The writ petitioner herein is aggrieved by the order dated 25.04.2016 passed by the Karnataka State Administrative Tribunal (for short hereinafter referred to as the KSAT) at Annexure-B whereby his application to quash the order dated 25.06.2015 passed by the State Government vide order at Annxeure-A9 as a disciplinary 3measure for the proved charges under Rule 3(1) of the Karnataka Civil Services (Conduct) Rules 1966 was compulsorily retired in accordance with the Rule 8(vi) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short CCA Rules), came to be dismissed. His prayer before this Court is for quashing the orders at Annexure-B and Annexure-A9.
2. Briefly stated, the petitioner was working as a Village Accountant at Revathgaon, Taluk Indi. On a complaint lodged by one Gajanan S. Pujari before lokayukta police on the allegation of demand for bribe of Rs.5,000/- to remove the name at column No.11 in the Revenue documents, the Lokayukta Police registered a case against him. The eventuality followed, after pre- trap mahazar, in the presence of two official witnesses, the Investigating Officer raided the office of the petitioner and conducted trap mahazar. The tainted bribe amount of Rs.5,000/- passed from the 4complainant to the writ petitioner was recovered from his possession, his hand wash proved that he had received the tainted currency notes from the complainant. The Investigating Officer submitted charge sheet to the Court, parallelly, departmental enquiry was initiated. Criminal prosecution ended in his acquittal. The departmental enquiry was entrusted by the Government to the Lokayukta. Enquiry was held by appointing the Additional Registrar, EnquiriesI as the Enquiry Officer. On conclusion, the Enquiry Officer held that the charges levelled against the petitioner are proved. The Upa-Lokayukta-I, Karnataka State thereafter recommended to the Government for compulsory retirement of the petitioner and the said report was accepted vide order at Annexure-A9; the Government as a measure of punishment for the proved charges ordered for his compulsory retirement.
53. Sri Ameet Kumar Deshpande, learned counsel for the petitioner submits that the order impugned suffers from error of jurisdiction; the Enquiry Officer committed serious error in not appreciating the evidence of PWs.1 to 3 to the effect that petitioner had lent loan to PW.3 and the cash of Rs.5,000/- recovered from the petitioner during the trap mahazar was the very same amount. Absolutely, no iota of evidence was placed before the Enquiry Officer to assume that there was either demand or acceptance of bribe. There was nothing to presume misconduct or dereliction of duty. The authorities failed to consider the fact that on the very same charge and same set of evidence, the Special Court had acquitted him from all the charges. The Special Judge had observed that there was no evidence at all for demand and acceptance of bribe amount of Rs.5,000/-. The Honble Upa-Lokayukta-I had no jurisdiction to make recommendation while forwarding the report of Enquiry Officer to the Disciplinary 6Authority. The Disciplinary Authority which ought to have considered the materials independently was influenced by the recommendation of the Honble Upa- Lokayukta. The punishment order of compulsory retirement is an error of law and the same is strikingly disproportionate to the allegations levelled against the petitioner.
4. Learned counsel placing reliance on the judgment of this Court in the case of C.D.Venkataramana Shetty Vs. State of Karnataka and others reported in 2006(4) KCCR 2460, hastens to submit that the Co-ordinate bench of this Court in the above case dealt with identical situation i.e., departmental proceedings and the criminal proceedings were based on similar set of facts and charges and the criminal Court acquitted employee during the pendency of the disciplinary proceedings. In the departmental proceedings, charges were held to be proved against him 7and he was punished by order of dismissal. His application before the KAT challenging the order of dismissal was also rejected. Placing reliance on the judgment of the Apex Court in Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd., and another reported in AIR 1999 SC 1416, this Court held that order of removal passed against the petitioner therein was oppressive, unfair and unjust. The above judgment with all its fours apply to the case on hand. The writ petitioner is aged 38 years having the responsibility of raising his family. Compulsory retirement at this stage is stigmatic and blocks any chance of his survival. Hence, the petition may be allowed.
5. In reply, Sri R.V.Nadagouda, learned Additional Advocate General submits that it is not within the writ jurisdiction of this Court to interfere with the punishment imposed by the Disciplinary Authority and the scope of interference with the findings of the 8Disciplinary Authority is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India [placing reliance on the judgment of the Apex Court in the case of Chief Executive Officer, Krishna District Co-operative Central Bank Ltd., and another Vs. K.Hanumantha Rao and another reported in 2016 (8) Supreme 475 and in the case of Central Industrial Security Force and others Vs. Abrar Ali reported in (2017) 4 SCC 507].
6. Learned Additional Advocate General further submits that the High Court in the matter of disciplinary action while exercising power of juridical review contain from exercising the powers of the appellate authority. The decision on the nature and quantum of punishment is prerogative of the Disciplinary Authority and the High Court can interfere with the penalty only when it is outrageously disproportionate to the nature of the charge proved. He 9further places reliance on the judgment of the Co- ordinate bench of this Court in the case of G.K. Rajanna Vs. Secretary, Food and Civil Supplies Department, Vikasa Soudha and others reported in 2017 (4) AKR 162 wherein it was held that termination of criminal proceedings does not ipso facto absolve delinquent employee from the liability arising out of the disciplinary jurisdiction [placing reliance on the decision in the case of Ajit Kumar Nag Vs. General Manager (PJ) Indian Oil Corpn. Ltd., reported in (2005) 7 SCC 764]. The writ petitioner is not dismissed from service, his compulsory retirement from service commensurate with the allegations of demand and acceptance of bribe proved in the enquiry. Hence, the order of the Government at Annexure-A9 and the order of KSAT at Annexure-B may not be interfered with.
7. In the light of the above rival submissions, we proceed to address the following point: Whether the order of the Disciplinary Authority in holding the petitioner guilty of charges despite a finding by the criminal Court acquitting him of the similar charges on the basis of similar set of evidence was justified?
8. To record a finding in this regard we have keenly gone through the order of the Disciplinary Authority which indicates that on receipt of recommendation of the Uplokayukta with the enquiry report, show cause notice was issued to the writ petitioner calling upon his explanation. Accordingly, he submitted his explanation also. The Disciplinary Authority stressed upon the complaint allegations, the conversation recorded prior to registration of the case, contents of the trap mahazar, the complainant turning hostile to the prosecution thereafter etc., and concluded that the demand for bribe was proved by the recorded conversation. The explanation given by the petitioner about recovery of tainted money from his possession that it was the amount due to him from the uncle of the complainant was disbelieved as artificial. The petitioner during his statement before the Enquiry Officer on 05.03.2012 and 31.05.2013 had not stated that it was the amount due from his uncle, it is only at a later stage he made up a story that the said amount was the loan amount due to him. Thus, the Disciplinary Authority proceeded to punish the petitioner by imposing compulsory retirement thereby, virtually accepted the recommendation of the Upa-Lokayukta.
9. What catches our attention is, the Disciplinary Authority while inferring that it was an improvement on the part of the petitioner to say that the amount was due to him from the uncle of the complainant, perhaps did not go through the evidentiary materials of the Special Case. During the trap mahazar, after the hand wash of the employee turned into pink colour indicating that he had touched the tainted currency notes, he was called upon to give his explanation. The said explanation was marked in the Special Case as Ex.P10 and the said copy is made available for our perusal. In the said explanation, the petitioner has stated that the complainant had met him with his uncle earlier seeking deletion of name in the RTC pertaining to Sy.No.154/1 and were advised to approach the Assistant Commissioners Office and he is the main authority. His uncle owed some money to him and he had demanded on the said occasion for return of his money; enraged by the same, the complainant had threatened him of consequences. Today, he approached under the guise of repaying the money and has lodged complaint to the Lokayukta. He (complainant) got him (petitioner herein) trapped by submitting the application which is unconcerned to him.
10. In view of the above, it is clear to us that the money owed by the uncle of the complainant from the petitioner was not a subsequent story but that was the defence of the petitioner from the moment he was trapped.
11. In that view of the matter, the judgments relied upon by Sri Ameet Kumar Deshpande, learned counsel for the petitioner dissuade us to further find out whether in disregard to the finding of the Special Court in acquitting the petitioner from the same charge on the same set of allegations, the competent authority erred in punishing the petitioner.
12. Of-course, it is in the highest wisdom of the employer to impose appropriate punishment on his employee on a proved charge. The bottom line of the matter is whether the finding of guilt recorded by the Enquiry Officer accepted by the Upa-Lokayukta was legal and justified. Absolutely, there was no evidence before the Enquiry Officer from whatever quarter that the petitioner demanded and accepted gratification to do any official work for the complainant. Of-course, the complainant at the initial stage lodged complaint against him but turned hostile to his own complaint allegations. Mere complaint in the absence of corroboration by its author, inviting inference that the petitioner had demanded and received bribe amount is illogical, skeptical and perverse. Human conduct is interpreted/perceived in accordance with the understanding of the perceiver. The registration of a FIR by itself shall not amount to proof of commission of the offence, that is not in the scheme of either criminal jurisprudence or service law. In the absence of corroborative evidence to the complaint, we are of the firm opinion that charges of demand and receipt of gratification was not proved in the enquiry.
13. The writ petitioner has placed strong reliance on Capt.M.Paul Anthonys case (supra). What fell for consideration of their Lordships in the said case was, the validity and legality of conduct of departmental enquiry and criminal proceedings on same set of facts and charges. Since the facts and evidence in the departmental enquiry as well as criminal proceedings were the same without there being any iota of difference, it was held that the appellant should succeed.
14. In the case of Sher Bahadur Vs. Union of India and others reported in (2002) 7 SCC 142, on facts, the Apex Court observed that the finding of the appellant guilty of charge in a departmental enquiry was without any evidence to link him with the alleged misconduct. Thus, on the ground of insufficiency of evidence, the appeal of the employee was allowed.
15. Reliance placed by the learned Additional Advocate General on the judgment of the Co-ordinate Bench of this Court in the case of G.K. Rajanna (supra) cannot be equated to the questions raised in this petition because in G.K.Rajannas case (supra) the petitioner urged his case on two counts i.e., as per the procedure prescribed in Rule 14-A of the CCA Rules, the Lokayukta or Upa-Lokayukta alone are competent to hold disciplinary enquiry against him, but in his case the power was delegated to the Enquiry Officer and the second limb of his contention was the very holding of the departmental enquiry against him on the same set of charge by the respondent was precluded. But in the case on hand, the challenge is to the finding of guilt recorded by the Disciplinary Authority and the proportionality of the punishment ordered. Hence, for the present, G.K. Rajannas case is of no avail for the State.
16. The judgments of the Apex Court in Chief Executive Officers case and Central Industrial Security Forces case (supra) also are of no relevance at this stage because what fell for consideration in those cases was the scope of judicial review in interfering with the punishment order.
17. Here is the case that a finding of guilt is recorded by the Enquiry Officer though there was no incriminating evidence against the employee. The whole exercise of the Enquiry Officer was based on the complaint averments and the evidence of the shadow witness. As such, the petitioner never disputed the possession of the tainted notes with him. His explanation was that the said amount was due to him from the uncle of the complainant. In this regard, he has examined the person who owed him money and had sent the same through the complainant. Virtually, the finding of the Enquiry Officer was founded on no evidence. As such, the Disciplinary Authority is not statutorily bound either by the finding given by the Enquiry Officer or recommendation of the Lokayukta. It is required to apply its mind independently to the enquiry materials placed before it under Rule 11-A (3) of the CCA Rules before imposing any punishment contemplated by Rule 8 of the CCA Rules.
18. A perusal of the punishment order/Annexure- A9 would impress that the Disciplinary Authority brushed aside the explanation offered by the petitioner about the presence of tainted notes with him and on its own opined that it was a subsequent concoction to wriggle out of the charges. As observed in the preceding paragraph, immediately after his trap, he was called upon by the Investigating Officer to explain the presence of currency notes with him and he had given in writing that it was his own money returned through the complainant by the loanee. Later, he examined the said loanee in the departmental enquiry as his witness also. The finding of Competent Authority since not founded on tangible evidentiary material, is definitely perverse. Hence, the finding of guilt returned against the petitioner about violation of Rule 3(1) of the Karnataka Civil Services (Conduct) Rules, 1966 is not tenable. Consequently, the punishment imposed by way of compulsory retirement would not stand.
19. Accordingly, the petition is allowed and the impugned punishment order at Annexure-A9 is quashed. Consequently, the order passed by the KSAT at Annexure-B will not stand and the respondents are directed to reinstate the petitioner into service with continuity of service without back wages. Sd/- JUDGE Sd/- JUDGE