HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.6879 of 2018
ORDER :
Petitioner is aggrieved of the action of respondents in issuing order dated 16.03.2016 imposing the penalty of withholding one annual grade increment with cumulative effect and treating the suspension period of 168 days i.e. from 01.11.2013 to 17.04.2014 as 'not on duty'.
2. Heard Sri Bhargava Krishna, learned counsel for petitioner and the learned Special Government Pleader appearing for respondents.
3. Petitioner was initially appointed as a Constable on 14.06.1985 in CRPF and subsequently, on 31.08.1993 he joined in Special Protection Force (Police). On subsequent promotions, he is now working as Sub-Inspector of Police and is posted at TSSPF, Secretariat, Hyderabad. It is stated that while he was working as Assistant Sub-Inspector of Police at TS GENCO, Nagarjuna Sagar Dam, he was sent for training to the post of Sub-Inspector of Police. During the course of training, the authorities conducted 2 JS, J W.P.No.6879 of 2018 indoor examination from 20.10.2013 to 25.10.2013. Alleging that he resorted to impersonation in the said examination by writing the examination for one Mr.S.Madhusudhan Rao, Assistant Sub-Inspector of Police, he was placed under suspension vide proceedings of respondent No.3, dated 01.11.2013. Petitioner was furnished with memorandum of charge on 12.12.2013 and inquiry was conducted by respondent No.4. In the inquiry, the petitioner offered explanation pleading innocence. The inquiry officer, without considering his pleadings, unilaterally concluded that the charge against him was proved. Thereafter, the 4th respondent- disciplinary authority issued memorandum dated 07.02.2014 calling for oral enquiry and the petitioner attended the same, however, the said authority also, without considering his oral explanation, straightaway recommended for punishment. Thereafter, the 3rd respondent passed the impugned order dated 16.03.2016 imposing the penalty of withholding of one annual grade increment with cumulative effect and also treating the suspension period of 168 days from 01.11.2013 to 17.04.2014 as 'not on duty'. Thereafter, his suspension was revoked and he 3 JS, J W.P.No.6879 of 2018 joined duty with effect from 19.04.2014. His revision was also rejected by the revisional authority. Hence, the writ petition.
4. Counter affidavit has been filed by respondent Nos.1, 2 and
4. In the counter affidavit, while giving the details of appointment and subsequent promotions of petitioner, it is stated that a departmental inquiry was conducted against the petitioner alleging that he had indulged in impersonation by writing the answer sheet of one Mr.S.Madhusudhan Rao, Assistant Sub-Inspector of Police, in the examination held at the Academy of Special Protection Force, Ameenpur during the year 2013. Since the said charge against the petitioner was proved, the impugned order dated 16.03.2016 is passed by the 3rd respondent, imposing the punishment. Against the said order, petitioner has preferred appeal before respondent No.2, who, after going through the entire record, concluded that there was documentary evidence to show that the petitioner had indulged in impersonation by writing the answer sheet of one Mr.S.Madhusudhan Rao and accordingly rejected the appeal by order dated 01.10.2016. Subsequently, the petitioner preferred revision before respondent No.1, which was also rejected 4 JS, J W.P.No.6879 of 2018 by order dated 30.10.2017 with an observation that there was documentary evidence about the petitioner's indulgence in impersonation by writing the answer sheet of one Mr.S.Madhusudhan Rao, which act is unbecoming of a Government servant. It is stated in the counter affidavit that since the petitioner's indulgence in impersonation is proved with documentary evidence, the penalty of withholding of one annual grade increment with cumulative effect was imposed by treating the suspension period of 168 days i.e. from 01.11.2013 to 17.04.2014 as 'not on duty', which does not require any interference and accordingly prayed to dismiss the writ petition.
5. The charge levelled against the petitioner is that during the indoor examination conducted from 20.10.2013 to 25.10.2013, the petitioner had resorted to impersonation by writing answers in the answer sheet of one Mr.S.Madhusudhan Rao. In the inquiry report dated 04.04.2014, it is observed by the inquiry officer that during the course of oral inquiry, the charged officer has personally admitted in his statement that he had written English abbreviations in the paper of Sri S.Madhusudhan Rao, ASI-825 due to his health 5 JS, J W.P.No.6879 of 2018 condition. But, such oral statements cannot be made basis for recording adverse findings in the inquiry proceedings. What is required to prove the charge is concrete evidence in the form of documents or statements of independent witnesses recorded by following due procedure. In the inquiry report, the statement of Mr.S.Madhusudhan Rao is extracted as under:
"I, S. Madhusudhan Rao, ASI-825 working as a Asst. Sub-Inspector in SPF unit, Midhani, Hyderabad since 17.06.2012.
I had attended ASI to SI cadre course from 01.09.2013 to 26.10.2013. In the part of training final examinations (Indoor) had conducted. In that exam, I am not taken any help from Sri L.L.K.Reddy, ASI- 843 and also he has not written any answers as well as bit paper abbreviations in any paper. But, on the pressure of officers I had written that, "Sri. L.L.K.Reddy had written in my paper". But, actually he had not written in my paper. Only on the honor of officers I had written like that. Hence, I may kindly be observed and will give suitable justice.
Cross Examination by the Charged Officer: Q1. Lot of candidates is there, but why should write my name in your statement ?
Ans: Your examination papers correction has already over, you are all passed, you have to write any one name in your statement. That is not effected on you. At that time I thought your name Sri. L.L.K.Reddy and same written in my statement."6
JS, J W.P.No.6879 of 2018
6. Thus, it is clear from the statement of Mr. S.Madhusudhan Rao that he has not taken any help from the petitioner herein and though the petitioner did not write answers as well as bit paper abbreviations in his answer sheet, he deposed against him due to the pressure of officers. Further, in the cross-examination by the petitioner herein, the said Madhusudhan Rao has stated that he had written the name of petitioner on his paper as the petitioner's examination papers were already corrected and he had already passed. In view of contradictory versions in the statement of Mr.S.Madhusudhan Rao, the same cannot be taken into consideration in the absence of any other concrete evidence against the petitioner. The petitioner, right from the beginning, has categorically denied having helped Mr. S.Madhusudhan Rao.
In view of such denial, the respondents have to establish the charge against the petitioner by producing proper evidence showing that the petitioner had written answers in the answer sheet of Mr. S.Madhusudhan Rao, to help him. Instead of it, the respondents have relied on the statement of Mr.S.Madhusudhan Rao to the effect that he had written the name of petitioner in his answer 7 JS, J W.P.No.6879 of 2018 sheet. Though the statement of Mr.S.Madhusudhan Rao cannot be relied on for the reasons stated above, even if it is to be believed to be correct for a moment, it is not known as to how the petitioner is responsible for such act of Mr.S.Madhusudhan Rao writing in his answer sheet, the name of petitioner.
7. Further, in this case, it is to be noted that no invigilator was examined to prove the charge of impersonation against the petitioner. The invigilator is the best person to establish the charge of impersonation, as he would be present in the examination hall, issue papers to the candidates and collect papers from them. If any impersonation is committed by the candidates, it would be known to the invigilator while collecting papers from them. No complaint is lodged by the invigilator concerned against the petitioner with regard to the alleged impersonation. However, steps were initiated against the petitioner on the general allegation that mass impersonation was committed in the said examination centre. Since there is no complaint from the invigilator of the room where the petitioner and Mr.S.Madhusudhan Rao have written the 8 JS, J W.P.No.6879 of 2018 examination and since such invigilator is not examined and his statement is also not recorded, the inquiry proceedings get vitiated.
8. In support of his contention that admission made under coercion cannot be taken into account, the learned counsel for petitioner has relied on the judgment of this Court in Thotapalli Radhakrishna Murthy v. The Divisional Manager, United India Insurance Co. Ltd., Guntur 1, wherein, it is held as under:
"It is true that there cannot be better evidence than one's own admission but it is not safe to act upon the same when it is denied and when it is alleged to have been extracted by coercion".
9. The aforesaid judgment is squarely applicable to the facts of the present case, as in the present case also, Mr.S.Madhusudhan Rao, in his statement, has stated that he deposed against the petitioner due to the pressure of officers.
10. For the aforesaid reasons, this Court is of the considered view that it can be safely said that the charge of impersonation levelled against the petitioner is not proved in the proceedings 1 1982 SCC OnLine AP 376 9 JS, J W.P.No.6879 of 2018 initiated against him. Therefore, the impugned order is liable to be set aside.
11. Accordingly, the writ petition is allowed setting aside the impugned order dated 16.03.2016. The respondents are directed to revive the annual grade increment of the petitioner and to treat the suspension period as 'on duty' for all purposes. The respondents are further directed to grant all consequential benefits to the petitioner within a period of three months from the date of receipt of a copy of this order. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________ JUVVADI SRIDEVI, J Date: 20.09.2023 ajr