G.M. Tank vs State Of Gujarat & Anr

CRIMINAL CASE UNDER THE PREVENTION OF CORRUPTION ACT The Director of Anti-Corruption Bureau had entrusted the enquiry to Mr. V.B. Raval, Police Inspector, Anti-Corruption Bureau, Kachchh at Bhuj. Mr. V.B. Raval had enquired into the matter and submitted an Enquiry Report on 8.9.1979. It showed that the total income of the accused out of his salary, interest, rent and insurance policies etc. from April, 1953 to June 1978 was Rs.2,75,328.00. On the other side, the total expenditure, savings and movable and immovable properties of the accused was Rs.5,29,509.14. Thus, the amount of Rs.2,54,180.00 was more than the known source of income of the accused leading to the presumption that the said amount was obtained by him by illegal and corrupt means. On the basis of the said report of Mr. V.B. Raval, his successor (P.I. Mr. H.D. Sharma) lodged the criminal complaint against the appellant in Special Case No. 6 of 1987 before the Special Judge, Kachchh at Bhuj for the alleged offence punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the P.C. Act').

The Special Judge had honourably acquitted the appellant of the offence punishable under Section 5(1)(e) read with Section 5(2) of the Act by holding that the prosecution has failed to prove the charges levelled against the appellant and thus the appellant cannot be held to be guilty of the said offence. This acquittal is by way of complete exoneration and not by giving benefit of doubt which is evident from the judgment of the Special Judge. The Division Bench, however, overlooked this fact and the additional fact that on the basis of very report submitted by Mr. V.B. Raval, the Special Judge had acquitted the appellant.

In this context, it is useful to refer to the judgment of the Special Court. An offence was registered under Section 5(1)(e) read with Section 5(2) of the P.C. Act against the appellant. We have already noticed the charge framed by the criminal Court. The appellant explained before the Court that his father-in-law and brother-in- law are very much rich and at the time of his marriage, they have given ornaments, furniture etc. to his wife but it could not be swallowed by the Anti-Corruption Department and, therefore, a complaint was lodged by the appellant before the police. The plea of the appellant-accused was recorded as Ex.17 . The appellant pleaded not guilty of the charge and claimed to be tried. After the prosecution completed, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 whereby he has given an opportunity to explain each piece of evidence appearing against him in the prosecution evidence. The explanation furnished by the accused in the open Court were recorded and placed along with his original statement, Ex.17. The appellant has stated that he has submitted the written explanation and that should be taken into consideration. He has further submitted that the departmental proceedings were held against him on the allegation that he has acquired the property worth more than his known source of income and that he was serving as an Engineer in the Irrigation Department of the Government of Gujarat and that he has also served as Executive Engineer at Bhuj and that the explanation furnished by the appellant should have been accepted by the Department. The appellant did not examine any defence witnesses. The prosecution adduced oral evidence by examining the wife of the accused, the Investigating Officer, one Deputy Secretary of the Irrigation Department and the Investigating Officer, Mr. Punwar and Mr. V.B. Rawal and relied upon certain documents. As already noticed, the accused has been charged for the offence under Section 5(1)(e) of the P.C. Act which reads as follows:

We shall now scan through the judgments on this issue.

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. 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. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of Rs.700/- p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant has put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February, 1986. On the basis of the same charges and the evidence, the Department passed an order of dismissal on 21.10.1982 whereas the Criminal Court acquitted him on 30.1.2002. However, as the Criminal Court acquitted the appellant on 30.1.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.1.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension . For the foregoing reasons, we set aside the judgment and order dated 28.1.2002 passed by the learned single Judge in Special Civil appln. No. 948 of 1983 as affirmed by the Division Bench in L.P.A. No. 1085 of 2002 and allow this appeal. However, there shall be no order as to costs.