HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.4883 of 2019
ORDER :
Petitioner is aggrieved of the action of respondents in imposing the punishment of withholding 20% pension for a period of five years and in treating the suspension period from 13.10.1988 to 14.11.1992 and out of employment period from 15.11.1992 to 31.12.2013 as 'not on duty'.
2. Heard Sri C. Sai Reddy, learned counsel for petitioner and the learned Assistant Government Pleader for Home, appearing for respondents.
3. When the petitioner was working as a Head Constable and was Station House Officer of Nellikuduru Police Station of Warangal District, a criminal case was registered against him and also departmental proceedings were initiated on the ground that he committed rape on one Guguloth Sathi in the quarters at the Police Station premises. He was placed under suspension with effect from 13.10.1988. Though he was acquitted in the criminal case, on the ground that the charge levelled against him was proved in the 2 JS, J W.P.No.4883 of 2019 departmental proceedings, he was dismissed from service on 11.11.1992. His appeal was also dismissed by order dated 30.12.1993.
4. Being aggrieved of the punishment of dismissal from service, the petitioner had filed O.A.No.6009 of 1994 before the A.P. Administrative Tribunal. The said OA was disposed of by order dated 19.08.2003, setting aside the order of dismissal and granting liberty to the authorities to hold a fresh inquiry under Pre- 1990-1991 A.P. Civil Services (CCA) Rules. But the respondents, without following the directions of the Tribunal, have preferred W.P.No.7108 of 2004 against the orders of Tribunal and obtained interim suspension orders. Ultimately, the said writ petition was dismissed for default on 19.04.2011 and thus, the orders of Tribunal in O.A.No.6009 of 1994 setting aside the dismissal orders, have become final. Case of the petitioner is that in view of dismissal of the writ petition filed by the respondents, he was to be reinstated into service treating the out of employment period as 'on duty'. However, without reinstating the petitioner into service inspite of his representation dated 14.11.2003, the respondents 3 JS, J W.P.No.4883 of 2019 have initiated fresh inquiry on the date of his attaining the age of superannuation i.e. 31.12.2013, without passing any orders for his retirement.
5. It is the further case of the petitioner that after his retirement, the 2nd respondent by Memo dated 19.07.2014, directed the 3rd respondent to implement the orders of the Tribunal in O.A.No.6009 of 1994. The case of the petitioner is that the respondents ought to have implemented the orders of Tribunal prior to his attaining the age of superannuation and they ought to have initiated the fresh inquiry before his superannuation. However, the 3rd respondent, after one year from the date of petitioner's superannuation, has issued Memorandum dated 03.12.2014 appointing the Inquiry Officer and Presiding Officer to conduct fresh inquiry against the petitioner.
6. Vide Memo dated 27.01.2015, the inquiry officer has framed two charges against the petitioner i.e. (i) abuse of official position in instructing Guguloth Sathi to bring wanted persons to the Police Station; and (ii) gross misconduct in calling Guguloth Sathi to 4 JS, J W.P.No.4883 of 2019 Police quarters on 12.10.1988 and committing rape on her. It is stated that the 2nd charge was the subject matter of criminal case, which ended in acquittal on merits. Therefore, the department has no jurisdiction to conduct fresh inquiry framing charges for the reason that after attaining the age of superannuation, Government alone is competent authority to issue articles of charge and conduct the inquiry as per the Revised Pension Rules, 1980. However, the inquiry officer conducted the inquiry by examining seven witnesses and submitted inquiry report on 02.11.2015 holding that the charges are not proved. Thereafter, the 1st respondent issued dissenting note, disagreeing with the findings of the inquiry officer, though there is no evidence for such disagreement. Petitioner has submitted his detailed explanation to the said dissent note and requested to drop the charges, but the 3rd respondent, without considering the contents of his explanation dated 11.01.2016, sent the record to the 1st respondent for passing final orders. The 1st respondent also, without examining the depositions of the witnesses, judgment of the criminal Court, analysis and findings of the inquiry officer, reasons for disagreement in the dissenting note 5 JS, J W.P.No.4883 of 2019 and contents of petitioner's explanation, issued show cause notice in Memo dated 01.05.2017 proposing the punishment of cut in pension by 20% for a period of five years. In the said show cause notice, there is no whisper as to how to treat the suspension and out of employment periods. Petitioner has submitted his explanation to the said show cause notice on 29.05.2017. However, without considering his explanation, the 1st respondent has passed final orders imposing the punishment of withholding 20% pension for a period of five years, vide G.O.Ms.No.116, dated 04.10.2017 and a further Memo dated 18.08.2018 was issued treating the suspension period from 13.10.1988 to 14.11.1992 and out of employment period from 15.11.1992 to 31.12.2013 as 'not on duty', invoking F.R.No.54(B)(7). Accordingly, he prayed to set aside the said orders and grant consequential benefits treating the suspension period and out of employment period as 'on duty'.
7. Counter affidavit is filed by the 3rd respondent stating that on 11.10.1988, while the petitioner was working at Nellikudur Police Station, he received a complaint from one Guguloth Redya to take action against some persons for abusing him. The petitioner along 6 JS, J W.P.No.4883 of 2019 with a Constable, visited Nallagutta thanda in search of those persons. As the said persons were not found, the petitioner instructed one Guguloth Sathi and Guguloth Chandru to bring the wanted persons to the Police Station on the next day. On the next day i.e. on 12.10.1988 in the afternoon, the said Guguloth Sathi along with her brother Guguloth Veeranna went to Nellikudur Police Station and informed to the petitioner that the wanted persons were not available in the Thanda. On that, the petitioner instructed Guguloth Veeranna to go back to his village to bring wanted persons leaving Guguloth Sathi at Nellikudur Police Station. At about 2.00 p.m., the petitioner asked Sathi to follow him to his quarters in the Police Station premises, bolted the doors and committed rape on her by frightening her that he will implicate her husband in a false case. A case in Crime No.62 of 1988 was registered against the petitioner for the offence under Section 376(2)(a) of IPC and simultaneously, a detailed inquiry was conducted under A.P. Civil Services (CCA) Rules, 1963. Petitioner was acquitted in the criminal case as the material witnesses have turned hostile, however, the charges were held 7 JS, J W.P.No.4883 of 2019 proved in the departmental inquiry. Accordingly, he was dismissed from service vide proceedings dated 11.11.1992. His appeal was also rejected vide order dated 30.12.1993. Later, the petitioner approached the A.P.Administrative Tribunal by filing O.A.No.6009 of 1994. The said O.A. was allowed setting aside the orders of dismissal from service and directed the respondents to conduct a fresh inquiry against the petitioner under Pre-1991 A.P.C.S. (CCA) Rules. The writ petition filed against the orders of Tribunal was dismissed on 19.04.2011. Thereafter, a fresh inquiry was conducted as per the orders of the Tribunal. The inquiry officer by conducting oral inquiry, held that the charges against the petitioner were not proved. Since the inquiry officer has not properly appreciated the evidence adduced during the inquiry and simply relied on the testimony of witnesses without going into facts and also gravity of charges, a dissenting note was issued to the petitioner/charged officer duly furnishing copy of findings of the inquiry officer vide memorandum dated 31.12.2015 with a direction to submit his further representation if any. Accordingly, petitioner submitted his representation on 11.01.2016. However, 8 JS, J W.P.No.4883 of 2019 since the date of birth of petitioner as per his service book is 01.01.1956, he was deemed to have been retired from service by 31.12.2013, therefore, the entire oral inquiry file was sent to the Director General of Police, Telangana with a request to forward the same to the Government for final disposal as per Rules. Thereafter, the Government has issued show cause notice vide Memo dated 01.05.2017 disagreeing with the findings of inquiry officer and held the charges as proved for the reasons mentioned in the dissenting note appended to the show cause notice. In the show cause notice, Government has decided provisionally to impose a penalty of withholding 20% pension for a period of five years. In response to the said show cause notice, the petitioner has submitted his explanation on 29.05.2017 and on receipt of said explanation, the Government have decided to confirm the provisional decision of imposing punishment of withholding 20% pension for a period of five years, vide G.O.Ms.No.116, dated 04.10.2017 and further, vide Memo dated 18.08.2018, Government has ordered to treat the suspension period from 13.10.1988 to 14.11.1992 and the out of employment period from 15.11.1992 to 31.12.2013 as 'not on 9 JS, J W.P.No.4883 of 2019 duty'. It is stated in the counter that the respondents have implemented the orders of Tribunal in O.A.No.6009 of 1994 by conducting fresh inquiry into the charges levelled against the petitioner, as per the Pre-1991 Rules and during the inquiry also, all reasonable opportunities were given to the petitioner to adduce evidence in support of his case. Accordingly, the respondents have prayed to dismiss the writ petition.
8. The allegation against the petitioner was that while he was working as Head Constable and was Station House Officer of Nellikuduru Police Station, he called one Guguloth Sathi of Nallagutta thanda to the Police Station, took her to his residential quarters in the premises of Police Station and committed rape on her by threatening to foist a false case against her husband. Apart from registering a criminal case, departmental inquiry was also initiated against the petitioner. Though the criminal case has ended in acquittal, the petitioner was found guilty in the departmental proceedings, and therefore, he was dismissed from service by order dated 11.11.1992. When he questioned the same before the Tribunal by filing O.A.No.6009 of 1994, the Tribunal has allowed 10 JS, J W.P.No.4883 of 2019 the said O.A. by order dated 19.08.2003 setting aside the dismissal order and also directed the respondents to conduct a fresh inquiry as per Pre-1991 Rules. The respondents, instead of implementing the orders of Tribunal by initiating fresh inquiry immediately after such orders, have filed W.P.No.7108 of 2004 before this Court questioning the orders of Tribunal and got suspended the said orders. The said writ petition was ultimately dismissed for default on 19.04.2011. Meanwhile, the petitioner had retired from service on 31.12.2013 on attaining the age of superannuation. Thereafter, the 2nd respondent has issued Memo dated 19.07.2014, directing the 3rd respondent to implement the orders of Tribunal in O.A.No.6009 of 1994. Thus, from the date of disposal of the O.A. i.e. 19.08.2003 till the date of retirement of petitioner i.e. 31.12.2013 i.e. for a period of ten years, the respondents, instead of initiating fresh inquiry as directed by the Tribunal, have approached this Court by filing writ petition and only after dismissal of such writ petition for default, the Memo dated 19.07.2014 came to be issued to implement the orders of the Tribunal. Thus, the respondents have wasted valuable time of ten 11 JS, J W.P.No.4883 of 2019 years and initiated fresh inquiry after the retirement of petitioner. Even in that inquiry, after recording the statements of witnesses, the inquiry officer has held that the charges levelled against the petitioner are not proved. Inspite of such findings by the inquiry officer, the respondents have proceeded further against the petitioner on the basis of the dissent note of the 1st respondent and ultimately imposed the punishment of 20% cut in pension for five years and treating the period of suspension and out of employment period as 'not on duty'.
9. Thus, the record discloses that the initial order of dismissal was set aside by the Tribunal and the subsequent inquiry which was initiated after the retirement of petitioner, also ended in his favour. Even then, the punishment was imposed on the petitioner basing on the dissent note of 1st respondent. The statements of the witnesses along with the victim were narrated in the dissent note. A perusal of the statements of witnesses discloses that the victim has deposed that she never went to the residential quarters of the petitioner and that he has not misbehaved with her. The other two independent witnesses i.e. PWs.2 and 3 also did not depose 12 JS, J W.P.No.4883 of 2019 anything against the petitioner herein. The remaining witnesses i.e. PWs.4 to 7, who are the official witnesses, have deposed about the steps taken by them as a part of their official duties. Inspite of the material witnesses i.e. PWs.1 to 3 not deposing anything against the petitioner in the inquiry proceedings, it is noted in the dissent note that the charges against the petitioner are proved beyond reasonable doubt, which has no basis. Basing on such dissent note, proceedings were continued against the petitioner and the punishment is imposed, which is not maintainable and is liable to be set aside.
10. For the aforesaid reasons, the writ petition is allowed. The impugned G.O.Ms.No.116, Home (Services-II) Department, dated 04.10.2017 and the consequential Memo No.2837/Ser.II/A1/2016, dated 18.08.2018 are hereby set aside. The petitioner is entitled for 20% of pension withheld by the respondents. The period of suspension from 13.10.1988 to 14.11.1992 and the out of employment period from 15.11.1992 to 31.12.2013 shall be treated as 'on duty' for all purposes. The respondents shall extend all the benefits like periodical increments, pay revisions etc., and pay such 13 JS, J W.P.No.4883 of 2019 amounts to the petitioner within a period of four 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: 26.09.2023 ajr