Sri. Hiriyanna Gowda Vs Karnataka Power Transformer Corporation Ltd.

SRI HIRIYANNA GOWDA S/O. K. KUNJAPPA GOWDA AGED ABOUT 60 YEARS JUNIOR ENGINEER (RTD.) LAKSHMI NILAYA SHIVANAGAR MANNAKADU, KAVOOR MANGALORE - 575 015.

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…PETITIONER

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(BY SRI STEEPHEN MATHEW, FOR SRI KARUNAKARA P., ADVOCATES)

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AND:

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka

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KARNATAKA POWER TRANSFORMER CORPORATION LTD. (DISCIPLINARY AUTHORITY) CAUVERY BHAVAN BENGALURU - 560 001 BY ITS DIRECTOR.

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MANGALURU ELECTRICITY SUPPLY COMPANY KONAJE MANGALURU D.K. DISTRICT-575 015. BY ITS EXECUTIVE ENGINEER.

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KARNATAKA LOKAYUKTHA M.S. BUILDING DR. B.R. AMBEDKAR VEEDHI BENGALURU - 560 001

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BY ITS REGISTRAR.

…RESPONDENTS

(BY SMT. VARSHINI R., ADVOCATE FOR SRI B.L. SANJEEV, ADVOCATE FOR R-1 AND R-2; SRI VENKATESH S. ARABATTI, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 24-7-2019 PASSED BY RESPONDENT NO.1 THEREBY ORDERING FOR WITHHOLDING OF 50 PERCENT OF PENSION PERMANENTLY AND ALSO TO HOLD THE SUSPENSION PERIOD AS PERIOD LEAVE WITHOUT PAY AT ANNEXURE-A AND QUASH THE ENQUIRY REPORT DATED 28-2-2019 AT ANNEXURE-B AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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The present Writ Petition has been filed impugning the order of punishment dated 24.07.2019, wherein the petitioner had been inflicted with the punishment of withholding 50% of his pension permanently and to treat the suspension period as 'leave without pay' after conclusion of the domestic enquiry against him. The petitioner has also challenged the enquiry

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report dated 28.02.2019 (Annexure-B), as well as the recommendation of the Lokayukta for withholding 50% of the pension permanently vide the recommendation dated 05.03.2019.

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The petitioner faced domestic enquiry conducted by learned Lokayukta for the following charges:

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"Charge:

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That you, Sri. R. Hiriyanna Gowda, (here in after referred to as Delinquent Government Official, in short DGO), while working as the Junior Engineer (Elcl.), MESCOM, Konaje Branch, Mangalore, Dakshina Kannada District demanded and accepted a bribe of Rs. 1500/-on 05/03/2010 from complainant Sri. G.Ajmal Khan S/o Sri. K. Abdul Gafar Khan, R/o Chamlapura Hundi, behind BDO 01Office at Nanjanagudu Town in Mysore District for line clearance and giving electrical connection to the building of Nishara Public School in Harekala Village of Mangalore Taluk that is for doing an official act, and thereby you failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Board Employee and thus you are guilty of misconduct under Rule 3 (1) of Karnataka Electricity Board Employees (Conduct) Regulations 1988."

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Thus, the charge was for demanding and accepting a

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bribe of Rs.1,500/- on 05.03.2010 from the complainant, Sri. G.Ajmal Khan, for line clearance and to give electrical

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connection to the school Building of Nishara Public School in Harekala village of Mangaluru Taluk.

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The petitioner was issued the notice by the Enquiry

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Officer to file his defence to the aforesaid charge, and he accordingly filed his defence. After considering the defence, the Enquiry Officer proceeded with the enquiry against the petitioner (DGO).

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An FIR was also lodged against the petitioner on the same day, i.e., on 05.03.2010, under Sections 7, 13 (1)(d), read with Section 13 (2) of the Prevention of Corruption Act, 1988. In the said FIR, the Investigating Officer after investigation of the offence submitted the charge sheet against the petitioner under Sections 7, 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.

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In his defence statement filed in response to the notice issued by the Enquiry Officer, the petitioner denied the charges.

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During the enquiry, three witnesses were examined as PW1 to PW3 and 14 documents came to be marked as Exs.

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P1 to P14 on behalf of the disciplinary authority. After closure

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of the evidence of the disciplinary authority, second oral statement of the petitioner (DGO) was recorded. The DGO examined himself as DW.1 and he produced three documents, which were marked as Exs.D1 to D3 in support of his defence.

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The enquiry officer framed following two points for

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consideration:

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“1. Whether the charge framed against the DGO is proved by the disciplinary authority?

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2. What order?”

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The petitioner was working as Junior Engineer (Electrical)/Section officer in MESCOM, Konaje Sub-division, Mangaluru during the relevant period. The complainant, who was running the school, requested the DGO to clear the line and to provide electrical connection to the said school building. According to the complainant, the DGO demanded a bribe of Rs.2,000/-. Out of the demanded bribe of Rs.2,000/-, the petitioner (DGO) received Rs.500/- as part payment on 04.03.2010, insisting the complainant to pay the balance amount of Rs.1,500/- on the next day i.e., on 05.03.2010. This conversation with the DGO was recorded by the

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complainant on a mobile phone belonging to one Sri. Sripal. The said conversation was transferred to a Compact Disk. Since the complainant was unwilling to pay the bribe to the DGO to get the work done, he lodged a complaint with the Lokayukta Police, Mangaluru, on 05.03.2010, producing the CD containing the recorded conversation along with his complaint.

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An entrustment proceeding was conducted in the Lokayukta Police Station, Mangaluru, on 05.03.2010 in the presence of two panch witnesses, viz., Sri. Omkarappa S.G., Commercial Tax Inspector, Commercial Tax Office, Mangalore and Sri. Charles Oswald Monis, FDA, PWD Department, Mangaluru. In the said proceedings, the bribe money of Rs.1,500/-, consisting of three currency notes of Rs.500/denomination each, given by the complainant, was smeared with phenolphthalein powder and treated as tainted money. In the trap proceedings, the said amount was recovered from the complainant, which he kept in the right-side pocket. To prove the charge, the complainant and Omkarappa (PW1) supported

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the charge of demand and acceptance of the bribe amounts and the trap proceedings. The Enquiry Officer, after

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conducting the detailed enquiry, submitted the enquiry report dated 28.02.2019, holding that the charge of demanding and accepting the bribe money from the complainant was proved against the DGO.

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The learned Lokayukta issued notice to the petitioner calling for his response to the enquiry report. After considering the response, the learned Lokayukta was of the opinion that the charge of demanding and accepting bribe was proved against the petitioner. Accordingly, the Lokayukta recommended the Government to impose penalty of permanently withholding 50% of the pension of the petitioner, vide the order dated 05.03.2019.

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The disciplinary authority, after considering the recommendation of the Lokayukta, imposed the punishment of withholding 50% of the pension amount and directed that the suspension period not be treated as spent on duty but instead as 'leave without pay'.

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The learned counsel for the petitioner has vehemently submitted that the petitioner has been acquitted in the special case No. 12/2011 arising out of the same incident

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for the offences under Sections 7, 13(1)(d) read with Section

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13 (2) of the Prevention of Corruption Act, 1988, vide judgment and order dated 26.02.2021 passed in S.C.NO.12/2011. He, therefore, submits that if the petitioner had been acquitted of the criminal offences, which were also based on the same evidence and same set of facts, the punishment order passed in the domestic enquiry would be liable to be quashed and set aside. In support of this submission, the learned counsel for the petitioner has placed reliance on the judgment in Ram Lal v. State of Rajasthan, reported in (2024) 1 SCC 175 .

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On the other hand, Sri. Venkatesh S. Arabatti, learned counsel appearing for the Lokayukta, has submitted that the scope and ambit of departmental proceedings and the criminal proceedings are different and distinct. In the departmental proceedings, the charge has to be proved on the basis of the preponderance of probabilities, whereas in the criminal case, the charge has to be proved beyond reasonable doubt. He further submits that the complainant and shadow witness, who supported the charge in the domestic enquiry,

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turned hostile in the criminal case for the reasons best known to them as they might have been won over by the petitioner. It is further submitted that the acquittal on the ground of witnesses turning hostile or on technical grounds is not an honourable acquittal; the petitioner cannot take the benefit of the judgments in the criminal case. He further submitted that the domestic enquiry was concluded in the year 2019, whereas the judgment of the trial Court in the criminal case is of the year 2021. Therefore, according to him, the acquittal in the criminal case, where the very prosecution witnesses turned hostile, will not have any bearing on the domestic enquiry. Hence, the punishment order passed against the petitioner cannot be said to be bad in law.

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The learned counsel for the Lokayukta, has further submitted that if the trial Court judgment dated 26.02.2021 passed in Special Case No. 12/2011 is analyzed, the acquittal is based on the following seven points:

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1. Discrepancies in the evidence of PW1;

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2. Material contradictions in the evidence of PW1;

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3. Material evidence (Primary evidence - mobile phone)

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withheld by the prosecution;

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4. Material witness (CW4 though named in the charge

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sheet), not examined, but he is examined as DW1 by

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the accused;

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5. Section 65B Certificate not produced;

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6. Demand not proved;

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7. Acceptance proved;

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The submission is that the acquittal of the petitioner is only on technical grounds and it is not an honourable acquittal. He has also placed reliance on the judgment in

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Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju, reported in (2019) 10 SCC 367 and Mehiboobsab v. Upalokayukta, reported in 2002 SCC OnLine Kar 259 .

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Learned counsel for the Lokayukta further submitted that the standard of proof in a domestic enquiry is not based on the strict rules of Evidence Act. What is required in a domestic enquiry is fair play and observance of the principles of natural justice. If there is total absence of evidence to support the charge, then only the enquiry and the punishment order can be held to be invalid. But if there is some evidence,

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though it may not be sufficient evidence that cannot be a ground for interference. Insufficiency of the evidence cannot by itself be a ground for interference with the punishment order. In support of his contention, he placed reliance on the judgment in the State of Haryana v. Rattan Singh, reported in (1977) 2 SCC 491 and State of Karnataka v. Umesh, reported in (2022) 6 SCC 563 .

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We have considered the submissions and also gone through the enquiry report and the order passed by the Lokayukta. The domestic enquiry was completed on 28.02.2019, and the punishment order is dated 24.07.2019. However, the trial Court judgment came only in the year 2021, i.e., 26.02.2021. The two witnesses i.e., the complainant and the shadow witness, fully supported the case of the disciplinary authority before the Enquiry Officer in the domestic enquiry. However, they turned hostile in the criminal case.

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We have gone through the judgment passed by the learned trial Court and we are of the opinion that the petitioner's acquittal in the criminal case is not a clean and honourable acquittal, but it is based on the witnesses turning

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hostile and on some technical grounds such as not producing of

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a Certificate under Section 65B.

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The strict rules of evidence are not applicable in a domestic enquiry, as held in the case of Ram Lal v. State of Rajasthan (Supra) and State of Haryana v. Rattan Singh (Supra) . Paragraph 4 of the said judgment is extracted herein, which would read as under:

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"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reason able nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of However, the courts below a domestic tribunal, cannot be held good misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not

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in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

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A similar view has been taken in State of

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Karnataka v. Umesh (Supra) , wherein, after relying on the

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judgment in State of Haryana v. Rattan Singh (Supra) , it

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has been held in paragraph Nos. 18 to 21 as under:

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18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] . In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision: (paras 21 & 31)

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

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awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.

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31. … wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.”

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19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, supra] are not the ratio decidendi of the case. These observations were made while discussing the judgment of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh was reiterated : (Gyan Chand Chattar case SCC p. 88, paras 35-36)

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“35. … an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.

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36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non-existing material and failed to consider the relevant material and

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finding of all facts recorded by him cannot be sustained in the eye of the law.”

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(emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff “could be” corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with.

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20. In Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju , this Court has held : (SCC p. 371, para 9)

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“9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different.

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21. The Court also held that : (C. Nagaraju case, SCC p. 372, para 13)

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“13. Having considered the submissions made on behalf of the appellant and Respondent 1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a criminal court does not preclude a departmental inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the criminal court if the evidence that is produced in the departmental

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inquiry is different from that produced during the criminal trial. The object of a departmental inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a departmental inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the enquiry officer in the disciplinary proceedings, which is different from the evidence available to the criminal court, is justified and needed no interference by the High Court.”

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In exercise of the power of the judicial review under

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Article 226 of the Constitution of India, the High Court should restrict its review to determine whether:

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i) the principles of natural justice have been complied with;

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ii) the finding of misconduct is based on some evidence;

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iii) the statutory rules governing conduct of the disciplinary proceedings have been observed;

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iv) the findings of disciplinary authority suffers from any perversity;

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v) the penalty is disproportionate to the proven misconduct;

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Applying these tests/parameters, we find that neither the principles of natural justice have been violated, nor

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the finding of the misconduct is based on no evidence. The statutory rules governing conduct of domestic enquiry have

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been fully complied with, and the finding of the disciplinary authority does not suffer from any perversity. We are also of the opinion that the penalty of withholding 50% of the pension is not disproportionate to the misconduct of the petitioner, so as to shock the conscience of this Court.

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It may also be relevant to take note the judgment in Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju (Supra) , wherein it was held that if prosecution witnesses turn hostile in a criminal trial and the accused gets acquittal, the same would not have any bearing if in the domestic enquiry if the charge is otherwise proved against the delinquent officer. Paragraph Nos. 10 and 11 of the said judgment, which are relevant, are extracted hereunder:

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"10. ……….. In the present case, the prosecution witnesses turned hostile in the criminal trial against Respondent 1. He was acquitted by the criminal court on the ground that the prosecution could not produce any credible evidence to prove the charge. On the other hand, the complainant and the other witnesses appeared before the inquiry officer and deposed against Respondent 1. The evidence available in the departmental inquiry is completely different from that led by the prosecution in criminal trial.

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11. ………… On the basis that the evidence in both the criminal trial and departmental inquiry is the same, the order of dismissal of the appellant therein was set aside. As stated earlier, the facts of this case are

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entirely different. The acquittal of Respondent 1 was due to non-availability of any evidence before the criminal court. The order of dismissal was on the basis of a report of the inquiry officer before whom there was ample evidence against Respondent 1."

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A similar view has been taken by this Court in Mehiboobsab v. Upalokayukta (Supra) , paragraph Nos.17

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and 18 of the said judgment are extracted hereunder:

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"17. Therefore, the principle that emerges is that an acquittal in a criminal proceedings does not take away the right of the employer to initiate or continue departmental proceedings against the employee, in regard to the same charges. But, where the employee is honourably acquitted by being completely exonerated, then normally it would not be expedient or appropriate to initiate or continue the departmental enquiry, on the very same charges.

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18. Where the Criminal Court acquits an accused on a technical ground [for example on the ground of failure to obtain requisite sanction for prosecution or on the ground of limitation] or where the accused is acquitted for want of sufficient evidence or nonexamination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that the prosecution had failed to establish its case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honourable acquittal. In such cases, the management is at liberty to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal. The reasons are evident."

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Insofar as the decision in Ram Lal v. State of

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Rajasthan (Supra) relied upon by the learned counsel for the

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petitioner is concerned, paragraph 20 make it evident that the acquittal of the accused in that criminal proceeding was after full consideration of the prosecution evidence, which miserably failed to prove the charge. Paragraphs 28, 29 and 30 of the said judgment, which are relevant, are extracted hereunder:

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28. Expressions like "benefit of doubt" and "honourably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Ext. P-3, the original marksheet carries the date of birth as 21-4-1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The Court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.

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29. We are satisfied that the findings of the Appellate Judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" (see Vijayee Singh v. State of U.P.8).

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30. We are additionally satisfied that in the teeth of the finding of the Appellate Judge, the disciplinary

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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 authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank.

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In the present case, it is not the findings of the trial Court that the prosecution had failed miserably to prove the charge against the petitioner / accused. But the acquittal of the petitioner was on technical grounds, i.e., witnesses turning hostile, non-production of the Section 65B Certificate, etc. Therefore, the judgment in Ram Lal v. State of Rajasthan (Supra) relied upon by the learned counsel for the petitioner is not of much relevance, considering the facts and circumstances of the present case. We therefore, find no ground to interfere with the impugned punishment order. Accordingly, the Writ Petition is dismissed , however, without costs.

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Sd/(D K SINGH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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AM/List No.: 1 Sl No.: 9

Sri. Hiriyanna Gowda v. Karnataka Power Transformer Corporation Ltd.

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Sri. Hiriyanna Gowda v. Karnataka Power Transformer Corporation Ltd.

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