IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
*****
WRIT PETITION NO.14417 of 2021
Between:
Mohd. Ayoob
...Petitioner
AND
1. The Commissioner of Police, Hyderabad and two others
...Respondents
ORDER PRONOUNCED ON: 31.03.2023
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE K.SARATH
1. Whether Reporters of Local : Yes/No
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2. Whether the copies of judgment : Yes/No
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_____________________
JUSTICE K.SARATH
2
SK,J
W.P.No.14417 of 2021
THE HON'BLE SRI JUSTICE K.SARATH
+WRIT PETITION NO.14417 of 2021
%Dated 31.03.2023
# Mohd.Ayoob
...Petitioner
AND
$ 1. The Commissioner of Police and two others
...Respondents
! Counsel for Petitioner : Sri V.Ravichandran
^ Counsel for Respondent: Sri M.V.Rama Rao
Spl. Government Pleader for Home
< GIST :
> HEAD NOTE :
1. 2004 (4) ALD 707
2. (2001) 10 SCC 530
3. (2002) 7 SCC 142
4. (2008) 3 SCC 484
5. 2009 )5) ALD 1
6. Unreported judgment in
WP No.26726 of 2011 dated 30.11.2022 of T.S.High Court
3
SK,J
W.P.No.14417 of 2021
THE HON'BLE SRI JUSTICE K.SARATH
WRIT PETITION No.14417 of 2021
ORDER:
1. Heard Sri V.Ravi Chandran, Learned Counsel appearing for the petitioner and Sri M.V.Rama Rao, Learned Special Government Pleader for Home, appearing for the respondents.
2. The learned Counsel appearing for the petitioner submits that while the petitioner was working as Police Constable in Chandrayanagutta P.S, he was placed under suspension along with one Sri Basheer Ahmed, PC 9659 vide D.O.No.6454, No.L&O/B6/1773 dated 20.08.2015 on the ground that the said Sri Basheer Ahmed indulged in corrupt practices and endangered the safety and security of the Nation by arranging the passports to illegal immigrants 4 SK,J W.P.No.14417 of 2021 fraudulently, and later he was reinstated into service and posted to Dabeerpura PS on 03.10.2016.
3. The learned Counsel for the petitioner further submits that the respondent No.1 issued Articles of Charges in PR No.79/2015 on 15.10.2015 framing a charge against the petitioner and the petitioner has submitted his explanation. The entire charge was that by taking bribe from Basheer Ahmed, PC the petitioner had forwarded Personal Particular Forms (PPFs) without proper verification. The Enquiry Officer held the charge as proved and the respondent No.1 has imposed the punishment of dismissal from service of the petitioner on 13.07.2020. Aggrieved with the same the petitioner had preferred Appeal to the respondent No.2 duly highlighting the defects in the Enquiry Report and the order of dismissal issued by 5 SK,J W.P.No.14417 of 2021 the respondent No.1 and pleaded that the petitioner all though had an unblemished service and the charge of taking bribe was not established in the enquiry. The appeal filed by the petitioner was rejected by an order dated 26.11.2020 while mentioning that it is difficult to find direct evidence for taking bribe. Against the orders in appeal the petitioner filed Revision and the same was also rejected by the Government on 04.06.2021.
4. The learned Counsel for the petitioner further submits that the allegation against the petitioner was that of connivance with another police constable and receiving bribe, a duty was cast upon the disciplinary authority to prove the charge by letting in evidence. Neither the said Police Constable Ahmed nor Agent Ansari was examined during the course of enquiry and 6 SK,J W.P.No.14417 of 2021 their names were not shown in the list of witnesses. The witnesses who were examined during the enquiry have not spoken anything about bribe giving and receiving.
5. The learned Counsel for the petitioner further submits that the very basis for framing of charge and the finding of the Enquiry Officer was based on no evidence and it is settled law that the conclusions based on surmises and conjectures could be interdicted. In the instant case no evidence was produced on behalf of the Disciplinary Authority to establish the allegation of connivance and bribe taking and in the absence of the same the findings of the Enquiry Officer would be rendered erroneous and perverse and any punishment imposed based on such findings is bad in law.
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SK,J W.P.No.14417 of 2021
6. The learned Counsel for the petitioner submits that the Enquiry Officer and the respondent No.1 had overlooked the fact that none of the witnesses deposed about the petitioner receiving any bribe and the appellate Authority having stated that it is difficult to prove the allegations of bribe went on to dismiss the appeal. The Government while rejecting the Revision has failed to assign any reasons and mechanically rejected the Revision petition. The respondents ought to have considered when loss of livelihood is involved and any administrative or quasi judicial order is having adverse consequences assigning of reasons is mandatory.
7. The learned Counsel for the petitioner submits that after disposal of the revision petition, the petitioner came to know that in similar instances, 8 SK,J W.P.No.14417 of 2021 which had occurred in the same Department and the individuals who faced similar charges as that of the petitioner and against whom charges were held proved, they were imposed lesser punishments viz., postponement of increments with cumulative effect vide D.O.No.1260/HCP/BI/B6/0002 /2018-22 dated 15.02.2022 in respect of Mr.K.Veera Babu, P.C. and D.O.No.1128/HCP/BI/B6/0004/2020-22 dated 11.02.2022 in respect of Sri N.Srinivasa Raju, PC, issued by the respondent No.1. The above facts would establish that action of the respondents in imposition of punishment of dismissal from service per se discriminatory and the same is shockingly disproportionate. It is settled law that the High Courts and the Tribunals are entitled to determine whether the relevant evidence was taken into 9 SK,J W.P.No.14417 of 2021 consideration or not and requested to allow the writ petition.
8. The learned Counsel in support of his contentions relied on the following judgments:
1. B.Ramchandra Rao (died) by LRs Vs. Syndicate Bank and another1
2. Tata Engineering and Locomotive Co. Ltd., Vs. Jitendra Pd. Singh and another2
3. Sher Bahadur Vs. Union of India and others3
4. Moni Shankar Vs. Union of India and another 4
5. K.Bala Rama Raju Vs. High Court of Andhra Pradesh and another 5
9. The learned Special Government Pleader for Home, basing on the counter, submits that the
1. 2004 (4) ALD 707
2. (2001) 10 SCC 530
3. (2002) 7 SCC 142
4. (2008) 3 SCC 484
5. 2009 )5) ALD 1 10 SK,J W.P.No.14417 of 2021 petitioner indulged in corrupt practices and endangered and security of the Nation by forwarding the Personal Particulars Forms from his jurisdiction and the petitioner not only tarnished the image of the Department by improper Enquiry, but also acted in most unbecoming Member of Government Service and thereby contravened Rule 3 (1) (2) and (3) of TCS (Conduct) Rules, 1964.
10. The learned Special Government Pleader further submits that the charges made against the petitioner were proved and in the light of instructions contained in G.O.Ms.No.458, General Administration (Ser.C) Department dated 22.09.2009 the punishment of Dismissal from service was awarded and the suspension period of the period w.e.f. 20.08.2015 to 02.09.2016 was treated as not on duty. There is 11 SK,J W.P.No.14417 of 2021 nothing illegal on the part of the respondents in issuing the impugned order as disciplinary action was taken strictly in accordance with the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991 and punishment was imposed as per Standing Orders of the Government.
11. The learned Special Government Pleader further submits that the appellate authority had gone through the appeal petition and connected PR records and minutely and the appeal petition was rejected vide Proceeding Rc.No.307/T2/2020 dated 26.11.2020 stating that there are no valid grounds to set aside the penalty and the Government vide Memo No.607/Ser.II/A1/20201, Home (Ser.II) Department dated 04.06.2021 had rejected the revision petition of 12 SK,J W.P.No.14417 of 2021 the petitioner as per rules and requested to dismiss the writ petition.
12. After hearing both sides this Court of is the considered view that that the respondents have imposed major punishment of dismissal from service against the petitioner on the ground that the petitioner without verification submitted S.B reports for issuance of passports to illegal immigrants, by taking bribe from them.
13. The charge against the petitioner is as follows:
" Sri Md.Ayoob, PC, 9400 of SB City, Hyderabad has exhibited grave misconduct, lack of integrity and moral turpitude towards his legitimate duties even after knowing about the illegal practice of Sri Basher Ahmed, PC 9669 of SB City, Hyderabad with connivance of the agent Ansari arranging passports to illegal migrants fraudulently had forwarded the PPFs allotted to him on the request of Sri Basheer Ahmed, PC 9669 of SB City, Hyderabad, by taking bribe"13
SK,J W.P.No.14417 of 2021
14. In the instant case, none of the witnesses have deposed that the petitioner received bribe and the appellate authority have stated in the rejection order in the appeal that it is difficult to prove the allegation of bribe and the Government also without assigning any reason rejected the revision petition of the petitioner.
15. The judgments relied on by the learned Counsel for the petitioner squarely apply to the instant case.
16. In B.Ramchandra Rao (died) by LRs Vs. Syndicate Bank and another (Supra 1), this Court held that:
"Mere suspicion should not be allowed to take the place of proof even in domestic enquiries"
17. In Shankar Bahadur Vs Union of India (supra 3), the Hon'ble Supreme Court of India held that: 14
SK,J W.P.No.14417 of 2021 "The expression 'sufficiency evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence".
In the instant case also there is no evidence to prove that the petitioner received money and the same was accepted by the appellate authority in its order and stated that it is difficult to prove the allegation of bribe.
18. In Moni Shankar Vs. Unionof India and another (supra 4), wherein the Hon'ble Supreme Court of India, at para No.15, held that:
"Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are 15 SK,J W.P.No.14417 of 2021 entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles".
19. In K.Bala Ramaju Vs High Court of Andhra Pradesh, Hyderabad (supra 5), at para No.47 this Court held that:
"This Court in the normal circumstances would not have interfered with the findings of fact recorded at the domestic enquiry, even if there is some evidence on recorded which is acceptable and which could be relied, however, compendious it may be. The findings would be of two kinds, basic and ultimate. The ultimate findings could be reached only on the basic facts. If the basic facts do not exist or it is not accepted, there cannot be an ultimate finding. In the instant case, the basic facts were denied and did not exist as those against whom the offences was said to have been committed, denied that the offence has ever been committed against them. Insofar as charges 1 and 3 are concenred, as discussed supra, the same were denied by the very persons who were said to have been involved and gains that the alleged violations had occurred. In sofaras charge No.2 is concerned the accused in CC no.113 of 20205 admitted the offence and paid the 16 SK,J W.P.No.14417 of 2021 fine and that the petitioner made an endorsement on the charge sheet-. The finding of the Enquiry Officer that the petitioenr added his name as a witness is also not correct. With regard to charge No.4 (a), no specific words of abuse were mentioned either in the complaint or in the Articles of Charges. Nobody was examined to demonstrate that he was personally abused or ill-treated. So also finding on charge No.4 (e) which is not proved on facts at all. On what date the incident is alleged to have happened was not at aall indicated. The witness also speak only about a single incident wherein the petitioner allegled a tumbler. This can hardly be a foundation to conclude that he was in the habit of breaking tumbler".
20. The punishment imposed on the petitioner was dismissal from service and in respect of similarly situated persons, in spite of charges against them were proved the respondents have imposed lesser punishments i.e. postponement of increments with cumulative effect, vide D.O.No.1260/HCP/BI/B6 /0002/2018-22 dated 15.02.2022 issued by the 17 SK,J W.P.No.14417 of 2021 respondent No.1 herein in respect of Mr.K.Veera Babu, P.C., and D.O.No.1128/HCP/BI/B6/0004/2020-22 dated 11.02.2022 issued by the respondent No.1 in respect of Sri N.Srinivasa Raju, PC.
17. In Tata Engineering and Locomotives Co. Ltd., Vs. Jitendra Pd. Singh and another (supra 2), the Hon'ble Supreme Court of India held that:
"who are facing similar set of charges and proved against them, there cannot be parity in punishments".
In the instant case the respondents singled out the petitioner by imposing punishment of dismissal and the individuals who faced similar charges that of the petitioner and against whom the charges were proved they were imposed lesser punishments i.e. postponement of increments.
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SK,J W.P.No.14417 of 2021
22. Recently, the Division Bench of this Court passed orders in similar circumstances in K.Rajendra Prasad Vs. State of Andhra Pradesh6, squarely apply to the instant case. The operative portion of the said judgment is as follows:
"..... Hence, this Court is of the considered view that by following the law laid down by the Supreme Court in Naresh Chandra Bharadwaj that the punishment of dismissal as imposed by the respondents on the petitioner deserves to be modified to that of compulsory retirement because the disciplinary authority must consider the parity of punishment while imposing on the other two employees. Therefore, for the reasons stated above, this Court is of the considered view that the punishment by the disciplinary authority be modified to that of compulsory retirement".
23. In view of the facts and circumstances of the case and Judgments of the Hon'ble Supreme Court and this Court, the Writ Petition is disposed of by setting aside the impugned order in DO No.4471 6 Unreported judgment in W.P.No.26726 of 2011 Dated 30.11.2022 of T.S.High Court 19 SK,J W.P.No.14417 of 2021 (L&O/B6/1773/2015-20) dated 13.07.2020 issued by the Commissioner of Police, Hyderabad City, and its consequential orders passed in appeal by the respondent No.2 in Rc.No.307/T2/2020 dated 26.11.2020 and the orders passed in Revision by the Government in Memo No.607/Ser.II/2021, Home Department, dated 04.06.2021 and the matter is remanding back to the respondent No.1 to reconsider the case of the petitioner on par with the similarly situated persons, who faced similar charges and imposed lesser punishment against them.
24. Miscellaneous petitions, if any, pending in this Writ petition shall stand closed. No order as to costs.
_____________________ JUSTICE K.SARATH, Date:31.03.2023 Note:
LR copy to be marked b/o trr