TMI Blog2006 (5) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case [ 1999 (3) TMI 625 - SUPREME COURT] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of ₹ 700/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dismissal order, the appellant filed a writ petition before the High Court. The learned single Judge concluded that there is sufficient evidence against the appellant and dismissed the petition. Against the order of the learned single Judge, the appellant preferred L.P.A. and raised the relevant contentions. The Division Bench dismissed the L.P.A. by confirming the order of the learned single Judge. The said decision is challenged in this appeal by special leave. 4. The charges made against the appellant in the departmental enquiry is reproduced hereunder: That total income from wages, interest, house rent, insurance policy amount etc. of Sh. Tank for the period from the year 1953 till June 1978 comes to ₹ 2,75,328.00. Against that, total expenses of Sh. Tank including expenses, saving, movable as well as immovable properties, comes to ₹ 5,29,509.14. Thus, an amount of ₹ 2,54,180.00 has been found very much in excess than his known and legal source of income and it appears that the said amount has been earned by him through bribe, corruption and illegal gratification and, therefore, he is responsible/liable for the breach of Rule 3(1) of Gujarat Civil Services C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed thereon and also the proceedings initiated by the respondents before the Special Court under the provisions of the P.C. Act under Section 5(1)(e) read with Section 5(2) of the said Act. We have carefully read the order passed by the learned single Judge in the writ petition and as affirmed by the learned Division Bench and the judgment passed by the learned Special Judge in the Criminal proceedings. 8. Mr. L. Nageshwara Rao, learned senior counsel, appearing for the appellant, made the following submissions: According to him, the appellant being a Government servant submitted his yearly property return regarding his movable and immovable properties. The return for the year 1975 was verified by the Department and being of the view that the appellant had movable and immovable properties worth more than known sources of his income and being dissatisfied with the explanation of the appellant, the Government requested the Director of Anti-Corruption Bureau to enquire into the matter vide its letter dated 11.1.1977 and on the basis of the report of the Investigating Officer, the Department had issued a charge-sheet upon the appellant. On the same material, criminal proceedings wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el, appearing for the State submitted that upon the investigation it was found that the total income of the appellant out of the salary, interest, rent etc. could not be sufficient to acquire the property owned by the appellant and that the total value of the movable and immovable and other properties acquired by the appellant had been found more than the known source of income by the appellant. It was further contended that the appellant was prosecuted for the offence punishable under Section 5(1)(e) read with Section 5(2) of the P.C. Act and that the appellant came to be acquitted by the learned Special Judge and that unlike in criminal trial, the degree of proof in the domestic enquiry is restricted to prepondrance of probability and not beyond reasonable doubt and that the acquittal in a criminal trial on the charges of corruption under the P.C. Act ipso facto could not be projected as a weapon to undo the result of a validly held departmental inquiry. Arguing further, the learned counsel submitted that in the present case the enquiry report is not casual, but well-written, balanced and making critical evaluation of all the evidence of the witnesses and documents and it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of acquittal passed by the Special Judge in the proceedings initiated against the appellant under the P.C. Act. We have already reproduced the charge framed in the disciplinary proceedings and charge framed in the criminal proceedings. A reading of both the charges would clearly go to show that both the charges are grounded upon the same set of facts and evidence and also pertains to the known source of income of the accused and the presumption raised that that the said amount was obtained by him by illegal and corrupt means. In the departmental enquiry, the Government appointed Mr. V.B. Raval, who was the Investigating Officer in the Anti Corruption Bureau as the Presenting Officer. In the Enquiry proceedings, the Department examined the relatives of the appellant, namely, the wife, father-in-law, brother-in-law and the brother of the appellant. The Enquiry Officer submitted his report at the end of the enquiry and held that the appellant had property disproportionate to the known source of income which, according to the Enquiry Officer, shows that the appellant has received illegal gratification and the charge against the appellant about the illegal possession was proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5(1)(e) read with Section 5(2) of the P.C. Act against the appellant. We have already noticed the charge framed by the criminal Court. The appellant explained before the Court that his father-in-law and brother-in- law are very much rich and at the time of his marriage, they have given ornaments, furniture etc. to his wife but it could not be swallowed by the Anti-Corruption Department and, therefore, a complaint was lodged by the appellant before the police. The plea of the appellant-accused was recorded as Ex.17 . The appellant pleaded not guilty of the charge and claimed to be tried. After the prosecution completed, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 whereby he has given an opportunity to explain each piece of evidence appearing against him in the prosecution evidence. The explanation furnished by the accused in the open Court were recorded and placed along with his original statement, Ex.17. The appellant has stated that he has submitted the written explanation and that should be taken into consideration. He has further submitted that the departmental proceedings were held against him on the allegation that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision. The first part of the Section casts a burden on the prosecution and the second on the accused as stated above. From the words used in clause (e) of Section 5(1) of the P.C. Act it is implied that the burden is on the accused to account for the sources for the acquisition of disproportionate assets. As in all other criminal cases wherein the accused is charged with an offence, the prosecution is required to discharge the burden of establishing the charge beyond reasonable doubt. The Special Court scrutinized the evidence led by the prosecution and after an elaborate discussion, the Court held that the witness Mr. V.B. Raval has categorically admitted that the accused had stated in his statement about the amounts having been gifted to his wife by his in-laws. It is pertinent to note that this witness has categorically admitted in his examination-in-chief itself that he had enquired about the gifts given to other daughters and it was revealed that those gifts were worth less than what was gifted to the wife of the accused. He has also admitted during the course of his cross-examination that the father-in-law of the accused would not have gifted this much amount as shown by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused and acquit him. This Court is unable to accept the submission made by the learned prosecutor. Mr. Buch, that everything was managed by the accused by stating the transactions as the transactions of gift. On the contrary, from the fact that the accused had mentioned all these acquisition of property in his returns, of property submitted to the department it becomes clear that he has not suppressed anything, and, therefore, the transactions were quite true and correct. In view of this, point No.3 is answered in the negative. 13. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. ii) In R.P. Kapur vs. Union of India (supra), a Constitution Bench of this Court observed: 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) iii) In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur Anr. Vs. Ramchandra G. Modak Ors. (supra), the same question arose before this Court. This Court, in paragraph 6, held as under: 6. 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 honorably 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this stage, it should be noted that it is not as if the Labour Court in the instant case was totally oblivious of the proceedings before the criminal court. The Labour Court has in fact perused the order of the Judicial Magistrate and the exhibits produced therein and come to an independent conclusion that the order of the criminal court has no bearing on the proceedings before it; which finding of the Labour Court, in our opinion, is justified. v) In the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Limited, Haldia Ors., (supra) , this Court in paragraph 11 held as under: 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 the offender, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the 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 Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, the charge is failure to anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 16. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. 17. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of ₹ 700/- p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant has put in 26 years of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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