M.P. Thakkar, J.
1. A question of great importance relating to service jurisprudence: as to whether a Government servant against whom a criminal prosecution was instituted, even if he secures acquittal, can yet be proceeded against in a departmental proceeding and dismissed from service on the same oral evidence and on the same material by reaching a conclusion just contrary to the conclusion reached by the Criminal Court by recording a contrary finding has knocked at the door in this petition under Article 226 of the Constitution of India preferred by a police Constable who was acquitted by a Court of law on disbelieving prosecution witnesses and yet on the same oral evidence was dismissed by the State Government.
2. Reliance has been placed on a number of authorities to show that there is no absolute bar to the initiation of departmental proceeding even in cases where a government servant has been acquitted. (Stale of Andhra Pradesh and Ors. v. S. Sree Rama Rao : (1964)IILLJ150SC , Motising Chhagusing Vaghela v. S.D. Mehta 7 G.L.R. 409, and Bhauro Dagadu Thakur v. State of Maharashtra 74 B.L.R. 304). Of course this proposition that acquittal in a Criminal Court does not operate as an absolute bar to a departmental proceeding is now firmly entrenched and needs no reiteration. The heart of the problem, however, lies elsewhere. It needs to be emphasised that none of the aforesaid cases, not one of them supports the much wider proposition canvassed on behalf of the State that on the same material and on re-appreciation of the same oral evidence, without anything more, it is open to a disciplinary authority to take just the contrary view to the judicial view taken by the Court of law and notwithstanding the order of acquittal, to record a finding of guilt against the delinquent and to dismiss him from service. The proposition is an astounding proposition for if it were to be upheld, even the finding of acquittal rendered by the Supreme Court may be disregarded and a disciplinary authority, say, a Deputy Superintendent of Police, may take the view that it is open to him to believe the evidence of witnesses not believed by the competent Court and to act on the same evidence and to hold a person guilty notwithstanding that the Criminal Court came to the conclusion that on the very same evidence the accused was entitled to acquittal and the decision was confirmed by even the High Court and the Supreme Court. If this were accepted as a true position of law, it would wholly undermine respect for the judicial administration. Nay it would even promote disrespect for the institution of law and justice. What then is the true position of law if an acquittal does not operate as an absolute bar to the initiation of a disciplinary proceeding and at the same time the disciplinary authority cannot hold the Government servant concerned guilty on the same evidence and the same material? The true position would appear to lie within the hinterland between the two extremes. A departmental proceeding cannot be initiated as a matter of course or without anything more when the Court of law has acquitted the delinquent. It can be undertaken only if special circumstances are shown to exist. It would not be desirable to exhaustively adumbrate these circumstances. But the illustrative or typical situations can be by and large conceived. For instance-(1) the Court might have acquitted the accused on the ground of failure to obtain the requisite sanction or (2) the acquittal may be grounded on the circumstance that there was no sufficient evidence by reason of the fact that the prosecution witnesses had not remained present and the request made for adjournment to enable the prosecution to examine witnesses was not granted. (3) The charge was defective and trial was vitiated on account of prejudice occasioned to the accused. (4) When the case is that of circumstantial evidence and acquittal is rendered by extending benefit of doubt on the ground that the prosecution has failed to establish its case beyond reasonable doubt. (5) When some of the witnesses who implicate the accused are believed but others are not believed and in view of conflict of evidence acquittal is ordered on the doctrine of benefit of doubt. Reliance is, however, placed on the observation made in Motising's case (7 G.L.R. 409) to the effect that degree of proof in a departmental proceeding is different from the degree of proof required in a criminal case. This observation, however, does not pertain to the realm of appreciation of oral evidence at all. It may have relevance in the context of circumstantial evidence or the totality of evidence. The question of standard of proof or degree of proof is altogether irrelevant in the context of appreciation of oral evidence. There cannot be a different standard or criteria for assessing the credibility of a witness depending on the nature or forum of enquiry. Surely it is not suggested that uninspiring evidence which is considered unworthy of credence by a Court in a criminal case can be acted upon in a departmental proceeding? Veracity and credibility of a witness cannot depend on the nature or forum of a proceeding. It may be stated in parenthesis that the departmental proceeding is quasi-criminal by its very nature). It is, therefore, wrong to read by implication such an overbold proposition into Motising's case (supra). It is not the ratio of the said case that on re-appreciation of the same oral testimony incredible evidence can be branded as credible and reliable by the disciplinary authority in a disciplinary proceeding No such question was directly raised, discussed, or answered as suggested and such is not the ratio of the decision.
2.1 It is only in a few cases of the type indicated hereinabove that one can say that the acquittal is no bar to a departmental enquiry. But when evidence is appreciated and disbelieved, the very same evidence cannot be believed by the disciplinary authority and it is not open to the disciplinary authority to take just the contrary view to the view taken by the impartial objective judicial mind. In fact if the disciplinary authority were to invent its own reasoning and to record a finding of guilt, the order of dismissal passed by the disciplinary authority may well be vulnerable on the ground that the finding is perverse. Though therefore, there is no absolute bar, it does not mean that in every case it is open to the disciplinary authority to record a contrary finding in disregard of the order of acquittal and to dismiss the Government servant on the same facts and same evidence. Realising this position, the Govt of Gujarat has issued two Circulars indicating as to when disciplinary proceedings may be initiated. The guidelines laid down in Circular dated August 1,1966 are as under:
5. If the appeal/revision against the conviction succeeds, and the Government servant is acquitted, a copy of the judgment of the higher Court should be immediately procured and examined with a view to decide:
(i) Whether the acquittal should be challenged in a higher Court, or
(ii) Whether, despite the acquittal, the facts and circumstances of the case are such as to call for a departmental enquiry against the Government servant on the basis of the charges on which he was previously convicted.
If it is decided to take the matter to a higher Court, action to institute proper proceedings should be taken with the least possible delay.
If on the other hand, it is decided that a departmental enquiry should be held order constituting such departmental enquiry should be made.
6. The following clarifications should be borne in mind while taking action according to the procedure indicated above:
For appreciating properly the scope and implications of the words 'on the basis of the charges on which he was previously convicted', occurring in para 5(ii) above, the point to be taken note of is that one identical set of facts and allegations may be sufficient to constitute a criminal offence as well as misconduct not amounting to a criminal offence, but punishable under the B.C.S.C.D. and A Rules or similar rules. If the facts or allegations had come to be examined by a Court of competent jurisdiction and the Court the other hand, the Court has merely expressed a doubt as to the correctness of the allegations, then there is no objection to hold a departmental enquiry on the same allegations, if better proof than what was produced before the Court or was then available is forthcoming. Again, if the court has held that the allegations are proved but do not constitute the Criminal offence, with which the Government servant is charged, then also there would be no objection to hold a departmental enquiry on the basis of the said allegations, if such proved allegations are considered good and sufficient for taking disciplinary action. It is also permissible to hold a departmental enquiry, after the acquittal, in respect of a charge which is not identical with or similar to the charge on the criminal cases, and is not based on any allegations which have been negatived by the criminal court. Furthermore, if the allegations had not been examined by a Court of Law but are considered good and sufficient for departmental/disciplinary action, there is no bar to taking such action and punishing the Government servant with any of the punishments mentioned in the B.C.S.C.D. and Appeal Rules.
By a circular dated 26th July 1968 the matter was reviewed and the following clarification was made:
6. The following clarifications should be borne in mind while taking action according to the procedure indicated above:
For appreciating properly the scope and implications of the words 'on the basis of the charges on which he was previously convicted' occurring in para 5(ii) above, the point to be taken note of is that one identical set of facts and allegations may be sufficient to constitute a Criminal Offence as well as misconduct not amounting to a Criminal Offence, but punishable under Bombay Civil Service (Conduct, Discipline, and Appeal) Rules or similar rules. If the Court has merely expressed, a doubt as to the correctness of the allegations, then there is no objection to hold a departmental enquiry on the same constitute the Criminal Offence, with which the Government Servant is charged, then also there would be no objection to hold a departmental enquiry on the basis of the said allegations, if such proved allegations are considered good and sufficient for taking of disciplinary action. It is also permissible to hold a departmental enquiry, after the acquittal, in respect of a charge which is not identical with or similar to the charge on the Criminal cases, and is not based on any allegations which have been negatived by the Criminal Court. Furthermore, if the allegations had not been examined by a court of law, but the considered good and sufficient for departmental/disciplinary action, there is no bar to taking such action and punishing the Government Servant with any of the punishment mentioned in the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. However, if the facts or allegations had come to be examined by a Court of competent jurisdiction and the Court has given a finding that the allegations are not true, then the consequent acquittal by the Court should generally be respected, even though it is open to the competent authority to proceed against the Govt, servant departmentally on the same charge and taking therein a different view from that taken by the Court.
In the present case the petitioner has on oath stated that 'Before' initiation of disciplinary proceedings the disciplinary authority had not considered whether a prosecution should be initiated notwithstanding the order of acquittal passed by the competent Court in the light of the guidelines embodied in the above-referred circulars. This averment made in paragraph 9(c) of the petition has not been specifically controverted by the other side. The learned Assistant Government Pleader was given a number of opportunities and on the last occasion be was told in plain terms that unless an affidavit is filed to controvert the allegation made by the petitioner the Court shall be obliged to draw an adverse inference and the Court will proceed on the assumption that the competent authority had not followed the procedure prescribed in para 5(ii) of the Circular and had not considered the facts and circumstances of the case in the light of the judgment of the Court and in the light of the aforesaid Government Circular in order to decide whether a departmental proceeding should be initiated notwithstanding the acquittal. Thereupon Mr. Takwani obtained instructions from the department and made a statement at the Bar that the department did not want to file an affidavit to controvert the allegation made by the petitioner and the Court may proceed on such an assumption. Under the circumstances, we must proceed on the footing that the allegation made by the petitioner is true. If such be the position, the impugned order passed by the competent authority against the petitioner cannot be sustained for the very simple reason that it has been passed in total disregard of the Government Circular issued in this behalf. It is not open to the disciplinary authority (it cannot depend on his fancy to follow the guidelines in one case and not to follow the guidelines in the case of others (like the petitioner). This would amount to gross discrimination and would be clearly violative of Article 16 of the Constitution of India. The mandate contained in the Circulars cannot be disregarded with impunity. Before deciding to launch a departmental enquiry in the case of a Government servant who is acquitted by the Criminal Court, the competent authority is under an obligation to apply his mind to the requirements prescribed by the guidelines embodied in the Circulars and to decide whether it is a fit case for making a departure from the rule of respecting the verdict of the Court of Law. It is only when the competent authority is impelled to the conclusion that it is a case for launching of a departmental enquiry notwithstanding the verdict of acquittal on the basis of the guidelines prescribed by the Circular that it is open to him to do so. Not otherwise. Such a genuine satisfaction duly arrived at in conformity with the prescribed guidelines is a sine qua non for the initiation of a departmental proceeding in the case of a Government servant acquitted by a Court of law. In the present case admittedly no such satisfaction was reached before the initiation of the departmental proceeding. The said proceeding is, therefore, violative of the relevant Circulars quoted here in above and is vitiated on that account. It is unnecessary to examine the aspect as to whether the delinquent has a right to be heard before such a satisfaction is recorded by the competent authority for the purposes of this case. I, therefore, refrain from expressing any final opinion on this question though I am tempted to observe that prima fade there appears to be considerable force in the submission that it is necessary to do so.
3. The petition is, therefore, allowed. Impugned order at Annexure 'E' as confirmed by order at Annexure 'F' as confirmed by order at Annexure 'G' is quashed and set aside. It is declared that the petitioner continues in service. Rule is made absolute with costs.