceedings were initiated against him on same set of facts. the employee sought for postponement of the disciplinary enquiry pending disposal of the criminal case which was rejected by the disciplinary authority and proceeded to pass an exparte order dismissing him from service. 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 that the prosecution is fabricated. the employee challenged the order of dismissal before this court. a learned single judge allowed the petition on the ground that the management ought not have proceeded with the disciplinary authority till the disposal of the criminal case. the order of dismissal was passed with liberty to the management to initiate fresh proceedings against the employee after perusing the judgment passed in the criminal case. the division bench of this court set aside the order of the learned single in the writ appeal. the employee challenged the said order before the hon'ble supreme court. in the course of the order, the hon'ble supreme court has observed as under:i) departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.ii) if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave ature which involves complicated questions of law and fact, it would be desirable to say the departmental proceedings till the conclusion of the criminal case.iii) whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.iv) the factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.v) if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed an proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.the hon'ble supreme court allowed the appeal on the ground that the order of the disciplinary authority is an exparte order and that the proceedings were held without payment of subsistence allowance during the period of subsistence. having regard to the facts and circumstances of the case, the supreme court held that it was not necessary to direct a fresh departmental enquiry. the said decision has not declared that the management cannot initiate or proceed with the departmental enquiry after the employee is acquitted of the criminal case on the basis of the same set of facts.11. in chitradurga gramin bank and anr. v. p. shivakumar 2000 ii llj 198, a division bench of this court after considering the paul anthony's case (supra), has held that there should be a factual finding with regard to identical and similar set of facts in departmental and criminal proceedings before grant of stay of departmental proceedings. in mehiboobsab v. upalokatuktha and ors. ilr 2002 kar 2535, a division bench of this court was considering the case where departmental proceedings were initiated after the acceptance of 'b' report by a leaned magistrate in respect of the same charges. this court while distinguishing the decision in paul anthony's case (supra) has held that where the criminal court acquits an accused on a technical ground 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 on the ground that the prosecution had failed to establish the case beyond reasonable doubt, such an acquittal is not an exoneration of the accused by an honourable acquittal in such cases, the management is at libeity to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal for the following reasons: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 laying such proceedings, unless he is called as a witness by the state/prosecution.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 evidence act strictly. the underlying the principles of criminal jurisprudence are: 'it is better than 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 in innocent till the contrary is clearly established by the prosecution and where there is a reasonable about as to the guilt of the accused, the benefit of doubt goes to the accused.' the provisions of criminal procedure code and the 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 underlining criminal justice are inapplicable to departmental proceedings, the object of which is to ensure discipline in the work place and to effectuate efficiency in administration and in performance/production.3. thirdly, neither the plea of double jeopardy based on article 20 of the constitution and section 300 of cr.p.c., nor the bar based on the principle of resjudicata/estoppel, has any application to the initiation of departmental proceedings on the same charges.the court has farther observed that it is only when the employee is honourably acquitted resulting in a complete exoneration of the employee in regard to the charges, then in deference of 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.12. in krishnakali tea estate v. akhil bharatiya chah mazdoor sangh and anr. : 2004(8) scc 200, the apex court after considering the decision in paul anthony's case (supra), has held that the approach and the objectives of criminal proceedings and disciplinary proceedings are altogether distinct and different. it has been held as under:learned counsel for the respondents in regard to the above contention relied on a judgment of this court in the case of cpt. m. paul anthony. in our opinion, even that case would not support the respondents herein because in the said case, the evidence fed in the criminal case as well as in the domestic enquiry was one and the same and the criminal having acquitted workmen on the very same evidence, this court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. it is to be noted that in that case, the finding by the tribunal was arrived at in an ex parte departmental proceedings. in the case in hand, we have noticed that before the labour court the evidence led bv the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the labour court were entirely different. therefore, it was open to the labour court to have come to an independent conclusion dehors the finding of the criminal court(emphasis supplied by me)13. coming to the facts of the present case, the disciplinary proceedings were initiated on 21.11.2005. simultaneously, criminal proceedings had also been launched against the petitioners on the same set of facts. admittedly, no decision is rendered by the criminal court so far. for some reason or the other, the departmental proceedings are also pending for the last over four years. if the petitioners are acquitted honourably and exonerated completely in the criminal case, then only the departmental enquiry on the same set of charges need not be continued. it also depends upon the materials which may be placed by the management and prosecution before the disciplinary authority and criminal court as the case may be. even according in paul anthony's case (supra), if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings even if they are stayed on the ground of the pendency of the criminal case can be resumed and proceeded with so as to conclude at an earlier date. if the petitioners get an honourable acquittal before the criminal court, they can place the said judgment either before the disciplinary authority or the appellate authority as the case may be and seek for dropping of the disciplinary proceedings. having regard to the facts and circumstances of the case, i am of the view that the departmental proceedings cannot be stayed pending disposal of the criminal case. point no. 1 is answered accordingly.re. point no. 2:14. in a domestic enquiry, the right of representation by a lawyer may not in all cases be held to be a part of natural justice. no general principle valid in all cases can be enunciated. the decision whether representation by a lawyer should be permitted or not, has to be exercised on relevant consideration. in the present case, the matter is guided by the provisions of rule 11(8) of the zoo authority of karnataka civil services (classification, control and appeals), 1993, which is as under:the subordinate may take the assistance of any other subordinate or a retired subordinate of the zoo authority of karnataka to present the case on ins behalf. but may not engage a legal practitioner tor the purpose unless the presenting officer appointed by the disciplinary authority, is a legal practitioner, or, the disciplinary authority having regard to the circumstances of the case, so permits.the aforesaid rules do not bar the appointment of an advocate to represent the delinquent in the departmental enquiry proceedings. the disciplinary authority may permit the delinquent to appoint a legal practitioner in appropriate cases.15. in c.l. subramanyam v. collector of customs : air 1972 sc 2178, it has been held that since a government servant by and large has no legal training and there is a threat to his livelihood, and he is not likely to be in a position to present his case as best as should be, then in appropriate cases, there should be permitted legal representation.in the board of trustees of the port of bombay v. dilipkumar raghavendranath nadkarni and ors. : air 1983 sc 109, it has been held thus:one has to consider the nature of enquiry, who held it, where it is held and what is the atmosphere? domestic enquiry is claimed to be a managerial function. a man of the establishment does the robe of judge. it is held in the establishment office or a part of it. can it even be compared to the adjudication by an impartial arbitrator or a court presided over by a unbiased judge? the enquiry officer combines the judge and prosecutor rolled into one. witnesses are generally employees of the employer who directs an enquiry into misconduct. this is sufficient to raise serious apprehensions. add to these uneven scales, the weight of legally trained minds of behalf of employer simultaneously denying that opportunity to delinquent employee. the weighted scales and titled balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. justice must not only be done but must seem to be done is not an euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.in cresent dyes and chemicals ltd. v. ram naresh tripathi : (1993) 2 scc 115, the apex court has held that the right to be represented by a counsel or agent of his own choice is not the absolute right but can be controlled, restricted or regulated by law, rules or regulations. however, if the charge is of a serious or complex nature, the delinquent's request to be represented through a counsel or agent could be conceded.the apex court in j.k. agarwal v. harynana seeds development corporation : air 1991 sc 1221 has held as under:rule 7(5) itself recognises that where the charges are so serious as to entail a dismissal from service, the inquiry authority may permit the services of a lawyer to the delinquent employee. this rule vests a discretion. in the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailng a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the employee being pitted against a presenting officer who is trained in law. legal adviser and lawyer are for this purpose somewhat liberally construed and must include 'whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser'. in the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case.in harinarayana srivastav v. uco bank : air 1997 sc 3658, air 1997 sc 3638. the apex court has held that where the allegations are simple and not complicated, refusal of assistance by an advocate will not amount to violation of rules of natural justice.16. the petitioners have filed an application as per annexure-e stating that the management in order to prove the charges has cited 14 witnesses. six of them are veterinary scientists from the institute of animal health and veterinary hospital mysore. one is a scientific officer (department of toxicology of fisl, bangalore). it is further contended that they are all illiterate persons and not exposed to outer world. they do not know anything about law and procedure of disciplinary enquiry. the witnesses cited by the management are expert witnesses and it is impossible for an ordinary defence assistant to defend their case by cross examining those expert witnesses. therefore, they want the assistance of an advocate. the application has been rejected on the ground that there is no statutory provision for appointing a lawyer by a delinquent which is factually incorrect the stand now taken by the management is that since the disciplinary authority has not appointed the legal practitioner as the presenting officer, the petitioners are also not entitled for the appointment of the legal practitioner.17. examination of witnesses by adverse party is called the cross examination. it is the most effective of all the means of extracting the truth and exposing falsehood. it is not an empty formality, but the valuable right to substantiate the defence. it is true that if the allegations are simple, the disciplinary authority need not permit the petitioners to appoint a lawyer to defend their case, which is not so in the present case. it is their specific case that they are illiterate persons and that they are not in a position to cross-examine the expert witnesses of the management. the charges are so serious as to the entail dismissal from service. in the circumstances, denial of a lawyer may amount to denial of a real and reasonable opportunity of defence. having regard to the facts and circumstances of the case, i am of the view that the disciplinary authority ought to have permitted the petitioners to engage a lawyer to represent them in the case. point no. 2 is answered accordingly.18. in the result, i pass the following order:1) w.p. no. 10644/2006 challenging the notices issued by the enquiry officer at annexures-m, n, n1 and n2 is hereby dismissed.ii) w.p. no. 10577/2006 is allowed. the order at annexure-f dated 20.07.2006 rejecting the application of the petitioners to permit them to appoint a legal practitioner to defend their case is hereby quashed. petitioners are permitted to engage the services of an advocate to represent them in the disciplinary enquiry. no cost.

Judgment:
ORDER

S. Abdul Nazeer, J.

1. The petitioners-1 to 3 in W.P. No. 10644/2006 and the petitioners in W.P. No. 10577/2006 are common. Though the reliefs sought in the writ petitions an; different, the basic facts leading to filing of the writ petitions are also common. Therefore, both the writ petitions are clubbed together, heard and disposed of by this common order.

2. The petitioners have been working as attenders at Sri Chamarajendra Zoological Garden, Mysore, the 1st respondent at W.P. No. 10644/2006. An order dated 21.11.2005 wan passed by the disciplinary authority keeping them under suspension on the ground that they are responsible for the death of certain zoo animals. Subsequently, show cause notices were issued proposing to hold the disciplinary enquiry against them. Criminal prosecution was launched against them on the basis of the same set of facts. The petitioners denied the charge by filing their reply. Being not satisfied with the reply, the disciplinary authority constituted a One Man Enquiry Committee headed by a retired judicial officer, who is a practicing Advocate at Bangalore. The enquiry officer issued notices to the petitioners as per Annexures-M (dated 06.01.2006), N, N1 and N2 (all dated 26.06.2006) directing them to appear before him in person on 02.07.2006. The petitioners filed an application before the disciplinary authority dated 15.07.2006 seeking his permission to appoint an advocate to appear for their defence. In the said application, it is contended that they are illiterate persons and not exposed to the outer world. They do not know anything about law and procedure of disciplinary enquiry. Therefore, they want the assistance of an advocate to defend their case. The said application was rejected by the disciplinary authority vide Older dated 20.07.2006. Therefore, petitioners have filed W.P. No. 10644/2006 for quashing the notices issued by the enquiry officer dated 26.6.2006 and in W.P. No. 10577/2006, they have questioned the validity of the order of die disciplinary authority dated 20.07.2006.

3. I have heard learned Counsel for the parties.

4. In W.P. No. 10644/2006, learned Counsel for the petitioners would contend that die disciplinary authority has issued show cause notices proposing to hold the disciplinary enquiry and has simultaneously launched criminal prosecution on the basis of the same set of facts, Since the departmental proceedings and the criminal proceedings air based on similar set of facts, it is necessary to stay the departmental proceedings till the conclusion of the criminal case. In this connection, he has relied on the decision of the Apex Court in Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. : AIR 1999 SC 1416. In W.R No. 10577/2006, learned Counsel for the petitioners would contend that the petitioners are illiterate persons, and not exposed to outer world and they do not know anything about the law and procedures of disciplinary enquiry. The Management in order to prove the charges has cited 14 witnesses. Six of them are veterinary scientists from the institute of Animal Health and Veterinary Hospital, Mysore. One is a Scientific Officer (Department of Toxicology of FISL, Bangalore). It is impossible for an ordinary defence assistant to defend the case by cross examining these expert witnesses. There is no bar in Karnataka Zoo Authority Service Rules, 1993 (for short 'Rules') for appointment of a legal practitioner. Therefore, the disciplinary authority was not right in rejecting the application of the petitioners on the ground that there is no provision for appointment of a legal practitioner in the Rules.

5. On the other hand, learned Counsel for the respondents submits that there is no bar for conducting a disciplinary enquiry even if criminal prosecution is launched on the same set of facts. Secondly, it is contended that presenting officer is not a legal practitioner. Therefore, the petitioners cannot claim, as a matter of right, the appointment of a legal practitioner to present their case before the disciplinary authority.

6. In the light of the arguments of the learned Counsel for the parties, the questions for consideration in these writ petitions are:

1. Whether the departmental proceedings proposed against the petitioners requires to be stayed till the conclusion of the criminal prosecution launched against them?

2. Whether the disciplinary authority is justified in rejecting the application of the petitioners for appointment of a legal practitioner to represent them in the disciplinary proceedings?

Re. Point No. 1:

7. It is clear from the materials on record that the petitioners were placed under suspension vide order dated 21.11.2005 pending enquiry. Subsequently, show cause notices dated 13.05.2006 were issued to them proposing to hold disciplinary enquiry. Criminal prosecution was also launched against them on the basis of the same set of facts. The petitioners have filed their reply dated 8th April and 5th May 2006 denying the charges. Being not satisfied with the reply, the respondents appointed a One-Man Enquiry Committee headed by a retired judicial officer, who is a practicing advocate at Bangalore. The enquiry officer has issued notices to the petitioners as per Annexures-M, N, N1 and N2 informing them of his appointment as an enquiry officer. He has further informed that the enquiry is fixed at his chambers on the dates mentioned in the notices. The petitioners have challenged the said notices on the ground that since the departmental enquiry and criminal proceedings launched against them are on the same set of facts, the departmental proceedings have to be stayed till the conclusion of the criminal case.

8. The object of holding a departmental enquiry is to find out whether the delinquent is guilty of any misconduct or delinquency. The purpose of the disciplinary proceedings is purity and efficiency of the public service. The dominant purpose of a criminal proceeding is to achieve the protection of the public. Therefore, the fields of operation of the two proceedings arc quite different and independent The Criminal Court requires high standard of proof for convicting an accused. In disciplinary proceedings, strict rules of evidence and high standard of proof are not required for finding a person guilty. It is enough if there is preponderance of probability of delinquent's guilt. There is no constitutional, statutory or legal bar to conduct a departmental enquiry pending disposal of a criminal case. It is only when the accused is acquitted honourably and completely exonerated with the charges, it would not be expedient to continue a departmental enquiry on the very same charges or grounds on evidence.

9. In R.P. Kapur v. Union of India : AIR 1964 SC 787, the Apex Court has held that if the trial of a 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 acquittal is the other than honourable. Similar view has been expressed by the Supreme Court in Corporation of City of Nagpur v. Ramachandra G. Madak : AIR 1984 SC 626.

10. It is well settled that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case in an authority for what it actually decides and not what logically follows from it See Ambika Quarry Works v. State of Gujarath and Ors. : AIR 1987 SC 1073. With this back ground, let me examine whether Paul Anthony's case (supra) has application to the facts of this case. In Paul Anthony's case, a FIR was lodged against an employee on the basis of a raid conducted by the police at his house. Disciplinary proceedings were initiated against him on same set of facts. The employee sought for postponement of the disciplinary enquiry pending disposal of the criminal case which was rejected by the disciplinary authority and proceeded to pass an exparte order dismissing him from service. 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 that the prosecution is fabricated. The employee challenged the order of dismissal before this Court. A learned Single judge allowed the petition on the ground that the management ought not have proceeded with the disciplinary authority till the disposal of the criminal case. The order of dismissal was passed with liberty to the management to initiate fresh proceedings against the employee after perusing the judgment passed in the criminal case. The division bench of this Court set aside the order of the learned Single in the writ appeal. The employee challenged the said order before the Hon'ble Supreme Court. In the course of the order, the Hon'ble Supreme Court has observed as under:

i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave ature which involves complicated questions of law and fact, it would be desirable to say the departmental proceedings till the conclusion of the criminal case.

iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.

iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed an proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

The Hon'ble Supreme Court allowed the appeal on the ground that the order of the disciplinary authority is an exparte order and that the proceedings were held without payment of subsistence allowance during the period of subsistence. Having regard to the facts and circumstances of the case, the Supreme Court held that it was not necessary to direct a fresh departmental enquiry. The said decision has not declared that the management cannot initiate or proceed with the departmental enquiry after the employee is acquitted of the criminal case on the basis of the same set of facts.

11. In Chitradurga Gramin Bank and Anr. v. P. Shivakumar 2000 II LLJ 198, a Division Bench of this Court after considering the Paul Anthony's case (supra), has held that there should be a factual finding with regard to identical and similar set of facts in departmental and criminal proceedings before grant of stay of departmental proceedings. In Mehiboobsab v. Upalokatuktha and Ors. ILR 2002 Kar 2535, a Division Bench of this Court was considering the case where departmental proceedings were initiated after the acceptance of 'B' report by a leaned Magistrate in respect of the same charges. This Court while distinguishing the decision in Paul Anthony's case (supra) has held that where the criminal Court acquits an accused on a technical ground 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 on the ground that the prosecution had failed to establish the case beyond reasonable doubt, such an acquittal is not an exoneration of the accused by an honourable acquittal In such cases, the management is at libeity to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal for the following reasons:

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 laying such proceedings, unless he is called as a witness by the State/prosecution.

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 Evidence Act strictly. The underlying the principles of criminal jurisprudence are: 'It is better than 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 in innocent till the contrary is clearly established by the prosecution and where there is a reasonable about as to the guilt of the accused, the benefit of doubt goes to the accused.' The provisions of Criminal Procedure Code and the 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 underlining criminal justice are inapplicable to departmental proceedings, the object of which is to ensure discipline in the work place and to effectuate efficiency in administration and in performance/production.

3. Thirdly, neither the plea of double jeopardy based on Article 20 of the Constitution and Section 300 of Cr.P.C., nor the bar based on the principle of Resjudicata/estoppel, has any application to the initiation of departmental proceedings on the same charges.

The Court has farther observed that it is only when the employee is honourably acquitted resulting in a complete exoneration of the employee in regard to the charges, then in deference of 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.

12. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. : 2004(8) SCC 200, the Apex Court after considering the decision in Paul Anthony's case (supra), has held that the approach and the objectives of criminal proceedings and disciplinary proceedings are altogether distinct and different. It has been held as under:

Learned Counsel for the respondents in regard to the above contention relied on a judgment of this Court in the case of Cpt. M. Paul Anthony. In our opinion, even that case would not support the respondents herein because in the said case, the evidence fed in the criminal case as well as in the domestic enquiry was one and the same and the criminal having acquitted workmen on the very same evidence, this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted that in that case, the finding by the Tribunal was arrived at in an ex parte departmental proceedings. In the case in hand, we have noticed that before the Labour Court the evidence led bv the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion dehors the finding of the Criminal court

(emphasis supplied by me)

13. Coming to the facts of the present case, the disciplinary proceedings were initiated on 21.11.2005. Simultaneously, criminal proceedings had also been launched against the petitioners on the same set of facts. Admittedly, no decision is rendered by the Criminal Court so far. For some reason or the other, the departmental proceedings are also pending for the last over four years. If the petitioners are acquitted honourably and exonerated completely in the criminal case, then only the departmental enquiry on the same set of charges need not be continued. It also depends upon the materials which may be placed by the management and prosecution before the disciplinary authority and criminal court as the case may be. Even according in Paul Anthony's case (supra), if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings even if they are stayed on the ground of the pendency of the criminal case can be resumed and proceeded with so as to conclude at an earlier date. If the petitioners get an honourable acquittal before the criminal court, they can place the said judgment either before the disciplinary authority or the appellate authority as the case may be and seek for dropping of the disciplinary proceedings. Having regard to the facts and circumstances of the case, I am of the view that the departmental proceedings cannot be stayed pending disposal of the criminal case. Point No. 1 is answered accordingly.

Re. Point No. 2:

14. In a domestic enquiry, the right of representation by a lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. The decision whether representation by a lawyer should be permitted or not, has to be exercised on relevant consideration. In the present case, the matter is guided by the provisions of Rule 11(8) of the Zoo Authority of Karnataka Civil Services (Classification, Control and Appeals), 1993, which is as under:

The subordinate may take the assistance of any other subordinate or a retired subordinate of the Zoo Authority of Karnataka to present the case on ins behalf. But may not engage a legal practitioner tor the purpose unless the Presenting Officer appointed by the Disciplinary Authority, is a legal practitioner, or, the Disciplinary Authority having regard to the circumstances of the case, so permits.

The aforesaid rules do not bar the appointment of an advocate to represent the delinquent in the departmental enquiry proceedings. The disciplinary authority may permit the delinquent to appoint a legal practitioner in appropriate cases.

15. In C.L. Subramanyam v. Collector of Customs : AIR 1972 SC 2178, it has been held that since a government servant by and large has no legal training and there is a threat to his livelihood, and he is not likely to be in a position to present his case as best as should be, then in appropriate cases, there should be permitted legal representation.

In The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. : AIR 1983 SC 109, it has been held thus:

One has to consider the nature of enquiry, who held it, where it is held and what is the atmosphere? Domestic enquiry is claimed to be a managerial function. A man of the establishment does the robe of judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided over by a unbiased judge? The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to these uneven scales, the weight of legally trained minds of behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and titled balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.

In Cresent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi : (1993) 2 SCC 115, the Apex Court has held that the right to be represented by a Counsel or agent of his own choice is not the absolute right but can be controlled, restricted or regulated by law, rules or regulations. However, if the charge is of a serious or complex nature, the delinquent's request to be represented through a Counsel or agent could be conceded.

The Apex Court in J.K. Agarwal v. Harynana Seeds Development Corporation : AIR 1991 SC 1221 has held as under:

Rule 7(5) itself recognises that where the charges are so serious as to entail a dismissal from service, the inquiry authority may permit the services of a lawyer to the delinquent employee. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailng a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the employee being pitted against a Presenting Officer who is trained in law. Legal adviser and lawyer are for this purpose somewhat liberally construed and must include 'whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser'. In the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case.

In Harinarayana Srivastav v. UCO Bank : AIR 1997 SC 3658, AIR 1997 SC 3638. the Apex Court has held that where the allegations are simple and not complicated, refusal of assistance by an advocate will not amount to violation of rules of natural justice.

16. The petitioners have filed an application as per Annexure-E stating that the management in order to prove the charges has cited 14 witnesses. Six of them are veterinary scientists from the institute of Animal Health and Veterinary Hospital Mysore. One is a Scientific Officer (Department of Toxicology of FISL, Bangalore). It is further contended that they are all illiterate persons and not exposed to outer world. They do not know anything about law and procedure of disciplinary enquiry. The witnesses cited by the management are expert witnesses and it is impossible for an ordinary defence assistant to defend their case by cross examining those expert witnesses. Therefore, they want the assistance of an advocate. The application has been rejected on the ground that there is no statutory provision for appointing a lawyer by a delinquent which is factually incorrect The stand now taken by the Management is that since the disciplinary authority has not appointed the legal practitioner as the presenting officer, the petitioners are also not entitled for the appointment of the legal practitioner.

17. Examination of witnesses by adverse party is called the cross examination. It is the most effective of all the means of extracting the truth and exposing falsehood. It is not an empty formality, but the valuable right to substantiate the defence. It is true that if the allegations are simple, the disciplinary authority need not permit the petitioners to appoint a lawyer to defend their case, which is not so in the present case. It is their specific case that they are illiterate persons and that they are not in a position to cross-examine the expert witnesses of the management. The charges are so serious as to the entail dismissal from service. In the circumstances, denial of a lawyer may amount to denial of a real and reasonable opportunity of defence. Having regard to the facts and circumstances of the case, I am of the view that the disciplinary authority ought to have permitted the petitioners to engage a lawyer to represent them in the case. Point No. 2 is answered accordingly.

18. In the result, I pass the following order:

1) W.P. No. 10644/2006 challenging the notices issued by the enquiry officer at Annexures-M, N, N1 and N2 is hereby dismissed.

ii) W.P. No. 10577/2006 is allowed. The order at Annexure-F dated 20.07.2006 rejecting the application of the petitioners to permit them to appoint a legal practitioner to defend their case is hereby quashed. Petitioners are permitted to engage the services of an Advocate to represent them in the disciplinary enquiry. No cost.