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2024 DIGILAW 368 (AP)

State Of Andhra Pradesh v. K. Tirumaleswara Rao

2024-03-18

G.NARENDAR, NYAPATHY VIJAY

body2024
JUDGMENT: NYAPATHY VIJAY, J. The present writ appeals are preferred by the State against common order dated 06.01.2023 passed in W.P.Nos.30674, 30766 and 30857 of 2021 in allowing the writ petitions by setting aside the orders of dismissal from service passed by the disciplinary authority as affirmed by the appellate authority. 2. For the sake of convenience, the facts in W.A.No.638 of 2023 filed against W.P.No.30766 of 2021 are taken to be the lead appeal for narration of facts. 3. The brief facts leading to the filing of the writ petition are as follows: The petitioner was enlisted as Civil Constable with General No.2410 in East Godavari District Police with effect from 15.08.1990 and was promoted as head constable with effect from 02.03.2014. The petitioner had a clean record and there were no complaints against him till his alleged involvement in Cr.No.294 of 2014 before Peddapuram Police Station. The FIR was registered primarily against four individuals with regard to the stolen Panchaloha idol. The said individuals were arrayed as A.1 to 4 in the said crime. The crime was registered under section 380 and 411 I.P.C. The petitioner and two others were arrayed as accused in the said case as A.5, 6 and 7 on the basis of confessional statements made by A.1 to 4 to the Investigating Officer. 4. The petitioner and two others were immediately placed on suspension vide orders dated 02.09.2014 and a Memorandum of Charge was issued to the petitioners on 27.11.2014 vide proceedings Dis.No.42(B)/OEPR/2014 under Rule 20 of A.P.C.S (CC & A) Rules, 1991. In the charge memorandum, two Articles of Charge were framed against the petitioner and two others and the same reads as under: ARTICLE-I That, Sri K.Tirumaleswara Rao, HC 2410 of Annavaram P.S. has exhibited gross neglect of duty and reprehensible conduct by absenting herself for duty without any leave or permission from the superior officers from 14.09.2014 A.N and became deserter with effect from 14.09.2014 A.N. ARTICLE-II That Sri K.Tirumaleswara Rao, HC 2410 of Annavaram P.S. and now under suspension has exhibited gross neglect of duty and highly reprehensible conduct by involving in theft of “Panchaloha idol of Naked Lady” along with 9 others thereby involved as Accused in Cr.No.291/2014 under section 380,411 IPC of Peddapuram P.S. 5. The basis of the Charge Memorandum was the preliminary enquiry report submitted by Sub-divisional Police Officer, Peddapuram. The basis of the Charge Memorandum was the preliminary enquiry report submitted by Sub-divisional Police Officer, Peddapuram. The basis of the charge was that on 16.09.2014, the Inspector of Police Peddapuram received credible information about possession and transportation of idol. Accordingly, the Circle Inspector of Police, Peddapuram and S.I. of Police, Peddapuram along with their staff while conducting vehicle checking at Darga Centre, had noticed four persons i.e. A.1 to A.4 moving in a suspicious manner and the Police immediately secured their presence and examined them in the presence of mediators and took them into custody. One Panchaloha idol of a naked lady was recovered from their custody. It is alleged that A.1 had stated that Prathipadi Israel Raju, PC 2931 of Peddapuram P.S. (petitioner in W.P.No.30857 of 2021) had agreed to pay the amount for purchasing the idol. While the PC Israel Raju went to undergo training at Police Training Centre, Vizianagaram, the A.1 to A.4 went to Vizianagaram and contacted the said Israel Raju and on his advice, A.1 to A.4 contacted other friends of Israel Raju i.e. Prabhakara Rao and Tirumaleswara Rao( Writ Petitioner in WP.No.30674 and 30766 of 2021). On their request, the petitioner and others went to Parlakimidi and in the meantime, P.Isreal Raju joined the above persons. 6. It is alleged that the accused had negotiated with one person by name Edison to show the idol, who in turn took them to Narayanapuram village and had shown them the idol which was kept in a Government hostel. After negotiations, it was alleged that the accused agreed to pay Rs.12,00,000/- to buy the idol and had paid an amount of Rs.6,500/- as advance with a promise to pay the balance amount within a week. 7. It is alleged that the petitioner in turn contacted his friends Chiranjeevi Raju (A.8), Chundru Subba Rao Chowdary (A.9) and Modey Laxman Rao (A.10), who agreed to purchase the idol. However, as the said Edison did not agree to sell the idol for the price negotiated at a later point of time, the accused returned back to their village. Subsequently, the Petitioner along with other accused went to Parlakimidi village and among the accused, A.2, A.9 and A.10 went to Government hostel in Narayanapuram village and stole the Panchaloha idol which was stored there. 8. Subsequently, the Petitioner along with other accused went to Parlakimidi village and among the accused, A.2, A.9 and A.10 went to Government hostel in Narayanapuram village and stole the Panchaloha idol which was stored there. 8. It is alleged that the idol was kept in the custody of the petitioner for a period of four months and in the house of A.6 i.e. writ petitioner in W.P.No.30674 of 2021. Thereafter, the idol was kept in the custody of A.1. Initially, the accused could not find purchaser for the Panchaloha idol and at a later point of time one person by name Shankar agreed to purchase the idol. It was in that context that the A.1 to A.4 while on their way to catch a train to Nellore to sell the idol were apprehended by the Police as narrated above. The stolen idol was seized from the possession of A.1 under the cover of Mahazar and on the same day, Crime No.291 of 2014 under section 380, 411 I.P.C. was registered before Peddapuram Police Station against the writ petitioners and other accused on the basis of alleged confessions of A.1 to A.4. 9. On the basis of the confessions, the charge memorandum was issued to the petitioner. The petitioner submitted their statement of defence denying the allegations and that they were innocent of the allegations. In the course of enquiry, eight(8) witnesses were examined and the Enquiry Officer submitted his report holding that the charges against the writ petitioners were held proved. 10. On the basis of the Enquiry report, the Disciplinary Authority-respondent No.3 after due compliance of procedural requirements, vide orders dated 26.04.2021 imposed a penalty of dismissal from service. 11. Aggrieved thereby, the petitioner filed appeal before the respondent No.2 raising detailed grounds. The said appeal was rejected by respondent No.2 vide proceedings dated 26.11.2021. 12. The writ petitions were filed questioning the orders of dismissal from service as confirmed in departmental appeal. The learned single Judge allowed the writ petitions on three grounds i.e that the petitioners were undergoing training at Police Training Centre, Vizianagaram at the time of apprehension of accused A.1 to A.4, that the petitioners were discharged by the Criminal Court and that there was no complaint from the owner of the property and as such the question of theft of the idol would not arise. Hence, the present appeals are filed. 13. Hence, the present appeals are filed. 13. Heard Sri G.V.S.Kishore Kumar, learned Government Pleader for Services I and Sri A.K.Kishore Reddy, learned counsel for the respondents. 14. A reading of the enquiry report would disclose that there is no specific discussion with regard to Article of Charge No.1 apart from a fleeting reference to Article of Charge No.1. The disciplinary authority as well as appellate authorities order does not assign any reasons with regard to Article of Charge No.1. In the grounds of the present appeal, no grounds were urged with regard to Article of Charge No.1. The entire focus of the enquiry as well as disciplinary authority and appellate authority was with regard to Article of Charge No.2 only. 15. The basis for Article of Charge No.2 was the confession of accused A.1 to A.4 only. The confessional statements of accused A.1 to A.4 were marked in evidence in the enquiry, and the accused were also cited as witnesses in the enquiry. 16. In the disciplinary enquiry, the accused A.1 to A.4 were also examined and they denied the involvement of the petitioners in the alleged criminal case. They also denied the confessional statements said to have been made before the Police. In fact, Mohd.Basheeruddin (A.5), Prathipati Satyanarayana @ Sathi babu (A.3) Mahendrada Venkateswara Rao (A.4) in their cross-examination in the departmental enquiry denied any acquaintance or having seen the writ petitioners prior to the criminal case. The Vemagiri Ravi Kumar (A.1) in his deposition before the disciplinary authority though admitted acquaintance with Tirumaleswara Rao (writ petitioner in W.P.No.30766 of 2021), but denied his involvement with the idol. It was further deposed by Vemagiri Ravi Kumar (A.1) that he has no acquaintance with the other two writ petitioners and also deposed that the Panchaloha idol was with him since a long time. 17. The basis of the disciplinary enquiry against the petitioners being the confessional statements and which stood explicitly denied by the A.1 to A.4 as mentioned supra, there is absolutely no basis to relate the petitioners to the Article of Charge No.2. This is a case of no evidence and the question of preponderance of probability would not arise. 18. 17. The basis of the disciplinary enquiry against the petitioners being the confessional statements and which stood explicitly denied by the A.1 to A.4 as mentioned supra, there is absolutely no basis to relate the petitioners to the Article of Charge No.2. This is a case of no evidence and the question of preponderance of probability would not arise. 18. Another factor which cannot be lost sight of is that the Additional Judicial First Class Magistrate, Peddapuram in Crl.M.P.No.4187 of 2018 in C.C.No.270 of 2017 had discharged the petitioners from the criminal case vide orders dated 17.07.2019 and the order of discharge was not challenged by the State before higher Court. 19. As regards the direction of the learned single Judge for issuing all consequential benefits to the petitioners needs to be addressed. The issuance of Charge Memorandum and the suspension of the petitioners cannot be faulted for the reason that there is a basis for initiating the proceedings i.e. confessional statement by A.1 to A.4. The confessional statements can be the basis for departmental enquiry as held in Commissioner of Police Vs Narender Singh 2006(4) SCC 265 at para 31. It is altogether another aspect that the confessional statement could not be established as the accused no.1-4 had retracted from the alleged confessional statements. 20. Once, there is a basis for issuance of Charge Memorandum and keeping the delinquents under suspension, the grant of consequential benefits cannot be as a matter of course and the State cannot be burdened with substantial liability merely because the accused no.1-4 had retracted from the alleged confessional statements. Further, it is not the case of the petitioners that they were unemployed, post the impugned orders, as no plea was raised in the affidavit filed in support of the Writ petition. 21. Further, it is not the case of the petitioners that the suspension and consequential Charge Memorandum were on account of any vindictive action by the Department. Therefore, the order of the learned single Judge granting all consequential benefits is modified and the petitioners shall be entitled for reinstatement, but without consequential back wages. 22. Therefore, the writ appeals are partly allowed to the extent indicated above. No order as to costs. As a sequel, pending applications, if any, shall stand closed.