The High Court dismissed a writ petition challenging the confirmation of dismissal from service. The court held that departmental punishment is valid even after an acquittal if the acquittal is not honourable and departmental evidence establishes the charge on a preponderance of probability.
Writ petition dismissed; no order as to costs;
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON'BLE SRI JUSTICE K.C.BHANU AND
HON'BLE SMT JUSTICE ANIS
WRIT PETITION No.21952 of 2011
O R D E R: (per Hon’ble Sri Justice K.C. Bhanu)
This Writ Petition is filed challenging the order in O.A.No.5251 of 2010 dated 09.06.2011, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, whereunder and whereby, the punishment imposed on the writ petitioner vide order issued in Rc.No.329/L70/RR-1/2004 dated 29.12.2004, Proc.C.No. C2/APPL/36/2004 dated 18.10.2004 and proceedings in C.No.PR/136/97 dated 08.07.2004 by the 2nd , 3rd and 4th respondents respectively were confirmed.
2. A regular departmental enquiry was conducted against the writ petitioner for allegedly causing the death of Kum.B.Saraswathi, Typist, District Police Office, Kadapa (hereinafter referred to as ‘the deceased’). The charges levelled against the writ petitioner are that he developed illicit intimacy with the deceased, who was working as Typist in the District Police Office, Kadapa, and when she was pressing him to marry, he refused. Whileso, on 30.07.1995, the deceased came to the house of the writ petitioner and again insisted him to marry her. Then, as he planned to relieve her of, he throttled her neck and thereafter, poured kerosene on her body and set fire to her, as a result she died. In respect of the said incident, the mother of the deceased lodged a report with the police, to which the police registered it as a case for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘the I.P.C’) and investigated into. When the dead body of the deceased was subjected to postmortem examination, the doctor who conducted autopsy opined
that she died as a result of throttling. After committal, number of witnesses were examined and number of documents were marked in the criminal Court. Basing on the evidence available on record, the criminal Court found the petitioner not guilty of the charges levelled against him and accordingly, acquitted him of the charges. The Disciplinary Authority also initiated the departmental proceedings by framing the charges after calling for the written statement. After examining the witnesses and marking documents in the departmental enquiry, the Enquiry Officer found that the charges levelled against the petitioner are not proved. Unable to accept the reasons given by the Enquiry Officer, the Disciplinary Authority after issuing a show cause notice and after disagreeing with the findings of the Enquiry Officer, found him guilty of the charges and accordingly, he was imposed punishment of dismissal from service, which was confirmed in appeal and revision. Challenging the same, the Original Application was filed before the Tribunal. The Tribunal upon consideration of the entire material on record confirmed the said findings of Disciplinary Authority. Challenging the same, the present writ petition is filed.
3. We have heard the learned counsel for the Writ Petitioner and Government Pleader for Services-I at length and also perused the evidence and the documents relied upon by the Disciplinary Authority to see whether it is a case of no evidence and charges and evidence adduced in both departmental proceedings and criminal prosecution are one and the same.
4. When the Delinquent Officer being the accused person, who got honourable acquittal in criminal case, then that is the fact to be taken into consideration by the Disciplinary Authority. If it is not the honourable acquittal in the criminal
prosecution, then the Disciplinary Authority has to rely upon the evidence that was adduced before the Enquiry Officer. Admittedly, in this case, accused was not honourably acquitted, but a benefit of doubt has been given to him. When the charge in both criminal prosecution and departmental proceedings are one and the same, how far the acquittal in criminal prosecution is binding in the departmental proceedings is to be seen.
5. In a decision reported in R.P. Kapur v. Union of
India and Another[1] , Constitution Bench of the Supreme Court held that “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”. The Enquiry Officer has to see that the findings must be based on the evidence both oral and documentary that was adduced in the enquiry. Similarly, the proof required to be proved in both the cases are entirely different. For proving the charge under criminal prosecution, the burden on the prosecution is so heavy and higher than what is contemplated in the departmental proceedings. This was articulated in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Other s[2] , wherein it is held as follows:
"11. 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 the 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 purpose of enquiry
proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the 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 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 a 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."
So, in view of the above decision, it is clear that the proof required in a criminal prosecution is beyond all reasonable doubt. The reasonable doubt is simply that degree of doubt, which would permit a reasonable and just man to come to a conclusion. The test beyond reasonable doubt is really the estimate which a prudent man makes of the probabilities having regard to what must be his duty as a result of his estimate. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. Whereas in the departmental proceedings, the proof required is not beyond doubt, but it is preponderance of probability. It means an out weighing in the process of balancing however slight may be the tilt of the balance or the preponderance. By probability is meant the likelihood of anything to be true, deduced from its conformity to out knowledge. For proving the
misconduct, it need not necessarily be a direct evidence. It can also be inferred from the proved circumstances. In view of the fact that the Disciplinary Authority disagreeing with the findings of the Enquiry Officer and formed its opinion basing on evidence and came to the conclusion that the Article of charge is proved. In view of the fact that the charge in both criminal and departmental proceedings are one and the same, the acquittal of accused in a criminal case cannot be taken as a sole basis for exonerating from the departmental proceedings. In Capt.M. Paul Anthony v. Bharat [3] Gold Mines Ltd. & Anr , it is held as follows:
“34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles there from.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand.”
6. As seen from the material available on record, it is clear that though the charge is one and the same, the witnesses examined in the departmental proceedings are 13 in number, whereas in the criminal prosecution they are 20 in number. The
Disciplinary Authority was relying upon 14 documents in the departmental proceedings, whereas 41 documents were marked and relied upon in the criminal prosecution. The documents relied upon in departmental proceedings are not the same documents marked in criminal case. So, from the above factual aspects, it cannot be said that the evidence adduced in both the cases is one and the same. Therefore, if some evidence is available on record to presume or infer that the Delinquent Officer committed misconduct, then it need not be interfered with. With regard to the charge relating to the death of the deceased, though it is stated by the witnesses examined in the departmental proceedings that it was a case of suicide, that oral evidence cannot be taken into consideration for the simple reason that they are not experts to say whether it is suicidal or homicidal in nature. From the facts of this case, one can safely conclude that it is a clear case of murder. Modi’s Jurisprudence says that in the case of suicide, ordinarily there may not be any fracture of hyoid bone, but in this case there is fracture of hyoid bone, which can be occurred by throttling or strangulation. After committing suicide after pouring kerosene and set fire to herself, a person cannot sustain a fracture of hyoid bone. So, after sustaining the fracture of hyoid bone only, somebody might have poured kerosene and burnt the dead body. Therefore, theory of suicide can be ruled out. It is a case of suicide, burn injuries would not be found on the body. In the facts and circumstances of the case, whether there is any probability for the petitioner/Delinquent Officer to commit the murder of the deceased is the question.
7. It is not in dispute before this Court that the death of the deceased had taken place in the house of the petitioner/Delinquent Officer. Though the witnesses stated that the
petitioner/Delinquent Officer was not present when they reached the house, the circumstances indicate that the petitioner/Delinquent Officer must have been present at the time of the incident. The incident is said to have taken place at 11:00 p.m in the night. In the normal circumstances, the petitioner/Delinquent Officer would have been present in the house unless contrary is proved. It is not the case of the petitioner/Delinquent Officer that he was not present in his house on the fateful day of the incident. The doctor examined the petitioner/Delinquent Officer and found certain burn injuries. They do suggest the presence of the petitioner/ Delinquent Officer at the time of the incident. It is not the case of the petitioner/Delinquent Officer that he sustained burn injuries at a different place and in a different manner. In these two circumstances, a prudent man can in all human probability, come to the conclusion that he was present at the time of the incident. Further, there is evidence of PWs.1 to 4, who have categorically stated that they are suspecting the accused that he would have committed the murder of the deceased as he was having illicit contact with her. That part of the evidence testified by PWs.1 to 4, remained unchallenged. Especially, the evidence of PW.1 would clearly go to show that since the accused had cheated her daughter and enjoyed her telling falsehood that he would marry her, her daughter insisted him for marriage, on which to get rid of her once for all, accused might have killed his daughter and have set fire. This fact has been stated by the witnesses even in the departmental enquiry and the same has not been disputed or denied. It can be said that it is admitted. From the evidence of PWs.1 to 4, it is clear that the petitioner/Delinquent Officer was having extra marital relationship with the deceased, who was working as Typist in the office of
Superintendent of Police, Kadapa.
8. The Enquiry Officer gave a perverse finding stating that because the motive has not been proved, the accused was acquitted by the criminal Court. There cannot be any dispute that motive to commit an offence is not an integral part of the crime. It is taken only an aid in assessment of the criminality. So, this finding has been set aside and the Disciplinary Authority has come to an independent conclusion that it is the case of extra marital relationship. The findings of the Disciplinary Authority are based upon some material on record, and it is not as though there is no evidence at all. The Disciplinary Authority having disagreed with the findings of the Enquiry Officer and upon considering the material evidence adduced before the Enquiry Officer, came to a different conclusion, which cannot be said to be without any basis. There is some evidence. Adequacy or insufficiency of the evidence cannot be a ground to set aside the findings of the Disciplinary Authority.
9. The learned counsel for writ petitioner placed strong reliance on a decision reported in G.M. Tank v. State of Gujarat and Another[4] , wherein it is held as follows:
29. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and
departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
The contention of the learned counsel for the writ petitioner is that after acquittal of the accused in the criminal prosecution, the departmental proceedings were lodged. Therefore, basing on the findings of the criminal prosecution, the accused should have been exonerated from the departmental charges. To answer this, i n R.P.Kapur’s case (first supra) rendered by the Constitution Bench of the Supreme Court, it is held that if it is the honourable acquittal, then only it can be taken note of in the departmental proceedings. In this case, admittedly, it is not the case of honourable acquittal. Therefore in the departmental enquiry, the evidence adduced in the departmental enquiry alone has to be taken into consideration. Therefore, the contention of the learned counsel for the petitioner is wholly untenable and devoid of merits.
10. The learned counsel for the petitioner placed reliance on the decision reported in Sher Bahadur v. Union of India and other s[5] , wherein it is held as follows:
7. It may be observed that the expression "sufficiency of evidence" postulates existence of some
evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the Enquiry Officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Sh.R.A.Vashist, Ex. CVI/N.Rly., New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ex.P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The Enquiry Officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the Enquiry Officer shows no more than his working earlier to his reengagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the Enquiry Officer. The finding of the Enquiry Officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside.
That is the case, where no one was examined in the departmental enquiry. Basing on the documentary evidence, the Enquiry Officer noted as "in view of oral, documentary and circumstantial evidence as adduced in the enquiry". So, this decision has no application to the present facts of the case because in this case, no oral and documentary evidence has been adduced.
11. The learned counsel for the petitioner also placed reliance on a decision reported in K. Bala Rama Raju v. High
Court of Andhra Pradesh, Hyderabad and another[6] , wherein it
is held as follows:
54. That apart, Rule 21 of the CCCA Rules specifies that the Disciplinary Authority should give its own findings on the basis of the evidence adduced during the enquiry and then should come to a conclusion that a major penalty should be imposed on the basis of its findings. If it disagrees with the Enquiry Officer’s findings, notice should be given to the Government Servant. If it does not disagree, no further explanation need be called from the Government Servant. Sine the disciplinary Authority did not give any findings on the basis of the evidence adduced before the Enquiry Officer, the impugned order is liable to be struck down on this count also.
But, the facts of the above decision have no application to the facts of this case.
12. In this case, the Disciplinary Authority in its proceedings has categorically opined as follows:
“It is further proved that the charged officer did have illegal contact with the deceased Kumari B. Saraswathi and that to he is responsible for her death and that to in the residential house of the charged officer. The developing illicit intimacy has been clear from PWs.1 to 4 and PW.10. The charged officer letters to the deceased having illicit relation and promising to marry her itself prove the charge of misconduct. The charged officer failed to cross examined PW.10 to repute the contention of the letters.
When a person dies in one’s residence, then the responsibility of answering the reason for the death of the person will be of the owner. Here the same is with the charged officer. The charged officer is not in a position to answer the reason for the deceased death that to in his residence. Thus, form this it is clear and also coupled with the evidence of PWs.1 to 4 and 10 clearly established his illicit affair with the deceased. Thus itself amounts to misconduct and violation of conduct rules. I hold the charge framed against charged officer Sri M.Prasad Babu, Jr.Asst., District Police Office, Kadapa as proved. I therefore order that he be dismissed from service and the period sent by him under suspension from 21.08.1995 to 20.08.1998 is treated as “Not on Duty”.
The Disciplinary Authority has given the above independent conclusion basing on the evidence of PWs.1 to 4 & 10 and the letters said to have been written by the petitioner/Delinquent Officer to show that he was having an illicit relationship and also promised her to marry and that itself is a misconduct. It had also come to the conclusion that if one person dies in one’s residence, the responsibility of answering for the death of the person is only on the owner, who is the Delinquent Officer, but he is not in a position to answer the reason for the death of the deceased that too in his residence. The Disciplinary Authority after giving reasons and after considering the evidence of PWs.1 to 4 & 10, it came to the conclusion that the Delinquent Officer is having illicit contact with the deceased. So, that finding cannot be said to be based upon no evidence. Therefore, the decision relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case.
13. The learned counsel further relied on a case reported i n A.P.S.R.T.C and others v. T.Venkatapathi[7] , wherein it is held as follows:
4. Challenging the order of the learned single Judge, the RTC has filed this writ appeal. We find no merit in the appeal inspite of the persuasion of the learned Counsel for the appellant-RTC. We have already pointed out as to what charge was framed in the disciplinary enquiry against the petitioner. It has to be noted that the charge was not for (he substantive act of having caused death of the wife. The charge was only that petitioner was involved in a criminal case and the said involvement had resulted in framing of a criminal case for offence under Section 302 of the IPC. The argument of the learned Counsel for the appellant is that in course of the enquiry the petitioner had himself stated that death of his wife was result of his delinquency. It is argued that in view of this admission of the petitioner the disciplinary authority was justified in accepting the same and Court cannot reappreciate the evidence. We fail to understand as to how the statement of petitioner was
relevant in the instant case. The charge was only for involvement in a criminal case resulting in instituting of a criminal case against the petitioner. As soon as the criminal case itself was found to be untenable in Court of law, the very basis of the charge was knocked out. The charge should have been quashed as and when the criminal case ended in acquittal. Involvement in a criminal case which was not tenable in Court of law can hardly amount to any delinquency. It cannot be disputed that the disciplinary authority is entitled to hold disciplinary enquiry on the same charge as is before a Criminal Court because the scope of disciplinary enquiry and criminal trial is different. But where the charge in the disciplinary enquiry is necessarily dependent on the result of the criminal case if the criminal case itself ends in favour of the delinquent, the charge in the disciplinary enquiry will become unsustainable one. In the facts and circumstances of the case having regard to the charge framed against the petitioner and having regard to the result of the criminal case, we have no manner of doubt that the learned single Judge was right in allowing the petitioner's claim.
Even the above decision would clearly go to show that the Disciplinary Authority is entitled to hold disciplinary enquiry on the same charge as is before the criminal Court. The departmental enquiry and criminal trial is entirely different. So, the above decision has no application and will not support the case of the petitioner.
14. In view of the above discussion, we are of the view that the writ petition is devoid of merits and is liable to be dismissed.
15. Accordingly, the writ petition is dismissed. No order as to costs. The miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
______________________ JUSTICE K.C.BHANU
_______
JUSTICE ANIS
Date: 18.03.2014
sr
[1] 1964 AIR 787 = 1964 SCR (5) 431 [2] AIR 2005 SC 4217
[3] (1999) 3 SCC 679
[4] 2006 (4) Supreme 740
3 issues framed by the court
Whether an acquittal without honourable reasons bars a dismissing state servant from departmental punishment in identical facts.
Whether the standard of proof in departmental enquiries differs from criminal prosecutions allowing different outcomes.
Whether evidence sufficient for dismissal survives despite acquittal based on lack of reasonable doubt.
Colour shows how this judgement treated each authority
R.P. Kapur v. Union of IndiaApplied¶11
R.P. Kapur v. Union of India and Another [1]
Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd.Explained¶12
Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Others [2]
Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.Distinguished¶16
Capt.M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. [3]
G.M. Tank v. State of GujaratDistinguished¶24
G.M. Tank v. State of Gujarat and Another [4]
Sher Bahadur v. Union of IndiaDistinguished¶28
Sher Bahadur v. Union of India and others [5]
K. Bala Rama Raju v. High Court of Andhra PradeshDistinguished¶32
K. Bala Rama Raju v. High Court of Andhra Pradesh, Hyderabad and another [6]
A.P.S.R.T.C. and others v. T. VenkatapathiDistinguished¶41
A.P.S.R.T.C and others v. T.Venkatapathi [7]
1 provisions across 1 enactments
M. Prasad Babu
Government Pleader for Services-I
K.C. Bhanu
Anis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
