Allowed

Sri. B M Nagesh v. the State of Karnataka

Karnataka HC7 Feb 2024WP/8494/2020

Case brief

AI extract

What is this about?

A sub-registrar compulsorily retired after a bribery disciplinary enquiry despite honourable acquittal on identical charges challenged the Tribunal's dismissal. The High Court held the acquittal and the appointing authority's exoneration endorsement fatal to the enquiry, quashed both orders and directed reinstatement without back pay.

What did the court decide?

Certiorari quashing Tribunal and disciplinary orders; mandamus to reinstate petitioner forthwith without financial benefit ('no work no pay'), period counted as service otherwise.

Sri. B M Nagesh Vs the State of Karnataka — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:5239-DB WP No. 8494 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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WRIT PETITION NO. 8494 OF 2020 (S-KSAT)

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BETWEEN:

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SRI. B.M. NAGESH, S/O LATE MAHADEVA M. NAYAK, AGED ABOUT 42 YEARS, RESIDING AT DURGASHREE HOUSE, NEAR S.V.TEMPLE ROAD, KURANGRAPADY, UDUPI-574 118.

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…PETITIONER

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(BY SRI. SATHISH K.,ADVOCATE)

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AND:

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE (REGISTRATION AND STAMPS), M.S.BUILDING, BENGALURU-560 001.

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INSPECTOR GENERAL OF REGISTRATION AND COMMISSIONER OF STAMPS, KANDAYA BHAVAN, K.G.ROAD, BENGALURU-560 009.

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THE KARNATAKA LOKAYUKTHA, REPRESENTED BY ITS REGISTRAR, MS.BUILDINGS, BENGALURU-560 001.

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…RESPONDENTS (BY SRI.KHAMROZ KHAN., AGA FOR R1 & R2; SRI.VENKATESH S ARABATII., ADVOCATE FOR R3)

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THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS AND SET ASIDE THE IMPUGNED ORDER DATED 19.03.2020 PASSED IN APPLICATION NO.6836/2018 BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE SAID APPLICATION NO.6836/2018 FILED BY THE PETITIONER BEFORE THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, KRISHNA S. DIXIT. J., MADE THE FOLLOWING:

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ORDER

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Petitioner, an employee in the cadre of SDA, was before the Karnataka State Administrative Tribunal in Application No.6836/2018 calling in question the disciplinary order of penalty dated 1.8.2018 whereby, he was compulsorily retired from service on the basis of Enquiry Report that had found him guilty of misconduct, the bribe amount even according to the respondents, being a paltry sum of Rs.915/-.

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Learned counsel appearing for the petitioner

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seeks to falter the impugned order of punishment on the following grounds:

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(a) Petitioner after a full-fledged trial in Special Case No.40/2012 has been granted honourable acquittal by the learned Principal Sessions Judge, Udupi vide order dated 16.08.2014; State’s challenge in Criminal Appeal No.980/2014 against the said order has been dismissed by this Court on 29.09.2022; there is no further challenge.

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(b) The Enquiry Officer 05.03.2018 has specifically stated that the DE proceedings were held on the principle of preponderance of probability when the applicable Rule of Evidence was ‘beyond reasonable doubt’ since the charges were grave and the consequences of ‘finding guilty’ were graver.

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(c) The District Registrar vide Endorsement dated 05.09.2014 had exonerated the petitioner from the allegations of corruption & bribery, that too after considering acquittal order of the Criminal Court. The impugned order of compulsory retirement has been quashed without saying a word about this Endorsement of the District Registrar.

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(d) The Tribunal failed to appreciate the case of petitioner in the right perspective. It did not treat the effect of District Registrar’s Endorsement also though it was specifically taken up in the reply of the petitioner at Annexure-A8; the Tribunal has not duly followed the

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settled principles of disciplinary proceedings in matters involving grave charges of bribery & corruption

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In support of his submissions learned counsel pressed into service certain rulings of the Apex Court.

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The respondents after service of notice have entered appearance. The State is represented by the learned AGA and the Lokayukta office is represented by its Panel Counsel. No Statement of Objections has been filed. Learned Lokayukta counsel opposes the petition with the following submissions:

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(i) Criminal Trial and Disciplinary Proceedings are different from each other; one does not control the other; what happens in the former has nothing to do with what should happen in the latter; acquittal in criminal trial is not a bar against holding Disciplinary Enquiry; it is not a case of honourable acquittal but it is founded on the failure of prosecution to prove its case beyond reasonable doubt. The applicable rule to disciplinary enquires is the ‘Rule of Preponderance of Probability’.

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(ii) The Disciplinary Authority having considered all aspects of the matter accepted the Enquiry Report after looking to the version of petitioner to the same; he found

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him guilty of charges by accepting Enquiry Report; since he was still young, a lenient punishment of compulsory retirement has been awarded, instead of dismissal.

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(iii) Petitioner cannot place reliance on the District Registrar’s Endorsement dated 05.09.2014 when Government had entrusted the enquiry to the Lokayukta office under Rule 14A of KCS (CCA) Rules, 1957 pursuant to Upa-Lokayukta’s Report dated 05.03.2018 submitted u/s.12(3) of the Karnataka Lokayukta Act, 1984.

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(iv) The matter having been examined by the Tribunal, relief has been denied to the petitioner and the Writ Court exercising a limited supervisory jurisdiction cannot undertake a deeper examination of impugned orders, the focal point of such examination being the decision making process alone; therefore, Petition should be dismissed on settled principles.

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Learned Panel Counsel also relies upon certain rulings of the Apex Court in support of his vehement stand.

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Having heard the learned counsel for the parties and having perused the petition papers, we are inclined to

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grant indulgence in the matter for the following reasons:

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A. BRIEF FACTS ARISING FROM THE RECORD:

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(i) One Mr. Sandeep Kumar had lodged complaint of bribery on 03.10.2011 before the Lokayukta Police, Udupi; Crime No.11 of 2011 for offences punishable u/ss. 7, 13(1)(d) r/w Sec.13(2) of P.C. Act, 1988. The trap was laid on 03.10.2011 and an amount of Rs.1,350/- was retrieved, of which only Rs.915/- was the bribe amount for having copies of Nil Encumbrance Certificate in respect of a property covering a period of 15 years. The Special Case No.40/2012 ended in acquittal vide order dated 16.08.2014.

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(ii) The Government pursuant to report had entrusted the matter to the Lokayukta under Rule 14(A) of 1957 Rules vide order dated 28.02.2013. Accordingly, a Disciplinary Enquiry was conducted on the basis of very same allegations. The Enquiry Report dated 05.03.2018 found the petitioner guilty of charges on the version of three witnesses PW 1 to 3 and on the basis of as many as 12 documents Ex.P1 to P12. Petitioner’s reply dated 09.05.2018 was submitted against the Enquiry Report. The Government handed the punishment order on

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01.08.2018 by way of compulsory retirement in terms of

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recommendation of the Upa-Lokayukta. The challenge to this failed before the Tribunal. That is how the petitioner is before this court.

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B. AS TO HONOURABLE ACQUITTAL & ITS IMPACT ON DISCIPLINARY PROCEEDINGS:

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This aspect of the matter has been examined in

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detail by this Court in W.P.No.9642/2020 (S-KSAT) between P.V.RUDRAPPA vs. STATE disposed off on 30.01.2024. The observations made therein at para IV(1) which set the legal perspective in the focus read as under:

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“(a) The vehement submission of learned AGA & learned Panel Counsel that there is difference between Criminal Proceedings and Disciplinary Proceedings, cannot be disputed. Even an average law student would not disagree with this. The nature of criminal proceedings, the form before which they are brought, the quality & quantum of evidence, degree of proof and the outcome of such proceedings, are all much different from those in a Disciplinary Proceeding. The rule of evidence applicable to Departmental Proceedings is not the same for criminal trial; criminal cases are ordinarily governed inter alia by the provisions of the Indian Evidence Act, 1872 & the Criminal Procedure Code, 1973. The technical rule relating

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to sufficiency of evidence does not apply to departmental enquiries. The authority conducting such enquiry is guided by the Rules of Natural Justice & Fairness. In a departmental enquiry, there is no inhibition against placing reliance on the evidence of a co-delinquent, unlike in a criminal case. This is the reason why courts ordinarily do not stay the disciplinary proceedings only on the ground that a parallel criminal proceeding pends.

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(b) What is observed by the Apex Court in AJIT KUMAR NAG vs. INDIAN OIL CORPORATION LTD., 2005 SCC Online SC 1352 at para 11 is worth reproducing:

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“As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is

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necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.

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However, the above observations are by way of general rule which admits at least one exception namely the abnorm of honourable acquittal.

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(c) In RAM LAL v. STATE OF RAJASTHAN, (2024) 1 SCC 175, it is observed at para 30 as under:

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‘We are additionally satisfied that in the teeth of the finding of the Appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate

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authority as allowing them to stand will be unjust, unfair and oppressive.’

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In other words, when the facts, evidentiary material and the circumstances arising from the criminal case are identical to those in the disciplinary proceedings, ordinarily there cannot be difference in terms of their outcome. If on identical set of facts/allegations that are vouched by the very same evidentiary material/witnesses, an accused employee is acquitted after a full-fledged trial, ordinarily he cannot be punished in a disciplinary enquiry. In a way, this can be likened to doctrine of double jeopardy, constitutionally enacted in Article 20(2); the Apex Court in a catena of decisions has applied the same even in disciplinary proceedings eg., STATE OF HARYANA vs. BALWANT SINGH, (2003) 3 SCC 362. This vital aspect has not figured in the consideration of petitioner’s case at the hands of disciplinary authority… ”.

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What has been above observed equally applies to

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the case of petitioner as well inasmuch as the Criminal Court in its Acquittal Order dated 16.08.2014 at internal page 14 has discussed the version of the complainant PW1 as under:

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“He has further stated that the complainant has been regularly paying the Government fees and on that belief he received the currency notes given by the complainant and as he was busy he could not have counted them and kept them in the almirah. Looking to the said explanation given by the accused, it is clear that he has received the amount from the complainant treating them as it is towards Government fee payable by the complainant and without counting them he kept it in the almirah. It is lawful for the accused to take the Government fee from the complainant for furnishing the certified copies of the documents applied by him. The Investigating Officer has also seized the documents furnished by the accused to the complainant and they are at Exs.P4 to P6 and they are kept ready by the accused on 30-9-2011 and they bear the signatures of the accused. P.W.1 went to the office of the Sub-Registrar on 1-10-2011 to meet the accused and at that time he did not ask about the documents sought by him in the office and when he was told the accused is on casual leave, simply he went back. On that day also the complainant did not pay the Government fee for supply of certified copies of the documents sought by him. Therefore, the amount received by the accused includes the Government fee for supply of the certified copies of the documents and the accused under the belief that the amount given by the complainant is towards the Government fee, has received and kept it in the almirah without counting.”

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A plausible explanation offered by the petitioner as to how

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an amount of Rs.1,350/- was kept in the office almirah has

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been accepted by the Court after examining all aspects of

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the matter. We hasten to add that in all fairness, Panel Counsel for the Lokayukta submitted that out of the said amount, a sum of Rs.435/- was payable to the State Exchequer towards charges for furnishing certified copies of the documents and thus, the alleged bribe amount would, arithmetically speaking, stands diminished to Rs.915/- only.

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The District Registrar happens to be the appointing authority of the petitioner, outside Bengaluru jurisdiction vide Schedule II to 1957 Rules. He had examined the entire matter in the light of acquittal order of the Criminal Court and thereafter issued the Endorsement dated 05.09.2014. Its operative portion reads as under:

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“DzÉÃ±À ¸ÀASÉå:f£ÉÆÃPÀ/GqÀÄ¦/E«/01/2011-12 ¢£ÁAPÀ:05-09- 2014

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¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß PÀÆ®APÀÄ±ÀªÁV ¥Àj²Ã°¹ ºÁUÀÆ «ZÁgÀ «ªÀÄ±ÉðUÀ¼À »£Éß¯ÉAiÀÄ°è J£ï.w¥ÉàÃ¸Áé«Ä, f¯Áè £ÉÆÃAzÀuÁ¢üPÁj ºÁUÀÆ ªÀÄÄzÁæAPÀUÀ¼À G¥À DAiÀÄÄPÀÛgÀÄ ªÀÄvÀÄÛ ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀ £ÉÃªÀÄPÁw ºÁUÀÆ ²¸ÀÄÛ ¥Áæ¢üPÁjUÀ¼ÀÄ GqÀÄ¦ f¯Éè, GqÀÄ¦ DzÀ £Á£ÀÄ ªÀiÁ£Àå °ÃPÁAiÀÄÄPÀÛ «±ÉÃµÀ WÀ£À £ÁåAiÀiÁ®AiÀÄªÀÅ ¢£ÁAPÀ:16-08-2014gÀAzÀÄ ¤ÃrgÀÄªÀ wÃ¥Àð£ÀÄß

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UËgÀ«¹, PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉÃªÁ (ªÀVÃðPÀgÀt, ¤AiÀÄAvÀæt ªÀÄvÀÄÛ C¦Ã®Ä) ¤AiÀÄªÀÄUÀ¼ÀÄ 1957gÀr ¤ÃrgÀÄªÀ ¥ÀæzÀvÀÛªÁzÀ D¢üPÁgÀªÀÅß ZÀ¯Á¬Ä¹ ²æÃ.©,JªÀiï.£ÁUÉÃ±ï ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄPÀgÀÄ G¥À£ÉÆÃAzÀtÂ PÀbÉÃj PÀÄAzÁ¥ÀÄgÀ EªÀgÀ ªÉÄÃ°£À ¯ÉÆÃPÁAiÀÄÄPÀÛ «ZÁgÀuÉAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉÆ½¹ DzÉÃ²¹zÉ.”

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The contention of the petitioner that his case is of honourable acquittal thus impresses us not only by the perusal of the above endorsement but the very acquittal order itself in general and the paragraph reproduced above in particular.

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It is not a case of acquittal of the accused on the ground of ‘beyond reasonable doubt’. The Criminal Court after a full fledged trial has recorded a specific finding at page 24 of the acquittal order as under:

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“…PW-1 in his Examination-in-Chief has not stated that the accused demanded bribe when he met him on 03.10.2011 in his office… PW-4 who is the shadow Panch has also not stated … about the demand made by the accused … so, from the evidence of PW-1 and 4, it is quite clear that there was no demand made by the accused…”.

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Further at page 14 of the acquittal order which is already reproduced above has given elaborate reason for

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accepting the explanation of the petitioner, this acquittal

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order has got the seal of this court in the Criminal Appeal

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filed by the State that came to be dismissed. It was not the case of complainant who was examined as PW-1 in the disciplinary enquiry that what explanation the petitioner had offered in the Criminal case was not true & correct and therefore his version in variance of the same should

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gain acceptance.

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C. AS TO DEFECT IN THE ENQUIRY PROCEEDINGS:

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As already observed both the criminal trial

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and the disciplinary proceedings were structured on the basis of very same allegations and evidentiary material. Therefore, the outcome of the former would have a great

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bearing on that of the later in the light of RAM LAL supra . The contention of the petitioner that the enquiry proceedings are even otherwise vitiated because the Enquiry Officer had treated them as simple DE when they were quasi-criminal in nature, stands to reason & law. Ordinarily, the rule of preponderance of probability governs proceedings in DE. However, where allegations

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are grave like bribery/corruption different considerations

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figure: The rule of preponderance of probability has to yield to the rule of proof beyond reasonable doubt , although a bit lesser in degree qua the criminal proceedings. The EO in the enquiry report dated 5.03.2018 has specifically stated that he had followed the rule of preponderance of probability . Therefore, counsel for the petitioner is right in contending that there is a legal infirmity which was lost sight of both by the disciplinary authority and the Tribunal. In fact, there is also a misdirection in law, in proceeding with the disciplinary enquiry in disregard of the findings of the Criminal Court on the assumption that ‘proof beyond reasonable doubt’ is confined to criminal trial. This view gains support vide Apex Court decision in UNION OF INDIA vs. GYAN CHAND CHATTAR (2009) 12 SCC 78, wherein para 21 reads as under:

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“Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer

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severest penalty awardable in such cases. Therefore, such a grave charge of quasicriminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. ”

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2. Learned panel Counsel appearing for the

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Lokayukta next contended that the District Registrar’s endorsement dated 5.9.2014 could not have interdicted the ongoing enquiry proceedings because of Government entrustment order dated 28.2.2013 issued under Rule 14A of the 1957 Rules does not much come to the rescue of respondents. Firstly, this order is not in dispute; it was specifically referred to in the petitioner’s reply dated 9.5.2018 filed against the Enquiry Report dated 5.3.2018.

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A copy of the said reply was produced as Annexure-A8 before the Tribunal. We repeat that the District Registrar happens to be the designated appointing authority vide Schedule II to the 1957 Rules and he has issued the said endorsement after accepting the acquittal order of the criminal court. We are amazed, to say the least, that despite the said order, the disciplinary enquiry was

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continued against the petitioner. This is nothing but a harassment to a government servant. If the District Registrar had committed any error in issuing this endorsement, no corrective measures are taken by the respondents nor has he been chided for the same. When statutorily designated appointing authority has closed the matter, the things should have come to a halt.

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In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned orders of Tribunal and the Disciplinary Authority; a Writ of Mandamus issues to the first respondent to reinstate the petitioner in service, forthwith without any financial benefit for the period of out of service on the principle of ‘no work no pay’; however, the said period shall be treated as service as such for all other purposes.

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Since this decision has been rendered in the peculiar fact matrix of the case, we do not intend to lay down any concrete proposition of law and that this judgment is structured as being substantially inter parte .

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