Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1558 (AP)

Superintendent of Police v. B. Saisrinivasa Rao

2023-12-12

G.NARENDAR, NYAPATHY VIJAY

body2023
JUDGMENT G.NARENDAR, J. - Heard Sri G.V.S. Kishore Kumar, Learned Government Pleader for Services-I, GP [S]-I, for the Petitioners and Sri Bonu Rama Shankar Rao, Learned Counsel for the 1 st respondent. 2. The present Writ Petition is preferred by the Superintendent of Police, Vizianagaram District at Vizianagaram, the Deputy Inspector General of Police, Visakhapatnam Range, Visakhapatnam, the Inspector General of Police, North Coastal Zone, Andhra Pradesh, Visakhapatnam and the State represented by the Principal Secretary, Home Department. 3. The facts which are not in dispute are stated in a nut shell to the extent as required for disposal of the Writ Petition. 4. It is not in dispute that the 1 st respondent was working as Police Constable since the year 1998. On 2/4/2005 the Station House Officer, Neelakantapuram Police Station found that the 1st respondent was absent for duty; left the place without prior permission and the same came to be entered in the General Diary. The 1st petitioner was also informed about the same vide radio message dtd. 19/4/2005. Such un-authorized absence of 1st respondent was continued till 23/4/2005 and as the period of 21 days had been completed in terms of Standing Order 184 of the A.P. Police Administrative Manual, by a declaration dtd. 28/4/2005 he was declared as deserter with effect from 2/4/2005. Having acknowledged the desertion orders on 5/5/2005, the 1st respondent reported for duty on 6/5/2005 and he had submitted his reply. 5. An enquiry came to be held and a punishment of stoppage of P.P.I for 2 years with cumulative effect on future increments and pension was awarded and the period between 2/4/2005 to 3/5/2005 was treated as "not on duty". Aggrieved by the same, the 1st respondent preferred an appeal before the Appellate authority. 6. The Appellate authority while disposing of the appeal set aside the penalty imposed by the District Superintendent and further directed the District Superintendent to conduct proceedings afresh by considering the 1st respondent as a deserter" and by treating the period of absence as desertion" and not as un-authorized absence. 7. On receipt of the same, the Competent Authority yet again conducted an enquiry in accordance with Rule 20 of the A.P.C.C.A. Rules, 1991 and yet again imposed the same penalty. The 1st respondent yet again preferred an appeal and the Appellate Authority rejected the same. Aggrieved thereby the 1st respondent preferred O.A.No.5579 of 2012. 7. On receipt of the same, the Competent Authority yet again conducted an enquiry in accordance with Rule 20 of the A.P.C.C.A. Rules, 1991 and yet again imposed the same penalty. The 1st respondent yet again preferred an appeal and the Appellate Authority rejected the same. Aggrieved thereby the 1st respondent preferred O.A.No.5579 of 2012. The Tribunal after examining the matter on merits formulated the following points:- Point No.1: Whether the proceedings in Rc.No.871/A1/VZ/2010 dtd. 10/4/2012 of the 3rd respondent, Proc.C.No.35/OE/PR/2005 dtd. 10/1/2008 of the 1st respondent and rejection order in Proc.Rc.No.134/Appeal/2008 dtd. 9/1/2009 of the 2nd respondent are sustainable on law and on facts? Point No.2: To what relief? 8. Thereafter, the Tribunal by placing reliance on the ruling of the Apex Court rendered in Chairman cum Managing Director, Coal India Limited and others vs. Ananta Saha and others, 2011 (5) SCC 142 . and more particularly by placing reliance on Para 28 of the said ruling, proceeded to hold that the act of the Competent Authority without framing fresh issues, issuing show cause and following the due procedure under Rule 20 of A.P. Civil Service (CCA) Rules, 1991 the initiation of the second enquiry was vitiated and accordingly was pleased to allow the O.A and the period between 2/4/2005 to 3/5/2005 was directed to be treated as eligible leave and the Tribunal was further pleased to grant continuity of service with all consequential benefits, including the seniority and promotion. Aggrieved thereby, petitioners i.e., the State are before this Court. 9. It is canvassed by the Learned Government Pleader for Services-I, GP [S]-I, that if the Tribunal was of the view that the penalty imposed was disproportionate or that the enquiry was vitiated by non-observance of the Principles of Natural Justice; it could not have set aside the enquiry in its entirety and ought to have limited the same to set aside and remit the matter back to the Competent Authority for consideration and disposal in accordance with law. 10. In that regard reliance is placed on the ruling rendered by the Apex Court in Inspector of Panchayats and District Collector, Salem vs. S.Arichandran and Others, 2022 SCC OnLine SC 1282. 11. 10. In that regard reliance is placed on the ruling rendered by the Apex Court in Inspector of Panchayats and District Collector, Salem vs. S.Arichandran and Others, 2022 SCC OnLine SC 1282. 11. We have traversed the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short 'the Rules'), more particularly, Rule 37 of the Rules and Standing Orders 183 and 184, more particularly, Standing Order 184 of the A.P. Police Administrative Manual which reads as under:- 12. We have also been taken through Rule 37 of the Rules, which pertain to consideration of an appeal. Rule 37 of the Rules reads as under:- 37. (1 ) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 8 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in rule 9 or rule 10 or enhancing any penalty imposed under the said rules, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate; inadequate, or severe and pass orders. (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; 13. From a reading of the above provisions, more particularly, Standing Order 184, it is apparent that the proceedings against a deserter is permissible only after it is preceded by a declaration that the Officer is a deserter and that such declaration ought to be communicated to the Officer by registered post. The said Standing Order also makes an interesting reading, wherein the Officer is called upon to join duty by reporting to the Superintendent of Police, District Chief of Police/Deputy Commissioner of Police/Commandant. The said Standing Order also makes an interesting reading, wherein the Officer is called upon to join duty by reporting to the Superintendent of Police, District Chief of Police/Deputy Commissioner of Police/Commandant. In fact, it is also pertinent to note that the said Standing Order provides for two (2) months period from the date of receipt of the declaration enabling the alleged deserter to report to duty. On reporting to duty, it mandates that a Charge shall be framed and the deserter shall be placed under suspension. 14. Be that as it may. The fact remains that on remand, the Competent Authority without following the rigor of Rule 20 has proceeded to re-enquire on the said Charges and without issuing any show cause notice etc., which the Apex Court has found to be as illegal in Chairman cum Managing Director, Coal India Limited and others' case (referred (1) supra). In the said case, the Hon"ble Apex Court has been pleased to hold that where an enquiry report and penalty is set aside, then the rigor of Rule 20 i.e., complying with the procedures of issuing Articles of Charges etc., need to be complied with. The quashing of the enquiry report and the penalty also results in the lapse of the Charges framed earlier. On the said consideration, the Apex Court was pleased to grant relief to the parties therein. 15. The Tribunal, taking note of the same and also taking note of the fact that mandate of Rule 20 had not been complied with and de novo enquiry or fresh enquiry was conducted on the basis of earlier Charges, deemed it fit and accordingly set aside the same. 16. The answer to the Writ Petition is not far to seek. A consideration of Rule 37 of the Rules, as extracted supra, leaves no doubt in the mind of this Court that even the order of remand directing a fresh enquiry by the Appellate Authority itself was vitiated. In view of Rule 37(2)(c)(ii) of the Rules, which is extracted above, if the Appellate Authority is of the view that of the Penalties specified in the Clauses of Rule 9 and an enquiry under Rule 20 has already been held in this case, the Appellate Authority shall subject to the provisions of Rule 25 itself hold that such an enquiry be held in accordance with Rule 20. Thereafter, on consideration of the proceedings of such enquiry, make such an order as it deems fit. On a reading of the above, it is apparent that the compliance with the provisions of Rule 20 is mandatory and the other alternative vested in the Appellate authority is to conduct enquiry by itself. 17. In the instant case, the facts on hand are not in dispute that the Appellate Authority had directed a fresh enquiry by setting aside the enquiry and the penalty imposed by the competent authority. If that be the case, the option before the Appellate Authority would have been to hold the enquiry by itself or direct the Competent Authority to hold the enquiry by complying with the mandate of Rule 20. 18. In the case on hand it is not in dispute that the mandate of Rule 20 has been given a go-bye by the Competent Authority. 19. In that view of the matter, we do not see any merits, which warrant interference in the orders of the Tribunal. 20. As regards the reliance of the ruling, it is apparent that this Court would also be required to look into the heinous nature of the misconduct or gravity of the misconduct. In the instant case, one of the charges against the 1st respondent is unauthorized absence. He was previously penalized for unauthorized absence without leave or permission i.e., on 2/2/2002; from 18/3/2005 to 25/3/2005 and from 26/3/2005 and 31/3/2005 i.e., an un-authorized absence in the year 2002; un-authorized absence of about 14 days in the year 2005 followed by 14 days immediately preceding the period of absence under the first part of the Charges. 21. The law regarding remand" has been crystallized by the Hon"ble Apex Court in The State of Uttar Pradesh & Ors., vs. Prabhat Kumar, 2022 LiveLaw (SC 736). the facts, recorded by the Hon"ble Apex Court can be found in Para 6, are as follows:- "6. The allegation against the respondent is of absence from duty for more than 327 days which was made the basis for issuing the chargesheet. Even after the charge-sheet was served, the respondent failed to participate in the departmental proceedings or to join duties. The allegation against the respondent is of absence from duty for more than 327 days which was made the basis for issuing the chargesheet. Even after the charge-sheet was served, the respondent failed to participate in the departmental proceedings or to join duties. This Court in Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 held that once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. This Court held as under: "13. It is a settled legal proposition that once the court sets aside an order of punishment on the ground that the enquiry was not properly conducted, the court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this that courts/tribunals are not competent to quash the charge-sheet and related disciplinary proceedings before the same are concluded on the aforementioned grounds." [emphasis supplied by this Court]. 22. The allegations of misconduct alleged against the 1st respondent, keeping in view the fact that he a member of a disciplinary force would assume some amount of gravity as such conduct of unauthorized absence, if left unchecked, would result in harming the discipline amongst the members of the force, in our considered opinion, is not of such gravity nor borders on heinousness. 23. We are of the considered opinion that despite such gravity, this fact that the Civil Servant is to be made to suffer a penalty at this point of time, that is, after nearly 18 years since the saga started is by itself a factor, which requires consideration. 23. We are of the considered opinion that despite such gravity, this fact that the Civil Servant is to be made to suffer a penalty at this point of time, that is, after nearly 18 years since the saga started is by itself a factor, which requires consideration. We are of the considered opinion that this long passage of time and the sufferance which this long standing litigation has caused to the respondent is sufficient punishment by itself. 24. In that view of the matter also, we are of the opinion that though we have gone through the law laid down by the Apex Court, the facts and circumstances involved in the case on hand do not warrant any other view than that adopted by the Tribunal. 25. Accordingly, the Writ Petition stands rejected. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.