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2022 DIGILAW 1294 (AP)

A. Srinivasa Rao v. State of Andhra Pradesh

2022-11-16

K.MANMADHA RAO

body2022
ORDER : 1. Writ Petition No. 703 of 2020 is filed under Article 226 of the Constitution of India, seeking the following relief: “........to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action on the part of the respondents in not reinstating the petitioner by reviewing the Proceedings C. No. 17/OE/PR/2009, DO No. 769/2014, dated 22.09.2014 of the 4th respondent in imposing the punishment of removal from service and the proceedings C. No. 20/Appeal-P1/2014, RO No. 550/2015, dated 17.12.2015 of the 3rd respondent in enhancing the punishment of Removal from Service to that of dismissal from service despite the petitioner is acquitted from the Criminal Case in S.C. No. 95 of 2011 dated 04.10.2019 as illegal, arbitrary and contrary to the conduct rules and violative of Article 21 of the Constitution of India and consequently direct the respondents to reinstate the petitioner into service with all consequential benefits by considering the acquittal of the petitioner in Sessions Case No. 95 of 2011, dated 04.10.2019 forthwith and to pass such other orders.....” Writ Petition (AT) No. 226 of 2021 is filed under Article 226 of the Constitution of India, seeking the following relief: “........to issue a Writ, to call for the records relating to Proceedings in C. No. 17/OE/PR/2009, DO No. 769/2014, dated 22.09.2014 of the 4th respondent in imposing the punishment of removal from service and the Proceedings C. No. 20/Appeal-P1/2014, RO No. 550/2015, dated 17.12.2015 of the 3rd respondent in upholding the Punishment of Removal from Service as illegal, arbitrary and contrary to the rules and violative of Article 21 of the Constitution of India and consequently direct the respondents to reinstate the applicant into service with all consequential benefits forthwith and to pass such other orders.....” 2. Since the facts and issue involved in both the writ petitions is one and the same, I find it expedient to decide both the matters by common order. 3. For the sake of convenience, W.P. No. 703 of 2020 is taken as leading case. 4. Heard learned counsel for the petitioner and learned Government Pleader, Services-I for the respondents. 5. The brief case of the petitioner in W.P. No. 703 of 2020 is that initially he was appointed as Police Constable in West Godavari District in the year 1993 and rendered 21 years of service without any remark. 4. Heard learned counsel for the petitioner and learned Government Pleader, Services-I for the respondents. 5. The brief case of the petitioner in W.P. No. 703 of 2020 is that initially he was appointed as Police Constable in West Godavari District in the year 1993 and rendered 21 years of service without any remark. While he was working as Police Constable at Narsapuram Town Police Station, West Godavari District, disciplinary proceedings were initiated against him and framed article of charge. The petitioner submitted his explanation by denying the allegations. Further a case in Crime No. 106 of 2008 was registered; subsequently it was referred as false. Later it was reopened and altered charge. Notwithstanding the pendency of Criminal Case, the Disciplinary Authority has chosen to proceed with the Disciplinary Proceedings though the allegations made against the petitioner are one and same. The Enquiry Officer has not conducted proper enquiry and arrived with wrong conclusion. Therefore the departmental proceedings including the proceedings of enquiry gets vitiated on account of procedural infirmities and on account of the fact of non availability of the evidence to prove the charge of illegal contract and false promise of marriage against the petitioner. Basing on the Enquiry Report, the 4th respondent issued Show-Cause notice to the petitioner, though the petitioner has submitted his explanation, the same was not considered and issued impugned orders imposing a major penalty of removal from service vide proceedings dated 22.09.2014. Assailing the same, the petitioner preferred an Appeal before the 3rd respondent, who issued instructions to the 4th respondent. Basing on the instructions, the 4th respondent issued proceedings dated 25.03.2015 dismissing the petitioner from the service. Meantime, the 4th respondent made fresh allegation in the said penalty of dismissal order and 3rd respondent issued proceedings dated 26.11.2015 in the appeal filed by the petitioner setting aside the revised orders of dismissal and upholding the earlier orders of the 4th respondent on the ground that the order of the 4th respondent in issuing the revised order of dismissal from service vide proceedings dated 25.03.2015 is contrary to the procedure. After setting aside the revised orders of the Disciplinary Authority, the 3rd respondent instead of considering the appeal on merits has issued show cause notice for enhancement of the punishment from removal from service to dismissal from service, which is illegal and arbitrary and contrary to law. After setting aside the revised orders of the Disciplinary Authority, the 3rd respondent instead of considering the appeal on merits has issued show cause notice for enhancement of the punishment from removal from service to dismissal from service, which is illegal and arbitrary and contrary to law. Aggrieved by the impugned proceedings, the petitioner preferred O.A. No. 2700 of 2016 before the A.P. Administrative Tribunal, Hyderabad and after abolition of Tribunal, the same is renumbered as W.P. (AT) 226 of 2021 before this Court. Meantime, the petitioner was acquitted from the Criminal Case in S.C. No. 95 of 2011 on the file of II Additional District and Sessions Judge, Eluru vide its order dated 04.10.2019. Consequent to the Judgment of the Criminal Court, the petitioner made a request to reinstate him into service. But the respondents did not take any action so far. Hence the inaction of the respondents is questioned in this Writ Petition. 6. Per contra, 4th respondent filed counter-affidavit denying all material averments and mainly contended that the 4th respondent after considering the explanation submitted by the petitioner along with the enquiry report and based on the evidence on record issued proceedings dated 22.09.2014 imposing penalty of removal from service. As against the said order, the 4th respondent preferred an Appeal before the 3rd respondent, who considering the all aspects and after careful examination has issued order of Dismissal from service vide proceedings dated 26.11.2015. Basing on the directions of the A.P. State Human Rights Commission, Hyderabad in HRC No. 1434 of 2008, action was initiated against the petitioner. After completion of the Departmental Enquiry and all proceedings the 4th respondent issued orders for violation of the Rule 3 of APCS (Conduct) Rules, 1964, vide proceedings in C. No. 17/OE/PR/2009 (D.O. No. 769/ 2014), dated 22.09.2014. But the petitioner pleaded that the 4th respondent initiated disciplinary proceedings without waiting for the result of the criminal case, which is untenable under service rules. The petitioner has to prefer the revision against the orders of the D.I.G. Eluru Range to the next higher authority i.e. Director General of Police, A.P. Therefore the writ petition is liable to be dismissed. 7. The petitioner has to prefer the revision against the orders of the D.I.G. Eluru Range to the next higher authority i.e. Director General of Police, A.P. Therefore the writ petition is liable to be dismissed. 7. During hearing learned counsel for the petitioner would contend that the respondents did not conduct proper enquiry in accordance with procedure as contemplated under law and without considering the factual aspects and evidence on record issued proceedings for imposing penalty of dismissal from service. During pendency of Appeal, Criminal Case ended as an acquittal. Thereafter the petitioner made a request to reinstate the petitioner into service and placed copy of the Judgment of Sessions Case. But the respondents did not take any initiation so far. 8. It is further contended that a Criminal Case was registered in the year 2008; Disciplinary Proceedings were initiated by framing a charge in the year 2009 and investigated the matter by the Enquiring Authority thereafter and imposed major penalty of removal from service in the year 2014. Subsequently an Appeal was preferred before the 3rd respondent, who dismissed the appeal and issued proceedings dated 25.03.2015 dismissing the petitioner from service. Further issued proceedings dated 26.11.2015 by setting aside the revised order of dismissal and upholding the earlier order of the 4th respondent. Later issued show cause notice 17.12.2015 enhancing the punishment of removal from service to dismissal from service by superseding the punishment of removal imposed by the 4th respondent. In the meantime criminal case was ended as acquittal in the year 2019. Therefore since 2008 till date the respondent authorities intentionally dodging the matter without considering the factual and material evidence on record and failed to consider the request of petitioner to reinstate him into service is highly illegal and arbitrary. Therefore learned counsel for the petitioner requested this Court to issue direction to the respondents to appoint competent authority with a direction to initiate appropriate inquiry in the matter, after affording proper opportunity to the petitioner. 9. Mr. Aswartha Narayana, Learned Government Pleader for the respondents fairly admitted that there is delay in concluding the proceedings by the respondents. Further taking into consideration of all material aspects and submissions of the learned counsel for the petitioner, the respondent authorities readily agreed to initiate appropriate legal steps in the matter and conclude the same within reasonable period. 9. Mr. Aswartha Narayana, Learned Government Pleader for the respondents fairly admitted that there is delay in concluding the proceedings by the respondents. Further taking into consideration of all material aspects and submissions of the learned counsel for the petitioner, the respondent authorities readily agreed to initiate appropriate legal steps in the matter and conclude the same within reasonable period. Therefore prays this Court to remand back the matter for conducting fresh enquiry by the competent authority. 10. As could be seen Rule 20 of Part V, Procedure for imposing penalties, Clause 18(i) would come into play, which reads as follows: “18.(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain: (a) the articles of charge and the statement of the imputation of misconduct or misbehaviour. (b) the defence of the Government Servant in respect of each article of charge. (c) an assessment of the evidence in respect of each article of charge. (d) the findings on each article of charge and the reasons therefor. Explanation: If in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government Servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. Further as could be seen the Rule 24 - Common Proceedings, which reads as follows: Rule 24. Common Proceedings: (1) Where two or more Government Servants of the same service or different services are concerned in any case the Govt. or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceedings: Provided that if the authorities competent to impose the penalty of dismissal on such Government servants are different, such authorities not being the Government, an order for holding such inquiry in a common proceeding may be made by the highest of such authorities with the consent of the other authorities competent to impose the said penalty on the others. (2) Subject to the other provisions of these rules, every such order shall specify: (i) the authority which may function as the disciplinary authority for the purpose of such common proceedings. (ii) the penalties specified in Rule 9 and Rule 10 which such disciplinary authority shall be competent to impose. (iii) whether the procedure laid down in Rule 20 and Rule 21 or Rule 22 shall be followed in the proceedings.” 11. Following the Rule as cited supra, it is very clear that the competent authority to impose the penalty of dismissal from service on all the Government servants may make an order directing that disciplinary action against all of them may be taken in common proceedings. In the instant case, criminal case is ended as acquittal during disciplinary proceedings against the petitioner. Though the respondents are well aware of the criminal case ended as acquittal and pendency of the disciplinary proceedings, but respondents could not take any steps to reinstate the petitioner into service, inspite of his request, which is gross irregularity committed by the respondents. 12. This Court observed that the counter-affidavit filed by the 4th respondent is silent on material allegations made by the petitioner and simply denied the allegations made by the petitioner, which cuts the root of the issue involved in the subject matter. When such facts are in dark, this Court cannot say that the acts of the respondents are fair and proper. Therefore, this Court is arrived at just conclusion that the entire issue has to be reconsidered for proper adjudication by way of conducting re-enquiry through competent authority by taking into consideration of all factual and material aspects in the matter. 13. Therefore it is needless to discuss further in the matter and it is appropriate to issue a direction to the respondents to reenquire in the matter by conducting enquiry afresh by the competent authority, after affording proper personal hearing of the petitioner during enquiry. 14. Accordingly, the Writ Petitions are disposed of, while declaring the respective impugned proceedings issued by the respondents are hereby set aside, with a direction to respondents to re-enquire into the matter, after affording opportunity of personal hearing of the petitioner and pass appropriate reasoned order in accordance with law within a period of four (04) months from the date of receipt of a copy of this order. There shall be no order as to costs. There shall be no order as to costs. 15. As a sequel, miscellaneous applications pending, if any, shall also stand closed.