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2025 DIGILAW 448 (AP)

T. Venkateswar Rao v. State of Andhra Pradesh

2025-03-11

SUMATHI JAGADAM

body2025
ORDER : SUMATHI JAGADAM, J. This writ petition is filed to call for the record relating to proceedings No.5068/CPR&RD/G3/2015, dated 22.08.2017, of the 2 nd respondent and set aside the said proceedings as well as the proceedings ROC.No.1543/2007-A6 dated 31.01.2011 of the 4 th respondent and consequently to direct the respondents to reinstate the petitioner into service with all consequential benefits. 2. Initially, the petitioner was appointed as a Bill Collector on 01.09.2021 and later promoted to Junior Assistant on 21.08.2006. He was suspended on 03.01.2008 by the 4 th respondent for misusing house tax and other taxes amounting to Rs.5,57,390/- while working as a Bill Collector at Vinjamur Gram Panchayat. While he was working as such, the 4 th respondent issued charge memo dated 18.06.2007 framing a charge against him that he misused house tax collection and water tax contribution of Rs.5,57,390/-, and directed to submit explanation and the petitioner submitted explanation denying the charge. 3. The order of suspension dated 03.01.2008 was challenged in O.A.No.2273 of 2008. The said O.A. was disposed of on 09.04.2008 directing the respondents to pass final orders in a month, failing which, the petitioner shall be reinstated, and as the respondents could not pass final orders, the petitioner was reinstated into service on 08.08.2008. 4. The Disciplinary Authorities have observed that in the impugned order that the enquiry was conducted ex parte and the 4 th respondent issued final order on 10.06.2009 dismissing the petitioner from service. Aggrieved by the order passed by the 4 th respondent, the petitioner has filed O.A.No.6961 of 2009. On 27-07-2009, the following order is passed: “The respondents are at liberty to initiate fresh enquiry against the applicant by following the procedure, and to take appropriate action depending on the report of the fresh enquiry report, if they choose to do so. In the meanwhile, the impugned order is set aside, the respondents are directed to reinstate the applicant into service. With this direction, the O.A.is disposed of.” 5. The 4 th respondent, without following the procedure contemplated under the CCA Rules, has once again issued proceedings of removal vide ROC.No.1543/2007-A6 dated 31.01.2011, against which, the petitioner has preferred appeal on 10.02.2011 before the 2 nd respondent. With this direction, the O.A.is disposed of.” 5. The 4 th respondent, without following the procedure contemplated under the CCA Rules, has once again issued proceedings of removal vide ROC.No.1543/2007-A6 dated 31.01.2011, against which, the petitioner has preferred appeal on 10.02.2011 before the 2 nd respondent. When the 4 th respondent has initiated enquiry through charge memo dated 18.06.2007, the State filed a criminal case against the petitioner and the same was numbered as C.C.No.67 of 2011 on the file of the Court of the Judicial Magistrate of First Class, Udayagiri. By its judgment dated 23.11.2015, the learned Magistrate found the petitioner as not guilty of the charge and acquitted him from the charge under Section 409 of IPC. 6. Subsequently, vide an order dated 01.09.2006, O.A.No.2407 of 2015, which was filed to set aside the order of removal dated 31.01.2011 passed by the 4 th respondent, was allowed directing the 2 nd respondent to dispose of the appeal filed by the petitioner by duly considering his acquittal in C.C.No.67 of 2011. Thereafter, the 2 nd respondent has rejected the appeal by proceedings dated 22.08.2017, against which, the present writ petition is filed. 7. Heard Sri K.R. Srinivas, learned counsel for the petitioner, and learned Assistant Government Pleader for Services-II appearing for the respondents, and perused the record. 8. Learned counsel for the petitioner argues that the Tribunal has disposed of the O.A.No.2407 of 2015, directing the 2 nd respondent to dispose of the appeal by duly considering the factum of acquittal of the petitioner in C.C. No. 67 of 2011, dated 23.11.2015, and pass appropriate orders in accordance with the Rules. The 2 nd respondent, without considering the judgment rendered in the criminal case, has dismissed the appeal, which contradicts the orders issued in O.A. No.2407 of 2015. i) The counsel for the petitioner further argues that when the employee is proceeded against simultaneously for the same charge before the criminal Court and by the Department, the benefit of acquittal in the criminal case must be extended and as the witnesses examined in the criminal case and the departmental inquiry are identical and the petitioner is entitled to the relief prayed for in the writ petition. ii) When an identical question has fallen for consideration before the Hon’ble Supreme Court as to whether the departmental proceedings and the proceedings in criminal case launched on the basis of same set of facts can be issued simultaneously, the Hon’ble Supreme Court at paragraph 34 of its judgment in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. , [(1993) 3 SCC 679] held as follows: “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant's residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” iii) In G.M.Tank Vs. State of Gujarat , [ (2006) 5 SCC 446 ] , the Hon’ble Apex Court observed thus: “30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. State of Gujarat , [ (2006) 5 SCC 446 ] , the Hon’ble Apex Court observed thus: “30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr.V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. 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. 31. 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.” iv) In Union of India Vs. Methu Meda , [ (2022) 1 SCC 1 ] , the Hon’ble Supreme Court has discussed with regard to the expression “honourable acquittal” as follows: “10. While addressing the question, as argued the meaning of expression “acquittal” is required to be looked into. The expressions “honourable acquittal”, “acquitted of blame” and “fully acquitted” are unknown to the Code of Criminal Procedure or the Penal Code, 1860. It has been developed by judicial pronouncements. “The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extra-judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what the government authorities term “honourably acquitted”.” 9. On the other hand, the learned Assistant Government Pleader for Services-II appearing for the respondents argues that the criminal proceedings and the proceedings in the departmental enquiry are quite different. Paragraph 13 of G.O.Ms.No.25, General Administration (Ser.C) Department, dated 03.02.2004, allows simultaneous initiation of both disciplinary and criminal proceedings, and in the departmental proceedings, the preponderance of probability is sufficient to prove the guilt of an earring official. 10. Paragraph 13 of G.O.Ms.No.25, General Administration (Ser.C) Department, dated 03.02.2004, allows simultaneous initiation of both disciplinary and criminal proceedings, and in the departmental proceedings, the preponderance of probability is sufficient to prove the guilt of an earring official. 10. In the departmental inquiry, it was found that the petitioner misappropriated an amount of Rs.5,40,000/-. Consequently, the petitioner was dismissed from service under Rule 9 (10) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 (for short “the CCA Rules, 1991”) by respondent No. 4. The appellate authorities considered all the aspects, including the orders passed in OA and the criminal case, and issued a detailed order. He prayed for dismissal of the Writ Petition. 11. It is evident from the charge memo that the charge framed against the petitioner is that he has misused the house tax and water tax to a tune of Rs.5,57,390/- and the basis of the charge is the letter of the Panchayat Secretary, Vinjamur Gram Panchayat, dated 08.05.2007. Crime No.60 of 2008 was registered for the offence punishable under Section 409 of IPC based on the report given by the Panchayat Secretary for same set of allegations i.e., he has collected an amount of Rs.5,57,390/- towards house tax pertaining to certain houses located in Vinjamur Gram Panchayat for the years 2000 to 2006. But, the enquiry officer has not seized the records pertaining to collection of house tax and water tax contribution. 12. Except the letter of Panchayat Secretary, the names of the witnesses were also not shown in Annexure-II of the charge memo. In the absence of the material, it cannot be said that the enquiry was conducted as per the procedure contemplated under the CCA Rules, 1991. 13. The criminal case and the charge memo issued against the petitioner are identical. The Investigating Officer admitted in cross- examination that inspections would be conducted for every three or six months, and no misappropriation was found during the investigation. She further stated that audits would be conducted annually, and no audit report was seized from the office. Aside from the oral testimony of the assessee, the prosecution presented nothing to support the claim that the petitioner collected funds from individuals. The complaint covered the period from 2004 to 2006, and the report was issued in 2008. She further stated that audits would be conducted annually, and no audit report was seized from the office. Aside from the oral testimony of the assessee, the prosecution presented nothing to support the claim that the petitioner collected funds from individuals. The complaint covered the period from 2004 to 2006, and the report was issued in 2008. When it is the case of the respondents that the petitioner misappropriated funds between 2004 and 2006, what prevented the respondents from filing a complaint, especially considering that audits are conducted each year. Moreover, the criminal court acquitted the petitioner on the ground that the prosecution failed to prove that the petitioner collected amounts from individuals and did not remit them to the Treasury with dishonest intent. In the absence of evidence supporting the claim, this Court cannot hold the petitioner liable for the offence under Section 409 of the IPC for committing a breach of trust. 14. The conclusion that the acquittal in the criminal proceeding was after full consideration of prosecution evidence, and that the prosecution has miserably failed to prove the charge, can only be arrived at, after a reading of the judgment in its entirety. But, the 2 nd respondent, without considering the acquittal of the petitioner in the criminal case, has rejected the appeal. 15. The rejection order also reveals that the impugned proceedings were issued on the basis of xerox copies of statements, and that the enquiry report was not furnished to the petitioner. 16. In similar circumstances, the Hon’ble Supreme Court, in Ram Lal Vs. State of Rajasthan (Civil Appeal No.7935 of 2023, dated 12.04.2023), has framed two questions and answered which are relevant to the present case. At paragraph 13 of the judgment, it is observed as follows: “13. However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts. [See G.M.Tank Vs. State of Gujarat and others, (2006) 5 SCC 446 , State Bank of Hyderabad Vs. P. Kata Rao, (2008) 15 SCC 657 and Deputy Inspector General of Police and another Vs. S. Samuthiram, (2013) 1 SCC 598 ].” 17. In view of the above, the proceedings No.5068/CPR&RD/G3/2015, dated 22.08.2017, issued by the 2 nd respondent, and the proceedings issued by the 4 th respondent vide ROC.No.1543/2007-A6, dated 31.01.2011, are illegal and untenable. 18. Accordingly, the Writ Petition (AT) is allowed, by setting aside the proceedings No.5068/CPR&RD/G3/2015, dated 22.08.2017, issued by the 2 nd respondent, and the proceedings ROC.No.1543/2007-A6, dated 31.01.2011, issued by the 4 th respondent. The respondents are directed to reinstate the petitioner into service forthwith with all consequential benefits.No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall stand closed.