1. This is an appeal filed by the appellant-plaintiff against the decree passed by the Additional District Judge, Bijapur, in R.A. No. 140 of 1958, confirming that of the Civil Judge, Senior Division, Bijapnr, in Civil Suit No. 316 of 1957.
2. The plaintiff instituted Civil Suit No. 316 of 1957 in the Court of the Civil Judge, Senior Division, Bijapur, for a declaration that the order of dismissal, dated 21 November 1955, passed against him by the District Superintendent of Police, Bijapur, is null and void and that he should be deemed to be still in service. The facts leading to the filling of the suit may shortly be stated as follows.
3. The plaintiff was a head constable and he was posted to Bagewadi on 2 June 1952 where he was serving till his final dismissal from service on 21 November 1955. He had been to Bijapur in the last week of April 1955 for attending the refresher course which was completed on 1 May 1955.
4. A criminal case was filed against him for an offence punishable under Ss. 85(1), 85(2) and 85(3) of the Bombay Prohibition Act on the allegation that on the night of 1 May 1955 he had consumed liquor and that while he was under the influence of the said liquor, he visited the Voddar Lane at Bijapur at about 10-30 p.m., and asked one Settawwa, a voddar woman residing there, to procure a girl for him for an immoral purpose. The case was inquired into by the Second Judicial First class Magistrate, Bijapur, who found him not guilty of the offence and accordingly acquitted him on 15 June 1955. Though he was acquitted, still the department started what is called 'departmental enquiry' against him. The Deputy Superintendent of Police held the enquiry and submitted a report on 28 October 1955 stating that the plaintiff had been found to be drunk and recommending that he may to reduced to the post of a constable for a period of one year by way of punishment. The District Superintendent of Police, to whom this report was submitted, agreed with the conclusion of the Deputy Superintendent of Police that the plaintiff was found drunk. However, he was, not satisfied with the punishment recommended by him. He therefore issued a notice to the plaintiff calling upon him to show cause why he should not be dismissed from service. The plaintiff showed cause. The District Superintendent of Police, however, came to the conclusion that the only punishment that could he meted out to him was one of dismissal from service and accordingly he passed an order of his dismissal from service on 21 November 1955. That order seems to have been ultimately confirmed by the State of Bombay. The plaintiff then filed the present suit, out of which this second appeal arises, on 11 October 1957, for the reliefs as stated before.
5. The defence of the State was that the order of dismissal was justified and that the plaintiff was not entitled to the reliefs claimed by him.
6. The trial Court found that the order of dismissal complained of was neither null and void nor inoperative and therefore dismissed the suit with costs. He preferred an appeal in the Court of the Additional District Judge, Bijapur, and the learned Judge, agreeing with the conclusion reached by the trial Court, dismissed the appeal. It is against this decree that the present second appeal has been preferred.
7. Sri V. S. Malimath, appearing for the appellant, contends that the decree of the appellate Court, confirming that of the trial Court, is wrong and cannot be sustained.
8. The point which has been pressed by the learned counsel for my consideration is that it was most unfair and improper on the part of the disciplinary authorities to start proceedings against the plaintiff in respect of the commission of the very offence of which he had been found not guilty by the Court. He has also contended that this is a case where it could be said that there is no evidence on which the disciplinary authorities could come to the conclusion that the plaintiff was guilty of moral turpitude.
9. The Government Pleader, on the contrary, contends that it was competent for the disciplinary authorities to start proceedings against the plaintiff for holding a departmental enquiry. He has relied upon S. 543 of the Bombay Police Manual, 1950, which permits the department to take action against a delinquent on the termination of the judicial proceedings. No doubt. S. 543 permits such a course and empowers the disciplinary authorities to consider whether the evidence discloses anything touching the moral character of a public servant and if they come to the conclusion that the delinquent's conduct is such that it would not be in the interest of public service to retain him in service, then they are directed to take further action in the matter. Therefore the learned Government Pleader is right in contending that there is no bar for holding a departmental enquiry against the plaintiff.
10. However, the question still remains whether it is proper for the department to hold the plaintiff guilty of the offence of having taken an alcoholic drink when on the self-same evidence the Court has come to the conclusion that the materials placed before it are not sufficient to find the plaintiff guilty of the offence with which he was charged. This is not a case where the plaintiff was given the benefit of doubt but it is a case in which the Court has come to the conclusion that the evidence is not sufficient to bring home the guilt to the accused. The question, therefore, is, even though the department has got a right to hold a departmental enquiry, whether it would be right for it to come to a contrary conclusion and circumvent the decision of the Court. In my opinion, if this is permitted it will shake the confidence of the public in the judiciary and it is neither desirable nor proper for the disciplinary authorities to circumvent the decision of the Court and find the accused guilty when on the very same evidence the Court has found that it is not sufficient to convict the culprit. This Court, in the decision in Ekambaram v. General Manager, M.G.R.T.D. [1961 Mys. L.J. 1066], to which I was a party, has taken the view that it was improper and unfair for the disciplinary authorities to frame the very charge of which the petitioner had been acquitted in the criminal case instituted against him. This Court reached the conclusion that to permit to do so would be to countenance an improper circumvention of an order of acquittal made by a competent criminal Court, unless, as I stated, the Court had given the benefit of the doubt though it was convinced of the moral guilt of the accused and could not convict him on the evidence before it. It may be permissible for the disciplinary authority to take disciplinary action against the delinquent in such a case. But where the Court has found the accused not guilty on the evidence before it, the disciplinary authority should not disregard the decision of the Court and start proceedings and take action against the delinquent.
11. The learned appellate Judge took the view that the evidence in the case could not be said to be sufficient to find the accused guilty. However, he found himself unable to hold that the domestic tribunal, viz., the inquiring authority, could not have taken action against the plaintiff. According to him, this is not a case where it could be said that there is no evidence and, therefore, if, on the evidence, the tribunal had come to the conclusion complained of, then it was not for him to hold that the decision of the tribunal was not correct. Sri Malimath pointed out that the evidence on which the learned appellate Judge seems to have relied is the medical certificate issued by the doctor, according to whom it showed that the plaintiff had taken alcoholic drink. But, on the very medical certificate and the evidence of the doctor, the criminal Court took the view that it was not sufficient to find the plaintiff guilty of the offence. Therefore the appellate Court was not right in stating that the finding of the tribunal is justified by the evidence on record. The evidence was not believed by the criminal Court and it could not be said that the tribunal was justified in saying that in spite of the finding of the criminal Court, it believes the evidence and finds the accused guilty. In my opinion, the proceedings started against the plaintiff are not only improper but are, in the circumstances, calculated to shake the confidence of the public in the judiciary. I hold that this is not a case where it could be said that the finding of the tribunal is justified by the evidence on record. In that view of the matter, the decree passed by the lower appellate Court cannot be sustained and the same is set aside.
12. In the result, this appeal is allowed and the plaintiff's suit is decreed as prayed for with costs of this Court.