HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.1461 OF 2007 Dt.23.12.2009 Between: The Director General and Inspector General of Police, Government of Andhra Pradesh, Hyderabad and others ..Petitioners And B.Mallaiah ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.1461 OF 2007 ORDER: (Per Sri Justice V.Eswaraiah) The State questions the order of the Andhra Pradesh Administrative Tribunal in O.A.No.3960 of 2003, dated 31.8.2006, in allowing the O.A. filed by the respondent. The respondent herein filed the said O.A. questioning the order of the Superintendent of Police, Medak District, dated 9.5.2001, in imposing penalty of postponement of increment for one year with effect on future increments and pension and the period of suspension spent by him with effect from 25.4.1997 to 16.10.1997 is treated as not on duty which was confirmed by the appellate authority i.e., Deputy Inspector General of Police, Hyderabad Range, vide order dated 24.2.2003. The said punishment orders were set aside by the Tribunal in the said O.A. following the judgment of the Apex Court in G.M.TANK v. STATE OF GUJARAT AND OTHERS[1]. The Tribunal held that the Department ought not to have proceeded with the enquiry especially after the competent criminal court gave its juridical pronouncement acquitting the delinquent of the charges. The Tribunal further noticed that the complainant at whose instance the criminal case as well as departmental proceedings has been initiated, the evidence of the complainant and other witnesses relied in the departmental proceedings were the same witnesses and the version given in the criminal case and departmental proceedings are at variance and when the criminal case was acquitted on the ground that there was no evidence to connect the accused with the charge under Sections 332 and 504 IPC, the Department ought not to have proceeded with the departmental proceedings. The facts, in brief, are that the respondent while working as Police Constable at Siddipet-I Town Police Station went to the Head Constable, A.Venkaiah on 17.4.1997 at 19.30 hours and questioned him as to why he marked absent in order book on 16.4.1997 at 11.30 a.m., and so saying he gave three fist blows on the face of the Head Constable. Accordingly, the following charge was framed in the departmental proceedings: “Gross mis-conduct and highhanded behaviour in beating HC 625, A.Venkaiah of Chinnakodur PS who attached to Siddipet-I Town on doing duty on 17.4.1997 at 19.30 hours on the plea the HC 625 marked him as absent in Order Book on 16.4.1997 at 11.30 A.M.” On the complaint, criminal case was also registered for the offences under Sections 332 and 504 IPC for assaulting and causing injury on the mouth of the Head Constable. The offence under Section 332 IPC is for voluntarily causing hurt to deter the public servant from his duty. The offence under Section 504 IPC is relating to intentional insult with intent to provoke breach of the peace. The complainant, A.Venkaiah was examined as P.W.1 and Exs.P-2 and P-3 were marked portions of 161 statements. P.Ws.2 and 3 who are said to be the eyewitnesses did not support the case of prosecution. P.W.4 is the Medical Officer, who examined P.W.1 and found injuries on the upper lip (inside of upper lip) of P.W.1. There are variations in the testimony of P.W.1 with that of 161 statements and P.Ws.2 and 3 did not support the case of prosecution and in the absence of corroborated evidence the criminal court acquitted the accused as the prosecution failed to prove the guilt of the accused beyond reasonable doubt. In so far as the departmental proceedings are concerned, P.W.1 categorically stated that when the accused was absent from his duties his absence was entered by him in the order book on 16.4.1997 at 11.30 a.m., and on 17.4.1997 at 7.30 p.m., while he was standing near sentry bunker of the police station, P.C.1550, R.Mallaiah i.e., respondent herein, came to him and questioned him who is he to mark his absent and so saying the respondent gave him three fist blows on his face, due to which he received bleeding injury over lips. The Sub Inspector, Siddipet-I Town P.S., sent him to hospital and his earlier statement recorded by the Circle Inspector of Police, Siddipet-I Town was marked as Ex.P1. The delinquent did not cross-examine P.W.1. P.Ws.2 and 3 have also corroborated the statement of P.W.1. The delinquent did not cross-examine P.Ws.2 and 3. P.W.4, the Sub Inspector of Police, Siddipet-I Town P.S., who received complaint from the complainant, also supported the charge and corroborated the statement of P.W.1 and on receipt of complaint he has registered criminal case and sent the injured to the Government hospital. P.W.5, the Circle Inspector of Police temporarily attached to the said Police Station also corroborated with the deposition of P.W.1. The enquiry officer after considering the statements of P.Ws.1 to 4 recorded finding that the respondent beat the Head Constable for marking his absence in order book and in fact he was absent on that day. Accordingly, the charge was held to be proved for his misconduct and high-handed behaviour in beating the Head Constable while on duty on 17.4.1997 at 7.30 p.m. For the aforesaid charge, which was held proved, the penalty of postponement of increment for one year with effect on future increments and pension was imposed and the period of suspension was treated as not on duty and the same was also confirmed by the appellate authority. Aggrieved by the same, the said O.A. was filed. The question that arises for consideration is whether the department is entitled to proceed with the departmental proceedings when the criminal court acquits the accused. The Tribunal held that the authorities ought not to have proceeded with the enquiry especially when the criminal case ended in acquittal. We are unable to accept the said finding of the Tribunal. However, the Tribunal came to the conclusion by following the decision of the Apex Court in G.M.Tank’s case (supra). In so far as G.M.Tank’s case (supra) is concerned, we have considered the binding nature of the criminal court in the departmental proceedings in W.P.Nos.8000 of 2009 and batch, dated 17.11.2009, wherein it was held at para 22 as hereunder: “So far as the other contentions of the learned counsel for the respondents, particularly, with reference to the decision in G. M. Tank’s case are concerned, the issue involved therein does not really arise in this batch of cases. Even otherwise, it has to be remembered that the said decision relates to a charge against an employee by the ACB regarding that he was having assets disproportionate to his known sources of income and a criminal case was initiated against the government servant. On the basis of aforesaid charge by the ACB, a charge was framed on the same lines in the departmental enquiry proposed against the said government servant. The Supreme Court noticed that in the criminal case the government servant was able to satisfactorily explain the said criminal charge and on the basis of the evidence adduced and the statement of accused/government servant under Section 313 Cr.P.C., the criminal Court had acquitted the accused/government servant of the said charge. The Supreme Court also noticed a marked distinction with regard to Section 5(1)((e) of the Prevention of Corruption Act in the following words: “The provision contained in Section 5(1)(e) is self-contained provision. The first part of the section casts a burden on the prosecution and the second on the accused as stated above. From the words used in clause (e) of Section 5(1) of the PC Act it is implied that the burden is on the accused to account for the sources for the acquisition of disproportionate assets. As in all other criminal cases wherein the accused is charged with an offence, the prosecution is required to discharge the burden of establishing the charge beyond reasonable doubt.” Thus, the decision of the Supreme Court proceed by taking into consideration that burden of explaining or giving the account of such excessive property lies on the accused but once that burden is discharged it is again for the prosecution to prove that the explanation furnished by the accused is not satisfactory. It is in such circumstances that the Supreme Court held that the accused, who is acquitted of the charge of holding disproportionate assets, cannot be proceeded against in the disciplinary enquiry on the self- same charges. The Supreme Court, therefore, made a very categorical distinction in the following words: “…The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case…” Thus, it is in those circumstances that the charge in the departmental proceedings could not be proceeded further in view of the acquittal of the government servant of the charges in criminal proceedings. Without keeping the aforesaid distinction in mind the ratio of the above decision cannot be applied to every case of acquittal of criminal charges, for seeking quashing of the departmental proceedings also.” In the said case, the charge in the criminal case and the disciplinary proceedings are one and the same. However, as held above, the nature of proof of explaining disproportionate assets in the departmental proceedings as well as criminal proceedings is one and the same. In the case of disproportionate assets, the burden lies on the accused to explain that he was not having disproportionate assets and all assets have been explained by him in the criminal proceedings. But, in the criminal case the burden is not on the accused to disprove the guilt, but the burden is on the department to prove the guilt of the accused. In the instant case, charge in the criminal case is under Sections 332 and 504 IPC, whereas the charge in the departmental proceedings is relating to misconduct and misbehaviour, which is different from the charge in the criminal case. The departmental proceedings have been initiated under A.P. Civil Services (CC&A) Rules, 1991 for the misconduct and misbehaviour as is evident from the enquiry report and the nature of evidence adduced in the departmental proceedings shows that the respondent has not cross-examined the complainant and other witnesses and the charge against the respondent was probable on the basis of the evidence adduced in the absence of any rebuttal evidence, whereas in the criminal case the entire burden lies on the prosecution only. However, we are of the opinion that the judgment of the criminal court is not binding either on the departmental proceedings or civil proceedings except the conclusions. The consideration of the judgment of the criminal court is irrelevant in the departmental proceedings. Merely because he was acquitted in a criminal case, it cannot be said that the department is precluded from initiating departmental proceedings. Therefore, we are of the opinion that the Tribunal committed an error in allowing the said O.A., by following G.M.Tank’s case (supra). Learned counsel for the respondent submits that the nature of charge is not serious and therefore a lenient view is required to be taken and the penalty imposed is excessive and disproportionate. We are unable to accept the said contention of the learned counsel for the respondent for the reason that the respondent is working in the disciplined force and he beat the Head Constable for doing his duty by marking absence when in fact the respondent was absent on the day prior to the incident. The charge is very grave and punishment imposed is not disproportionate. For the aforesaid reasons, we are of the opinion that the order of the Tribunal is unsustainable and liable to be set aside. Accordingly, we allowed the writ petition and the order of the Tribunal is set aside. ________________ V.ESWARAIAH, J. _________________________ VILAS V. AFZULPURKAR, J. 23.12.2009 kpr [1] (2006) 5 SCC 446