A Tale of Three Judgments: Exoneration of Public Servant in Disciplinary Proceedings vis-à-vis Criminal Prosecution

“X”, a public servant, is alleged to have received illegal kickbacks. “X” will be prosecuted for committing a criminal offence under the Prevention of Corruption Act, 1988 (the Act)¹, and he faces a potential jail term. Since he is also governed by a set of service/employment rules framed by the Government, he will simultaneously be liable to disciplinary proceedings before his superior officer on the allegations of misconduct as defined in the employment rules.²

The Supreme Court of India has opined that if “X” is exonerated in criminal proceedings, he can still be held liable in the disciplinary proceedings.³ The converse of this proposition has generated much legal debate in the recent years. The effect of exoneration in disciplinary proceedings on criminal prosecution (prosecution) has large ramifications since prosecution in India takes years to culminate.

Prosecution vis-à-vis disciplinary proceedings

For the same act of corruption, “X” can be found guilty in both, criminal and disciplinary proceedings.⁴ Whereas the standard to prove a criminal charge is that of “proof beyond reasonable doubt”, charges in disciplinary proceedings can be proved on the basis of a lower standard of “preponderance of probabilities”.

It has now become an immutable principle of law that acquittal in a criminal case under the Act will not, proprio vigore, lead to exoneration in disciplinary proceedings.⁵ The legal premise behind this principle is that the same incriminating material (which has not met the higher standard of “proof beyond reasonable doubt”) may still meet the lower threshold of “preponderance of probabilities” which is required to establish a charge in the disciplinary proceedings.

This difference in evidentiary thresholds begs the question: if “X” is exonerated in disciplinary proceedings where the evidentiary threshold is lower, should he be made to undergo a full trial where the evidentiary threshold is higher?

Three Supreme Court judgments on the issue are noteworthy:

(i) State (NCT of Delhi) v. Ajay Kumar Tyagi⁶ (Tyagi) lays down that exoneration in disciplinary proceedings would not ipso facto lead to discharge of an accused at the pre-trial stage when the court takes cognizance of the offence or the accused is formally charged.

(ii) On the other hand, Ashoo Surendranath Tewari v. CBI⁷ (Tewari), by relying on Radheshyam Kejriwal v. State of W.B.⁸ (Kejriwal), posits that where an official has been exonerated on merits in disciplinary proceedings, then, prosecution on the same facts must be quashed at the preliminary stage itself.

Owing to this sharp cleavage of opinions, different High Courts have discretionarily applied either Tyagi⁹ or Tewari¹⁰/Kejriwal¹¹, raising questions as to which one lays down the correct law and, thus, should act as a binding precedent.

Kejriwal, Tyagi and Tewari

Kejriwal¹², Tyagi¹³ and Tewari¹⁴ are all judgments of three-Judge Bench of the Supreme Court, and chronologically, Kejriwal¹⁵ was pronounced first, Tyagi¹⁶ second, and thereafter Tewari¹⁷.¹⁸

Kejriwal¹⁹ was a case involving alleged violations of provisions of the Foreign Exchange Regulation Act, 1973²⁰ (FERA), which could give rise to both, civil liability in the form of imposition of penalty and criminal liability under the same FERA. In Kejriwal²¹, the Supreme Court held that if a quasi-judicial authority under the FERA gives a finding that there is no violation of the FERA which would warrant imposition of any civil liability, then, a criminal prosecution for alleged violation of FERA on the basis of same set of facts will not be maintainable. This was, inter alia, because the basis of both the proceedings was the alleged violation of provisions of the FERA on the basis of same facts, and the quasi-judicial authority [i.e. the Directorate of Enforcement (ED)] which was empowered to impose civil liability, was also the prosecuting agency in the prosecution. As a sequitur, once ED has taken a view that there is no ground for imposition of civil liability, then, ED, as a prosecuting agency, cannot continue the prosecution of the same person on the same set of facts. Thus, Kejriwal²² lays down the principle that where a quasi-judicial body adjudicates that there is no violation of provisions of a statute by a person, then, a criminal court cannot allow the prosecution of the same person for an offence alleged under that very same statute. The same is not the case when departmental proceedings are launched simultaneously with criminal prosecution for an act of corruption.

The question in Tyagi²³ squarely was disciplinary proceedings (which determine whether a public servant is guilty of misconduct under the relevant service rules) versus criminal proceedings (which determine guilt on the basis of the ingredients of offence of corruption defined under the Act). Thus, in Tyagi²⁴, the Supreme Court was in seisin of an altogether different factual scenario than Kejriwal²⁵, and therefore, Kejriwal²⁶ was not a binding precedent on Tyagi²⁷. It is trite law that a decision is a precedent only for what it holds and not for what logically flows from it.²⁸

Additionally, the judgment in Tyagi²⁹ (authored by Justice C.K. Prasad) rightly did not refer to or rely upon the majority judgment in Kejriwal³⁰ (authored by Justice C.K. Prasad for himself and for Justice H.S. Bedi). It is interesting to note that both, the majority judgment in Kejriwal³¹ and the judgment of the Court in Tyagi³², have been authored by Justice C.K. Prasad. Thus, Tyagi³³ could not be interpreted to have been laying down any principle of law contrary to, or deviating from, the one laid down in Kejriwal³⁴.³⁵

Moreover, in Tyagi³⁶, the Supreme Court has also considered all its earlier judgments³⁷ on the issue of the effect, of exoneration of a public servant in disciplinary proceedings, on the criminal prosecution. On the other hand, the majority opinion (authored by Justice C.K. Prasad) in Kejriwal³⁸ does not even mention any of the earlier judgments of the Supreme Court on this issue; and, the minority opinion (authored by Justice P. Sathasivam, as His Lordship then was) only notes the judgment of the Supreme Court in P.S. Rajya v. State of Bihar³⁹ as being cited by the appellant, but even the minority judgment neither considers nor relies upon the said judgment in P.S. Rajya v. State of Bihar⁴⁰. Thus, it is evident that the Bench of the Supreme Court in Kejriwal⁴¹ was well aware that it was not a case of disciplinary proceedings vis-à-vis criminal prosecution, and any endeavour to argue to the contrary would fall foul of the distinct legal contexts in which Kejriwal⁴² and Tyagi⁴³ were rendered. Therefore, the view that Tyagi⁴⁴ is “per incuriam”⁴⁵ because the Bench in Tyagi⁴⁶ did not consider the decision in Kejriwal⁴⁷, is, with respect, not the correct view.

Tewari⁴⁸, again, was a case involving allegations of commission of offence under the Act, and the question was whether exoneration of the public servant in disciplinary proceedings would have been fatal to the prosecution. Since Tyagi⁴⁹ dealt with the effect of exoneration in disciplinary proceedings on criminal prosecution of a public servant, Tyagi⁵⁰ should have applied on all fours to Tewari⁵¹ and the Supreme Court in Tewari⁵² was bound to follow the decision in Tyagi⁵³ and not that in Kejriwal⁵⁴. However, in Tewari⁵⁵, the Supreme Court did not even consider Tyagi⁵⁶; instead, the Bench in Tewari⁵⁷, relying upon Kejriwal⁵⁸, concluded that the exoneration of a public servant in disciplinary proceedings is fatal to the prosecution on the same set of facts. In the opinion of the author, it is the judgment in Tewari⁵⁹ which is, with respect, per incuriam for having failed to even consider the judgment in Tyagi⁶⁰, and the Supreme Court should so declare it to be. It is pertinent to note that a two-Judge Bench of the Supreme Court has recently noted some of the distinguishing features between Tewari⁶¹ and Kejriwal⁶², albeit in a slightly different factual context.⁶³ Puneet Sabharwal⁶⁴can perhaps be the precedential starting point for the Supreme Court to set the law right on the issue.

Exoneration in disciplinary proceedings not dispositive

In the author’s opinion, the correct legal position is that exoneration in disciplinary proceedings should not be fatal to the prosecution’s case at the stage of taking cognizance or framing of charges, for the following reasons:

1. Strict rules of evidence do not apply to disciplinary proceedings.⁶⁵ Thus, analysis of evidentiary material by the departmental officer during disciplinary proceedings cannot be considered as conclusive by the criminal courts, which are bound by the Evidence Act, 1872⁶⁶. The Judge, instead, must reach an independent conclusion based on the evidence before her.⁶⁷

2. At the stage of framing of charges against the accused, the trial court merely has to conduct a preliminary enquiry to assess whether the material relied on by the prosecution gives a “strong suspicion” that the accused has committed the offence.⁶⁸ The court will not examine the relevance, admissibility and weightage of evidence to determine the guilt of the accused at this stage.⁶⁹ Therefore, the prosecution does not have to prove its case beyond reasonable doubt at the stage of framing of charge.⁷⁰

3. An independent assessment of the entire material may still lead the “court” to a conclusion different from that reached in the disciplinary proceedings. For instance, Section 20 of the Act⁷¹ creates a legal presumption of guilt in case if an official obtains an undue advantage.⁷² Thus, a preliminary examination of even circumstantial evidence can result in a legal presumption of guilt, which will have to be rebutted by the accused at the time of trial. This legal presumption does not apply to disciplinary proceedings, which are governed by government employment rules.

4. If it is held that an official accused of corruption cannot be prosecuted if the disciplinary proceedings have absolved him, then, prosecution for acts of corruption could be launched only if the official is held guilty in the disciplinary proceedings, making the initiation of prosecution dependent on the conclusion of the disciplinary proceedings. That is not an interpretation which the framers of the Act envisaged.⁷³

Conclusion

Therefore, even if “X” (in the first example) has been exonerated in departmental proceedings, still his prosecution under the Act will continue before the trial court. This, however, will not preclude the constitutional courts from exercising their plenary powers to quash prosecution on the ground that the same is “vexatious”.⁷⁴ With this balanced approach, legitimate prosecutions will not be thwarted on the basis of conclusions of departmental proceedings, while at the same time, the constitutional courts will not be powerless in nipping vexatious prosecutions in the bud in exceptional and rare cases.⁷⁵