TaxTMI 
TaxTMI 
2020 (12) TMI 1425
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....to corrupt and illegal practices and by abuse and misuse of his official position. The details of these properties are given as under:- (a) A double storey fully furnished palatial house (Ashiana) at Gandhi Nagar Extension, Jammu; (b) Business activity in the name and style of Electroequip Pvt. Ltd. Located at 38/4 Block G. 3rd Cross Road Bargavi, Platinum Sahakar Nagar, Bangalore, Karnataka; (c) Business in the name and style of S.A Automation and Communication located at 38/7 Block-G IIIrd Cross Road Bargavi Platinum Sahakar Nagar Bangalore Karnataka; (d) Flat No. PH07, in Fortuna Sahakar Nagar, near Dominos Pizza Bangalore, Karnataka; (e) Flat in Bhartiya City on the Tannissantra Main Road Bangalore, Karnataka next to Shoba City Bangalore, Karnataka; (f) Business Unit in the name and style of S.A Automation in Plot No. 805, Sector No. 82, JLPL Industrial Area Sahibzada Ajit Singh Nagar, Mohali, Punjab; (g) Flat bearing No. 30 in Employees Co-operative House Building Society Section 68 Sahibzada Nagar Mohali Punjab; (h) Business unit in the name and style of M/S Janta Cement Tiles, Bricks and Block Factory in....
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....of the petitioner to the post of Chief Engineer, which is purely a service matter. 5. I have heard learned counsel for the parties and perused the material on record. 6. The primary ground urged by learned counsel for the petitioner is that the subject matter of the impugned F.I.R was also the subject matter of departmental enquiry conducted by Chief Engineer, PHE Jammu and the petitioner has been exonerated of the charges after holding a detailed enquiry. On this ground, it is urged that criminal proceedings against the petitioner cannot go on because the standard of proof in criminal proceedings is higher than the standard of proof in departmental inquiry. Thus, if the charges could not be proved on the touchstone of preponderance of probability, there is no chance of proof of the said charges in a proceeding, where the same are required to be proved beyond reasonable doubt. To support his contention, the learned counsel has relied upon the judgment of the Supreme Court in the case of P.S Rajya Vs. State of Bihar; (1996) 9 SCC 1 as also the judgment passed by the Supreme Court in the case titled Ashoo Surendra Nath Tiwari Vs. The Deputy Superintendent of Police, EOW, CBI an....
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....the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground. This would be evident from paragraph 23 of the judgment, which reads as follows: "23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." ....
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.... the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy". 13. Learned counsel for the petitioner has vehemently contended that the judgment of the Supreme Court in Ashoo Surendranath Tiwari's case being later in point of time would hold the field. In the said case, the Supreme Court has, after relying upon the ratio laid down in P.S Rajya's case as also the ratio laid down by the Supreme Court in Radheshyam Kejriwal Vs. State of West Bengal; (2011) 3 SCC 581, culled out the following principles:- "38. ....
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....ations in the adjudication proceedings as well as in the proceedings for prosecution are identical and the exoneration of the person concerned in the adjudication proceedings is on merits, the trial of the person concerned shall be an abuse of the process of the Court. It is to be noted here that in Ashoo Surendranath Tiwari's case(supra), the judgment delivered by the Supreme Court in State Vs. Ajay Kumar Tyagi (supra) has neither been referred nor considered by the Court. Both the aforesaid judgments have been delivered by Benches of co-equal strength. 16. The question arises as to what is the course open to this Court in this situation. A five Judge Bench of the Supreme Court has, in the case of Atma Ram Vs. State of Punjab, AIR 1959 SC 519, observed that when confronted with two contrary decisions of equal authorities, the subordinate Court is not necessarily obliged to follow the later, but would have to perform the embarrassing task of preferring one view to another. A Full Bench of the Bombay High Court in the case of Kamleshwarkumar Ishwardas Patel Vs. Union of India and ors.; 1994 (2) Mh.Lj. 1669, while considering the issue regarding the course to be followed by the Hi....
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....cision of this Court in Sovachand Mulchand v. Collector, Central Excise, AIR 1968 Cal 174 at 186, para 56. To the same effect is the decision of a Division Bench of the Mysore High Court in New Krishna Bhavan v. Commercial-tax Officer, AIR 1961 Mys 3 at p. 7 and the decision of the Division Bench of the Bombay High Court in Vasant v. Dikkaya, AIR 1980 Bom. 341. A Full Bench of the Allahabad High Court in U.P. State Road Transport Corpn. v. Trade Transport Tribunal, AIR 1977 All 1 has also ruled to that effect. The view appears to be that in case of conflicting decisions by Benches of matching authority, the law is the latest pronouncement made by the latest Bench and the old law shall change yielding place to new." "The other view is that in such a case the High Court is not necessarily bound to follow the one which is later in point of time, but may follow the one which, in its view, is better in point of law. Sandhawalia, C.J. in the Full Bench decision of the Punjab & Haryana High Court in Indo-Swiss Time Ltd. v. Umarao, AIR 1981 P&H 213 took this view with the concurrence of the other two learned Judges, though as to the actual decision, the other learned Judges differ....
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....xxxxxxxxxxxxxxxxxxxxxxxxxxxx ".... We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court in Atma Ram (supra), the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter, of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction." 17. From the aforesaid enunciation of the law relating to the application of two apparently contrary decisions of the Supreme Court, it is clear that the High Court has to firstly consider the facts and circumstances involved in the decisions rendered by the Supreme Court and then decide as to which of the two decisions is applicable to the facts of the case which is subject matter of adjudication before the....
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....ing upon the report of the enquiry officer, i.e. Chief Engineer PHE Jammu who, after holding an inquiry, has come to the conclusion that the allegations of acquisition of disproportionate assets against the petitioner are baseless. It is nowhere stated that the said report has been accepted by the competent authority. It is for the competent authority to either accept or reject this report and unless that is done, the report of the enquiry officer cannot be stated to have acquired finality. Thus the facts of the instant case are more or less similar to the facts of the case in Ajay Kumar Tyagi's case (supra) and are quite distinct from the facts in Ashoo Surendranath Tiwari's case (supra) inasmuch as in the said case the order of refusal of sanction, which was based on the material collected after the investigation of the case, had acquired finality. 20. For the foregoing discussion, I have no hesitation in applying the ratio laid down by the Supreme Court in Ajay Kumar Tyagi's case (supra) to the instant case and to hold that exoneration of the petitioner in departmental enquiry held by Chief Engineer Jammu would not ipso facto entitle the petitioner to his exoneration from the....