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2025 DIGILAW 1283 (TS)

Mohd. Ghouse Pasha v. State of Telangana

2025-10-25

NAMAVARAPU RAJESHWAR RAO

body2025
ORDER : NAMAVARAPU RAJESHWAR RAO, J. This Writ Petition is filed seeking the following relief : “...to call for the records relating to proceedings in C.No.A6/A6-1/OE/2009(1979) DO No.1840/2011 dt. 17.09.2011 of the 4 th respondent in imposing the punishment of removal from service and the Proceedings Rc.No.1227/D1-Appeal/HR/2014(RO No.951/14) dated 04.09.2014 of the 3 rd Respondent in dismissing the appeal and the Proceedings in R.O.No.75/2015 Rc.No.211/PR/Revn/WZ/2014-15 dated 20.03.2015 of the 2 nd respondent in dismissing the revision of the applicant and the Memo No.10565/Ser.II/A1/2015 dated 20.01.2016 in rejecting the Representation of the applicant for setting aside the orders punishment as illegal. Consequently direct the respondents to reinstate the applicant into service with all consequential benefits forthwith and pass...” 2. Heard Sri Kadari Krishnaiah, learned counsel for the petitioner and learned Government Pleader for services (Home), appearing for the respondents. 3. Learned counsel for the petitioner submitted as follows: That initially, the petitioner was appointed as a Police Constable in the year 1998 and rendering his service with utmost sincerity. While the petitioner was working as a police constable in Nalgonda District, disciplinary proceedings were initiated against him by issuing a charge memo vide Proceedings C.No.26/A6-1/OE/2009(1979), dated 13.08.2009 of the 4th respondent alleging as follows: “Count 1: Gross misconduct in preparing fake computerized Police Certificates, bearing Nos.595/NGA- II/2009 dt. 11.05.2009 and 601/NGA-II/2009 dt.14.05.2009 regarding loss of original passports of Sri Mohd. Kaleemullah S/o. Waheedullah, 35 yrs, Occ. Plots Business R/o. H.No. 5-11-415, Hyderkhanguda, Nalgonda and Sri. Mohd. Khursheed S/o. Mohd. Khasim, 33 yrs, R/o. H.No. 6-2-878/C1, Meer Bagh Colony, Hyderabad Road, Nalgonda respectively on his personal computer at home and forging the signature of SI of Police, Nalgonda II(T) PS and affixing duplicate stamps of SI on the Certificates and giving the same to the said Mohd. Kaleemullah and Mohd. Khursheed for Rs.2000/- and 3000/- respectively and fraudulently helped them in getting new passports and thereby got involved in Cr.No. 141/2009 u/s. 420, 467, 468 & 471 IPC of PS Nalgonda II(T). Count II : Gross Misconduct in preparing (19) fake rubber stamps of various officers and forging hire charges bills and medical certificates etc., 4. The petitioner made a representation for deferment of disciplinary proceedings till the disposal of the criminal case as the charges were not different in the Departmental as well as in the criminal proceedings. Count II : Gross Misconduct in preparing (19) fake rubber stamps of various officers and forging hire charges bills and medical certificates etc., 4. The petitioner made a representation for deferment of disciplinary proceedings till the disposal of the criminal case as the charges were not different in the Departmental as well as in the criminal proceedings. Despite the said representation, respondent No.4 proceeded with the disciplinary proceedings by appointing an Enquiry Officer vide proceedings dated 10.09.2009. The Disciplinary Authority had acted in breach of the procedure contemplated under Rule 20 of APCCA Rules as no Presenting Officer was appointed to present the case of the prosecution in the departmental proceedings before the Enquiry Officer. In the absence of the Presenting Officer, the Enquiry Officer had assumed role of the Prosecutor and proceeded with the enquiry and submitted a report holding that the charge drawn against the petitioner was held proved. 5. During the course of enquiry, four witnesses were examined on behalf of the prosecution and their statements were recorded by the Enquiry Officer without there being any Presenting Officer. No independent witness was examined to substantiate the charge drawn against the petitioner and all the above mentioned witnesses examined against the petitioner, are the official witnesses. Despite the evidence of the official witnesses is not corroborated by any independent witnesses and despite the evidence of the official witnesses does not point out the complicity of the petitioner, the Enquiry Officer has chosen to rely upon the statement of PW.2 so as to come to the conclusion that the charge against the petitioner was held proved. The findings of the Enquiry Officer are perverse as the Enquiry Officer chosen to hold that the charge was held proved based on the statements of the witnesses. Without marking the documents in support of the prosecution, the Enquiry Officer had chosen to rely upon the record available with him and came to the conclusion that the charge framed against the petitioner was proved. Further, the Enquiry Officer had drawn strength to hold that the charge against the petitioner as proved by relying upon the record concerning the investigation made by the police in the criminal case registered against the petitioner. The Enquiry Officer had acted in a biased manner at the dictates of the Disciplinary authority investigation. 6. Further, the Enquiry Officer had drawn strength to hold that the charge against the petitioner as proved by relying upon the record concerning the investigation made by the police in the criminal case registered against the petitioner. The Enquiry Officer had acted in a biased manner at the dictates of the Disciplinary authority investigation. 6. Apart from initiating departmental proceedings against the petitioner, a case was registered against him vide Crime No.141 of 2009 concerning the same issue of issuance of fake certificates under the provisions of IPC., and that full-fledged trial was conducted by the learned trial Court and C.C.No.202 of 2012 was ended in acquittal vide judgment dated 15.04.2014. The learned trial Court after appreciation of evidence held that the prosecution failed to prove the ingredients of cheating and forgery as none of the witnesses stated about the alleged forgery and no technical evidence available so as to come to the conclusion to prove the guilt of the petitioner concerning the act of the alleged forgery. Hence, when the evidence let in the departmental proceedings and the criminal proceedings is examined, it is evident that the witnesses are the one and the same and the nature of allegation in both the parallel proceedings is same, and as such it is clear that the Enquiry Officer in the departmental proceedings had come to a conclusion without there being any evidence to prove the complicity of the petitioner by merely relying upon the statements of official witnesses. 7. The documents which are said to have been prepared by the petitioner and which was the genesis for initiation of the disciplinary proceedings against the petitioner, were not marked in the enquiry so as to substantiate the charge against the petitioner. Non-examination of the crucial witnesses and not marking of the documents are incurable defects and in the absence of any evidence, no findings can be arrived at regarding proving of the charge. 8. Based on the report of the Enquiry Officer, respondent No.4 had issued a show cause notice to the petitioner without appreciating the merits of the case, seeking further written statement of defence from the petitioner. 8. Based on the report of the Enquiry Officer, respondent No.4 had issued a show cause notice to the petitioner without appreciating the merits of the case, seeking further written statement of defence from the petitioner. Though the petitioner had submitted the explanation, the same was not considered by respondent No.4 and has chosen to issue the impugned orders imposing a major penalty of removal from service and that the orders issued by respondent No.4 are highly disproportionate to the misconduct alleged against the petitioner. 9. The petitioner filed an appeal before respondent No.3 and revision before respondent No.2 and the same were rejected through a non-speaking order without assigning any sustainable reasons. As the orders of punishment and the orders of appellate and the revisional authority in confirming the punishment orders of respondent No.1, are contrary to law and the petitioner was constrained to file a mercy petition before the Government and the same was rejected vide Memo dated 20.01.2016. Hence, the present Writ Petition. 10. Learned counsel for respondent No.4, filed counter affidavit and submits that the petitioner was appointed as Police Constable (Civil) in Nalgonda District on 01.09.1999 and at present he is “Removed from Service” and was placed under suspension vide DO No.1029/2009 (C.No.1979/A6-1/PR/2009), dated 14.07.2009 and dealt with PR under Rule 20 of APCS (CC&A) Rules 1991 on the allegations of gross misconduct in preparing fake computerized Police Certificates, bearing Nos.595/NGA-II/2009 and 601/NGA-II/2009, dated 14.05.2009 regarding loss of original passports of Sri Mohd. Kaleemullah and Sri Mohd. Khursheed, on his personal computer at home, forging the signature of SI of Police, Nalgonda II (T) PS and affixing duplicate stamps of SI on the certificates and giving the same to the said persons for Rs.2,000/- and Rs.300/- respectively and fraudulently helped them in getting new passports by preparing fake rubber stamps of various officers and forging hire charges bills and medical certificates etc., and thereby getting involved in a criminal case vide Cr.No.141 of 2009 for the offences punishable under Sections 420 , 467, 468 and 471 of IPC. The misconduct on part of the petitioner was clearly established in the departmental inquiry. 11. The SDPO, Miryalguda, was appointed as inquiry authority to conduct an oral enquiry into the above allegations and he conducted the oral enquiry and submitted enquiry report vide C.No.05/OE/SDPO-M/2009, dated 25.06.2011, holding the charge against the petitioner as “Proved”. The misconduct on part of the petitioner was clearly established in the departmental inquiry. 11. The SDPO, Miryalguda, was appointed as inquiry authority to conduct an oral enquiry into the above allegations and he conducted the oral enquiry and submitted enquiry report vide C.No.05/OE/SDPO-M/2009, dated 25.06.2011, holding the charge against the petitioner as “Proved”. The three civil witnesses were not examined and their evidence was given up due to their non-availability at their addresses. The evidence of four official witnesses i.e., PWs.1 to 4 as well as documentary evidence available on record, amply proves that the petitioner had prepared fake computerized Police Certificates regarding loss of original passports. 12. The charged officer/petitioner had not protested about non-appointment of any Presenting Officer and he did not raise any objection when asked by the Inquiring Authority and he declared that nothing was there to add and requested the Inquiring Authority to proceed with departmental enquiry. The Enquiry Officer had carefully gone through the oral enquiry, charge, deposition of PWs.1 to 4 and other particulars of the forged documents prepared by the petitioner on his personal computer which was seized under cover of panchanama and held the charge as “Proved”. A copy of the inquiry report was supplied to the petitioner calling for his further representation, if any. The petitioner, accordingly, submitted his further explanation, which is not convincing as per CCA Rules and order No.179 (2)(3) of APPM, and final orders were passed on the enquiry report. The charge sheet in the criminal case had not been filed in the Court at the time of disposal of departmental enquiry. Therefore, he was awarded the punishment of “Removal from Service” and his suspension period from 09.07.2009 to till the date of service of this order was treated as “Not on Duty” vide proceedings DO.No.1840/2011, C.No.26/A6-1/OE/2009 (1979), dated 17.09.2011. 13. A criminal case was pending vide Cr.No.141 of 2009 on the file of Nalgonda II-Town Police Station. A full-fledged trial was conducted by the learned trial Court and C.C.No.202 of 2012 was ended in acquittal vide judgment dated 15.04.2014. The petitioner preferred an appeal before respondent No.3 and the same was considered and rejected vide Proceedings RO.No.951/2014 (RC.No.1227/D1-Appeal/HR/14), dated 04.10.2014. Later, the petitioner preferred revision before respondent No.2 and the same was considered and rejected vide Proceedings RO.No.75 of 2015 (Rc.No.211/PR/Revn/West Zone/2014-15) dated 20.03.2015 and the same was informed to the petitioner. 14. The petitioner preferred an appeal before respondent No.3 and the same was considered and rejected vide Proceedings RO.No.951/2014 (RC.No.1227/D1-Appeal/HR/14), dated 04.10.2014. Later, the petitioner preferred revision before respondent No.2 and the same was considered and rejected vide Proceedings RO.No.75 of 2015 (Rc.No.211/PR/Revn/West Zone/2014-15) dated 20.03.2015 and the same was informed to the petitioner. 14. The petitioner preferred a mercy petition before respondent No.1 on 08.07.2015 and the same was considered and rejected. The Chief Office, vide Memo Rc.No.1042/T1/2015, dated 21.07.2015 informed that as per the instructions issued in Government Memo No.22494/Pol.B/A2/2000-1 dated 10.07.2000, there is no provision to consider mercy petitions and directed to inform the individual. In light of the above, the respondents submit that the writ petition lacks merit and is liable to be dismissed. FINDINGS OF THE COURT: 15. A perusal of the record shows that departmental proceedings and criminal proceedings were going on against the petitioner. While pending the departmental proceedings, the petitioner was acquitted from the criminal case after full trial. At that juncture, without considering the acquittal order in criminal case, the respondent authorities removed the petitioner from the service. Whether the removal order is legally sustainable or not, is the question. 16. The contention of the respondents is that as per the investigation and witnesses, it clearly established that the petitioner had created the fake police clearance certificate by forging the signature of the PW.1, affixing duplicate stamps of SI on the certificates. The authorities also seized the articles i.e. petitioner’s personal computer and allied things, which supports the respondents’ contention. Hence, the charge against the petitioner was held to be proved. 17. As per CCA Rules and Order No.179(2)(3) of APPM, final orders can be passed on the enquiry report as the chargesheet in the criminal case had not been filed in the Court at the time of disposal of the departmental enquiry. Hence, he was awarded the punishment of ‘removal from service’ and his suspension period from 09.07.2009 to till date of service of the order was treated as ‘not on duty’, vide office proceedings dated 17.09.2011. Aggrieved by the same, the petitioner preferred an appeal and appeal was dismissed on 04.10.2014 on the ground that the appeal is time barred. It is pertinent to mention here that the petitioner had stated in the appeal about his acquittal in the criminal case on 15.04.2014. Aggrieved by the same, the petitioner preferred an appeal and appeal was dismissed on 04.10.2014 on the ground that the appeal is time barred. It is pertinent to mention here that the petitioner had stated in the appeal about his acquittal in the criminal case on 15.04.2014. But, the department did not prefer any appeal against the acquittal order in criminal case. So, it can safely be concluded that it is final. Even then, the appeal was dismissed only on the ground of “time barred” without going through the merits of the case as well as acquittal order. Against the same, the petitioner preferred revision on 08.11.2014 and the same was dismissed on 20.03.2015 in a mechanical manner. 18. Though the contention of the petitioner that without conducting the oral enquiry in a proper manner i.e. only official witnesses were examined and private persons could not be examined as they left the country. The petitioner has clearly mentioned in the appeal about his acquittal in the criminal case. But, the same was also not considered. Without considering the above aspects, the appellate authority rejected the appeal of the petitioner only on the ground of ‘time barred.’ 19. Once the incumbent raised an objection with regard to due process of oral enquiry as the enquiry was conducted by not examining all the witnesses, the appellate authority without going through the above aspects, dismissed the appeal as stated supra. Though the appellate authority rejected the appeal on the ground of ‘time barred’, it is the duty of the appellate authority to go through grounds raised in the appeal and consider the same, but it should not simply reject the appeal on the ground of ‘time barred.’ Had the appellate authority considered the appeal grounds, the punishment would have been otherwise. Wherever the departmental proceedings and the criminal proceedings are initiated, either of the one has to be stopped. But, in the present case both i.e. departmental proceedings and the criminal proceedings were initiated. When a criminal case ends in an acquittal after full trial, the authorities ought not to have passed the removal order. To support his contention, the petitioner based on the similar set of facts, relied upon the following judgments: In the case of G.M. Tank Vs. When a criminal case ends in an acquittal after full trial, the authorities ought not to have passed the removal order. To support his contention, the petitioner based on the similar set of facts, relied upon the following judgments: In the case of G.M. Tank Vs. State of Gujarat and another , AIR 2006 SC 2129 ; wherein the Hon’ble Supreme Court with regard to departmental proceedings and the criminal proceedings observed as follows : “In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony’s case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” On the basis of the same charges and the evidence, the Department passed an order of dismissal on 21.10.1982 whereas the Criminal Court acquitted him on 30.01.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f.30.01.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension. For the foregoing reasons, we set aside the judgment and order dated 28.01.2002 passed by the learned single Judge in Special Civil appln.No.948 of 1983 as affirmed by the Division Bench in L.P.A. No.1085 of 2002 and allow this appeal.” 20. In the case of D. Khasim Saheb Vs. Director of Marketing in W.P. No.23373 of 2003, decided on 02.05.2023 by the Division Bench of Hon’ble High Court of Andhra Pradesh, wherein it is held as follows: “8. In the case of D. Khasim Saheb Vs. Director of Marketing in W.P. No.23373 of 2003, decided on 02.05.2023 by the Division Bench of Hon’ble High Court of Andhra Pradesh, wherein it is held as follows: “8. Now it is well settled that when an employee was acquitted in the criminal case and it is an honourable acquittal, the finding of guilt recorded against him in the departmental enquiry and imposing major punishment against him on the basis of the same set of facts cannot be sustained. The legal position in this regard is no more resintegra and the same has been well settled.” By following the judgment of the Hon’ble Supreme Court in the case of G.M. Tank (supra), the W.P.No.23373 of 2003 was allowed. 21. In the case on hand also, the petitioner was acquitted from the criminal case on 15.04.2014. Under similar set of facts, the authorities proceeded with criminal proceedings and departmental proceedings. While pending the criminal proceedings, the removal order was passed on 17.09.2011. Remedy was available to the petitioner to prefer an appeal and revision. In the interregnum period, the petitioner was acquitted from the criminal case on 15.04.2014 and referring the acquittal order, the petitioner preferred an appeal and revision. Without considering the acquittal order, the authorities rejected appeal on the ground of ‘time barred’ and rejection order was passed in a mechanical way, and confirmed the removal order. Though the criminal case is ended in acquittal, the conduct of the petitioner cannot be encouraged by any authority. Such activity can be curbed by following due process of law. Otherwise, it vitiates the entire departmental proceedings. 22. In view of the principles laid down in the above case law, as the petitioner was acquitted after full trial and once the acquittal order passed by the trial Court and since no appeal is preferred against the said judgment, the removal order as confirmed by the appellate authority and revisional authority, cannot be legally sustained, as such, it is liable to be set aside. Accordingly, the removal order is set aside, however, without back wages. Merely because there is a glitch on the part of the respondent authorities in prosecuting the case against the petitioner with due process of law and they failed to establish the case against the petitioner by not producing sufficient evidence, does not mean that the petitioner is an innocent. Accordingly, the removal order is set aside, however, without back wages. Merely because there is a glitch on the part of the respondent authorities in prosecuting the case against the petitioner with due process of law and they failed to establish the case against the petitioner by not producing sufficient evidence, does not mean that the petitioner is an innocent. Had the petitioner not been committed any such offence, the respondent authorities who are in a disciplined force, would not have taken such a serious action of removal from the service. Moreover, the petitioner also did not adduce any evidence that the respondent authorities had an ill-motive and to take revenge against him, foisted a false case. In the said circumstances, this Court is of the considered view that the petitioner is not an innocent, and to abandon such irregularities in the department in future, he is not granted any back wages. 23. In view of the foregoing discussion, the removal order, dated 17.09.2011 passed by the 4 th respondent is hereby set aside. The respondent authorities are directed to reinstate the petitioner within a period of two (02) months from the date of receipt of a copy of this order. However, the petitioner is not entitled to any back wages from the date of his suspension i.e. 09.07.2009 till his reinstatement. 24. With the above direction, the Writ Petition is disposed of. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed.