Telangana High Court
M. Prabhakar vs The Commissioner Of Police on 29 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.12953 of 2021
ORDER:
In this Writ Petition, the petitioner is challenging the order of dismissal from service passed by the respondent No.1, dated 03.12.2016 and confirmed by the appellate authority by order dated 16.05.2019, as illegal, arbitrary, unjust and consequently to set aside the same and also that the petitioner is entitled for reinstatement to duty with all consequential benefits including continuity of service, pay and allowances etc., and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was recruited as a Police Constable in the year 1990 and while he was working as a driver in the office of City Armed Police (CAR), the petitioner was arrested on 14.07.2015 on the ground of involvement of a criminal case in Crime No.343/2014, under Section 302 of IPC of P.S.Medchal and he was under
judicial custody from 15.07.2015 to 30.09.2015 when he 2 TMD,J W.P.No.12953 of 2021 was released on bail. In the meantime, the petitioner was placed under suspension vide orders dated 23.07.2015 and a charge memo was issued to the petitioner on 05.02.2016. The first charge was that the petitioner was unauthorizedly absent from duties from 14.07.2015 without obtaining any leave and the second charge was that he was involved in a Criminal Case in Crime No.343/2015, under Section 302 of IPC on the file of P.S.Medchal. The learned counsel for the petitioner submits that against the dismissal order, the petitioner preferred an appeal and in the meantime, he had also filed a Writ Petition i.e., W.P.No.43430 of 2018 challenging the dismissal order. This Court, vide orders dated 29.11.2018, had directed the appellate authority to look into the judgment of the Criminal Court acquitting the petitioner and to pass orders in the appeal. It is further submitted that the appellate authority without looking into the facts of the case, confirmed the punishment of dismissal and therefore, the present writ petition has been filed.3
TMD,J W.P.No.12953 of 2021
3. Learned counsel for the petitioner submitted that the charges against the petitioner were two i.e., (i) unauthorized absence from duty from 14.07.2015; and (ii) involvement in a Criminal Case. As regards the first charge, he submits that since the petitioner was arrested on 14.07.2015 and was in judicial custody from 15.07.2015 and the same was intimated to the respondents by the Police Medchal, the said period cannot be treated as unauthorized absence as the circumstances were not under the control of the petitioner to present himself to duty. Therefore, he submits that the charge of unauthorized absence is not proved even during the course of departmental enquiry. As regards the second charge, the learned counsel for the petitioner submits that the Criminal Court has gone into the matter and after due trial, has acquitted the petitioner from all charges and therefore, the acquittal should have been taken into consideration atleast by the appellate authority before confirming the order of dismissal. It is submitted that during the disciplinary proceedings there was no evidence against the petitioner in the Criminal Case and also that it 4 TMD,J W.P.No.12953 of 2021 is Criminal Court alone which can give a finding on the criminal charges against the petitioner as the charges had nothing to do with his official duties and where the Criminal Court acquitted the petitioner, the charge against the petitioner ought to have been deleted.
4. Learned counsel for the petitioner has placed reliance upon the following judgments in support of his contentions:
(1) Nar Singh Pal Vs. Union of India and Others 1; (2) Capt.M.Paul Anthony Vs. Bharat Gold Mines Limited and Another 2;
(3) G.M.Tank Vs. State of Gujarat and Others 3; (4) V.Srinivas Vs. APSRTC, Hyderabad and Another 4.
5. He therefore, submits that the charges against the petitioner being held as not proved by the Criminal Court, the impugned order of dismissal be set aside with all consequential benefits.
1 (2000) 3 SCC 588 2 (1999) 3 SCC 679 3 (2006) 5 SCC 446 4 2013 (5) ALD 798 5 TMD,J W.P.No.12953 of 2021
6. Learned Government Pleader, on the other hand, relied upon the averments made in the counter affidavit and submitted that the petitioner was in fact arrested on 14.07.2015, but no information was given to the authorities and therefore, he was placed under suspension till 23.07.2015 and the period from 14.07.2015 was rightly been treated as unauthorized absence. As regards the Criminal Case is concerned, it is submitted that the Hon'ble Supreme Court in a number of cases has held that both the criminal and departmental proceedings can go on together and as the degree of proof in both the cases are different, it cannot be said that the departmental enquiry cannot go on while the criminal case is pending or that the decision in a Criminal case is binding on the disciplinary authority. He also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Management of Bharat Heavy Electrical Limited Vs. M.Mani5.
5 (2018) 1 SCC 285 6 TMD,J W.P.No.12953 of 2021
7. Learned counsel for the petitioner filed a reply affidavit and submitted that the respondents in their counter affidavit have themselves admitted that the Police Medchal has informed the authorities about his arrest in connection with the Criminal Case and therefore, the contention of the respondents that they were not aware of the arrest, is not correct.
8. Having regard to the rival contentions and the material on record, this Court finds that the two charges against the petitioner are that of unauthorized absence and his involvement in a criminal case. As regards the first charges is concerned, this Court finds that the petitioner was under the judicial custody and therefore, he was not in a position to either inform the authorities about his arrest or report to duty. Therefore, atleast after coming to know about the criminal case and his arrest in connection therewith, the respondent should not have issued the charge memo for unauthorized absence from 14.07.2015. Therefore, this charge is held to be unsustainable against the petitioner.
7
TMD,J W.P.No.12953 of 2021
9. As regards the second charge, i.e., involvement of a criminal case, as rightly pointed out by the learned counsel for the petitioner, the charges were under Section 302 of IPC and not relating to the official functions of the petitioner. It is only the Criminal Court which, after due trial, can pronounce whether the petitioner was guilty of the offence alleged to have been committed by him. In case, where the act of misconduct would amount to both departmental as well as the criminal proceedings, it would be of much importance that both the proceedings be concluded independently, but in the case before this Court, the criminal case has nothing to do with the official functions of the petitioner and therefore, the decision of the Criminal Court would have to weigh on the decision taken by the disciplinary authority of dismissal from service of the petitioner. This Court finds that the dismissal from service was in the year 2016, whereas the petitioner was acquitted from charges in the year 2018, and it was therefore, brought to the notice of this Court in the writ petition and this Court had categorically given a direction to the appellate authority to take the same into 8 TMD,J W.P.No.12953 of 2021 consideration. However, the order of the appellate authority is wanting in detail. It is passed without any application of mind by the appellate authority. In fact, there was no reference even to the order of the Hon'ble High Court in the Writ Petition while passing the appellate order. Therefore, it appears that the appellate authority neither considered the judgment of this Court nor even looked into the acquittal order before confirming the order of dismissal. The judgments filed in support of the contentions raised by the petitioner are to the effect that where there is no evidence and the Criminal Court has acquitted the accused from the charges, the departmental authorities would have also to look into the same before passing any orders. The judgment relied upon by the learned government pleader is distinguishable on facts.
10. In view thereof, the writ petition filed by the petitioner is allowed and the respondents are directed to reinstate the petitioner into service with consequential benefits only from the date of acquittal i.e., in the year 2018.
9
TMD,J W.P.No.12953 of 2021
11. Accordingly, this writ petition is allowed. There shall be no order as to costs.
12. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Dated: 29.04.2024 bak