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the exoneration in the departmental proceeding= It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.- the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. 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.

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1334 OF 2012
(@ SLP(Crl.) No. 1383 of 2010)
STATE OF N.C.T. OF DELHI … APPELLANT

VERSUS
AJAY KUMAR TYAGI …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
Ajay Kumar Tyagi, at the relevant time, was working as a Junior
Engineer with the Delhi Jal Board. Surinder Singh, a Constable with the
Delhi Police applied to the Delhi Jal Board, hereinafter referred to as
‘the Board’, for water connection in the name of his wife Sheela Devi. The
application for grant of water connection was cleared by the Assistant
Engineer and the file was sent to said Ajay Kumar Tyagi (hereinafter
refered to as ‘the accused’).
Constable Surinder Singh lodged a report with the Anti Corruption
Branch alleging that the accused demanded bribe of Rs. 2000/- for clearing
the file and a sum of Rs. 1000/- was to be paid initially and the balance
amount after the clearance of file. On the basis of the information
lodged, a trap was laid and, according to the prosecution, the accused
demanded and accepted the bribe of Rs. 1000/-. This led to registration of
the first information report under Section 7/13 of the Prevention of
Corruption Act.

After investigation, charge-sheet was submitted on 19th of September,
2002 and the accused was put on trial. Charges were framed by the Special
Judge.
In respect of the same incident, a departmental proceeding was also
initiated against the accused and the Article of Charges was served on him.
In the departmental proceeding it was alleged that the accused “being a
public servant in discharge of his official duties by corrupt and illegal
means or otherwise, abusing his official position, demanded, accepted and
obtained Rs. 1000/- (One Thousand) as illegal gratification other than
legal remuneration from Sh. Surinder Singh S/o Shri Ram Bhajan r/o H.No.
432-A, Gali No. 2, 80 Sq. Yards, Village Mandoli, Delhi in consideration
for giving a report on the water connection”.

The enquiry officer conducted the departmental inquiry and submitted
its report. The inquiry officer observed that “the evidence on record does
not substantiate the charge of demand and acceptance of bribe” by the
accused and, accordingly, recorded the finding that the charge against the
accused has not been proved due to lack of evidence on record.

It seems that no action was taken on the report of the inquiry
officer due to pendency of the criminal case pending against the accused.
Accordingly, he filed writ petition before the Delhi High Court inter alia
praying for conclusion of the departmental proceeding. The submission made
by the accused did not find favour with the High Court and by the judgment
and order dated 2nd of February, 2007, it dismissed the writ petition inter
alia observing as follows:

“Hence, I do not find the action of the respondents in keeping
the departmental proceedings in abeyance to be in any manner
unjustified specially when the petitioner inspite of the
pendency of the criminal case against him has not been suspended
from service and is continuing to perform his duties.”

 
Thereafter, the accused resorted to another remedy under Section 482
of the Code of Criminal Procedure and prayed for quashing of the first
information report lodged against him under Section 7/13 of the Prevention
of Corruption Act. The prayer for quashing of the first information report
was founded on the ground that since the accused has been exonerated in the
disciplinary proceeding by a detailed speaking order, the first information
report deserves to be quashed on that ground alone. Reliance was placed on
a decision of this Court in the case of P.S. Rajya v. State of Bihar, 1996
(9) SCC 1.
The High Court referred to the allegation made in the criminal case
and the departmental proceeding and observed that “there is not even an
iota of doubt that the charges framed in both the proceedings are the
same”. Accordingly, it quashed the criminal proceedings and while doing
so, observed as follows :

“Considering the foregoing discussion, I am of the view that if
the departmental proceedings end in a finding in favour of the
accused in respect of allegations which form basis for criminal
proceedings then departmental adjudication will remove very
basis of criminal proceedings & in such situation continuance of
criminal proceedings will be a futile exercise & an abuse of the
process of Court. I find that the charge in the present case is
based on the same allegations which were under consideration
before the Enquiry Officer of the Jal Board. If the charge
could not be proved in the departmental proceedings where the
standard of proof was much lower it is very unlikely that the
same charge could be proved in a criminal trial where the
standard of proof is quite stringent comparatively. Thus, the
prosecution of the petitioner in criminal proceedings would only
result in his harassment.”

 
Aggrieved by the same, the State has preferred this special leave
petition.

Leave granted.

It is relevant here to state that after quashing of the criminal
proceeding by the High Court, the disciplinary authority, by order dated
25th of March, 2009, exonerated the accused of the charges “subject to the
condition that if any appeal is filed by the State and an order contrary to
the impugned High Court order dated 25.08.2008 is received, the matter will
be re-opened”. The disciplinary authority had referred to the order of the
High Court quashing the criminal prosecution and exonerated the accused on
that ground alone.

When the matter came up for consideration before a Bench of this
Court on 13th of September, 2010, finding conflict between two-Judge Bench
decisions of this Court, it referred the matter for consideration by a
larger Bench and, while doing so, observed as follows:
“The facts of the case are that the respondent has been
accused of taking bribe and was caught in a trap case. We are
not going into the merits of the dispute. However, it seems
that there are two conflicting judgments of two Judge Benches of
this Court; (i) P.S. Rajya vs. State of Bihar reported in (1996)
9 SCC 1, in which a two Judge Bench held that if a person is
exonerated in a departmental proceeding, no criminal proceedings
can be launched or may continue against him on the same subject
matter, (ii) Kishan Singh Through Lrs. Vs. Gurpal Singh & Others
2010 (8) SCALE 205, where another two Judge Bench has taken a
contrary view. We are inclined to agree with the latter view
since a crime is an offence against the State. A criminal case
is tried by a Judge who is trained in law, while departmental
proceeding is usually held by an officer of the department who
may be untrained in law. However, we are not expressing any
final opinion in the matter.
In view of these conflicting judgments, we are of the
opinion that the matter has to be considered by a larger Bench.”

 

This is how the matter is before us.
Mr. J.S. Attry, Sr. Advocate appearing on behalf of the appellant
submits that the very assumption, on which the High Court had proceeded,
that the accused has been exonerated in the disciplinary proceeding is
unfounded on facts. He points out that the inquiry officer had submitted
its finding and found the allegation to have not been proved but that would
not mean that the accused has been exonerated in the disciplinary
proceeding also. He points out that the report of the inquiry officer was
yet to be considered and nothing prevented the disciplinary authority to
disagree with the finding of the inquiry officer and punish the accused
after following the due process of law. On this ground alone the order of
the High Court is fit to be quashed, submits Mr. Attry.

Mr. Chetan Sharma, Sr. Advocate representing the respondent-accused,
however, submits that at such a distance of time, the disciplinary
authority is precluded from passing any order and the disciplinary
proceeding shall be deemed to have been ended in exoneration.

We have bestowed our consideration to the rival submissions and we
find substance in the submission of Mr. Attry. True it is that the inquiry
officer has submitted its report and found the allegation to have not been
proved but, that is not the end of the matter. It is well settled that the
disciplinary authority is not bound by the conclusion of the inquiry
officer and, after giving a tentative reason for disagreement and providing
the delinquent employee an opportunity of hearing, can differ with the
conclusion and record a finding of guilt and punish the delinquent
employee. In the present case, before the said stage reached, the accused
filed an application under Section 482 of the Code of Criminal Procedure
for terminating the criminal proceedings and the High Court fell into error
in quashing the said proceedings on the premise that the accused has been
exonerated in the departmental proceeding. As the order of the High Court
is founded on an erroneous premise, the same cannot be allowed to stand.
It is worthwhile to mention here that in the writ petition filed by
the accused himself seeking conclusion of the departmental proceeding, the
High Court had observed that keeping the departmental proceeding in
abeyance till the pendency of the criminal case is not unjustified, and
that order has attained finality. Further, the order dated 25th of March,
2009 passed by the disciplinary authority exonerating the accused from the
charges, is founded on the ground of quashing of the criminal proceedings
by the High Court and in that, it has clearly been observed that if an
order contrary to the High Court order is received, the matter will be re-
opened.
As we have taken the view that the impugned order of the High Court
suffers from an apparent illegality, the same deserves to be set aside so
also the order of the disciplinary authority founded on that and, in the
light of the direction of the High Court, the departmental proceeding has
to be reopened and kept in abeyance till the conclusion of the criminal
case.
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!

Mr. Sharma, with vehemence, points out that this question has been
settled and set at rest by this Court in the case of P.S. Rajya (Supra),
which has held the field since 1996, hence at such a distance of time, it
is inexpedient to reconsider its ratio and upset the same. Mr. Attry,
however, submits that this Court in the aforesaid case has nowhere held
that exoneration in the departmental proceeding would ipso facto terminate
the criminal proceeding.

We have given our anxious consideration to the submissions advanced
and in order to decipher the true ratio of the case, we have read the
judgment relied on very closely. In this case, the allegations against the
delinquent employee in the departmental proceeding and criminal case were
one and the same, that is, possessing assets disproportionate to the known
sources of income. The Central Bureau of Investigation, the prosecutor to
assess the value of the assets relied on the valuation report given later
on. This Court on fact found that “the value given as basis for the charge-
sheet is not value given in the report subsequently given by the valuer.”
This would be evident from the following passage from paragraph 15 from the
judgment:

“15…….According to the learned counsel the Central Vigilance
Commission has dealt with this aspect in its report elaborately
and ultimately came to a conclusion that the subsequent
valuation reports on which CBI placed reliance are of doubtful
nature. The same view was taken by the Union Public Service
Commission. Even otherwise the value given as basis for the
charge-sheet is not the value given in the report subsequently
given by the valuers.”

 

Thereafter, this Court referred to its earlier decision in the case
of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and reproduced
the illustrations laid down for exercise of extraordinary power under
Article 226 of the Constitution of India or the inherent powers under
Section 482 of the Code of Criminal Procedure for quashing the criminal
prosecution. The categories of cases by way of illustrations, wherein power
could be exercised either to prevent the abuse of the process of the court
or otherwise to secure the ends of justice read as follows:
“(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the Act concerned, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”
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. This would be
evident from paragraphs 21 and 22 of the judgment, which read as follows:
“21. The present case can be brought under more than one head
given above without any difficulty.
22. The above discussion is sufficient to allow this appeal on
the facts of this case.”
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 be quashed. It is well settled that the decision is
an authority for what it actually decides and not what flows from it. Mere
fact that in P.S. Rajya (Supra), this Court quashed the prosecution when
the accused was exonerated in the departmental proceeding would not mean
that it was quashed on that ground. This would be evident from paragraph
23 of the judgment, which reads as follows:
“23. Even though all these facts including the Report of
the Central Vigilance Commission were brought to the notice of
the High Court, unfortunately, the High Court took a view that
the issues raised had to be gone into in the final proceedings
and the Report of the Central Vigilance Commission, exonerating
the appellant of the same charge in departmental proceedings
would not conclude the criminal case against the appellant. We
have already held that for the reasons given, on the peculiar
facts of this case, the criminal proceedings initiated against
the appellant cannot be pursued. Therefore, we do not agree with
the view taken by the High Court as stated above. These are the
reasons for our order dated 27-3-1996 for allowing the appeal
and quashing the impugned criminal proceedings and giving
consequential reliefs.”
(underlining ours)
From the reading of the aforesaid passage of the judgment it is
evident that the prosecution was not terminated on the ground of
exoneration in the departmental proceeding but, on its peculiar facts.
It is worth mentioning that decision in P.S. Rajya (supra) came up
for consideration before a two-Judge Bench of this Court earlier, in the
case of State v. M. Krishna Mohan, (2007) 14 SCC 667. While answering an
identical question i.e. whether a person exonerated in the departmental
enquiry would be entitled to acquittal in the criminal proceeding on that
ground alone, this Court came to the conclusion that exoneration in
departmental proceeding ipso fact would not lead to the acquittal of the
accused in the criminal trial. This Court observed emphatically that
decision in P.S. Rajya (supra) was rendered on peculiar facts obtaining
therein. It is apt to reproduce paragraphs 32 and 33 of the said judgment
in this connection:
“32. Mr Nageswara Rao relied upon a decision of this Court in
P.S. Rajya v. State of Bihar [1996 (9) SCC 1]. The fact
situation obtaining therein was absolutely different. In that
case, in the vigilance report, the delinquent officer was shown
to be innocent. It was at that juncture, an application for
quashing of the proceedings was filed before the High Court
under Section 482 of the Code of Criminal Procedure which was
allowed relying on State of Haryana v. Bhajan Lal [1992 Supp.
(1) SCC 335] holding: (P.S. Rajya case [1996 (9) SCC 1, SCC p.9,
para 23)]
“23. Even though all these facts including the report of
the Central Vigilance Commission were brought to the notice
of the High Court, unfortunately, the High Court took a view
that the issues raised had to be gone into in the final
proceedings and the report of the Central Vigilance
Commission, exonerating the appellant of the same charge in
departmental proceedings would not conclude the criminal case
against the appellant. We have already held that for the
reasons given, on the peculiar facts of this case, the
criminal proceedings initiated against the appellant cannot
be pursued.”

 
Ultimately this Court concluded as follows:
“33. The said decision was, therefore, rendered on the facts
obtaining therein and cannot be said to be an authority for the
proposition that exoneration in departmental proceeding ipso
facto would lead to a judgment of acquittal in a criminal
trial.”
This point also fell for consideration before this Court in the case of
Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225, where
quashing was sought for on two grounds and one of the grounds urged was
that the accused having been exonerated of the charge in the departmental
proceeding, the prosecution is fit to be quashed. Said submission did not
find favour with this Court and it rejected the same in the following
words:
“6. The second ground of departmental exoneration by the
disciplinary authority is also not relevant. What is necessary
and material is whether the facts collected during investigation
would constitute the offence for which the sanction has been
sought for.”
Decision of this Court in the case of Central Bureau of Investigation
v. V.K. Bhutiani, (2009) 10 SCC 674, also throws light on the question
involved. In the said case, the accused against whom the criminal
proceeding and the departmental proceeding were going on, was exonerated in
the departmental proceeding by the Central Vigilance Commission. The
accused challenged his prosecution before the High Court relying on the
decision of this Court in the case of P.S. Rajya (supra) and the High Court
quashed the prosecution. On a challenge by the Central Bureau of
Investigation, the decision was reversed and after relying on the decision
in the case of M. Krishna Mohan (supra), this Court came to the conclusion
that the quashing of the prosecution was illegal and while doing so
observed as follows:
“In our opinion, the reliance of the High Court on the
ruling of P.S. Rajya was totally uncalled for as the factual
situation in that case was entirely different than the one
prevalent here in this case.”

Therefore, in our opinion, the High court quashed the prosecution on
total misreading of the judgment in the case of P.S. Rajya (Supra). In
fact, there are precedents, to which we have referred to above speak
eloquently a contrary view i.e. exoneration in departmental proceeding ipso
facto would not lead to exoneration or acquittal in a criminal case. On
principle also, this view commends us. It is well settled that the
standard of proof in department proceeding is lower than that of criminal
prosecution. It is equally well settled that the departmental proceeding
or for that matter criminal cases have to be decided only on the basis of
evidence adduced therein. Truthfulness of the evidence in the
criminal case can be judged only after the evidence is adduced therein and
the criminal case can not be rejected on the basis of the evidence in the
departmental proceeding or the report of the Inquiry Officer based on those
evidence.
We are, therefore, of the opinion that the exoneration in the
departmental proceeding ipso facto would not result into the quashing of
the criminal prosecution. 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.
For the reasons stated above, the order of the High Court is
unsustainable, both on facts and law.

Accused shall appear before the trial court within four weeks from
today. As the criminal proceeding is pending since long, the learned Judge
in sesin of the trial shall make endeavour to dispose off the same
expeditiously and avoid unnecessary and uncalled for adjournments.
In the result, the appeal is allowed, the order of the High Court is
set aside with the direction aforesaid.
…..………….………………………………….J.
(R.M. LODHA)

..…. ………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)

…..………….………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi
August 31, 2012

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