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TMI Blog2006 (5) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a report and on the basis of the said report, a charge sheet dated 20.2.1979 was issued alleging that the appellant had illegally accumulated the excess income by way of gratification. The appellant submitted his explanation on 15.5.1979 and denied the allegations as well as charges made in the charge sheet. A departmental enquiry was ordered and as per Departmental Enquiry Reported dated 31.3.1980, the appellant was found guilty of the charge. The respondent by order dated 21.10.1982 passed an order of dismissal from the service as punishment. Against the said 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, insuran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the respondents have not challenged the order passed by the Special Judge acquitting the appellant before any forum and that, therefore, the order passed by the Special Judge has reached its finality and has become final and conclusive. 7. We heard Mr. L. Nageshwara Rao, learned senior counsel, assisted by Mr. Sanjay Kapur, learned counsel, appearing for the appellant and Mr. Maulik Nanavati, learned counsel, appearing for the respondents. We have been taken through the proceedings in the departmental enquiry, enquiry report submitted and the orders 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otions. In support of his contention, Mr. L.N. Rao relied on the following judgments: 1. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. , (1999) 3 SCC 679 (two Judges) 2. Union of India vs. Jaipal Singh, (2004) 1 SCC 121 (two Judges) 3. Commissioner of Police, New Delhi vs. Narender Singh, 2006(4) Scale 161= 2006(4)JT 328 (two Judges) 4. R.P. Kapur vs. Union of India & Anr. AIR 1964 SC 787 (five Judges) 5. Corporation of the City of Nagpur, Civil Lines, Nagpur & anr. Vs. V. Ramachandra G. Modak & Ors., AIR 1984 SC 626 (three Judges) 9. Mr. Maulick Nanavati, learned counsel, 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice? 2. Whether acquittal, absolutely on merits amounting to clear exoneration of the appellant by the Special Court under the P.C. Act does ipso facto absolve the appellant from the liability under the disciplinary jurisdiction when the charges leveled against the appellant in the departmental proceedings and the criminal proceedings are grounded on the same set of facts, charges, circumstances and evidence. 11. We have given our anxious and thoughtful consideration to the rival submissions made by the counsel on either side. We have also carefully considered the judgments impugned in this case and also of the 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested witnesses as they are very close relatives and in-laws of the appellant and, therefore, the Enquiry Officer has rightly examined the version of those witnesses with care and caution and has rightly not accepted the same as unimpeachable evidence in the absence of concrete documentary evidence. In the result, the learned single Judge rejected the writ petition and on the same principle, the learned Judges of the Division Bench have also affirmed the view expressed by the learned single Judge. 12. In this context, it is useful to refer to the judgment of the Special Court. An offence was registered under Section 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law was extensively rich having huge business, two hotels at Rajkot and huge property and he has four brothers-in-law who are very affectionate towards the wife of the accused and, therefore, had gifted cash money as well as articles to her during the course of their married life. Elaborate discussion was made by the Special Court. The Court held that the burden of explaining or giving the account of such excess property lies on the accused but once that burden is discharged, again the prosecution has to prove that the explanation furnished by him is not satisfactory. The provisions contained in Section 5(1)(e) is self-contained provision. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged disproportionate property though is satisfactorily explained, is wrongly not accepted by the Investigating Officer and on the contrary the evidence on record categorically shows that the accused has given satisfactory account of his alleged disproportionate property. In this view of the matter, the learned advocate, Mr. Antani, has rightly argued that there is no evidence to show that the accused had misused his office or position and that there is ample evidence to show that the accused had satisfactorily accounted for the alleged disproportionate property. He has also rightly argued that the Court should accept the say of 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer and the enquiry 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." 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. The Bench further held as follows: " ..It is to be noted that in that case the finding by the Tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion de hors the findings of the criminal court. But at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t'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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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