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TMI Blog2022 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ain whereas other petitioner Ishaq Khan was working in the same department as Head Constable. It is averred in the petition that as per prosecution story, on 31/5/2016, complainant Vikas Sharma submitted a written complaint in the Lokayukta Office, Indore stating that he is Manager of LNR Global Trading Company, Sendhwa and a letter dated 27/5/2016 was issued by the Custom House to CGST office, Indore through fax served on 30/5/2016 for the purpose of conducting office verification of the complainant's office. In relation to this fax communication, complainant came to CGST office, Indore for the verification where he met Rajendra Kumar Goutam and in turn Goutam called other petitioner Ishaq Khan who told the complainant that said letter had not reached their office. As per prosecution story, the petitioner Rajendra Kumar Goutam told the complainant that he would require a taxi for travelling in order to conduct office verification and in addition, complainant will have to give him Rs. 30,000/- for getting the verification done. Thereafter, the petitioner introduced the complainant to Superintendent of the said department Shri.R.K. Jain who also demanded a taxi and Rs. 30,000/- for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon ground in both the matters that arising out of same trap and incident both the petitioners were subjected to disciplinary proceedings conducted under Rule 14 of CCS (CCA) Rules, 1965. the enquiry officer, after recording the evidence of the parties, prepared a detailed report and exonerated both the petitioners. The reports of enquiry officer were considered by the disciplinary authority and said authority by orders dated 23/9/2020 and 30/10/2019 (Annexure P/2) respectively accepted the enquiry officer's report and exonerated the petitioners on merits. 6. Both the learned counsel for petitioners placed heavy reliance on a recent judgment of Supreme Court in Ashoo Sundarnath Tiwari Vs. Dy.Superintedent of Police (Cr.Appeal No.5/2020) and urged that the Apex Court after considering the previous judgments in the case of P.S.Rajya Vs. State of Bihar (1996) 9 SCC 1 and Radheshyam Kejrival Vs. State of West Bengal & another (2011) 3 SCC 581 opined that where the employee is subjected to departmental proceedings on the same factual foundation and stood exonerated on merits, the criminal prosecution on the same set of facts and circumstances cannot be allowed to continue on the unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as P. Satashivam, J. took a dissenting view. Thus, this view on which reliance is placed, at best can be said to be a view of two judges and not of the entire bench of three judges. 10. The judgment of Ajay Kumar Tyagi (supra) is a larger bench decision wherein question specifically referred was answered and this authoritative pronouncement of Ajay Kumar Tyagi (supra) has not been considered in Ashoo Sundarnath Tiwari (supra). Thus, in view of special bench judgment (5 judges) of this Court reported in 2003(1)MPLJ 513, Jabalpur Bus Operators Association & Ors. vs. State of MP & Ors., the judgment of Ajay Kumar Tyagi (supra) should be treated as a binding precedent which has escaped notice in Ashoo Sundarnath Tiwari (supra) and hence the ratio decidendi of Ajay Kumar Tyagi (supra) must be followed. 11. Pertinently, both the parties addressed the Court on the aspect of ratio decidendi, per incuriam and obiter dicta. Reliance is placed by respondent on (2020) 4 SCC 1 (Dr. Shah Faesal & Ors. vs. Union of India & Anr.) and (2015) 2 SCC 189 (Hyder Consulting (UK) Limited vs. Governor, State of Orissa through Chief Engineer). The contention of Shri Raghuvanshi is that the judgment of P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A three judge bench considered the question referred to it and decided the same in the case of Ajay Kumar Tyagi (supra). The larger bench opined as under:- "15. Now we proceed to consider the question of law referred to us, i.e., whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not! The aforesaid illustrations do not contemplate that on exoneration in the departmental proceeding, the criminal prosecution on the same charge or evidence is to be quashed. However, this Court quashed the prosecution on the peculiar facts of that case, finding that the said case can be brought under more than one head enumerated in the guidelines. 19. Even at the cost of repetition, we hasten to add none of the heads in the case of P.S. Rajya (Supra) is in relation to the effect of exoneration in the departmental proceedings on criminal prosecution on identical charge. The decision in the case of P.S. Rajya (Supra), therefore does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy." (emphasis supplied) 18. In view of aforesaid finding of larger bench in Ajay Kumar Tyagi (supra), we find substantial force in the argument of Shri Raghuvanshi, learned counsel for the respondent that the judgment of P.S. Rajya (supra) is of no assistance to the petitioners and the judgment of Ajay Kumar Tyagi (supra) was not brought to the notice of the Supreme Court while deciding Ashoo Sundarnath Tiwari (supra). 19. As noticed above, in Ashoo Sundarnath Tiwari (supra), the Apex Court considered its another previous judgment in the case of Radheshyam Kejrival (supra). In this case, there was cleavage of opinion amongst the judges. The majority view was taken by Prasad and Bedi, J.J. whereas minority view was taken by P. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an act of public servant can be brought to the purview of Section 7 of P.C. Act. 23. Section 20 of P.C. Act creates legal presumption where public servant accepts any undue advantage. Upon fulfilling certain requirements by the prosecution, a legal presumption is created against the government servant. 24. The heading of section itself suggests that a presumption is created by law makers against public servants accepting gratification other than legal remuneration. 25. The learned counsel for the petitioners contended that complainant did not support the prosecution story while deposing statement in the departmental inquiry. One more witness also turned hostile in the departmental inquiry. Pausing here for a moment, it is noteworthy that in none of the cases cited by the parties, the charge against the delinquent employee/accused persons were continued under the P.C. Act. In Ashoo Sundarnath Tiwari (supra), although the appellant therein was initially charged for committing offence under the P.C. Act, the Special Judge by order dated 27.06.2012 found that no sanction was taken under the P.C. Act against the appellant therein and, therefore, he was discharged from the offences u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra). It is apposite to note the findings in Ashoo Sundarnath Tiwari (supra) which reads thus:- "From our point of view, para 38(vii) is important and if the High Court had bothered to apply his parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated. 8. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.10.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under Penal Code. 9. The appeal is disposed of accordingly." (emphasis supplied) 28. The Clause - vii of para 38 was applied by the Supreme Court to the facts of the case of Ashoo Sundarnath Tiwari (supra). It was clearly held that as per the facts of the case, the chances of conviction in a criminal trial involving the same facts appear to be bleak. On this basis, the interference was made by Supreme Court. 29. The Apex Court in Radheshyam Kejrival (supra) in para 38 opined that the finding in adjudication proceedings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant aspect of the case. It is also a well settled position of law that a judgment cannot be read as a statute and interpreted and applied to fact situations." (emphasis supplied) 32. Similarly, the decision of Supreme Court should be understood by keeping into account the factual context in mind. [See: (2002) 3 SCC 533 (Padma Sundara Rao & Ors. vs. State of T.N. & Ors.), (2002) 3 SCC 496 (Haryana Financial Corpo. & Anr. vs. Jagdamba Oil Mills & Anr.), (2006) 1 SCC 368 (Union of India & Anr. vs. Major Bahadur Singh)] 33. This is equally settled that little difference in facts, an additional fact or a different statute applicable in a given case may make a lot of difference in the precedential value of a decision. [See: Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111] 34. As analyzed above, in the facts and circumstances of this case, we are unable to hold that exoneration of petitioners in the departmental inquiry draws such an iron curtain on the case of prosecution because of which prosecution cannot be permitted to proceed with the criminal case. Hence, no interference is warranted on the FIRs and on the criminal cases by this Court. 35. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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