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2024 DIGILAW 1013 (AP)

Syed Mohammad Shareef v. State of Andhra Pradesh

2024-08-07

VENKATA JYOTHIRMAI PRATAPA

body2024
JUDGMENT : 1. This writ petition is filed under Article 226 of the Constitution of India with the following prayer : ".... to issue a writ or order or direction more particularly in the nature of a writ of mandamus declaring the order of respondent No.2 Bearing Rc.No.A3/PR/81/SPF/2011-19, OO No.A-65/2019, dated 30.04.2019 confirming the order of respondent No.3 Bearing Rc.No.As/PR/81/SPF/2011-16, dated 03.06.2016 as being without jurisdiction, illegal 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 thereon, and pass such other order or orders." 2. The case of the petitioner, in brief, is as follows : (a) Previously, the petitioner used to work as a Constable in the Boarder Security Force from the year 1988 and while working as such, he was appointed as a Constable in A.P.S.P.F. in the year 1993. Subsequently, he was promoted as Head Constable in the year 1999. (b) In view of the matrimonial disputes between the petitioner and his wife, while the petitioner was working as Head Constable in APSPF at Srisailam Dam, she lodged a complaint against the petitioner on the ground of harassment for additional dowry, and the same was registered as a case in Crime No.34 of 2011, dated 21.07.2011 on the file of Mahila Police Station, Anantapur for the offence under Sections 498-A and 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The petitioner was arrested in the said crime and was enlarged on bail. In view of the said criminal case, the petitioner was suspended from the service on 15.09.2011. (c) It is stated that the suspension of an employee on the ground that he has been facing a criminal case on the complaint of his wife for the offence under Section 498-A IPC, is not sustainable. While the case was in the Criminal Court, Departmental enquiry was initiated by respondent No.3 appointing the Assistant Commandant, APSPF, SDSTPS, Nellore as the Enquiry Officer. Thereafter a charge-memo was issued to the petitioner on 07.06.2012 initiating a disciplinary action against the petitioner for the self-same charges as that of the charges in the criminal case. While the case was in the Criminal Court, Departmental enquiry was initiated by respondent No.3 appointing the Assistant Commandant, APSPF, SDSTPS, Nellore as the Enquiry Officer. Thereafter a charge-memo was issued to the petitioner on 07.06.2012 initiating a disciplinary action against the petitioner for the self-same charges as that of the charges in the criminal case. (d) Questioning the allegations in the Departmental Enquiry, the petitioner had filed OA No.5784/2012 before the Tribunal and the learned Tribunal held that the respondents had no power to initiate the departmental enquiry for the allegations under Section 498-A IPC as the said charge has no nexus with the official duties of the petitioner. (e) Despite the order of the Tribunal, the petitioner was given punishment of compulsory retirement from service by the order of respondent No.3 in Rc.No.As/PR/81/SPF/2011-16, dated 03.06.2016. Aggrieved thereby, the petitioner preferred an appeal to respondent No.2, who confirmed the order of respondent No.3 by the impugned order in Rc.No.A3/PR/81/SPF/2011-2019, OO No.A-65/2019, dated 30.04.2019. (f) The respondents have no jurisdiction to initiate departmental enquiry into an allegation which has nothing to do with the official duties of the petitioner in the department. When this objection was taken by filing a case before the Tribunal, the enquiry was stayed and later the case was allowed. However, the respondents continued the enquiry. The Departmental Authority has no jurisdiction to conduct departmental enquiry into the charge and impose punishment thereon. (g) Despite being acquitted of the charge by the Appellate Court setting aside the orders of conviction of the Trial Court, respondent No.2 based on the judgment of the Trial Court, confirmed the punishment imposed by respondent No.3, which is totally illegal and untenable under law. (h) Respondent No.2 had observed that the appeal preferred by the petitioner against the order of respondent No.3, is barred by limitation. However, the limitation in statutory appeals before an administrative authority are not strictly bound by the rules of limitation and therefore, the limitation should not be a bar for exercising the appellate powers. (h) Respondent No.2 had observed that the appeal preferred by the petitioner against the order of respondent No.3, is barred by limitation. However, the limitation in statutory appeals before an administrative authority are not strictly bound by the rules of limitation and therefore, the limitation should not be a bar for exercising the appellate powers. (i) In a recent judgment of the Hon'ble Apex Court it was held that when a person alleges adultery against her spouse, it is necessary that the adultor alleged person be made as a party to the proceedings without which the plea of adultery cannot stand, as such, the action of respondent No.2 in relying on the findings of the Trial Court despite the fact that the alleged adultor not being a party to the proceedings, is wholly illegal and untenable under law. (j) The enquiry officer had decided the charge only on the basis of the statement of the wife of the petitioner and imposed punishment which was confirmed by the Appellate Authority and the same leads violation of right of life of the petitioner enshrined under Article 21 of the Constitution of India. (k) The punishment of compulsory retirement from service imposed on the petitioner for an allegation of domestic affairs is wholly disproportionate and would deprive the petitioner of more than 15 years of service which led to a financial loss to be borne by the petitioner throughout his life and therefore, the same is untenable under law. 3. The averments of the counter filed by respondent No.3, in brief, are as follows : (a) The SPF personnel deployed at the user organizations should be very active, loyal and maintain discipline not only while discharging their duties but also in their personal life as they are covered under A.P. Civil Services (CCA) Rules, 1964. The Additional Commandant, APSPF, Unit Srisailam submitted a report against the petitioner as the petitioner was arrested by Anantapur Police on the Forenoon of 15.09.2011 in connection with Crime No.34 of 2011 of Mahila Police Station, Anantapur on the allegation that the petitioner got illegal contact with one Prabayhvathi @ Bujji D/o. Kondaiah, who was working as an Attender in Rayalaseema Thermal Power Plant and that the petitioner beat his wife and son indiscriminately and also necked out her from the house by demanding additional dowry. Petitioner was placed under suspension vide Rc.No.A3/PF/81/SPF/2011, OO No.696/2011, dated 17.09.2011 as he was involved in a criminal case. (b) The petitioner was issued a Memorandum of Charge vide Rc.No.A3/PR/81/SPF/2011-12, dated 07.06.2012 under Rule 20 of APCS (CC&A) Rules, 1991 and the petitioner instead of submitting an explanation to the said Memo, filed OA No.6093 of 2012 before A.P. Administrative Tribunal, wherein the learned Tribunal had passed orders by setting aside the suspension of the petitioner and directing the respondents to reinstate the petitioner into service immediately without prejudice to the disciplinary case pending against the petitioner. (c) In compliance of the orders of the Tribunal in OA No.6093/2012 and in exercise of the powers conferred by clause (c) of sub-rule (5) of Rule 8 of the A.P. Civil Services (CC&A) Rules, 1991, the suspension orders against the petitioner was revoked by the Commandant-I, SPF, Secunderabad duly reinstating the petitioner into service vide Rc.No.A3/PR/81/SPF/2011-13, OO No.A31001/2013, dated 02.01.2013 and consequently, the petitioner was taken into duty on the Forenoon of 03.01.2013. (d) Petitioner acknowledged the Memorandum of Charge on 20.06.2012 and submitted his explanation dated 13.06.2015 denying the charges levelled against him. The Assistant Commandant, APSPF, Krishnapatnam conducted an oral enquiry as per the procedure laid down in APCS (CC&A) Rules, 1991 and submitted a report vide C.No.05/AC/APSPF/SDSTPS/NLR/OE (HC-689)/D.No.160/16, dated 04.03.2016 duly proving the Articles of Charge framed against the petitioner, based on the evidence adduced during OE from the statements of the concerned witnesses only. Further, the petitioner was issued a show-cause notice vide Rc.No.APSPF/A3/PR/81/2011-16 dated 11.03.2016 inviting further explanation if any, on the enquiry report and accordingly, the petitioner submitted his explanation dated 05.04.2016. (e) The Disciplinary Authority imposed penalty of "Compulsory Retirement from Service", under Rule 9(viii) of APCS (CC&A) Rules, 1991 on the petitioner vide Rc.No.A3/PR/81/SPF/2011-16, OO No.587/2016, dated 03.06.2016. Aggrieved thereby, the petitioner had preferred an appeal dated 28.08.2017 to the Director General, APSPF and the same was rejected both on grounds of merits and also being time barred vide orders dated 30.04.2019. Further, the petitioner submitted a representation dated 20.11.2019 to the Director General, APSPF and same was forwarded to the Government alongwith the required documents for necessary action. The Government after examination of the matter with reference to the material available on record, rejected the request of the petitioner. Further, the petitioner submitted a representation dated 20.11.2019 to the Director General, APSPF and same was forwarded to the Government alongwith the required documents for necessary action. The Government after examination of the matter with reference to the material available on record, rejected the request of the petitioner. (f) Petitioner was convicted in CC No.176 of 2013, against which he preferred an appeal before the Family Court, in Crl. A No.92 of 2016 which was allowed setting aside the judgment of the Trial Court. The Hon'ble Apex Court while dealing with such cases delivered judgments as the Hon'ble Court relied on the observations made in Ajit Kumar Nag v. G.M. Indian Oil, Appeal (Civil) No.4544 of 2005, dated 19.09.2005 wherein, it was held that acquittal of the appellant by a Judicial Magistrate does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. (g) The petitioner being a member of the disciplined force, had beaten his wife and son indiscriminately besides maintaining illicit relationship with another woman. These acts of the petitioner brought disrepute to the entire organization and the conduct of the petitioner does not fit well for SPF. 4. In the reply filed by the petitioner, while denying the averments of the counter filed by respondent No.3, it is submitted that the Inquiring Authority had conducted the alleged oral enquiry in utter violation of the procedure laid down in Rule 20 of A.P. Civil Services (CC&A) Rules, 1991 and submitted a false report dated 04.03.2016. As per clause (b) of sub-rule (5) of Rule 20 of CCA Rules, the Disciplinary Authority should appoint a presenting officer to present the case before the Inquiring Authority, but for the reasons known to both the Authorities, no presenting officer was appointed in the enquiry held against the petitioner. Thereby the inquiry is hit by the violation of the principles of natural justice. (b) The alleged inquiry was conducted within the premises of Mahila Police Station, Anantapuram on 28.09.2015 and 19.09.2015 and the petitioner was not given any opportunity to cross-examine the witnesses. However, the inquiry authority had mentioned in his report that the petitioner denied to cross-examine PWs.1, 2 and 6. (c) The proceedings of the appointment of the Inquiry Authority were not served on the petitioner. Conducting of oral departmental inquiry is unknown to law particularly to the CCA Rules. However, the inquiry authority had mentioned in his report that the petitioner denied to cross-examine PWs.1, 2 and 6. (c) The proceedings of the appointment of the Inquiry Authority were not served on the petitioner. Conducting of oral departmental inquiry is unknown to law particularly to the CCA Rules. The Disciplinary Authority made a mockery of the conduct of inquiry against the petitioner and of imposing the penalty of compulsory retirement illegally. When the wife of the petitioner rejected to join him in Srisailam and when all his efforts to live with her had failed, and when the petitioner divorced her on 15.04.2011, she lodged a false case against the petitioner and this explanation was not considered by the Inquiry Authority and Disciplinary Authority. (d) The petitioner never beat his wife and son and he never maintained any illicit relationship with any women, but the Authorities have not afforded any opportunity to prove his innocence. 5. Heard Sri S. Kaleemulla, learned Counsel for the petitioner and learned Government Pleader for Services-I. 6. Learned Counsel for the petitioner would submit that the petitioner worked as a Constable in APSPF and later he was promoted as Head Constable in the year 1999. His marriage with Syed Naseem Banu had taken place on 09.05.1994 and the couple blessed with a son in the year 1995. It is submitted that the wife of the petitioner lodged a criminal case against him for the offences under Sections 498-A and 506 IPC and Sections 3 and 4 of D.P. Act. In connection with the said case, the petitioner was arrested and remanded to judicial custody, due to which he was suspended. Learned Counsel would submit that the department had initiated disciplinary proceedings against the petitioner and the petitioner had submitted his explanation to the effect that he had divorced his wife on 15.04.2011 and as a repercussion, his wife made a false complaint on 21.07.2022 to wreak vengeance against him. Learned Counsel would submit that the Inquiry Authority found the petitioner guilt for the charge levelled against him and the Disciplinary Authority retired the petitioner under Compulsory Retirement. It is submitted that the appeal preferred by the petitioner was also rejected. Learned Counsel would submit that the Inquiry Authority found the petitioner guilt for the charge levelled against him and the Disciplinary Authority retired the petitioner under Compulsory Retirement. It is submitted that the appeal preferred by the petitioner was also rejected. Learned Counsel would further submit that the petitioner was convicted before the Trial Court and he preferred Criminal Appeal No.92 of 2016 against the said judgment of conviction in CC No.176 of 2013 and the said appeal was allowed setting aside the conviction against the petitioner. In the meanwhile, the charges were proved before the Disciplinary Authority and punishment of compulsory retirement was also imposed against the petitioner. Learned Counsel would submit that, the said charges are not relating to the official duties of the petitioner and the petitioner was kept in dark and recorded in the enquiry that he denied to cross-examine the witnesses. Learned Counsel would further submit that the enquiry has not been conducted in a fair manner. Petitioner had obtained divorce from his wife on 15.04.2011 and the present case has been lodged on 21.07.2011. Learned Counsel would submit that the matter may be remanded to the Inquiry Authority. 7. Learned Government Pleader would submit that, simply because the petitioner was acquitted in a criminal case does not automatically entitles him for restoring his position as an employee of SPF. It is submitted that PWs.3 and 4, who are the wife and the son of the petitioner categorically deposed before the Disciplinary Authority about the offence committed by the petitioner. The judgment of the Criminal Court has no bearing for the Departmental Enquiry. In support of his contention, the learned Government Pleader has placed reliance on the judgment of the Hon'ble Apex Court in State Bank of India and others v. P. Zadenga, (2023) 10 SCC 675 . Learned Government Pleader would further submit that the woman and a child have been harassed by the petitioner under the guise of illegal relationship with another woman. It is stated that the petitioner, who is the Head Constable in SPF shall not involve in any act causing harassment to his wife and child. It is contended that the judgment in Crl. A No.92 of 2016 on the file of the Family Court, is not binding on the Disciplinary Authority. It is stated that the petitioner, who is the Head Constable in SPF shall not involve in any act causing harassment to his wife and child. It is contended that the judgment in Crl. A No.92 of 2016 on the file of the Family Court, is not binding on the Disciplinary Authority. Learned Government Pleader would finally submit that this Court cannot re-appreciate the evidence while sitting on Article 226 of the Constitution of India. 8. Having heard the submissions of learned Counsel for both parties and on perusal of the material on record, the point that would emerge for determination is : Whether the petitioner is entitled for reinstatement into the services and the consequential reliefs as prayed for? Point : 9. There is no dispute about the relationship of the petitioner with the complainant Syed Naseem Banu, who was examined as PW3 before the Inquiry Authority. PW4 is the son of the petitioner and PW3. PW6 is the sister of PW3. The evidence of PW6, who was working as Head Constable in A.R., Anantapuram District would show that on 14.05.2011 his sister i.e., PW3 came to her house alongwith her son i.e., PW4. She tried to Counsel the petitioner, but he did not change his mind. During pendency of the present petition, additional documents have been filed by the petitioner to show that he had divorced his wife on 15.04.2011, alongwith the copies of the Demand Drafts Bearing Nos.062550 and 062551, dated 13.04.2011 for an amount of Rs.1,125/- and Rs.5,000/- respectively, drawn in favour of his wife S. Naseem Banu. 10. The material on record would clearly show that Talaqnama was also pronounced by the petitioner on 15.04.2011. As stated by PW6, PWs.3 and 4 went to her house on 14.05.2011 and in the month of July, the present case has been lodged. It is pertinent to mention that PW6, who is the sister of PW3 is also Head Constable working in Anantapuram. As rightly put by the learned Counsel for the petitioner, the enquiry report would show that there was no cross-examination as reported by the petitioner. According to the petitioner, he was not given any opportunity to cross-examine the witnesses and the enquiry was not conducted even in his presence. As rightly put by the learned Counsel for the petitioner, the enquiry report would show that there was no cross-examination as reported by the petitioner. According to the petitioner, he was not given any opportunity to cross-examine the witnesses and the enquiry was not conducted even in his presence. This Court in M. Veeranna Raju v. State of A.P., 2024 SCC OnLine AP 1476, outlined the importance of conducting cross-examination in disciplinary proceedings as follows: "25. In a disciplinary enquiry, the opportunity to cross-examine a witness who is providing deposition as against the delinquent employee plays a vital role in unearthing the factual aspects of the charge. There could be instances where the witness in his chief-examination speaks of those that are favourable to his version alone. Denying the opportunity for cross-examination would lead to anomalous consequence of presuming the charge without testing the correctness or credibility of the witnesses. This is the reasonableness and the indication of adherence to the principles of natural justice, which the law seeks to protect by virtue of Rule 20." 11. There cannot be any dispute about the legal proposition which was relied on by the learned Government Pleader in P. Zadenga's case (supra), to the effect that the acquittal by a Criminal Court would not debar an employer from exercising the power to take departmental proceedings according to the Rules and Regulations. It is relevant to extract Para No.26 of the judgment in P. Zadenga's case (supra), wherein, the Hon'ble Apex Court held as follows : "26. In Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju, it was observed : "9. Acquittal by a Criminal Court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objections. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the P.C. Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different." (Emphasis supplied) 12. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different." (Emphasis supplied) 12. There cannot be any dispute about the contention that the acquittal from a criminal case ipso facto does not entitle the petitioner for automatic reinstatement. The field in which a disciplinary proceedings operate is different. But, the peculiarity of the present case is that, though the petitioner got divorced prior to the registration of the criminal case, that was never discussed either before the Criminal Court during the course of trial or before the enquiry authority which is a crucial one. 13. Coming to the facts of the present case, denying the right of the petitioner to cross-examine the witnesses and not even discussing about the divorce obtained by the petitioner prior to filing of the criminal case, are crucial aspects, which require elaborate hearing. In view of that, this Court is of the opinion that the impugned order to the extent of imposing punishment of compulsory retirement against the petitioner, is not sustainable and the same is liable to be set aside and the respondent authorities are directed to reinstate the petitioner into service. However, with regard to the relief of consequential benefits, the respondent authorities are directed to consider the case of the petitioner and take a decision in accordance with the Rules and Regulations. 14. Accordingly, the writ petition is disposed of with the above observations. There shall be no order as to costs. 15. Pending applications, if any, shall stand closed.