HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE K. SARATH
W.P.No.10766 of 2007
ORDER:(Per Hon'ble Sri Justice Abhinand Kumar Shavili)
This Writ Petition is filed aggrieved by the orders of the
A.P. Administrative Tribunal, Hyderabad (for brevity 'the
Tribunal') passed in O.A.No.6385 of 2002 dt.08-09-2006.
2. Heard the learned Government Pleader for Home
appearing for the petitioners and Sri Ch. Ganesh, learned counsel
for the respondent.
3. It has been contended by the petitioners that the respondent was engaged as a Police Constable and while he was working, he was indulged in a criminal case in Crime No.32 of 1993 for the offences under Sections 147, 452, 136, 323 and 380 IPC and simultaneously, disciplinary proceedings were also issued against him. The respondent was acquitted by the competent criminal Court in C.C.No.245 of 1993 vide judgment AKS,J & SK,J 2 W.P.No.10766 of 2007 dt.13-01-1998. However in the domestic enquiry, the disciplinary authority imposed a punishment of postponement of one increment of one year with cumulative effect and on pension. The suspension period i.e. with effect from 26-06-1993 to 15-04-1996 is treated as 'not on duty'. Thereafter, the respondent has unsuccessfully preferred appeal and later challenged the said orders before the Tribunal by filing O.A.No.6385 of 2002 and the Tribunal vide orders dt.08-09-2006 was pleased to allow the O.A. preferred by the respondent and was pleased to set aside the orders of the punishment without appreciating any of the contentions raised by the petitioners. Therefore, appropriate orders be passed in the Writ Petition by setting aside the orders of the Tribunal and allow the Writ Petition.
4. Learned counsel for the respondent had contended that the Tribunal was justified in allowing the O.A.and came to a conclusion that the respondent was tried for the very same set of allegations by the competent criminal Court and the Criminal Court came to the conclusion that the testimonies of PWs.1 and 2 were not believable and on that ground, acquitted the respondent AKS,J & SK,J 3 W.P.No.10766 of 2007 and in the domestic enquiry also, the enquiry officer has come to the same conclusion that the testimonies of PWs.1 and 2 were unbelievable but in spite of the enquiry officer's report, the disciplinary authority has imposed a major penalty. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.
5. This Court having considered the submissions made by the learned counsel for the petitioners is of the considered view that the Tribunal was justified in allowing the O.A. with the following observations:
"The Criminal Court while considering the evidence on record came to the conclusion that the testimonies of P.Ws.1 and 2 were not believable and the prosecution failed to prove the guilt of the accused. So, the case ended in acquittal. Significantly, the departmental enquiry officer also came to the same conclusion rightly. As already pointed out, there is total lack of evidence in the departmental enquiry to prove the misconduct against the applicant and the Superintendent of Police was not justified in coming to the different conclusion than the departmental enquiry officer. Be that as it may, I have to see the effect of the judgment of the criminal court on the departmental proceedings when the charges are in both the proceedings are one and the same, AKS,J & SK,J 4 W.P.No.10766 of 2007 witness are the same and the evidence is one and the same. For that I have to examine the decision of our Hon'ble Supreme Court in the case G.M. Tank v. State of Gujrat and others1, which is relied upon by the learned counsel for the applicant."
6. A perusal of the record further discloses that the respondent was subject to very same set of allegations in both the Criminal Court as well as in the domestic enquiry. The Supreme Court in G.M. Tank's case (1 supra) has elaborately considered the issue and held as under:
"In our opinion, such facts and evidence in the departmental 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 the 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 case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
1 (2006) 5 SCC 446 AKS,J & SK,J 5 W.P.No.10766 of 2007
7. Therefore, this Court is not inclined to interfere with the orders of the Tribunal and therefore the Writ Petition is liable to be dismissed.
8. Accordingly, the Writ Petition is dismissed. No costs.
9. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
______________________________ ABHINAND KUMAR SHAVILI, J _____________________________ K. SARATH, J Dt.05.09.2022 kvr