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2023 DIGILAW 584 (AP)

Kolli Srinivasa Rao v. Superintendent of Police

2023-03-17

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. This writ petition is filed by the petitioners under Article 226 of the Constitution of India for the following reliefs: “...to issue an appropriate writ, order or direction, more particularly one in the nature of writ of Mandamus declaring the action of the 1st respondent in having issued orders, inflicting punishment of “PPI for two years with effect on future increments and pension” in C.No.09/A5/OE-PR/2015/DO No.624/2020, dated 24.09.2020 read with the orders of the 2nd respondent in C.No.127/Appl/2020/Roo No.244/2021, dated 04.06.2021 and the orders of the 3rd respondent in D.D. is No.886/T4/2021, dated 02.02.2022 as illegal and violative of Articles 14, 16, 21 and 311 of the Constitution of India and set aside them with all consequential benefits and also declare that denial of promotion the cadre of Head Constable without considering delay as illegal and unconstitutional and pass such other order or orders...” 2. Heard learned counsel for the petitioners and learned Government Pleader for the Respondents. 3. The brief facts of the case are that while the petitioner was working as Police Constable in Nallapadu, Guntur District, it appeared in the press news published in telugu daily (Eenadu) in its local edition about the organising Gambling (Playing cards) on a large scale in Guntur City and also in the outskirts of the city on 03.10.2013. On the basis of the paper clippings, Respondent No.1 instructed the SHO, Nallapadu Police Station to put check upon the Gambling. The SHO, Nallapadu got the information between 03.00 PM to 4.00 PM about the gambling. Then the SHO was instructed his subordinate constable to apprehend the organiser of the gambling and petitioner was also entrusted to assist him. As per the instructions of SHO both the petitioner as well as another constable apprehended the organiser and brought to the police station and produced before the SHO. In the meanwhile, the SHO, Chebrolu raided the said gambling place to caught hold the gamblers but failed. In fact, as per the SHO, Chebrolu two constables from Nallapadu Police Station i.e. P. Sunil Kumar and petitioner have collected Rs.10,000/- from gambling organiser and pass on information of raid, as such they were to produced before the SHO, Nallapadu police station for necessary action. 4. In fact, as per the SHO, Chebrolu two constables from Nallapadu Police Station i.e. P. Sunil Kumar and petitioner have collected Rs.10,000/- from gambling organiser and pass on information of raid, as such they were to produced before the SHO, Nallapadu police station for necessary action. 4. Pursuant to the statement of SHO, Chebrolu, a preliminary enquiry was ordered and one B.Srinivasarao, SDPO, South Staff Division, Guntur Urban was appointed as Preliminary Enquiry Officer and he submitted a preliminary enquiry report on 28.05.2015. 5. Basing upon the preliminary enquiry report Articles of Charges were framed under Rule 20 of APCS (CCA) Rules, 1991 and Additional Superintendent of Police, Guntur Urban was appointed as Regular Enquiry Officer vide proceedings dated 17.11.2015. The petitioner submitted his explanation dated 11.12.2015. The Enquiry Officer after completion of enquiry, submitted his report dated 22.11.2016 holding that the allegations against the petitioner are not proved. Even though the Enquiry Report held that the allegations against the petitioner were not proved but the disciplinary authority i.e. Respondent No.1 issued a dissent note dated 28.04.2017 and disagreeing the findings of the Enquiry Officer regarding the charge and directed the petitioner and another for submission of their defence/explanation within ten days for proposed action, for which the petitioner submitted his detailed explanation dated 02.11.2017. 6. Finally, Respondent No.1 issued impugned proceedings awarding punishment of “PPI for two years with effect on future increments and pension” and the suspension period of delinquent Sri K. Srinivasa Rao, PC 2795 (Petitioner) from 26.12.2014 to 14.05.2015 (139 days) was treated as “Not on Duty.” 7. Having the Right of Appeal, the petitioner assailed the impugned order dated 24.09.2020 by way of Appeal before Respondent No.2 and the said Appeal was rejected vide proceedings dated 04.06.2021. The same were assailed before Respondent No.03 by way of Revision Petition dated 30.07.2021. Finally, the Respondent No.3 rejected the said revision on 02.02.2022 as it was devoid of merits. Therefore, the orders passed by Respondent Nos.1, 2 and 3 are challenged in the present writ petition. 8. The Respondent No.1 filed Counter Affidavit on behalf of Respondent No.1 to 3, wherein it is stated that Sri B. Srinivasa Rao, SDPO, South Sub-Division, Guntur Urban conducted preliminary enquiry submitted his report to Superintendent of Police, Guntur. Therefore, the orders passed by Respondent Nos.1, 2 and 3 are challenged in the present writ petition. 8. The Respondent No.1 filed Counter Affidavit on behalf of Respondent No.1 to 3, wherein it is stated that Sri B. Srinivasa Rao, SDPO, South Sub-Division, Guntur Urban conducted preliminary enquiry submitted his report to Superintendent of Police, Guntur. Based on the report, Articles of charges were framed under Rule 20 of APCS (CCA) Rules, 1991 against the petitioner vide proceedings C.No.09/A5/OE-PR/2015, dated 17.11.2015. Thereafter, the petitioner submitted his explanation on 11.12.2015 to the articles of charges. The Additional Superintendent of Police (Crime) Guntur Urban was appointed as Enquiry Authority to conduct departmental enquiry against the petitioner. On completion of departmental enquiry, as per Rule 20 of APCS (CCA) Rules, 1991, he submitted his report stating that the allegations against the petitioner as ‘Not Proved’. 9. Having disagreed with the reasons and report of Enquiry Officer, Respondent No.1 issued Dissent Note vide proceedings C.No.02/OE-Addl.SP/Crimes/2016, dated 28.04.2017, and called for explanation from the petitioner. After receipt and on perusal of the same the Respondent No.1 had dissatisfied with the explanation submitted by the petitioner, Respondent No.1 imposed punishment of “PPI for two years with effect on future increments and pension” and the suspension period of the petitioner, from 26.12.2014 to 14.05.2015 (139 days) was treated as ‘Not on Duty’ vide proceedings C.No.09/A5/OE-PR/2015, dated 24.09.2020 by following Rule 20 of the APCS (CCA) Rules, 1991. It is further stated that the Appeal Petition filed by the petitioner was duly rejected on the ground that “no new ground have been raised by the appellant.” It is further stated that the Revision Petition dated 30.07.2021 preferred against the order of appeal dated 04.06.2021 was also rejected on the ground that the authority did not find any merits in the Revision Petition vide order dated 02.02.2022. 10. The learned counsel for the petitioner submits that in view of the G.O.Ms.No.679 dated 01.11.2008, the competent authority shall conclude the disciplinary proceedings within six months after initiation of disciplinary proceedings. But, contrary to the above G.O., the present enquiry proceedings were initiated on 17.11.2015, against alleged incident occurred on October, 2013 but ended after seven years in the year 2020. The manner and procedure in which the subject enquiry was conducted is against its own guidelines issued under G.O.Ms.No.679, dated 01.11.2018. 11. But, contrary to the above G.O., the present enquiry proceedings were initiated on 17.11.2015, against alleged incident occurred on October, 2013 but ended after seven years in the year 2020. The manner and procedure in which the subject enquiry was conducted is against its own guidelines issued under G.O.Ms.No.679, dated 01.11.2018. 11. Learned counsel for the petitioner further contended that the charge itself is a vague one and it is based on assumptions, presumptions, surmises and aimed to achieve something indirectly hiding the relevant facts. He also contended that even though the Enquiry Officer conducted enquiry by ensuring transparency and held that the charges are not proved, but, Respondent No.1 erroneously issued Dissent Note assigning his own reasons, which is against the ratio laid down by the Hon’ble Apex Court in Union of India(UOI) and others Vs. Mohd. Ibrahim, wherein it is held as follows: “We are unable to persuade to agree with the submission of the learned counsel for the respondent, particularly looking at the charges levelled against. In that view of the matter, though we are of the considered opinion that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of employer to start a fresh proceeding cannot be taken away.” 12. Learned counsel for the petitioner also relied upon the judgement rendered by the Hon’ble Apex Court in Nirmala J. Jhala Vs. State of Gujarat & Another in para Nos.22, 23 and 29 (i) (ii). 13. Learned counsel for the petitioner also contended that the order passed by the Appellate Authority and Revisional authority in the appeal dated 04.06.2021 without assigning any reasons except stating that no new grounds were raised by the petitioner and that there are no merits in the revision is also liable to be quashed. 14. Learned counsel for the petitioner also contended that the proposed punishment is not enumerated under Rule 9 of APCS (CCA) Rules, 1991. Therefore, the impugned punishment is liable to be set aside for which the petitioner relied upon the judgment rendered by the Divisional Bench of High Court for the State of Telangana in W.P.No.24587 of 2010 dated 30.08.2022. 15. Learned counsel for the petitioner also contended that the proposed punishment is not enumerated under Rule 9 of APCS (CCA) Rules, 1991. Therefore, the impugned punishment is liable to be set aside for which the petitioner relied upon the judgment rendered by the Divisional Bench of High Court for the State of Telangana in W.P.No.24587 of 2010 dated 30.08.2022. 15. Learned counsel for the petitioner also contended that, even after the allegations levelled against the petitioner are not proved as held by the Enquiry Officer, Respondent No.1without following the procedure-contemplated under Rule 21(2) of APCS(CCA) Rules, 1991 and issued Dissent Note imposing punishment of PPI for two years with effect on future increments and pension, without conducting fresh enquiry and imposing punishment contrary to Rule 9, Rule 20 and Rule 21 of APCS(CCA) Rules, 1991 and prayed to set aside the impugned order of punishment dated 24.09.2020. 16. In this context, it is to advert Rule 9 and Rule 21(1) of the APCS (CCA) Rules, 1991. They are as follows: “Rule 9. Penalities :- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: Minor penalties: (i) censure; (ii) withholding of promotion; [(iii) Omitted by G.O.Ms.No.335, G.A.D., Dt. 04-08- 2005] [(iv) withholding of increments of pay without cumulative effect];” “Rule 21. Action on the inquiry report:- (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be.” 17. On the other hand, the learned Government Pleader for respondents submits that the preliminary enquiry as well as regular enquiry were conducted after following due procedure as contemplated under Rule 20 of APCS(CCA) Rules, 1991 and the petitioner was provided with due opportunity in the enquiry. It is also not in dispute that the Enquiry Officer submitted his enquiry report by holding that the charge against the petitioner was not proved. He further contended that the disciplinary authority under Rule 21(2) is empowered to Dissent the findings of the Enquiry Officer and can proceed with the punishments after complaining Rule 21(2) of APCS (CCA) Rules, 1991. It is also not in dispute that the Enquiry Officer submitted his enquiry report by holding that the charge against the petitioner was not proved. He further contended that the disciplinary authority under Rule 21(2) is empowered to Dissent the findings of the Enquiry Officer and can proceed with the punishments after complaining Rule 21(2) of APCS (CCA) Rules, 1991. Accordingly, the petitioner was instructed to submit explanation for the dissent note and after then only the punishment was awarded. 18. He also contended that the power of the disciplinary authority to impose penalty under Rule 9 cannot be found fault with and does not warrants interference of this Court. Hence the present writ petition is liable to be dismissed. 19. Having heard the submissions made by both the counsel, it is an admitted fact that, the Enquiry Officer who conducted enquiry against the petitioner held that the charges against the petitioner were not proved. It is also not in dispute that the disciplinary authority issued proceedings of dissent note dated 28.04.2017 disagreeing with the findings of the Enquiry Officer, basing upon the findings of the Preliminary Enquiry is against the ratio laid down by the Hon’ble Apex Court in Nirmala J. Jhala Vs. State of Gujarat & Another in para Nos.22, 23 and 29 (i) (ii) held as follows: “22. In Naryan Dattatraya Ramteerathakhar v. State of Maharashtra &Ors., AIR 1997 SC 2148 this Court dealt with the issue and held as under: “…..a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of nor, remains of no consequence. 23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 29. 23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 29. In view of the above, we reach the following inescapable conclusions:- i) The High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant. ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing charge sheet to the delinquent. Thus, it was all in violation of the principles of natural justice.” 20. Moreover, the punishment awarded by the Disciplinary Authority which is also not contemplated as per Rule 9 of the APCS (CCA) Rules, 1991 is also sustainable, under law in view of the ratio laid down by the Hon’ble Division Bench of High Court for the State of Telangana in W.P. No.24587 of 2010 wherein it is held as follows: “........ Learned counsel appearing for the 1st respondent had contended that list of punishments were enumerated in Rule 9 of A.P.C.S (CCA) Rules, 1991 and the punishment imposed by the disciplinary authority is not one of the enumerated punishment and the Tribunal was justified in setting aside the order of punishment imposed against the 1st respondent. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed. Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that the Tribunal was justified in setting aside the order of punishment as imposed by the disciplinary authority as it is not one of the enumerated punishments in the Rules, the petitioners can impose any punishment which was enumerated in the Rules. The Petitioners cannot impose any other punishment other than what has been prescribed in the Rules. Therefore, this Court is not inclined to interfere with the order passed by the Tribunal...” 21. The impugned order of punishment passed by Respondent No.1 without agreeing with the Enquiry Report of Enquiry Officer and issuing Dissent Note without assigning any reasons with cohesion is also contrary to the procedure contemplated under Rule 21(2) of APCS (CCA) Rules, 1991 and it is amounts to depriving the petitioner from principles of natural justice. It is open to the competent authority to start a fresh disciplinary proceedings and conclude the same in accordance with law, as held by the Hon’ble Apex Court in Union of India (Uoi) and others Vs. Mohd. Ibrahim, (2001) ILLJ 1642 SC, (2004) 10 SCC 87 , in para No.2 held as follows: “2. Union of India is in appeal against the order of the Tribunal setting aside an order of the dismissal of the respondent as well as the order of the High Court refusing to interfere in its jurisdiction under Article 226 of the Constitution. In a disciplinary proceeding against the respondent, a set of charges levelled against which charges appear to be grave and serious, the ultimate conclusion of the enquiring officer having been based upon statement of persons made in the course of preliminary enquiry, the Tribunal came to hold that the conclusion is vitiated since the same was based upon the statement of persons examined in the preliminary enquiry and accordingly the Tribunal set aside the order of dismissal. The High Court on being approached has refused to interfere with the order in an application under Article 226 of the Constitution. The High Court on being approached has refused to interfere with the order in an application under Article 226 of the Constitution. When the matter was listed for admission, learned ASG requested that the power of the employer to start a fresh proceeding should not be whittled down in any manner, particularly in view of the nature of charges against the delinquent. He however fairly stated that in the procedure adopted in the case in hand, the order cannot be found fault with. Pursuance to the notice, respondent has entered appearance and the learned counsel for the respondent vehemently contested on the ground that 17 long years have elapsed and it will cause great hardship to start a proceeding afresh. We are unable to persuade to agree with the submission of the learned counsel for the respondent, particularly looking at the charges levelled against. In that view of the matter, though we are of the considered opinion that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of employer to start a fresh proceeding cannot be taken away. Therefore, we dispose of the matter with the observation that it will be open to the competent authority to start a fresh disciplinary proceeding and conclude.” 22. Moreover, the order passed in appeal dated 04.06.2021 and also the order passed in revision dated 02.02.2022 passed by the quasi-judicial authority should contains reasons. The recording of reasons is necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion. The Reasons are live links between the material evidence and conclusions of authority. 23. Admittedly in the present case in hand the order in Appeal dated 06.04.2021 and Revision dated 02.02.2022 and passed without assigning any reasons by just of saying that “no new grounds” and “no merits”. Therefore, the orders in Appeal and Revision are also liable to be quashed as per the ratio in “Breen v Amalgamated Engg. Union, 1971(1) AIIER 1148”, it was held that the giving of reasons is one of the fundamentals of good administration. In “Alexander Machinery (Dudley) Ltd. v. Crabtress, 1974(4) IRC 120 (NIRC)” it was observed that "failure to give reasons amounts to denial of justice. Union, 1971(1) AIIER 1148”, it was held that the giving of reasons is one of the fundamentals of good administration. In “Alexander Machinery (Dudley) Ltd. v. Crabtress, 1974(4) IRC 120 (NIRC)” it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". 24. In “Union of India v. Mohan Lal Kapoor, (1973) 2 SCC 836 ”, the Apex Court held as under: "Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached." 25. The Apex Court in the case of “Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 ” held that, Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable" 26. The Apex Court of India in the case of “Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519 ” has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless. 27. If the order does not contain reasons it is incongruous, inappropriate to judicial performance. For the reasons stated above and on the basis of material placed before this Court the impugned proceedings dated 24.09.2020 are contrary to the enquiry report and also contrary to the Rule 9 of APCS (CCA) Rules, 1991 and the same are liable to be set-aside. 28. In view of the foregoing discussion, the writ petition is allowed by setting aside the proceedings in: a) Impugned order of punishment dated 24.09.2020. b) Order passed in Appeal dated 04.06.2021. c) Order passed in Revision dated 02.02.2021. 28. In view of the foregoing discussion, the writ petition is allowed by setting aside the proceedings in: a) Impugned order of punishment dated 24.09.2020. b) Order passed in Appeal dated 04.06.2021. c) Order passed in Revision dated 02.02.2021. However, it is needless to observe that the Respondents are at liberty to conduct disciplinary enquiry afresh by following procedure as contemplated under Rule 20 and 21 of the APCS (CCA) Rules, 1991. No order as to costs. Consequently, miscellaneous applications, if any, pending shall stand closed.