IMPORTANT POINTS
Even if the disciplinary action has been initiated based on the very same set of facts, the distinction which is usually drawn between departmental proceeding and criminal case is on the basis of appreciation of evidence and burden of proof. In the case on hand, memo of charges was not issued while the criminal case was pending and it came to be issued only after the acquittal in the criminal case. The question is whether initiation of a disciplinary proceeding after acquittal in a criminal case is bad in law. Apparently, there is no legal bar in the disciplinary authority proceeding with the disciplinary action after acquittal of the delinquent officer by a criminal Court.

JUDGMENT :

Shaffique, J.

The State and its officers have preferred this original petition challenging order dated 23/1/2020 in OA No.2057/2018. By the impugned order, the Tribunal has set aside the disciplinary proceedings initiated by the petitioners against the respondent herein.

2. The short facts of the case would disclose that the respondent herein while working as Circle Inspector of Police, Vellarada was suspended from service by order dated 28/2/2006 as he was involved in a case relating to receipt of illegal gratification. The case originated on account of a trap at the instance of the State Vigilance Department. Final report was filed by the Vigilance before the Enquiry Commissioner and Special Judge, Thiruvananthapuram and after conducting trial, the delinquent officer was dismissed from service w.e.f. 4/10/2011. While the vigilance case was pending, the delinquent officer was reinstated in service on 19/8/2007 and he was promoted as Dy.S.P. as per order dated 8/7/2009. After the judgment dated 20/4/2011 of the Enquiry Commissioner and Special Judge, the delinquent officer was suspended from service as per order dated 4/10/2011 and later he was dismissed as per order dated 20/4/2017 w.e.f. 4/10/2011. Challenging the judgment of the Enquiry Commissioner and Special Judge, the officer filed Crl.Appeal No.746/2011 before the High Court and by judgment dated 22/8/2017, High Court allowed his appeal and he was acquitted from all the charges. Pursuant to the said judgment, he was reinstated in service on 27/3/2018. However by order dated 14/9/2018, the disciplinary authority directed disciplinary action to be taken against the respondent. According to the delinquent officer, the incident had taken place 12 years ago and the present enquiry had been ordered to harass him. He contended that his probation has not been declared and he was due to be promoted as Superintendent of Police. The respondent therefore sought for quashing Annexure A14 order by which disciplinary action had been initiated against him.

3. The petitioners herein, State and its officers, supported their stand in the matter inter alia contending that there is no bar in taking departmental proceedings and criminal action simultaneously. In so far as in the present case, the delinquent officer was dismissed from service on a finding by the Enquiry Commissioner and Special Judge, no departmental action was contemplated. However, when he is acquitted from the charges levelled against him by an order passed by the High Court, there is no legal bar in proceeding with the disciplinary action.

4. The Tribunal passed the impugned order after arriving at a conclusion that the High Court has acquitted the delinquent officer from the charges levelled against him in the absence of sufficient evidence. Further, the grounds mentioned in Annexure A14 order that the respondent had committed grave irresponsibility, indiscipline and abused his official position has not been indicated. It is also found that the materials produced in the OA do not show that there are any facts or circumstances other than those considered by the trial Court and the High Court on which disciplinary action had been taken against the applicant. It is also found that on account of passage of time of more than 12 years, no effective enquiry could be conducted in the matter.

5. While impugning the aforesaid order, learned Government Pleader placed reliance on several judgments of the Apex Court and this Court which are as under:-

(i) Kusheshwar Dubey v. M/s Bharat Coking Coal Ltd. & Others [(1988) 4 SCC 319].

(ii) State of Rajasthan v. B.K. Meena & Others [(1996) 6 SCC 417]

(iii) Capt.M. Paul Anthony v. Bharat Gold Mines Ltd. & Another [(1999) 3 SCC 679]

(iv) Vijayan v. Syndicate Bank (2001 (3) KLT 702)

(v) Secretary, Ministry of Home Affairs v. Tahir Ali Khan Tyagi (JT 2002 Suppl 1 SC 520)

(vi) Union of India & Others v. Sitaram Mishra & Another (Civil Appeal No.6183/2010)

(vii) Divisional Controller, Karnataka